J-A01045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM R. KRIMMEL                         :
                                               :
                       Appellant               :   No. 937 EDA 2018

            Appeal from the Judgment of Sentence February 20, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0001140-2017


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                               FILED MARCH 03, 2020

        William R. Krimmel (Appellant) appeals from the judgment of sentence

to an aggregate term of eight to sixteen years’ incarceration in a state

correctional institution,1 imposed after a jury found him guilty of discharge of

a firearm into an occupied structure, possessing instruments of crime, and


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The trial court sentenced Appellant to the statutory maximum sentence
allowed, beyond the aggravated range of the sentencing guidelines.
Specifically, Appellant was sentenced to (1) a term of three and one-half to
seven years’ incarceration on the discharge of a firearm into an occupied
structure conviction; (2) a consecutive term of two and one-half to five years’
incarceration on the possession of an instrument of crime conviction; (3) a
consecutive term of one to two years’ incarceration on the first reckless
endangerment conviction; and (4) a consecutive term of one to two years’
incarceration on the second reckless endangerment conviction.
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two counts of recklessly endangering another person.2 Appellant’s 6-day jury

trial was held before the Honorable Anne Marie B. Coyle. Appellant filed post-

sentence motions, which were denied by order entered March 6, 2018.

Appellant timely appealed to this Court.3 We Affirm.

       The trial court summarized the factual history of this case as follows:

         This case initiated following investigation of reports that
         Appellant had indiscriminately fired deadly weapons from
         inside and outside his residence located at 8206 Halstead
         Street in the northeast section of Philadelphia, including a
         high velocity assault rifle, toward and into neighboring homes
         during the early morning hours of December 24, 2016, which
         had recklessly endangered the lives of multiple occupants of
         the nearby residents and caused property damage.

         On December 24, 2016, beginning at approximately 2:00
         a.m., Appellant’s nearby neighbors, [the Ostrowskis]
         reported hearing three booming sounds like fireworks in
         sequence. [Mr. Ostrowski] recalled quiet pauses were
         followed by additional two booms and then a single louder
         noise. He said a quiet pause again ensued until about 2:10
         a.m. when two more booms rang that also sounded like
         louder fireworks emanating from outside the rear of their twin
         home.

         [Mr. Ostrowski] testified at trial that as the third loudest
         round was fired from the back of their property, he and his
         wife ran and remained cowered in their front hallway to avoid
         the danger. Upon later inspection once the firing ceased, Mr.
         Ostrowski observed resulting damage from multiple
         penetrating bullet holes inside and outside their home on the
         back building side that had been facing Appellant’s
____________________________________________


218 Pa.C.S. §§ 907, 6108, 907, and 2705, respectively. An additional
charge of carrying firearms in public was subsequently nolle prossed.

3 The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal on March 23, 2018; Appellant timely filed his
statement on April 13, 2018. The trial court filed its opinion on April 1, 2019.

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       property…[h]e recalled only knowing that Appellant was an
       adjacent nearby neighbor but reported no individual disputes
       with him.

       Other neighbors in close proximity to Appellant’s residence
       reported hearing the spurts of differing sounding shots and
       running for cover within their homes. [Another neighbor]
       testified at trial that she was an adjoining neighbor to the
       Ostrowski’s twin home located adjacent to the back of
       Appellant’s residential twin building. She remember being at
       home with her husband and children when she similarly heard
       loud popping noises that sounded like gunshots about 2:00
       a.m. coming from the direction of Appellant’s property that
       adjacently faced the back of her home.          She recalled
       frantically telling her thirteen year old son who slept in the
       back bedroom that had faced Appellant’s property to run to
       her bedroom located in the front of the house.

       [The neighbor] testified remembering brief intervals of quiet
       between multiple rounds of fired shots. During a silenced
       period, [she] ran downstairs and peered out of her kitchen
       window. She recalled seeing lights emanating only from
       Appellant’s home and his open door. She and her husband
       called 911 for help. She testified that she then heard more
       gunshots and ran again to her kitchen window and ducked.
       Most importantly she testified that she had unequivocally
       remembered peering through her back kitchen window and
       observing Appellant in a crouched position outside of his
       home holding what looked like a large gun in his hands and
       then running back into his first floor apartment.

