J-S76006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ROBERT LEE DEVORE                          :
                                               :   No. 3353 EDA 2015
                       Appellant               :

              Appeal from the Judgment of Sentence June 26, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000804-2014


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                 FILED APRIL 11, 2018

        Robert Lee Devore appeals from the judgment of sentence entered in

the Philadelphia County Court of Common Pleas, following his robbery

conviction. Appellant challenges the propriety of the Commonwealth’s opening

statement as well as discretionary aspects of his sentence. We affirm.

        On January 5, 2014, the Commonwealth charged Appellant with

robbery, theft, terroristic threats, simple assault, recklessly endangering

another person (“REAP”), receiving stolen property, and possession of an

instrument of crime (“PIC”). Appellant proceeded to a jury trial, at which

Melvin Williams, the Commonwealth’s main witness, testified Appellant robbed


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   Retired Senior Judge assigned to the Superior Court.
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him at gunpoint.1 After reporting Appellant to the police, Williams relayed that

two people approached him, at separate times, attempting to deter him from

testifying against Appellant. The Commonwealth linked these attempts to

intimidate Williams to Appellant through recorded telephone calls Appellant

made from prison. Appellant did not testify on his own behalf.

       After deliberation, the jury found Appellant guilty of robbery. 2 The court

later sentenced Appellant to eight to sixteen years’ incarceration. 3 Following

the denial of his post-sentence motion, Appellant filed a timely appeal.

       In his first issue, Appellant argues the trial court erred by failing to

sustain his objection to the Commonwealth’s opening statement. Appellant

alleges the Commonwealth’s opening included an improper plea to the jury to

protect the citizens of Philadelphia from witness intimidation, a charge

Appellant was not facing. This, Appellant argues, biased the jury to such a

degree that it kept them from fairly weighing the evidence. As such, Appellant

contends he is entitled to a new trial.

       We review a trial court’s ruling on an objection to an opening statement

for an abuse of discretion. See Commonwealth v. Parker, 919 A.2d 943,
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1 While Williams believed the gun to be a nine-millimeter handgun, it was
actually a starter pistol. See N.T., Trial, 3/25/15, at 41.

2 Prior to trial, the Commonwealth nolle prossed Appellant’s charges for theft,
receiving stolen property, simple assault and REAP. Therefore, at the time of
trial, Appellant only faced the robbery, PIC, and terroristic threats charges.
The jury found Appellant not guilty of both PIC and terroristic threats.

3As the weapon used was a starter pistol, the court granted Appellant’s motion
to bar application of the deadly weapons enhancement at sentencing.

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949 (Pa. 2007). “[T]he prosecution … is afforded reasonable latitude in

presenting opening arguments to the jury.” Id., at 950 (citation omitted).

However, this “latitude is not without limits.” Id.

      A prosecutor must base her opening statement upon “evidence the

Commonwealth intends to offer, which the prosecutor believes, in good faith,

will be available and admissible at trial.” Commonwealth v. Arrington, 86

A.3d 831, 853 (Pa. 2014) (citation omitted). Thus, prosecutors cannot

“include   mere   assertions   designed   to   inflame   the   jury’s   emotions.”

Commonwealth v. Begley, 780 A.2d 605, 626 (Pa. 2001) (citation omitted).

      Here, prior to trial, the prosecutor indicated she intended show

Appellant’s consciousness of guilt through recorded telephone calls Appellant

made from prison. In those calls, Appellant asked a third party to intimidate

Williams. See Commonwealth v. Lark, 543 A.2d 491, 500 (Pa. 1988)

(finding evidence of uncharged witness intimidation is admissible to prove

consciousness of guilt). Appellant did not object to the use of these recorded

telephone calls, as long as he was able to place the statements into the context

of the entire telephone call. Thus, even before the trial began, Appellant

understood the Commonwealth intended to introduce evidence of witness

intimidation, even though it was not charged at the trial.

