J-S04013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 ADRIAN K. AMARA                           :
                                           :
                    Appellant              :    No. 1730 MDA 2017

           Appeal from the Judgment of Sentence June 21, 2017
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0006270-2015


BEFORE:    SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                              FILED APRIL 10, 2019

      Appellant, Adrian K. Amara, appeals from the judgment of sentence

entered on June 21, 2017, in the York County Court of Common Pleas. We

affirm.

      The trial court provided a thorough recitation of the factual history of

this matter:

             This case has a tortured history. [Appellant] was first
      brought to trial on January 11, 2017. After the lunch break on the
      first day of trial, [Appellant] appeared for the afternoon session
      impaired and unable to remain conscious. This was corroborated
      by a positive drug test for opioid use. (Excerpt of Proceedings,
      1/11/17 at 5). In short, [Appellant] went out and got high over
      lunch during his own trial for dealing heroin. As a result of
      [Appellant’s] inability to aid in his defense due to his intoxication,
      a mistrial was declared. (E.P. at 7). [Appellant] was then brought
      to trial the following week on January 17, 2017. During the
      testimony of the police officers, at least 3 references were made
      to [Appellant’s] “refusal to cooperate,” in violation of his right to
      remain silent, which triggered another mistrial. (Notes of
      Testimony, 1/17/17 - 1/18/17 at 183).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S04013-19


           [Appellant] was brought to trial a third and final time on May
     10, 2017. The Commonwealth first called Sergeant Adam
     Bruckhart to testify. (Notes of Testimony, 5/10/17 - 5/12/17 at
     103). In June and July of 2015, Sergeant Bruckhart was
     coordinating a drug investigation with a confidential informant
     pertaining to a suspected drug dealer, Alana Clark, who lived at
     30 North Broad Street in York, Pennsylvania. (N.T. at 106).
     Sergeant Bruckhart had the confidential informant conduct 3
     controlled drug buys of heroin from Ms. Clark. (N.T. at 107-116).
     Each time, the confidential informant was searched before the
     transaction, was given an amount of official funds, and returned
     from the transaction with a quantity of heroin. (Id). These buys
     occurred on June 30th, July 7th, and July 14th of 2015. (Id). During
     the phone call to set up the buy on July 7th, Sergeant Bruckhart
     overheard the confidential informant speaking to a male voice on
     the other end of the call. (N.T. at 112). As a result of these
     controlled buys, Sergeant Bruckhart obtained a search warrant for
     the residence at 30 North Broad Street, and executed this warrant
     on July 15, 2015. (N.T. at 117).

           A team of officers entered 30 North Broad Street pursuant
     to the warrant. They gathered all the residents in the kitchen.
     (N.T. at 117). Ms. Clark and [Appellant] were discovered together
     in a bedroom on the second floor. (N.T. at 118). In that bedroom,
     the officers found sandwich bags, magazine clippings, and
     packages of heroin. (N.T. at 124). The envelopes for the heroin
     were fashioned out of magazine clippings folded around a quantity
     of heroin. (N.T. at 124-125). Sergeant Bruckhart testified that this
     method of packaging was extremely rare. (N.T. at 126).

            The police also discovered identification evidence for the
     occupants of the bedroom, including an [A]ccess card with Ms.
     Clark’ s name on it, and a voter registration card and paystub with
     [Appellant’s] name on it. (N.T. at 127). The paystub was from
     August of 2013, almost two years prior to the search, suggesting
     [Appellant] had resided there for sometime [sic]. (N.T. at 128).
     Also located was $305 in cash, and three cellphones, two of which
     were submitted for analysis. (N.T. at 130, 134). None of the cash
     found matched the official funds used in the three controlled drug
     buys by the confidential informant. (N.T. at 144). Also located in
     the home were [Appellant’s] children. (N.T. at 117).

          The Commonwealth then presented testimony from
     Sergeant Travis Shearer. (N.T. at 151). Sergeant Shearer

                                    -2-
J-S04013-19


     participated in the execution of the search warrant at 30 North
     Broad Street, in which he interviewed [Appellant]. (N.T. at 152).
     During this interview [Appellant] stated that he was a drug user,
     that there were drugs in the upstairs bedroom of the residence
     where he had been located, and that those drugs were his. Id.
     Sergeant Shearer also recalled [Appellant] telling him that often
     times those with drug habits have to sell drugs to fund their
     addiction. (N.T. at 153).

