J-S12009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ARTHUR BRAIN B. HEATH                      :
                                               :
                       Appellant               :   No. 3262 EDA 2018

        Appeal from the Judgment of Sentence Entered February 28, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002604-2011

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ARTHUR BRAIN B. HEATH                      :
                                               :
                       Appellant               :   No. 3352 EDA 2019

        Appeal from the Judgment of Sentence Entered February 28, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002606-2011


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                   Filed: May 14, 2020

        Appellant, Arthur Brain B. Heath,1 appeals nunc pro tunc from the

judgment of sentence entered on February 28, 2014, at trial court docket


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S12009-20


numbers CP-51-CR-0002604-2011 and CP-51-CR-0002606-2011.2                   We

affirm.

       The trial court summarized the relevant facts of this case as follows:

            This case proceeded to a waiver trial on September 10,
       2013. The facts are as follows:

             The following witnesses testified for the Commonwealth:
       Philadelphia Police Sergeant Kevin Conway; Philadelphia Police
       Detectives James Waring, Timothy Cliggett, Joseph Murray, and
       Ralph Domenic; Victims LaShawn Gonzalez and Raul Dreke;
       Philadelphia Police Officers Bruce Cleaver and Frank Sackosky;
       Assistant District Attorneys Michael Barry and Erin Boyle; and lay
       witnesses John Bowie, Christopher Floyd, and Latrell Howard.

            On April 27th, 2010, around 1:30 P.M., LaShawn Gonzalez
       (“Gonzalez”), Raul Dreke (“Dreke”), and Christopher Floyd
____________________________________________


1  Throughout the certified record, Appellant is referred to as “Arthur Brain B.
Heath.” However, in the nunc pro tunc post-sentence motion, Appellant’s
name is listed as “Arthur Brian B. Heath.” Post Sentence Motions Nunc Pro
Tunc, 6/29/18. Because the majority of documents in the record list the
spelling as “Brain,” we leave the caption, which reflects that Appellant’s name
is “Arthur Brain B. Heath,” unchanged.

2 On November 13, 2019, this Court issued a rule to show cause why the
appeals at trial court docket numbers CP-51-CR-0002604-2011 and CP-51-
CR-0002606-2011, which were both docketed initially at Superior Court
docket number 3262 EDA 2018, should not be quashed pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Appellant’s counsel
responded that he had complied with Walker and filed separate appeals at
each trial court docket number. Response to Rule, 11/21/19. After additional
review, we concluded that counsel was correct; counsel had indeed filed
separate appeals. Order, 12/11/19. Accordingly, we vacated the rule to show
cause. Id. Additionally, the appeal at trial court docket number CP-51-CR-
0002604-2011 was assigned Superior Court docket number 3262 EDA 2018,
and the appeal at trial court docket number CP-51-CR-0002606-2011 was
assigned Superior Court docket number 3352 EDA 2019. Id. Finally, we
consolidated the appeals at 3262 EDA 2018 and 3352 EDA 2019 for
disposition. Id.


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J-S12009-20


     (“Floyd”), went to a corner deli at the intersection of 20th and
     Susquehanna streets Philadelphia, PA, to pick up beer, chips, and
     candy. Notes of Testimony hereinafter N.T. 09/11/2013 at 24-26;
     N.T. 09/12/2013 at 32. Upon entering the store, two (2) other
     men entered and were greeted by the trio as they received the
     goods they ordered. N.T. 09/11/2013 at 27. After receiving their
     items, the trio left the store and walked towards Gonzalez’s house
     down 20th street. N.T. 09/11/2013 at 28-29. As they walked down
     the street, the men they had previously greeted inside the store
     were stationed just around the corner of the deli. N.T. 09/11/2013
     at 67-68. [A]s they walked by the men, Floyd heard one of them
     say “what are you waiting for?” N.T. 09/11/2013 at 30.

