Com. v. Daniel, L.

J-S23022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LAMONT CARLTON DANIEL :

:

Appellant : No. 1359 EDA 2017

Appeal from the Judgment of Sentence December 12, 2016

In the Court of Common Pleas of Lehigh County Criminal Division at

No(s): CP-39-CR-0000319-2016

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED JULY 18, 2018

Appellant Lamont Carlton Daniel appeals from the judgment of sentence

of seven to fifteen years’ imprisonment following a jury trial and convictions

for possession with intent to distribute of a controlled substance (PWID),1

possession of a controlled substance,2 and possession of drug paraphernalia.3

On appeal, Appellant raises five issues, including challenges to the warrantless

search of his apartment, evidence regarding his status as a state parolee, and

a “missing witness” jury charge. We affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).

2 35 P.S. § 780-113(a)(16).

3 35 P.S. § 780-113(a)(32).

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We adopt the facts and procedural history set forth in the trial court’s

opinion. Trial Ct. Op., 6/1/17, at 1-6. We also add that the suppression record

established that Appellant’s landlord physically opened a rear window, through

which the parole officers gained access to search Appellant’s apartment. N.T.

Suppression Hr’g, 4/27/16, at 8.

At trial, the Commonwealth presented evidence that Appellant was a

parolee. Appellant testified in his defense and asserted that the drugs found

in his apartment belonged to “Terrance,” or “T” (Terrance). However,

Appellant did not call Terrance to testify. The court, in relevant part,

instructed the jury as follows: “You should not disbelieve the defendant merely

because he is the defendant or because he was on state parole, nor may you

infer any guilt because he was on state parole.” N.T. Trial (charge), 6/16/16,

at 12. The trial court also issued a missing witness instruction as to Terrance.

Moreover, as explained in further detail below, the jury notified the court

that it arrived at a verdict on two charges but indicated it was deadlocked on

the PWID charge. The court gave supplemental instructions to the jury and,

after an additional half-hour of deliberation, the jury found Appellant guilty of

all charges. Following a pre-sentence investigation,4 the court sentenced

Appellant on December 12, 2016, to seven to fifteen years’ incarceration.

____________________________________________

4 We discuss the investigation in further detail below.

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Appellant filed a timely post-sentence motion challenging, among other

issues, the discretionary aspects of his sentence. The court denied Appellant’s

post-sentence motion, and he timely appealed and filed a court-ordered

Pa.R.A.P. 1925(b) statement.

In his brief, Appellant raises five issues:

1. Did the [trial] court err in denying [Appellant’s] motion to

suppress the evidence found by the state parole officers when,

without a warrant, they searched [Appellant’s] apartment and

located the drugs and other paraphernalia?

2. Did the [trial] court err in denying [Appellant’s] motion in limine

which requested that no testimony be allowed as to [Appellant]

being on “state parole” based on the likely prejudicial effect?

3. Did the [trial] court err in, either sua sponte or at the

Commonwealth’s request, grant the giving of the “missing

witness” jury charge as it related to two uncalled witnesses?

4. Did the [trial] court improperly prejudice the jury deliberation

through its comments made to the jury after the jury issued a

message indicating that they were unable to reach a verdict on

one of the three charges [Appellant] was facing?

5. Did the [trial] court impose an overly harsh sentence which was

well beyond the aggravated range of the sentencing guidelines

without any clear justification or reason?

Appellant’s Brief at 9-10 (some capitalization omitted).

Warrantless Search of Parolee’s Apartment

First, Appellant contends that the parole officers lacked reasonable

suspicion to search his apartment. Id. at 21. Specifically, Appellant posits

that reasonable suspicion was lacking because the parole officers relied on

Appellant’s prior criminal history, Appellant’s recent positive drug test, and

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the anonymous phone call of uncertain veracity. Id. at 24. In Appellant’s

view, the Commonwealth required additional evidence before searching his

residence. Id. at 24-25.

The standard of review follows:

Our standard of review in addressing a challenge to the denial of

a suppression motion is limited to determining whether the

suppression court’s factual findings are supported by the record

and whether the legal conclusions drawn from those facts are

correct. Because the Commonwealth prevailed before the

suppression court, we may consider only the evidence of the

Commonwealth and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record as

a whole. Where the suppression court’s factual findings are

supported by the record, we are bound by these findings and may

reverse only if the court’s legal conclusions are erroneous. The

suppression court’s legal conclusions are not binding on an

appellate court, whose duty it is to determine if the suppression

court properly applied the law to the facts. Thus, the conclusions

of law of the courts below are subject to our plenary review.

