J-S03007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

EMMETT PERKINS,

                             Appellant               No. 23 EDA 2018


       Appeal from the Judgment of Sentence Entered April 13, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0007595-2013

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 09, 2019

      Appellant, Emmett Perkins, appeals nunc pro tunc from the judgment of

sentence of 3 to 10 years’ incarceration, imposed on April 13, 2015, after he

pled nolo contendere to one count of possession with intent to deliver (PWID).

On appeal, Appellant challenges the court’s denial of his pre-sentence motion

to withdraw his plea, as well as the discretionary aspects of his sentence.

After careful review, we affirm.

      The facts underlying Appellant’s conviction are not pertinent to his

present appeal. The trial court briefly summarized the procedural history of

his case, as follows:

            On March 12, 2015, Appellant … entered      an open [nolo
      contendere] plea before this Court … to [PWID]    … (35 [P.S.] §
      780-113(A)(30)).     Sentencing was deferred      at Appellant’s
      request.    Both sides waived preparation of      a presentence
      investigation and mental health evaluation.
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           On April 13, 2015, Appellant was sentenced to 3-10 years[’]
     imprisonment.

            A timely motion for reconsideration of sentence was filed on
     April 22, 2015. The [c]ourt granted a hearing on the motion for
     reconsideration, which hearing was held on May 8, 2015. The
     motion for reconsideration was denied that same date.

          No notice of appeal was filed following the denial of
     reconsideration.

          On September 4, 2015, Appellant filed a pro se petition
     under the Post[]Conviction Relief Act (PCRA), [42 Pa.C.S. §§
     9541-9546,] seeking reinstatement of his appellate rights.

           An amended PCRA petition was filed by appointed counsel
     on January 11, 2017.

           The matter was then scheduled for an evidentiary hearing,
     but had to be continued several times due to the unavailability of
     Appellant, who was and remains in federal custody.

           On December 1, 2017, the [c]ourt granted the PCRA petition
     and reinstated Appellant’s appellate rights, nunc pro tunc.

           A timely notice of appeal was filed on December 20, 2017.

           Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the [c]ourt
     entered an order on January 22, 2018, directing the filing of a
     Statement of Errors Complained of on Appeal, not later than
     twenty-one (21) days after entry of the order.

           On February 11, 2018, Appellant filed a timely Statement of
     Errors Complained of on Appeal.

Trial Court Opinion (TCO), 2/14/18, at 1-2 (footnote omitted). The trial court

filed its Rule 1925(a) opinion on February 14, 2018.

     Herein, Appellant states the following two issues for our review:

     [I.] Did the trial court err and/or abuse its discretion when it
     denied [Appellant’s] pre-sentence motion seeking to withdraw his
     nolo contendere plea where the Commonwealth did not establish
     that it would suffer any prejudice as a result of the withdrawal of
     the plea?



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      [II.] Is the sentence imposed unduly harsh and excessive, where
      the sentencing court failed to take into account all relevant and
      necessary factors to [b]e considered by a sentencing court, and/or
      based the sentence upon factors or evidence which should not be
      relied upon by a sentencing court, and confinement in a state
      correctional facility for the term imposed is not the least restrictive
      sentence necessary to effectuate the aims of the Pennsylvania
      sentencing laws?

Appellant’s Brief at 5.

      Appellant first contends that the trial court erred by not permitting him

to withdraw his plea of nolo contendere prior to sentencing. At the outset, we

must address the trial court’s determination that Appellant waived this claim.

According to the court,

      [a]t the time of sentencing, counsel for Appellant stated that he
      had just met with Appellant, who wished to withdraw his [nolo
      contendere] plea. No basis for withdrawal was offered. Counsel
      did not seek a ruling on the issue and it was not raised in post-
      sentence motions, in court during the hearing on the post-
      sentence motion for reconsideration [of sentence], during
      allocution at the time of sentencing or on reconsideration, or in
      either the pro se or counseled PCRA petitions.

TCO at 6.

