J-S02044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DANIEL JOSEPH PREZIOSI

                            Appellant                   No. 443 EDA 2015


     Appeal from the Judgment of Sentence entered September 5, 2014
           In the Court of Common Pleas of Northampton County
          Criminal Division at Nos: CP-48-CR-0004211-2013 and
                          CP-48-CR-0000435-2014


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED MARCH 15, 2016

       Appellant, Daniel Joseph Preziosi, pro se appeals from the September

5, 2014 judgment of sentence entered by the Court of Common Pleas of

Northampton County (“trial court”), following a jury trial that resulted in him

being convicted of robbery, two counts of simple assault, theft by unlawful

taking (movable property), receiving stolen property, and escape.1         After

careful review, we affirm in part and vacate in part.

       The facts and procedural history of this case are uncontested.        On

October 19, 2013, Appellant was charged with multiple offenses, including

robbery, simple assault, theft by unlawful taking, and receiving stolen

____________________________________________


1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2701(a)(3), 3921(a), 3925(a), and
5121(a), respectively.
J-S02044-16



property, at docket number 4211 (hereinafter “First Case”). The affidavit of

probable cause accompanying the complaint provided:

           On 10/18/2013 at about 1414 hrs [Detective Seargent
     Michael Melinsky, Colonial Regional Police Department,]
     received a call from Wunderler’s Market located at 429 East Main
     St[reet,] Bath[, PA] for an armed robbery that had just occurred
     at that location.      Upon [Detecive Melinsky’s] arrival, the
     victim[s] of the robbery Donald and Joyce Wunderler detailed
     that they were both at the store when an unknown white male
     entered the store and brandished a dark[-]colored semi-
     automatic style handgun. The unknown male demanded the
     money in the cash register. Joyce Wunderler stated that the
     male was given the money out of the cash register, mostly 1, 5
     and 10 dollar bills. After the actor received the money he fled
     on foot, north from the store.

           [Detective Melinsky] viewed and copied the store
     surveillance video which was working at Wunderler’s Market at
     the time of the robbery. The video shows the male that was
     described by the Wunderler’s brandishing the firearm, robbing
     the store.

           [Detective Melinsky] interviewed a Michael Flyte[.] Flyte
     reported seeing a suspicious vehicle in the area of Wunderler’s
     Market at the time of the robbery. Flyte described the vehicle as
     a 1990’s 4-door beige Toyota Camry with front end damage,
     missing a front headlight assembly.       The vehicle’s rearview
     mirror was dangling from the windshield and the rear of the
     vehicle had a sticker, a heart-shaped zebra pattern, outlined in
     pink. Flyte described the driver of the car as a white male in his
     mid-20s about 6 feet tall and a 175 lbs., wearing black coat with
     a white hood. [Detective Melinsky] showed a picture of the
     suspect from Wunderler’s Market to Flyte and [Flyte] identified
     the male in the picture as the person driving the suspicious
     vehicle.

          The vehicle that was identified by Flyte was located later
     that night parked on the block of East Main St. in Bath.
     Surveillance was conducted on the vehicle and [Appellant] was
     observed opening the vehicle and retrieving something from the
     rear seat. [Detective Melinsky] and Sgt. Enstrom identified
     themselves to [Appellant].       [Appellant] was then observed
     throwing [a] pill bottle under a parked car. [Appellant] was then
     taken into custody and transported to police headquarters.
     Search of [Appellant] when taken into custody revealed that
     [Appellant] had in his pants pocket a stack of money, which was
     mostly in one and five dollar denominations.
          At police headquarters, with [Appellant] in custody
     [Detective Melinsky] and assisting officers viewed the

                                   -2-
J-S02044-16


      surveillance video from Wunderler’s Market.             [Detective
      Melinsky] and assisting officers confirmed that it was [Appellant]
      on the video committing the robbery.

            [Detective Melinsky] had photo lineups created with
      [Appellant’s] picture in the lineup. [Detective Melinsky] showed
      the photo lineup to both Mr. and Mrs. Wunderler separately.
      They both identified [Appellant] as the person who robbed their
      store earlier in the day.

Affidavit of Probable Cause, 10/19/13. On December 18, 2013, constables

transported Appellant to a district court for a preliminary hearing, but

Appellant managed to flee from the constables’ custody.             Appellant

subsequently was arrested and charged with one count of escape at docket

number 435-2014 (hereinafter “Second Case”).

      On March 24, 2014, Appellant, through counsel, filed an omnibus

pretrial motion in the First Case, seeking, inter alia, to suppress all

incriminating evidence. In support of suppression, Appellant alleged that the

police lacked probable cause to arrest him without a warrant.        He also

alleged that the police lacked probable for the issuance of a search warrant

for the vehicle.   The trial court disagreed, denying, among other things,

Appellant’s suppression motion following a hearing.     The court concluded

that probable cause existed to arrest Appellant and to issue the search

warrant for the vehicle.    In so doing, the trial court rendered detailed

findings:

      1. On the date of the robbery, at approximately 2:14 p.m.,
      Colonial Regional Police received notification that an armed
      robbery took place at Wunderler’s Market in Bath, Pennsylvania;

      2. Detective Sergeant Melinsky responded to the scene along
      with other patrol vehicles and interviewed the victims and the
      owners of the market, Joyce and Donald Wunderler;


                                    -3-
J-S02044-16


     3. The victims provided information to Detective Melinsky that
     included a description of the perpetrator who brandished a black
     semiautomatic handgun, was wearing a black jacket with a grey
     hoodie, was approximately 6 foot tall and approximately 175
     pounds. The perpetrator was a white male. The Wunderlers
     handed the robber approximately $100 in cash in small bills;

     4. Detective Sergeant Melinsky obtained video footage from the
     surveillance cameras within the market and reviewed the
     footage. He was able to view images of the perpetrator of the
     robbery which matched the description provided by the victims;

     5. Detective Sergeant Melinsky was also able to view on the
     surveillance videotape the perpetrator walk into the store, point
     the gun at the victims, and commit the robbery. He was also
     able to view the perpetrator flee out the door of the market;
     6. Later at the station, Detective Sergeant Melinsky again
     reviewed the videotape and, in fact, viewed the videotape at
     least five or six times. Each viewing included images of the
     perpetrator;

     7. Detective Sergeant Melinsky and other members of the
     Colonial Regional Police Department obtained a still shot of the
     perpetrator from the surveillance videotape and disseminated it
     to police and to the media. The still shot photograph was
     admitted as Commonwealth’s Exhibit 1 and depicted a white
     male in a gray hooded sweatshirt, which matched the description
     provided by the victims;

     8. Later in the day on the afternoon of the robbery, Officer
     Kovalosky received a call from a witness named Michael Flyte
     who had been in the area of the market at the time of the
     robbery. Michael Flyte had prepared a written statement of his
     own accord and provided written information to the police
     detailing what he observed with respect to the robbery;

     9. Michael Flyte provided information to police that he saw a
     beige four-door Toyota Camry with front end vehicle damage
     near the headlight pull in quickly to a parking place near the
     market. The vehicle ran a stop sign in so doing;