            At that time, one of the men pulled out a semi-automatic
     hand gun and fired on the trio. N.T. 09/11/2013 at 29, 63. The
     shooters then fled westward on Susquehanna Avenue. N.T.
     09/11/2013 at 69. Gonzalez was shot in the back, chest, and lower
     abdomen, and Dreke was shot in the shoulder.10 N.T. 09/11/2013
     at 29. The day before the shooting[,] a close friend of Appellant,
     Paris Grant, had been murdered on the same corner at 20th and
     Susquehanna streets. N.T. 09/13/2013 at 57, 69. Rumors
     circulating in the neighborhood implicated Floyd’s family in the
     slaying after Floyd’s brother (Wesley Clark) paid for marijuana
     using a bloody ten dollar bill.11 N.T. 09/13/2013 at 76-77.

          10Dreke did not realize that he had been shot until he
          arrived at his home after hurrying to get away from
          the scene of the shooting. N.T. 09/11/2013 at 62-63.

          11 Testimony regarding this murder was introduced as
          [Appellant’s] motive for shooting at the eventual
          victims and Floyd.

            Gonzalez testified that he did not see who shot him, but
     identified and described the men he passed on the sidewalk just
     prior to the shooting and the shooter, specifically, as wearing a
     white shirt and a white hat. N.T. 09/11/2013 at 30-32. Dreke
     described the shooters as black males one 5’10” in a black shirt
     and a tan hat with a gold brim; the other skinnier with a white
     shirt on. N.T. 09/11/2013 at 67-68. He further described both men
     as looking to be 23 or 24 years old. N.T. 09/11/2013 at 68. The
     entirety of the shooting was captured on a nearby surveillance
     camera. N.T. 09/11/2013 at 10. As Gonzalez lay on the ground
     bleeding, Floyd ran from the scene to his home. Once at home, he

                                   -3-
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     told his Uncle, Latrell Howard (Howard”), that “Art (Appellant)
     shot Shon (Gonzalez).” N.T. 09/12/2013 at 35; N.T. 09/13/2013
     at 58. Howard assisted the Officers in getting Gonzalez into the
     back of the police cruiser where he was transported to Temple
     University Hospital for treatment. N.T. 09/13/2013 at 40, 42, 54.

           Gonzalez was placed in the intensive care unit at Temple
     University Hospital for a week as a result of the shooting. N.T.
     09/11/2013 at 33. His [carotid] artery was shattered and the
     doctors placed an artery from his leg into his neck. N.T.
     09/11/2013 at 33. At the time of the trial, Gonzalez was still on a
     number of medications as a result of the shooting, and had
     recently wrapped up a physical therapy regimen[]. N.T.
     09/11/2013 at 34-35. Dreke was taken from his home by
     ambulance to Temple University Hospital. N.T. 09/11/2013 at 65.
     Dreke was treated for his shoulder wound and released the same
     day. N.T. 09/11/2013 at 66.

           On a later date, a highway patrol officer pulled over a car
     containing four men. N.T. 09/12/2013 at 17. One of those men,
     John Bowie (“Bowie”), was in possession of a hand gun that was
     the weapon used in the shooting of Gonzalez and Dreke.12 N.T.
     9/12/2013 at 13-14, 20. Bowie was the other man on the corner
     with Appellant when the victims were shot. N.T. 09/12/2013 at
     41; N.T. 09/13/2013 at 61.

           12 Bowie testified that he never gave the gun to
           [Appellant], and that the gun never left his possession
           at any time. N.T. 09/12/2013 at 14.

           The U.S. Marshals located Appellant on the 1700 block of
     Edgely Street on August 24, 2010 at about 2:40 P.M. N.T,
     09/10/2013 at 14. The U.S. Marshals approached the residents
     and proceeded to announce their presence. N.T. 09/12/2013 at 7.
     At that time, Appellant appeared in a second story window where
     he attempted to throw a gun, which was in his possession, onto
     the roof of the residence. N.T. 09/12/2013 at 8-9. Appellant was
     unable to reach the roof, and the gun landed in the backyard
     where it was recovered by the U.S. Marshals. N.T. 09/12/2013 at
     9. Appellant managed to get on to the roof of the series of row
     homes where he remained for at least an hour. N.T. 09/12/2013
     at 12. The U.S. Marshals then lost sight of the Appellant. N.T.
     09/10/2013 at 15. With the assistance of a K-9 unit, they later
     located Appellant in the basement of a nearby home, hiding within

                                    -4-
J-S12009-20


      the wall of a small closet built to cover a heating unit. N.T.
      09/10/2013 at 15. The Philadelphia Police and U.S. Marshals could
      not get the Appellant to come out from the inside of the wall, and
      at that point Appellant was stunned using a stun-gun and
      restrained by a Sergeant Conway. N.T. 09/10/2013 at 15-16.

