J-S60007-19


                                   2020 PA Super 21

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRANDON COLE BEATTY                        :
                                               :
                       Appellant               :   No. 426 MDA 2019

       Appeal from the Judgment of Sentence Entered December 19, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0005344-2017


BEFORE:      SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

OPINION BY SHOGAN, J.:                         FILED: FEBRUARY 4, 2020

        Appellant, Brandon Cole Beatty, appeals from the judgment of sentence

entered following his conviction of criminal conspiracy to possess a controlled

substance with intent to deliver (“PWID”).1           We vacate and remand for

resentencing.2

        The trial court summarized the factual and procedural history of this

case as follows:

             [Appellant’s] jury trial began on October 29th, 2018. The
        Commonwealth presented substantial evidence related to the
        death of De’Andre Gaskins [(“Gaskins”)], for which [Appellant]
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 903(a)(1), 35 P.S. § 780-113(a)(30).
2We note our disapproval of the Commonwealth’s failure to file a brief in this
matter.
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       was charged with drug delivery resulting in death.1,[3] The jury
       found [Appellant] not guilty of that charge. However he was found
       guilty of criminal conspiracy to deliver heroin with fentanyl. The
       evidence presented for that charge is as follows.

              1   The decedent, [Gaskins,] died of Fentanyl Toxicity.

              The Commonwealth presented the testimony of Jamel Tuff
       [(“Tuff”)]. Tuff had numerous pending charges involving dealing
       narcotics, specifically fentanyl, including also being charged with
       drug delivery resulting in death for the death of the victim in this
       case, [Gaskins]. Tuff testified that he had no agreement with the
       Commonwealth as to his pending charges in exchange for his
       testimony, and had not been offered immunity by the
       Commonwealth for his testimony. Tuff stated that while he had
       no agreement with the Commonwealth for his testimony, he
       hoped for consideration for the sentences he faced for his charges
       and was partially motivated by this to testify. Tuff was a user of
       illegal drugs, regularly abusing opiates and cocaine. At the time
       of his testimony, Tuff had been incarcerated at the York County
       Prison for 22 months, during which his health significantly
       improved as he was not able to abuse drugs as he had been on
       the streets. Tuff testified he had no knowledge as to the
       manufacture or chemical composition of the illegal substances he
       ingested. He testified, for example, that if he wanted cocaine and
       purchased powder, the only way he would know the powder was
       cocaine and not baking soda, would be to ingest the drugs.

             Tuff testified that he would sell drugs to support his habit.
       He would get 10 to 15 grams of heroin, and sell just enough of it
       to make a profit so that he could get another 10 to 15 grams to
       keep the cycle going, with the remaining drugs going to personal
       use.    Tuff knew [Gaskins] from high school, and would
       occasionally do drugs with him. On December 23rd, 2016, Tuff
       met with Gaskins because Gaskins wanted to purchase heroin
       from [Tuff].
____________________________________________


3 Appellant was charged with four counts: count 1, drug delivery resulting in
death, 18 Pa.C.S. § 2506(a); count 2, manufacture, deliver or possession with
intent to manufacture or deliver, 35 P.S. § 780-113(a)(30); count 3, criminal
conspiracy to manufacture, deliver or possession with intent to manufacture
or deliver, 18 Pa.C.S. § 903(a)(1)–35 P.S. § 780-113(a)(30); and count 4,
involuntary manslaughter, 18 Pa.C.S. § 2504(a).

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            Gaskins arrived at the place Tuff was living at the time and
     was given what was believed to be heroin, which was purchased
     from [Appellant]. After Gaskins injected the supposed heroin he
     told Tuff that he wanted more. Tuff and Shane Ditzler already had
     a meeting arranged with [Appellant] to purchase more heroin.
     The meeting with [Appellant] was to take place behind a nearby
     Turkey Hill [store]. Tuff testified that he then received a phone
     call from [Appellant] to meet behind the Turkey Hill a block away.
     When they arrived, [Appellant] was alone in his car, sitting in the
     driver’s seat.

