J-S50033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL RUTH

                            Appellant                  No. 2627 EDA 2014


              Appeal from the Judgment of Sentence June 5, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0008965-2011


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED SEPTEMBER 23, 2015

       Appellant Michael Ruth appeals from the judgment of sentence entered

in the Montgomery County Court of Common Pleas on June 5, 2014 following

his jury trial convictions for corrupt organizations, dealing in unlawful

proceeds, insurance fraud, identity theft, and conspiracy to commit

insurance fraud and identity theft.1 We affirm.

       The trial court set forth the relevant facts as follows:

          Over a nearly two-year period beginning in early 2010,
          [Appellant’s] father, Richard Ruth [(“co-defendant”)], a
          then-practicing physician, unlawfully prescribed tens of
          thousands of pills from his office in Souderton,
          Montgomery County, acting as a source of Oxycodone and
          Adderall for drug-addicted patients. [Appellant] served as
          his father’s office manager during this period.
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1
  18 Pa.C.S. §§ 911(b)(2), 5111(a)(1), 4117(a)(2), 4120(a), and 903(c),
respectively.
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          Appellant and his father were co-defendants at a joint trial.
          A jury found [Appellant] guilty on November 22, 2013, of
          corrupt organizations, dealing in unlawful proceeds,
          insurance fraud, identity theft[,] and conspiracy to commit
          insurance fraud and identity theft.

          Prior to sentencing, one of [co-defendant’s] two attorneys,
          Gregory Noonan, was charged in Montgomery County with
          possession of a controlled substance with intent to deliver
          and related offenses. [Appellant] was represented at trial
          by Vincent Cirillo, Esquire.

          [On June 5, 2014, Appellant] appeared at sentencing with
          new counsel.[2] [The trial] court sentenced [Appellant] to
          two to five years in prison on the corrupt organizations
          offense, two to five years in prison for dealing in unlawful
          proceeds, six to 12 months in prison for conspiracy to
          commit insurance fraud, one to five years in prison for
          conspiracy to commit identity theft, one to five years in
          prison for identity theft and six to 12 months in prison for
          insurance fraud. The sentences, which were set to run
          consecutively, were set in the aggravated range and
          aggregated to seven to 22 years in prison.

          [Appellant] filed a post-sentence motion. He asserted his
          sentence was excessive under the circumstances, the
          prosecutor violated a duty to disclose that Noonan had
          been under investigation at or around the time of trial and
          he was denied the effective assistance of counsel because
          Noonan had an alleged conflict of interest. [The trial]
          court denied the motion without a hearing.



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2
  On June 5, 2014, the day of sentencing, new counsel filed a motion for
extraordinary relief, seeking a new trial because Noonan was being
investigated for drug-related offenses at the time of Appellant’s trial.
Defendant’s Motion for Extraordinary Relief, filed June 5, 2014. On June 6,
2014, the trial court denied this motion. Order, 6/6/2014.

At sentencing and on appeal, Appellant and his father are both represented
by Francis J. Genovese, Esq. of Mullaney & Mullaney.



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Pa.R.A.P. 1925(a) Opinion, 11/12/2014 (“Opinion”), at 1-3. Appellant filed a

timely notice of appeal.    Both Appellant and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following issues on appeal:

         Did the [t]rial [c]ourt err in denying [Appellant’s] [p]ost[-
         s]entence [m]otion for an [e]videntiary [h]earing (in
         support of the [p]ost[-s]entence [m]otion for a [n]ew
         [t]rial), where his request for [p]ost-s]entence [r]elief had
         at least arguable merit, on its face, thus necessitating that
         a hearing be held to more fully develop the record with
         respect to the violation of [Appellant’s] Due Process rights
         as guaranteed by the Fourteenth Amendment to the United
         States Constitution?

         Did the [t]rial [c]ourt err in denying [Appellant’s] [p]ost[-
         s]entence [m]otion for a [n]ew [t]rial, where the
         Commonwealth violated [Appellant’s] Due Process rights
         as guaranteed by the Fourteenth Amendment to the United
         States Constitution, when it failed to disclose to the Court
         that the District Attorney’s Office was actively investigating
         [l]ead [t]rial [c]ounsel for his involvement in the illegal
         distribution of narcotics while he was representing the [co-
         defendant] at the trial in the above-captioned matter?