            Appellant testified in his own defense claiming that he was
      elsewhere at the time of the crime. N.T. 09/13/2013 at 68.
      Appellant claimed that he was visiting the mother of Paris Grant
      to offer his condolences, and, after that, he went to offer his
      condolences to the mother of Paris Grant’s child. N.T. 09/13/2013
      at 68-69. Appellant further testified that he was not in the
      possession of the gun owned by Bowie at the time of the crime.
      N.T. 09/13/2013 at 69-70. Additionally, he testified that the
      reason he evaded the police was because he was on the run from
      a parole violation stemming from a conviction in Delaware County,
      Pennsylvania. N.T. 09/13/2013 at 71.

           Appellant was convicted on September 16, 2013, and
      subsequently sentenced on February 28, 2014. See Docket CP-
      51-C[R]-0002604-2011, CP-51-CR-0002606-2011. …

Trial Court Opinion, 6/21/19, at 4-7.

      The trial court set forth the procedural history as follows:

            On August 24, 2010, Appellant was arrested and charged
      with Attempted Murder in the First Degree,1 Aggravated Assault,2
      Criminal Conspiracy,3 Possession of an Instrument of Crime,4
      Terroristic Threats with the Intent to Terrorize Another,5 Simple
      Assault,6 Recklessly Endangering Another Person,7 Firearms Not
      to be Carried Without a License [(a Violation of the Uniform
      Firearms Act) (“VUFA”)],8 and Carrying Firearms in Public in
      Philadelphia [(VUFA)].9

            1   18 Pa. C.S. § 901.

            2   18 Pa. C.S. § 2702.

            3   18 Pa. C.S. § 903.

            4   18 Pa. C.S. § 907.

            5   18 Pa. C.S. § 2706.

                                      -5-
J-S12009-20



              6   18 Pa. C.S. § 2701.

              7   18 Pa. C.S. § 2705.

              8   18 Pa. C.S. § 6106.

              9   18 Pa. C.S. § 6108.

              On September 10, 2013, Appellant’s case proceeded to a
        waiver trial on the charges of Attempted Murder, Aggravated
        Assault, and Criminal Conspiracy for one case, and Attempted
        Murder, Aggravated Assault, Criminal Conspiracy, Unlicensed
        Carrying of a Firearm, Carrying a Firearm in Public in Philadelphia,
        and Possession of an Instrument of a Crime. The charges of
        Terroristic Threats with the Intent to Terrorize Another, Simple
        Assault, Recklessly Endangering Another Person were nolle
        prossed prior to trial.

              On September 16, 2013, Appellant was found guilty of two
        (2) counts of Attempted Murder, two (2) counts of Aggravated
        Assault, two (2) counts of Criminal Conspiracy, Unlicensed
        Carrying of a Firearm, Carrying a Firearm in Public in Philadelphia,
        and Possession of an Instrument of a Crime.

             On February 28, 2014, Appellant was sentenced to an
        aggregate sentence of 2[8]½ to 5[7] years in prison.[3]
____________________________________________


3   The trial court sentenced Appellant as follows:

        So my sentence, based on all that and considering all that, [at CP-
        51-CR-0002604-2011] on the attempted murder, your sentence
        is ten to 20 years incarceration. On the aggravated assault, that
        merges with the attempted murder. I’m not making an additional
        sentence on that. Same thing with the criminal conspiracy, that
        merges as well. So there’s no additional sentence on that. On the
        firearms not to be carried without a license [(VUFA)], that
        sentence is three and-a-half to seven years incarceration. That
        would be consecutive. Carrying a firearm in public [(VUFA)], that’s
        two and-a-half to five years incarceration, and that’s consecutive.
        And possessing an instrument of crime, the sentence is two and-
        a-half to five years incarceration, and that will be consecutive. On



                                           -6-
J-S12009-20



              On February 09, 2015, Appellant filed a pro se PCRA
       [petition] alleging federal and state constitutional violations,
       ineffective assistance of counsel, and the unavailability of
       exculpatory evidence.