Moreover, appellate courts are limited to reviewing only the

evidence presented at the suppression hearing when examining a

ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016).

In Commonwealth v. Williams, 692 A.2d 1031 (Pa. 1997), the

Pennsylvania Supreme Court discussed warrantless searches of a parolee’s

residence:

the parolee’s signing of a parole agreement giving his parole

officer permission to conduct a warrantless search does not mean

either that the parole officer can conduct a search at any time and

for any reason or that the parolee relinquishes his Fourth

Amendment right to be free from unreasonable searches. Rather,

the parolee’s signature acts as acknowledgement that the parole

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officer has a right to conduct reasonable searches[5] of his

residence listed on the parole agreement without a warrant. A

search will be deemed reasonable if the totality of the evidence

demonstrates: (1) that the parole officer had a reasonable

suspicion that the parolee had committed a parole violation, and

(2) that the search was reasonably related to the parole officer’s

duty.

Id. at 1036.

The Pennsylvania Supreme Court in Commonwealth v. Arter, 151

A.3d 149 (Pa. 2016), reaffirmed the “reasonable suspicion” basis identified by

the Williams Court: “pursuant to 42 Pa.C.S. § 9912, the General Assembly

has made the policy determination that searches of parolees and probationers

____________________________________________

5 “The determination of whether reasonable suspicion exists is to be

considered in light of the totality of the circumstances.” Commonwealth v.

Colon, 31 A.3d 309, 315 (Pa. Super. 2011).

In establishing reasonable suspicion, the fundamental inquiry is

an objective one, namely, whether the facts available to the officer

at the moment of the intrusion warrant a man of reasonable

caution in the belief that the action taken was appropriate. This

assessment, like that applicable to the determination of probable

cause, requires an evaluation of the totality of the circumstances,

with a lesser showing needed to demonstrate reasonable suspicion

in terms of both quantity or content and reliability.

Commonwealth v. Moore, 805 A.2d 616, 619-20 (Pa. Super. 2002)

(quotation marks, brackets, and citations omitted). The Moore Court

explained, “[r]easonable suspicion is a less demanding standard than probable

cause not only in the sense that reasonable suspicion can be established with

information that is different in quantity or content than that required to

establish probable cause, but also in the sense that reasonable suspicion can

arise from information that is less reliable than that required to show probable

cause.” Id. at 620 (citations omitted).

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must be supported by a reasonable suspicion that the offender is in violation

of the conditions of his probation or parole[.]” Arter, 151 A.3d at 165.6

Sections 6153(d)(2) and (d)(6) of the Prisons and Parole Code state as

follows:

(2) A property search may be conducted by an agent if there is

reasonable suspicion to believe that the real or other property in

the possession of or under the control of the offender contains

contraband or other evidence of violations of the conditions of

supervision.

* * *

(6) The existence of reasonable suspicion to search shall be

determined in accordance with constitutional search and seizure

provisions as applied by judicial decision. In accordance with such

case law, the following factors, where applicable, may be taken

into account:

(i) The observations of agents.

(ii) Information provided by others.

(iii) The activities of the offender.

(iv) Information provided by the offender.

(v) The experience of agents with the offender.

(vi) The experience of agents in similar circumstances.

(vii) The prior criminal and supervisory history of the

offender.

____________________________________________

6 In Arter, it was undisputed the parole officer lacked reasonable suspicion

for a warrantless search and thus, the seized evidence should have been

suppressed under the exclusionary rule, “which bars the use of evidence

obtained through an illegal search and seizure.” Arter, 151 A.3d at 153.

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(viii) The need to verify compliance with the conditions of

supervision.

61 Pa.C.S. § 6153(d)(2), (6). With respect to establishing reasonable

suspicion, a “tip from an unknown or anonymous informant requires some

degree of corroboration to justify the finding of reasonable suspicion.” In re

J.E., 937 A.2d 421, 426 (Pa. 2007). After careful consideration of the parties’

briefs and our close review of the record, we affirm on the basis of the trial

court’s opinion. See Trial Ct. Op. at 13-14.