           The Commonwealth next presented the testimony of
     Trooper Shawn Wolfe. (N.T. at 161). Trooper Wolfe assisted in the
     controlled drug buys on July 7th and 15th by providing surveillance
     and taking photographs. (N.T. at 162-165). Trooper Wolfe also
     assisted in the execution of the search warrant on July 15th, in
     which he was the first to enter the bedroom and observe
     [Appellant] standing near the door, and Ms. Clark by the
     windowsill. (N.T. at 166). Trooper Wolfe then went outside to see
     what, if anything was thrown out of the window. (N.T. at 166). He
     observed on the ground directly below the window a clear plastic
     sandwich bag with drug residue in it and apparent packaging
     material. (N.T. at 167). When re-entering the house, Trooper
     Wolfe heard [Appellant] exclaim, “well you found it, that’s it.”
     (N.T. at 168).

            The Commonwealth then called Jessie Coy, a qualified
     expert in cell phone data analysis. (N.T. at 178). [Appellant]
     objected to the admission of the evidence of text messages from
     the cell phones recovered at 30 N Broad Street. (N.T. at 180). One
     of the phones, an AT&T phone, belonged to Alana Clark, as she
     identified it as her own. (N.T. at 183). The second phone was a
     Samsung phone for which the police were unable to determine
     ownership, or the phone number. (N.T. at 184). Commonwealth’s
     Exhibit 11 contained four screen shots of text messages from
     Alana Clark’ s phone in the time frame shortly before the search.
     The Court allowed three of four screen shots to be presented,
     while the Court sustained [Appellant’s] objection to the fourth
     screen shot. (N.T. at 193-204). [Appellant] did not object to the
     admission of the first two screen shots, in fact expressly noting
     there was no basis to object. (N.T. at 193-194). As detailed further
     in this opinion, the Court allowed the third screen shot to be
     admitted as it was an exception to the rule against hearsay as a
     present sense impression under Rule 803(3). (N.T. at 199-200).




                                    -3-
J-S04013-19


           Commonwealth’s Exhibit 12 was a subset of text messages
     from Commonwealth’s Exhibit 13, which were text messages from
     the unidentified Samsung phone. (N.T. at 205). The Court allowed
     these exhibits to be presented at trial, but did not permit them to
     go back to the jury during deliberations, so as to not
     overemphasize their significance or confuse the jury. (N.T. at
     213). Commonwealth Exhibit 13 contained additional texts that
     were not relevant to the trial, nor were they referenced.

            Mr. Coy then testified as to the contents of the text
     messages recovered from the cell phones. (N.T. at 222). The
     messages in Commonwealth’s Exhibit 11, screenshots from Alana
     Clark’ s phone, were conversations about setting up transactions
     for drugs. (N.T. at 225) The first two being messages between the
     confidential informant and someone using Alana Clark’s phone,
     the third screenshot between someone identified as “Canday” and
     whoever was using Ms. Clark’s phone. (N.T. at 225).
     Commonwealth’ s Exhibit 12 contained similar messages from the
     unknown phone recovered in the bedroom, containing messages
     about setting up transactions for drugs. (N.T. at 227). Finally, Mr.
     Coy testified about Commonwealth’s Exhibit 13, which were the
     messages recovered from the unidentified Samsung phone, in
     which unknown individuals sent text messages to the phone,
     referring to the addressee as a male, using terms like “bro.” ( N.T.
     at 229).

           The    Commonwealth        next   called   Detective    Craig
     Fenstermacher, who was qualified as an expert in the packaging
     and sales of narcotics in York County, Pennsylvania. (N.T. at 250).
     Detective Fenstermacher testified that users of illegal drugs will
     commonly sell drugs to fund their habit, and that the method of
     packaging heroin in this case, which was wrapped in magazine
     paper, was unusual. (N.T. at 247). The evidence at trial showed
     that there were more magazines in the room where [Appellant]
     was discovered, in a state of being cut up to be used as additional
     packaging material. (N.T. at 131). When presented with a
     hypothetical situation matching the case at hand, Detective
     Fenstermacher stated in his opinion, based on his training and
     experience, that subjects packaging heroin in this manner would
     have possessed the heroin with the intent to distribute. (N.T. at
     257).

