J-S76019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID RYAN BATES,                          :
                                               :
                       Appellant.              :   No. 458 WDA 2018


           Appeal from the Judgment of Sentence, February 8, 2018,
                 in the Court of Common Pleas of Erie County,
             Criminal Division at No(s): CP-25-CR-0003635-2016.


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MARCH 11, 2019

        David Ryan Bates appeals from his judgment of sentence imposed after

the trial court convicted him of possession with intent to deliver, possession

of a controlled substance, and possession of drug paraphernalia.1        For the

reasons below, we affirm.

        The trial court summarized its factual findings as follows:

           On February 12th, 2015, Detective Brian Fiorelli, who
           investigates narcotics sales and purchases in the Millcreek
           Police Department’s Special Investigations Unit, received a
           telephone call from an unidentified male regarding the
           purchase of heroin[. He] entered into a deal to purchase
           heroin at the McDonald’s restaurant located at 909
           Peninsula Drive, Erie, Pennsylvania.     Detective Fiorelli
           arrived at the McDonald’s restaurant around 6:00 p.m. and
           called the telephone number that had previously called him


____________________________________________


1   35 Pa.C.S.A. §§ 780-113(a)(30), (16), and (32), respectively.
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       and an unidentified male “instructed Detective Fiorelli to go
       to the bathroom of McDonald’s.”

          As Detective Fiorelli proceeded to the men’s bathroom,
       he was alerted via text message from other Millcreek
       Detectives, who were conducting surveillance outside of this
       McDonald’s restaurant, to the arrival of a blue Kia Sorento
       in this McDonald’s restaurant’s parking lot. As Detective
       Fiorelli continued to the men’s bathroom, he observed
       [Bates] enter the McDonald’s restaurant and walk into the
       men’s bathroom. After Detective Fiorelli followed [Bates]
       into the men’s bathroom, [Bates] approached Detective
       Fiorelli at the bathroom counter and spat . . . onto the
       counter a knotted plastic baggy containing a “chunky brown
       substance.” Detective Fiorelli then placed one hundred
       dollars on the bathroom countertop, and [Bates] retrieved
       the money and exited the bathroom. [Bates] then exited
       this McDonald’s restaurant, entered the Kia Sorento,
       departed from this McDonald’s restaurant’s parking lot, and
       proceeded south on Peninsula Drive.

           Detectives Green and Hardner, the other Millcreek
       Detectives conducting surveillance, contacted Patrolman
       Benjamin Bastow of the Millcreek Police Department, who
       was patrolling nearby in a marked Millcreek Police vehicle.
       Patrolman Bastow, who was already approximately a block
       away from the Kia Sorento, was requested to effectuate a
       stop of the Kia Sorento to obtain information on the
       occupants for the benefit of the Detectives conducting
       surveillance. Patrolman Bastow observed the Kia Sorento
       depart from this McDonald’s parking lot, proceed down
       Peninsula Drive, and pull into a County Fair gas station.
       Patrolman Bastow then followed the Kia Sorento into the
       County Fair gas station parking lot and conducted a mere
       encounter with the occupants of the vehicle to identify said
       individuals. Patrolman Ben Bastow identified the individuals
       inside of the Kia Sorento and sent out their names over the
       radio, who included David Ryan Bates, Eijon Shaleel Blue,
       and Davon Wall. Within approximately ten minutes of
       meeting with [Bates] in this McDonald’s restaurant
       bathroom, Detective Fiorelli identified positively [Bates] as
       the individual who sold the chunky brown substance to
       Detective Fiorelli after Detective Fiorelli reviewed a printout
       of [Bates’] Identification card photograph produced from the


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         PennDot System.        The chunky brown substance was
         ultimately sent to the Pennsylvania State Police Erie
         Regional Lab for analysis, and the lab results indicated
         positively that the chunky brown substance was heroin with
         a weight of .36 grams.

Trial Court Opinion, 5/18/18, at 1-3 (citations omitted).

      Bates was charged with the above drug-related offenses, and Bates

ultimately waived his right to a jury trial. On December 7, 2017, a bench trial

commenced, and the Commonwealth presented testimony from Detective

Brian Fiorelli and Patrolman Benjamin Bastow, as well as Forensic Scientist

David Eddinger of the Pennsylvania’s State Police Crime Lab. On December

28, Blue and Wall testified on behalf of Bates, who also testified on his own

behalf. The Commonwealth also called Patrolman Barlow in rebuttal.

      The trial court convicted Bates on all charges and imposed an aggregate

sentence of two to five years’ incarceration. Bates filed post-sentence motions

which the trial court denied. Bates timely appealed. Both Bates and the trial

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

      Bates raises the following issues on appeal:

         1. Was there sufficient evidence to sustain each of Bates’
         convictions, because the court’s findings were based on
         mere conjecture and speculation?