            Tuff testified that he and Ditzler then sat in the car, Ditz[l]er
     in the front passenger’s seat and Tuff in the backseat. Tuff
     testified that the intent of getting in the car was to purchase heroin
     from [Appellant]. Eventually Gaskins arrived at the car because
     Tuff and Ditzler needed his money to help pay [Appellant] and for
     Gaskins to get his share of the heroin. Tuff testified that the
     money went from Gaskins to Ditzler and then Ditzler gave the total
     to [Appellant]. Tuff further testified that the heroin went from
     [Appellant] to Ditzler and Tuff, where Tuff separated it into two
     (2) bags, and Gaskins was given his share. Tuff then got out of
     [Appellant’s] car and walked back to the apartment. Gaskins
     walked with Tuff as far as the Turkey Hill. Tuff testified that Ditzler
     stayed in the car with [Appellant] and they went to go get other
     drugs for Ditzler. Tuff testified that at the time he had no other
     sources of supply for heroin other than [Appellant]. Tuff was
     familiar with where [Appellant] was living at the time and
     identified the location as King Street and Edgar Street in York.
     Tuff also testified that if Gaskins were not a part of the transaction,
     he and Ditzler still would have met with [Appellant] to purchase
     heroin.

           The Commonwealth then presented testimony of Shane
     Ditzler. Ditzler had numerous pending charges involving dealing
     narcotics, specifically fentanyl, including also being charged with
     drug delivery resulting in death for the death of the victim in this
     case, [Gaskins]. Ditzler testified that he had no agreement with
     the Commonwealth as to his pending charges in exchange for his
     testimony, and had not been offered immunity by the
     Commonwealth for his testimony. Ditzler stated that while he had
     no agreement with the Commonwealth for his testimony, he
     hoped for consideration for the sentences he faced for his charges
     and was partially motivated by this to testify.


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           Ditzler testified that other than ingesting, he had no way of
     knowing what the substance was that he purchased for his own
     use and sale to others. Ditzler was spending between $50 and
     $200 daily on drugs in December of 2016. Ditzler would sell drugs
     to support his habit, and he would just sell enough in order to
     maintain his habit. Ditzler testified that on December 23, 2016,
     Tuff brought Gaskins to where Ditzler was staying at the time, sold
     Gaskins heroin and Gaskins injected it. Ditzler planned on buying
     drugs from [Appellant] that day and before Gaskins arrived Ditzler
     had a buy set up with [Appellant]. Ditzler testified that he and
     Tuff were out of heroin and Gaskins wanted more, so a deal to
     also purchase heroin from [Appellant] was set up.

            Ditzler testified that all three walked toward Turkey Hill to
     meet with [Appellant]. Tuff and Ditzler walked to [Appellant’s]
     car and Tuff received a phone call from [Appellant] that he was
     ready to meet. Ditzler testified that it wasn’t unusual to meet in
     [Appellant’s] car, but they would also meet at [Appellant’s] house
     located off Edgar Street. At [Appellant’s] car Ditzler got in the
     front passenger’s seat and Tuff sat in the backseat. Ditzler
     testified that eventually Gaskins walked up to the car as well.
     Ditzler testified that Tuff split up the heroin they bought from
     [Appellant]. Ditzler testified that Tuff then got out of the car and
     left the area with Gaskins. Ditzler left the area with [Appellant] in
     his car to go and get the drug known as “Molly.”

           The Commonwealth also called Detective Patrick Gartrell,
     Northern York County Regional Police and York County Drug Task
     Force, to testify[.] Detective Gartrell assisted in the investigation
     concerning the present matter. Specifically, Gartrell obtained the
     security surveillance video from the Turkey Hill as part of the
     investigation. Based on his interactions with Tuff, Ditzler, and
     Gaskins[,] Detective Gartrell was able to identify them in the
     surveillance video as it was played in open court with the jury
     present. Gartrell testified that Tuff, Ditzler, and Gaskins were in
     the area of the Turkey Hill. Tuff and Ditzler began walking west
     toward Mason Avenue, and eventually Gaskins followed them.
     Approximately 4 minutes later in the video[,] Gaskins and Tuff
     returned to the Turkey Hill before separating.

            The Commonwealth next called Detective Michael Hine,
     Northern York County Regional Police, to testify. Detective Hine
     testified that Shane Ditzler was interviewed three (3) times
     concerning the investigation in this case. Hine testified that across

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        the interviews with Ditzler the scene, number and identities of the
        peo[p]le present remained consistent. Specifically, Ditzler was
        consistent in the fact that [Appellant] was at the location where
        the drug deal took place. Detective Hine testified that he was able
        to determine [Appellant’s] address to be 11 Edgar Street in York,
        the same address pointed out by Tuff and Ditzler.

