J. S66036/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
ALEXANDER SCOTT,                        :         No. 2749 EDA 2017
                                        :8:
                        Appellant       :


           Appeal from the Judgment of Sentence, July 20, 2017,
           in the Court of Common Pleas of Montgomery County
             Criminal Division at No. CP-46-CR-0003656-2015


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 04, 2019

      Alexander Scott appeals from the July 20, 2017 judgment of sentence

entered by the Court of Common Pleas of Montgomery County following his

jury conviction of the following offenses: one count of corrupt organizations,

three counts of conspiracy, six counts of possession with intent to deliver,

four counts of criminal use of a communication facility, one count of

attempted murder, and two counts of firearms not to be carried without a

license.   On July 20, 2017, the trial court sentenced appellant to an

aggregate term of 23½ to 59 years’ imprisonment. After careful review, we

affirm.

      The trial court provided the following synopsis of the factual and

procedural history of this case:
J. S66036/18


          A complaint was filed on March 3, 2015 charging
          [appellant]     with   the   events on   March      2,
          2015.[Footnote 9] On May 18, 2015, the case was
          transferred to the Court of Common Pleas.         On
          July 1, 2015, the Commonwealth filed a notice of
          joinder, joining [appellant]’s case with the cases
          indexed at 3945-15, 3946-15, 3947-15, 3656-15,
          and 3657-15. A second notice of joinder was filed on
          July 16, 2015 joining additional cases indexed at
          3655-15, 4787-15, 4788-15, 4789-15, 4790-15, and
          4791-15. These cases were specially listed and the
          first   pretrial   conference   was  scheduled     for
          September 1, 2, 3 and 10, 2015. On September 1,
          2015 the Commonwealth filed a third notice of
          joinder joining the cases indexed at 5275-15,
          5274-15, 5273-15, 5272-15, 5271-15, 5270-15,
          5269-15, 5268-15, 5267-15, 5266-15, 5265-15,
          5264-15, 5261-15, and 5258-15. On September 10,
          2015, Brendan Campbell, Esq., appeared at the
          pretrial conference. Upon request of [appellant], the
          case was placed on the court’s next trial list. On
          September 23, 2015, attorney Campbell was
          formally appointed. The case continued on a trial
          track with monthly trial list dates, where neither
          party requested a continuance and [appellant] did
          not execute a Rule 600 waiver.

               [Footnote 9] A second complaint was
               filed on May 12, 2015 as a result of the
               “Operation War Ready” investigation.

          On October 30, 2015, the Bills of Information were
          filed. At the November 12, 2015 trial list, counsel
          orally joined in a Petition for a Writ of Habeas
          Corpus.[Footnote 10] By Order of November 16,
          2015 a hearing on the Petition for Habeas Corpus
          was scheduled for November 30, 2015.              On
          November 30, 2015, the habeas corpus hearing was
          continued to December 7, 2015. On December 7,
          2015, the hearing was again continued. By order of
          January 29, 2016, the hearing on [appellant]’s
          Habeas Corpus Petition was schedule [sic]
          February 22, 2016.     The trial list order dated
          February 5, 2016 indicates that the case is on a trial


                                  -2-
J. S66036/18


          track, with a tentative date certain the week of
          April 18, 2016. By Order of February 22, 2016, the
          hearing on [appellant]’s habeas corpus petition was
          continued until March 8, 2016. On February 25,
          2016, [appellant] filed a Petition for Bail
          Reduction/Modification. By Order dated March 15,
          2016, the court denied [appellant]’s Petition for a
          Writ of Habeas Corpus. The case continued to have
          monthly trial listings.

               [Footnote 10] The record is unclear on
               the exact date counsel orally joined the
               petition.     The Order scheduling the
               hearing was dated November 16, 2015.
               Thus, it follows that counsel likely joined
               in the motion at the November 12, 2015
               trial listing. At no time upon receipt of
               scheduling orders did counsel indicate
               that he did not wish to pursue the
               habeas corpus petition and the petition
               was in fact heard on March 8, 2016.

          By order of August 16, 2016, trial was scheduled to
          commence on October 17, 2016. On September 23,
          2016, [appellant] filed a Motion to Dismiss Pursuant
          to Rule 600, the motion was denied by Order of
          September 28, 2016. At no time did [appellant] file
          a Motion to Sever his case from that of any of the
          joined cases or from Josiah Bailey, with whom he
          was ultimately tried.