           The Commonwealth then rested, at which point [Appellant]
     elected to take the stand and testify on his own behalf. (N.T. at

                                    -4-
J-S04013-19


     268). [Appellant] testified that the drugs found in the residence
     were not his, but belonged to Ms. Alana Clark, who was the mother
     of his child. (N.T. at 273). [Appellant] denied that he ever told the
     police that the drugs were his or that he sold drugs. He sought to
     explain away his statement that drug users sell drugs to fund their
     habit as being in reference to Ms. Clark. (N.T. at 276). He
     acknowledged that he made the statement “oh there it is” when
     Trooper Wolfe came back inside with the drugs found below the
     window, but stated that this was in reference to the police telling
     him that they would rip the house apart until they found
     something. (N.T. at 278). He stated he had no knowledge that Ms.
     Clark was selling drugs1, and only allowed her to stay at the house
     out of compassion as she was his child’s mother. (N.T. at 279).
     [Appellant’s] child lived in the residence where the drug vending
     operation was occurring. (N.T. at 276). Upon cross examination,
     [Appellant] stated that he was not using heroin at that time, or at
     any time2. (N.T. at 286).

           1Despite being discovered in a small bedroom with
           her, with heroin and packaging materials in plain view.

           2 This untruthful testimony flew in the face of the fact
           that [Appellant] abused opioids and triggered a
           mistrial in his first trial.

            After [Appellant’s] untruthful testimony regarding no
     previous opioid use, [Appellant] presented a stipulation that both
     parties had agreed to, that on January 11, 2017, [Appellant]
     tested positive for unauthorized controlled substances, including,
     but not limited to, marijuana. (N.T. at 305). [Appellant] then
     rested. Id. This stipulation was entered in order to address the
     fact [Appellant] had just lied under oath about prior drug use at
     his first trial/mistrial where he used opioids over the lunch break,
     and was carefully crafted in a manner to not prejudice the instant
     trial by omitting reference to opioids.

           The Commonwealth then presented the testimony of Karen
     Sipe, the confidential informant, on rebuttal. (N.T. at 306). Ms.
     Sipe testified that prior to July 15, 2015, she had purchased heroin
     from [Appellant], and that during the time period around July 15,
     2015, she worked with Detective Bruckhart to set up heroin buys
     with [Appellant]. (N.T. at 308). At this point, the Commonwealth
     closed its case, and then both parties presented closing
     arguments. The jury then retired to deliberate, and returned with

                                     -5-
J-S04013-19


        a verdict of guilty for Possession with the Intent to Distribute,
        Criminal Conspiracy to Possession with the Intent to Distribute,
        and Possession of Drug Paraphernalia. (Notes of Testimony,
        5/15/17 at 17).

Trial Court Opinion, 9/17/18, at 2-8.            On June 21, 2017, the trial court

sentenced Appellant to a term of six to twelve years of incarceration for

possession of a controlled substance with intent to deliver (“PWID”),1 a

consecutive term of five to ten years of incarceration for conspiracy to commit

PWID,2 and a concurrent term of three to six months for possession of drug

paraphernalia.3 This resulted in an aggregate sentence of eleven to twenty-

two years of incarceration, in addition to costs and fines. N.T., 6/21/17, at

20. Appellant filed a timely notice of appeal, and both the trial court and

Appellant complied with Pa.R.A.P. 1925.

        On appeal, Appellant raises the following issues:

        [1.] The trial court erred in admitting Commonwealth exhibits
        consisting of text messages because there was no foundation that
        Appellant was associated with the cell phone number, no
        foundation who was communicating in the text messages, and the
        text messages were hearsay for which no exception applied under
        the circumstances.

        [2.] The trial court abused its discretion in sentencing Appellant
        because it had pre-judged Appellant’s sentence prior to trial by
        rejecting a plea agreement and demonstrating if Appellant was
        convicted at trial, the court would sentence him to an aggravated
        range sentence. The trial court further abused its discretion by
____________________________________________


1   35 P.S. § 780-113(a)(30).

2   18 Pa.C.S. § 903(a)(1).

3   35 P.S. § 780-113(a)(32).

                                           -6-
J-S04013-19


       basing Appellant’s aggravated sentence on (1) a prior conviction
       for PWID already included in his prior record score, (2) on
       Appellant obtaining an additional charge of simple assault while
       pending trial, (3) by failing to consider Appellant’s drug addiction
       and need for rehabilitation, (4) and basing Appellant’s sentence
       on the general issues surrounding the country’s “opioid epidemic.”

Appellant’s Brief at 5.