      During the opening, the prosecutor discussed Appellant’s attempts to

intimidate Williams as follows:

      Ladies and gentlemen, you’re going to hear [Appellant] say, I
      want you to go to that bar. The guy’s name is Mel. I want you to
      put his name up at the bar. He’s a rat. He’s a snitch and he works

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      for the cops. Ladies and gentlemen, when I call Mr. Williams to
      testify today, I call him as my victim. I call him as my witness.
      This is a 66-year old gentleman, who had the worse [sic] thing
      that could ever happen to anybody happen to him. That’s not what
      he’s called on the streets of Southwest Philadelphia. He’s called a
      snitch. He’s called a rat. And, again, the only person that could
      benefit from Mr. Williams being too scared to come in here and
      address you because of sequences at home is this guy…. Witness
      intimidation, ladies and gentlemen, cannot and shall not stand in
      Philadelphia – not on your watch. Consider the benefit to this
      defendant. What did he stand to gain from that phone call? Go
      and put Mel’s name out at the bar, ladies and gentlemen. He’s a
      rat and he’s a snitch. No, ladies and gentlemen, what he is is he’s
      courageous. He’s going to come in here and he’s going to tell you
      what happened.

N.T., Trial, 3/25/15, at 22-23 (objection omitted; emphasis added).

Appellant’s objection to the prosecutor’s reference to witness intimidation was

overruled, and the prosecutor later introduced evidence that Appellant

attempted to intimidate Williams in order to keep him from testifying at trial.

See N.T., Trial, 3/24/15, at 66-67; N.T., Trial, 3/25/15, at 13-14,

Commonwealth’s Exhibit C-18B.

      After reviewing the record, we disagree with Appellant’s contention that

because witness intimidation was not a charged offense, the statement

“[w]itness intimidation … cannot and shall not stand in Philadelphia – not on

your watch,” can only be seen as an “imperative to the jury … to safeguard

the body politic,” requiring a new trial. Appellant’s Brief, at 20. First, although

witness intimidation was not a charged offense, all parties were aware, and

Appellant conditionally agreed, that the evidence of Appellant’s intimidation of

Williams would be admissible at trial. As such, the prosecutor’s statements

during its opening that referenced witness intimidation was fairly based upon


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evidence the prosecutor believed would be admissible at trial. See Arrington,

86 A.3d at 853. See also United States v. Chirinos, 112 F.3d 1089, 1098

(11th Cir. 1997) (finding prosecutor’s opening statement about defendant’s

past offenses not improper because prosecutor reasonably believed the court

would admit that evidence).

       The prosecutor plainly made the challenged statement about witness

intimidation within the Commonwealth’s overview about the evidence the

prosecutor was planning to introduce in an attempt to show Appellant’s

consciousness of guilt. Read within this context, we do not find it plausible

that the Commonwealth intended this statement to be an “imperative to the

jury … to safeguard the body politic.” See Commonwealth v. Robinson, 864

A.2d 460, 517-18 (Pa. 2004) (finding statements fairly within the context of

the evidence presented by the Commonwealth do not constitute misconduct).

Appellant is not entitled to the grant of a new trial on his claim of misconduct

during opening statements.

       In his final issue4 on appeal, Appellant argues the sentencing court

considered an improper factor in fashioning Appellant’s sentence. This

presents a challenge to the discretionary aspects of Appellant’s sentence.
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4 Appellant also purports to raise a challenge to the court’s decision to allow
the prosecutor to present an improper sentencing factor during the sentencing
hearing. See Appellant’s Brief, at 4 ¶ 2. However, when addressing this issue
in the argument section of his brief, Appellant only points to law that supports
his final issue, that the trial court cannot rely upon impermissible factors when
sentencing. See id., at 23-24. As Appellant has failed to provide citation to



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         “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). “An appellant challenging the discretionary

aspects of his sentence must invoke this Court’s jurisdiction by satisfying a

four-part test.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010) (citation omitted; brackets in original).5

        Here, Appellant has met the first three parts of the test by filing a timely

notice of appeal, preserving his challenge in a post-sentence motion and

including the requisite Rule 2119(f) statement in his brief. Thus, we look to

his Rule 2119(f) statement to determine whether he has met the fourth part

of this test by raising a substantial question for our review.




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relevant authorities to support his argument, we find this issue waived. See
Pa.R.A.P. 2119(b).

5   The test requires us 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) (citation
omitted; brackets in original).


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        To raise a substantial question, Appellant must show that “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. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)

(citation omitted). Appellant attempts to meet this burden by raising two

claims in his Rule 2119(f) statement.

        First, Appellant argues his sentence, which exceeds the aggravated

range    in   the   guidelines,   is   manifestly   excessive   because   the   court

inappropriately considered the Commonwealth’s speculation that witnesses

failed to appear in Appellant’s unrelated cases due to witness intimidation.