       Lieutenant David Marnien testified that he had been on
       routine patrol duty as a uniformed Philadelphia police officer
       when he received multiple radio calls reporting person with
       gun at 8206 Halstead Street. As Lieutenant Marnien pulled
       up in his marked police vehicle to this twin home residence
       he noticed that the first-floor window facing the street
       appeared to be “all shot out.” Lieutenant Marnien along with
       other responding officers including Officer Fred Antkowiak
       cautiously knocked on the door of this residence and were
       permitted entry by Appellant who reported owing this duplex.
       The officers, prior to entry into the first floor apartment, had
       assumed they were responding to a shooting coming from
       outside the property. Upon entering however, the officers

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         noticed that there was “an odor of burnt gun powder” and
         observed “multiple cartridge casings that were fired bullets.”

         When the officers inquired of Appellant what happened and
         why, Appellant claimed he had fired his weapon because
         “there was somebody outside a house with a gun that was on
         the north side.” Appellant stated to Lieutenant Marnien that
         there was somebody outside his house.[] Appellant appeared
         to be alone in this apartment and there was no visible
         evidence of any intruder contrary to Appellant’s incredible
         claim testified to during the trial. Lieutenant Marnien further
         stated, “[t]he location of the bullet holes were all going out
         of the apartment and that he had observed “a weapon and
         an AKS assault weapon with magazine that were taped
         together on the table.”[4] He instructed one of his officers “to
         take that and make the weapon safe, take the magazine out
         and eject a round.” When the officers investigated the
         outside of the property in the “north” area that Appellant had
         claimed that he saw the unknown intruder approach, they
         found zero evidence of anyone having been present, no fired
         cartridge casings, and no bullet holes or strike marks
         emanating from outside the residence.

Trial Court 1925(a) Opinion at 2-4 (citations omitted).

      Appellant raises the following issues on appeal:

      A. Whether the trial court abused its discretion and/or erred as
         a matter of law, and violated the defendant’s due process
         rights, by denying the defendant’s request for a mistrial after
         the trial court reprimanded a Commonwealth witness in front
____________________________________________


4 Testimony at trial established that Appellant fired fourteen rounds, with
fourteen fired cartridge casings recovered from his home, all corresponding
with the AKS-762 weapon found there; the AKS-762 is a newer version of the
AK-47. Bullets from this rifle can travel up to two miles, through a brick wall
or a bullet-proof vest. In addition, the police recovered a hunting rifle and
another handgun, plus numerous hundreds of live rounds corresponding not
only to those weapons, but also to two other weapons that were not
recovered. Also found were (i) magazine cartridges and the magazines that
Appellant had adapted by connecting them with duct tape to create and turn
a thirty-round magazine into a sixty-round magazine, and (ii) a drum that was
capable of shooting ninety live rounds. 12/14/17 N.T. at 72-99.

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        of the jury when the witness testified regarding his reluctance
        to testify against the defendant?

     B. Whether the trial court – after directing the defendant not to
        wear his United States Postal Service uniform during trial
        since it would be prejudicial if the jury, in a shooting case,
        knew the defendant was a postal employee – abused its
        discretion and/or erred as a matter of law, and violated the
        defendants due process rights, by sua sponte informing the
        Commonwealth after the defendant testified, that the
        Commonwealth would be permitted to elicit testimony that
        the defendant was a postal employee, and thereafter allowing
        the Commonwealth to do so where the Commonwealth itself
        did not seek to elicit such testimony prior to the trial court’s
        prompting?

     C. Whether the trial court abused its discretion and/or erred as
        a matter of law, and violated the defendant’s due process
        rights, Fifth Amendment privilege and rights under Article I,
        Section 9 of the Pennsylvania Constitution, by allowing the
        Commonwealth, over the [d]efendant’s objection, to elicit
        testimony from a Commonwealth law enforcement witness
        regarding [d]efendant’s post-Miranda silence?

     D. Whether the trial court abused its discretion and/or erred as
        a matter of law, and violated the defendant’s due process
        rights, by denying the defendant’s various requests for
        continuances, despite the fact that the defendant suffered
        from severe mental health illness, thereby resulting in the
        defendant being unable to aid his counsel?

     E. Whether the trial court abused its discretion and/or erred as
        a matter of law when it sentenced the defendant to the
        statutory maximum sentence allowed, well above and beyond
        the aggravated range of the sentencing guidelines?

Appellant’s Brief at 7-8.