         Did the [t]rial [c]ourt abuse its discretion in sentencing
         [Appellant] to two (2) consecutive terms of two (2) to five
         (5) years of incarceration; followed by two (2) consecutive
         terms of one (1) to five (5) years of incarceration; followed
         by two (2) consecutive terms of six (6) to twelve (12)
         months of incarceration in a State Correctional Institution,
         each of which constituted a sentence in the aggravated
         range of the Sentencing Guidelines, where the charges to
         which he was found guilty were not separate and distinct
         incidents of criminality, but rather one episodic and
         continuing course of criminal conduct?

Appellant’s Brief at 5-6.




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      Appellant’s first two issues are based on the same underlying claim,

that the Commonwealth violated Appellant’s due process rights under the

Fourteenth Amendment to the United States Constitution when it failed to

inform the trial court and Appellant that the District Attorney’s Office was

investigating Noonan, his father’s attorney, for distribution of narcotics.

Appellant’s Brief at 21-22, 32-34, 37-39.    Appellant claims the trial court

erred when it denied his post-sentence motion raising the due process claim

and erred in failing to hold an evidentiary hearing on the claim. Id. at 33,

39.

      We review a trial court’s denial of a post-sentence motion requesting a

new trial for abuse of discretion.   Commonwealth v. Brooker, 103 A.3d

325, 332 (Pa.Super.2014). The trial court has discretion as to whether to

conduct a hearing on a post-sentence motion. See Pa.R.Cr.P. 720(b)(2)(B)

(“The judge shall also determine whether a hearing or argument on the

motion is required, and if so, shall schedule a date or dates certain for one

or both.”). An abuse of discretion “is not merely an error of judgment, but if

in reaching a conclusion the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will . . . discretion is abused.” Brooker, 103 A.3d at

332 (quoting Commonwealth v. Fortenbaugh, 69 A.3d 191, 193

(Pa.2013)).

      Appellant claims the Commonwealth had a duty to disclose to the trial

court and/or Appellant that Noonan, his co-defendant’s counsel, was under

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investigation for involvement in illegal drug trafficking. Appellant’s Brief at

33.   He notes that the crimes for which Noonan was charged occurred on

November 23, 2013, the day after a jury convicted Appellant of the afore-

mentioned charges, and on December 20, 2013, and claims the investigation

began before or during Appellant’s trial. Id. at 9-10.     He maintains that,

because Noonan was under investigation for illegal activities similar to the

crimes for which Appellant’s co-defendant was charge, Noonan had a conflict

of interest, which prevented Appellant from receiving a fair trial. Id. at 21-

22, 29, 33.

      This claim is meritless.    Noonan was counsel for Appellant’s co-

defendant and owed no duty to Appellant, and no conflict of interest

between Appellant and co-defendant’s counsel existed.        Appellant’s claim

the Commonwealth had a duty to inform the court and/or Appellant because

Noonan was “lead counsel” is meritless and, as the trial court found, the

record belies this claim.

      The trial court found:

         [Appellant] had his own counsel throughout the pre-trial
         and trial stages of this case, and the record is replete with
         references by defense counsel to which defendant they
         represented. See, e.g., N.T. 11/19/13, p. 38 (“Good
         morning, ladies and gentlemen. My name is Vincent Cirillo,
         and I represent [Appellant], [co-defendant’s] son.”); Id. at
         84 (“My name is Gregory Noonan, and I represent [co-
         defendant].”); N.T. 11/21/13, p. 45 (“My name is Gregory
         Noonan. I, along with John Walfish, represent [co-
         defendant].”); Id. at 57 (“Lieutenant, my name is Vince
         Cirillo, and I represent [Appellant].”); N.T. 11/22/ 13, p.
         154 (“Ladies and Gentlemen of the Jury, as you know, I


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          along with my partner John Walfish, we represent [co-
          defendant].”).

          Noonan never entered his appearance on behalf of
          [Appellant]. Attorney Cirillo made an opening statement
          on     behalf   of   [Appellant],  examined       witnesses
          independently of counsel for [co-defendant] and gave a
          closing argument on behalf of his client.         As such,
          [Appellant] does not have standing to raise a claim related
          to his co-defendant’s attorney.9
              9
                Defendant cites Hoffman v. Leeke, 903 F.2d 280
              (4th Cir.1990), for the proposition that the
              ineffective assistance of lead counsel is not cured by
              the presence of co-counsel. His reliance on this case
              is misplaced. The record here does not support the
              proposition that Noonan was lead counsel for both
              defendants. Moreover, in Hoffman, the attorney
              represented two defendants in a joint murder trial
              and used co-counsel to assist him with examining
              certain witnesses. That is not the case here.