Prejudicial Effect of Appellant’s “State Parole” Status

Second, Appellant argues the court erred by denying his motion in limine

to prohibit the Commonwealth from using the phrase “state parole.”

Appellant’s Brief at 25. That phrase, Appellant reasons, would result in a

moderately sophisticated juror presuming he had committed a serious

offense. Id. Appellant opines that the resulting prejudice impacted the

fairness of his trial. Id.

“Our Court reviews the grant of such a motion [in limine] by applying

the scope of review appropriate to the particular evidentiary matter at issue.

We note that this Court may reverse rulings on the admissibility of evidence

only if it is shown that the trial court abused its discretion.” Commonwealth

v. Phillips, 700 A.2d 1281, 1284 (Pa. Super. 1997) (citations and internal

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quotation marks omitted).7 The critical inquiry is whether the probative value

of the evidence of the defendant’s parolee status outweighs any prejudicial

impact. Commonwealth v. Mollett, 5 A.3d 291, 307 (Pa. Super. 2010)

(holding probative value of evidence of defendant’s state parole status

outweighed any prejudicial impact as it established motive). “[T]here is no

per se rule that requires a new trial for a defendant every time there is a

reference to prior criminal activity.” Commonwealth v. Wallace, 561 A.2d

719, 724-25 (Pa. 1989) (citation omitted). Upon review of the parties’ briefs

and the record, we affirm on the basis of the trial court’s decision. See Trial

Ct. Op. at 20.

Propriety of the “Missing Witness” Jury Instruction

By way of background to Appellant’s third argument, as noted above,

Appellant testified at trial that the drugs belonged to Terrance. Additionally,

Appellant’s girlfriend testified for the defense and asserted, in relevant part,

that she had Terrance’s phone number. N.T. Trial (morning), 6/16/16, at 55.

The Commonwealth requested a “missing witness” jury charge. The

Commonwealth insisted that only Appellant had Terrance’s contact

information and it had no ability to call Terrance as a witness. Id. at 66.

Appellant objected on the basis that the defense had insufficient information

____________________________________________

7We may rely on cases predating the enactment of the Pennsylvania Rules of

Evidence so long as they do not contradict the rules. Commonwealth v.

Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).

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to locate Terrance and that, if called, Terrance would have to admit “criminal

conduct.” Id. at 65. The Commonwealth countered that the record

established that only Appellant had the necessary contact information. Id. at

66.

The trial court overruled Appellant’s objection and issued the following

instruction:

There’s a question about the weight, if any, you should give to the

failure of [Appellant] to call a witness or witnesses. You heard

about this person T. So the question is if three factors are present

and there’s no satisfactory explanation for a party’s failure to call

a potential witness, the jury is allowed to draw a common sense

inference that the testimony would have been unfavorable to the

party. The three accessory factors are, one, the person is

available to that party and only [sic] and not the other; two, it

appears that the person has special information material to the

case; and, three, that the person’s testimony would not be merely

cumulative. Therefore, if you find these three factors present and

there’s no satisfactory explanation for the [Appellant]’s failure to

call that witness, you may infer, if you choose to do so, that the

testimony would have been unfavorable to [Appellant].

N.T. Trial (charge), 6/16/16, at 28.

Appellant contends there was no basis for the trial court to give the

above “missing witness” jury charge. Specifically, Appellant claims that it was

“questionable” as to whether “Terrance” or “T” was a witness only available to

him. Appellant’s Brief at 29; see also N.T. Trial (morning), 6/16/16, at 19-

20 (testimony of Appellant that he knew the area, but not the exact location,

of Terrance’s home). Because Appellant’s defense was that the drugs

belonged to Terrance, Appellant reasons that Terrance would not want to

appear in court to testify. Id.

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The Commonwealth counters by summarizing Appellant’s testimony that

Terrance kept his belongings at the apartment and that Terrance had a key.

Commonwealth’s Brief at 15-16. The Commonwealth emphasizes that the

drugs, according to Appellant, were in Terrance’s room. Id. at 16.

Our standard of review in assessing a trial court’s jury instruction

is as follows. When evaluating the propriety of jury instructions,

this Court will look to the instructions as a whole, and not simply

isolated portions, to determine if the instructions were improper.