       In his first issue, Appellant avers that the trial court abused its discretion

in admitting the Commonwealth’s Exhibits 11, 12, and 13, consisting of

screenshots of text messages and transcripts of text messages. Appellant

alleges that these exhibits were inadmissible as they were not properly

authenticated and amounted to hearsay. Appellant’s Brief at 18.4

       It is well settled that the admissibility of evidence is solely within the

discretion of the trial court. Commonwealth v. Woeber, 174 A.3d 1096,

1100 (Pa. Super. 2017). This Court will reverse a trial court’s evidentiary

ruling only where there is a clear abuse of discretion.        Id.   Moreover, the

admissibility of electronic communications is to be evaluated on a case-by-

case basis as any other document to determine whether or not there has been

an adequate foundational showing of their relevance and authenticity. In the

Interest of F.P., 878 A.2d 91, 96 (Pa. Super. 2005).

       Appellant argues that the Commonwealth failed to establish that

Appellant owned or possessed the cellular phone used to send the messages.


____________________________________________


4 We note the Commonwealth’s candor as it concedes that the trial court
abused its discretion in admitting Exhibits 11, 12, and 13 into evidence.
Commonwealth’s Brief at 13.

                                           -7-
J-S04013-19


Appellant’s Brief at 22-23. Therefore, there was a lack of authentication. Id.

at 22-24.

       The Commonwealth’s Exhibit 11 consists of screenshots of three text

messages. The first two messages are not at issue. N.T., 5/10-12/17, at 193.

However, Appellant objected to, and now challenges on appeal, the

admissibility of the third screenshot on Exhibit 11. Id. at 194. The screenshot

of the text reads, verbatim, as follows:

       Hey girl Is A not around? I asked him to front me till tomorrow
       but he didn’t respond. I know ho you usually don’t do that but I
       figured since I got paid tomorrow and come thru every Thursday
       then he would. I’m going thru it today I missed tha clinic so I’m
       sick as fuck

Commonwealth’s Exhibit 11.

       At trial, Appellant objected that the text was not a complete

conversation, there was a lack of foundation, there was no indication that

Appellant was part of this conversation, and the whole of the text is hearsay.

N.T., 5/10-12/17, at 194-197.5 The trial court overruled Appellant’s objection.



____________________________________________


5 We cannot agree with the Commonwealth’s assertion that Appellant objected
only on the basis of hearsay to Exhibit 11. Commonwealth’s Brief at 14. The
notes of testimony reflect that Appellant’s counsel argued a number of bases
for objecting to Exhibit 11. N.T., 5/10-12/17, at 194-197. Appellant’s counsel
objected based on relevance and a lack of foundation as to the participants in
the text conversation and its date, which we deem an objection based on lack
of authentication. See Pa.R.E. 901(a) (“To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.”).


                                           -8-
J-S04013-19


Id. at 200. Additionally, Exhibits 12 and 13 were merely transcripts of text

messages that appeared on a cellular telephone.      Appellant reiterated his

objection to Exhibits 12 and 13. Id. at 206. Appellant argued that there was

no foundation that the cellular telephone belonged to Appellant, but the trial

court concluded that the Commonwealth does not have to “prove a phone

number.” Id. at 211. The trial court admonished Appellant’s counsel and the

Commonwealth that the ruling on Exhibits 12 and 13 was a “double-edged

sword” as it was not known if Appellant ever touched the telephone at issue.

Id. at 211-213. Despite the equivocation, the trial court admitted Exhibits

11, 12, and 13 into evidence. After review, we conclude that the trial court

abused its discretion.

      In Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), this Court

discussed the requirements regarding the admissibility of text messages:

      [E]-mails and text messages are documents and subject to the
      same requirements for authenticity as non-electronic documents
      generally. A document may be authenticated by direct proof, such
      as the testimony of a witness who saw the author sign the
      document, acknowledgment of execution by the signer, admission
      of authenticity by an adverse party, or proof that the document or
      its signature is in the purported author’s handwriting. See
      McCormick on Evidence, §§ 219–221 (E. Cleary 2d Ed. 1972). A
      document also may be authenticated by circumstantial evidence,
      a practice which is “uniformly recognized as permissible.”
      Commonwealth v. Brooks, 352 Pa.Super. 394, 508 A.2d 316
      (1986), (citing, e.g., Commonwealth v. Nolly, 290 Pa. 271, 138
      A. 836 (1927) (letters authenticated by contents: facts known
      only to sender and recipient); Commonwealth v. Bassi, 284 Pa.
      81, 130 A. 311 (1925) (unsigned letter authenticated by
      defendant’s nickname written on it, along with contents indicating
      knowledge of matters familiar to both defendant-sender and


                                    -9-
J-S04013-19


     witness-recipient); and McFarland v. McFarland, 176 Pa.Super.
     342, 107 A.2d 615, 616 (1954)).