      Our review of the record compels us to agree with the court’s waiver

decision.   At the outset of Appellant’s April 13, 2015 sentencing hearing,

defense counsel stated that Appellant was “interested in withdrawing his …

plea[,]” and counsel asked the court for “a couple of days to file the

appropriate paperwork.” N.T. Sentencing, 4/13/15, at 2. When court asked

for a response from the Commonwealth, the discussion turned to the issue of

whether Appellant’s bail should be revoked. See id. at 2-32. At no point

during the arguments or evidence regarding Appellant’s bail did defense


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counsel return to the issue of Appellant’s withdrawing his plea. Additionally,

when the court ruled on the Commonwealth’s motion and revoked Appellant’s

bail, the following exchange occurred:

      THE COURT: Thank you. [Appellant’s] bail is revoked. We are
      here for sentencing. What I’m told by [defense counsel] is that
      [Appellant] wishes to withdraw his plea. Does he wish to withdraw
      his plea, yes or no?

      [Defense Counsel]: Yes, Your Honor.

      THE COURT: Are we ready to proceed to sentencing?

      [Defense Counsel]: Sure.

Id. at 32.

      It is unclear whether the court misheard defense counsel’s answer, or

simply ignored it.   Notwithstanding, defense counsel made no attempt to

obtain a ruling on Appellant’s request to withdraw his plea but, instead, simply

agreed to proceed to sentencing.      Additionally, Appellant did not seek to

withdraw his plea in his post-sentence motion or at the hearing on that motion.

Thus, we must agree with the trial court that Appellant waived this claim for

our review.

      Appellant next contends that the court abused its discretion in imposing

his sentence.    According to Appellant, the court fashioned a term of

incarceration that is “well above even the aggravated range set forth in the

applicable sentencing guidelines” based on “unreliable, unsubstantiated,

irrelevant, hearsay allegations.”    Appellant’s Brief at 25.    In particular,

Appellant challenges the court’s consideration of evidence, including the



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testimony of two police officers, which the Commonwealth offered to

demonstrate Appellant’s “role in a drug trafficking organization.” Id. at 43.

The trial court summarized the at-issue evidence, as follows:

            At the time of sentencing, the Commonwealth presented
      evidence that established Appellant was a member of the Water
      [B]oys drug organization, operating inside the Norman Blumberg
      Housing Project.

            Police Officer William Forbes testified that he has been
      employed for 12 years in the 22nd Police District, which includes
      the Blumberg Housing Project, which was the scene of Appellant’s
      arrest.2 During the six years prior to Appellant’s arrest, [Officer
      Forbes] spent a significant part of his work policing Blumberg and
      the Water [B]oys criminal organization that operates there. Four
      of those years were spent exclusively on the Water [B]oys.
      Appellant was a lieutenant in the Water [B]oys[’] organization,
      having worked his way up from seller to overseer. Appellant
      associated with other members of the organization, including
      coming to court with one member. He was also involved in an
      episode of witness intimidation.
         2 According to Police Officer Brian Nolan, the arresting
         officer, the Blumberg projects are a violent area with a lot
         of shootings and a high [amount of] narcotics trade.

         Police Officer Anthony Soliman testified that he was familiar
      with the Water [B]oy[s’] drug organization operating in Blumberg
      and that he had been involved in an investigation of the
      organization during the three years prior to the sentencing
      hearing. Officer Soliman testified that Appellant supplied and
      managed drug dealers and that he continued to do so from 2012
      through the date of the hearing.

         The Commonwealth also introduced photographs of Appellant,
      with several other persons who are members of the Water [B]oys
      who have been convicted on drug offenses.

TCO at 2-3 (citations to the record omitted).

      Appellant insists that the officers’ testimony, and the photographs

admitted by the Commonwealth, pertained to criminal activities committed by

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other individuals, and/or constituted unsubstantiated hearsay in regard to

Appellant’s involvement in the drug organization. Thus, he argues that it was

impermissible for the court to consider that evidence in fashioning his

sentence.

     Before we may review the merits of Appellant’s argument, we note that,

     [c]hallenges 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:

        We 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, 589 Pa. 727, 909 A.2d 303 (2006). 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, 574 Pa. 759, 831
     A.2d 599 (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 912–13.