         2. Did the trial court err by denying Bates’ post-sentence
         request for relief on weight of the evidence grounds?

         3. Did the trial court err by imposing a manifestly extreme
         and clearly unreasonable sentence which was not
         individualized as required by law?

See Bates’ Brief at 5.


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      Bates’ first issue challenges the sufficiency of the evidence supporting

his convictions. Our standard of review is well settled:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable a fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder. In addition,
         we note that the facts and circumstances established by the
         Commonwealth need not preclude every possibility of
         innocence. Any doubts regarding a defendant’s guilty may
         be resolved by the fact-finder unless the evidence is so weak
         and inconclusive that as a matter of law no probability of
         fact may be drawn from the combined circumstances. The
         Commonwealth may sustain its burden of proving every
         element of the crime beyond a reasonable doubt by means
         of wholly circumstantial evidence. Moreover, in applying the
         above test, the entire record must be evaluated and all
         evidence actually received must be considered. Finally, the
         [trier] of fact while passing upon the credibility of the
         witnesses and the weight of the evidence produced, is free
         to believe all, part or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted).

      Further,   “[w]hile   a   criminal   conviction   may   rest   upon   wholly

circumstantial evidence, it may not be based upon mere surmise or

conjecture.” Commonwealth v. Stores, 463 A.2d 1108, 1112 (Pa. Super.

1983) (citations omitted).        Here, Bates asserts “there are multiple

discrepancies in particular relative to [Detective] Fiorelli’s testimony which

should have cause the [trial court] to find his testimony not credible.” Bates’

Brief at 7. In support of this claim, Bates asserts the detective’s testimony at


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the preliminary hearing “differed greatly” from his trial testimony. Id. Bates

further argues that, although Detective Fiorelli testified that Bates spat out

the plastic bag of the drugs that were recovered from him, the contraband

“was never submitted for DNA analysis to determine if [his] DNA was found

thereupon.” Id. Bates also contends that the trial court “simply ignored” the

version of the incident testified to by his two defense witnesses, which was

corroborated by his own testimony. Id. at 8. We disagree.

      The trial court rejected Bates’ sufficiency challenge:

            [Bates’] argument that the Commonwealth presented
         “no evidence of a physical nature, such as DNA testing of
         the package that the heroin was obtained in . . . nor were
         there any fingerprints of [Bates] found on said package . .
         .” is simply without merit.       As mentioned above, the
         Commonwealth presented sufficient evidence in this case
         identifying [Bates] as the individual who sold the subject
         heroin to Detective Fiorelli. In particular, Detective Fiorelli
         retrieved a printout containing a photograph of [Bates] from
         the PennDOT System, which was date-stamped as 6:20
         p.m. on February 12th, 2015, approximately ten minutes
         from the time Detective Fiorelli stated he encountered
         [Bates] inside the McDonald’s restaurant bathroom at or
         about 6:10 p.m. The Commonwealth additionally requested
         and, with no objection from [Bates,] this trial court admitted
         said printout as evidence. Said printout is included in the
         formal case record. Thus, this trial court was entitled to rely
         on the Commonwealth’s evidence in making the factual
         determination that Detective Fiorelli positively identified
         [Bates] as the individual who sold heroin to Detective Fiorelli
         approximately ten minutes after encountering [Bates]. As
         this trial court has the exclusive responsibility of affording
         weight to the Commonwealth’s evidence, this trial court
         concludes [Bates] was the individual who sold heroin to
         Detective Fiorelli.

Trial Court Opinion, 5/18/18, at 8.


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      Our review of the record supports the trial court’s conclusions. In finding

the evidence sufficient, the trial court, as sole fact-finder, found Detective

Fiorelli’s testimony credible. We cannot disturb this determination. Hansley,

supra.

      Moreover, the trial court did not “simply ignore” the testimony from

Bates and his witnesses but rather discredited it as untrue. Bates’ argument

truly goes to the weight and credibility of the evidence presented rather than

its sufficiency. See Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super.

2011) (concluding that the appellant attacks the weight, rather than the

sufficiency of the evidence, when his argument is direct entirely to the

credibility of the Commonwealth’s chief witness).        Thus, we dismiss his

sufficiency challenge to the Commonwealth’s evidence as meritless.