            As these cases illustrate, the difficulty that frequently arises
     in e-mail and text message cases is establishing authorship. Often
     more than one person uses an e-mail address and accounts can
     be accessed without permission. In the majority of courts to have
     considered the question, the mere fact that an e-mail bears a
     particular e-mail address is inadequate to authenticate the
     identity of the author; typically, courts demand additional
     evidence.

            Text messages are somewhat different in that they are
     intrinsic to the cell phones in which they are stored. While e-mails
     and instant messages can be sent and received from any
     computer or smart phone, text messages are sent from the
     cellular phone bearing the telephone number identified in the text
     message and received on a phone associated with the number to
     which they are transmitted. The identifying information is
     contained in the text message on the cellular telephone. However,
     as with e-mail accounts, cellular telephones are not always
     exclusively used by the person to whom the phone number is
     assigned.

                                     ***

     Authentication is a prerequisite to admissibility. … We held in In
     the Interest of F.P., [878 A.2d 91 (Pa. Super. 2005),] and courts
     of other jurisdictions concur, that authentication of electronic
     communications, like documents, requires more than mere
     confirmation that the [telephone] number or address belonged to
     a particular person. Circumstantial evidence, which tends to
     corroborate the identity of the sender, is required.

           Glaringly absent in this case is any evidence tending to
     substantiate that Appellant wrote the drug-related text messages.
     No testimony was presented from persons who sent or received
     the text messages. There are no contextual clues in the drug-
     related text messages themselves tending to reveal the identity
     of the sender. In addition to evidence that Appellant identified the
     phone as hers, the trial court relied upon the fact that the cellular
     phone was found on the table in close proximity to Appellant. Trial
     Court Opinion, 11/30/10, at 13. However, we find Appellant’s
     physical proximity to the telephone to be of no probative value in

                                     - 10 -
J-S04013-19


       determining whether she authored text messages days and weeks
       before. On these facts, the admission of the text messages
       constituted an abuse of discretion.

Koch, 39 A.3d at 1004-1005.6

       After review, we conclude there was no authentication of the messages,

no evidence that Appellant had any involvement with the telephones in

question, and no evidence of Appellant’s involvement in the conversations.

However, we conclude that any error was harmless.

       The harmless error doctrine provides as follows:

       Harmless error exists if the state proves either: (1) the error did
       not prejudice the defendant or the prejudice was de minimis; or
       2) the erroneously admitted evidence was merely cumulative of
       other untainted evidence which was substantially similar to the
       erroneously admitted evidence; or (3) the properly admitted and
       uncontradicted evidence of guilt was so overwhelming and the
       prejudicial effect of the error was so insignificant by comparison
       that the error could not have contributed to the verdict.

Commonwealth v. Callen, 198 A.3d 1149, 1163 (Pa. Super. 2018) (citation

omitted).




____________________________________________


6 We note that the trial court admitted Exhibit 11 under the “then-existing
mental, emotional, or physical condition” exception to hearsay in Pa.R.E.
803(3). N.T., 5/10-12/17, at 200. However, as quoted above, “Authentication
is a prerequisite to admissibility[.]” Koch, 39 A.3d at 1005. Appellant
objected on multiple grounds, including improper authentication to the
admissibility of this Exhibit. N.T., 5/10-12/17, at 194-197. We conclude that
we need not address hearsay because Exhibit 11 was never properly
authenticated, and it never identified Appellant as a party to or a subject of
the conversation, let alone as the owner of the cellular telephone. Moreover,
there was confusion over the date that this text message was created. N.T.,
5/10-12/17, at 193-195.

                                          - 11 -
J-S04013-19


      In support of its harmless-error argument, the Commonwealth avers

that the evidence against Appellant was overwhelming.            Commonwealth’s

Brief at 16. We agree.

      The     record   reflects   that   Detective   Sergeant   Adam   Bruckhart’s

confidential informant (“the CI”) testified that she knew Appellant and

purchased heroin from him on a number of occasions. N.T., 5/10-12/17, at

306-307.      The CI said that she would call Appellant on the telephone and

arrange to purchase heroin.        Id. at 307.    On July 14, 2015, the CI called

Appellant, and the two arranged a location for the purchase of heroin. Id. at

308. The CI stated that Appellant informed her that he would send Ms. Clark

to deliver the narcotics, and the CI received the heroin directly from Ms. Clark.

