J-S96018-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

MARION NATE RUMPH

                        Appellant                   No. 454 WDA 2016


         Appeal from the Judgment of Sentence February 9, 2016
            In the Court of Common Pleas of Venango County
                       Criminal Division at No(s):
                        CP-61-CR-0000715-2014



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                        FILED JANUARY 26, 2017

     Marion Nate Rumph appeals from the judgment of sentence of

seventeen to fifty years imprisonment that was imposed after he was

convicted of dealing in the proceeds of an unlawful activity, possession of a

controlled substance with intent to deliver (“PWID”), conspiracy to commit

PWID, and criminal use of a communication facility. We affirm.

     The relevant facts are as follows.    In 2014, the Franklin City Police

Department, the Oil City Police Department, and the Office of the Attorney

General of Pennsylvania conducted a joint drug investigation in Venango

County. With the use of a confidential informant, investigators engaged in

controlled buys of heroin from a residence in Venango County.       A search
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warrant was obtained for the location, and police discovered heroin, drug-

dealing paraphernalia, a firearm, and cash. A number of drug dealers were

arrested, and they led investigators to Appellant as the source of their

heroin. Police obtained a wiretap for Appellant’s telephone, and, during an

intercept, Appellant agreed to sell heroin to Christopher Carlson. Police were

present when the drug transaction occurred on November 7, 2014, and

arrested Appellant and Carlson. Appellant was charged with and convicted

of the above-delineated four offenses.

      At Appellant’s trial, Christopher Carlson testified as follows. A relative

arranged for him to meet Appellant, whom he knew as “Lucky,” so that

Carlson could begin selling heroin in the Franklin area. N.T. Trial, 11/17/15,

at 156. In May 2014, Appellant agreed to sell heroin to Carlson for $100 a

gram, and Carlson would re-sell that substance for between $150 and $200

a gram.   When he first started dealing, Carlson would purchase between

twenty to thirty grams of heroin a week from Appellant. Over the course of

the six months that he dealt that substance, Carlson began to purchase

about 100 grams a week from Appellant, who was Carlson’s sole source for

heroin. Id. at 159. Carlson, who was arrested in November 2014, was also

aware that Appellant sold heroin to other drug dealers.

      On appeal, Appellant presents these issues:




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       I. Did the trial court err in finding evidence sufficient to support
       a verdict that Appellant possessed, delivered, or conspired to
       deliver in excess of 1000 grams of heroin?

       II. Did the trial court err in proceeding in absentia when the
       defendant did not appear for jury selection or trial?

       III. Did the trial court abuse its discretion in rendering a
       manifestly excessive and disproportionate sentence without an
       adequate presentence investigation report?

Appellant’s brief at 4.

       Appellant’s first allegation is that the evidence was insufficient to

sustain a finding that he possessed in excess of 1,000 grams of heroin. 1

           The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying the above test,
       we may not weigh the evidence and substitute our judgment for
       the fact-finder.     In addition, we note that the facts and
       circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a
       defendant's guilt may be resolved by the fact-finder unless the
       evidence is so weak and inconclusive that as a matter of law no
       probability of fact may be drawn from the combined
       circumstances. The Commonwealth may sustain its burden of
       proving every element of the crime beyond a reasonable doubt
       by means of wholly circumstantial evidence.          Moreover, in
       applying the above test, the entire record must be evaluated and
       all evidence actually received must be considered. Finally, the
       trier of fact while passing upon the credibility of witnesses and
       the weight of the evidence produced, is free to believe all, part
       or none of the evidence.

____________________________________________


1
  Appellant notes that the Commonwealth stipulated that, at the time of
Appellant’s arrest, 7.91 grams of heroin were recovered.



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Commonwealth v. Scott, 146 A.3d 775, 777 (Pa.Super. 2016).

      Appellant’s position on appeal is solely that there was not enough

evidence to support a finding that he sold in excess of 1,000 grams of

heroin. He suggests that the evidence therefore was insufficient to support

his conviction of PWID and conspiracy to commit PWID.          However, the

weight of the heroin that Appellant sold is not an element of either PWID or

conspiracy to commit PWID.     Thus, Appellant’s position on appeal has no

relation to the sufficiency of the evidence supporting his convictions.   Our

analysis follows.