      Appellant argues, first, that the trial court erred when, in the presence

of the jury, it reprimanded a subpoenaed witness - the next-door neighbor

and long-time friend of Appellant - for his reluctance to testify, and thereby



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communicated its predisposition against Appellant to the jury. We find this

argument to be without merit. In its well-reasoned 1925(a) opinion, the trial

court explained:

        A contextual review of the transcribed record demonstrated
        that no undue prejudice however resulted from the line of
        questioning of the Court. It was simply a natural explanation
        of motivations that were clearly unstated. This Court had
        exhibited zero negative bias, ill will or interpretation of facts
        presented toward Appellant by the inquiry.
                                    - --
        The contextual natur[e] of the disputed question began when
        on December 14, 2017, Appellant’s neighbor and friend of
        eleven (11) years, Gerard King, was called by the
        Commonwealth as a reluctant witness. Mr. King testified that
        he lived in the adjoining building to Appellant. He recalled
        hearing similarly sounding shots fired from Appellant’s
        apartment approximately one week prior to the final shooting
        event. For some unknown reason he did not report or even
        naturally react to shots being fired behind his walls even
        though this had occurred in the middle of the night and when
        he and his minor daughter was sleeping in bedrooms on the
        other side of potentially impacted walls. He further reported
        no natural reaction or even concern with Appellant after
        observing resulting damage to Appellant’s front windows that
        prior week after first rounds of shots were heard.

        After the Commonwealth finished direct examination, frankly
        Mr. King’s mystifying motivations did not appear to be fully
        explored. This Court clarified this further for the jury by
        simply asking the witness why he didn’t want to come to
        court, to which he replied, “I’m friends with the Defendant for
        a long time. I care about him.” This Court then asked
        What about your other neighbors, do you care about them?”
        Mr. King replied that he did. This Court promptly withdrew
        its inquiry and told the jury to disregard even that natural
        exchange of information.

        The defense then motioned and argued for a mistrial because
        of this inquiry out of the presence of the jury. The motion
        was properly denied. However even though this Court did

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        have the right to explore this area of inquiry, this Court again
        instructed the jury that they were not to discern any point of
        view from the Court’s question and to disregard the witness’
        response in an overabundance of caution. Thus even if the
        limited inquiry had been made in error this Court corrected
        the error with repeated cautionary instructions.

        Furthermore, even if the inquiry had been made erroneously
        it was harmless. The standard for determining harmless
        error was firmly established in Commonwealth v. Story, [],
        383 A.2d 155 (Pa. 1978) and its progeny. An error will be
        deemed harmless where the appellate court concludes
        beyond a reasonable doubt that the error could not have
        contributed to the verdict. If there is a reasonable possibility
        that the error may have contributed to the verdict, it is not
        harmless. Commonwealth v. Mitchell, [], 839 A.2d 202,
        214 (Pa. 2003). In this case, this Court’s limited and
        withdrawn and directed to disregard inquiry as to whether the
        witness cared for his neighbors could not have remotely
        contributed to the guilty verdicts. Thus, this claim and
        requested remedy lacked any factual and legal merit.


Trial Court 1925(a) Opinion at 22-23 (citations to N.T. omitted).    We discern

no abuse of discretion here. The trial court withdrew its question regarding

the witness’ neighbors, and immediately instructed the jury to disregard the

question. 12/14/17 N.T. at 20. Appellant’s counsel briefly cross-examined

the witness, and another neighbor of Appellant then took the stand, and was

examined.   Id. at 23-38.     After the jury exited the courtroom for lunch,

Appellant’s counsel moved for a mistrial, arguing that the trial court, by its

question to the neighbor/friend of Appellant, was sending a message to the

jury that it should be more concerned with the neighbors than with Appellant.

Id. at 39-40.    The trial court denied the motion for mistrial, but in an

abundance of caution, offered to again advise the jury that they may not



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“import anything from the Court’s question that was sustained and disregard

the response,” and remind them that the “Court is not the finder of fact,” and

they should discern nothing from the Court’s question.       Id. at 41.   Upon

resumption of the trial, the trial court so advised the jury, and further

emphasized that they should not think that the trial court intended to reflect

any opinion whatsoever about the facts of the case “on either side of the

fence.”   Id. at 42.   A jury is presumed to follow the court’s instructions.

Commonwealth v. Aikens, 168 A.3d 137, 143 (Pa. 2017). Here, the trial

court’s explicit, repeated curative instructions were more than adequate to

overcome any potential prejudice. Commonwealth v. Leap, 2019 PA Super

323, *5 (Pa. Super. filed October 25, 2019).

      Appellant next argues that the trial court abused its discretion and

violated Appellant’s due process rights when, after directing Appellant not to

wear his United States Postal Service (USPS) uniform during trial, it then

prompted the Commonwealth to elicit testimony that Appellant was a USPS

employee. Appellant’s Brief at 28. Appellant alleges that after his counsel

elicited testimony from him that he “worked for a federal agency,” without

objection from the Commonwealth, the trial court, sua sponte, declared that

the Commonwealth would now be permitted to elicit testimony from Appellant

that he worked for USPS, and the Commonwealth did so, thereby severely

and unfairly prejudicing him. Id. at 29, 31.   The trial court opined that “this

claim however demonstrated a complete disregard of the transcribed record.”