              After the Commonwealth closed its case in chief, [Appellant]
        elected not to testify, and put on no evidence. After both parties
        closed and the instructions were given, the jury retired to
        deliberate, and in turn returned a verdict of guilty on the charge
        of criminal conspiracy to deliver heroin with fentanyl. The Court
        sentenced [Appellant] to 84 to 168 months for the crime of
        criminal conspiracy to deliver heroin with fentanyl.

             [Appellant] timely filed a notice of appeal,[4] and then
        submitted a statement as directed.

Trial Court Opinion, 5/30/19, at 2-7 (internal citations omitted).

        Appellant presents the following issues for our review:

        Did the jury err in finding sufficient evidence to support a
        conviction as there was no evidence presented to support a
        conspiracy to deliver[] heroin with fentanyl?

        Was the verdict of the jury against the weight of the evidence and
        did the [l]ower [c]ourt err in not finding so after the issue was
        raised in a Post Sentence Motion?

        Did the [l]ower [c]ourt abuse its discretion in sentencing Appellant
        to seven to fourteen years in prison for being found guilty of a
        crime which had a standard range of sentence of 21 to 27 months
        and a maximum sentence of fifteen years?

Appellant’s Brief at 6.5
____________________________________________


4   A post-sentence motion was also filed; it was denied on February 27, 2019.

5 We need not reach an issue regarding sentencing if we were to find in
Appellant’s favor on one of his other claims. Thus, we have renumbered
Appellant’s issues and will address his claims of insufficient evidence and



                                           -5-
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       In his first issue, Appellant argues that there was insufficient evidence

to establish that there was an agreement to deliver heroin with fentanyl.

Appellant’s Brief at 20. Appellant asserts that the Commonwealth’s argument

during trial was that the agreement was to deliver only heroin. Id. Appellant

states that there was no evidence that there was an agreement to deliver

heroin with fentanyl.          Id.      Appellant further maintains that “[t]he

Commonwealth had every right to charge Appellant with [intent to deliver

heroin] but chose not to.” Id. at 21. As a result, Appellant contends: “To

ignore the clear meaning of the charge and the verdict slip is improper. The

jury erred in finding the Appellant guilty of the charge of Conspiracy [to deliver

heroin and fentanyl] and the [l]ower [c]ourt erred in not correcting this

mistake.” Id.

       The standard for evaluating sufficiency claims is as follows:

       The standard we apply in reviewing the sufficiency of the evidence
       is whether viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact-finder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, we may not weigh
       the evidence and substitute our judgment for the fact-finder’s].
       In addition, we note that the facts and circumstances established
       by the Commonwealth need not preclude every possibility of
       innocence. Any doubts regarding a defendant’s guilt may be
       resolved by the fact-finder unless the evidence is so weak and
       inconclusive that as a matter of law no probability of fact may be
       drawn from the combined circumstances. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
____________________________________________


weight of the evidence claims first. Commonwealth v. Shamberger, 788
A.2d 408, 412 (Pa. Super. 2001).

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     must be evaluated and all evidence actually received must be
     considered. Finally, the finder of fact while passing upon the
     credibility of witnesses and the weight of the evidence produced,
     is free to believe all, part or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

     Pursuant to the Crimes Code, conspiracy is defined as follows:

     § 903. Criminal conspiracy

     (a) Definition of conspiracy.-- A person is guilty of conspiracy
     with another person or persons to commit a crime if with the intent
     of promoting or facilitating its commission he:

           (1) agrees with such other person or persons that they
           or one or more of them will engage in conduct which
           constitutes such crime or an attempt or solicitation to
           commit such crime; or

           (2) agrees to aid such other person or persons in the
           planning or commission of such crime or of an attempt
           or solicitation to commit such crime.

18 Pa.C.S. § 903(a).

     A conspiracy is almost always proved through circumstantial
     evidence. The conduct of the parties and the circumstances
     surrounding their conduct may create a web of evidence linking
     the accused to the alleged conspiracy beyond a reasonable doubt.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)

(internal citations and quotation marks omitted).

