J-S76020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellee

                        v.

    ROY R. MOSES

                             Appellant                    No. 220 EDA 2016


        Appeal from the Judgment of Sentence entered August 19, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-15-CR-0001275-2012

BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED APRIL 30, 2018

        Appellant, Roy R. Moses, appeals from his judgment of sentence of 6-

12 years’ imprisonment for possession with intent to deliver a controlled

substance (“PWID”).1 We affirm.

        On November 17, 2011, Appellant was arrested during the execution of

a search warrant at an apartment rented by Angel Morales at 1520 Mount

Vernon Street in Philadelphia.           While police officers were searching the

apartment, they observed Appellant stepping away from an open window. On

the ground outside the window, the officers discovered several bags of crack

cocaine, marijuana, and oxycodone along with a broken plate, a razor blade




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).
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and a cell phone. Appellant was charged with PWID and other drug-related

offenses.

        Appellant moved to suppress the evidence seized during the execution

of the warrant.       On April 28, 2015, the trial court denied Appellant’s

suppression motion, and the case immediately proceeded to a jury trial

against Appellant and two co-defendants, Morales and Glen Harvill. On May

1, 2015, the jury found Appellant guilty of PWID and possession of drug

paraphernalia.     On August 19, 2015, the trial court imposed the above-

mentioned sentence for PWID to run consecutively to Appellant’s federal

sentence for a firearms violation. The trial court did not impose any further

penalty for possession of drug paraphernalia. On August 20, 2015, Appellant

filed timely post-sentence motions challenging, inter alia, the weight of the

evidence against him. By order entered on December 21, 2015, these motions

were denied by operation of law. On January 18, 2016, Appellant filed a timely

notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant raises the following issues in this appeal:

        [1.] Did the trial court err when it denied [Appellant]’s pre-trial
        motion to suppress a firearm and controlled substances recovered
        from a residence he was present inside for the following reasons:
        (1) the affidavit in support of [the] search warrant . . . did not set
        forth probable cause to search the residence as the facts known
        to the issuing authority did not establish that it was more likely
        than not or probable that contraband or evidence of a crime was
        located in the property searched; (2) the items sought in the
        warrant were not contraband or evidence of criminal activity; (3)
        the affiant misstated facts and/or omitted material facts from the


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      affidavit in support of the search warrant which are material to
      the existence or non-existence of probable cause, namely: that
      police already knew that the items to be searched for were
      possessed by another individual and taken by her to her separate
      home; that police had interviewed that woman at her home and
      she gave a voluntary statement to police and turned over all of
      the items which police asked her to surrender; that police did not
      ask this woman to surrender the items sought in the affidavit; that
      police did not ask the woman where the items sought in the
      affidavit were located; that police recovered the items sought in
      the affidavit from that woman’s home; that police chose to
      execute the warrant at the residence [Appellant] was found in
      before searching the woman’s home despite the fact that same
      police officers were in possession of a warrant to search that
      woman’s home for the same items?

      [2.] Did the trial court err when it denied [Appellant]’s motion to
      dismiss based on Pa.R.Crim.P. 704 due to a violation of
      [Appellant]’s right to be sentenced in a timely manner?

      [3.] Is the verdict of guilty . . . against the weight of the evidence
      and . . . so contrary to the evidence that it shocks one’s sense of
      justice as the evidence properly received at trial does not establish
      [Appellant]’s possession or constructive possession of a controlled
      substance or drug paraphernalia?

      [4.] Is the aggregate sentence imposed unduly harsh and
      excessive under the circumstances as it fails to take into account
      all relevant and necessary factors to be considered by a
      sentencing court, including, inter alia, [Appellant]’s serious
      medical conditions and past victimization and abuse, and/or is
      based upon factors or evidence which should not be relied upon
      by a sentencing court[?]

Appellant’s Brief at 8-9.

