J-S79025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

EDWARD FRIEDLAND

                            Appellant                   No. 133 EDA 2016


            Appeal from the Judgment of Sentence November 20, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0015361-2010


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                          FILED JANUARY 12, 2017

       Edward Friedland appeals from the November 20, 2015 judgment of

sentence entered in the Philadelphia County Court of Common Pleas

following his conviction for possession with intent to manufacture or deliver

(“PWID”).1 We affirm.

       The trial court set forth the following facts:

            On May 13, 2010, Officers Walter Bartle and Patrick
            Banning set up plain-clothes narcotics surveillance in an
            unmarked vehicle on the 800 block of East Russell Street
            in Philadelphia, which is a high-drug area. Officer Bartle,
            who has over 18 years of experience as a police officer and
            has conducted thousands of narcotics arrests, conducted
            the surveillance while Officer Banning acted in a back-up
            capacity to ensure their safety. At approximately 1:30
            p.m., Officer Bartle observed [Friedland] standing on the
            north side of the block, near H Street. Five minutes later,
____________________________________________


       1
           35 P.S. § 780-113(a)(30).
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       [Friedland] walked westbound into an open lot, reached
       into a cinder-block type wall, and removed a clear plastic
       bag with blue objects. [Friedland] walked from the back of
       the open lot, past the officers’ vehicle, and went to the
       porch of a property across the street. He then placed the
       plastic bags underneath a rug on the porch.

       At approximately 1:45 p.m., a Hispanic male, later
       identified as John Torres, walked onto the block where
       [Friedland] was standing and exchanged words. Officer
       Bartle observed Mr. Torres hand [Friedland] United States
       Currency. [Friedland] took the money, jogged southbound
       past the officers’ vehicle to the rug on the porch, and
       retrieved items from underneath the rug.        [Friedland]
       handed Mr. Torres a packet with blue items. Officer Bartle
       gave a description of Mr. Torres to his backup officers, and
       Officer Reilly subsequently stopped and arrested him on
       the 3500 block of Rand Street. [Friedland] and the District
       Attorney stipulated that the blue Ziploc packet that was
       recovered on Mr. Torres tested positive for crack cocaine
       and weighed 50 milligrams.

       At approximately 1:50 p.m., a white female, later
       identified as Jacquelynn Granberg, approached [Friedland]
       and engaged in a brief conversation.         Officer Bartle
       observed Ms. Granberg hand [Friedland] paper money.
       [Friedland] again jogged past the officers’ vehicle to the
       porch with the rug, retrieved a baggie from under the rug,
       and handed Ms. Granberg the bag. Officer Bartle gave out
       a description of Ms. Granberg to his backup officers and
       Officer Bates later stopped and arrested her on the 900
       block of Tioga Street. [Friedland] and the District Attorney
       stipulated that the six blue Ziploc packets of narcotics
       recovered from Ms. Granberg tested positive for crack
       cocaine and weighed 432 milligrams.

       At approximately 1:55 p.m., a black male, later identified
       as Anthony Blanchard, walked up to [Friedland] and
       engaged on a brief conversation. After Mr. Blanchard
       handed [Friedland] money, [Friedland] again went to the
       same porch and retrieved a baggie from under the same
       rug. He then handed the items to Mr. Blanchard. At that
       point, Officer Bartle gave out a description to the backup
       officers and Officer Brooks stopped and arrested Mr.
       Blanchard at a Chinese corner store near Tioga and H

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           Street. [Friedland] and the District Attorney stipulated
           that the blue packet recovered from Mr. Blanchard tested
           positive for crack cocaine and weighed 45 milligrams.

           Officer Jones later stopped and apprehended [Friedland]
           and recovered $280.00 on his person. In addition, Officer
           Bartle and Officer Santiago recovered 17 packets of crack
           cocaine, weighing 612 milligrams, from the rug on the
           porch. Further, Officer Bartle and Officer Reilly recovered
           56 packets of crack cocaine that weighed 4.157 grams
           from the cinder-block wall. Officer Bartle testified that all
           of the packets of crack cocaine that were recovered
           matched in size, shape, and color.