     10. Michael Flyte witnessed a male get out of the car and walk
     down an alley towards the market;

     11. Approximately several minutes later, Michael Flyte witnessed
     the male return from the market. It was a white male, wearing
     a gray hoodie and black jacket. Michael Flyte’s description
     matched that of the perpetrator as provided by the victims, and
     as depicted on the video;
     12. Detective Sergeant Melinsky showed the still shot
     photograph obtained from the surveillance video to Michael


                                   -4-
J-S02044-16


     Flyte. Michael Flyte confirmed that was the male that he had
     observed;

     13. Michael Flyte also provided police with information that the
     [male’s] vehicle contained a distinctive sticker in the rear
     window. It was a heart shaped sticker decal outlined in pink
     with zebra stripes;

     14. Detective Sergeant Melinsky conducted research on the
     sticker and was able to obtain a computer image of the sticker
     which Michael Flyte confirmed was similar to the image he saw
     on the car;

     15. At approximately 1 a.m. the next morning, Detective
     Sergeant Melinsky received a telephone call from Sergeant
     Enstrom of the Colonial Regional Police indicating that Mr.
     Enstrom observed a four-door beige Toyota Camry with a sticker
     matching the description provided by Michael Flyte parked in
     Bath near the Daily Grind Coffee Shop, and near the Fox
     Hotel/Gentlemen’s Club;

     16. Detective Sergeant Melinsky, Sergeant Enstrom, and other
     members of the police department conducted surveillance on the
     vehicle;

     17. Prior to surveillance taking place, upon information believed,
     Sergeant Enstrom had observed a male approaching the vehicle.
     Sergeant Enstrom did not have backup with him at the time, and
     therefore, sought backup and surveillance was conducted of the
     vehicle;

     18. Approximately 1:46 a.m. Detective Sergeant Melinsky
     observed a male walk out of the Fox Hotel, approach the car,
     open the back door of the car, and get in. The male matched
     the description of the perpetrator as provided by the victims and
     by Michael Flyte. The male was the same male depicted on the
     surveillance videotape and the still shot obtained therefrom. At
     which point, [Appellant] was arrested;
     19. Detective Sergeant Melinsky indicated that he knew from the
     video that he had reviewed multiple times, from the still
     photograph, and from the description provided by the victims
     and Michael Flyte that the person getting into the car was the
     person who perpetrated the robbery;

     20. [Appellant] was taken into custody and searched incident to
     arrest.  Money was found in [Appellant’s] pocket, including
     approximately eight $5 bills, and ten $1 bills;

     21. The money found in [Appellant’s] pocket is the subject of the
     motion to suppress. The motion to suppress the money is
     denied;



                                   -5-
J-S02044-16


       22. Subsequently, the vehicle was impounded, and a search
       warrant was obtained for its contents. During the search of the
       vehicle, a gun was found in the truck, which matched the
       description and depiction of the gun used in the robbery as
       described by the victims and as seen on the videotape. The gun
       found in the truck is the subject of the suppression motion. The
       suppression motion with respect to the gun and any other items
       found in the car pursuant to the search warrant is denied;

       23. By way of further findings of fact that the arrest was
       supported by probable cause, the Commonwealth admitted
       Exhibits C-1 through C-5 depicting photos of [Appellant], which
       were consistent with the description provided by the victims of
       the perpetrator of the robbery; photographs of the vehicle,
       which were consistent with the description of the vehicle
       provided by the witness, Michael Flyte; photographs of the
       sticker on the rear of [Appellant’s] vehicle, which were
       consistent with the description of the sticker provided by the
       witness Michael Flyte; and a photo of a hooded sweatshirt and
       black jacket found inside [Appellant’s] vehicle;

       24. In addition, Sergeant Enstrom testified consistently with the
       testimony of Detective Sergeant Melinsky regarding the incidents
       surrounding [Appellant’s] arrest;

       25. Detective Gary Hammer also testified consistently with
       Detective   Sergeant    Melinsky  concerning the  incidents
       surrounding [Appellant’s] arrest;

       26. The [trial] court finds, not only that the arrest was supported
       by sufficient probable cause, but that the probable cause to
       arrest [Appellant] was overwhelming.

Trial Court Opinion, 6/17/14.         Prior to trial, the Commonwealth moved to

consolidate the cases at docket numbers 4211-2013 and 435-2014.2             The

trial court granted the consolidation motion. Following a jury trial, Appellant

was convicted of robbery, two counts of simple assault, theft by unlawful

taking, and receiving stolen property in the First Case.         The trial court

____________________________________________


2
  Alternatively, the Commonwealth provided Appellant notice under Pa.R.E.
404(b) (bad acts) of its intention to introduce evidence of the First Case in
the Second Case and vice versa. The Commonwealth, however, withdrew
the Rule 404(b) notice at trial. See N.T. Trial, 6/3/14, at 39.



                                           -6-
J-S02044-16



sentenced Appellant to 90 to 240 months’ imprisonment for the armed

robbery conviction. The sentence included a mandatory minimum sentence

of 60 months’ imprisonment under 42 Pa.C.S.A. § 9712, relating to

sentences for offenses committed with firearms. The trial court imposed no

further penalty on the remaining convictions in the First Case.           In the

Second Case, the jury found Appellant guilty of escape, and the trial court

imposed a sentence of 27 to 84 months’ imprisonment consecutive to the

sentence imposed in the First Case. Thus, Appellant received an aggregate

sentence of 117 to 324 months in prison.

       On September 12, 2014, Appellant filed a post-sentence motion,

challenging, inter alia, the denial of suppression, the consolidation of the

cases, and the in-court identification of Appellant. The trial court denied the

motion on January 5, 2015. Appellant timely appealed to this Court.3

       On appeal,4 Appellant essentially raises three issues for our review:

       1) Did the trial court err by denying the [m]otion to [s]uppress
          [e]vidence in the instant matter?
____________________________________________


3
  Following the filing of the appeal notice, Appellant petitioned the trial court
to proceed pro se. The trial court held a hearing at which it colloquied
Appellant on his decision to represent himself. On March 6, 2015, the trial
court granted Appellant’s petition to proceed pro se.
4
  We note Appellant’s pre-sentence investigation report is part of the original
record. It should be noted that pursuant to Pa.R.Crim.P. 703 a pre-sentence
investigation report is “confidential, and not of public record,” which is
available only to the authorities or the individuals listed therein. See
Pa.R.Crim.P. 703. Accordingly, the Northampton County Clerk of Courts
should take all necessary steps to preserve the confidential nature of the
pre-sentence investigation report by sealing it.



                                           -7-
J-S02044-16


      2) Did the trial court err by improperly consolidating the criminal
         informations?

      3) Did the trial court err by allowing irrelevant evidence relating
         to the consciousness of guilt in violation of Pa.R.E. 404(b)(2)?


Appellant’s Brief at 5. To the extent Appellant argues that the trial court (a)

erred in deciding his pretrial omnibus motion prior to the commencement of

trial in violation of Pa.R.Crim.P. 580; (b) erred by allowing improper in-court

identification evidence to be introduced and admitted at trial; and (c) abused

its discretion by imposing a manifestly excessive sentence, such arguments

are waived.      Appellant failed to challenge the trial court’s timing for

disposing of the omnibus motion in the trial court.      See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”). Our review of the record reveals that Appellant

failed to object to his in-court identification by Joyce Wunderler. See N.T.