Second, Appellant contends the court solely focused on retribution, to the

exclusion of other required factors, in imposing an above-guidelines sentence.

As both of these claims raise substantial questions, we proceed to examine

the merits of his sentencing challenges. See Commonwealth v. Roden, 730

A.2d 995, 997 (Pa. Super. 1999) (finding claim that a sentence is excessive

because trial court relied upon an impermissible factor raises a substantial

question); Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012)

(finding claim that trial court focused on one factor while failing to take into

account other relevant sentencing criteria raises a substantial question).

        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


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      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)

(citation omitted).

      Turning to Appellant’s first claim, he alleges that his sentence is

excessive as the court improperly relied upon an impermissible factor during

sentencing.

      In deciding whether a trial judge considered only permissible
      factors in sentencing a defendant, an appellate court must, of
      necessity, review all of the judge’s comments. Moreover, in
      making this determination it is not necessary that an appellate
      court be convinced that the trial judge in fact relied upon an
      erroneous consideration; it is sufficient to render a sentence
      invalid if it reasonably appears from the record that the trial court
      relied in whole or in part upon such a factor.

Roden, 730 A.2d at 997 (citation omitted). After reviewing all of the

sentencing court’s comments, we conclude that Appellant’s first claim fails as

the record is devoid of any evidence the trial court actually considered the

Commonwealth’s statement in fashioning its sentence.

      At sentencing, the court stated that it reviewed both parties’ sentencing

memorandums and the presentence investigation. When the court imposed

an above-guidelines sentence, it stated that it had considered Appellant’s

attempts to intimidate the victim in this case and the danger these actions

had to this victim. See N.T., Sentencing, 6/26/15, at 19. The court neither

mentioned nor inferred that the Commonwealth’s speculation influenced its




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sentence.6 Without more, Appellant cannot support his assertion that his

sentence was influenced by an improper sentencing factor.

       Next, Appellant claims that the court focused solely on retribution in

imposing his above-guidelines sentence. In imposing a sentence, the court

must consider relevant statutory factors, including “the protection of the

public, the gravity of an 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. § 9721(b). A court has broad discretion in fashioning its

sentence. See Commonwealth v. Walls, 926 A.2d 957, 962-63 (Pa. 2007).

While the court is required to consider the sentence ranges set forth in the

sentencing guidelines, it is not bound by them. See Commonwealth v.

Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).

       The court may depart from the “guidelines, if necessary, to fashion a

sentence which takes into account the protection of the public, the

rehabilitative needs of the defendant, and the gravity of the particular offense

as it related to the impact on the life of the victim and the community[.]”

Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001) (citation

omitted). If the court imposes a sentence outside the guideline ranges, it must




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6 In its opinion, the court stated that it “did not consider the prosecutor’s
speculative remark that the [Appellant] engaged in witness intimidation in
other cases.” Rule 1925(a) Opinion, 3/28/17, at 11.

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place adequate reasons for the deviation in the record. See Commonwealth

v. P.L.S., 894 A.2d 120, 129-130 (Pa. Super. 2006).

      Our review of the record belies Appellant’s claim that the court imposed

his sentence based solely on retribution. To begin with, the court had the

benefit of a presentence investigation report. Thus, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself....
      Having been fully informed by the pre-sentence report, the
      sentencing court’s discretion should not be disturbed. This is
      particularly true, we repeat, in those circumstances where it can
      be demonstrated that the judge had any degree of awareness of
      the sentencing considerations, and there we will presume also that
      the weighing process took place in a meaningful fashion. It would
      be foolish, indeed, to take the position that if a court is in
      possession of the facts, it will fail to apply them to the case at
      hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted). See also Tirado, 870 A.2d at 368.

      At sentencing, the parties made repeated reference to the guidelines

and the court was aware that the sentence imposed departed from the

sentencing guidelines. See N.T., Sentencing, 6/26/15, at 19-20. The court

made it clear that he considered the sentencing factors, but found it necessary

to depart from the guidelines due to Appellant’s extensive criminal history—




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34 to 50 arrests over the course of 25 years7—and Appellant’s reckless

behavior towards Williams. See id. The trial court committed no abuse of

discretion in sentencing Appellant.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/18




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7The prosecutor informed the court there was a dispute as to the number of
arrests. The prosecutor counted 50 arrests; defense counsel counted 34. See
N.T., Sentencing, 6/26/15, at 15.

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