J-S34037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TROY D. BAKER

                            Appellant              No. 1850 WDA 2013


              Appeal from the Judgment of Sentence May 10, 2013
                In the Court of Common Pleas of Indiana County
              Criminal Division at No(s): CP-32-CR-0001356-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 5, 2014

       Appellant, Troy D. Baker, appeals from the judgment of sentence

entered in the Indiana County Court of Common Pleas, following his jury trial

convictions for conspiracy, simple possession, delivery of a controlled

substance, and possession with intent to deliver (“PWID”).1 We affirm the

convictions but vacate the judgment of sentence and remand for re-

sentencing.

       The relevant facts and procedural history of this case are as follows.

On March 27, 2012, Appellant agreed to meet a confidential informant (“CI”)

in a Walmart parking lot to sell heroin to the CI. Appellant and two cohorts

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1
   18 Pa.C.S.A. § 903; 35 P.S. §§ 780-113(a)(16), 780-113(a)(30),
respectively.
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drove to the parking lot, where the CI was waiting with undercover police

officers. When Appellant and his cohorts arrived, they picked up the CI and

parked their vehicle two parking spots away from an undercover police

officer. Inside the vehicle, the CI gave Appellant approximately $400.00 in

exchange for approximately 1.2 grams of heroin. After Appellant and the CI

completed the transaction, the CI exited the vehicle; and Appellant and his

cohorts drove away.         The Commonwealth charged Appellant with PWID,

simple possession, delivery of a controlled substance, and conspiracy.     On

February 20, 2013, following a two-day trial, a jury found Appellant guilty on

all counts.    On May 10, 2013, the court sentenced Appellant to a term of

three (3) to fifteen (15) years’ imprisonment for the PWID conviction and a

term of three (3) to fifteen (15) years’ imprisonment for the delivery

conviction.    Each of these sentences included a three (3) year mandatory

minimum term, pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i).2           The court

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2
  We are mindful of the United States Supreme Court’s recent decision in
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), in which the Court expressly held that any fact increasing the
mandatory minimum sentence for a crime is considered an element of the
crime to be submitted to the fact-finder and found beyond a reasonable
doubt. Id. at ___, 133 S.Ct. at 2155, 2163, 186 L.Ed.2d at ___. Here, the
court imposed the mandatory minimum sentence per 18 Pa.C.S.A. §
7508(a)(7)(i) (mandating three year minimum sentence for defendant
convicted of violating 35 P.S. § 780-113(a)(30) with more than one gram
but less than five grams of heroin, where defendant has been convicted of
another drug trafficking offense at time of sentencing). Pursuant to Section
7508(b), the court determines applicability of the mandatory minimum at
sentencing by a preponderance of the evidence (arguably in violation of
(Footnote Continued Next Page)


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imposed a sentence of two (2) to fifteen (15) years’ imprisonment for the

conspiracy conviction, and a sentence of one (1) to three (3) years’

imprisonment for the simple possession conviction.    All sentences were to

run concurrently. Thus, Appellant received an aggregate sentence of three

(3) to fifteen (15) years’ imprisonment.

      After the court appointed new counsel for Appellant and granted

several motions of continuance to file post-sentence motions, Appellant

timely filed post-sentence motions on July 5, 2013. Following a hearing, the

court denied Appellant’s post-sentence motions on November 1, 2013.

Appellant timely filed a notice of appeal on November 18, 2013. The court


                       _______________________
(Footnote Continued)

Alleyne). In the present case, however, the parties stipulated at trial that
the substance the police informant received was an amount of heroin with a
weight of 1.2 grams. Thus, by virtue of its verdict convicting Appellant of
PWID and delivery of a controlled substance, the jury determined beyond a
reasonable doubt that Appellant possessed and delivered heroin which
weighed between one and five grams. The mandatory minimum was further
enhanced from two to three years based on Appellant’s previous drug
convictions. In Alleyne, however, the Court noted: “In Almendarez-
Torres v. United States, 523 U.S. 224, 188 S.Ct. 1219, 140 L.Ed.2d 350
(1998), we recognized a narrow exception to [the] general rule for the fact
of a prior conviction. Because the parties do not contest that decision’s
vitality, we do not revisit it for purposes of our decision today.” Alleyne,
supra at ___ n.1, 133 S.Ct. at 2160 n.1, 186 L.Ed.2d at ___ n.1. Further,
“[n]o Pennsylvania case has applied Alleyne to sentences enhanced solely
by prior convictions.” Commonwealth v. Akbar, 91 A.3d 227, 240 n.9
(Pa.Super. 2014). Therefore, we see no issue implicating the legality of
Appellant’s sentence. See Commonwealth v. Edrington, 780 A.2d 721
(Pa.Super. 2001) (explaining challenge to application of mandatory
minimum sentence is non-waiveable challenge to legality of sentence which,
assuming proper jurisdiction, this Court can raise sua sponte).



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ordered Appellant to file a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely complied.

      Appellant raises the following issues for our review:

         WHETHER THE TRIAL COURT ERRED WHEN IT MADE A
         FINDING THAT THE EVIDENCE WAS SUFFICIENT TO
         CONVICT [APPELLANT] ON ALL CHARGES AFTER THE JURY
         TRIAL?