Trial, 6/3/14, 101-02. Finally, as the Commonwealth points out, Appellant

cannot challenge the discretionary aspects of his sentence on appeal

because he failed to do so in a post-sentence motion before the trial court.

It is settled that “[i]ssues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.         Absent such efforts, an

objection   to   a   discretionary   aspect   of   a   sentence   is   waived.”

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (citation

omitted), appeal denied, 75 A.3d 1281 (Pa. 2013).          Even if these issues

were not waived, we still would conclude that Appellant is not entitled to


                                     -8-
J-S02044-16



relief based on the reasons outlined in the trial court Rule 1925(a) opinion,

which we fully adopt.

      In reviewing appeals from an order denying suppression, our standard

of review is limited to determining

      whether [the trial court’s] factual findings are supported by the
      record and whether [its] legal conclusions drawn from those
      facts are correct. When reviewing the rulings of a [trial] court,
      the appellate court considers only the evidence of the
      prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. When the record supports the findings of the [trial]
      court, we are bound by those facts and may reverse only if the
      legal conclusions drawn therefrom are in error.


Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015)

(citation omitted). Our scope of review is limited to the evidence presented

at the suppression hearing. In the interest of L.J., 79 A.3d 1073, 1088-89

(Pa. 2013).

      After careful review of the parties’ briefs, the record on appeal, and

the relevant case law, we conclude that the trial court’s 1925(a) opinion

authored by the Honorable Jennifer R. Sletvold, cogently disposes of

Appellant’s issues on appeal.         See Trial Court Rule 1925(a) Opinion,

3/26/15, at 3-19. With respect to the first issue, the trial court concluded,

based upon its findings detailed supra, that it did not err in denying

Appellant’s suppression motion because probable cause to arrest was

overwhelming to support his arrest and the resulting search of his person

and vehicle. On the second issue, the trial court determined that it did not

abuse its discretion in consolidating the cases for trial because they were


                                       -9-
J-S02044-16



interrelated.    As for the third issue, the trial court determined that the

Commonwealth withdrew at trial its notice to introduce evidence under Rule

404(b).5    The trial court noted that the Commonwealth was permitted to

argue to the jury that Appellant’s flight from the preliminary hearing was

indicative of a consciousness of guilt.

       Lastly, as mentioned earlier, and confirmed by our review of the

sentencing transcript, sentencing order and related documents, the trial

court imposed upon Appellant a mandatory minimum sentence under

Section 9712 in the First Case. Specifically, Appellant received a mandatory

minimum sentence of 60 months’ imprisonment for armed robbery.

However, in light of our recent decision in Commonwealth v. Valentine,

101 A.3d 801 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015),

we must vacate the sentence for robbery in the First Case and remand for

resentencing in the First Case.

       In Valentine, the defendant had been convicted by a jury of robbery

and sentenced to 5–10 years’ imprisonment, which included, inter alia, a

mandatory minimum sentence under Section 9712. Valentine, 101 A.3d at

804–05. We addressed specifically the constitutionality of Section 9712, the


____________________________________________


5
  Rule 404(b)(3) provides that “[i]n a criminal case the prosecutor must
provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of any
such evidence the prosecutor intends to introduce at trial.”        Pa.R.E.
404(b)(3).



                                          - 10 -
J-S02044-16



same mandatory minimum statute that the trial court applied instantly. We

held that the statute was facially unconstitutional.   Id. at 812; accord

Commonwealth v. Ferguson, 107 A.3d 206, 216 (Pa. Super. 2015). Our

decision in Valentine was rooted in Alleyne v. United States, 133 S. Ct.

2151, 2161-63 (2013) (holding that any fact other than a prior conviction

that triggers a mandatory minimum sentence must be found by a jury

beyond a reasonable doubt), and this Court’s decision in Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (concluding that the

appellant’s sentence was illegal and striking down 42 Pa.C.S.A. § 9712.1 as

unconstitutional).      Accordingly, we must conclude that the trial court

imposed an illegal sentence when it sentenced Appellant under Section 9712

for the robbery conviction in the First Case.

      In sum, we affirm Appellant’s convictions in both cases.      We also

affirm Appellant’s sentence with respect to the Second Case, but vacate and

remand for resentencing in the First Case. We direct that a copy of the trial

court’s March 26, 2015 Rule 1925(a) opinion be attached to any future

filings in this case.

      Judgment of sentence affirmed in part and vacated in part.        Case

remanded. Jurisdiction relinquished.




                                     - 11 -
J-S02044-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




                          - 12 -
                                                                               Circulated 02/18/2016 02:46 PM




    IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
               COMMONWEALTH OF PENNSYLVANIA
                      CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA                                     No.
                                                  43 EDA 2015
       vs.

DANIEL PREZIOSI,                                    rial Court No.:                    c--i
                                                                                       r

                                                 CR-4211-2013
               Appellant.                        CR-435-2014



                                                                                              (
                                 MEMORANDUM OPINION


                                        I.      Introduction

   This Memorandum Opinion is filed in accordance with Rule l 925(a) of the Pennsylvania

Rules of Appellate Procedure. Following a two-day jury trial before the undersigned judge on

June 3, 2014 and June 4, 2014, the Appellant, Daniel Preziosi (hereinafter, "Appellant"), was

found guilty of one count of Robbery in violation of 18 Pa.C.S.A. 370l(a)(3), a felony of the first

degree; two counts of Simple Assault in violation of 18 Pa.C.S.A. 2701 (a)(3), a misdemeanor of

the second degree; Theft by Unlawful Taking in violation of 18 Pa.C.S.A                3921 (a), a

misdemeanor of the second degree; Receiving Stolen Property in violation of 18 Pa.C.S.A.

3925(a), a misdemeanor of the second degree; and Escape in violation of 18 Pa.C.S.A. 512l(a), a

felony of the third degree. Appellant was convicted of these crimes, which arose out of his role

in an armed robbery of Wunderler's Market in Bath, Pennsylvania on October 18, 2013 as well

as his December 16, 2013 escape from his preliminary hearing on the charges stemming from the

October 18, 2013 robbery. For purposes of trial, the charges filed pursuant to the events that


                                                1



                                                                                                                l~
    occurred on October 18, 2013, docketed under case number CRA21 l-2013, were consolidated

with the charges filed pursuant to the events that occurred on December I 6, 2013, docketed

under case number CR-435-2014. At trial, Attorney Christopher Shipman represented Appellant

on all charges filed under case number CR-4211-2013, and Attorney Anthony Rybak represented

Appellant on the escape charge filed under case number CR-435-2014.1

       This Court sentenced Appellant on September 5, 2014 as follows: 1) for the charge of

Robbery, Appellant was sentenced to ninety (90) months to two hundred forty (240) months of

incarceration; 2) for the charge of Escape, Appellant was sentenced to a consecutive period of

incarceration of twenty-seven (27) to eighty-four (84) months; and 3) the counts of Simple

Assault, Theft by Unlawful Taking, and Receiving Stolen Property charges were merged into the

Robbery counts for purposes of sentencing.

