J-S39011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

AQUILLA D. LAURY

                            Appellant                No. 1255 MDA 2015


          Appeal from the Judgment of Sentence entered July 9, 2015
              In the Court of Common Pleas of Lycoming County
               Criminal Division at No: CP-41-CR-0001155-2014


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

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 26, 2016

        Appellant, Aquilla D. Laury, appeals from the judgment of sentence the

Court of Common Pleas of Lycoming County entered July 9, 2015. Appellant

challenges the discretionary aspects of his sentence.       Upon review, we

affirm.

        The trial court adequately summarized the underlying factual and

procedural background of the instant matter.        See Trial Court Opinion,

12/23/15, at 1-2. We, therefore, incorporate here the trial court decision by

reference.     Briefly, following a vehicular stop, Appellant was found in

possession, and subsequently charged with, one count of possession with

intent to deliver heroin (PWID-heroin), one count of possession with intent
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S39011-16



to deliver cocaine (PWID-cocaine), two counts of possession of drug

paraphernalia, one count of possession of heroin, and one count of

possession of heroin. After a jury found Appellant guilty of all charges, the

trial court sentenced him to an aggregate sentence of 5½ to 17 years of

incarceration, consisting of 3 to 10 years for PWID-heroin, 1½ to 5 years for

PWID-cocaine, and 6 months to 1 year for each conviction of possession of

drug paraphernalia all of which were consecutive to each other.1 Appellant

timely filed a motion for reconsideration of the sentence based on some

improper comments the trial court made at the time of sentencing. 2 After

denying it, this appeal followed.

       As noted, Appellant challenges the discretionary aspects of his

sentence.     Specifically, Appellant argues the sentencing court abused its

discretion in imposing an excessive aggregate based on the court’s improper

comments.3 The challenge is without merit.
____________________________________________


1
  The simple possession convictions were merged with the PWID convictions
for sentencing purposes.
2
   According to Appellant, the following statement made by the court was
improper because it was not a fact in the record, but merely a biased
speculation: “You [Appellant] are engaged in the calculated business of
killing people.” Appellant’s Brief at 19 (citation to the record omitted).
3
  In his brief, Appellant also argues that the sentencing court abused its
discretion in not accepting as true Appellant’s acceptance of responsibility.
Because Appellant did not raise this issue in his motion for reconsideration,
the sentencing court found the issue waived. We agree. “Issues challenging
the discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
(Footnote Continued Next Page)


                                           -2-
J-S39011-16



      “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). As this Court explained in Allen,

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Id.

      Assuming,        without     deciding,     Appellant   met   the   first   three

requirements, we must determine whether Appellant has presented a

substantial question that the sentence appealed from is not appropriate

under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”              Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa. Super. 2011). “An appellant making an excessiveness claim

raises a substantial question when he sufficiently articulates the manner in
                       _______________________
(Footnote Continued)

proceedings. Absent such efforts, an objection to a discretionary aspect of a
sentence is waived.” Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.
Super. 2004) (citation omitted). Additionally, we note Appellant provided no
statement on where and how he preserved this claim for our review, failing
to comply with Pa.R.A.P. 2117(c), 2119(e). Finally, we note that questions
of credibility are not for us to decide or reweigh.              See, e.g.,
Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012).




                                            -3-
J-S39011-16



which 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. Raven, 97 A.3d

1244, 1253 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014)

(internal citations and quotations omitted). A court’s exercise of discretion

in imposing a sentence concurrently or consecutively does not ordinarily

raise a substantial question.   Commonwealth v. Mastromarino, 2 A.3d

581, 587 (Pa. Super. 2010).      The imposition of consecutive rather than

concurrent sentences will present a substantial question in only “the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.”

Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012) (en

banc), appeal denied, 75 A.3d 1281 (Pa. 2013).

     Nevertheless, as this Court has explained:

     [A] defendant may raise a substantial question where he
     receives consecutive sentences within the guideline ranges if the
     case involves circumstances where the application of the
     guidelines would be clearly unreasonable, resulting in an
     excessive sentence; however, a bald claim of excessiveness due
     to the consecutive nature of a sentence will not raise a
     substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal

denied, 91 A.3d 161 (Pa. 2014) (emphasis in original).