      In his first argument, Appellant contends that the trial court erred by

denying his motion to suppress all evidence seized during execution of the

search warrant at Morales’ apartment on November 17, 2011. According to

Appellant, the warrant did not furnish probable cause that evidence of crime


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would be found in Morales’ apartment.       When reviewing the denial of a

suppression motion,

     [our review] is limited to determining whether the suppression
     court’s factual findings are supported by the record and whether
     the legal conclusions drawn from those facts are correct. Because
     the Commonwealth prevailed before the suppression court, we
     may consider only the evidence of the Commonwealth and so
     much of the evidence for the defense as remains uncontradicted
     when read in the context of the record as a whole.              The
     suppression court’s legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts. Thus, the conclusions
     of law of the courts below are subject to our plenary review.
     Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).
     Moreover, appellate courts are limited to reviewing only the
     evidence presented at the suppression hearing when examining a
     ruling on a pre-trial motion to suppress. In re L.J., 79 A.3d 1073,
     1083-87 (Pa. 2013).

Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015).

     When deciding whether to issue a search warrant,

     the task of the issuing authority is simply to make a practical,
     common-sense decision whether, given all of the circumstances
     set forth in the affidavit before him, including the ‘veracity’ and
     ‘basis of knowledge’ of persons supplying hearsay information,
     there is a fair probability that contraband or evidence of a crime
     will be found in a particular place.

Commonwealth v. Gagliardi, 128 A.3d 790, 794 (Pa. Super. 2015)

(citations omitted). The reviewing court should not conduct a de novo review

of the issuing authority’s probable cause determination but should simply

determine whether there is substantial evidence in the record supporting the

decision to issue a warrant. Id. at 794. In so doing, the reviewing court must

accord deference to the issuing authority’s probable cause determination, and


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must view the information offered to establish probable cause in a common-

sense, non-technical manner. Id. Although reasonable minds frequently may

differ on the question of whether a particular affidavit establishes probable

cause, the deference afforded an issuing authority ensures that if a substantial

basis exists to support the issuing authority’s probable cause finding, the trial

court must uphold that finding even if a different issuing authority might have

found the affidavit insufficient to support a warrant. Id. at 795.

      “The linch-pin that has been developed to determine whether it is

appropriate to issue a search warrant is the test of probable cause.”

Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa. 1991).                    Again,

probable cause requires that the affidavit establish “a fair probability that

contraband or evidence of a crime will be found in a particular place.”

Gagliardi, 128 A.3d at 794, 795 (citation omitted). “Probable cause exists

where the facts and circumstances within the affiant’s knowledge and of which

he has reasonably trustworthy information are sufficient in themselves to

warrant a man of reasonable caution in the belief that a search should be

conducted.” Id. at 796 (citation omitted). Probable cause “must be based

[up]on facts described within the four corners of the supporting affidavit.” Id.

      “A search warrant may be issued to search for and to seize . . . property

that constitutes evidence of the commission of a criminal offense.”

Pa.R.Crim.P. 201(3). This rule derives from Warden v. Hayden, 387 U.S.

294 (1967), in which the United States Supreme Court held that “nothing in


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the Fourth Amendment supports a distinction between contraband and ‘mere

evidence,’ [and therefore] evidence of a crime is clearly subject to search and

seizure under the Fourth Amendment.” Commonwealth v. Jones, 988 A.2d

649, 658 (Pa. 2010) (discussing Warden); see also Comment, Pa.R.Crim.P.

201(3) (citing Warden).

      The search warrant in question requested permission to search Morales’

apartment at 1520 Mount Vernon Street in Philadelphia for evidence of

firearms violations under 18 Pa.C.S. § 6111. Agent Martin Dietz, a member

of the Gun Violence Task Force with the Attorney General’s Office, stated the

following in an affidavit of probable cause underlying the warrant:

      On Sunday[,] November [1]3, 2011, Brigitte A. HAUG was
      observed by the affiant and other members of the Gun Violence
      Task Force at the Appalachian Gun Show at the Philadelphia
      National Guard Armory[,] Southampton Rd. and Roosevelt
      Boulevard[,] Philadelphia PA. HAUG was alone and in a short
      period of time purchased two firearms at two separate firearm
      dealers. Those firearms were a Glock 10 mm model 20 serial
      #UW469US and a Glock .357 Sig model 31 serial #PKR407. She
      was also observed buying ammunition for those firearms.

      As HAUG was exiting the gun show she met with two males at the
      doorway and walked to a vehicle in the parking lot. HAUG handed
      the bag containing both firearms to the male at the front
      passenger seat. The three then drove off together.