       On September 12, 2014, Appellant filed the following post-sentence motions: "Denial of

Motion to Suppress Evidence," "Improper Consolidation of Cases," "In Court Identification of

the Defendant," "Denial of Motion for Mistrial," and "Motion for Transcription." This Court

denied these motions on January 5, 2015. Appellant filed a Notice of Appeal to the Superior

Court of Pennsylvania on February 4, 2015. Thereafter, on March 10, 2015, Appellant filed a

Pro Se Statement of Matters Complained of on Appeal pursuant to Pa.R.Civ.P. I 925(b).


                                  II.      Matters Complained of on Appeal

      In his Statement of Matters Complained of on Appeal, Appellant contends that this Court

erred as a matter of law and/or fact, stating the following as issues in error:


I
  Post trial, Appellant filed a Petition to have Attorney Rybak excused as his counsel, which petition this Court
granted on November 26, 2014. It was further ordered that Attorney Shipman would remain as Appellant's counsel
with respect to alt convictions that arose from both case numbers. Subsequently, on February 13, 2015, Appellant
filed a Petition to Proceed Pro Se. Following a hearing, this Court granted Appellant's Petition and Appellant now
proceeds pro se.

                                                        2
                                      ·-                                         .---.,




                           A. "The trial Court erred by denying the Motion to Suppress Evidence in the
                              instant matter";

                           B. "The trial Court erred by failing to resolve Omnibus Pre-trial Motions prior to
                              the commencement of trial in violation of Pa.R.Crim.P. 580";

                           C. "The trial Court erred by allowing improper identification evidence to be
                              admitted during trial";

                           D. "The trial Court erred by improperly consolidating the criminal informations";

                           E. "The trial Court erred by allowing irrelevant evidence relating to
                              consciousness of guilt in violation of Pa.R.E. 404(B)(2)";

                           F. "The trial Court erred by not Ordering a mistrial given that the Jury Foreman
                              was sleeping and defense counsel lodged an Objection";

                           G. "The trial Court abused its discretion by imposing a manifestly excessive
                              sentence."

                   We will address Appellant's statements of matters complained of on appeal as he has

            presented them below.

                                                       III.   Discussion

                J. "The trial Court erred by denying the Motion to Suppress Evidence in the instant
                   matter"

               Prior to Appellant's trial, Appellant's attorney, Christopher Shipman, Esquire, raised a

            Motion to Suppress Evidence in which he asserted that Appellant's warrantless arrest lacked

            probable cause, and as a result, all evidence seized during the search incident to arrest and all

            evidence seized from his vehicle pursuant to a search warrant thereafter obtained was fruit of the

            poisonous tree. This Court conducted a Suppression Hearing on June 2, 2014 and June 3, 2014.

            Thereafter, this Court denied Appellant's Motion, finding that the probable cause to arrest the

            Appellant was "overwhelming."

               The test used to determine if probable cause exists for issuing a warrant is whether under the

            totality of the circumstances "there is a fair probability that contraband or evidence of a crime


                                                              3



-------··-·-·· -······     .
                                                                   .-...   __




will be found at a particular place." Com. v. Glass, 562 Pa. 187, 754 A.2d 655 (2000).

Similarly, probable cause to arrest exists when "the facts and circumstances which are within the

knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy

information, are sufficient to warrant a man of reasonable caution in the belief that the suspect

has committed or is committing a crime." Com. v. Williams, 2 A.3d 611, 616 (Pa.Super. 2010)

(en bane). Absent some statutory provision to the contrary, a warrantless arrest must be

supported by probable cause to believe that "(1) a felony has been committed; and (2) the person

to be arrested is the felon." Id. at 624.

    The findings of fact and reasoning in support of this Court's denial of Appellant's Motion to

Suppress Evidence are found in this Court's Order of June 3, 2014 and are as follows:

       1) On the date of the robbery, at approximately 2:14 p.m., Colonial Regional Police
          received notification that an armed robbery took place at Wunderler's Market in Bath,
          Pennsy 1vania;
       2) Detective Sergeant Melinsky responded to the scene along with other patrol vehicles
          and interviewed the victims and the owners of the market, Joyce and Donald
          Wunderler;
       3) The victims provided information to Detective Sergeant Melinsky that included a
          description of the perpetrator who brandished a black semiautomatic handgun, was
          wearing a black jacket with a gray hoodie, was approximately 6 foot [sic] tall and
          approximately 175 pounds. The perpetrator was a white male. The Wunderlers
          handed the robber approximately $100 in cash in small bills;
       4) Detective Sergeant Melinsky obtained video footage from the surveillance cameras
          within the market and reviewed the footage. He was able to view images of the
          perpetrator of the robbery which matched the description provided by the victims;
       5) Detective Sergeant Melinsky was also able to view on the surveillance videotape the
          perpetrator walk into the store, point the gun at the victims, and commit the robbery.
          He was also able to view the perpetrator flee out the door of the market;
       6) Later at the station, Detective Sergeant Melinsky again reviewed the videotape and, in
          fact, viewed the videotape at least five or six times. Each viewing included images of
          the perpetrator;
       7) Detective Sergeant Melinsky and other members of the Colonial Regional Police
          Department obtained a still shot of the perpetrator from the surveillance videotape
          and disseminated it to police and to the media. The still shot photograph was
          admitted as Commonwealth Exhibit 1 and depicted a white male in a gray hooded
          sweatshirt, which matched the description provided by the victims;



                                                 4
                 ..   ,..-.........
                                                            -
8) Later in the day on the afternoon of the robbery, Officer Kovalosky received a call
     from a witness named Michael Flyte who had been in the area of the market at the
     time of the robbery. Michael Flyte had prepared a written statement of his own
     accord and provided written information to the police detailing what he observed with
     respect to the robbery;
9) Michael Flyte provided information to police that he saw a beige four-door Toyota
     Camry with front end vehicle damage near the headlight pull in quickly to a parking
     place near the market. The vehicle ran a stop sign in so doing;
10) Michael Flyte witnessed a male get out of the car and walk down an alley towards the
     market;
11) Approximately several minutes later, Michael Flyte witnessed the male return from
     the market. It was a white male, wearing a gray hoodie and black jacket. Michael
     Flyte's description matched that of the perpetrator as provided by the victims, and as
     depicted on the video;
12) Detective Sergeant Melinsky showed the still shot photograph obtained from the
     surveillance video to Michael Flyte. Michael Flyte confirmed that was the male that
     he had observed;
13) Michael Flyte also provided police with information that the vehicle contained a
     distinctive sticker in the rear window. It was a heart shaped sticker decal outlined in
     pink with zebra stripes;
14) Detective Sergeant Melinsky conducted research on the sticker and was able to
     obtain a computer image of the sticker which Michael Flyte confirmed was similar to
     the image he saw on the car;
15) At approximately 1 a.m. the next morning, Detective Sergeant Melinsky received a
     telephone call from Sergeant Enstrom of the Colonial Regional Police indicating that
     Mr. Enstrom observed a four-door beige Toyota Camry with a sticker matching the
     description provided by Michael Flyte parked in Bath near the Daily Grind coffee
     shop, and near the Fox Hotel/Gentlemen's Club;
16) Detective Sergeant Melinsky, Sergeant Enstrom, and other members of the police
     department conducted surveillance on the vehicle;
1 7) Prior to surveillance taking place, upon information believed, Sergeant Enstrom had
     observed a male approaching the vehicle. Sergeant Enstrom did not have backup
     with him at that time, and therefore, sought backup and surveillance was conducted of
     the vehicle;
18) Approximately 1 :46 a.rn., Detective Sergeant Melinsky observed a male walk out of
     the Fox Hotel, approach the car, open the back door of the car, and get in. The male
     matched the description of the perpetrator as provided by the victims and by Michael
     Flyte. The male was the same male depicted on the surveillance videotape and the
     still shot obtained therefrom. At which point, the defendant was arrested;
19) Detective Sergeant Melinsky indicated that he knew from the video that he had
     reviewed multiple times, from the still photograph, and from the description provided
     by the victims and Michael Flyte that the person getting into the car was the person
     who perpetrated the robbery;
20) The defendant was taken into custody and searched incident to arrest, Money was
     found in the defendant's pocket, including approximately eight $5 bills and ten $1
     bills;