1925(a) Opinion, 3/16/16, at 2-4 (“1925(a) Op.”) (internal citations

omitted).    On September 5, 2015, a jury found Friedland guilty of PWID.2

On November 20, 2015, the trial court sentenced Friedland to 4 to 8 years’

incarceration, followed by 2 years’ probation. Friedland filed a pro se motion

for reconsideration of sentence on November 25, 2015, which the trial court

denied.     On December 29, 2015, Friedland timely filed a notice of appeal.

Friedland raises the following issues on appeal:

           1. Whether the sentence of four (4) to eight (8) years,
              followed by two (2) years probation, imposed by the
              trial court in the case sub judice, was unduly
              excessive and unreasonable, where 1) the sentence was
              more than one hundred percent higher than the
              maximum applicable guideline range of twenty-two (22)
              to forty-four (44) months, 2) the court’s sentence was
              imposed consecutively to Appellant’s prior sentence for
              second degree murder and robbery, 3) the court
              disregarded the nature and circumstances of Appellant’s
              culpable offenses, neither of which involved violence, 4)
____________________________________________


       2
        Although a prior jury trial commenced on November 13, 2013, the
trial court declared a mistrial because of a mistaken representation
concerning a photograph. N.T, 11/13/13, at 102-04.



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             the court failed to consider Appellant’s rehabilitative
             needs as well as other mitigating factors, and 5) the
             court did not give reasons for sentencing Appellant
             outside of the sentencing guidelines[.]

         2. Whether the trial court abused its discretion in granting
            the Commonwealth’s motion in limine, precluding
            Appellant from questioning Philadelphia Police Officer
            Patrick Banning, who played a prominent role in the
            criminal investigation and arrest in the case sub
            judice, about his participation in numerous fraudulent
            investigations and arrests supervised by Philadelphia
            Police Officer Christopher Hulmes, who admitted under
            oath to committing perjury and swearing a false search
            warrant affidavit of probable cause, which prejudiced
            Appellant’s right to a fair trial[.]

         3. Whether the trial court abused its discretion in granting
            the Commonwealth’s motion in limine precluding
            Appellant from questioning Officer Bartle about the
            Commonwealth’s misuse of a photograph, which the
            Commonwealth falsely alleged was Appellant’s stash
            location for narcotics, during the course of its
            investigation and prosecution of Appellant, which
            prejudiced Appellant’s right to a fair trial[.]

Friedland’s Br. at 5-6.

I.    Discretionary Aspects of Sentence

      Friedland first challenges the discretionary aspects of his sentence.

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

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

1064 (Pa.Super. 2011).      Before we address such a challenge, we first

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


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        statement raises a substantial question that the sentence
        is appropriate under the sentencing code.

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.

     Friedland filed a timely notice of appeal, preserved his claim in a

timely post-sentence motion, and included in his brief a concise statement of

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f).     We must now determine whether he has

raised a substantial question that the sentence is inappropriate under the

sentencing code and, if so, review the merits.

     We evaluate whether a particular sentencing issue raises a substantial

question on a case-by-case basis.    Commonwealth v. Dunphy, 20 A.3d

1215, 1220 (Pa.Super. 2011).        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. Dodge, 77 A.3d 1263, 1268

(Pa.Super. 2013) (citation and internal quotation marks omitted). A mere

averment that a sentence is outside the sentencing guidelines, or a bald

claim of excessiveness due to the consecutive nature of a sentence, does not

raise a substantial question.   Commonwealth v. Ousley, 573 A.2d 599,

602 (Pa.Super. 1990); Dodge, 77 A.3d at 1270.       However, a defendant’s

challenge to the imposition of consecutive sentences as unduly excessive,


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coupled with a claim that the trial court failed to consider defendant’s

rehabilitative needs, raises a substantial question.         Commonwealth v.

Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015). Furthermore, a claim that a

sentence is excessive, in conjunction with an assertion that trial court failed

to consider mitigating factors, also raises a substantial question. Dodge, 77

A.3d at 1272. An assertion that the trial court failed to sufficiently state its

reasons for imposing a sentence outside the sentencing guidelines also

raises a substantial question.        Commonwealth v. Rodda, 723 A.2d 212,

214 (Pa.Super. 1999).