          Trial commenced as scheduled on October 17, 2016.
          Following eight days of testimony, the jury found
          [appellant]         guilty        of        Corrupt
          Organizations[Footnote 11], Corrupt Organizations-
          Conspiracy[Footnote 12], six counts of Possession of
          a Controlled Substance with the Intent to
          Deliver[Footnote 13], Conspiracy to Possession with
          the Intent to Deliver[Footnote 14], four counts
          Criminal      Use      of     a       Communication
          Facility[Footnote 15], one count of Attempted
          Murder[Footnote     16],   Conspiracy   to  Commit
          Murder[Footnote 17], and two counts of Firearms not
          to be Carried Without a License.[Footnote 18] On


                                  -3-
J. S66036/18


          January 12, 2017, the court sentenced him to an
          aggregate term of 25-60 years’ incarceration in a
          State Correctional Institution, which included
          consecutive sentences for Attempted Murder and
          Conspiracy to Commit Murder.       The court also
          applied the Deadly Weapon Enhancement-Possessed
          or Gang Enhancement to eligible counts.

               [Footnote   11]   18   Pa. C.S.A. § 911(b)(3).
               [Footnote   12]   18   Pa. C.S.A. § 911(b)(4).
               [Footnote   13]   35   P.S. § 780-113(a)(30).
               [Footnote   14]   18   Pa. C.S.A. § 903(a)(1).
               [Footnote   15]   18   Pa. C.S.A. § 7512(a).
               [Footnote   16]   18   Pa. C.S.A. § 901(a).
               [Footnote   17]   18   Pa. C.S.A. § 903(a)(1).
               [Footnote   18]   18   Pa. C.S.A. § 6101(a)(1).

          On January 23, 2017, counsel filed a Post Sentence
          Motion. A hearing on the Motion was scheduled for
          April 23, 2017 and ultimately held May 1, 2017. At
          the hearing on the motion, counsel raised the
          additional claim that [appellant]’s sentence was
          illegal insofar as he was sentenced on two inchoate
          crimes which had the same object.[Footnote 19]
          The Commonwealth was given an opportunity to
          respond to that claim; it ultimately conceded the
          sentence was illegal. By Order of May 17, 2017, the
          Court vacated [appellant]’s sentence in its entirety.

               [Footnote 19] “A person may not be
               convicted of more than one of the
               inchoate crimes of criminal attempt,
               criminal    solicitation    or    criminal
               conspiracy for conduct designed to
               commit    or    to    culminate   in   the
               commission    of     the   same    crime.”
               18 Pa.C.S.A. § 906.       [Appellant] was
               convicted and sentenced on both
               Attempted Murder and Conspiracy to
               Commit Murder for his actions related to
               Lazaro Morgalo.

          On July 20, 2017, [appellant] was resentenced to an
          aggregate term of 23½ to 59 years’ incarceration in


                                      -4-
J. S66036/18


            a State Correctional Facility.   A timely notice of
            appeal was filed. By Order of August 23, 2017,
            [appellant]’s was directed to produce a Concise
            Statement of Errors, Pursuant to Pa.R.A.P. 1925(b);
            he has since complied with that directive.

Trial court opinion, 2/28/18 at 7-10

      Appellant raises the following issues for our review:

            1.      Did the trial court err in denying Appellant’s
                    Rule 600 Speedy Trial Motion when the jury
                    trial commenced over three hundred and
                    sixty-five days (365) days after the filing of the
                    criminal case?

            2.      Did the trial court err in denying Appellant’s
                    Post-Sentence    Motion    for  Judgment    of
                    Acquittal and Motion for New Trial on the
                    charge of Attempted Murder?

            3.      Did the trial court manifestly abuse its
                    discretion  in   sentencing   Appellant   to
                    consecutive sentences and imposing sentence
                    enhancements that were not found by the jury
                    beyond a reasonable doubt?

Appellant’s brief at 8.

      In   his   first    issue   for   our   review,   appellant   avers   that   the

Commonwealth violated his constitutional right to a speedy trial pursuant to

Pennsylvania Rule of Criminal Procedure 600.