             On August 03, 2015, Appellant’s PCRA counsel John P.
       Cotter, was appointed by the court to represent Appellant.

              On October 05, 2015, Appellant, through counsel, filed an
       amended PCRA [petition] alleging that trial counsel was ineffective
       for failing to file a direct appeal in violation of Appellant’s State
       Constitutional rights.

             On September 20, 2017, Appellant, through counsel, filed a
       supplement to his amended PCRA petition alleging that Appellant’s
       pro se PCRA [petition] was timely filed according to 42 Pa. C.S.
       §§ 9543(a)(2)(vi), 9545(b)(1)(ii),(2).

              On November 27, 2017, Appellant, through counsel, filed a
       second supplement to his amended PCRA petition alleging that
       trial counsel was additionally ineffective for failure to preserve the
       issue of the Appellant’s timely filing of his first PCRA [petition].

              On February 21, 2018, Appellant, through counsel, filed a
       third supplement to his amended PCRA petition alleging that trial
       counsel was ineffective for failing to discuss Appellant’s rights to
       file post-sentence motions and appeals with Appellant.

             On April 19, 2018, Appellant, through counsel, filed a fourth
       supplement to his amended PCRA petition alleging that trial
       counsel was ineffective for failure to introduce the video of the
       incident showing the perpetrator’s face which would have shown
       that the perpetrator was not Appellant.


____________________________________________


       the attempted murder on the other transcript, that’s [CP-51-CR-
       0002606-2011], the sentence is ten to 20 years incarceration, and
       that’s consecutive.

N.T., 2/28/14, at 30-31. The remaining charges merged for sentencing
purposes. Id. at 31. Thus, Appellant’s aggregate sentence was twenty-eight
and one-half to fifty-seven years.

                                           -7-
J-S12009-20


             On June 27, 2018, this court granted Appellant’s PCRA
      petition reinstating Appellant’s appellate rights, and allowing
      Appellant to file post-sentence motions.

             On June 29, 2018, Appellant, through counsel, filed both a
      motion to reconsider sentence on the grounds that the sentence
      of 2[8]½ to 5[7] years was unreasonable, and a motion for a new
      trial based on the fact that Christopher Floyd was given a deal for
      his testimony in Appellant’s case, and that this fact was not
      disclosed to the defense.

           On October 31, 2018, Appellant’s motions to reconsider
      sentence and for a new trial were denied by operation of law.

            On November 05, 2018, Appellant, through counsel, filed his
      Notice of Appeal to the Superior Court.

            On November 09, 2018, this court ordered Appellant to file
      his Statement of Errors Complained of on Appeal pursuant to
      1925(b). Appellant subsequently filed his Concise Statement of
      Errors Complained of on Appeal on January 23, 2019.

Trial Court Opinion, 6/21/19, at 1-4.

      On appeal, Appellant presents the following issues for this Court’s

consideration:

      I. Is [A]ppellant is [sic] entitled to a new sentence hearing
      because the trial court used the minimum mandatory sentence
      statute to impose the sentence when this statute has been held to
      be unconstitutional and illegal?

      II. Is Appellant is [sic] entitled to a new sentence hearing when
      the sentence of 2[8]½ to 5[7] years in prison was a manifest
      abuse of discretion and unreasonable because there was no
      support on the record for a sentence outside or above the
      sentence guidelines and the trial court admitted impermissible
      hearsay evidence at the sentence hearing?

      III. Is [A]ppellant is [sic] entitled to a new trial because of after
      discovered evidence that would establish his innocence of the
      crimes?


                                      -8-
J-S12009-20


Appellant’s Brief at unnumbered 2.4

        In his first issue, Appellant asserts that his sentence was illegal because

the trial court relied on 42 Pa.C.S. § 9712, a mandatory-minimum sentencing

statute, which was declared unconstitutional. Appellant’s Brief at 15. After

review, we conclude that no relief is due.

        Initially, we note that Appellant did not raise this issue in his Pa.R.A.P.

1925(b) statement. Generally, any issue not raised in a Pa.R.A.P. 1925(b)

statement is deemed waived for appellate review. Commonwealth v.