                                         5
       21) The money found in the defendant's pocket is the subject of the motion to suppress.
           The motion to suppress the money is denied;
       22) Subsequently, the vehicle was impounded, and a search warrant was obtained for its
           contents. During the search of the vehicle, a gun was found in the trunk, which
           matched the description and depiction of the gun used in the robbery as described by
           the victims and as seen on the videotape. The gun found in the trunk is the subject of
           the suppression motion. The suppression motion with respect to the gun and any
           other items found in the car pursuant to the search warrant is denied;
       23) By way of further findings of fact that the arrest was supported by probable cause, the
           Commonwealth admitted Exhibits C-1 through C-5 depicting photos of the defendant,
           which were consistent with the description provided by the victims of the perpetrator
           of the robbery; photographs of the vehicle, which were consistent with the description
           of the vehicle provided by the witness, Michael Flyte; photographs of the sticker on
           the rear of the defendant's vehicle, which were consistent with the description of the
           sticker provided by the witness Michael Flyte; and a photo of a hooded sweatshirt and
           black jacket found inside the defendant's vehicle;
       24) In addition, Sergeant Enstrom testified consistently with the testimony of Detective
           Melinsky regarding the incidents surrounding the defendant's arrest;
       25) Detective Gary Hammer also testified consistently with Detective Sergeant Melinsky
           concerning the incidents surrounding the defendant's arrest;
       26) The Court finds, not only that the arrest was supported by sufficient probable cause,
           but that the probable cause to arrest the defendant was overwhelming.

   Based on the testimony and the foregoing findings of fact, it is exceedingly clear that

probable cause existed both to arrest Appellant and to support the issuance of the search warrant

for the content of Appellant's vehicle. Therefore, Appellant's contention that this Court erred by

denying the Motion to Suppress Evidence is without merit.


   2. "The trial Court erred by failing to resolve Omnibus Pre-trial Motions prior to the
      commencement of trial in violation of Pa.R.Crim.P. 580"

   Neither Appellant nor his counsel raised a claim orally on the record, in a pre-sentence

motion, or in a post-sentence motion, that the Court failed to resolve any outstanding omnibus

pre-trial motions. Because it is axiomatic that a party cannot raise this issue for the first time on

appeal, this claim is waived. See Pa.RA. P. 302(a).

   Even if the Appellate Court were to consider this issue, this Court did rule on all outstanding

omnibus pre-trial motions presented by counsel for both parties. The only Omnibus Pre-trial


                                                  6
Motions raised by Appellant's counsel were the Motion to Suppress Evidence, discussed supra,

and a Motion to Compel Discovery, which specifically requested the Court to order the

Commonwealth to produce a color copy of any photographic lineup created by the Police.

   As previously discussed, this Court did dispose of Appellant's Motion to Suppress Evidence.

Importantly, with respect to this Motion, Attorney Shipman conceded that the only items that he

sought to be suppressed were those seized from Appellant's car. The following discussion took

place on the record:

   Ms. Lewis: Three search warrants in this case. There was one for room 14 at the Fox bar,
   there was one for a Toyota Camry, and also one for Northampton County Prison to get an
   article of clothing that the defendant wore when he was apprehended. The first warrant
   pertained to room 14. The Commonwealth is not seeking to use it. There's no evidence
   collected so I'll not even begin challenging it because there's nothing to be used.

   Mr. Shipman: Correct.

   Ms. Lewis: The third search warrant, I believe, was gathered completely separately later in
   time. The only reason we would highlight it is it wasn't the sweatshirt that was on the video
   but we don't intend to reference to it besides that. That's just a distinguishing two
   sweatshirts. It's not being challenged in that regard. Do you still need a ruling on the third
   search warrant?

   Mr. Shipman: No. The only items we are focusing on were the ones that were seized from
   the car.

See Notes of Testimony ("N.T.") 6/2/14 at 6:6-25 and 7: 1-4.

   Further, before the start of testimony during the Suppression Hearing, the Court confirmed

with Appellant's counsel which issue remained outstanding with respect to the Appellant's

Motion to Suppress evidence:

   The Court: Mr. Shipman, just frame the issue for me. As I understand it from your motion,
   the only issue left in your motion to suppress is that police lacked sufficient reason to arrest
   the defendant without a warrant when they observed him near the getaway vehicle on
   October 19, 2013. Therefore, any evidence obtained from him as a result of his arrest must
   be suppressed, is that it?




                                                 7
                         ,-


   Mr. Shipman: That's correct. .. We're focusing on two items. There was a photo lineup that
   was done after his arrest is no longer an issue because the Commonwealth has agreed not to
   use that. The other item there were some cash denominations found, which the victim
   indicated proximate that which was taken from them, and there is a firearm that's actually a
   BB gun but it's a black firearm and that was taken from the vehicle.

Id. at 9: 18-25 and 10: 1-13. As evidenced by the foregoing, this Court ruled on all outstanding

issues in Appellant's Motion to Suppress Evidence.

   With regard to Appellant's Motion to Compel Discovery, counsel for both Appellant and the

Commonwealth agreed that this Motion was moot. Assistant District Attorney Kelly Lewis

stipulated that the Commonwealth would not be offering as evidence the two photo identification

lineups at issue. Because these photo lineups were not going to be used during trial, the

Appellant's Motion to Compel these photo lineups was moot. Appellant's counsel agreed as

evidenced by the following discussion of record:

   Ms. Lewis: Essentially, there were two photo identification lineups that were presented to
   each victim in this case. The Commonwealth is stipulating that we're not going to be
   offering them as evidence at all in this case. So they will not be challenged because they're
   not going to be used.

   The Court: The demand on the color photo lineup is withdrawn.

   Mr. Shipman: I did receive it. But if all that's moot, that wouldn't be the subject of the
   motion to suppress.




   Mr. Shipman: ... The only items we are focusing on were the ones that were seized from the
   car.