A trial court has broad discretion in phrasing its instructions, and

may choose its own wording so long as the law is clearly,

adequately, and accurately presented to the jury for its

consideration. Only where there is an abuse of discretion or an

inaccurate statement of the law is there reversible error.

Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017) (quotation

marks and citations omitted).

The missing witness adverse inference rule has been summarized

as follows:

When a potential witness is available to only one of the

parties to a trial, and it appears this witness has special

information material to the issue, and this person’s

testimony would not merely be cumulative, then if such

party does not produce the testimony of this witness, the

jury may draw an inference that it would have been

unfavorable.

This Court has delineated the circumstances which preclude

issuance of the instruction.

1. The witness is so hostile or prejudiced against the party

expected to call him that there is a small possibility of

obtaining unbiased truth;

2. The testimony of such a witness is comparatively

unimportant, cumulative, or inferior to that already

presented;

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3. The uncalled witness is equally available to both parties;

4. There is a satisfactory explanation as to why the party

failed to call such a witness;[8]

5. The witness is not available or not within the control of

the party against whom the negative inference is desired;

and

6. The testimony of the uncalled witness is not within the

scope of the natural interest of the party failing to produce

him.

Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999) (citations

omitted).9 “In other words, the inference is permitted only where the uncalled

witness is peculiarly within the reach and knowledge of only one of the

parties.” Bentivoglio v. Ralston, 288 A.2d 745, 748 (Pa. 1972).

“[F]ear of criminal punishment and the disgrace of conviction are strong

motivational factors for a criminal defendant to make certain that a witness

who can exonerate him appears at trial.” Commonwealth v. Dorman, 547

A.2d 757, 764 (Pa. Super. 1988). For example, in Commonwealth v.

Wright, 282 A.2d 323 (Pa. 1971), the defendant was accused of murder,

among other offenses. Id. at 323. The defendant testified in his own defense

____________________________________________

8Satisfactory explanations include illness, Commonwealth v. Johnson, 838

A.2d 663, 678 (Pa. 2003), and concern for the witness’s safety.

Commonwealth v. Jones, 637 A.2d 1001, 1005 (Pa. Super. 1994).

9 “The failure to produce evidence reflects on the credibility of the opposing

evidence but does not itself represent evidence that satisfies the burden of

production.” Leonard Packel & Anne Bowen Poulin, Pennsylvania Evidence §

427 (4th ed. 2013) (footnote to citations omitted).

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and stated that he was with four other people, but he did not call any of his

alibi witnesses. Id. at 324. The Pennsylvania Supreme Court was asked if “a

defendant raises an alibi and testifies as to the existence of named alibi

witnesses who know him personally, and if these witnesses are not called, is

it fair for the jury to infer that their testimony would be adverse to the

defendant?” Id. at 325. The Wright Court held that under these facts, the

Commonwealth was entitled to a missing witness instruction. The Court

acknowledged that “if the jury chooses to draw an adverse inference from a

defendant’s failure to call named alibi witnesses, his case may be affected

because his alibi is not believed. But the credibility of defendant’s testimony

is always something which he must consider before he takes the stand.” Id.10

Here, Appellant has failed to establish that the court should not issue

the instruction. See Boyle, 733 A.2d at 638. First, Terrance allegedly lived

at Appellant’s residence and Appellant had Terrance’s contact information.

See N.T. Trial (morning), 6/16/16, at 55. However, Appellant never

attempted to procure Terrance’s presence, whether voluntarily or via

subpoena. Second, although Appellant proffers a seemingly satisfactory

reason for not calling Terrance—specifically that Terrance would be admitting

____________________________________________

10The Wright Court, however, reversed and remanded for a new trial because

the trial court’s missing witness instruction was excessively “coercive.”

Wright, 282 A.2d at 326.

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to criminal conduct—that explanation is flawed. Appellant engages in self-

serving speculation that the drugs were, in fact, Terrance’s and that Terrance

would refuse to testify, rather than implicate Appellant.11 Given the

deferential abuse-of-discretion standard of review, we cannot say under the

unique circumstances of this case that the court erred. See Miller, 172 A.3d

at 645.12

Trial Court’s Supplemental Jury Charge

Before summarizing Appellant’s fourth argument, we set forth the

following as background. As the trial court accurately recounted, the jury

retired to deliberate and advised the court that it could not reach a verdict on

one count. Trial Ct. Op., 6/1/17, at 27-28. After the jury returned to the

courtroom, the court engaged the jury as follows:

The court: Okay. Now, with respect to that [deadlocked charge,]

is there some aspect of the instruction that I can assist with? Is

there some area of debate that pertains to the law that by giving

you some clarifying instruction that that will assist the jury? Or is

it just do people seem to have fixed opinions concerning the

factual basis as opposed to the legal issues?