Castillo, 888 A.2d 775, 780 (Pa. 2005); Commonwealth v. Lord, 719 A.2d

306, 309 (Pa. 1998). However, in this claim of error, Appellant challenges the

legality of his sentence, and issues related to the legality of a sentence cannot

be waived and may be considered sua sponte. Commonwealth v. Bezick,

207 A.3d 400, 402 n.2 (Pa. Super. 2019) (citations omitted). Accordingly, we

proceed with our discussion.

        The mandatory-minimum sentencing statute at issue, 42 Pa.C.S. §

9712,5 was held unconstitutional. Commonwealth v. Valentine, 101 A.3d

____________________________________________


4   For purposes of our disposition, we have renumbered Appellant’s issues.

5   Section 9712, provided, in part, as follows:

        (a) Mandatory sentence.-- . . . any person who is convicted in
        any court of this Commonwealth of a crime of violence as defined
        in section 9714(g) . . . , shall, if the person visibly possessed a
        firearm or a replica of a firearm, whether or not the firearm or
        replica was loaded or functional, that placed the victim in



                                           -9-
J-S12009-20


801, 812 (Pa. Super. 2014) (citing Alleyne v. United States, 570 U.S. 99

(2013) (holding that any fact that increases the mandatory minimum sentence

is an element that must be submitted to the jury and found beyond a

reasonable doubt)).       Herein, though, there is no evidence in the certified

record reflecting that the trial court relied on Section 9712 when fashioning

Appellant’s sentence.         The only time the Commonwealth mentioned a

“mandatory” sentence was in reference to attempted murder charges and the

aggravated assault charge. N.T., 2/28/14, at 26. However, the trial court did

not impose a five-year minimum sentence on either of the attempted murder

convictions or aggravated assault; the trial court imposed ten-year minimum

sentences on each of those convictions. N.T., 2/28/14, at 30-31.

       Additionally, Section 9712 never applied to VUFA charges. See 42

Pa.C.S. § 9714(g) (setting the forth the crimes of violence for which a

mandatory minimum sentence was applicable). Furthermore, the trial court

did not impose a five-year minimum on either VUFA conviction. Finally, the

trial court’s Sentencing Form, Certified Record at docket entry #26, states

that there is “no mandatory” sentence.


____________________________________________


       reasonable fear of death or serious bodily injury, during the
       commission of the offense, be sentenced to a minimum sentence
       of at least five years of total confinement notwithstanding any
       other provision of this title or other statute to the contrary. Such
       persons shall not be eligible for parole, probation, work release or
       furlough.

42 Pa.C.S. § 9712(a).

                                          - 10 -
J-S12009-20


      Before Section 9712 was declared unconstitutional, when that section

was implicated, “The court ha[d] no authority to impose a sentence less than

that required by a mandatory minimum provision established in statute.” 204

Pa. Code § 303.9(h).      In the case at bar, there is nothing in the record

reflecting that Appellant received a mandatory-minimum sentence for any of

his convictions, and there is no evidence that Section 9712 had any impact on

Appellant’s sentence.

      Nevertheless, we are cognizant that the trial court requested that we

remand this case. In its opinion, the trial court stated:

             Here, this Court gave consideration to mandatory minimum
      prescribed by 42 Pa. C.S.A. § 9712 specifically, when sentencing
      the Appellant [to an aggregate sentence] of 6 to 12 years
      imprisonment on the charges of firearms not to be carried without
      a license [(VUFA - 18 Pa.C.S. § 6106)], and Carrying a firearm in
      public [(VUFA - 18 Pa.C.S. § 6108)].

Trial Court Opinion, 6/21/19, at 8.

      However, the Commonwealth argues that the trial court is not permitted

to add analysis after the fact, i.e., the trial court may not state in its Pa.R.A.P.

1925(a) opinion that it relied on Section 9712, when that “fact” is not

supported by the record. Commonwealth Brief at 7-11. The Commonwealth

is correct. See Commonwealth v. Borrin, 12 A.3d 466 (Pa. Super. 2011)

(stating that “we cannot accept the trial judge’s proclamation of his own

intentions because those intentions were only known to the trial judge himself

and do not appear on the face of the sentencing transcript.”). When reviewing




                                      - 11 -
J-S12009-20


only the certified record on appeal, it does not support the trial court’s

position.