      On Monday November 14, 2011[,] the affiant with Special Agent
      Joseph Hasara #441 met with HAUG at her residence at 1625
      Brown St. After the affiant and SA Hasara were identified as
      Special Agents with the Gun Violence Task Force[,] HAUG was
      engaged in conversation regarding her purchase of the two pistols.
      HAUG said she had one pistol, the Glock .357 Sig at her residence.
      She said she had given the second pistol, the Glock 10 mm to her
      friend “Angel” who had been at the gun show with her.


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     HAUG agreed to accompany the affiant and SA Hasara to Central
     Detective Division. After being advised of her Constitutional
     Rights and the investigation[,] HAUG gave a six page
     handwritten/typed and signed statement.         HAUG produced
     identification in the form of a Pennsylvania Department of
     Transportation Operator’s License # [XXXXXXXX] with the
     address of 1625 Brown St. Philadelphia, PA. In that statement[,]
     HAUG told the affiant she had purchased the two above[-
     ]described firearms at the gun show on Sunday[,] November 13,
     2011[,] and had completed the forms required to purchase a
     firearm legally in the state of PENNSYLVANIA.

     HAUG said that later on that same date[,] she met with Angel
     MORALES at 17th and Fairmount Sts.[,] Philadelphia, PA and gave
     the Glock 10 mm model 20 serial #UW469US, two magazines and
     the firearm box all in a red cloth bag to MORALES. MORALES then
     left the area with the firearm, magazines and box still in the bag.
     HAUG also said she had loaded two magazines for the Glock .357
     Sig which she kept at her residence and loaded both magazines
     for the Glock 10mm before giving it to MORALES.

     HAUG provided the affiant with a cell telephone number for
     MORALES.      At the conclusion of HAUG’s statement[,] she
     contacted MORALES via telephone and requested he bring the
     Glock 10mm to Central Detective Division. MORALES refused.
     The affiant then contacted MORALES via telephone and explained
     the ongoing investigation and requested he bring the Glock 10mm
     to Central Detective Division. About forty-five minutes later[,]
     MORALES arrived at Central Detective Division with the firearm.
     The firearm and two magazines were in a red cloth bag. Both
     magazines were unloaded and MORALES had no ammunition for
     the firearm.

     MORALES produced identification in the form of Pennsylvania
     Department of Transportation Operator’s License # [XXXXXXXX]
     with the address of 1520 Mount Vernon St. Apt. B Philadelphia,
     PA.    The affiant checked PENNDOT resources and verified
     MORALES’ address.        SA Hasara advised MORALES of his
     Constitutional Rights and the ongoing investigation. MORALES
     agreed to give a statement regarding the firearm he was
     surrendering. MORALES told SA Hasara that he had gone to the
     gun show on November 13, 2011 with HAUG and a male he knows
     as “Roy”. Later that evening MORALES said HAUGE [sic] had
     given him the red cloth bag containing the Glock 10 mm pistol and

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      two magazines at 17th and Fairmount Sts. MORALES said the
      firearm and both magazines HAUG had given him were not loaded
      and he had received no ammunition from HAUG with the firearm.

      Based on the above facts and conflicting information provided by
      Brigitte HAUG and Angel MORALES[,] the affiant requests issuance
      of [a] Search and Seizure Warrant for 1250 Mount Vernon St.[,]
      apartment B[,] Philadelphia, PA 19130 to search for the listed
      items:

      Any/all documents and/or packaging relating to a Glock 10mm
      model[;]

      20 serial #UW469US[;]

      Any/all documents and/or packaging relating to a Glock .357 Sig
      caliber model 31 serial #PKR407[;]

      Any/all 10mm pistol rounds (new);

      Any/all .357 Sig caliber rounds (new).

      The statute in the Crimes Code that regulates sales or transfers of

firearms, 18 Pa.C.S.A. § 6111, provides in pertinent part:

      (c) Duty of other persons.— Any person who is not a licensed
      importer, manufacturer or dealer and who desires to sell or
      transfer a firearm to another unlicensed person shall do so only
      upon the place of business of a licensed importer, manufacturer,
      dealer or county sheriff's office, the latter of whom shall follow the
      procedure set forth in this section as if he were the seller of the
      firearm. The provisions of this section shall not apply to transfers
      between spouses or to transfers between a parent and child or to
      transfers between grandparent and grandchild.

