J. S66044/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
RONALD CHARLES PURVIS,                  :         No. 3230 EDA 2018
                                        :
                       Appellant        :


        Appeal from the Judgment of Sentence Entered July 6, 2018,
           in the Court of Common Pleas of Montgomery County
             Criminal Division at No. CP-46-CR-0007567-2017


BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       Filed:May 21, 2020

      Ronald Charles Purvis appeals from the July 6, 2018 judgment of

sentence entered by the Court of Common Pleas of Montgomery County after

a jury convicted him of two counts each of delivery of a controlled substance,

possession of drug paraphernalia, and possession of a controlled substance,

and one count each of drug delivery resulting in death, recklessly endangering

another person (“REAP”), hindering apprehension or prosecution, tampering

with or fabricating physical evidence, and abuse of a corpse.1 The trial court




135 P.S. §§ 780-113(a)(30), (32), and (16); 18 Pa.C.S.A. §§ 2506(a), 2705,
5105(a), 4910, and 5510, respectively.
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imposed an aggregate sentence of 18-47 years’ imprisonment.2 After careful

review, we affirm.

     The trial court set forth the following factual history:

           On March 29, 2017, . . . Kevin High was released from
           the Montgomery County Correctional Facility after
           serving a sentence. He left the prison by bus and
           travelled directly to the home of his drug supplier,
           [appellant], located at 376 E. High Street,
           Apartment 9, in the Borough of Pottstown. Two
           individuals, Jennifer Wiegand and [appellant], resided
           there.

           As described by witnesses and corroborated by video
           surveillance from around appellant’s apartment, the
           events of the afternoon and evening began at
           approximately 3:09 PM on March 29, 2017, when
           Kevin High arrived at appellant’s apartment at
           376 E. High Street in Pottstown after being released
           from jail earlier that day. He greeted appellant when
           he got there, and then entered appellant’s apartment.
           A    number       of   other   individuals,  including
           Jennifer Wiegand, Shemar Reed, David Hillier, and a
           friend of Ms. Wiegand’s named Jessica, were at the
           apartment as well.        Ms. Wiegand testified that
           appellant handed Mr. High a wax paper bag of
           something that he snorted, and, in addition, gave
           Mr. High something from a small metal container that
           normally had methamphetamine in it, which the
           victim snorted. Mr. High took both drugs relatively
           close in time to each other. Mr. High then asked []
           appellant what the drugs were, and appellant failed to
           respond directly. Soon after he took the drugs,
           Mr. High sat down on the couch and started to fall
           asleep. When others attempted to speak to him, he
           would mumble or nod.          Mr. High’s complexion
           changed dramatically.       He became pale and his

2 The trial court sentenced appellant to consecutive sentences of 15-40 years’
imprisonment for drug delivery resulting in death, 2-5 years’ imprisonment
for hindering apprehension or prosecution, and 1-2 years’ imprisonment for
abuse of a corpse. (Notes of testimony, 7/6/18 at 40-41.)


                                     -2-
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              breathing became noisy, labored, and irregular. As a
              result of Mr. High’s obvious physical distress,
              appellant took out his blood pressure monitor and
              took Mr. High’s blood pressure. No one was able to
              rouse Mr. High. Appellant then took a “shock collar,”
              typically used on a dog, and placed it around
              Mr. High’s neck. He then shocked the victim in an
              attempt to wake him up. Mr. High did not respond or
              wake up. At 4:59 PM, “Jessica”[3] got a glass of water
              to splash on Mr. High to try to wake him up, to which
              Mr. High again did not respond. When it became clear
              that the victim was unconscious and he could not be
              awakened from any of these stimuli, appellant called
              a neighbor, Mike Pascal, at approximately 5:47 PM, to
              help him remove Mr. High from his apartment. With
              Mr. Pascal’s assistance, the pair moved the victim
              from the couch in the living room to the hallway area
              outside of appellant’s apartment door. Appellant left
              the victim’s unconscious body on the floor, in a
              hallway of the building, at the top of a flight of stairs.
              Appellant claimed at the time that “. . . he didn’t want
              Kevin to wake up alone in the apartment; so he
              wanted to move him outside so he could wake up and
              just leave.” At this point, Mr. High was still alive.