Opinion, at 5-6.       The trial court acted within its discretion in denying

Appellant’s motion for a new trial.3



____________________________________________


3
  Further, the trial court did not err when it found, even if Noonan owed a
duty to Appellant, the claim is meritless. Even if we assume a conflict of
interested existed, the prosecutor did not violate Appellant’s Fourteenth
Amendment due process right to a fair trial when it failed to disclose to the
trial court or Appellant that Appellant’s co-defendant’s attorney was under
criminal investigation, particularly because no trial witness possessed
information relevant to the investigation of Appellant’s attorney, the
investigation did not implicate Appellant, and the Commonwealth had not
yet established whether Appellant’s co-defendant’s counsel had engaged in
any illegal activity. See, e.g., United States v. Morelli, 169 F.3d 798, 812
(3d Cir.1999)(prosecutor’s failure to inform court of conflict does not require
reversal); United States v. Cerro, 872 F.2d 780, 787 (7th Cir.1989)
(prosecutor not constitutionally required to advise court of potential conflict
of interest).



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      Further, the trial court acted within its discretion in denying Appellant’s

request for an evidentiary hearing. The trial court concluded:

         Here, disposition of the post-sentence motion did not
         necessitate a hearing. As discussed more fully below,
         [Appellant], who was represented by his own counsel,
         lacks standing to assert a claim that the prosecution owed
         a duty to disclose an investigation into Noonan; even if he
         had standing, he presented no controlling authority for the
         existence of such a duty. Similarly, his motion did not
         present a meritorious basis for [the trial] court to upset
         the sentence imposed. [The trial] court, therefore, did not
         abuse its discretion in disposing of the post-sentence
         motion without a hearing.

Opinion, 11/12/2015, at 4 (internal footnotes omitted). We find no abuse of

discretion in the trial court’s determination.

      Appellant’s third claim challenges the discretionary aspects of his

sentence.

      “Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super.2000)).       Before this Court can address a discretionary

challenge, we must engage in a four-part analysis to determine:

         (1) whether the appeal is timely; (2) whether Appellant
         preserved his issue; (3) whether Appellant’s brief includes
         a concise statement of the reasons relied upon for
         allowance of appeal with respect to the discretionary
         aspects of sentence; and (4) whether the concise
         statement raises a substantial question that the sentence
         is appropriate under the sentencing code.




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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see

also Allen, 24 A.3d at 1064.

      Appellant timely filed his notice of appeal and included a concise

statement of reasons in his appellate brief.              Further, he raised an

excessiveness claim in his post-sentence motion. His post-sentence motion,

however, did not raise a claim that the trial court failed to consider

mitigating factors or Appellant’s rehabilitative needs.

      Appellant’s brief contains a statement of reasons relied upon for

allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure

2119(f).   Appellant’s Brief at 16-20.     Appellant maintains the trial court

failed to properly consider the information contained in the pre-sentence

investigation report, including Appellant’s history and characteristics and his

rehabilitative needs. Id. at 18. He argues the trial court “focused solely on

the serious nature of the offense(s) and the suffering inflicted upon the

victim(s) as justification for imposing six consecutive, aggravated range

sentences upon Appellant.” Id. at 19. He notes the trial court sentenced

Appellant to six consecutive, aggravated range sentences, for a total

aggregate sentence of not less than seven nor more than twenty-two years

of   imprisonment.     Id.     He   argues   the   sentence    was   “manifestly

unreasonable, unduly excessive and extremely vindictive; considering that

the charges to which he was found guilty were not separate and distinct




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incidents of criminality, but rather one episodic and continuing course of

criminal conduct.” Id. at 20.

      Although    Appellant’s   post-sentence    motion    and   Rule      1925(b)

statement challenge the sentence as excessive, they do not challenge the

failure to consider mitigating circumstances. See 1925(b) Statement (“Did

the Trial Court abuse its discretion in sentencing Defendant to two (2)

consecutive terms of two (2) to five (5) years of incarceration; followed by

two (2) consecutive terms of one (1) to five (5) years of incarceration;

followed by two (2) consecutive terms of six (6) to twelve (12) months of

incarceration in a State Correctional Institution, each of which constituted a

sentence in the aggravated range of the Sentencing Guidelines, where the

charges to which he was found guilty were not separate and distinct

incidents of criminality, but rather one episodic and continuing course of

criminal conduct?”); Defendant’s Post-Sentence Motion for Relief (arguing:

imposition of consecutive sentences in aggravated range was excessive and

unreasonable; sentence cruel and unusual due to age, lack of prior history

and conviction for non-violent offense; and weighing of factors favors a

lesser sentence).   Appellant, therefore, waived his argument that the trial

court failed to consider mitigating factors or his rehabilitative needs.