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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

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

         Here, Appellant filed a timely notice of appeal, and the Commonwealth

concedes that he preserved his sentencing challenge at the hearing on his

post-sentence motion.       See Commonwealth’s Brief at 9 n.5.       Additionally,

Appellant includes a Rule 2119(f) statement in his appellate brief, and the

Commonwealth does not dispute that Appellant has raised a substantial

question for our review.       Id.   Accordingly, we will address the merits of

Appellant’s sentencing issue, applying the following standard of review:

         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. In this context, an abuse
         of discretion is not shown merely by 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

         In contending that the trial court erred by considering the above-

discussed evidence, Appellant contends that this case is analogous to

Commonwealth v. Karash, 452 A.2d 528 (Pa. Super. 1982).                 There, in

fashioning Karash’s sentence, the trial court had considered local news stories

reporting that Karash had escaped from custody and stolen a car during that

escape. Id. at 529. In a very cursory analysis, our Court held that the trial

court,

         should not have relied upon the television and newspaper stories
         in deciding [Karash’s] sentence. [Karash] had not yet been tried

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      for the escape, and when asked about it before the lower court,
      he pleaded the fifth amendment. He therefore stood before the
      court presumably innocent of that crime. The court nevertheless
      stated that it “believed the information in the television and
      newspaper stories that [Karash] took a vehicle during the course
      of that escape to ride around in,” and that that belief was “part of
      the [c]ourt’s consideration in imposing this sentence.” The court
      thereby denied [Karash’s] right to the presumption of innocence,
      and, in sentencing him as though he had been proved guilty of
      escape, his right to due process.

Id. (brackets added in Karash omitted).

      Appellant’s case is distinguishable from Karash. There, the trial court

relied on information that had not been admitted into evidence (i.e., television

and newspaper reports); here, the trial court considered evidence presented

by the Commonwealth (i.e., the testimony of the police officers and

photographs).      While Appellant repeatedly contends that the officers’

testimony    was   inadmissible   because   it   was   “unreliable,   irrelevant,

unsubstantiated, stale hearsay[,]” he offers no developed discussion to

support that argument. Appellant’s Brief at 56. For instance, Appellant does

not identify what specific rule(s) of evidence were violated by the admission

of the at-issue evidence, or cite any case law to support his allegation of

inadmissibility.

      Moreover, in Commonwealth v. P.L.S., 894 A.2d 120 (Pa. Super.

2006), this Court declared that, “the fact that a defendant is guilty of prior

criminal conduct for which he escaped prosecution has long been an

acceptable sentencing consideration.” Id. at 130. Indeed,

      [n]ot only does the caselaw authorize a sentencing court to
      consider unprosecuted criminal conduct, the sentencing guidelines


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       essentially mandate such consideration when a prior record score
       inadequately reflects a defendant’s criminal background. In 204
       Pa.Code § 303.5(d), Adequacy of the Prior Record Score, the
       sentencing guidelines provide that the court “may consider at
       sentencing previous convictions, juvenile adjudications or
       dispositions not counted in the calculation of the Prior Record
       Score, in addition to other factors deemed appropriate by
       the court.” (emphasis added).

Id. at 131. The P.L.S. panel cautioned, however, that criminal conduct “can

be used as a sentencing factor only under tightly-prescribed circumstances

when there is evidentiary proof linking the defendant to the conduct.” Id. at

130.

       Here, the Commonwealth presented evidentiary proof linking Appellant

to the criminal conduct committed by the Water Boys’ drug organization.

Given this evidence, the trial court concluded that the guideline ranges

applicable to Appellant “under-represented [his] criminal conduct and his

propensity to commit crime[,] and that an upward departure from the

guideline range was required to protect society.” TCO at 6.1 Given the record

before us and the case law discussed herein, we discern no abuse of discretion

in the court’s sentencing decision.

       Judgment of sentence affirmed.




____________________________________________


1 “Appellant’s Sentencing Guidelines offense gravity score was 6, with a prior
record score of 0, yielding a sentencing range of 3 to 12 months, plus or minus
6.” TCO at 3.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19




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