              At approximately 9:11 PM, [] appellant, Ms. Wiegand,
              and Jessica left appellant’s apartment and went to
              Walmart. By this time all the other guests had left
              appellant’s apartment.     Mr. High was still lying
              unconscious in the hallway outside of appellant’s
              apartment.    Appellant, Ms. Wiegand, and Jessica
              checked out of Walmart at 11:22 PM, stopped for
              fast-food and returned to appellant’s apartment.
              When they returned home, appellant stayed in the car
              and told Ms. Wiegand to go check on Mr. High.
              Ms. Wiegand found him where they left him, outside
              of the apartment door on the landing in the hallway.
              At that time, Mr. High was obviously deceased.
              Ms. Wiegand testified that Mr. High looked pale and
              that she did not feel any breath or pulse. She went
              back outside and told appellant that the victim had
              died. Appellant instructed her to get Jess[ica] and go

3   Jessica’s last name does not appear in the certified record.


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             to Wawa. The two women left [] appellant alone at
             his apartment with the deceased body of the victim
             lying at the top of the stairs in the hallway.
             Ms. Wiegand went to Wawa and waited there in the
             car until appellant told her she could come back.
             When Ms. Wiegand returned from Wawa, appellant
             was at his apartment with a neighbor named
             Floyd Wilkins. Mr. Wilkins dragged Mr. High’s dead
             body from the landing, down the steps, to make it look
             like he “. . . just walked out there himself.” Once the
             victim’s body was dumped on the bottom of the stairs,
             appellant permitted Ms. Wiegand to call 911.

             On March 30, 2017, the Pottstown Police Department
             responded to Apartment 9 at 376 E. High Street,
             Pottstown, Pennsylvania for a report of an
             unconscious subject. At approximately 3:15 AM,
             officers arrived at the scene and found the victim,
             Kevin High, deceased in the vestibule at the bottom
             of the stairway leading up to Apartment 9. The
             Pottstown Police Department commenced an
             investigation into the suspicious death of Kevin High
             culminating in their filing charges against appellant on
             September 19, 2017.

Trial court opinion, 2/21/19 at 4-7 (citations to the record and extraneous

capitalization omitted).

        On April 18, 2018, a jury convicted appellant of the aforementioned

crimes. Following his conviction and imposition of sentence, appellant filed a

timely post-sentence motion, which the trial court denied on October 15,

2018.

        Appellant filed a timely notice of appeal.     The trial court ordered

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court

subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a).


                                      -4-
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        Appellant raises the following issues for our review:

              [1.]   Did the trial court err in denying [appellant’s]
                     motion to suppress where police conducted a
                     custodial    interrogation    without   issuing
                     Miranda[ ] warnings?
                               4



              [2.]   Did the trial court err in denying [appellant’s]
                     motion for a mistrial where jury instructions did
                     not cure the prejudice?

              [3.]   Was the evidence sufficient to convict
                     [appellant] of abuse of a corpse where the
                     Commonwealth’s only eyewitness testified that
                     a man named Floyd was the person who
                     committed the acts giving rise to the charge?

              [4.]   Did the trial court err in assigning costs of
                     prosecution without a determination of
                     [appellant’s] ability to pay where he is indigent?

              [5.]   Was the sentence manifestly unjust and did the
                     court below abuse its discretion by sentencing
                     [appellant]    significantly   outside   of  the
                     guidelines on the basis of incorrect facts and
                     duplicative criteria giving appropriate weight to
                     mitigating factors?

Appellant’s brief at ix.5

                                         I.

        In his first issue, appellant argues that the trial court erred when it

denied his motion to suppress, in which he alleged that the Commonwealth

unlawfully obtained evidence in violation of his Miranda rights. (Appellant’s




4   Miranda v. Arizona, 384 U.S. 436 (1966).

5   We have reordered appellant’s issues for ease of discussion.


                                        -5-
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brief at 25.) Specifically, appellant avers that he was subjected to a custodial

interrogation and he was not given his Miranda rights. (Id. at 25-26.)

            [An appellate court’s] standard of review in
            addressing a challenge to the denial of a suppression
            motion is limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.             Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole.            Where the
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous. Where . . . the appeal of
            the determination of the suppression court turns on
            allegations of legal error, the suppression court’s legal
            conclusions are not binding on an appellate court,
            whose duty it is to determine if the suppression court
            properly applied the law to the facts. Thus, the
            conclusions of law of the courts below are subject to
            [] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015), appeal

denied, 135 A.3d 584 (Pa. 2016), quoting Commonwealth v. Jones, 988

A.2d 649, 654 (Pa. 2010) (internal citations and quotation marks omitted).