Trial Court 1925(a) Opinion at 20.    The trial court explained that Appellant

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had worn his uniform at a pre-trial proceeding, and had been informed at that

time by the assistant district attorney that per federal codes of conduct, doing

so constituted a violation of USPS human resources policies. The trial court

then advised Appellant that while he was permitted to wear his uniform, doing

so “does not reflect well upon [him] to potential jurors.” 12/12/17 N.T. at 11.

The trial court noted that Appellant then acknowledged the wisdom of this

view and voluntarily agreed to wear alternate clothing during trial, but that

the trial court never prohibited him from wearing his uniform. Trial Court

1925(a) Opinion at 20. Citing Pa.R.E. 611, the trial court stated:

        Subsequently during the jury trial Appellant volunteered
        during his testimony that he had worked for an unnamed
        federal agency…Once Appellant identified the fact that he
        worked for a federal agency, it naturally opened the door for
        the Commonwealth to inquire which agency employed him on
        cross-examination, which was precisely what had occurred.
        Again, this argument failed to recite a remedial claim because
        no erroneous or unduly prejudicial evidentiary ruling had
        been entered.

Id. at 21.    A review of the notes of testimony reveals that, contrary to

Appellant’s assertion, the Commonwealth did in fact object to counsel’s inquiry

on direct examination as to his employment, on grounds of relevance.

12/18/17 N.T. at 16.     The trial court did not rule on this objection, and

Appellant’s counsel proceeded to ask Appellant how long he had worked at his

job, to which Appellant replied, “twenty-five years”. Id. During a recess, and

prior to cross-examination by the Commonwealth, the trial court advised the

Commonwealth that by testifying that he worked for a federal agency,



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Appellant had opened the door to that line of inquiry, and the Commonwealth

would be permitted to inquire as to which federal agency employed him; near

the end of cross-examination, the Commonwealth so inquired, and Appellant

responded that he was a tractor-trailer operator for USPS, and that he was

“very proud of it”. Id. at 29, 52. We review a trial court’s evidentiary rulings

on an abuse of discretion standard.     Commonwealth v. Fitzpatrick, 204

A.3d 527, 531 (Pa Super. 2019). An abuse of discretion will be found where

“the law is overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown

by the evidence of record.” Id. (citation omitted). We find no evidence here

of manifest unreasonableness or undue prejudice by the trial court in ruling

that the topic of Appellant’s employment, once initiated by Appellant’s counsel

on direct examination, could be further explored by the Commonwealth on

cross-examination.

      Appellant next challenges the trial court’s allowance of testimony from

a Commonwealth law enforcement witness, Detective Matthew Burkhimer,

regarding Appellant’s post-Miranda silence.     We discern no error of law or

violation of Appellant’s rights. Lieutenant David Marnien testified that upon

arrival at Appellant’s home following the report of gunshots from a neighbor,

Appellant reported to him that he had been shooting a weapon because there

was someone outside his house with a gun. 12/13/17 N.T. at 51.         Appellant

testified, however, that when he opened his door to Lt. Marnien, he tried to

tell Lt. Marnien what had happened, but that “[h]e wasn’t hearing what

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[Appellant] had to say,” and he told Appellant to “sit down and shut up.”

12/18/17 N.T. at 49.      Appellant was asked whether Detective Matthew

Burkhimer, a detective who arrived on the scene after Lt. Marnien, had asked

him what had happened, and he responded “[n]obody was talking to me at

all.”   Id. at 52.   After the defense rested, the Commonwealth requested

permission to call Detective Burkhimer to rebut Appellant’s testimony that no

one gave him the opportunity to speak; the Commonwealth noted that

Appellant was read Miranda warnings by the detectives and when “pressed for

further details,” invoked his right to remain silent.   Id. at 69. Appellant’s

counsel initially objected to any rebuttal testimony of the detective, voicing

his concerns that such testimony would bring up the fact that Appellant

invoked his Miranda right to remain silent, but subsequently assented, so long

as Appellant could be given the opportunity to explain why he elected not to

answer questions from the detective and the trial court would caution the jury

that no negative inference should be made. Id. at 73-74. The Commonwealth

then called Detective Burkhimer, who testified that when he and his colleague

entered Appellant’s home, Appellant was in the living room with Lt. Marnien

and some other officers, and after they introduced themselves, Appellant “said

something about there was a man with a gun, then [another detective] read

[Appellant] his Miranda warnings. And after that, [Appellant] did not want to

speak to us.” Id. at 77. The Commonwealth then asked Detective Burkhimer

to explain Miranda warnings, and he did so.        Id. at 77-78.    On cross-

examination, Detective Burkhimer acknowledged that it appeared as though

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someone inside the house had fired a gun based on the fired cartridge casings

on the ground and the large gun laying on the table, and at that point,

Appellant was given his Miranda warnings before he asked him any questions

about the incident. Id. at 81. Appellant was then recalled to the witness

stand, and testified as to his belief that because police had concluded he was

guilty, there was no reason to answer their questions.      During its charge to

the jury, the trial court stated:

        In this case, there was testimony introduced in the form of
        rebuttal with respect to [Appellant’s] statements made to the
        detective. That was introduced for one purpose only, that
        was to evaluate the credibility of [Appellant’s] testimony.
        You are not to infer anything negative or adverse to
        [Appellant] because he did not speak after being advised of
        his Miranda warnings. That’s perfectly fine. Not a problem
        in the world. He has an absolute right not to speak. You
        cannot hold it against him.

Id. at 109-110. “Even an explicit reference to silence is not reversible error

where it occurs in a context not likely to suggest to the jury that silence is the

equivalent of a tacit admission of guilt.” Commonwealth v. Kuder, 62 A.3d

1038, 1052 (Super. Ct. 2013) (citations omitted).          Here, the trial court

properly admitted the evidence as rebuttal of Appellant’s own testimony, and

the trial court assured that no untoward prejudice could attach when it

specifically instructed the jury that it could only use the rebuttal testimony as

impeachment and could not draw an adverse inference against Appellant.

      Appellant next argues an abuse of discretion in the trial court’s denial of

his various requests for continuances. We find no merit in this argument.



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Appellate review of a trial court’s continuance decision is deferential.

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016). The grant

or denial of a motion for a continuance is within the sound discretion of the

trial court and will be reversed only upon a showing of abuse of discretion.

Id.   We must therefore examine the reasons presented to the trial court for

requesting a continuance, as well as the trial court’s reasons for denying the

request.   Commonwealth v. Sandusky, 77 A.3d 663, 672 (Pa. Super.

2013).

      On Monday, December 11, 2017, just prior to the commencement of

jury selection, Appellant’s counsel requested a mental competency evaluation

for Appellant. In its 1925(a) opinion, the trial court noted that Appellant’s

counsel indicated at that time that although a privately-appointed psychiatrist

had previously found Appellant competent, an examination by a neutral,

court-appointed psychiatrist was necessary because the Appellant had been

“inconsistent” with counsel in the past. Trial Court 1925(a) Opinion at 10.

The trial court noted further that the prosecutor alluded to reports that

Appellant had been antagonistic and threatening in his manner toward his

neighbors in the period up to and including a few weeks before trial, and that

it was later reported that after Appellant had been released from custody

following the underlying arrest, he had travelled to Florida where he was

arrested for driving under the influence of drugs and alcohol, and at that time,

a semi-automatic .9 millimeter firearm had been confiscated from the floor of

his vehicle. Id. The trial court conducted a lengthy competency colloquy,

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concluding that Appellant demonstrated “zero difficulties…that would support

any contention of lack of competency.” Trial Court 1925(a) Opinion at 8. The

trial court noted that during the colloquy, Appellant informed the trial court

that he had been taking Wellbutrin, an antidepressant, as well as blood

pressure medications, but that neither of them affected his ability to

understand and comprehend what was taking place that day. 12/11/17 N.T.

at 5-6; Trial Court 1925(a) Opinion at 9.         The trial court further noted

Appellant’s assertion during the colloquy that the only mental illness he had

ever been treated for was depression, and his acknowledgement of his

awareness of all the charges pending against him. 12/11/17 N.T. at 7; Trial

Court 1925(a) Opinion at 9.      Nevertheless, the trial court granted the

continuance request to facilitate the mental health examination, performed

that day by the duly appointed psychiatrist. Appellant was found competent.

However, on the following day, Tuesday, December 12, 2017, Appellant’s

counsel   requested    a   continuance,      citing     dissatisfaction   with    the

Commonwealth’s decision to refuse a proffer of a negotiated guilty plea in

exchange for a “time in sentence.” The trial court denied this request, after

confirming with Commonwealth counsel, with whom Appellant’s counsel had

been negotiating, that no non-trial disposition would be permissible. 12/12/17

N.T. at 5, 7, 9-10. The trial commenced, and after two days of testimony,

Appellant’s counsel again requested a continuance because Appellant was

agitated and had reported hearing voices emanating from outside his

apartment that kept him awake all night.              12/15/17 N.T. at 5.        After

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questioning Appellant, the trial court delayed trial, and directed a second

psychiatric evaluation to be performed that day; the same psychiatrist who

had conducted the pre-trial examination performed an examination;5           the

examination yielded another finding that Appellant was competent and not-

commitable. Id. at 21. Prior to adjourning for the day, a Friday, and after the

jury had been dismissed, the trial court invited Appellant’s brother and sister,

who were in court, to discuss Appellant’s condition, given Appellant’s report

of having heard voices and concerns about his safety and the safety of others.