      We next must address whether his claim that the trial court abused its

discretion when it imposed consecutive, aggravated range sentences raises a

substantial question. “The determination of whether a particular issue raises

a substantial question is to be evaluated on a case-by-case basis.”

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Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting

Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)).                      A

substantial question exists where a defendant raises a “plausible argument

that the sentence violates a provision of the sentencing code or is contrary

to the fundamental norms of the sentencing process.” Commonwealth v.

Naranjo, 53 A.3d 66, 72 (Pa.Super.2012) (quoting Commonwealth v.

Crump, 995 A.2d 1280, 1282 (Pa.Super.2010)).

       A claim of excessiveness based on the imposition of consecutive

sentences does not raise a substantial question, unless the imposition of

consecutive sentences raises the “aggregate sentence to, what appears upon

its face to be, an excessive level in light of the criminal conduct at issue in

the   case.”    Commonwealth           v.      Mastromarino,   2   A.3d   581,   587

(Pa.Super.2010).4 Because the aggregate sentence imposed, 7 to 22 years’

imprisonment does not facially appear excessive in light of the criminal

conduct for which Appellant was convicted, Appellant’s claim that the trial

court abused its discretion by imposing consecutive sentences in the

____________________________________________


4
  An excessiveness claim or challenge to consecutive sentences may raise a
substantial question when raised in conjunction with a claim that the court
failed to consider mitigating factors or rehabilitative needs.           See
Commonwealth v. Caldwell, --- A.3d ---, 20115 WL 3444594, at *4
(Pa.Super. May 29, 2015) (challenge to consecutive sentences as unduly
excessive, together with claim court failed to consider rehabilitative needs
raised substantial question); Commonwealth v. Raven, 97 A.3d 1244,
1253 (Pa.Super.2014) (excessiveness claim, together with claim court failed
to consider mitigating factors, raised substantial question).



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aggravated range of the sentencing guidelines does not raise a substantial

question.

     Further, even if we were to address the merits of the sentencing claim,

the claim fails. “Sentencing is a matter vested within the discretion of the

trial court and will not be disturbed absent a manifest abuse of discretion.”

Crump, 995 A.2d at 1282 (citing Commonwealth v. Johnson, 967 A.2d

1001 (Pa.Super.2009)). “An abuse of discretion requires the trial court to

have acted with manifest unreasonableness, or partiality, prejudice, bias, or

ill-will, or such lack of support so as to be clearly erroneous.”   Id. (citing

Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)).

     “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d

1247 (Pa.Super.2006)). Further, “where the trial court is informed by a pre-

sentence report, it is presumed that the court is aware of all appropriate

sentencing factors and considerations.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519

Pa. 88, 101–102, 546 A.2d 12, 18–19 (1988)).

     The trial court found:

        As for the imposition of consecutive sentences, the
        aggregate sentence is not excessive given the harm
        inflicted by [Appellant] upon numerous individuals, families

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        and the community as a whole. A lesser sentence would
        have depreciated the seriousness of his devastating
        crimes. [Appellant’s] suggestion that his crimes were not
        separate episodes that piled more and more harm upon his
        patients demonstrates his continued lack of remorse for his
        actions and a self-serving characterization of the ample
        trial evidence to the contrary.[] . . .

        [The trial court], which had the benefit of a pre-sentence
        investigation report, amply set forth on the record the
        bases for the sentence imposed. (N.T. 6/5/ 14, pp. 27-32).
        [The trial court] also stated that it imposed aggravated-
        range sentences because there were multiple convictions
        and multiple victims, the crimes involved drug trafficking,
        defendant showed no remorse and the victims were in the
        care of a medical office managed by [Appellant].
        Therefore, the claim that [the trial court] erred in
        fashioning its sentence is without merit.

Opinion, at 8-9.   After a thorough review of the sentencing transcript, we

find the trial court did not abuse its discretion in sentencing Appellant to

consecutive, aggravated range sentences.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2015




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