      It is axiomatic that under the United States and Pennsylvania

Constitutions that an individual subject to a custodial interrogation has a right

to remain silent. See Miranda, supra; Commonwealth v. Boyer, 962 A.2d

1213, 1216 (Pa.Super. 2008), citing Commonwealth v. Bomar, 826 A.2d

831, 842 n.12 (Pa. 2003), cert. denied sub nom. Bomar v. Pennsylvania,

540 U.S. 1115 (2004).       Our supreme court has provided the following


                                      -6-
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guidance for determining whether an individual is subject to a custodial

interrogation:

            Custodial interrogation is defined as “questioning
            initiated by law enforcement officers after a person
            has been taken into custody or otherwise deprived of
            his freedom of action in any significant way[,]”
            Miranda, [384 U.S.] at 444, [] and the
            Commonwealth does not contest that appellant was
            questioned by law enforcement officers; the only
            dispute is whether he was in custody.

            An individual is in custody if he is “physically denied
            his freedom of action in any significant way or is
            placed in a situation in which he reasonably believes
            that his freedom of action or movement is restricted
            by the interrogation.” Commonwealth v. Johnson,
            [] 727 A.2d 1089, 1100 ([Pa.] 1999) (citations
            omitted).     Regarding custody, the United States
            Supreme Court has further held the “ultimate inquiry
            is . . . whether there [was] a ‘formal arrest or restraint
            on freedom of movement’ of the degree associated
            with a formal arrest.” Stansbury v. California, 511
            U.S. 318, 322, [] (1994) (citation omitted). The
            standard for determining whether an encounter is
            custodial is an objective one, focusing on the totality
            of the circumstances with due consideration given to
            the reasonable impression conveyed to the individual
            being questioned. Commonwealth v. Gwynn, []
            723 A.2d 143, 148 ([Pa.] 1998) (Opinion Announcing
            Judgment of the Court) (citation omitted).

Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015).

      In denying appellant’s suppression motion, the trial court concluded as

follows:

            Considering the totality of the circumstances
            surrounding [appellant’s] questioning by [d]etectives
            from the Pottstown Police Department on March 30,
            2017, [the trial c]ourt concludes that [appellant] was
            free to leave and was not in custody. [The trial c]ourt


                                      -7-
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            finds that his statements were voluntary and are not
            subject to suppression for lack of Miranda warnings.

Trial court order, 2/21/18 at 10; ¶ 10. Moreover, the trial court explicitly

found the testimony of the police officers to be credible and “worthy of belief.”

(Id. at 8; ¶ 64.)

      After a careful review of the record, viewing the totality of the

circumstances of appellant’s statements to police, the record supports the trial

court’s factual findings and legal conclusions.     Indeed, appellant was not

placed in handcuffs when the police transported him to the police station to

give a statement regarding Mr. High’s death. (Notes of testimony, 2/8/18

at 19.) At no point did appellant tell the police that he did not want to go to

the police station. (Id. at 19-20.) When appellant asked if he was in custody,

Sergeant Michael Markovich—the lead investigator—told appellant that he was

not in custody at that time and that he was free to leave.         (Id. at 31.)

Moreover, Detective Thomas Leahan testified that he spoke with appellant’s

then-attorney, Michelle Fioravante, Esq., telling her that the police were

investigating a suspicious death, that appellant was not identified as a prime

target in their investigation, and that they only wished to speak to him about

the circumstances of Mr. High’s death. (Id. at 57.) Detective Leahan further

testified that Attorney Fioravante told him that appellant could talk as long as

he felt comfortable and that the minute he felt uncomfortable, he was to leave.

(Id. at 57-58.) The record further reflects that during questioning, appellant

wanted to leave and was permitted to do so. (Id. at 34, 58.)


                                      -8-
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      Accordingly, we find that the trial court’s factual findings are supported

by the record and that the trial court properly applied the law to the facts of

the case. Appellant’s first issue is without merit.

                                      II.

      In his second issue, appellant contends that the trial court erred when

it denied appellant’s motion for a mistrial after Jennifer Wiegand testified that

appellant “indirectly threatened [her] family if [she] were to testify against

him[.]” (Appellant’s brief at 42.) Appellant further argues that the prejudice

the statement caused to the jury could not be cured by a curative instruction.