      The information accused Appellant of committing a violation of 35 P.S.

780-113(30) and with conspiracy to commit 35 P.S. § 780-113(30). Under

§ 780-113 (30), the following is a prohibited act: “the manufacture, delivery,

or possession with intent to manufacture or deliver, a controlled substance

by a person not registered under this act, or a practitioner not registered or

licensed by the appropriate State board, or knowingly creating, delivering or

possessing with intent to deliver, a counterfeit controlled substance.”    35

P.S. § 780-113(30).    Thus, selling any amount of a controlled substance

constitutes a violation of this provision. As noted, Appellant’s sufficiency

argument on appeal pertains to the weight of the heroin that he sold.

However, the weight of the drugs sold is irrelevant for purposes of obtaining

a conviction under § 780-113(30), and, concomitantly, a conviction for

conspiracy to commit a violation of § 780-113(30).

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      We note that the jury was properly charged on the elements of

conspiracy and a violation of § 780-113(30). N.T. Trial, 11/19/15, at 357-

361. The evidence was sufficient to establish that Appellant committed the

crimes in question. Mr. Carlson testified that he and Appellant conspired to

sell heroin in the Franklin area from May to November 2014.

      Additionally, the amount of heroin that Appellant sold did not affect

the maximum sentence that Appellant faced.          Under 35 P.S. § 780-

113(f)(1), any person who violates § 780-113(30) “with respect to a

controlled substance . . . classified in Schedule I or II which is a narcotic

drug, is guilty of a felony and upon conviction thereof shall be sentenced to

imprisonment not exceeding fifteen years.” 35 P.S. § 780-113(f)(1)

(footnote omitted).   Heroin is a Schedule I controlled substance that is

narcotic.   35 P.S. § 780-104(1)(ii)(10); Commonwealth v. Waddell, 61

A.3d 198, 207 (Pa.Super. 2012).      Therefore, the amount of heroin that

Appellant sold did not increase his maximum sentence, which was set due to

the nature of the controlled substance that he delivered.   Since the weight

of the heroin involved herein did not increase the maximum penalty that

Appellant faced, that fact did not become an element of the crimes under

Apprendi v. New Jersey, 530 U.S. 466 (2000).          Therein, the Supreme

Court ruled that, under the Sixth Amendment, any fact, other than a prior

conviction, that increases a defendant’s maximum sentence is an element of




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the crime and must be submitted to a jury and proven beyond a reasonable

doubt.

      After being properly instructed on the elements of the crimes of

conspiracy and PWID, the jury was then given a special interrogatory.          It

was told that if Appellant was found guilty of either conspiracy to commit §

780-113(30) or of § 780-113(30), then it was to determine how many

grams of heroin were sold. Id. at 369 (“If you find the Defendant guilty on

Count 2 or Count 3[, t]he additional question is, “And we further find that

the amount of heroin was . . . .”).        The jury was given the option of

concluding that Appellant sold more a than 1,000 grams of heroin, at least

100 but less than 1,000 grams, between fifty and 100 grams, not less than

ten nor more than fifty grams, and between one and ten grams.            Id. at

369-370. The jury returned a finding that Appellant sold more than 1,000

grams of heroin, and it is this finding that Appellant challenges on appeal.

      However, this determination, as analyzed above, had no bearing on

the elements of the conspiracy and § 780-113(30) offenses.         Rather, the

finding as to the weight of the drugs impacted on the offense gravity score

that was assigned to the two offenses.      204 Pa.Code § 303.15 (providing

increased offense gravity scores as weight of drugs increases for purposes of

PWID, and assigning an offense gravity score of thirteen when the weight of

heroin in a PWID case exceeds 1,000 grams).         The sentencing transcript

confirms that the jury was given this special interrogatory for purposes of

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determining the offense gravity score.           At the sentencing hearing, the

sentencing guidelines were placed on the record.          On the second count,

conspiracy to commit PWID, it was delineated that “because the jury found

more than a thousand grams, that gives offense gravity score 13[.]” N.T.