18 Pa.C.S.A. § 6111.

      Section 6111’s penalty provision prescribes: “Any person, licensed

dealer, licensed manufacturer or licensed importer who knowingly or

intentionally sells, delivers or transfers a firearm in violation of this section


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commits a misdemeanor of the second degree.” 18 Pa.C.S.A. § 6111(g)(1).

The penalty provision also states: “Any person, purchaser or transferee who

in connection with the purchase, delivery or transfer of a firearm under this

chapter knowingly and intentionally makes any materially false oral or written

statement . . . commits a felony of the third degree.”        18 Pa.C.S.A. §

6111(g)(4) (emphasis added). Subsection (g)(4) “is broadly worded” because

the legislature’s intent was to criminalize any false statement in connection

with the purchase, delivery or transfer of a firearm in this Commonwealth.

Commonwealth v. Baxter, 956 A.2d 465, 471 (Pa. Super. 2008) (en banc).

      Here, the affidavit of probable cause alleges that on November 13, 2011,

Agent Dietz and other law enforcement agents observed Brigitte Haug

purchase two firearms at a gun show (a Glock 10 mm model 20 and a Glock

.357 Sig model 31) as well as ammunition. Haug carried a bag containing the

firearms outside and handed the bag to a male sitting in a car in the parking

lot. The next day, November 14, 2011, the agents spoke with Haug at her

residence. Haug stated that she gave only one firearm, the Glock 10 mm gun,

to her friend “Angel,” who had been at the gun show with her. Haug further

stated that she had the second firearm, the Glock .357 Sig, in her apartment.

Later on November 14, Haug stated that she met Angel Morales at 17th and

Fairmount Streets in Philadelphia (a different location than the gun show) and

gave Morales a bag containing one Glock 10 mm firearm, two magazines and

the firearm box.    She also stated that she loaded both magazines with


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ammunition before giving them to Morales.       Haug contacted Morales, who

arrived at the police station 45 minutes later with a bag containing the Glock

10 mm firearm and two magazines, but no ammunition.               He admitted

attending the gun show with Haug and admitted that Haug gave him the Glock

10 mm firearm and the magazines, but he claimed that the firearm was not

loaded and that Haug had not given him ammunition. He also admitted that

his address was 1520 Mt. Vernon Street, Apartment B, in Philadelphia.

        This evidence provided probable cause to issue the search warrant for

Morales’ apartment. Law enforcement officials saw Haug give a bag containing

two firearms to another man outside of the gun show in northeast

Philadelphia. Morales and Haug gave accounts that conflicted with the law

enforcement official’s observations and with one another’s account. Morales

admitted attending the gun show with Haug but claimed that he received one

firearm from Haug, without ammunition, at a different location than the gun

show.    Haug claimed that she gave one firearm to Morales at a different

location than the gun show but also gave him two magazines loaded with

ammunition.     Viewed collectively, these facts established probable cause that

(1) Haug violated Section 6111(c), and was criminally liable under Section

6111(g)(1), for transferring two firearms within in an unauthorized location,

i.e., a location other than those permitted under subsection (c); (2) Morales

was criminally liable under Section 6111(g)(4) by falsely stating that he

received only one firearm from Haug without ammunition; (3) Haug was


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criminally liable under Section 6111(g)(4) by falsely stating that she had

transferred only one firearm to Morales; and (4) evidence of these crimes (the

second firearm and ammunition) would be found in Morales’ apartment.

      In Appellant’s view, the affidavit does not provide probable cause to

believe that the second firearm was in Morales’ apartment, because Haug said

that this firearm was in her apartment.      Appellant overlooks the principle,

however, that false or conflicting responses to officers’ questions, in

conjunction with other evidence, may establish probable cause.             See

Commonwealth v. Johnson, 42 A.3d 1017, 1031-32 (Pa. 2012) (probable

cause existed for search warrant, where in initial affidavit, police indicated

victim had been injured, injury occurred at the residence, mother indicated

defendant assaulted victim, there were conflicting accounts of how victim had

been injured, and there was likely to be evidence pertaining to the injury in

the residence, and second affidavit indicated that victim had died after being

assaulted, and prior search uncovered blood spatter that might have come

from victim); see also LaFave, 2 Search & Seizure § 3.6(f), nn. 212-215 (5th

ed.) (collecting cases in which responses that officers knows are false, or

which are implausible or conflicting, amount to probable cause in conjunction

with other circumstances).    Haug’s statement conflicted with the officers’

observation of the transfer of both firearms from Haug to a male outside of

the gun show. This conflict, along with the other evidence, provided probable




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cause to search Morales’ apartment for the second firearm. For these reasons,

Appellant’s first argument fails.2

       In his second argument, Appellant contends that the trial court erred in

refusing to discharge him because he was not sentenced within ninety days

after conviction. We disagree.