      Bates also raises a weight claim as his second issue on appeal. In ruling

on a claim challenging evidentiary weight, our standard of review is more

attenuated than on a sufficiency challenge, as we may adjudge only the trial

court’s exercise of discretion in refusing the defendant’s challenge:

         When a trial court denies a weight-of-the-evidence motion,
         and when an appellant then appeals that ruling to this Court,
         our review is limited. It is important to understand we do
         not reach the underlying question of whether the verdict
         was, in fact, against the weight of the evidence. We do not
         decide how we would have ruled on the motion and then
         simply replace our own judgment for that of the trial court.
         Instead, this Court determines whether the trial court
         abused its discretion in reaching whatever decision it made
         on the motion, whether or not that decision is the one we
         might have made in the first instance.



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Commonwealth v. Stays, 70 A.3d 1256, 1267-68 (Pa. Super. 2013)

(citations omitted).

      Mindful of our deferential standard of review, we find no basis for relief.

The trial court rejected Bates’ claim because, once again, the credibility of the

witnesses was exclusively for the fact finder, which, in this case, was the trial

court itself.   Thus, the merit of Bates’ claim that “the Commonwealth’s

evidence was riddled with inconsistencies on critical factual questions” was a

determination to be made by the trial court. Bates’ Brief at 11. In addressing

Bates’ weight issue, the trial court found that Bates’ convictions were “not so

contrary to the evidence as to shock one’s sense of justice.”        Trial Court

Opinion, 5/18/18, at 9. Because we discern no abuse of discretion, Bates’

second issue fails.

      In his remaining claim, Bates challenges the discretionary aspects of his

sentence. “Challenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011).       Before we address such a challenge, we first

determine:

         (1) whether the appeal is timely; (2) whether appellant
         preserved his issue; (3) whether appellant's brief includes a
         concise statement of the reasons relied upon for allowance
         of appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

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      Bates filed a timely notice of appeal, preserved his claim in a post-

sentence motion, and included a concise Pa.R.A.P. 2119(f) statement for

allowance of appeal in his brief. We must now determine whether he has

raised a substantial question that the sentence is inappropriate under the

sentencing code and, if so, review the merits.

      Bates’ Rule 2119(f) statement argues his sentence was manifestly

excessive and clearly unreasonable, because it was not individualized to meet

his needs. The trial court found that Bates did not raise a substantial question,

because he essentially challenged the weight the trial court assigned certain

mitigating factors, and a substantial question regarding the trial court’s choice

of consecutive sentencing is found in only “extreme circumstances” not

present here. See Trial Court Opinion, 5/18/18, at 10-11.

      Our standard of review is well-settled:

         Sentencing is a matter vested in the sound discretion of the
         sentencing court, and a sentence will not be disturbed on
         appeal absent a manifest abuse of discretion, which in this
         context, is not shown merely to be an error in judgment;
         rather the appellant must establish by reference to the
         record, that the sentencing court ignored or misapplied the
         law, exercised its judgment for reasons of partiality,
         prejudice, bias or ill will, or arrived at a manifestly
         unreasonable decision.

Commonwealth v. Shull, 148 A.3d 820 (Pa. Super. 2016) (citation omitted).

      This court has previously held that a substantial question exists where

an appellant alleged that the trial court failed to consider the defendant’s

individualized needs when fashioning a sentence.           Commonwealth v.


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Serrano, 150 A.3d 470, 473 (Pa. Super. 2016). Under Serrano, we find that

Bates has raised a substantial question and grant him a review of his sentence

on the merits.

      However, Bates is not entitled to relief.    As the trial court further

explained:

         this trial court properly imposed standard range sentences
         that were appropriate in light of the individualized facts of
         the underlying incident while also considering aggravating
         and mitigating circumstances. Specifically, at the time of
         sentencing, this trial court considered the thorough pre-
         sentence investigation report, the Pennsylvania Guidelines
         on Sentencing, the Pennsylvania Sentencing Code, [Bates’]
         age, the seriousness of the offenses, the facts and nature
         and circumstances of the offenses, the protection of society,
         [Bates’] rehabilitative needs, the sincerity of his remorse,
         and that the undersigned judge was also the presiding trial
         judge. Based on the foregoing, [Bates] has no basis to
         challenge his standard range sentence.

Trial Court Opinion, 5/18/18, at 11.

      Our review of the sentencing transcript supports the trial court’s

conclusion that the record refutes Bates’ discretionary challenge to his

sentence. This Court has held that “where the sentencing court imposed a

standard-range sentence with the benefit of a pre-sentence report, we will not

consider the sentence excessive.” Commonwealth v. Corley, 31 A.3d 293,

298 (Pa. Super. 2011).     Under such circumstances, “we can assume the

sentencing court ‘was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.’” Id. (quoting Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).


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Thus, the trial court did not abuse its discretion in sentencing Bates.

      In sum, Bates’ challenges to the sufficiency and weight of the evidence

supporting his convictions are without merit. Further, the trial court did not

abuse its discretion in fashioning Bates’ sentence. We therefore affirm his

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2019




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