     To sustain a conviction of criminal conspiracy:

     The Commonwealth must establish that the defendant (1) entered
     into an agreement to commit or aid in an unlawful act with another
     person or persons, (2) with a shared criminal intent, and (3) an
     overt act done in furtherance of the conspiracy. Circumstantial
     evidence may provide proof of the conspiracy. The conduct of the
     parties and the circumstances surrounding such conduct may



                                    -7-
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      create a web of evidence linking the accused to the alleged
      conspiracy beyond a reasonable doubt.

      Additionally[,] an agreement can be inferred from a variety of
      circumstances including, but not limited to, the relation between
      the parties, knowledge of and participation in the crime, and the
      circumstances and conduct of the parties surrounding the criminal
      episode. These factors may coalesce to establish a conspiratorial
      agreement beyond a reasonable doubt where one factor alone
      might fail.

Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa. Super. 2005)

(internal citation omitted).

      Furthermore, PWID is defined as follows:

      (a) The following acts and the causing thereof within the
      Commonwealth are hereby prohibited:

                                    * * *

            (30) Except as authorized by this act, the
            manufacture, delivery, or possession with intent to
            manufacture or deliver, a controlled substance by a
            person not registered under this act, or a practitioner
            not registered or licensed by the appropriate State
            board, or knowingly creating, delivering or possessing
            with intent to deliver, a counterfeit controlled
            substance.

18 P.S. § 780-113(a)(30).

      In addressing this issue, the trial court provided the following analysis:

            Under 18 Pa.C.S.A. § 903(a)(1), criminal conspiracy, the
      Commonwealth does not have to prove that there was an express
      agreement to perform the criminal act; rather, a shared
      understanding that the crime would be committed is sufficient.
      Commonwealth v. Nypaver, 69 A.3d 708 (Pa.Super. 2013).
      There are four factors to be utilized in deciding if a conspiracy
      existed: 1) an association between alleged conspirators; 2)
      knowledge of the commission of the crime; 3) presence at the
      scene of the crime; and 4) in some situations, participation in the

                                     -8-
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      object of the conspiracy. Commonwealth v. Feliciano, 67 A.3d
      19, 25 (Pa.Super.2013). Here, [Appellant] had an association
      with his co-defendants, in that they both testified to knowing
      [Appellant] for years and bought drugs from him before. In fact,
      [Tuff] testified that [Appellant] was his only supplier at the time.
      As they were all in the vehicle when the deal occurred, then the
      third factor is satisfied as they were at the scene of the crime. As
      for the final two factors, all participants had knowledge of and
      participation in the crime, as [Appellant] was the point of contact
      for Tuff and Ditzler to obtain drugs for their own use and sale, and
      both testified to contacting [Appellant] on the date of incident in
      order to arrange for a sale.

             While [Appellant] asserts that the testimony of the co-
      conspirators only concerned a sale of heroin and there was no
      express mention of an agreement to purchase heroin with
      fentanyl, this argument is not persuasive. [Tuff] and [Ditzler]
      testified that the only way they could tell exactly what the
      substance was that they purchased was by ingestion. A jury could
      reasonabl[y] infer from this testimony that [Appellant] conspired
      to deliver heroin regardless of what it was mixed or cut with,
      including fentanyl. Additionally, the conspiracy found only needs
      to be an agreement to commit an unlawful act, which in this
      instance was possession with the intent to deliver a controlled
      substance. Whether that substance is heroin or heroin with
      fentanyl is of no moment. By these facts, a jury could reasonably
      find [Appellant] guilty of criminal conspiracy to deliver[] of heroin
      with fentanyl beyond a reasonable doubt.

Trial Court Opinion, 5/30/19, at 9-10 (footnote omitted).

      The statute defining the offense of possession with intent to deliver

proscribes delivery of a controlled substance. 18 P.S. 780-113(a)(3). The

provision itself does not designate the controlled substance. In other words,

the specific identity of the controlled substance is not an element of the

offense. The identity is only relevant for gradation and penalties based on the

relevant schedule. 18 P.S. § 780-104. Specifically, heroin is a Schedule I

substance, 18 P.S. § 780-104 (1)(ii)(10); Fentanyl is a schedule II substance,

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18 P.S. § 780-104(2)(ii)(6). Section 780-113(f)(1) provides the following with

regard to a violation of Section (a)(30) resulting from PWID of schedule I or

II controlled substances:

      (f) Any person who violates clause (12), (14) or (30) of subsection
      (a) with respect to:

              (1) A controlled substance or counterfeit substance
              classified in Schedule I or II which is a narcotic drug,
              is guilty of a felony and upon conviction thereof shall
              be sentenced to imprisonment not exceeding fifteen
              years, or to pay a fine not exceeding two hundred fifty
              thousand dollars ($250,000), or both or such larger
              amount as is sufficient to exhaust the assets utilized
              in and the profits obtained from the illegal activity.