It was determined that Appellant would stay over the weekend with his

medical professional sister at her home and could thus eat, sleep, and take

his medication for depression as prescribed.       Id. at 50.   On the following

Monday, the trial court conducted an additional colloquy of Appellant, noting

in its opinion that “he appeared candidly well rested[,] coherent and quite

competent.” Trial Court 1925(a) Opinion at 18. Prior to Appellant’s decision

to testify, on December 18, 2017, the trial court conducted an additional

colloquy, and noted in its opinion that “Appellant demonstrated a full

understanding of his rights and satisfaction and cooperation with his counsel.”

Id. The trial proceeded without further interruption through entry of verdict

and scheduling of a sentencing hearing date. On February 20, 2018, prior to

the commencement of the sentencing hearing, Appellant’s counsel requested
____________________________________________


5 The trial court identified the doctor as, “Robert Stanton, M.D., who has duly
[been] recognized as an experienced neutral forensic psychiatrist employed
and authorized by the County of Philadelphia First Judicial District Mental
Health Unit…” Trial Court 1925(a) Opinion at 17.

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a continuance in order to obtain more letters from Appellant’s family members

and meet further with his reportedly agitated client, and answer his questions.

2/20/18 N.T. at 3. Two of Appellant’s brothers, and two family friends were

present to testify at the hearing. The trial court initially offered Appellant’s

counsel fifteen minutes to talk to his client, however, counsel declined the

offer as an insufficient amount of time. Id. at 15. The trial court denied the

request for continuance, noting that the mental health assessment and

presentence investigative reports had been completed and there had been

eight weeks in which to prepare for sentencing. Id. at 3, 13.

      In its 1925(a) Opinion, the trial court asserted that Appellant failed to

sustain his burden by proving by a preponderance of the evidence that

Appellant was mentally incompetent at the time the respective continuance

applications had been raised.      Trial Court 1925(a) Opinion at 15. See

Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014).               The trial court

documented the two continuances it granted to allow for competency

examinations, its colloquies with Appellant, and trial counsel’s agreement that

his client appeared competent, concluding:

        This Court and counsel for both sides acknowledged advance
        review and of Appellant’s multiple mental health and pre-
        sentence investigative evaluations that had been prepared
        following the guilty verdicts and prior to the sentencing date.
        Appellant had been duly deemed competent prior to trial,
        throughout the duration of his trial and prior to the
        sentencing hearings conducted by this Court and upon
        evaluation by neutral mental health professionals.
        Appellant’s competency had been acknowledged by defense
        counsel. The sentencing hearing proceeded accordingly. In


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        short, no countervailing evidence had ever been submitted to
        support these due process claims.

Trial Court 1925(a) Opinion at 16-19. Our review of the record reveals ample

support for the court’s findings as to the reasons it asserted for denying

Appellant’s motions for continuances. Accordingly, we conclude that the trial

court did not abuse its discretion in denying the two motions for continuances.

      Finally, Appellant argues that the trial court abused its discretion when

it sentenced the defendant to the statutory maximum sentence allowed, well

above and beyond the aggravated range of the sentencing guidelines, and in

excess of the sentence requested by the Commonwealth. Appellant’s Brief at

37.   Appellant is challenging the discretionary aspects of the trial court’s

sentence. We do not review such issues as a matter of right. “An appellant

must satisfy a four-part test to invoke this Court’s jurisdiction when

challenging the discretionary aspects of a sentence.”     Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). Specifically, Appellant

must show that he (1) filed a timely notice of appeal, see Pa.R.A.P. 902 and

903; (2) properly preserved the issue at sentencing or in a motion to

reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) set forth a concise

statement of reasons relied upon for the allowance of his appeal in his

appellate brief pursuant to Pa.R.A.P. 2119(f); and (4) raised a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Manivannan,

186 A.3d 472 (Pa. Super. 2018).      A substantial question exists, as to the

appropriateness of a sentence, where a defendant sets forth a plausible

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argument that a sentence violates a particular provision of the Sentencing

Code, or is contrary to the fundamental norms underlying the sentencing

scheme. Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).