      Moreover, insofar as the trial court states that it relied on Section 9712

in crafting the aggregate VUFA sentences, we conclude that this statement is

a non sequitur.    If the mandatory minimum sentence was five years of

incarceration, but the trial court instead imposed minimum sentences of three

and one-half years and two and one-half years, respectively, there is no

support for the trial court’s statement. Section 9712 requires a mandatory

minimum sentence of five years of imprisonment, and Appellant did not

receive a five-year minimum for any conviction. Additionally, prior to being

held unconstitutional, mandatory minimums applied to individual offenses;

there is no authority for the proposition that a mandatory minimum can be

applied across an aggregated sentence.         42 Pa.C.S. § 9712(a); see also

Commonwealth v. McLaughlin, 574 A.2d 610, 617 (Pa. Super. 1990)

(separate applicable crimes require separate mandatory sentences).

      In sum, nothing in the record supports the conclusion that Section 9712

impacted Appellant’s sentence.      We decline the trial court’s invitation to

remand this matter as we discern no illegality in the sentence imposed.

Accordingly, Appellant is due no relief on his first issue.

      Next, Appellant avers that the trial court abused its discretion by

imposing a manifestly unreasonable sentence where there was no support for

a sentence outside or above the Sentencing Guidelines. Appellant also asserts


                                      - 12 -
J-S12009-20


that the trial court erred in admitting impermissible hearsay evidence at the

sentence hearing. Appellant’s Brief at 11-12.

      Appellant’s issues challenge the discretionary aspects of his sentence.

We note that “[t]he right to appellate review of the discretionary aspects of a

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for allowance

of appeal.   Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.

2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

            An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a four-
      part test:

                    We conduct a four-part analysis to determine:
             (1) whether appellant has filed a timely notice of
             appeal, see Pa.R.A.P. 902 and 903; (2) whether the
             issue was properly preserved at sentencing or in a
             motion to reconsider and modify sentence, see
             Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
             fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
             is a substantial question that the sentence appealed
             from is not appropriate under the Sentencing Code,
             42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

      Here, the first three requirements of the four-part test are met:

Appellant filed a timely appeal; Appellant preserved the sentencing issues at

                                     - 13 -
J-S12009-20


the sentencing hearing6 or in his nunc pro tunc post-sentence motion;7 and

Appellant included a statement raising this issue in his brief pursuant to Rule

2119(f).      Moury, 992 A.2d at 170.              Therefore, we determine whether

Appellant raised a substantial question.

        “We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.”            Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted

only when the appellate court determines that there is a substantial question

that    the   sentence    is   not   appropriate      under   the   Sentencing   Code.

Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006).                        A

substantial question exists where an appellant sets forth a plausible argument

that the sentence violates a particular provision of the Sentencing Code or is

contrary to the fundamental norms underlying the sentencing process. Id.

        In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the trial court

abused its discretion when it imposed sentences outside the aggravated range



____________________________________________


6 In its brief, the Commonwealth asserts that Appellant failed to preserve the
hearsay issue relative to the discretionary aspects of Appellant’s sentence.
Commonwealth’s Brief at 16, n.4. We disagree. An appellant may preserve
a challenge to the discretionary aspects of a sentence either by raising it at
the time of sentencing or in a timely filed post-sentence motion.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013). The record
reveals that Appellant objected to the hearsay at the sentencing hearing.
N.T., 2/28/14, at 16. Accordingly, we do not find this issue waived.

7   Post Sentence Motions Nunc Pro Tunc, 6/29/18.


                                          - 14 -
J-S12009-20


of the Sentencing Guidelines and ordered the sentences to run consecutively.

Appellant avers that the trial court failed to consider relevant sentencing

factors, mitigating circumstances, and rehabilitative needs, and instead

imposed unreasonable consecutive sentences. Appellant’s Brief at 3-4.

      Appellant’s issues raise substantial questions for our review.          See

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (finding a

substantial question where the appellant averred that the trial court failed to

consider certain sentencing factors in conjunction with an assertion that the

sentence imposed was excessive); see also Commonwealth v. P.L.S., 894

A.2d 120, 127 (Pa. Super. 2006) (claim that court relied on impermissible

factors, such as uncharged criminal conduct, raises substantial question); see

also Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)

(“Where the appellant asserts that the trial court failed to state sufficiently its

reasons for imposing sentence outside the sentencing guidelines, we will

conclude that the appellant has stated a substantial question for our review.”).