            “In evaluating Rule [600] issues, our standard of
            review of a trial court’s decision is whether the trial
            court abused its discretion.” Commonwealth v.
            Hill, 736 A.2d 578, 581 (Pa. 1999).         See also
            Commonwealth v. McNear, 852 A.2d 401
            (Pa.Super. 2004). “Judicial discretion requires action
            in conformity with law, upon facts and circumstances
            judicially before the court, after hearing and due
            consideration.” Commonwealth v. Krick, 67 A.2d


                                          -5-
J. S66036/18


          746, 749 (Pa.Super. 1949). “An abuse of discretion
          is not merely an error of judgment, but if in reaching
          a conclusion the law is overridden or misapplied or
          the judgment exercised is manifestly unreasonable,
          or the result of partiality, prejudice, bias, or ill will,
          as shown by the evidence or the record, discretion is
          abused.” Commonwealth v. Jones, 826 A.2d 900,
          907    (Pa.Super.     2003)     (en    banc)      (citing
          Commonwealth v. Spiewak, 617 A.2d 696, 699
          n.4 (Pa. 1992)).

          “The proper scope of review . . . is limited to the
          evidence on the record of the Rule [600] evidentiary
          hearing, and the findings of the [trial] court.” Hill,
          supra at 581; McNear, supra at 404. See also
          Commonwealth v. Jackson, 765 A.2d 389
          (Pa.Super. 2000), appeal denied, 793 A.2d 905
          (Pa. 2002). “[A]n appellate court must view the
          facts in the light most favorable to the prevailing
          party.” Id. at 392.

          ....

          In assessing a Rule 600 claim, the court must
          exclude from the time for commencement of trial
          any periods during which the defendant was
          unavailable,    including  any   continuances    the
          defendant requested and any periods for which he
          expressly waived his rights under Rule 600.
          Pa.R.Crim.P. 600(C). “A defendant has no duty to
          object when his trial is scheduled beyond the Rule
          [600] time period so long as he does not indicate
          that he approves of or accepts the delay.”
          Commonwealth v. Taylor, 598 A.2d 1000, 1003
          (Pa.Super. 1991), appeal denied, 613 A.2d 559
          (Pa. 1992) (addressing Municipal Court’s counterpart
          to speedy trial rule).

Commonwealth v. Hunt, 858 A.2d 1234, 1238-1239, 1241 (Pa.Super.

2004) (en banc), appeal denied, 875 A.2d 1073 (Pa. 2005).




                                    -6-
J. S66036/18

      The comment to Rule 600 states that any delay in the proceedings

instrumentally caused by the defendant or the defense, including the

unavailability of the defendant, must be excluded for the purposes of

Rule 600.   Pa.R.Crim.P. 600 cmnt.    The court has previously held that a

defendant is considered unavailable for any period of time in which he or she

is unrepresented, absent a waiver of his or her right to counsel.

Commonwealth v. Anderson, 959 A.2d 1248, 1251 (Pa.Super. 2008).

      The comment to Rule 600 further provides that “delay in the time of

trial that is attributable to the judiciary may be excluded from the

computation of time.”    Pa.R.Crim.P. 600 cmt., citing Commonwealth v.

Crowley, 466 A.2d 1009 (Pa. 1983); see also Commonwealth v. Mills,

162 A.3d 323, 325 (Pa. 2017), citing Commonwealth v. Bradford, 46 A.3d

693, 705 (Pa. 2012) (“periods of judicial delay are excludible from

calculations under the rule”).

      The trial court provided the following summary of the pre-trial delays

in this case:

            A complaint was filed on March 3, 2015. At the first
            pretrial conference, on September 10, 2015, counsel
            appeared but was not formally appointed until
            September 23, 2015. The 191 days between the
            filing of the complaint and [] counsel’s appearance
            on September 10, 2015 are excludable for purposes
            of Rule 600, as [appellant] did not waive his right to
            counsel. . . . The [trial] court was faced with the
            herculean task of appointing private attorneys who
            were not conflicted out of the case, which took place
            at the first pretrial conference.    This delay was



                                     -7-
J. S66036/18


            outside of the control of the Commonwealth and thus
            excluded.

            [C]ounsel orally joined in the request for a
            habeas corpus hearing on or about November 12,
            2015.      Following multiple continuances based on
            either the court’s schedule or defense requests to
            review discovery, the hearing was ultimately held
            [in] March [of] 2016 and an order denying the
            Petition was entered on March [16, 2016.] Thus,
            124 days are excludable or excusable based on the
            filing of the habeas corpus petition. . . . When these
            315 excludable/excusable days are added to the
            mechanical run date of March 3, 2016, the adjusted
            run date becomes January 12, 2017.                Trial
            commenced on October 17, 2016, well within the
            adjusted run date. Any additional delay was caused
            by the court’s calendar and the challenge of
            scheduling a trial of this size.