     Here, Appellant argues the sentencing court based the sentence on

“biased speculation that Appellant was engaged in “[‘]the business of killing



                                    -4-
J-S39011-16



people.[’]”   Appellant’s Brief at 16. A review of the record and the

sentencing court’s opinion do not support this allegation.     The sentencing

court did not say Appellant killed someone while engaged in his business. It

merely stated Appellant is engaged in a line of business that may result in

the death of his customers. Whether this statement was based on evidence

in the record is immaterial because there is no indication the court

considered it for sentencing purposes. Indeed, the sentence was fashioned,

inter alia, based on Appellant’s actual criminal conduct in the instant matter,

as well as Appellant’s extensive criminal career, not on speculation.

Additionally, Appellant fails to explain how the comment, as stated by the

sentencing court, is improper. Accordingly, we conclude Appellant failed to

raise a substantial question for our review.

      Even if we were to consider the merits of the contention, we would

nonetheless find it without merit.       The sentencing court explained the

comment as follows:

      [Appellant] has had multiple drug trafficking convictions over the
      last several years. Undoubtedly, he is in the business of selling
      or distributing controlled substances.

      It is common knowledge that a natural and foreseeable
      consequence of [Appellant]’s conduct is the risk of death to his
      customers. . . . The court made these “business of killing
      people” comments with some oratorical flair to impress upon
      [Appellant] the gravity of his offenses. There are people who
      are dying in our community from the way in which [Appellant] is
      making a living.

Trial Court Opinion, 12/23/15, at 6-7.



                                     -5-
J-S39011-16



      In light of the foregoing, we conclude Appellant failed to raise a

substantial question for our review. Even if we were to conclude otherwise,

upon review of the record and sentencing court’s opinion, we would conclude

the challenge has no merit for the reasons stated by the trial court. Id. at

3-7. We direct that a copy of the trial court’s December 23, 2015 opinion be

attached to any future filings in this case.

      Judgment of sentence affirmed.

      Judge Platt joins this memorandum.

      Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




                                      -6-
                                                                    Circulated 06/30/2016 04:01 PM




         IN THE COURT OF COMMON      PLEAS OF LYCOMING       COUNTY,   PENNSYLVANIA



COMMONWEALTH                                   No. CP-41-CR-1155-2014

   vs.                                         CRIMINAL DIVISION


AQUILLA LAURY,
     Appellant                                 1925(a) Opinion

                                                                                    ....
                        OPINION IN SUPPORT OF ORDER IN
                       COMPLIANCE WITH RULE 1925{a) OF
                                                                                    )
                      THERULESOFAPPELLATEPROCEDURE                                      I



               This opinion is written in support of this court's judgment of sentence dated
                                                                                   ,!

July 9, 2015. The relevant facts follow.                                           -
                                                                                  \.n


               On July I, 2014, police with the Lycoming County Narcotics Enforcement

Unit were conducting surveillance in and around the 600 block of Second Street for illegal

distribution and sales of narcotics. They observed a white male pull up in a white Dodge

truck and park in the 700 block of Second Street. A few minutes later, they observed the

appellant, Aquilla Laury, talking on a cell phone and walking from the 600 block of Second

Street towards the truck parked in the 700 block. Laury walked up to the white truck and

entered the front passenger seat. The truck pulled out onto the roadway and it traveled

westbound.

               The police checked the registration on the truck and realized that it lacked

insurance. They followed it until it stopped and parked on Cottage Avenue in Old Lycoming

Township. They made contact with the occupants. During the encounter, Laury stepped
                                                                                                1
                -
behind a neighboring parked vehicle and initially was not cooperative with the officers

request for Laury to raise or show his hands to them. When the police checked where Laury

had been standing behind the neighboring vehicle, they discovered an unweathered clear

distribution bag containing 78 bags of heroin and a clear knotted baggie containing 16 zip-

lock bags of crack cocaine.