35 P.S. § 780-113(f)(1) (internal footnote omitted).

      The evidence of record, viewed in the light most favorable to the

Commonwealth, supports that conclusion that Appellant was in possession of

a controlled substance with intent to deliver it. Furthermore, as the trial court

explained, the elements of criminal conspiracy are also met. Accordingly, the

trial court did not err in concluding that there was sufficient evidence of record

to establish that Appellant had conspired to provide a controlled substance to

the victim.

      The fact that the substance was heroin with fentanyl, not solely heroin,

is of no significance for purposes of establishing the elements of the statute.

Heroin and fentanyl are both controlled substances. Moreover, this Court has

explained:

      A person who intends to possess a controlled substance, believes
      he possesses a controlled substance, and in fact possesses a

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         controlled substance is guilty of [possession of a controlled
         substance]. The only knowledge that is required to sustain the
         conviction is knowledge of the controlled nature of the substance.
         The defendant need not know the chemical name or the precise
         chemical nature of the substance.

Commonwealth v. Sweeting, 528 A.2d 978, 980 (Pa. Super. 1987). Thus,

the evidence supports the conclusion that the parties conspired to possess

with intent to deliver a controlled substance. Appellant is entitled to no relief

on this claim.

         Appellant next contends that his convictions for possession with intent

to deliver and conspiracy were against the weight of the evidence. Appellant’s

Brief at 22.     In support of his claim, Appellant argues that there was no

evidence presented that there was a conspiracy to deliver heroin with fentanyl.

Id. Appellant maintains that as a result, a verdict was entered “that was not

supported by any evidence and the [l]ower [c]ourt did not correct the error.

The decision of the [l]ower [c]ourt serves to shock one’s sense of justice.” Id.

at 23.

         “A motion for a new trial based on a claim that the verdict is against the

weight of the evidence is addressed to the discretion of the trial court.”

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).

               An appellate court’s standard of review when presented with
         a weight of the evidence claim is distinct from the standard of
         review applied by the trial court:

                     Appellate review of a weight claim is a review of
               the exercise of discretion, not of the underlying
               question of whether the verdict is against the weight
               of the evidence. Because the trial judge has had the

                                       - 11 -
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            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the evidence.
            One of the least assailable reasons for granting or
            denying a new trial is the lower court’s conviction that
            the verdict was or was not against the weight of the
            evidence and that a new trial should be granted in the
            interest of justice.

Id. at 1055 (internal citations and emphasis omitted).

      As discussed in our analysis of Appellant’s sufficiency-of-the-evidence

claim, evidence regarding the specific controlled substance delivered was

unnecessary for a conviction of the charged crime. As explained, both heroin

and fentanyl are controlled substances, possession and delivery of which are

proscribed by 18 Pa.C.S. § 780-113(a)(30).         Moreover, we concluded that

there was sufficient evidence of record to convict Appellant of conspiracy to

deliver a controlled substance. As a result, Appellant’s contention that the

Commonwealth’s lack of evidence regarding an intent to deliver heroin with

fentanyl is of no moment, and does not result in the trial court’s conclusion

being against the weight of the evidence. Because we discern no abuse of

discretion, Appellant is entitled to no relief on this claim.

      In his final issue, Appellant argues that the trial court abused its

discretion by sentencing him to seven to fourteen years of incarceration.