(Id. at 42-43.)

      Appellate review of a denial of a motion for a mistrial is governed by the

following standard:

            The trial court is in the best position to assess the
            effect of an allegedly prejudicial statement on the
            jury, and as such, the grant or denial of a mistrial will
            not be overturned absent an abuse of discretion. A
            mistrial may be granted only where the incident upon
            which the motion is based is of such a nature that its
            unavoidable effect is to deprive the defendant of a fair
            trial by preventing the jury from weighing and
            rendering a true verdict. Likewise, a mistrial is not
            necessary where cautionary instructions are adequate
            to overcome any possible prejudice.

Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014), cert. denied

sub nom. Johnson v. Pennsylvania, 136 S.Ct. 43 (2015), quoting

Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007), cert. denied

sub nom. Rega v. Pennsylvania, 552 U.S. 1316 (2008) (citation omitted).



                                      -9-
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When the trial court provides cautionary instructions to the jury in the event

the defense raises a motion for mistrial, “[t]he law presumes that the jury will

follow the instructions of the court.” Commonwealth v. Brown, 786 A.2d

961, 971 (Pa. 2001), cert. denied sub nom. Brown v. Pennsylvania, 537

U.S. 1187 (2003) (citation omitted).

        At trial, Ms. Wiegand testified for the Commonwealth.        On direct

examination, Ms. Wiegand testified that she was in a relationship with

appellant but that their relationship “wasn’t a particularly good one.” (Notes

of testimony, 4/17/18 at 124.) Ms. Wiegand also stated that appellant “could

be abusive at times, physically, emotionally.” (Id.) Appellant did not object

to these statements.     Ms. Wiegand then testified that she felt afraid to

cooperate with the authorities in this case because she was afraid of appellant.

(Id. at 130-131.) Appellant did not object to this statement. When asked

why she was afraid of appellant, Ms. Wiegand stated that appellant “indirectly

threatened [her] family if [she] were to ever testify against [appellant.]” (Id.

at 131.)

        Appellant immediately objected and moved for a mistrial. (Id. at 131-

132.)    The trial court denied appellant’s motion for a mistrial and instead

provided the jury with the following curative instruction: “The witness made

a comment about threats. I am going to strike that from the record, and I’m

going to instruct you that you may not consider that last comment at all.”

(Id. at 135.)



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      Here, appellant fails to demonstrate that the trial court’s curative

instruction was not adequate to overcome any potential prejudice that would

prevent the jury from weighing and rendering a true verdict. Rather, appellant

baldly contends that “the surprise testimony regarding an alleged threat made

by the accused exponentially buffered the prosecution’s theory of [appellant]

as a controller who orchestrated the events at issue.”          (Appellant’s brief

at 43.) In support of this theory, appellant relies upon statements made by

the Commonwealth and the trial court during the sentencing hearing. (Id.

at 44.) Statements made during the sentencing hearing have no effect on the

jury, as the jury had already rendered its verdict in the case.        Therefore,

appellant did not meet his burden of establishing that the comments at issue

prevented the jury from weighing and rendering a true verdict. Johnson,

107 A.3d at 77. Accordingly, we find that the trial court did not abuse its

discretion when it denied appellant’s request for a mistrial.

                                      III.

      In his third issue, appellant complains that the Commonwealth failed to

prove beyond a reasonable doubt that appellant abused a corpse. Specifically,

appellant relies on Ms. Wiegand’s testimony, which indicated that Mr. Wilkins

was the only person to move Mr. High’s body from the top of the staircase

outside appellant’s apartment to the bottom. (Appellant’s brief at 44-45.)

      Our well settled standard of review in sufficiency of the evidence claims

is as follows:



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                As a general matter, our standard of
                review of sufficiency claims requires that
                we evaluate the record in the light most
                favorable to the verdict winner giving the
                prosecution the benefit of all reasonable
                inferences to be drawn from the evidence.
                Evidence will be deemed sufficient to
                support the verdict when it establishes
                each material element of the crime
                charged and the commission thereof by
                the accused, beyond a reasonable doubt.
                Nevertheless, the Commonwealth need
                not establish guilt to a mathematical
                certainty.      Any doubt about the
                defendant’s guilt is to be resolved by the
                fact finder unless the evidence is so weak
                and inconclusive that, as a matter of law,
                no probability of fact can be drawn from
                the combined circumstances.