               Laury was arrested and charged with possession with intent to deliver heroin

(PWID-heroin), possession with intent to deliver cocaine (PWID-cocaine), two counts of

possession of drug paraphernalia, possession of heroin, and possession of cocaine.

               Following a jury trial, Laury was convicted of all the charges.

               On July 9, 2015, the court imposed an aggregate sentence of 5 Yi to 17 years of

incarceration in a state correctional institution, consisting of 3 to 10 years for PWID-heroin,

1 Yi to 5 years for PWID-cocaine, and 6 months to 1 year for each conviction of possession of

drug paraphernalia all of which were consecutive to each other.'

               On July 14, 2015, Laury filed a motion for reconsideration of sentence in

which he asserted that this sentence was unduly excessive and the court's reasoning for

aggravating his sentence based on the fact he was "in the business of killing people" was

improper. Accordingly, he requested a reduction of the minimum portion of his sentence.

On July 20, 2015, the court summarily denied Laury's reconsideration motion.

               Laury filed a timely notice of appeal. The sole issue he asserts on appeal is

that the court abused its discretion when it sentenced him to an unduly harsh sentence based

upon the court's speculation that he was engaged in the calculated business of killing people



                                                                                                  2
and the court's refusal to recognize his acceptance ofresponsibility.

                   "Sentencing 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. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012), quoting Commonwealth v.

Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002). "[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."' Commonwealthv. Walls, 592 Pa. 557, 926 A.2d 957,

961 (2007), quoting Commonwealthv. Smith, 543 Pa 566, 673 A.2d 893, 895 (1996).

                   When imposing a sentence, the court must consider "the protection of the

public, the gravity of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. §972l(b);

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013). The court considered each of

these factors, as well as a Pre-Sentence Investigation (PSI) report before imposing the

aggregate sentence of 5 Yi to 17 years of incarceration in this case.

                   According to the PSI, Laury was a 39 year old who dropped out of school in

the twelfth grade "to run the streets." He had a normal upbringing, and he did not have any

mental health issues or problems with drugs, alcohol, or assaultive behavior. What he did was

the result of his choices and not anything else.

                   Laury had a significant criminal record. He had eight arrests and six

convictions. His prior record score was capped at a five, and included the following:


I
    The simple possession charges merged with the PWID charges for sentencing purposes.
                                                                                                     3
                   •   a conviction for robbery, a felony of the first degree, for which he was

                       sentenced to a term of 4 to 10 years of incarceration in a state

                       correctional institution on February 4, 1997 (see CP-59-CR-1004801-

                       1996);

                   •   a conviction for possession of a controlled substance, an ungraded

                       misdemeanor, for which he was sentenced to one year of probation on

                       July 18, 1997 (see CP-46-CR-0004369-1996);

                   •   a conviction for manufacturing, delivering or possessing with the

                       intent to deliver controlled substances, an ungraded felony, for which

                       he was sentenced to 4 years of probation on November 30, 2010 (see

                       CP-51-CR-0012808-2010);       and

                   •   another conviction for manufacturing, delivering or possessing with

                       intent to deliver controlled substances, an ungraded felony, for which

                       he was sentenced to 18 to 36 months of incarceration in a state

                       correctional institution on February 4, 2011 (see CP-49-CR-0001024-

                       2009).

               There was not much time over the past twenty years where Laury was not

either incarcerated or under probation or parole supervision. In fact, when he committed the

current offenses, he was on probation supervision in Philadelphia County for one of his prior

felony drug convictions.   Clearly, he had several prior opportunities for rehabilitation and yet

he continued to commit felony drug offenses. At the time of his sentencing in this case,

Laury was to be sentenced not only on this case, but also another case in which he tendered a
                                                                                                  4
guilty plea. The court, however, was unwilling to abide by the terms of the parties' plea

agreement.