Sentencing, 2/9/16, at 3. For count three, the violation of § 780-113(30),

the same was outlined. Id.

       Thus, Appellant’s first argument on appeal does not relate to the

sufficiency of the evidence.          Instead, Appellant’s first issue on appeal

pertains to the discretionary aspects of his sentence because it concerns the

calculation of the offense gravity score for the PWID and conspiracy crimes.

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

(explaining that a sentencing court's application of an allegedly incorrect

offense gravity score challenges the discretionary aspects of sentencing).2

Additionally, sentencing enhancements increasing a recommended sentence

under the sentencing guidelines, as opposed to facts triggering an increase
____________________________________________


2
   It is unclear why the jury was tasked with deciding the weight of heroin
that Appellant sold since, as our analysis establishes, that question relates to
the assignment of an offense gravity score. We also observe that, at
sentencing, Appellant raised no objection to the sentencing court’s use of an
offense gravity score of thirteen for the PWID and conspiracy crimes. N.T.
Sentencing, 2/9/16, at 3. Additionally, there is no indication that the
question was raised in Appellant’s post-sentence motion. Hence, any claim
that the incorrect offense gravity score was used for PWID and conspiracy to
commit PWID is waived.         Commonwealth v. Zirkle, 107 A.3d 127
(Pa.Super. 2014) (discretionary aspects issue must be preserved through
objection at sentencing or in post sentence motion).



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in the maximum or minimum sentence, are not elements of the crimes in

Pennsylvania because a court is not required to sentence within the

recommended ranges. Commonwealth v. Wilson, 829 A.2d 1194, 1201–

02 (Pa.Super. 2003).

      Appellant’s second contention relates to the fact that he was tried in

absentia. The following facts are pertinent. After petitioning for a reduction

in bail, Appellant posted bail and was released from prison. Jury selection

was scheduled for and commenced on November 9, 2015. Appellant failed

to appear at the beginning of that proceeding. Defense counsel, Wayne H.

Hundertmark, Esquire, said that he spoke with Appellant and advised him to

be present at 8:30 a.m. on November 9, 2015. N.T. Trial, 11/16/15, at 4.

      When Appellant did not arrive on November 9th, Mr. Hundertmark

contacted Appellant’s girlfriend, Tishma Johnson, because Appellant never

gave counsel a cell phone number to reach him.       Counsel spoke with Ms.

Johnson twice over the course of the morning of jury selection. Ms. Johnson

told counsel both times that she was with Appellant and that they were on

their way to the courthouse. Ms. Johnson represented that they were stuck

in a traffic jam but would be present shortly. Id. Due to his anticipation of

Appellant’s impending arrival, Mr. Hundertmark delayed jury selection but

then proceeded to conduct it. Appellant never arrived.

      At the beginning of trial on Monday, November 16, 2015, Appellant

again failed to appear. Someone from Mr. Hundertmark’s office had spoken

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with Ms. Johnson’s father, who reported that Appellant was often at Ms.

Johnson’s home.     Ms. Johnson’s father also said that he had been at Ms.

Johnson’s residence on November 11, 2015, and that “it was cleaned out.

She’s gone, the kids are gone[.]” Id. at 7. Defense counsel also attempted

to contact Appellant at his mother’s home, as he frequently stayed with her.

Appellant’s mother would “not pick up the phone.”      Id.   Mr. Hundertmark

added that, after the jury was selected, he mailed Appellant a letter

notifying Appellant “of the trial dates” to the address of Appellant’s mother,

“which is the only one I had for him.” Id. at 10-11. A copy of the order

scheduling trial for November 16, 2015, was also sent to Appellant in

September 2015.      It was mailed to the address that Appellant listed on

documents that he utilized to obtain bail.

      On November 16, 2015, the trial court found that Appellant was aware

of the day that jury selection and trial was set to commence, and it

concluded that Appellant was deliberately absent on both occasions. Since

the jurors had been sworn in, the court proceeded to try Appellant in

absentia.     Appellant was later apprehended in Florida, and appeared at

sentencing.