Id. at 309. The heroin was uniquely packaged in a folded magazine clipping.

Id. at 109.

      Detective Bruckhart testified that he obtained a search warrant for the

house in which Ms. Clark was suspected to reside at 30 North Broad Street.

N.T., 5/10-12/17, at 117. When police executed the search warrant, they

discovered Appellant and Ms. Clark together in a bedroom. Id. The couple’s

minor children, along with other family members, were also present in the

house. Id. In the bedroom where Appellant was discovered, police found

heroin, plastic sandwich bags, and magazine clippings fashioned into

envelopes. Id. at 123-124. Inside these magazine-clipping envelopes were

packages of heroin. Id. at 124. Detective Bruckhart testified that this sort of


                                         - 12 -
J-S04013-19


packaging was rare. Id. Police also discovered digital scales and three cellular

telephones. Id. at 126. Detective Bruckhart testified that there was evidence

that Appellant and Ms. Clark lived in the residence. Id. at 127. This evidence

consisted of Ms. Clark’s Access card and mail addressed to Ms. Clark at the

residence. Id. Additionally, police found a voter identification card and a two-

year-old pay stub belonging to Appellant. Id.

      During the search, Pennsylvania State Police Trooper Shawn Wolfe

witnessed Ms. Clark near the window and found heroin on the windowsill.

N.T., 5/10-12/17, at 167. Trooper Wolfe went outside to see if Ms. Clark had

dropped any evidence out of the window. Id. at 167. Directly beneath the

window, Trooper Wolfe found a plastic sandwich bag with suspected drug

residue in it and an envelope crafted from a magazine clipping used as

packaging material. Id. Trooper Wolfe returned to the interior of the house,

and he testified that when Appellant saw him with the package found outside

the window, he said, “[W]ell, you found it; that’s it.” Id. at 168.

      After review, we conclude that this evidence overwhelmingly proved

Appellant’s involvement in a heroin-distribution enterprise with Ms. Clark, and

any prejudice from the text messages was insignificant. Callen, 198 A.3d at

1163. The evidence established that Appellant and Ms. Clark conspired to

illegally possess and distribute heroin and possess drug paraphernalia in

violation of 18 Pa.C.S. § 903(a)(1), and 35 P.S. § 780-113(a)(30) and (32).




                                     - 13 -
J-S04013-19


As such, any error in admitting the text messages into evidence was harmless.

Callen, 198 A.3d at 1163. Accordingly, Appellant is entitled to no relief.

      In his second issue, Appellant claims that the trial court abused its

discretion in imposing sentence. Specifically, Appellant asserts the trial court

impermissibly sentenced him outside of the Sentencing Guidelines, ordered

the sentences to run consecutively, and relied on impermissible factors

including the opioid epidemic and a prior conviction that was already factored

into his prior record score. Appellant’s Brief at 6-7. In his brief, Appellant

correctly notes that this issue presents challenges to the discretionary aspects

of his sentence. Appellant’s Brief at 6-7, 27. It is well settled that when an

appellant challenges the discretionary aspects of his sentence, there is no

automatic appeal; rather, the appeal will be considered a petition for

allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.

Super. 2007).    Furthermore, as this Court noted in Commonwealth v.

Moury, 992 A.2d 162 (Pa. Super. 2010):

      [a]n appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a four-
      part test:

            [W]e conduct a four-part analysis to determine: (1)
            whether [the] appellant has filed a timely notice of
            appeal, see Pa.R.A.P. 902 and 903; (2) whether the
            issue was properly preserved at sentencing or in a
            motion to reconsider and modify sentence, see
            Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief
            has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
            there is a substantial question that the sentence
            appealed from is not appropriate under the
            Sentencing Code, 42 Pa.C.S.A. §9781(b).

                                     - 14 -
J-S04013-19



Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

      Appellant has satisfied the first three elements of the four-part test from

Moury. Appellant preserved issues concerning the discretionary aspects of

his sentence by filing a timely post-sentence motion and notice of appeal, and

he provided a statement of reasons for allowance of appeal from the

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f) in his brief.

Next, we must determine if Appellant has raised a substantial question for our

review. Moury, 992 A.2d at 170.