Appellant’s Brief at 17. Appellant asserts that the conspiracy conviction had

an offense gravity score of six, with the standard range of sentencing being

twenty-one to twenty-seven months.          Id.   Appellant states that he was

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sentenced to seven to fourteen years of incarceration.           Id.   However,

Appellant also acknowledges “that the maximum that Appellant could have

received on the [c]onspiracy charge was 15 years and the [c]ourt’s sentence

did not exceed this.” Id. at 17-18. Furthermore, Appellant argues that the

trial court erred because:

      In the present case, it appears that the [c]ourt sentenced
      Appellant by considering the totality of the charges as opposed to
      what Appellant was found guilty of. In addition, by stressing
      Appellant’s prior drug offenses the [c]ourt appeared to consider
      the prior offenses not only in calculating a prior record but also in
      going outside the aggravated range.

Id. at 18.

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

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

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

discretionary aspects of a sentence, the appeal should be considered a petition

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

Super. 2007).

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

Super. 2010):

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

                   We conduct a four-part analysis to determine:
             (1) whether appellant has filed a timely notice of
             appeal, see Pa.R.A.P. 902 and 903; (2) whether the
             issue was properly preserved at sentencing or in a
             motion to reconsider and modify sentence, see

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             Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
             fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
             is a substantial question that the sentence appealed
             from is not appropriate under the Sentencing Code,
             42 Pa.C.S.A. § 9781(b).

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

2006)).

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

Appellant filed a timely appeal; Appellant preserved the issue of imposition of

an excessive sentence in his post-sentence motion; and Appellant included a

statement raising this issue in his brief pursuant to Rule 2119(f). Moury, 992

A.2d at 170. Therefore, we address whether Appellant raises a substantial

question requiring us to review the discretionary aspects of the sentence

imposed by the sentencing court.

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

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

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

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

that   the   sentence   is   not   appropriate   under   the   Sentencing   Code.

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

substantial question exists where an appellant sets forth a plausible argument

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

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




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

imposed a sentence of eighty-four to 168 months, which was beyond the

aggravated guidelines range.       Appellant’s Brief at 14.     Appellant further

maintains that the trial court erred for the following reasons:

      The reasoning given by the [c]ourt was that Appellant had four
      prior possession with intent to deliver charges. When Appellant
      argued that this was taken into account with his prior record score,
      the [c]ourt stated in its 1925 Opinion that “the fact that this
      matter involved deadly drugs of opioids was also considered.” It
      is well established that a [c]ourt cannot punish a defendant for
      taking a case to trial. In this case, Appellant went to trial and was
      found not guilty of three of the four charges. It is argued that by
      imposing the sentence that the [c]ourt did, Appellant was
      punished for charges in which he exercised his right to a trial and
      was found not guilty.

Appellant’s Brief at 14-15.

      Appellant’s claim raises a substantial question for our review.         See

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

the appellant asserts that the trial court failed to state sufficiently its reasons

for imposing sentence outside the sentencing guidelines, we will conclude that

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

Appellant has presented a substantial question, we proceed with our analysis.

      Where, as here, a court imposes a sentence outside of the Sentencing

Guidelines, the court must provide, in open court, a contemporaneous

statement of reasons in support of its sentence. 42 Pa.C.S. § 9721(b).

            [A sentencing] judge ... [must] demonstrate on the record,
      as a proper starting point, its awareness of the sentencing
      guidelines. Having done so, the sentencing court may deviate
      from the guidelines, if necessary, to fashion a sentence which

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      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 it also states of record the factual basis
      and specific reasons which compelled it to deviate from the
      guideline range.

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

and brackets omitted).

      Moreover, in Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super. 2002),

a panel of this Court also stated:

      [W]hen deviating from the sentencing guidelines, a trial judge
      must indicate that he understands the suggested ranges.
      Commonwealth v. Rodda, 1999 PA Super 2, 723 A.2d 212, 214
      (Pa. Super. 1999) (en banc). However, there is no requirement
      that a sentencing court must evoke “magic words” in a verbatim
      recitation of the guidelines ranges to satisfy this requirement. Id.
      at 215. Our law is clear that, when imposing a sentence, the trial
      court has rendered a proper “contemporaneous statement” under
      the mandate of the Sentencing Code “so long as the record
      demonstrates with clarity that the court considered the sentencing
      guidelines in a rational and systematic way and made a
      dispassionate decision to depart from them.” Id. at 216.

Griffin, 804 A.2d at 8.

      At the sentencing hearing, the trial court stated the following in imposing

Appellant’s sentence:

            Presentence investigation report was ordered to be
      completed prior to the sentencing. It is noted the [c]ourt reviewed
      and considered its contents. [Appellant’s] prior record score is a
      five. The charges before this [c]ourt for sentencing have the
      following offense gravity score: CC delivery of heroin is a six.