      As we articulated in Commonwealth v. Kelly, 78 A.3d 1136, 1141

(Pa.Super. 2013) (footnote omitted), “Pursuant to Article I, § 9 of the

Pennsylvania Constitution, and the Sixth Amendment of the federal

constitution as applied to the states via the Fourteenth Amendment due

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process clause, defendants have the right to be present during their criminal

trial.”    The constitutional right to be present for trial is not absolute and “a

defendant may, by his actions, waive this right expressly or implicitly.”

Kelly, supra, at 1141. Indeed, “it is long-established that where a person

absents himself from trial, his jury trial right is not infringed.” Id. at 1142.

The Commonwealth has “the burden of showing by a preponderance of the

evidence that the defendant is absent ‘without cause’ and that he knowingly

and intelligently waived his right to be present.” Id. (citation omitted). If

the Commonwealth proves that a defendant was aware of the trial date and

failed to come, then it has satisfied its burden.      Id. The rules of criminal

procedure embody these precepts:

          (A) The defendant shall be present at every stage of the trial
          including the impaneling of the jury and the return of the
          verdict, and at the imposition of sentence, except as otherwise
          provided by this rule. The defendant's absence without
          cause at the time scheduled for the start of trial or during
          trial shall not preclude proceeding with the trial, including
          the return of the verdict and the imposition of sentence.

Pa.R.Crim.P. 602 (emphasis added).

          Additionally, when a defendant has been released on bail, as Appellant

was herein, the released defendant has certain obligations:

                A defendant who is released on bail before trial gives the
          court his or her assurance that he or she will stand trial and
          submit to sentencing if found guilty. Unless the defendant is
          prevented from attending the proceedings for reasons beyond
          his or her control, then the defendant is expected to be present
          at all stages of the trial. A defendant owes the court an
          affirmative duty to advise it if he or she will be absent. If a

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      defendant has a valid reason for failing to appear, for example, if
      he or she has a medical emergency or is called to leave because
      of a family emergency, then the defendant can alert the court
      personally or through counsel of the problem.

Kelly, supra at 1143 (citation omitted).

      Herein, the record establishes that Appellant had actual notice of the

date of jury selection and trial.   He was on bail and violated his duty to

advise the court as to why he could not appear.        Appellant actually had

absconded, was captured in Florida, and was returned to face sentencing

herein. Thus, we affirm the trial court’s conclusion that Appellant voluntarily

absented himself from trial without cause, and waived his right to be

present.    Id.   It did not err in conducting the trial without Appellant’s

presence.

      Appellant’s final position is that his sentence was so manifestly

excessive as to constitute too severe a punishment and that the presentence

report was inadequate since he was not interviewed so that he could have

input into its preparation. Initially, we observe,

            The right to appellate review of the discretionary aspects
      of a sentence is not absolute, and must be considered a petition
      for permission to appeal. An appellant must satisfy a four-part
      test to invoke this Court's jurisdiction when challenging the
      discretionary aspects of a sentence.

            We conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant's brief
      has a fatal defect; and (4) whether there is a substantial



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       question that the sentence appealed from is not appropriate
       under the Sentencing Code.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citations

omitted).

       The present appeal was timely, the issues were preserved in a post-

sentence motion,3 and Appellant’s brief contains the concise statement of

the reasons relied upon for allowance of appeal from the discretionary

aspects of the sentence imposed. Appellant’s brief at 23. He complains that

the sentence was manifestly excessive given the weight of the heroin

actually recovered and that the presentence report was inadequate.

       Appellant’s first allegation does not raise a substantial question.    The

sentencing transcript reveals the following.       Appellant had a prior record

score of three.      The offense gravity scores were as follows: an eight for

count one, dealing in proceeds of a corrupt organization; thirteen for count

two, PWID; thirteen for count three, conspiracy to commit PWID; and five

for count four, use of a communication facility.       The applicable guideline

ranges therefore were eighteen to twenty four months for count one,


____________________________________________


3
   While Appellant’s post-sentence motion is not contained in the record, the
order denying it is present therein. Additionally, in its opinion, the trial court
indicated that Appellant did file a post-sentence motion requesting that his
sentence be reconsidered and that he raised the issues of the inadequacy of
the presentence report and the excessiveness of his sentence. Trial Court
Opinion, 8/3/16, at 4.