       Pa.R.Crim.P. 704(A) requires the trial court to sentence the defendant

within ninety days after conviction. The trial court sentenced Appellant on

August 19, 2015, 111 days after his guilty verdict. When a delay of more than

ninety days takes place, the court must examine the totality of the

circumstances underlying the delay, including “(1) the length of the delay [for

which there was no good cause,] (2) the reason for the improper delay, (3)

the defendant’s timely or untimely assertion of his rights, and (4) any resulting

prejudice to the interests protected by his speedy trial and due process rights.”

Commonwealth v. Anders, 725 A.2d 170, 172-73 (Pa. 1999).

       While the present case was pending, Appellant was arrested for a federal

firearms violation and held in custody at a federal detention center. Following

Appellant’s conviction in this case,

       sentencing was originally scheduled for July 10, 2015. The July
       10, 2015 order, continuing sentencing to July 30, 2015, was the
       result of the federal facility failing to honor the writ execute[d] by
       the Commonwealth. The July 30, 2015 order, continuing sentence
____________________________________________


2 Appellant also argues that he had a reasonable expectation of privacy in
Morales’ apartment. Assuming that Appellant had a reasonable expectation
of privacy, the search warrant established probable cause to search Morales’
apartment.

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      for a video sentencing on August 10, 2015, was the result of
      technical difficulties at the federal facility. The August 10, 2015
      order, continuing video sentencing until August 19, 2015, was the
      result of lock down at the federal facility.

Trial Ct. Op., 4/15/17, at 25. These delays were the result of issues in the

federal detention system that were beyond the Commonwealth’s control.

Because none of this delay was the fault of the Commonwealth, Appellant’s

Rule 704 argument fails.

      In his third argument, Appellant contends that the verdict was against

the weight of the evidence.

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court's determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court's conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).

      The trial court held that Appellant failed to preserve a weight of the

evidence claim by failing to state this issue with sufficient specificity in his

post-sentence motions or in his Pa.R.A.P. 1925(b) statement.          Although

Appellant could have stated his claim with greater specificity in his post-

sentence motions and Pa.R.A.P. 1925 statement, we will address the

substance of Appellant’s argument.




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      Appellant argues: “When [Appellant’s] mere presence in one bedroom

near a window is viewed together with all of the other facts relating to the

presence of drugs or firearms on or physically near every other co-defendant,

the finding . . . [that he] possessed the narcotics discovered in the yard . . .

cannot be said to be based upon reason.” We disagree. During the execution

of the search warrant at Morales’ apartment on November 17, 2015, Agent

Joseph Hasara discovered Appellant in a third floor bedroom “by an open

window. He was slightly bent over stepping away -- straightening up and

stepping away from the window.” N.T., 4/30/15, at 18. When the agent first

saw Appellant, he was “right at the window,” which was “wide open.” Id. at

19. After securing Appellant and taking him downstairs, Agent Hasara

      went back into that room, [and] I looked out the window and I
      saw various bags – white bags, a black bag. There was candy out
      there. There was candy in the windowsill and it appeared as
      though the candy had been knocked out the window when I
      believe [Appellant] threw other items out the window.

Id. at 18. The items were lying in an alcove to which “there was no access

from the outside of the property[,] so we wound up going downstairs through

the basement out a basement door to get to that location.” Id. at 21. On the

ground directly outside the window, Agent Hasara recovered various bags of

candy (believed to be used for drug packaging), multiple bags of crack

cocaine, marijuana, and oxycodone, a broken plate, a razor blade and a cell

phone. Id. at 17-32.




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      This evidence clearly demonstrates that Appellant was in possession of

controlled substances and threw them out the window. The record does not

reflect that any other occupant of the apartment had access to this window.

The jury was free to believe all, part or none of this evidence, and it chose to

believe this evidence.    Thus, we affirm the trial court’s decision denying

Appellant’s challenge to the weight of the evidence, albeit for different reasons

than the trial court. See Commonwealth v. Judge, 916 A.2d 511, 517 n.