                Due to his prior drug trafficking convictions, the maximum penalties for

PWID-heroin and PWID-cocaine were 30 years/$500,000 fine and 20 years/$200,000 fine,

respectively. 35 P.S. §780-113(f); 35 P.S. §780-115.      The court imposed maximum sentences

that were one-third and one-fourth of the highest amount of incarceration that could have

been imposed.

                The sentencing guideline ranges for Laury's convictions were as set forth in

the following table.

Offense                   Mitigated Range          Standard Range         Aggravated Range


    PWID-heroin                   18-24                     24-30                30-36




   PWID-cocaine                    9-12                     12-18                18-22




    Possession of                                           RS-6                  6-9
    paraphernalia


Pursuant to Commonwealth v. Warren, 84 A.3d 1092 (Pa. Super. 2014), the court had the

discretion to double the sentencing guidelines provided it stated reasons for such a sentence

on the record, but it did not exercise that discretion.

                The minimum sentence imposed for PWID-heroin was at the top of the

aggravated range; the other sentences were at the bottom of the aggravated range. The

                                                                                                5
circumstances of this case which justified a sentence in the aggravated range were the fact

that Laury was on probation for a drug trafficking offense at the time he committed these

offenses, he was engaged in the calculated business of selling controlled substances, his lack

of remorse or acceptance of responsibility, his previous opportunities for rehabilitation, and

the criminal penalties that were imposed that failed to have any impact on Laury's repeated

and continuous criminal conduct.

               Laury contends that his sentence was unduly harsh because it was based on the

court's speculation that he was in the business of killing people. The court's statements that

Laury was in the "business of killing people" were not based on speculation, but Laury' s

prior criminal history and the known dangers of drugs such as heroin.

               Laury has had multiple drug trafficking convictions over the last several years.

Undoubtedly, he is in the business of selling or distributing controlled substances.

               It is common knowledge that a natural and foreseeable consequence of

Laury's conduct is the risk of death to his customers. As the Superior Court aptly noted:

       [I]t is certain that frequently harm will occur to the buyer if one sells heroin.
       Not only is it criminalized because of the great risk of harm, but in this day
       and age, everyone realizes the dangers of heroin use. It cannot be said that
       [an unauthorized heroin provider] should have been surprised when [ a
       buyer] suffered an overdose and died. While not every sale of heroin results
       in an overdose and death, many do.

Commonwealth v. Kakhankham, 2015 Pa. Super. LEXIS 710, *18-19 (Pa. Super.

10/28/2015)( quoting Minn. Fire and Cas. Co. v. Greenfield, 805 A.2d 622, 624 (Pa. Super.

2002), aff'd, 855 A.2d 854 (Pa. 2004)).

               The court made these "business of killing people" comments with some

                                                                                                 6
oratorical flair to impress upon Laury the gravity of his offenses. There are people who are

dying in our community from the way in which Laury is making a living.

                   Furthermore, contrary to Laury's assertions, he did not accept responsibility

for his conduct or show any remorse. He also did not preserve this issue in his motion for

reconsideration.

                   Although defense counsel made a statement that Laury was accepting the

jury's verdict, such is not the same as Laury accepting responsibility for his conduct or

expressing remorse.      While he may be resigned to the fact that it would be very difficult to

overturn his conviction and any sentence he receives is a cost of doing business, such does

not instill in the court any confidence that Laury understands the gravity of his crimes or that

he will cease to commit them in the future.

                   The court did not impose a lengthy sentence out of bias, prejudice or ill-will

against Laury. It imposed such a sentence because nothing else keeps Laury from trafficking

in controlled substances. Such activity presents a clear and present danger to our community.

Thus, the only way to adequately protect the public was to impose a sentence that would keep

Laury out of the community for a significant period oftime.


DATE:      /)-- J~- IS-                                  By The Court,

                                                            ~        ()
                                                         Marc F. Lovecchio, Judge


cc:   ~icole Ippolito, Esquire (ADA)
      VJoshua Bower, Esquire (APD)
      ~rkfile
      v(iary Weber, Esquire (Lycoming Reporter)
                                                                                                    7
         ·'--.




Superior Court (original & 1)




                                8