Because Appellant’s sentencing issues are interrelated, we address them

concurrently.

      It is well settled that when the trial court has the benefit of a

presentence investigation (“PSI”) report, it is presumed that the court was

both aware of and appropriately weighed all relevant information contained

therein. Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002). Where

the trial court imposes a sentence outside of the Sentencing Guidelines, “the


                                      - 15 -
J-S12009-20


court shall provide a contemporaneous written statement of the reason or

reasons for the deviation from the guidelines.    Failure to comply shall be

grounds for vacating the sentence and resentencing the defendant.” Rodda,

723 A.2d at 214 (quoting 42 Pa.C.S. § 9721(b)). “We have interpreted these

provisions to require, at minimum, that when a court deviates from the

sentencing guidelines, it must indicate that it understands the suggested

sentencing range.” Id. (citation omitted). Therefore, when deviating from

the Sentencing Guidelines, the trial court must indicate its understanding of

the suggested ranges. Id. However, there is no requirement that the trial

court must state “magic words” in a verbatim recitation of the Sentencing

Guideline’s ranges to satisfy this requirement. Id. at 215. When imposing

sentence, the trial court has rendered a proper “contemporaneous statement”

where “the record demonstrates with clarity that the court considered the

Sentencing Guidelines in a rational and systematic way and made a

dispassionate decision to depart from them.” Id. at 216.

      After review, we discern no abuse of discretion in the sentences

imposed.   At Appellant’s sentencing, the trial court was apprised of the

Sentencing Guidelines and the maximum sentences available, stated that it

had reviewed and considered the PSI report, noted the injuries to the victims,

relayed its duty to protect the community, and concluded that Appellant was

incapable of rehabilitation. N.T., 2/28/14, at 6-8, 26-30. The trial court was

aware of the appropriate sentencing factors and mitigating evidence via its


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consideration of the PSI report. Griffin, 804 A.2d at 8; Rodda, 723 A.2d at

214-216. “[I]t 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.”

Griffin, 804 A.2d at 8. Thus, it is evident that the trial court considered the

Sentencing Guidelines and made a dispassionate decision to depart therefrom.

Rodda, 723 A.2d at 215-216.

      Finally, to the extent that Appellant is unhappy with the duration of his

incarceration due to the consecutive nature of the sentences, the decision to

order sentences to run concurrently or consecutively is left to the discretion

of the trial court.   Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa.

Super. 2018). It is well settled that an appellant is not entitled to a “volume

discount” for his crimes by having all of his sentences run concurrently.

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). “The

imposition of consecutive, rather than concurrent, sentences may raise a

substantial question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.”      Moury, 992 A.2d at 171-172 (citation

omitted). Herein, Appellant has not asserted any “extreme circumstances.”

Radecki, 180 A.3d at 470. We conclude that the trial court acted within its

discretion in imposing consecutive sentences after reviewing the facts of the

case, Appellant’s history, relevant sentencing factors, and the PSI report.




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        With respect to the trial court admitting hearsay regarding uncharged

criminal activity, we conclude there was no abuse of discretion. We point out

that the entirety of Appellant’s argument concerning hearsay is as follows:

        The trial court over the objection of trial defense counsel also
        considered impermissible hearsay evidence from a Detective who
        testified a suspect in pharmacy robberies that the detective was
        interviewing said that the defendant was involved in those
        robberies.    The trial court should not have considered this
        testimony because it was hearsay. Pa. R. E. 802.

Appellant’s Brief at 12 (verbatim).

        The record reflects that Detective Joseph Murray testified during

sentencing about a separate investigation into home invasions and robberies

at pharmacies in Southwest Philadelphia where one suspect identified

Appellant as a participant in those crimes. N.T., 2/28/14, at 17. Appellant’s

counsel objected to this statement, and the trial court overruled the objection.

Id. Detective Murray then testified that the United States Attorney sought to

charge Appellant in those robberies, but Appellant was never charged. Id.

Detective Murray stated that he had not met Appellant, “but his associates

who I arrested are -- violence wise, the worst group of people I’ve ever come

across in 15 years in law enforcement.” Id.8

        Appellant avers that hearsay was admitted in violation of Pa.R.E. 802.