11 (Pa. 2007) (“this Court may affirm on any ground”).

      Finally, Appellant argues that the trial court abused its discretion in

fashioning his sentence by supposedly failing to consider his rehabilitative

needs and other mitigating factors, and by imposing his sentence consecutive

to his federal confinement on unrelated charges.

      An 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
      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 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).                Here,

Appellant satisfies the first three requirements of the Moury test. Appellant

filed a timely appeal to this Court, preserved the issue on appeal through his

post-sentence motions, and submitted a Pa.R.A.P. 2119 statement in his brief.

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Turning to the fourth requirement, we have found that a substantial question

exists “when the appellant advances a colorable argument that the sentencing

judge's actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa. Super. 2008). This Court does not accept bald assertions of sentencing

errors.   Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.

2006).    Bald excessiveness claims premised on imposition of consecutive

sentences do not raise a substantial question for our review. Commonwealth

v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc) (“[a] court’s

exercise of discretion in imposing a sentence concurrently or consecutively

does not ordinarily raise a substantial question[ ]”).   Appellant here claims

only that his sentence was harsh and excessive because the trial court (1)

ordered it to run consecutively to his federal sentence, and (2) failed to

consider mitigating factors such as Appellant’s poor health and unfortunate

upbringing. Neither of these allegations raises a substantial question as to

the appropriateness of his sentence. Caldwell, 117 A.3d at 769 (consecutive

sentences); Commonwealth v. Rhodes, 8 A.3d 912, 918-19 (Pa. Super.

2010) (mitigating factors).

      Even if we were to determine that Appellant's discretionary aspect of

sentencing claim raised a substantial question, we still would conclude that he

is not entitled to relief. Sentencing is a matter vested in the sound discretion


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of the sentencing judge and will not be disturbed on appeal absent a manifest

abuse of discretion.      Commonwealth v. Smith, 673 A.2d 893, 895 (Pa.

1996).    The trial court acted within its discretion in fashioning Appellant’s

sentence. The court reviewed Appellant’s pre-sentence report (N.T. 8/19/15,

25), which reflected a prolonged criminal history spanning roughly twenty-one

years    and   included   numerous   violent   and   firearms-related   offenses.

Additionally, while Appellant was released on bail in this case, he sold three

firearms to undercover federal agents and assured them that he could sell

more.     Taking these factors into account, the trial court properly deemed

Appellant a danger to society and determined that the protection of the public

warranted a sentence of 6-12 years’ imprisonment consecutive to his federal

sentence for selling handguns.

        The record does not support Appellant’s contention that the court failed

to take into account his rehabilitative needs and other mitigating factors. The

trial court reviewed Appellant’s pre-sentence report, heard his allocution, and

heard his counsel make these arguments during sentencing. The court simply

weighed those factors differently than Appellant would have liked. He thus

asks this Court to second-guess the careful consideration of the trial court,

which we shall not do. Commonwealth v. Downing, 990 A.2d 788, 794

(Pa. Super. 2010) (appellate court will not reweigh mitigating factors).

        Appellant also complains that the court ordered the instant sentence

consecutive to his federal punishment for selling firearms, supposedly


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resulting in an “effective life sentence.” That determination, however, was

well within the court’s discretion.   Commonwealth v. Graham, 661 A.2d

1367, 1373 (Pa. 1995) (“the general rule in Pennsylvania is that in imposing

a sentence[,] the court has discretion to determine whether to make it

concurrent with or consecutive to other sentences then being imposed or other

sentences previously imposed”). It was appropriate in this case, given the

court’s concern that Appellant presented a threat to the safety of the

community. N.T., 8/19/15, at 25. The court expressed its concern, stating:

      I find it appalling that while you were out on the streets pending
      this case that you were actually actively involved in selling
      weapons that kill the citizens of our city. I do not think you are
      subject to rehabilitation based upon your record . . . And I fear
      that when you get back out you will be doing the same things you
      did before you were incarcerated.

Id. Moreover, Appellant did not effectively receive a life sentence; he will

complete this sentence while he is in his fifties. Appellant’s Brief at 59.

      Accordingly, we reject Appellant’s challenge to the discretionary aspects

of his sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/18


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