      We conclude that Appellant has raised a substantial question.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (an

excessive sentence claim – in conjunction with an assertion that the court

failed to consider mitigating factors – raises a substantial question”).        In

addition, Appellant filed a timely notice of appeal and included a Pa.R.A.P.

2119(f) statement in his brief. However, in both his post-sentence motion

and in his Rule 1925(b) Concise Statement of Errors Complained of on Appeal,

the sole issue Appellant raised with regard to sentencing was the trial court’s

alleged failure to take into account any of the mitigation offered at the hearing,

including its alleged failure to recognize his witnesses, lack of criminal history,

mental health issues and good character. Motion for New Trial and To Modify

Sentence, 2/28/18; Defendant’s Concise Statement of Errors Complained of

on Appeal.

      Appellant’s contentions that there is no record support to indicate he

poses a danger to society, and that the trial court has double-counted factors

already incorporated into the sentencing guidelines were not raised before the

trial court or in his 1925(b) statement.   Appellant has thus failed to preserve

either of these issues in support of his discretionary aspects of sentence

claims, and they are not subject to our review. Commonwealth v. Smith,

206 A.3d 551, 567 (Pa. Super. 2019) (sole claim raised in post-sentence

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motion was failure to consider mitigating circumstances; claims on appeal that

trial court failed to consider relevant sentencing criteria and considered

impermissible factors waived where sentencing court denied opportunity to

reconsider sentence based on appellant’s argument); Commonwealth v.

Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citation omitted) (“[f]or any

claim that was required to be preserved, this Court cannot review a legal

theory in support of that claim unless that particular legal theory was

presented to the trial court[.]”).   Accordingly, these claims are waived.

        We proceed to address the merits of Appellant’s argument that the trial

court erred in failing to consider the extensive mitigation he offered at

sentencing. Appellant avers that the trial court disregarded his witnesses, his

lack of criminal history, his mental health problems, and his good character.

We find ample record evidence to establish that the trial court did not ignore

the evidence offered in mitigation, but rather considered and evaluated it in

full.   The trial court acknowledged that it heard the testimony of various

members of Appellant’s family; however, it found that these family members

only reaffirmed its conclusion that as a result of his lengthy history of

methamphetamine and alcohol abuse, which Appellant failed to acknowledge,

and his mental health difficulties, Appellant demonstrated a lack of self-

control. The trial court referenced its consideration of multiple mental health

evaluations and pre-sentencing investigative reports. Where a sentencing

court has the benefit of a pre-sentencing investigation report, we can assume

the sentencing court “was aware of relevant information regarding the

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defendant’s character and weighed those considerations along with mitigating

statutory factors.”   Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010) (citation omitted). The trial court addressed Appellant’s limited

criminal record, referring back to its comments at the conclusion of the

sentencing hearing, wherein it acknowledged Appellant’s prior record score of

zero, but also recognized his “multiple encounters with the criminal justice

system.” Trial Court 1925(a) Opinion at 24; Sentencing Hearing, N.T. at 53-

54.   The trial court found Appellant to have demonstrated “an absolute lack

of remorse and appreciation for the damage [he caused]” and noted his

testimony and repeated view that he had been wrongfully accused and

prosecuted. Trial Court 1925(a) Opinion at 24; Sentencing Hearing at 52. In

sum, we find no merit to Appellant’s claim that the trial court failed to consider

mitigating factors before imposing its sentence.

      Appellant contends generally that his sentence is excessive and

unreasonable. We note that it is well-established that a sentencing court can

impose a sentence that is the maximum period authorized by statute.

Commonwealth v. Saranchak, 675 A.2d 268, 277 n.17 (Pa. 1996). The

sentencing guidelines provide for minimum and not maximum sentences.

Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004).

      In reviewing a challenge to the sentencing court’s discretion, we are

cognizant of the following principles:

        We review the trial court's sentencing scheme for abuse of
        discretion. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d
        957, 961 (2007). “[A]n abuse of discretion is more than a

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       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.” Id.

       Section 9781(c) of the Sentencing Code directs this Court to
       vacate a sentence and remand to the sentencing court if “the
       sentencing court sentenced outside the sentencing guidelines
       and the sentence is unreasonable.” 42 Pa.C.S.A. §
       9781(c)(3). Likewise, § 9781(d) governs our review of the
       record:

          (d) Review of record.—In reviewing the record the
          appellate court shall have regard for:

              (1) The nature and circumstances of the offense
              and the history and characteristics of the
              defendant.

              (2) The opportunity of the sentencing court to
              observe   the    defendant,    including  any
              presentence investigation.

              (3) The findings upon which the sentence was
              based.

              (4) The guidelines       promulgated     by   the
              commission.