Appellant’s Brief at 12. However, it is well settled that a sentencing hearing

is not a trial, and the court is not bound by the rules of evidence applicable to


____________________________________________


8   There was no objection to this characterization.

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trials. Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999).

The court may receive any relevant information for the purposes of fashioning

a sentence. Id. Thus, hearsay concerning uncharged criminal conduct may

be permitted at a sentencing hearing. Id.; see also P.L.S., 894 A.2d at 130

(“the fact that a defendant is guilty of prior criminal conduct for which he

escaped prosecution has long been an acceptable sentencing consideration”).

Accordingly, we discern no abuse of discretion in the trial court overruling

Appellant’s objection and admitting Detective Murray’s statement.

      In his final issue, Appellant asserts that he is entitled to a new trial

because there is after-discovered evidence establishing his innocence.

Appellant’s Brief at 16. Specifically, Appellant avers that the after-discovered

evidence is that Cristopher Floyd (“Floyd”), a witness for the Commonwealth

at Appellant’s trial, received a lenient sentence after pleading guilty to

aggravated assault and conspiracy. Id. Appellant claims that he discovered

that at Floyd’s sentencing hearing, the trial court indicated that there was an

off-the-record discussion where the trial court agreed not to send Floyd back

to prison if he would accept responsibility and plead guilty. Id. at 17. As

discussed below, there is no mention of any consideration from the

Commonwealth to Floyd relating to Appellant’s case.

      “A post-sentence motion for a new trial on the ground of after-

discovered evidence must be filed in writing promptly after such discovery.”

Pa.R.Crim.P. 720(C).     “To obtain a new trial based on after-discovered


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evidence, the defendant must prove, by a preponderance of the evidence, that

the evidence: (1) could not have been obtained before the conclusion of trial

by the exercise of reasonable diligence; (2) is not merely corroborative or

cumulative; (3) will not be used solely to impeach a witness’s credibility; and

(4) would likely result in a different verdict.” Commonwealth v. Murray,

174 A.3d 1147, 1153 (Pa. Super. 2017) (citing Commonwealth v. Pagan,

950 A.2d 270, 292 (Pa. 2008); Pa.R.Crim.P. 720(C)).

      Appellant asserts that the instant matter is similar to the after-

discovered evidence in Commonwealth v. Perrin, 108 A.3d 50 (Pa. Super.

2015). Appellant’s Brief at 17. We disagree.

      In Perrin, the appellant was granted a new trial based on after-

discovered evidence. Therein, the appellant learned that a witness for the

prosecution testified against the appellant pursuant to an agreement with the

federal government. Perrin, 108 A.3d at 51. This evidence was discovered

after the appellant was convicted and sentenced. Id. In the agreement, the

witness was offered a significantly lighter sentence on federal charges in

exchange for his cooperation with the prosecution in the appellant’s case. Id.

      In the case at bar, there is no evidence that Floyd cooperated with the

prosecution of Appellant. In fact, at Appellant’s trial, Floyd was asked if he

was cooperating with the Commonwealth in exchange for favorable

consideration in his case, and Floyd responded that there was no deal with the

prosecution.   N.T., 9/12/13, at 44, 82-83.      Moreover, Assistant District


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Attorney Erin Boyle addressed this issue the following day and reiterated that

there was no deal between Floyd and the Commonwealth. N.T., 9/13/13, at

26-30. Thus, this case is readily distinguishable from Perrin.

      Moreover, even if the trial court in Floyd’s case made such a statement

to Floyd, it has no impact on Appellant’s case. As noted, the record in the

instant case reflects that there was no sentencing agreement or promise of

leniency made by the Commonwealth to Floyd in exchange for his testimony.

The fact that the trial judge in Floyd’s case may have asked Floyd to take

responsibility in exchange for sentencing consideration in his own case has

absolutely no bearing on Appellant’s case. Appellant has not substantiated

how his allegation would be used as anything other than impeachment

evidence, and he has not established that the statement in Floyd’s case would

result in a different verdict in his own case.   Murray, 174 A.3d at 1153.

Therefore, we conclude that Appellant has failed to satisfy the requirements

for after-discovered evidence. Id.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Colins joins this Memorandum.

      Judge McCaffery concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/20




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