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seventy-eight to ninety months for counts two and three, and six to sixteen

months for count four.

     Appellant received a sentence on each crime that was within the

standard range of the sentencing guidelines: twenty-four months to forty-

eight months on count one, seven and one-half years (ninety months) to

fifteen years on counts two and three, and sixteen to sixty months on count

four. The sentences on counts two and three were imposed consecutively,

but the remaining sentences were made concurrent. The sentencing court,

in imposing this sentence, took into account that Appellant had two prior

felony drug convictions and that he fled the jurisdiction to escape

punishment.

     Since Appellant received a standard range sentence on each offense,

his complaint thus actually relates to the fact that he was sentenced

consecutively as to counts two and three. We articulated in Zirkle, supra

at 133-34 (citations and quotation marks omitted),

     [T]he imposition of consecutive rather than concurrent sentences
     lies within the sound discretion of the sentencing court. Long
     standing precedent of this Court recognizes that 42 Pa.C.S.A. §
     9721 affords the sentencing court discretion to impose its
     sentence concurrently or consecutively to other sentences being
     imposed at the same time or to sentences already imposed. A
     challenge to the imposition of consecutive rather than concurrent
     sentences does not present a substantial question regarding the
     discretionary aspects of sentence. We see no reason why [a
     defendant] should be afforded a ‘volume discount’ for his crimes
     by having all sentences run concurrently.




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            However, we have recognized that a sentence can be so
      manifestly excessive in extreme circumstances that it may
      create a substantial question. When determining whether a
      substantial question has been raised, we have focused upon
      whether the decision to sentence consecutively raises the
      aggregate sentence to, what appears upon its face to be, an
      excessive level in light of the criminal conduct in this case.

      We do not view the present case as one of these extreme

circumstances where the aggregate sentence appears to be excessive in

light of the conduct in this case.     Appellant had a prior history of drug

trafficking convictions.    The evidence established that he sold large

quantities of heroin to drug dealers in Venango County. Heroin is a highly

dangerous substance that has been a growing source of overdose deaths in

this country in recent years. Appellant obtained a reduction in his bail and

then fled to Florida to avoid punishment.        Thus, we do not view the

consecutive nature of the sentence imposed as excessive in light of the

criminal conduct in this action.   Hence, Appellant’s first contention fails to

raise a substantial question.

      We do, however, view the position that the sentencing court’s

presentence report was inadequate as presenting a substantial question. It

is axiomatic that:

            The first responsibility of the sentencing judge is to be sure
      that he has before him sufficient information to enable him to
      make a determination of the circumstances of the offense and
      the character of the defendant. Thus, a sentencing judge must
      either order a [presentence] report or conduct sufficient
      presentence inquiry such that, at a minimum, the court is
      apprised of the particular circumstances of the offense, not

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      limited to those of record, as well as the defendant's personal
      history and background. While the extent of the pre-sentence
      inquiry may vary depending on the circumstances of the case, a
      more extensive and careful investigation is clearly called for in
      felony convictions, particularly where long terms of confinement
      are contemplated. The court must exercise the utmost care in
      sentence determination if the defendant is subject to a term of
      incarceration of one year or more, or the defendant is under
      twenty-one or a first-time adult offender.

Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.Super. 2000)

(citations omitted). Given the importance of a presentence report and that

the court must consider a defendant’s background, an averment that the

report was inadequate raises a substantial question.

      However, we conclude that any averment that the presentence report

was insufficient is waived. First, the fact that Appellant was not interviewed

and had no input in the document’s preparation was due to his voluntary

absence from this jurisdiction.   In addition, at sentencing, the court noted

that a presentence report “was prepared in this case” and asked counsel if

he had “an opportunity to review it with [his] client.” N.T. Sentencing,

2/9/16, at 2. Counsel responded both that he had reviewed the report and

that he had no corrections. Hence, Appellant expressly consented to allow

sentencing to proceed with the presentence report as prepared. Moreover,

Appellant articulated to the court that he was sorry that he fled and

informed the court that he had family and children. No relief is due on this

claim.




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     The Commonwealth’s Petition for Extension of Time in Which to File a

Brief is denied as moot. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2017




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