         WHETHER THE TRIAL COURT ERRED WHEN IT MADE A
         FINDING THAT THE WEIGHT OF THE EVIDENCE WAS NOT
         AGAINST THE JURY VERDICT ON ALL CHARGES?

         WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
         [APPELLANT’S] REQUEST TO MODIFY HIS SENTENCE,
         EVEN THOUGH THE EVIDENCE PRESENTED AT TRIAL WAS
         FLAWED DUE TO THE LACK OF EVIDENCE AND LACK OF
         CREDIBILITY OF THE WITNESSES’ TESTIMONY?

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable William J.

Martin, we conclude Appellant’s first two issues merit no relief.   The trial

court opinion comprehensively discusses and properly disposes of those

questions.    (See Trial Court Opinion, filed November 1, 2013, at 2-5)

(finding: (1) Appellant’s assertion that witnesses to heroin sale mistakenly

identified Appellant was question for jury; jury heard testimony of multiple

witnesses to heroin sale who knew Appellant and could identify him; jury

was free to consider this testimony and find it credible; video, photographic

or physical evidence was not required for jury to find Appellant guilty;

evidence was sufficient to support verdict; (2) jury evaluated evidence and

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determined      Appellant   was    perpetrator      of   crime;   despite   Appellant’s

contentions of inconsistencies in evidence, verdict does not shock one’s

sense of justice; Appellant’s conviction was not against weight of evidence).

Accordingly, we affirm as to Appellant’s first and second issues on the basis

of the trial court’s opinion.

      In his third issue, Appellant claims the maximum term of his sentence

is excessive.    Appellant concedes the court correctly sentenced him to the

mandatory minimum period of three (3) years’ incarceration.                  Appellant

nevertheless argues the fifteen (15) year maximum term he received is

excessive because the evidence underlying the convictions was, at best,

circumstantial and “clearly flawed.”           (Appellant’s Brief at 22).    Appellant

contends the court should have imposed a sentence more reflective of the

term that would be recommended by the Sentencing Guidelines absent the

applicable mandatory minimum. Appellant further asserts a co-conspirator,

whom the police arrested for the same offenses, was able to plead guilty to

only misdemeanor charges and received a sentence of probation. Appellant

concludes his sentence is excessive and this Court should remand for

resentencing.     As presented, Appellant’s challenge is to the discretionary

aspects of his sentence.        See Commonwealth v. Lutes, 793 A.2d 949

(Pa.Super. 2002) (stating claim that sentence is manifestly excessive

challenges   discretionary      aspects   of    sentencing);      Commonwealth       v.

Cleveland, 703 A.2d 1046 (Pa.Super. 1997), appeal denied, 555 Pa. 739,


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725 A.2d 1218 (1998) (stating claim that court imposed disparate sentences

on co-defendants without articulating reasons challenges discretionary

aspects of sentencing).

     Preliminarily, Appellant did not include in his Rule 1925(b) statement

the claim on appeal regarding his co-conspirator’s disparate sentence.

Therefore, this claim is waived. See Commonwealth v. Castillo, 585 Pa.

395, 888 A.2d 775 (2005) (stating any issues not raised in Rule 1925(b)

statement will be deemed waived).

     Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.    Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).     Prior to reaching the merits of a discretionary

sentencing issue:

        [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, 589 Pa. 727, 909 A.2d 303 (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 (Pa.Super.


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2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

        When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal ‘furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.’”     Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Betty Lee Williams,

562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).

        “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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    (quoting

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),


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appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). “[W]hen the sentence

imposed falls within the statutory limits, an appellant’s claim that a sentence

is   manifestly     excessive      fails   to    raise   a   substantial   question”.

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa.Super. 2013), appeal

denied, ___ Pa. ___, 76 A.3d 538 (2013).

       Sentencing is a matter vested in the sound discretion of the sentencing

court. Commonwealth v. Lee, 876 A.2d 408, 413 (Pa.Super. 2005). On

appeal, this Court will not disturb the judgment of the sentencing court

absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843,

847 (Pa.Super. 2006).

       Instantly, Appellant’s sentence fell within the statutory limits.       Thus,

Appellant’s bare claim that his maximum term of incarceration is excessive,

absent more, does not raise a substantial question.3            See Griffin, supra.

Additionally, Appellant’s reference to the Sentencing Guidelines is misplaced.

Appellant concedes the court had to impose a mandatory minimum term,

and objects only to the length of the maximum term imposed.                      The
____________________________________________


3
  Appellant failed to include in his brief a concise statement of reasons relied
upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Mouzon,
supra. Nevertheless, the Commonwealth did not object to this omission.
Therefore, we decline to find waiver of Appellant’s sole remaining issue on
the basis of Appellant’s failure to include a Rule 2119(f) statement in his
brief. See Commonwealth v. Stewart, 867 A.2d 589 (Pa.Super. 2005)
(explaining where appellant has not included Rule 2119(f) statement in
appellate brief and Commonwealth has not objected to defect, appellate
court can ignore omission and determine if appellant raises substantial
question that sentence imposed was inappropriate).