The foreperson: No. It’s more of a fixed opinion.

____________________________________________

11We acknowledge the practical reality that even if Terrance appeared in

court, he would be unlikely to incriminate himself without immunity. But we

hesitate to unwaveringly accept Appellant’s unsubstantiated proffer that

Terrance would not testify that the drugs were his.

12 We note the trial court should, with great care, consider whether such an

instruction is necessary. Indeed, we would be remiss if we did not

acknowledge that the jury briefly deadlocked on the PWID charge.

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The court: Okay. Do you believe that there is some aspect that

can assist in breaking this deadlock, something that I can do to

assist in that regard?

The foreperson: No.

The court: No. You don’t believe so. Now, you understand that

you have a duty to consult with each other towards reaching a

verdict in the case, if it can be done without doing interference

with any of your individual judgment. In answer to your question

concerning whether you can return a verdict as to two counts, the

answer to that in a general sense is yes. However, with that said,

the district attorney and defense counsel will have -- and this

Court might not be able to -- well, let me rephrase it because I

want to be careful what I say. If you return a verdict on two of

the counts, there is some doubt as to whether the first count --

whether there can be another trial on the first count. Do you

understand what I’m saying? Generally speaking, that if there is

a mistrial in a case where the jury can’t reach a decision on any

of the counts, then the Commonwealth would be permitted,

generally speaking, to retry the case. However, that would

involve another jury like yourself and going through the same

protocol that we’ve gone through over the course of this trial.

Your situation is what I’ll call a hybrid situation, meaning that

you’ve reached a verdict on two of the counts but not the third

count. And there is some doubt as to whether or not the

Commonwealth would be able to retry Count Number 1 [i.e.,

PWID]. Do you understand?

The foreperson: Yes.

The court: Okay. Does everybody understand that?

(Whereupon the jurors shake their heads.)

The court: Let me ask the jurors, do any of you believe, and you

can raise your hands, that further deliberations would assist in

reaching a verdict in this case? Is there anybody – I’ll just ask it,

does anybody feel further deliberations will assist you in reaching

a verdict? If yes, raise your hand.

(No response.)

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The court: If no -- yes. Three jurors -- four jurors believe that

further deliberations might assist them in reaching a verdict. And

how many feel that no further deliberations will assist you in

reaching a verdict? Two. Okay. So it really is -- and other people

are undecided. Okay. So what I’m going to suggest is, and let

me read to you what you heard me say before, about you have a

duty to consult with each other and to deliberate towards reaching

an agreement if it can be done without doing any interference with

your individual judgment. Each juror must decide the case for

himself or herself, but only after there’s been impartial

consideration with his or her fellow jurors. In the course of

deliberations, a juror should not hesitate to reexamine his or her

views and change his or her opinion if convinced it is mistaken.

No juror, however, should surrender an honest conviction as to

the weight or effect of the evidence solely because of the opinion

of his or her fellow jurors or for the mere purpose of returning a

verdict. Keeping these instructions in mind, I’m going to send you

back to the jury deliberation room for additional further

deliberations. And if you reach the point where you don’t believe

that further deliberations will assist you, . . . you need to alert me

to that fact. So I’m going to send you out for additional

deliberations at this point. Before I do that, I’m going to see if

either counsel want to discuss this matter with me at sidebar.

[Appellant’s counsel]: What I care to discuss can be done after

the jury exits. . . .

(Whereupon the jury exited the courtroom at 5:27 p.m.) . . .

[Appellant’s counsel]: Judge, I’ll bring it up now. I would ask the

Court not to instruct the jury on things like a retrial or the options

that happen after that. I think it introduces into their deliberations

things that are not appropriate on the facts of the case.