       Friedland first contends that his sentence was manifestly excessive

because it exceeded the maximum guideline range by more than 100

percent and did not take into account his rehabilitative needs or other

mitigating factors. This, Friedland argues, violated the fundamental norms

of sentencing, thus raising a substantial question. Second, he contends that

his claim raises a substantial question because the trial court did not provide

a contemporaneous statement of reasons when imposing its sentence

pursuant to 42 Pa.C.S. § 9721(b).3 Third, he contends that he has raised a

____________________________________________


       3
           42 Pa.C.S. § 9721(b) provides in relevant part:

            In every case where the court imposes a sentence or
            resentence outside the guidelines adopted by the
            Pennsylvania Commission on Sentencing under sections
            2154 (relating to adoption of guidelines for sentencing),
            2154.1 (relating to adoption of guidelines for county
(Footnote Continued Next Page)


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substantial question because the trial court’s sentence was consecutive to

Friedland’s sentence in a separate case where he was convicted of second-

degree murder and first-degree robbery. He maintains that this consecutive

sentencing violated the fundamental norms of sentencing because the crime

in the instant case did not involve violence. Here, Friedland has advanced

more than a mere assertion that his claim is outside the sentencing guideline

and more than a bald claim of excessiveness due to the consecutive nature

of his sentence. Therefore, Friedland has raised a substantial question for

our review.    See Caldwell, 117 A.3d at 770; Dodge, 77 A.3d at 1272;

Rodda, 723 A.2d at 214.

      “Sentencing is a matter vested within the discretion of the trial court

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

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                   “An

abuse of discretion requires the trial court to have acted with manifest

                       _______________________
(Footnote Continued)

          intermediate punishment), 2154.2 (relating to adoption of
          guidelines for State intermediate punishment), 2154.3
          (relating to adoption of guidelines for fines), 2154.4
          (relating to adoption of guidelines for resentencing) and
          2154.5 (relating to adoption of guidelines for parole) and
          made effective under section 2155, the court shall provide
          a contemporaneous written statement of the reason or
          reasons for the deviation from the guidelines to the
          commission, as established under section 2153(a)(14)
          (relating to powers and duties). Failure to comply shall be
          grounds for vacating the sentence or resentence and
          resentencing the defendant.



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unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Id. “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.” Id. at 1283.

       Friedland’s first argument, that the trial court failed to consider

rehabilitative or other mitigating factors when fashioning a sentence outside

the maximum guidelines, is without merit.          In fashioning Friedland’s

sentence, the court considered the protection of the public, Friedland’s

rehabilitative needs, and the gravity of the offense. 1925(a) Op. at 6. At

the outset of the sentencing hearing, both the Assistant District Attorney

(“ADA”) and Friedland4 stated that Friedland’s offense gravity score was




____________________________________________


       4
        On January 15, 2015, Friedland was allowed to proceed pro se. See
Docket at 16; see Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
The transcript of the Grazier hearing is not in the certified record, but the
following exchange occurred on the first day of trial:

           THE COURT: . . . Now, again, you understand that you’re
           going to serve as your attorney. We went through the
           whole colloquy. You signed the waiver yesterday. You’ve
           been colloquied not only by me but a prior judge as well
           about your desire to represent yourself, correct?

           FRIEDLAND:       Yes.
(Footnote Continued Next Page)


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seven and his prior record score was one, which would put the guidelines at

9 to 16 months. Thus, the trial court was aware of the sentencing guidelines

in fashioning Friedland’s sentence.          Furthermore, the trial court stated on

the record that it had reviewed all of the reports5 ordered for the sentencing

hearing and listened to Friedland and the ADA. Id. at 11. The trial court

stated:

          According to the Pre-Sentence Investigation Report,
          [Friedland] is currently incarcerated at SCI Graterford,
          serving a life sentence for second degree murder and
          conspiracy to robbery. While he was incarcerated from
          March 23, 2012 to September 24, 2015, [Friedland] had
          one inmate separation, four medical alerts, and four
          disciplinary infractions. Some infractions include fighting
          and violating regulations. [Friedland] had eight arrests,
          five convictions, and four commitments. His convictions
          include theft, drug dealing, indecent assault, robbery, and
          murder. Based upon his criminal history, the Pre-Sentence
          Supervisor concluded that [Friedland] is at a significant
          risk for incurring in future offenses. [Friedland]’s Mental
          Health Report further reflects the need to sentence [him]
          outside the guidelines. In addition to his laundry list of
          criminal convictions, [Friedland] admitted to a bad
          temperament. He recalled setting fire in the hallway at
          age 6 and killing a couple of cats by throwing them. The
          psychologist concluded in the Mental Health Report that if
                       _______________________
(Footnote Continued)

N.T., 9/2/15, at 6-7. This exchange, coupled with the fact that no party
disputes that a Grazier hearing occurred, leads us to conclude that the
colloquy took place.
      5
         “Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988).



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           [Friedland] is returned to the community, he should be
           closely supervised. Taking into consideration [Friedland]’s
           extensive criminal history, it follows that [he] poses a
           threat to the public safety and is a danger to society.

           The trial court exercised the utmost care in fashioning
           [Friedland]’s sentence and did not manifest abuse of
           discretion.  The court considered all mitigating factors
           while reading the Pre-Sentence Investigation Report,
           Mental Health Report, and Police Report and considered
           the arguments from both sides.

1925(a) Op. at 6-7.       Additionally, in considering Friedland’s rehabilitative

needs, the trial court stated that it “ordered [Friedland] to submit to random

drug screens to ensure the [he] would not relapse into substance abuse, as

reflected in his Pre-Sentence Investigation report.” Id. at 7. We conclude

that the trial court considered Friedland’s rehabilitative needs and mitigating

factors in sentencing him outside the guidelines and, therefore, did not

abuse its discretion.

      Friedland’s second argument, that the trial court did not provide a

contemporaneous statement of reasons when imposing its sentence, is also

meritless. This Court has explained the requirements of section 9721(b) as

follows:

           The statute requires a trial judge who intends to sentence
           a defendant outside the guidelines to demonstrate on the
           record, as a proper starting point, his awareness of the
           sentencing guidelines. Having done so, the sentencing
           court may deviate from the guidelines, if necessary, to
           fashion a sentence which takes into account the protection
           of the public, the rehabilitative needs of the defendant,
           and the gravity of the particular offense as it relates to the
           impact on the life of the victim and the community, so long
           as he also states of record “the factual basis and specific


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            reasons which compelled [him] to deviate from the
            guideline range.”

Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa.Super. 1995).                   We

have also explained that the purpose of a statement of reasons is to have a

“record of the [trial] court’s rationale” and “as evidence that [it] considered

the guidelines.” Id. As stated above, the trial court was aware that it was

sentencing outside of these guidelines.6           Following the ADA’s reasons for

requesting an increased sentence and Friedland’s request to sentence within

the guidelines, the trial court stated on the record that it agreed with the

ADA’s reasoning. N.T., 11/20/16, at 11. Finally, the trial court stated that it

was imposing its sentence because it considered Friedland a danger to

society and such a sentence was for the protection of the public. Id. at 12.

       Friedland’s third argument, that the trial court abused its discretion in

sentencing him consecutively to a separate case where he was convicted of

second-degree murder and first-degree robbery, is also without merit.

“[T]he sentencing court [has] discretion to impose its sentence concurrently

or consecutively to other sentences being imposed at the same time or to

sentences already imposed.” Commonwealth v. Prisk, 13 A.3d 526, 533

(Pa.Super 2011).        The trial court found that “the two sentences [were]

based on two separate crimes, with two separate fact [patterns].” 1925(a)
____________________________________________