                The Commonwealth may sustain its
                burden by means of wholly circumstantial
                evidence. Accordingly, [t]he fact that the
                evidence establishing a defendant’s
                participation in a crime is circumstantial
                does not preclude a conviction where the
                evidence coupled with the reasonable
                inferences drawn therefrom overcomes
                the     presumption      of      innocence.
                Significantly, we may not substitute our
                judgment for that of the fact finder; thus,
                so long as the evidence adduced,
                accepted in the light most favorable to the
                Commonwealth,         demonstrates      the
                respective elements of a defendant’s
                crimes beyond a reasonable doubt, the
                appellant’s convictions will be upheld.

          Commonwealth v. Franklin, 69 A.3d 722-723
          (Pa.Super. 2013) (internal quotations and citations
          omitted). Importantly, “the jury, which passes upon
          the weight and credibility of each witness’s testimony,
          is free to believe all, part, or none of the evidence.”



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              Commonwealth v. Ramtahal, [] 33 A.3d 602, 607
              ([Pa.] 2011).

Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).

     The Crimes Code defines abuse of a corpse as a person, “treat[ing] a

corpse in a way that he knows would outrage ordinary family sensibilities[.]”

18 Pa.C.S.A. § 5510.    We find this court’s decision in Commonwealth v.

Hutchison, 164 A.3d 494 (Pa.Super. 2017), appeal denied, 176 A.3d 231

(Pa. 2017), to be instructive. In Hutchison, the defendant argued that failing

to notify the authorities when he discovered the decedent’s body was not

criminalized under Section 5510. Id. at 498. This court held that evidence

of the defendant’s failure to notify the authorities of the decedent’s death

constituted sufficient evidence to warrant a conviction of abuse of a corpse.

Id. at 499.

     Here, appellant does not dispute that he did not call 911 immediately

upon realizing that Mr. High was dead. To the contrary, the record reflects

that appellant waited until Mr. Wilkins moved Mr. High’s body to the bottom

of the stairwell before telling Ms. Wiegand to call 911. (Notes of testimony,

4/17/18 at 149-150.) When viewing this evidence in the light most favorable

to the Commonwealth, we find, in light of our holding in Hutchison, that the

Commonwealth introduced sufficient evidence to warrant a conviction of abuse

of a corpse. See Hutchison, 164 A.3d at 499.




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                                       IV.

      In his fourth issue, appellant claims that the trial court erred when it

assigned the costs of prosecution to appellant as part of his sentence.

(Appellant’s brief at 48.) Appellant acknowledges that he is raising this issue

for the first time on appeal. (Id.) Generally, raising an issue for the first time

on appeal results in waiver of that issue.        Commonwealth v. Johnson,

33 A.3d 122, 126 (Pa.Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012),

citing Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.Super. 2008),

appeal denied, 972 A.2d 521 (Pa. 2009). Appeals pertaining to the legality

of sentence, however, are non-waivable and can be raised for the first time

on appeal. Commonwealth v. Bezick, 207 A.3d 400, 403 (Pa.Super. 2019)

(citation omitted). This court has recognized that appeals addressing the trial

court’s authority to impose costs challenge the legality of the sentence.

Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa.Super. 2010), aff’d.,

34 A.3d 67 (Pa. 2012), citing Commonwealth v. Allshouse, 924 A.2d 1215

(Pa.Super. 2007) (citation omitted).         Accordingly, we find that appellant

challenges the legality of his sentence. Therefore, we will review this issue on

its merits.

      Here, appellant specifically contends that both statutory law and the

Pennsylvania Rules of Criminal Procedure require that “the sentencing court

consider a defendant’s ability to pay prior to [imposing costs] and that such




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costs should be waived where a [defendant] is indigent.” (Appellant’s brief

at 48.)

      The Judiciary Code requires a trial court to order a convicted defendant

to pay costs. 42 Pa.C.S.A. § 9721(c.1). In Commonwealth v. Ciptak, this

court held that a “defendant’s liability for costs is not part of the punishment

for the offense, and it is not a sentence to pay something additional to any

penalty imposed by law.” 657 A.2d 1296, 1297 (Pa.Super. 1995), rev’d. on

other grounds, 665 A.2d 1161 (Pa. 1995), citing Commonwealth v.