                                        * * *

      Let me address a couple of matters before I impose the sentence.
      The defense is right in part and not so right in part on one thing

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     which is that the prior deliveries are already incorporated into the
     prior record score. We don’t, you know, double that up in terms
     of sentencing or aggravation. Defense is absolutely correct on
     that.

           However, what is not incorporated into the prior record
     score is rehabilitative potential and remorse. Those are separate
     considerations by the [c]ourt in terms of sentencing.
     Rehabilitative potential and remorse do not set the prior record
     score. That is a mathematical calculation based on prior record.

            When a Defendant, any Defendant, commits the same crime
     again and again, the same crime, the [c]ourt may properly weigh
     that on the issue of remorse and rehabilitative potential the
     likelihood that the Defendant will re-offend again. The [c]ourt
     may properly consider that in regard to whether or not the
     Defendant is a danger to the community.

           And the [c]ourt is going to do so in this case. The fact that
     [Appellant] has committed this same crime of felony drug offenses
     and that this is his fifth PWID, the [c]ourt does consider to be an
     aggravating factor in this case.

           And when the fifth PWID involves the deadly drugs of heroin
     and fentanyl, the [c]ourt may essentially consider that on his fifth
     offense to be an aggravating factor due to the lack of rehabilitative
     potential and the lack of remorse. And we will do so in this case.

           The [c]ourt will not consider in any way and it would be
     highly improper for the [c]ourt to consider the fact that
     [Appellant] has pending charges. That is absolutely out of
     bounds. I don’t care. [Appellant] is absolutely presumed to be
     innocent of those pending charges. And it would be a tremendous
     miscarriage of justice for merely pending charges to weigh into
     this matter whatsoever and it will not. That shouldn’t have even
     been in the PSI report. The [c]ourt will completely disregard that.

           All right. What else? I need to make clear what we are
     doing here and what we’re not doing here. The jury did not find
     [Appellant] guilty of drug delivery resulting in death.       This
     [c]ourt’s sentence in no way is holding [Appellant] responsible for
     [Gaskin’s] death. They found him guilty of criminal conspiracy of
     the delivery of heroin with fentanyl. We can’t look behind that
     verdict.

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J-S60007-19


                                    * * *

            [Appellant] has an extensive criminal background as an
     adult going back to 2000 beginning with carrying a firearm without
     a license. It is noted he has five PWIDs, the firearms offense.
     He’s got terroristic threats from 2012 amongst a series of
     misdemeanors for drug crimes, false swearing, and harassment.
     He’s a career criminal. He has shown no rehabilitative potential
     or remorse concerning the matter before this [c]ourt. He is
     entitled to maintain his innocence on appeal. That’s a right that
     he has and the [c]ourt will not hold that against him.

           But the [c]ourt will note that he sought to impeach the
     verdict in his PSI. With [Appellant’s] record of drug dealing, he
     has demonstrated a lack of remorse and rehabilitation. His
     disregard for public safety which is reflected not only in his drug
     dealing but in his prior gun offenses and his threat offenses, the
     [c]ourt finds that [Appellant] is an extreme risk to public safety.
     He needs to be separated from society for an extensive period of
     time to promote public safety.

           He will be sentenced in the aggravated range to punish,
     to deter him, to deter others from engaging in a lifetime of criminal
     conduct, and to protect society from [Appellant] continuing to deal
     deadly drugs.

            Due to lack of remorse and lack of rehabilitative potential,
     this [c]ourt is convinced that as soon as he is released from prison,
     he will continue his criminal ways and he will continue to deal
     deadly drugs to the public.

           Taking all of these factors into consideration, as well as the
     testimony of the witnesses . . . [t]hat [Appellant] was clearly
     engaging in a life of dealing drugs and profiting from that drug
     trade. This was not an isolated incident.

             The [c]ourt sentences [Appellant] in 5344 of 2017, Count 3,
     to a period of 7 to 14 years in a State Correctional Institution. A
     $35,000 fine is imposed to ensure that he does not gain benefit of
     his illicit drug proceeds. The court costs are assessed. He is not
     RRRI eligible. He’ll have 475 days credit.