       6
           See supra n.5.




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Op. at 7. At sentencing, the trial court agreed with the ADA’s reasoning that

just because Friedland had committed a more serious offense for which he

had already been sentenced, he should not get the benefit of getting a

concurrent sentence and that “[i]t would be like giving somebody a discount

because you become even more . . . of an egregious criminal.”            N.T.,

11/20/16, at 9; see Commonwealth v. Hoag, 665 A.2d 1212, 1214

(Pa.Super. 1995) (stating appellant should not be entitled to “a volume

discount for his crimes by having all sentences run concurrently”). The trial

court also relied on Friedland’s criminal history, the reports prepared for the

sentencing hearing, and the risk of Friedland’s recidivism. 1925(a) Op. at 6-

7. We find no abuse of discretion.

II.   Admissibility of Evidence

      Next, Friedland contends that the trial court abused its discretion in

granting the Commonwealth’s two motions in limine:             (1) preventing

Friedland from questioning Officer Banning about his participation in

fraudulent investigations and (2) preventing Friedland from questioning

Officer Bartle about a photograph that was misused in the prior trial, which

led to a mistrial.

      Our standard of review concerning a challenge to the admissibility of

evidence is as follows:

         The admissibility of evidence is a matter for the discretion
         of the trial court and a ruling thereon will be reversed on
         appeal only upon a showing that the trial court committed
         an abuse of discretion. An abuse of discretion may not be

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          found merely because an appellate court might have
          reached a different conclusion, but requires a result of
          manifest unreasonableness, or partiality, prejudice, bias,
          or ill-will, or such lack of support so as to be clearly
          erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (internal

citations and quotation marks omitted). Evidence is admissible where it is

“relevan[t] and probative . . . . Evidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable or supports a reasonable inference or presumption regarding a

material fact.”    Commonwealth v. Reese, 31 A.3d 708, 716 (Pa.Super.

2011).

      This Court has stated the following regarding motions in limine:

          A motion in limine is used before trial to obtain a ruling on
          the admissibility of evidence. It gives the trial judge the
          opportunity to weigh potentially prejudicial and harmful
          evidence before the trial occurs, thus preventing the
          evidence from ever reaching the jury. A motion in limine
          differs from a suppression motion in that a suppression
          motion is designed to preclude evidence that was obtained
          in violation of a defendant's constitutional rights, while a
          motion     in   limine  precludes    evidence     that    was
          constitutionally obtained but which is prejudicial to the
          moving party.

Id. at 715 (quoting Commonwealth v. King, 689 A.2d 918, 921 (Pa.Super.

1997)).

      Friedland maintains that the trial court abused its discretion in

precluding   his   questioning   of   Officer   Banning   regarding   fraudulent

investigations by his former partner, Officer Hulmes. We disagree. The trial

court found that Officer Banning’s role on the night of the investigation was

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minimal and that his main duty was “for backup and protection.” 1925(a)

Op. at 9. As the trial court stated: “Officer Banning did not prepare a PARS

Report, take detailed notes of the incident, nor recover any items.” Id. The

trial court further said that “questioning [Officer Banning] about his

participation in fraudulent investigations and arrests under the supervision of

Officer Hulmes is irrelevant to and beyond the scope of this case.”                Id.

Thus, the trial court properly limited any questioning of Officer Banning to

the day Friedland was arrested. Id.

       Next, Friedland argues that the trial court abused its discretion in

precluding him from questioning Officer Bartle regarding the misuse of a

photograph in a prior trial,7 which had led to a mistrial.            The trial court

permitted Friedland to use the photograph for authentication purposes, but

precluded     questioning     regarding        communications   Officer   Bartle   had

concerning the photograph.          1925(a) Op. at 10.     We agree with the trial

court that “[Friedland] was in no way prejudiced by the trial court’s decision

to preclude [him] from questioning Officer Bartle about his communications

concerning the misuse of [the] photograph.” Id. We conclude that the trial

____________________________________________


       7
        In the prior trial, the Commonwealth discovered a mistake regarding
the identification of the photograph. N.T., 11/13/13, at 86. Although not
intentional, the Commonwealth failed to identify the mistake for defense
counsel.    Id. at 86-87.       During opening arguments, defense counsel
incorrectly used the photograph under the mistaken belief that it
represented Friedland’s stash location.        Id. at 86.    Because of that
confusion, the trial court declared a mistrial. Id. at 102-03.



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court did not abuse its discretion in granting the Commonwealth’s motion in

limine.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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