            A substantial question requires a demonstration that “the
      sentence violates either a specific provision of the sentencing
      scheme set forth in the Sentencing Code or a particular
      fundamental norm underlying the sentencing process.”
      Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
      2005). This Court’s inquiry “must focus on the reasons for which
      the appeal is sought, in contrast to the facts underlying the
      appeal, which are necessary only to decide the appeal on the
      merits.” Id. Whether a substantial question has been raised is
      determined on a case-by-case basis; the fact that a sentence is
      within the statutory limits does not mean a substantial question
      cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
      (Pa. Super. 2003). However, a bald assertion that a sentence is
      excessive does not by itself raise a substantial question justifying
      this Court’s review of the merits of the underlying claim. Id.

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).

      In his Pa.R.A.P. 2119(f) statement, Appellant raises multiple sentencing

issues. Appellant’s Brief at 6-7. However, in the argument portion of his brief

he abandons some of the claims raised in his Rule 2119(f) statement and

presents a conglomeration of the remaining claims.            From Appellant’s

                                     - 15 -
J-S04013-19


argument, we discern two distinct issues: the trial court abused its discretion

by relying on the opioid epidemic, which Appellant argues was an

impermissible factor; and the trial court abused its discretion in imposing an

excessive sentence by sentencing Appellant outside of the Sentencing

Guidelines and ordering the sentences to run consecutively. Id. at 27-35.

      First, Appellant avers that the trial court relied on an impermissible

factor, the opioid epidemic, in fashioning its sentence. Appellant’s Brief at 27.

We conclude that Appellant has presented a substantial question for our

review. See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super.

2006) (holding that a claim that a sentence is excessive because the trial court

relied on impermissible factors raises a substantial question).

      “[S]entencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.” Commonwealth v. Sheller, 961 A.2d 187,

190 (Pa. Super. 2008). Additionally, an abuse of discretion is not merely an

error in judgment; rather, an appellant must establish that the trial court

ignored or misapplied the law, exercised its judgment for reasons of partiality,

prejudice, bias, or ill will, or reached a manifestly unreasonable decision. Id.

      Appellant avers that the trial court relied on the fact that Appellant sold

heroin and that there were a substantial number of opioid-related deaths in

York County. Appellant’s Brief at 27-28. Appellant points out that the trial

court stated that there had been over 4,000 deaths in York County related to


                                     - 16 -
J-S04013-19


heroin overdoses in 2015. Id. at 28-29. Appellant disputes this number, and

he alleges that there were in fact ninety-five heroin-related deaths in 2015.

Id. at 30.

      We conclude that this issue is waived. “Objections to the discretionary

aspects of a sentence are generally waived if they are not raised at the

sentencing hearing or in a motion to modify the sentence imposed.” Moury,

992 A.2d at 170. Although Appellant filed a timely post-sentence motion, he

never objected at the time of sentencing or in his post-sentence motion to the

trial court’s reference to the opioid epidemic or the number of deaths

attributable to heroin in York County.

      Assuming, arguendo, that Appellant had preserved this issue, we would

conclude that no relief is due. Although the trial court did state that there had

been over 4,000 heroin deaths in 2015, N.T., 6/21/17, at 20-21, a number

that was unsubstantiated, we conclude that the trial court’s statement is of no

moment.      Read in context, the trial court noted only that there was an

epidemic of heroin-related deaths, but the trial court stated “the Court does

not hold [Appellant] in any way responsible for any heroin deaths.” Id. at 20.

In its opinion, the trial court addressed this issue as follows:

            With respect to [Appellant’s] argument that the Court based
      his sentence on the general issues surrounding the nation’s opioid
      epidemic, that factor was indeed one of several factors the court
      took into consideration for aggravation. The Court should take into
      account the overall effect and nature of the crime committed on
      victims and society. The Court referenced the grave impact the
      heroin epidemic has had on society at large and in the community
      of York County. The Court referenced the growing number of