The court: I understand. However, if you look at the procedure,

let me read to you -- just so that you know, I have my own

instructions, but it really mirrors what is in the standard

instructions. And it says the following. I’ll avoid making mention

of it. It is in my standard instructions. It’s not necessarily the

way it is specified in the standard jury instructions, but it’s

consistent, I think, with the case law and the ABA standards.

[Appellant’s counsel]: Thank you, Your Honor.

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N.T. Trial (charge), 6/16/16, at 59-63 (some capitalization omitted). As noted

above, the jury deliberated an additional half-hour and found Appellant guilty

on all charges.

Appellant contends the court erred when it issued supplemental

instructions after the jury stated they were at an impasse with respect to one

charge. Appellant’s Brief at 30-31. Specifically, Appellant disagrees with the

court’s comment that a mistrial on the PWID charge may not result in another

trial. Id. at 31. Appellant takes issues with the trial court’s conclusion that

he waived the issue by not objecting. Id.; see also Trial Ct. Op., 6/1/17, at

28. Appellant notes that counsel “brought the issue to the court’s attention

and indicated that such instructions were not appropriate.” Appellant’s Brief

at 32. Appellant construes the court’s comment as an impermissible “prod”

by the trial court to compel the jury to reach a unanimous verdict on that

count. Id.

As set forth above, the standard of review is abuse of discretion or error

of law. Miller, 172 A.3d at 645. Pennsylvania Rule of Criminal Procedure 647

provides:

(C) No portions of the charge nor omissions from the charge may

be assigned as error, unless specific objections are made thereto

before the jury retires to deliberate. All such objections shall be

made beyond the hearing of the jury.

(D) After the jury has retired to consider its verdict, additional or

correctional instructions may be given by the trial judge in the

presence of all parties, except that the defendant’s absence

without cause shall not preclude proceeding, as provided in Rule

602.

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Pa.R.Crim.P. 647(C)-(D). But a “specific and timely objection must be made

to preserve a challenge to a particular jury instruction.” Commonwealth v.

Moury, 992 A.2d 162, 178 (Pa. Super. 2010); accord Commonwealth v.

Hitcho, 123 A.3d 731, 756 (Pa. 2015).

Requiring a timely specific objection to be taken in the trial court

will ensure that the trial judge has a chance to correct alleged trial

errors. This opportunity to correct alleged errors at trial advances

the orderly and efficient use of our judicial resources. First,

appellate courts will not be required to expend time and energy

reviewing points on which no trial ruling has been made. Second,

the trial court may promptly correct the asserted error. With the

issue properly presented, the trial court is more likely to reach a

satisfactory result, thus obviating the need for appellate review on

this issue. Or if a new trial is necessary, it may be granted by the

trial court without subjecting both the litigants and the courts to

the expense and delay inherent in appellate review. Third,

appellate courts will be free to more expeditiously dispose of the

issues properly preserved for appeal. Finally, the exception

requirement will remove the advantage formerly enjoyed by the

unprepared trial lawyer who looked to the appellate court to

compensate for his trial omissions.

Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 116-17 (Pa. Super.

1974) (footnotes omitted).

Here, Appellant asked the trial court to not “instruct the jury on things

like a retrial or the options that happen after that.” N.T. Trial (charge),

6/16/16, at 62-63. Appellant briefly explained his belief that “it introduces

into their deliberations things that are not appropriate on the facts of the

case.” Id. at 63. We agree with the trial court that Appellant has not

established that either statement, or both read together, constitutes a specific

objection. See Trial Ct. Op. at 28; Moury, 992 A.2d at 178. We simply

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discern nothing in such statements that would have alerted the trial court that

it made an error such that the jury should be recalled from its deliberations.

See Moury, 992 A.2d at 178. For these reasons, Appellant has not

established entitlement to relief.

Challenge to Discretionary Aspects of Appellant’s Sentence

By way of background, the court ordered a pre-sentence investigation

report, but Appellant refused to cooperate. Thus, the report was prepared

without Appellant’s participation and was designated a “partial presentence

report.” N.T. Sentencing Hr’g, 12/12/16, at 23. At the sentencing hearing,

the trial court stated that it considered the sentencing guidelines, partial

presentence report, and nature and circumstances of Appellant’s crimes. Id.

at 22-23. The court discussed that the crimes occurred while Appellant was

on parole and his lengthy almost two-decade criminal history. Id. at 23-26.