Trial court opinion, 2/28/18 at 13-14 (footnotes omitted).

      Here, we find that the trial court’s conclusions are based in the record

and that the trial court did not misapply or override the law when reaching

its conclusion.   Therefore, we find that the trial court did not abuse its

discretion when it denied appellant’s Rule 600 motion.

      In his second issue on appeal, appellant avers that the Commonwealth

failed to present sufficient evidence to warrant his conviction of attempted

murder. When determining whether the Commonwealth presented sufficient

evidence to justify a conviction, we are governed by the following standard:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record “in the light most favorable to the verdict
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the
            evidence.” Commonwealth v. Widmer, [] 744


                                     -8-
J. S66036/18


           A.2d 745, 751 ([Pa.] 2000).        “Evidence will be
           deemed sufficient to support the verdict when it
           establishes each material element of the crime
           charged and the commission thereof by the accused,
           beyond a reasonable doubt.” Commonwealth v.
           Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005).
           Nevertheless,    “the    Commonwealth     need     not
           establish guilt to a mathematical certainty.” Id.;
           see also Commonwealth v. Aguado, 760 A.2d
           1181, 1185 (Pa.Super. 2000) (“[T]he facts and
           circumstances established by the Commonwealth
           need not be absolutely incompatible with the
           defendant's innocence”).      Any doubt about the
           defendant's guilt is to be resolved by the fact finder
           unless the evidence is so weak and inconclusive that,
           as a matter of law, no probability of fact can be
           drawn from the combined circumstances.            See
           Commonwealth v. DiStefano, 782 A.2d 574, 582
           (Pa.Super. 2001).

           The Commonwealth may sustain its burden by
           means of wholly circumstantial evidence.         See
           Brewer, 876 A.2d at 1032. Accordingly, “[t]he fact
           that the evidence establishing a defendant's
           participation in a crime is circumstantial does not
           preclude a conviction where the evidence coupled
           with the reasonable inferences drawn therefrom
           overcomes the presumption of innocence.”          Id.
           (quoting Commonwealth v. Murphy, 795 A.2d
           1025, 1038–39 (Pa.Super. 2002)). Significantly, we
           may not substitute our judgment for that of the fact
           finder; thus, so long as the evidence adduced,
           accepted in the light most favorable to the
           Commonwealth,      demonstrates     the    respective
           elements of a defendant's crimes beyond a
           reasonable doubt, the appellant's convictions will be
           upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722-723 (Pa.Super. 2013),

quoting   Commonwealth       v.   Pettyjohn,   64   A.3d   1072,    1074-1075

(Pa.Super. 2013) (citations omitted).



                                    -9-
J. S66036/18


           Under the Crimes Code, “[a] person commits an
           attempt when with intent to commit a specific crime,
           he does any act which constitutes a substantial step
           towards the commission of the crime.” 18 Pa.C.S.A.
           § 901(a). “A person may be convicted of attempted
           murder ‘if he takes a substantial step toward the
           commission of a killing, with the specific intent in
           mind to commit such an act.’” Commonwealth v.
           Dale, 836 A.2d 150, 152 (Pa.Super. 2003) (citation
           omitted). See 18 Pa.C.S.A. §§ 901, 2502. “The
           substantial step test broadens the scope of attempt
           liability by concentrating on the acts the defendant
           has done and does not any longer focus on the acts
           remaining to be done before the actual commission
           of the crime.” Commonwealth v. Gilliam, [] 417
           A.2d 1203, 1205 ([Pa.Super.] 1980). “The mens
           rea required for first-degree murder, specific intent
           to kill, may be established solely from circumstantial
           evidence.” Commonwealth v. Schoff, 911 A.2d
           147, 160 (Pa.Super. 2006). “[T]he law permits the
           fact finder to infer that one intends the natural and
           probable      consequences     of    his   acts   [.]”
           Commonwealth v. Gease, [] 696 A.2d 130, 133
           ([Pa.] 1997).

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008), appeal

denied, 967 A.2d 958 (Pa. 2009).

     Here, the trial court reached the following determination pertaining to

the sufficiency of the evidence presented by the Commonwealth for

attempted murder:

           Instantly, law enforcement received authorization to
           wiretap [appellant’s] cellular telephone [].      On
           February 28, 2015, during the course of this
           interception law enforcement listened, in real time,
           as [appellant] planned to find and shoot Lazaro
           Morgalo for allegedly robbing his little brother.
           [(Notes of testimony, 10/24/16 at 94-96.)] In a
           series of phone calls, [appellant] arranged a ride
           from Reading,      Berks County to        Pottstown,


                                   - 10 -
J. S66036/18


            Montgomery County to carry out his plan.        [(Id. at
            98, 119).]