   The Court: Okay. That's what we'll focus the hearing on, and that's the portion of the
   omnibus motion that I will rule on. The rest has been disposed of, as I understand.

   Mr. Shipman: That's correct. The rest of it would be moot.

   Ms. Lewis: Just so Your Honor is aware, we'll be offering a copy of the actual search
   warrant when we begin the hearing. I believe it's the second to last paragraph does speak
   specifically to the photo lineup. Obviously, the Commonwealth is not using that so we
   would remove that, and we believe that the second to last paragraph of the search warrant for


                                                8
                                                                          .-...




    the Toyota Camry does make reference to the photo lineup which the Commonwealth has
    previously stipulated. We will not be using in this case.

Id. at 5: 19-25; 6: 1-5; 7:2-23. Because the Commonwealth stipulated that it would not be

introducing the subject photo lineup into evidence, Appellant's Motion to Compel Discovery

was moot at the time of trail. Appellant's attorney agreed that this Motion was moot. As such,

this Court did not err by failing to rule on a moot issue.

        The Commonwealth also presented pre-trial motions and/or other matters which were

disposed of prior to trial. Specifically, the Commonwealth presented a "Notice Pursuant to

Pa.R.E. 404(b)," which was subsequently withdrawn, and a "Motion of the Commonwealth to

Join Separate Informations for Trial," which this Court considered and granted.


    3. "The trial Court erred by allowing improper identification evidence to he admitted
       during trial"

    This statement of error fails to comply with Pa.R.App.P. 1925(b)(4)(ii) in that it does not

provide sufficient detail to identify the statements in question. As a result, this Court is unable to

properly address this vague statement of error.

    Nevertheless, if in this statement of error, Appellant seeks to raise the same issue which was

raised by his prior counsel in a post-sentence motion, we maintain that this issue has no merit. In

his post-sentence motion, Appellant's counsel, Mr. Shipman, raised the issue of whether the

Court committed "reversible error when it permitted a tainted in-court identification of the

Defendant by Joyce Wunderler." Appellant argued in his post-sentence motion that Joyce

Wunderler's in-court identification of Appellant was tainted because it had no basis independent

of the pre-trial photographic lineup that the Commonwealth agreed not to introduce at trial.2



2
 Joyce Wunderler previously identified Appellant by way of an uncounseled pre-trial photographic lineup.
(Appellant's Brief in Support of Post-Sentence Motions at p. 6). However, Counsel for the Commmonwealth stated

                                                      9
     As Appellant asserts in his brief in support of his post-trial motion, it is well established that

despite a witness's participation in an uncounseled pre-trial identification procedure, such as the

photo lineup in the case subjudice, the witness's in-court identification may be admitted as long

as the Commonwealth establishes by clear and convincing evidence that the in-court

identification has a basis independent of the pre-trial confrontation. Com. v. Mcintosh, 476 A.2d

1316 (Pa. Super. 1984). The factors to be considered in determining if the in-court identification

was based on the witness's observations at the time of the robbery and thus had a basis

independent of the photo lineup are:

    (1) the witness' opportunity to observe the criminal act; (2) the existence of any discrepancy
    between the witnesses' prior description of the criminal and the defendant's actual
    appearance; (3) any identification of anyone other than the defendant; ( 4) any failure to
    identify defendant; and (5) the lapse of time between the crime and the identification.

Id. at 1319.

         As to Joyce Wunderler, the evidence clearly establishes the existence of an independent

basis for in-court identification.      She testified that she was able to observe Appellant on October

18, 2013 when he came into her store at approximately 2:00 p.m. (N.T. 6/3/14 at 97:15-23). She

observed Appellant as she was trying to hit the silent alarm under the counter where she was

sitting, and she was able to observe Appellant more closely when she got up to open the register

and hand Appellant money over the counter. (Id. at 98:4-19). She testified that she was

constantly staring at Appellant while attempting to press the silent alarm. Also, when handing

Appellant the money, she was no more than two feet away from the Appellant. (Id. at 98:4-7;

l 02:4-8). Mrs. Wunderler recalled that when she observed Appellant during the robbery, he was

unmasked and was wearing a dark jacket with a light colored hoodie underneath; the hood of the

hoodie was pulled up onto his head. (Id. at 99: 10-25; 102: 13-16). Moreover, Detective Sergeant

that they agreed not to use this photo lineup at trial because it was believed that the photo lineup was not conducted
properly. (N.T. 6/2/14 at 8:2-6).

                                                          10
                            ----


Melinsky testified that he received information directly from Mrs. Wunderler regarding the

description of Appellant.      (N.T. 6/2/14 at 13:11-25).   Detective Sergeant Melinsky testified that

Mrs. Wunderler also described Appellant to him as an individual wearing a black jacket with a

gray hoodie that was up over his head. (Id. at 13: 15-21 ). Detective Sergeant Melinsky further

testified that this description of Appellant was consistent with the video surveillance, which he

viewed several times. (Id. at 26: 13-17 and 28:3- 7).

       Based on her recollection of Appellant as being the individual who came into her store on

October 18, 2013, Mrs. Wunderler identified the Appellant in the courtroom and explained that

she had identified him upon first walking into the courtroom on the morning of trial. (N.T.

6/3/ I 4 at 100: 1-4; 101: 14-25). Mrs. Wunderler also testified as to surveillance footage from her

store from October 18, 2013, which footage she previously provided to the police. (Id. at

105:13-25). According to Mrs. Wunderler's recollection, she testified that the video was a fair

and accurate representation of what occurred at her store on October 18, 2013. (Id. at 106:2-5).

While viewing the video in the presence of the jury, Mrs. Wunderler explained to the jury that it

was Appellant who walked into the store and shook a gun at her and her husband, demanding

money from the register. (Id. at 107:3-25).

       It is clear that an independent basis existed for Mrs. Wunderler's in-court identification of

Appellant given: 1) the time of day during which the robbery occurred; 2) the fact that Mrs.

Wunderler had a close, unobstructed view of Appellant, who was unmasked, during the robbery;

3) that the robbery was a circumstance likely to focus Mrs. Wunderler's attention upon

Appellant; 4) a lack of any evidence that shows that Mrs. Wunderler failed to identify Appellant;

and 5) a lack of any evidence that shows that Mrs. Wunderler identified anyone other than




                                                     11
                                                                     --...
                          -·---·



Appellant as the individual who robbed her store on October 18, 2013. See Mcintosh, supra.

Therefore, Appellant's statement of error is without merit.


    4.   "The trial Court erred by improperly consolidating the criminal informations"

         Appellant was charged with two separate Criminal Informations. Criminal Information

4211-2013 was filed on February 6, 2014, and Criminal Information 435-2014 was filed on April

3, 2014. The Appellant's action of escaping from his preliminary hearing in Case 4211-2013

was the basis for the charge in Case 435-2014.

         "The grant or denial of severance or the consolidation of charges for trial is a matter of

discretion with the trial judge, and his decision will be reversed only for manifest abuse of

discretion, or prejudice to the defendant." Com. v. Peppers, 515 A.2d 971, 973 (Pa. Super.