N.T., Sentencing, 12/19/18, at 6-12 (emphasis added).


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J-S60007-19


       As   indicated,    Appellant    was     sentenced   beyond   the   aggravated

Sentencing Guidelines range.6           There is no indication of record that the

sentencing judge was aware of the applicable guideline ranges, and the extent

of his deviation from the guidelines in sentencing Appellant. In fact, the trial

court stated that it was sentencing Appellant “in the aggravated range.” N.T.,

Sentencing, 12/19/18, at 12.           We note that the trial court stated in its

Pa.R.A.P. 1925(a) opinion that “[t]he [c]ourt expressly stated on the record

its reasons for sentencing [Appellant] outside of the guideline ranges for his

conviction.” Trial Court Opinion, 5/30/19, at 8. A review of the sentencing

transcript, however, does not reflect that the trial court understood that it was

sentencing Appellant outside of the guideline ranges at the time of

sentencing.7

____________________________________________


6  For a conviction having a prior record score of five and an offense gravity
score of six, the standard minimum range is twenty-one to twenty-seven
months, and the aggravated range is twenty-seven to thirty-three months.
204 Pa.Code § 303.16(a). Appellant’s minimum sentence of eighty-four
months is beyond the aggravated range. We further note that Appellant’s
sentence was not illegal because it did not exceed the statutory maximum of
fifteen years. 18 Pa.C.S. § 905; 18 P.S. § 780-113(f)(1) (conviction of
conspiracy PWID for schedule I and II controlled substances carries a
maximum statutory sentence of fifteen years).

7 In Commonwealth v. Flowers, 149 A.3d 867 (Pa. Super. 2016), the trial
court failed to comply with the requirements of Section 9721(b) when it
sentenced the appellant outside of the guideline ranges. The trial court placed
its reasoning in its Pa.R.A.P. 1925(a) opinion, but this Court found that
statement to be insufficient because it was not given “in open court at the
time of sentencing,” vacated the judgment of sentence, and remanded for
resentencing. Id. at 876.



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J-S60007-19


       In Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super. 1995), this

Court dealt with a similar factual scenario.8 In Byrd, at sentencing the trial

court stated that it was sentencing the appellant in the aggravated range, but

in fact sentenced the appellant outside of the Sentencing Guidelines. Id. at

963.    This Court reiterated that “[w]hile deviation from the guidelines is

permitted, the Sentencing Code requires that the court place of record its

reasons for such deviation.”        Id.    In vacating the appellant’s judgment of

sentence and remanding for resentencing, this Court explained:

             Here, the sentencing transcript reveals that the sentencing
       court failed to set forth in [the a]ppellant’s presence the
       permissible range of sentences under the guidelines. Moreover,
       while the sentencing court did provide reasons for the sentence
       imposed, these reasons were advanced to support a sentence in
       the aggravated range. Nowhere did the court indicate that it was
       in fact sentencing [the a]ppellant outside of the guidelines and
       provide a contemporaneous statement of its reason for such
       deviation. Accordingly, we vacate the judgment of sentence and
       remand for resentencing.

Id. at 964.

       Thus, in the case sub judice, similar to Byrd, while the trial court

provided its reasons for the sentence at sentencing, these reasons were

advanced to support a sentence in the aggravated range. Nowhere did the

court indicate that it was in fact sentencing Appellant outside of the guidelines,



____________________________________________


8This Court in Rodda affirmed the Byrd holding even after “dispel[ling] the
misconception . . . that a sentencing court must evoke ‘magic words’ in a
verbatim recitation of the guidelines range to satisfy the mandate of the
Sentencing Code.” Rodda, 723 A.2d at 215.

                                          - 20 -
J-S60007-19


nor did it provide a contemporaneous statement of its reasons for such

deviation. Accordingly, because the requirements of Section 9721(b) have

not been met, we are required to vacate the judgment of sentence and remand

for resentencing in compliance with the rules. This decision is not meant to

be interpreted as commentary or analysis of the length of the sentence

imposed. This decision notes only that the trial court must fulfill its duty to

provide a contemporaneous statement of reasons from deviating from the

guidelines at the time of imposition of sentence. Resentencing shall take place

within ninety days of the return of the certified record to the trial court.

      Judgment of sentence vacated.            This matter is remanded for

resentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/04/2020




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