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recommendations in the Sentencing Guidelines, however, apply only to

minimum terms of incarceration.         See 204 Pa.Code § 303.16(a) n.4

(stating: “All numbers in sentence recommendations suggest months of

minimum confinement…”).

      Moreover, the court had the benefit of a PSI report at sentencing.

Therefore, we can presume Appellant’s sentence was reasonable and the

court considered the relevant factors. See Commonwealth v. Tirado, 870

A.2d 362 (Pa.Super. 2005) (stating where sentencing court had benefit of

PSI, law presumes court was aware of and weighed relevant information

regarding defendant’s character and mitigating factors). Furthermore, at the

sentencing hearing, the court explained the reasons for the sentence it

imposed:

         All right. [Appellant], in this matter I have looked at your
         age and your health and all the other matters contained in
         the [PSI] report as prepared by the Indiana County Adult
         Probation Department, considered the sentence guidelines
         and noted that the District Attorney has given notice that
         he is seeking the mandatory sentence of three [years’]
         incarceration. The [c]ourt finds any lesser sentence would
         be inappropriate. A review of your records shows that at
         age 33 you have never been gainfully employed, you have
         16 prior convictions in Pennsylvania and Ohio, the majority
         of which are drug or drug-related offenses. I consider you
         to be a career criminal and a danger to society. You were
         on parole at the time that this offense was committed, and
         therefore, I consider you a poor candidate for
         rehabilitation.

(N.T. Sentence Hearing, 5/10/13, at 2-3).          Based upon the foregoing,

Appellant is not entitled to relief on his challenge to the discretionary aspects


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of his sentence.

      Finally, we see in the certified record that the trial court sentenced

Appellant separately on the convictions for delivery, PWID, and simple

possession.   Appellant has not challenged these sentences.      Nevertheless,

whether crimes should have merged for sentencing purposes implicates the

legality of the sentence.   Commonwealth v. Quintua, 56 A.3d 399, 400

(Pa.Super. 2012), appeal denied, ___ Pa. ___, 70 A.3d 810 (2013).

Assuming proper jurisdiction, the legality of the sentence is a non-waivable

claim, and this Court can raise sentence legality sua sponte.      Edrington,

supra (maintaining legality of sentence claims cannot be waived and may be

reviewed sua sponte, where reviewing court has proper jurisdiction).

“[W]hether a sentence is illegal is a question of law; therefore, our task is to

determine whether the trial court erred as a matter of law and, in doing so,

our scope of review is plenary.”          Commonwealth v. Anthony B.

Williams, 871 A.2d 254, 262 (Pa.Super. 2005).           An illegal sentence is

subject to correction and must be vacated.      Commonwealth v. Watson,

945 A.2d 174, 178-79 (Pa.Super. 2008).

      Merger of sentences is governed by Section 9765 of the Sentencing

Code, which provides:

         § 9765. Merger of sentences

         No crimes shall merge for sentencing purposes unless the
         crimes arise from a single criminal act and all of the
         statutory elements of one offense are included in the
         statutory elements of the other offense. Where crimes

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         merge for sentencing purposes, the court may sentence
         the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765 (emphasis added). When arising out of a single sale or

act, the offenses of possession, PWID, and delivery of the same contraband

merge for sentencing purposes. Commonwealth v. Eicher, 605 A.2d 337

(Pa.Super. 1992), appeal denied, 533 Pa. 598, 617 A.2d 1272 (1992). See

also Commonwealth v. Edwards, 449 A.2d 38, 39 (Pa.Super. 1982)

(stating: “Delivery necessarily includes possession with the intent to deliver

and possession with the intent to deliver clearly includes possession”;

controlled substances delivery conviction necessarily includes and merges

with PWID and PWID necessarily includes and merges with possession, when

all charges are based on same act and same drugs).

      Instantly, Appellant’s offenses and convictions arose from a single sale

involving the same drugs. Therefore, simple possession, PWID, and delivery

should have merged for sentencing purposes.       See 42 Pa.C.S.A. § 9765;

Edwards, supra. Although our decision does not lessen Appellant’s overall

sentence, this case also involves multiple counts.     Therefore, the better

course here is to vacate the judgment of sentence and remand for re-

sentencing.   See Anthony B. Williams, supra at 266 (stating where

appellate disposition upsets the overall sentencing scheme, remand is

necessary so court can restructure its sentence plan); Commonwealth v.

Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747

A.2d 896 (1999) (citing Commonwealth v. Vanderlin, 580 A.2d 820, 831

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(Pa.Super. 1990) (holding sentencing error in one count of multi-count case

requires that all sentences be vacated so court can restructure its whole

sentencing scheme). See also Commonwealth v. Goldhammer, 512 Pa.

587, 517 A.2d 1280 (1986), certiorari denied, 480 U.S. 950, 107 S.Ct. 1613,

94 L.Ed.2d 798 (1987)) (stating if appellate court alters overall sentencing

scheme, then remand for re-sentencing is proper). Accordingly, we affirm

Appellant’s convictions but vacate the judgment of sentence and remand for

resentencing.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




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