       42 Pa.C.S.A. § 9781(d).

       Our Supreme Court has addressed the § 9781(c)(3)
       “unreasonable” inquiry as follows:

          What makes a sentence “unreasonable” is not defined
          in the statute. Generally speaking, “unreasonable”
          commonly connotes a decision that is “irrational” or
          “not guided by sound judgment.” The Random House
          Dictionary of the English Language, 2084 (2nd ed.
          1987); see 1 Pa.C.S. § 1903 (words to be construed
          according to their common and approved usage).
          While a general understanding of unreasonableness is
          helpful, in this context, it is apparent that the General
          Assembly       has    intended       the    concept    of

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J-A01045-20


          unreasonableness to be a fluid one, as exemplified by
          the four factors set forth in Section 9781(d) to be
          considered in making this determination. Indeed,
          based upon the very factors set out in Section
          9781(d), it is clear that the General Assembly
          intended the concept of unreasonableness to be
          inherently a circumstance-dependent concept that is
          flexible in understanding and lacking precise
          definition.

          [W]e decline to fashion any concrete rules as to the
          unreasonableness inquiry for a sentence that falls
          outside of applicable guidelines under Section
          9781(c)(3). We are of the view, however, that the
          Legislature intended that considerations found in
          Section     9721    inform    appellate    review     for
          unreasonableness. That is, while a sentence may be
          found to be unreasonable after review of Section
          9781(d)'s four statutory factors, in addition a
          sentence may also be unreasonable if the appellate
          court finds that the sentence was imposed without
          express or implicit consideration by the sentencing
          court of the general standards applicable to
          sentencing found in Section 9721, i.e., the protection
          of the public; the gravity of the offense in relation to
          the impact on the victim and the community; and the
          rehabilitative needs of the defendant. 42 Pa.C.S. §
          9721(b).       Moreover,      even      though       the
          unreasonableness inquiry lacks precise boundaries,
          we are confident that rejection of a sentencing court's
          imposition of sentence on unreasonableness grounds
          would occur infrequently, whether the sentence is
          above or below the guideline ranges, especially when
          the unreasonableness inquiry is conducted using the
          proper standard of review.

       Walls, 926 A.2d at 963–64 (some citation omitted).

Commonwealth v. Smith, 206 A.3d at 567-568.

     Here, the trial court specifically referenced its consideration of the

sentencing guidelines promulgated by the Pennsylvania Commission on



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Sentencing, and noted its measurement of the pre-sentence investigative

reports and the multiple mental health evaluations.        Trial Court 1925(a)

Opinion at 24-25. The trial court expressly stated on the record its

consideration of the nature and gravity of the offenses and their impact on the

community:

         These charges do not remotely identify the amount of danger
         that you pose. The discharging of a firearm back in the day,
         frankly, was meant for someone who fired into an occupied
         structure just once. But, sir, you used an assault weapon to
         fire through the walls, furniture, anything that was in the way
         and outside into the community in an unbelievably reckless
         manner. I don’t think that to date you care about the damage
         that you would have done, and I think that you present a high
         risk that you would do it again and I am not going to have
         that on my watch, to the extent possible.

Sentencing Hearing N.T. at 54-55. The trial court found significant Appellant’s

inability to accept responsibility or to express any remorse for his actions,6

and expressed its judgment that Appellant posed a “clear and present danger

to our community,” as justification for imposition of the sentence as well as

the application of relevant rehabilitative conditions.     Trial Court 1925(a)

Opinion at 25. The trial court ably addressed the section 9721(b) factors,

including the examination of public protection, the gravity of the offense and


____________________________________________


6 Appellant exercised his right to allocution at the sentencing hearing, before
the trial court sentenced him. He stated his belief that he was “a victim here,”
and that “the DA’s case made me out to be a criminal, which I’m not…[a]nd
you know, as far as these people in the neighborhood complaining about my
actions and behaviors, I think that’s all fabricated, you know, to complement
the prosecution.” Sentencing Hearing, N.T. at 50.


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Appellant’s rehabilitative needs.    While we recognize the severity of the

sentence here imposed, we are ever mindful that “[w]hen reviewing

sentencing matters, this Court must accord the sentencing court great weight

as it is in the best position to view the defendant’s character, displays of

remorse, defiance or indifference, and the overall effect and nature of the

crime.”   Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa. Super.

2009).    Upon careful review of the record, including the transcripts of

testimony from both the six-day trial and the sentencing hearing, we find that

the sentence imposed was not manifestly unreasonable, and the trial court

thus acted within its discretion in its imposition.

      Appellant’s issues merit no relief.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/20




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