Accordingly, the court concluded that a deviation from the sentencing

guidelines was warranted because Appellant was likely to reoffend. Id. at 26.

For his last issue, Appellant challenges the discretionary aspects of his

sentence. Specifically, Appellant contends his sentence was excessive as it

was double the standard range sentence and the court failed to sufficiently

justify such a sentence. Appellant’s Brief at 34. Appellant maintains that the

one reason the court gave—that Appellant was on parole at the time of the

underlying crimes—was “disingenuous as it failed to recognize” Appellant

would face a significant parole-revocation sentence. Id. at 35.

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In Commonwealth v. Luketic, 162 A.3d 1149 (Pa. Super. 2017), we

explained as follows:

A challenge to the discretionary aspects of a sentence is not

appealable as of right. Therefore, before we may exercise

jurisdiction to reach the merits of Appellant’s claim, we must verify

that Appellant’s appeal is properly before this Court—that is, that

his appeal was timely filed and that the issues he seeks to raise

were properly preserved. If so, we must then determine whether

Appellant’s brief includes a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary

aspects of sentence pursuant to Appellate Rule 2119(f), and

whether that concise statement raises a substantial question that

the sentence is appropriate under the sentencing code. Only if

the appeal satisfies these requirements may we proceed to decide

the substantive merits of Appellant’s claim.

Id. at 1159-60 (citations, footnote, and most punctuation omitted).

Here, Appellant has timely appealed and filed a timely post-sentence

motion preserving his issue. See id. Appellant’s brief has also included a

one-sentence Rule 2119(f) statement, to which the Commonwealth did not

object. See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super.

2004).13 We turn to whether Appellant has presented a substantial question

that his sentence was inappropriate.

____________________________________________

13 It is well-settled that the Rule 2119(f) statement must comply with the

following:

[T]he Rule 2119(f) statement must specify where the sentence

falls in relation to the sentencing guidelines and what particular

provision of the Code is violated (e.g., the sentence is outside the

guidelines and the court did not offer any reasons either on the

record or in writing, or double-counted factors already

considered). Similarly, the Rule 2119(f) statement must specify

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“A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Luketic, 162 A.3d at 1160 (citation omitted). A “contention that the

sentencing court exceeded the recommended range in the Sentencing

Guidelines without an adequate basis raises a substantial question for this

Court to review.” Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super.

2008). A manifestly excessive sentence also raises a substantial question,

even if the sentence is within the statutory limits. Commonwealth v.

Mouzon, 812 A.2d 617, 624 (Pa. 2002); Commonwealth v. Kelly, 33 A.3d

638, 640 (Pa. Super. 2011). Here, because Appellant has claimed that the

court imposed a sentence outside the Sentencing Guidelines without sufficient

justification, he has raised a substantial question that we review on the merits.

See Luketic, 162 A.3d at 1162.

Our standard of review follows: Sentencing is a matter vested in

the sound discretion of the sentencing judge, and a sentence will

not be disturbed on appeal absent a manifest abuse of discretion.

In order to establish that the sentencing court abused its

discretion, the defendant must establish, by reference to the

record, that the sentencing court ignored or misapplied the law,

exercised its judgment for reasons of partiality, prejudice, bias or

____________________________________________

what fundamental norm the sentence violates and the manner in

which it violates that norm. . . .

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).

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ill will, or arrived at a manifestly unreasonable decision. The

rationale behind such broad discretion and the concomitantly

deferential standard of appellate review is that the sentencing

court is in the best position to determine the proper penalty for a

particular offense based upon an evaluation of the individual

circumstances before it.

Id. at 1162-63 (citations, quotation marks, and brackets omitted). “Where

pre-sentence reports exist, we shall continue to presume that the sentencing

judge was aware of relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors. A

pre-sentence report constitutes the record and speaks for itself.”

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Here, as the trial court acknowledged, a presentence investigation

report exists, albeit it was prepared without Appellant’s cooperation. Trial Ct.

Op. at 18. The trial court also indicated it reviewed the sentencing guidelines

and considered the nature and circumstances of Appellant’s present and past

offenses, as well as the import of his parole status. N.T. Sentencing at 22-

26. Accordingly, we perceive no abuse of discretion by the trial court. See

Luketic, 162 A.3d at 1162-63. For these reasons, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/18

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Circulated 06/29/2018 05:07 PM