Bollinger, 418 A.2d 320 (Pa.Super. 1979.) Indeed, our supreme court has

recognized that,

            Although a presentence ability-to-pay hearing is not
            required when costs alone are imposed, our Rules of
            Criminal Procedure provide that a defendant cannot
            be committed to prison for failure to pay a fine or costs
            unless the court first determines that he or she has
            the financial means to pay the fine or costs.
            Pa.R.Crim.P. 706(A).

Commonwealth v. Ford, 217 A.3d 824, 826 n.6 (Pa. 2019) (emphasis

added).

      Here, appellant is not being incarcerated due to his ability, or lack

thereof, to pay the costs of prosecution imposed at this sentencing. Because

our supreme court does not require a sentencing court to hold an ability to

pay hearing prior to the imposition of costs, we find that the trial court did not

err when it did not conduct a hearing to determine appellant’s ability to pay




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the costs of prosecution. Id. Accordingly, appellant’s fourth issue is without

merit.

                                        V.

      In his final issue, appellant contends that the trial court abused its

discretion when it imposed sentences for drug delivery resulting in death,

hindering prosecution, and abuse of a corpse in excess of the sentencing

guidelines.   (Appellant’s brief at 17.)     Put another way, appellant raises a

challenge to the discretionary aspects of his sentence.

              Challenges to the discretionary aspects of sentence
              are not appealable as of right. Commonwealth v.
              Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).
              Rather, an appellant challenging the sentencing
              court’s discretion must invoke this Court’s jurisdiction
              by (1) filing a timely notice of appeal; (2) properly
              preserving the issue at sentencing or in a motion to
              reconsider and modify the sentence; (3) complying
              with Pa.R.A.P. 2119(f), which requires a separate
              section of the brief setting forth “a concise statement
              of the reasons relied upon for allowance of appeal with
              respect to the discretionary aspects of a sentence[;]”
              and (4) presenting a substantial question that the
              sentence appealed from is not appropriate under the
              Sentencing Code. Id. (citation omitted).

Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa.Super. 2019).

      Here, appellant filed a timely notice of appeal and filed a post-sentence

motion in which he alleged that the trial court imposed a manifestly excessive

and unreasonable sentence. (See appellant’s post-sentence motion, 7/16/18

at 6-9.) Appellant also included a Rule 2119(f) statement in his brief. (See

appellant’s brief at 14-17.)



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      We must now determine whether appellant raised a substantial

question.

            “The determination of what constitutes a substantial
            question must be evaluated on a case-by-case basis.”
            Commonwealth v. Prisk, 13 A.3d 526, 533
            (Pa.Super. 2011). Further:

                  A substantial question exists only when
                  the appellant advances a colorable
                  argument that the sentencing judge’s
                  actions were either: (1) inconsistent with
                  a specific provision of the Sentencing
                  Code; or (2) contrary to the fundamental
                  norms which underlie the sentencing
                  process.

            Id. (internal citations omitted).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.Super. 2015). This court

has held that a claim that a trial court does not sufficiently state its reasons

for deviating from the sentencing guidelines raises a substantial question.

Commonwealth v. Twitty, 876 A.2d 433, 439 (Pa.Super. 2005), appeal

denied, 892 A.2d 823 (Pa. 2005), citing Commonwealth v. Brown, 741

A.2d 726, 735 (Pa.Super. 1999), appeal denied, 790 A.2d 1013 (Pa. 2001).

      Here, appellant claims that the trial court’s departure from the

sentencing guidelines was improper because it “relied upon reasons that did

not justify the departure[,]” that the trial court failed to adequately consider

mitigating factors set forth by appellant, and that the trial court “relied upon

factors that were necessary elements to establish the crimes [appellant]

committed and that were already incorporated into the offense gravity



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scores.” (Appellant’s brief at 17.) Put another way, appellant alleges that the

reasons relied upon by the trial court in crafting his sentence were not

sufficient to justify a deviation from the sentencing guidelines. We, therefore,

find that appellant has raised a substantial question, and we shall consider

this appeal on its merits. Twitty, 876 A.2d at 439 (holding that allegation of

trial court failure to sufficiently state reasons for deviating from sentencing

guidelines raises substantial question).