                                     - 17 -
J-S04013-19


       heroin and opioid related deaths in the community, and how those
       numbers continue to rise. The Court took these factors into
       account, as should the impact of any crime on victims and society.
       The Court did not hold [Appellant] responsible for anything more
       than his pro rata contribution to a drug economy having serious
       impact on the community. Nor did the Court hold [Appellant]
       responsible for acts he did not commit. But, the Court did
       recognize how [Appellant’s] actions and conspiracy increase the
       danger to society. The defense argument seeks for the judge to
       be deaf to the adverse impact of a [d]efendant’s illicit conduct on
       the community. [Appellant] willingly engaged in the commerce of
       selling heroin, an illegal substance widely known to be causing
       widespread opioid overdoses and deaths. [Appellant’s] argument
       seeks the court to sentence in a vacuum, without consideration of
       a [d]efendant’s adverse contribution to a growing public health
       threat. The contribution of [Appellant] to the heroin economy in
       his second PWID conviction, and the negative impact of that illicit
       economy to the community, are relevant considerations for
       sentencing. In this case there was evidence of multiple sales
       presented, and preparation for more sales underway. The
       cumulative adverse impact of [Appellant’s] conspiracy is a
       relevant sentencing factor.

Trial Court Opinion, 9/17/18, at 17-18.

       Moreover, the trial court thoroughly explained the rationale for the

sentences it imposed. N.T., 6/21/17, at 13-19. The trial court stated that it

had reviewed a pre-sentence investigation (“PSI”) report.7 Id. at 13. While

the charges in the instant case were pending, Appellant was charged with

assault. Id. at 14. Appellant’s drug use and repeat offenses illustrate a “lack

of rehabilitative potential[.]” Id. at 16. The trial court noted that Appellant


____________________________________________


7 See Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016)
(“[W]here the sentencing judge had the benefit of a [PSI] report, it will be
presumed that he or she was aware of the relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.”).

                                          - 18 -
J-S04013-19


lied under oath during trial, which was indicative of his “poor decision-making

skills[.]” Id. at 17. Importantly, the trial court pointed out that Appellant’s

heroin-distribution enterprise was conducted out of his house, where children

resided, and it posed an obvious danger to those children.            Id. at 18.

Accordingly, if Appellant had preserved this issue, we would not conclude that

the trial court’s passing reference to an unsubstantiated number of heroin

deaths impacted sentencing or rendered Appellant’s sentence an abuse of

discretion.

       Next, Appellant avers that the trial court abused its discretion by

imposing an excessive sentence by sentencing Appellant outside of the

Sentencing Guidelines and ordering the sentences to run consecutively.

Appellant’s Brief at 31. After review, we conclude that no relief is due.

       The Commonwealth asserts that Appellant failed to preserve any

challenge relative to the consecutive nature of the sentences imposed.

Commonwealth’s Brief at 23-24. We are constrained to agree. Therefore,

this claim is waived. Moury, 992 A.2d at 170.

       What remains is Appellant’s bald assertion that the trial court erred in

sentencing him outside of the Sentencing Guidelines.8 Appellant’s argument

____________________________________________


8 Appellant also discusses the supposed impact that a rejected plea offer, or
“trial tax,” had on his sentence. Appellant’s Brief at 33-35. We conclude that
this claim is waived. Appellant did not raise this issue at the time of sentencing
or in his post-sentence motion. Moury, 992 A.2d at 170. Were we to reach
this issue, we would conclude it was meritless. Prior to trial, the trial court



                                          - 19 -
J-S04013-19


on this precise issue is sparse.          However, we endeavor to determine if

Appellant has raised a substantial question.

       It is well settled that a trial court is permitted to sentence a defendant

outside of the Sentencing Guidelines; however, when the court imposes such

a sentence, it must provide its reasons for deviating from the Guidelines. 42

Pa.C.S. § 9721(b). A claim that the trial court imposed a sentence outside of

the Sentencing Guidelines without stating adequate reasons raises a

substantial question. Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.

Super. 2007).

       Here, however, Appellant never asserted that the trial court failed to

state adequate reasons for sentencing Appellant outside of the Guidelines.

Accordingly, we are constrained to conclude that Appellant failed to raise a

substantial question. Moreover, as noted above, the trial court provided a

thorough recitation of its reasons for imposing sentence, and we conclude that

if Appellant had presented this issue properly and raised a substantial

question, the rationale provided by the trial court aptly established the basis

for sentencing Appellant outside of the Sentencing Guidelines.          See N.T.,

6/21/17, at 13-19. After review, we discern no abuse of discretion by the trial

court in the sentence imposed.




____________________________________________


discussed its rejection of the plea offer, but the trial court stated that it would
have no impact on the court’s rulings going forward. N.T., 5/10-12-17, at 9.

                                          - 20 -
J-S04013-19


     For the reasons set forth above, we conclude that Appellant is entitled

to no relief on appeal. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/10/2019




                                   - 21 -