1986). Pennsylvania Rule of Criminal Procedure 582 (A) permits Criminal Informations to be

joined for trial if "the evidence of each of the offenses would be admissible in a separate trial for

the other and is capable of separation by the jury so that there is no danger of confusion" or "the

offenses charged are based on the same act or transaction." Pa. R. Crim. P. 582(A).

         In this case, the Commonwealth indicated its intent to introduce Appellant's escape,

which was brought under Case 435-2014, in order to show his consciousness of guilt with

respect to the crimes charged in Case 4211-2013. Also, if Appellant was to have a separate trial

on his escape charges, the fact that he was incarcerated for a robbery as a felony of the third

degree and fled from official detention would be admissible per the elements of the crime of

escape. See, 18 Pa.C.S.A. § 5121 (a), (d). Further, in Commonwealth v. Peppers, 515 A.2d 971

(Pa. Super. 1986), the Superior Court held that although the Commonwealth need only inform

the jury of the general nature of the offense for which a defendant was being held at the time of




                                                  12
the escape, the introduction at trial of the specific offense for which appellant was being held is

not unduly prejudicial.      Peppers, 515 A.2d at 974.

          Therefore, joinder of Appellant's two Criminal Informations, which were clearly

interrelated, was proper. Not only would the evidence of each of the offenses be admissible in a

separate trial for the other, but given the different elements of the offenses charged, the jury was

also capable of separating the evidence so as to avoid confusion. Also, the Appellant had

separate counsel for each information to fully and adequately represent his interests at trial. He

had the benefit of two lawyers at trial, not just one. As such, this Court did not abuse its

discretion in consolidating Defendant's charges for trial.


    5.    "The trial Court erred by allowing irrelevant evidence relating to consciousness of
         guilt in violation of Pa.R.E. 404(B)(2)"

    The Commonwealth initially presented a pre-trial "Notice Pursuant to Pa.RE. 404(b),"

notifying Appellant of its intent to introduce Appellant's "bad acts" that occurred on December

16, 2013.3 However, as indicated on the record, the attorney for the Commonwealth did not need

to pursue any issue pertaining to 404(b)(2). See N.T. 6/3/14 at 38:21-25 and 39:1-21). The facts

with respect to Appellant's escape were permitted at trial because, before the start of trial, the

escape charge was consolidated with Appellant's other charges for trial. Clearly, the

Commonwealth was permitted to present evidence to support the escape charge at trial without

having to frame this evidence as "bad acts" pursuant to Pa.RE. 404(b).

    Further, the Commonwealth was permitted to argue to the jury that flight demonstrates

Appellant's consciousness of guilt of the underlying crime because "it has long been the view in

this Commonwealth that an attempt to escape police custody shows a consciousness of guilt."

3
 Under Pa.R.E. 404(b), evidence of"bad acts" may be used in order to prove "motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident" only if the probative value of the
evidence outweighs its potential for unfair prejudice. Pa.R.E. 404(b )(2).

                                                          13
Also, "[ w]hen a person knows that he is wanted in connection with a criminal investigation, and

flees or conceals himself, such conduct is admissible as evidence of consciousness of guilt" and

can be established through eyewitness testimony. Com. v. Hudson, 955 A.2d 1031 (Pa. Super.

2008); see also Com. v. Green, 76 A.3d 575 (Pa. Super. 2013) appeal denied, 87 A.3d 318 (Pa.

2014); Com. v. Pestinikas, 617 A.2d 1339 (Pa. Super. 1992); Com. v. Paddy, 569 Pa. 47, 800

A.2d 294 (2002); Com. v. Coyle, 415 Pa. 3 79, 203 A.2d 782 ( 1964 ); Com. v. Tedford, 523 Pa.

305, 567 A.2d 610 (1989).

    A jury may infer that a defendant was aware of his fugitive status from the circumstances

surrounding his flight. Com. v. Rios, 546 Pa. 271, 684 A.2d 1025 (1996). Additionally, case law

with respect to this issue does not factor in any length of time between the underlying crime and

the escape. See Hudson, supra. (Defendant's flight was admissible as evidence of consciousness

of guilt when the date of the crime was December 6, 2001 and police did not locate Defendant

until September 2004 at which time Defendant fled from police); Com. v. Thompson, 559 Pa.

229, 739 A.2d 1023 (1999) (Defendant's attempt to escape police custody was admitted to show

consciousness of guilt when Defendant tried to conceal himself while awaiting his preliminary

arraignment the day following his arrest). Appellant's counsel, Attorney Shipman, confirmed

that he could not find any caselaw to the contrary. (N.T. 6/4/14 at 79:1-15).

   Therefore, the facts surrounding Appellant's December 16, 2013 flight from his preliminary

hearing on the underlying robbery charges obtained on October 18, 2013, were permitted to be

heard at trial. Further, based on the relevant legal precedent, the Commonwealth was permitted

to argue that Appellant's flight showed a consciousness of guilt.




                                                14
                         .-


   6. "The trial Court erred by not Ordering a mistrial given that the Jury Foreman was
      sleeping and defense counsel lodged an Objection"

   Appellant claims that the trial court erred by denying his pre-sentence motion for a new trial

based on his assertion that the Jury Foreman was nodding off or sleeping during the charge of the

Court. See N.T. 9/5/2014 at 5:6-11. However, we disagree with Appellant that any member of

the jury nodded off or slept during any part of the charge to the jury. This Court, which is

extremely cognizant of the alacrity of the jury during every trial before it, did not observe any

member of the jury nodding off during this particular trial. Further, the record is completely

devoid of any observation that a member of the jury was sleeping during the charge of the Court,

and no such objection was placed on the record at the time of trial. Additionally, neither

Appellant nor counsel for Appellant filed a timely motion regarding this issue. Instead,

Appellant's then counsel, Attorney Rybak, made an oral motion for extraordinary relief pursuant

to Pennsylvania Rule of Criminal Procedure 704 just before Appellant was about to be sentenced

on September 5, 2014. Id. at 6:10-18.

   Although Mr. Rybak made a motion pursuant to Rule 704, Appellant has failed to preserve

his issue for appellate review because he did not file any post-trial motions with respect to same.

Rule 704 of the Pennsylvania Rules of Criminal Procedure permits a trial judge to hear an oral

motion for extraordinary relief prior to sentencing. Pa.R.Crim.P. 704(8)(1).    In pertinent part,

Rule 704 provides:

       (B) Oral Motion for Extraordinary Relief.
       (1) Under extraordinary circumstances, when the interests of justice require,    the trial
       judge may, before sentencing, hear an oral motion in an-est of judgment, for     a judgment
       of acquittal, or for a new trial.
       (2) The judge shall decide a motion for extraordinary relief before imposing     sentence,
       and shall not delay the sentencing proceeding in order to decide it.
       (3) A motion for extraordinary relief shall have no effect on the preservation   or waiver of
       issues for post-sentence consideration or appeal.



                                                 15
Pa.R.Crim.P. 704. (emphasis in original). The Superior Court has held that "Rule 704 ...

specifically declares that any motion for extraordinary relief must be preserved via a post-trial

motion." Commonwealth v. Askew, 907 A.2d 624, 627 (Pa. Super. 2006) (emphasis in original).