      When reviewing the merits of appellant’s claim, we are governed by the

following standard of review:

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            the appellant must establish, by reference to the
            record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for reasons
            of partiality, prejudice, bias or ill will, or arrived at a
            manifestly unreasonable decision.

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

denied, 117 A.3d 297 (Pa. 2015), quoting Commonwealth v. Hoch, 936

A.2d 515, 517-518 (Pa.Super. 2007) (citation omitted).

      On appeal, appellant argues that the trial court’s reasons for deviating

from the sentencing guidelines “belie the excessiveness of the sentence.”

(Appellant’s brief at 21.) Specifically, appellant contends that the trial court

“relied on elements of offenses for which [appellant] was convicted as




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aggravating factors. The trial court also wrongly attributed actions of others

to [appellant] and does not significantly weigh mitigating factors.” (Id.)

            In every case where the court imposes a sentence
            outside the sentencing guidelines . . . the 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.

Leatherby, 116 A.3d at 83, quoting Commonwealth v. Rodda, 723 A.2d

212, 215 (Pa.Super. 1999), citing 42 Pa.C.S.A. § 9721(b).

      In the instant case, the trial court enumerated its reasons for deviating

from the sentencing guidelines both in writing and in remarks delivered from

the bench during appellant’s sentencing hearing.         (See trial court order,

7/31/18;6 notes of testimony, 7/6/18 at 35-40.) In its order, the trial court

concluded that “[appellant’s] actions were undertaken with malice and a

reckless disregard for the value of human life.” (Trial court order, 7/31/18

at 1.) Additionally, the trial court stated that appellant’s efforts to conceal the

victim, prevent others from seeking assistance, and destroy evidence “all

reflect the worst violations of these crimes[,]” and that appellant’s conduct

rose above “conduct that would constitute violations of these statutes.[.]”

(Id.) The trial court also noted that appellant displayed “a complete lack of

remorse and cruelty as evidenced by his winking at the family and supporters


6 While the trial court’s order explaining its reasons for deviating from the
sentencing guidelines is dated July 6, 2018, it was not entered by the
Montgomery County clerk of courts until July 31, 2018.


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J. S66044/19

of [Mr. High] in court after the verdict[.]”     (Id.)    Finally, the trial court

acknowledged the sentencing guidelines and found the guideline sentencing

ranges to be “inappropriately low considering the severity of [appellant’s]

specific actions” giving rise to his convictions. (Id.)

      As evidenced above, the record reflects that the trial court considered

the sentencing guidelines and chose to deviate from them after setting forth

the reasons for doing so. (See notes of testimony, 7/6/18 at 35-40; trial

court order, 7/31/18.) We, therefore, discern no abuse of discretion on the

part of the trial court.

      Finally, appellant argues that the trial court failed to adequately weigh

his mitigating factors, “such as:    [appellant’s] lack of family support and

[appellant’s] struggle with alcohol addiction, ADHD, and depression.”

(Appellant’s brief at 24.) This claim is without merit.

      We have held that, “[w]hen a sentencing court has reviewed a

presentence investigation report, we presume that the court properly

considered and weighed all relevant factors in fashioning the defendant’s

sentence.” Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.Super. 2013),

appeal denied, 86 A.3d 231 (Pa. 2014), citing Commonwealth v. Fowler,

893 A.2d 758, 767 (Pa.Super. 2006). Here, the record reflects that the trial

court reviewed appellant’s presentence investigation report, as well as the

PPI evaluation. (Notes of testimony, 7/6/18 at 33.) Additionally, the trial

court explicitly states that it considered any mitigating factors based on its



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review of the presentence investigation report in its Rule 1925(a) opinion.

(Trial court opinion, 2/21/19 at 38.)7 Accordingly, we find that appellant’s

claim that the trial court failed to consider his mitigating factors is without

merit.

      We, therefore, discern no abuse of discretion in the sentence imposed

by the trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/21/20




7 Appellant’s claim is further belied by the record of his sentencing hearing.
Indeed, appellant’s counsel noted that appellant had a history of ADHD,
depression, and anxiety. (Notes of testimony, 7/6/18 at 23.) Counsel also
noted that appellant had a history of addiction and further noted that no one
from appellant’s family attended the trial. (Id. at 24, 26-27.) The trial court
acknowledged counsel’s argument before imposing sentence. (Id. at 34.)


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