            These intercepted communications show that
            [appellant] was deliberately stalking his intended
            victim, Lazaro Morgalo. When he first arrived in
            Pottstown, he was scared off by the police presence
            in the area of the homes associated with his rival
            gang members. [(Id. at 111-112.)] He chose to
            wait until it was dark out, and in calls after 9 p.m.
            can be heard whispering as a crept through the
            streets looking for Morgalo. [(Id. at 112, 127.)]
            Fellow SCMG member, Jose Charriez, agreed to park
            up the street and act as a getaway driver. [(Id. at
            108-109.)] Evidence adduced at trial indicated that
            the ‘big boy’ [appellant] indicated he was carrying is
            a Tech-9 semi-automatic weapon. [(Id. at 113.)]
            This evidence was sufficient to show that [appellant]
            took a substantial step toward an intentional killing.

Trial court opinion, 2/28/18 at 15-16 (footnote omitted).

      We find that the evidence noted by the trial court, when viewed in the

light most favorable to the Commonwealth, establishes each material

element of attempted murder beyond a reasonable doubt.             Accordingly,

appellant’s second issue is without merit.

      In his third and final issue, appellant contends that the trial court

abused its discretion by imposing consecutive sentences upon appellant and

by imposing sentencing enhancements that were not found by the jury

beyond a reasonable doubt. Upon review of appellant’s brief, he appears to

have abandoned his argument pertaining to the trial court’s enhancing his

sentence based on facts not found beyond a reasonable doubt by a jury.




                                    - 11 -
J. S66036/18

Therefore, appellant’s appeal only challenges the discretionary aspects of his

sentence.

                  [T]he proper standard of review when
                  considering whether to affirm the
                  sentencing court’s determination is an
                  abuse of discretion. . . . [A]n abuse of
                  discretion is more than a mere error of
                  judgment; thus, a sentencing court will
                  not have abused its discretion unless the
                  record discloses that the judgment
                  exercised was manifestly unreasonable,
                  or the result of partiality, prejudice, bias
                  or ill-will. In more expansive terms, our
                  Court recently offered: An abuse of
                  discretion may not be found merely
                  because an appellate court might have
                  reached a different conclusion, but
                  requires      a   result      of    manifest
                  unreasonableness,          or      partiality,
                  prejudice, bias, or ill-will, or such lack of
                  support so as to be clearly erroneous.

                  The    rationale    behind   such     broad
                  discretion    and     the   concomitantly
                  deferential standard of appellate review
                  is that the sentencing court is in the best
                  position to determine the proper penalty
                  for a particular offense based upon an
                  evaluation       of     the       individual
                  circumstances before it.

            [Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
            2007)] (internal citations omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, 752 A.2d 910, 912
            (Pa.Super. 2000).       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:




                                     - 12 -
J. S66036/18


               [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. Evans, 901 A.2d 528, 533
          (Pa.Super. 2006), appeal denied, 909 A.2d 303
          (Pa. 2006) (internal citations omitted). 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. Commonwealth v. Mann, 820 A.2d 788,
          794 (Pa.Super. 2003), appeal denied, 831 A.2d
          599 (Pa. 2003).

          The determination of what constitutes a substantial
          question must be evaluated on a case-by-case basis.
          Commonwealth v. Paul, 925 A.2d 825, 828
          (Pa.Super. 2007).     A substantial question exists
          “only 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.” Sierra, supra at 912-913.

          As to what constitutes a substantial question, this
          Court does not accept bald assertions of sentencing
          errors. Commonwealth v. Malovich, 903 A.2d
          1247, 1252 (Pa.Super. 2006). An appellant must
          articulate the reasons the sentencing court’s actions
          violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010).


                                  - 13 -
J. S66036/18

      Here, appellant’s brief contains a fatal defect as he has failed to

include a Rule 2119(f) statement. The Commonwealth raised an objection

to   appellant’s   failure   to   include   a   Rule   2119(f)   statement.   (See

Commonwealth’s brief at 48-49 n.10.)               Accordingly, we do not have

jurisdiction to review appellant’s discretionary aspects of sentence claim on

its merits.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/4/2019




                                        - 14 -