In applying Rule 704(B), the Superior Court has explained:

       The comment to the rule clarifies that a motion for extraordinary relief is neither
       necessary nor sufficient to preserve an issue for appeal. This Court has consistently held
       that we will not allow such motions as a 'substitute vehicle' for raising a matter that
       should be raised in a post-sentence motion.

id. (internal citations, quotations, and footnotes omitted); see also Com. v. Grohowski,

980 A.2d 113, 115-16 (Pa. Super. 2009); Com. v. Woods, 909 A.2d 372, 378~79 (Pa.

Super. 2006). Rule 704 makes clear that the pre-sentence motion alone, which was raised by

Appellant's counsel, was neither necessary nor sufficient to preserve his issue for appeal to this

Court. See Askew, 907 A.2d at 627; Howe, 842 A.2d at 441; Pa.R.Crim.P. 704(B)(3), comment.

       Because Appellant did not raise this issue at the time of trial and failed to file a post-

sentence motion with respect to this particular issue, he failed to preserve the issue for appeal.

See Askew, 907 A.2d at 627; See also Appellant's Post-Sentence Motions, 9/12/14. Appellant

raised this issue only in a verbal motion for extraordinary relief, and under Rule 704, any motion

for extraordinary relief must be preserved via a post-trial motion. Therefore, Appellant's motion

for extraordinary relief was insufficient to preserve the issue for appeal. See Askew, 907 A.2d at

627.

       Even if Appellant preserved this issue for appeal, there would be no basis for a mistrial.

Our Superior Court has established that "Rule 704(B) is intended to allow the trial judge the

opportunity to address only those errors so manifest that immediate relief is essential."

Grohowski, 980 A.2d at 115. In this case, a new trial was not wan-anted in the interest of justice

under Rule 704(B).


                                                 16
         The Superior Court has held that "[a] trial court has an 'immemorial right to grant a new

trial, whenever, in its opinion, the justice of a particular case so requires."' Com. v. Dorm, 971

A.2d 1284, 1288 (Pa. Super. 2009) (citing Com. v. Powell, 527 Pa. 288, 590 A.2d 1240, 1242

(1991 )). "[T[he 'interest of justice' is a historically recognized basis for the award of a new

trial." Id. at 1288. However, "[t]he granting of a new trial in the interest of justice cannot be

arbitrary, but must be supported by the record." Com. v. Riley, 643 A.2d 1090, 1093 (Pa. Super.

1994). As discussed supra, nowhere in the record is there any mention of a member of the jury

falling asleep. Therefore, based on the thorough record in the instant case as well as this Court's

careful observation of the jury and independent recollection of the jury at the time of trial, the

interest of justice would not be served whatsoever were the Court to grant a mistrial based on

this issue.


    7.   "The trial Court abused its discretion by imposing a manifestly excessive sentence"

         Primarily, we submit that the sentence imposed was within the proper sentencing

guidelines. In fact, defense counsel confirmed that the guidelines submitted to the Court were

correct. (N.T. 9/5/14 at pp.8-9). Counsel also confirmed that the Court could rely on Appellant's

prior record score as set forth on the sentencing guideline forms. Id. at 7:14-18. Nevertheless,

Appellant is arguing that the sentence was "manifestly excessive."

         A claim for misapplication of sentencing guidelines constitutes a challenge to the

discretionary aspects of a sentence. Commonwealth v. Archer, 722 A. 2d 203, 210 (Pa. Super.

1998). The standard of review of discretionary aspects of sentencing is an abuse of discretion.

Id. at 211. "Discretion is abused when the course pursued [by the trial court] represents not

merely an error of judgment, but where the judgment is manifestly unreasonable or where the

law is not applied or where the record shows that the action is a result of partiality, prejudice,


                                                  17
bias or ill will." Id. (citing Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996)); See

also 42 Pa.C.S. § 978l(c).

           We maintain that the statutory limits, as applied in this case, were proper. Under

Pennsylvania's Sentencing Code, 42 Pa.C.S. § 9701 et seq., a trial court must "follow the general

principle that the sentence imposed should call for confinement that is consistent with the

protection of the public, the gravity of the offense as it relates to the impact on the life of the

victim and on the community, and the rehabilitative needs of the defendant." Commonwealth v.

Ward, 524 Pa. 48, 568 A.2d 1242, 1243 (1990); See also, 42 Pa.C.S. § 972l(b).         At the time of

Appellant's sentencing, the Court took into account the sentencing guidelines, the entire pre-

sentence investigation, Appellant's psychological evaluation, Appellant's prior record score of

five, the effect upon the victims and the community, the testamentary evidence at trial and at the

time of sentencing, and various other relevant factors including Appellant's drug and alcohol

abuse, the seriousness of the charges, and Appellant's failure to accept responsibility for them

See, N .T., 9/5/14 at pp. 16-19. Taking all of those factors into consideration, the Court sentenced

Appellant to an aggregate sentence of 117 to 324 months of incarceration.       Id. at 19:15-17.

           The Sentencing Guidelines with respect to the charge of robbery provide for a standard

range sentence of 78 to 90 months of incarceration as a minimum with an aggravated range

sentence of 102 months as a minimum and a mitigated range sentence of 66 months as a

minimum. For this offense, the statutory maximum is 240 months or 20 years, and there is a

mandatory minimum sentence of 60 months of incarceration.          With respect to each charge of

simple assault", the Sentencing Guidelines provide for a standard range sentence of 12 months as

a minimum, and a mitigated sentence of 9 months as a minimum. The statutory maximum for

this offense is 24 months. With respect to the charge of theft by unlawful taking, the Sentencing
4
    Appellant was charged with two counts of simple assault.

                                                         18
Guidelines provide for a standard range sentence of 7 to 12 months of incarceration as a

minimum with a mitigated sentence of 6 months as a minimum. The statutory maximum for this

offense is 24 months. With respect to the charge ofreceiving stolen property, the Sentencing

Guidelines provide for a standard range sentence of 7 to 12 months of incarceration as a

minimum with a mitigated sentence of 6 months as a minimum. The statutory maximum for this

offense is 24 months. With respect to the charge of escape, the Sentencing Guidelines provide

for a standard range sentence of 21 to 27 months of incarceration as a minimum with an

aggravated range sentence of 33 months as a minimum and a mitigated range sentence of 15

months as a minimum.     The statutory maximum for this offense is 84 months or 7 years. For

sentencing purposes, Appellant's simple assault, theft by unlawful taking, and receiving stolen

property counts were merged into the robbery counts.

        Therefore, given the relevant Sentencing Guidelines, as well as Appellant's prior record

score, the sentence that we imposed of 117 months to 324 months, or 9 years and 9 months to 19

years and 6 months, was appropriate and within the stated guideline ranges. As such, this

statement of error is without merit.

                                          IV.     Conclusion

        In conclusion and as indicated above, this Court did not err as a matter of law and/or fact

in the matter subjudice, and Appellant's appeal should be denied.



                                                BY THE COURT,




                                             ~VOLD,JUD;E

DATE:



                                                 19
