Com. v. Shepard, G.

J-A11018-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GERELL SHEPARD :

:

Appellant : No. 476 WDA 2022

Appeal from the Judgment of Sentence Entered January 11, 2022

In the Court of Common Pleas of Blair County Criminal Division at No(s):

CP-07-CR-0000724-2020

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 26, 2023

Appellant, Gerell Shepard, appeals from the aggregate judgment of

sentence of 10 to 42 years’ incarceration, imposed after a jury convicted him

of three counts of possession with intent to deliver a controlled substance

(PWID), 35 P.S. § 780-113(a)(30), and one count of criminal use of a

communication facility (CUCF), 18 Pa.C.S. § 7512(a). Appellant challenges

the sufficiency of the evidence to sustain his CUCF conviction, as well as the

discretionary aspects of his sentence. After careful review, we affirm.

The trial court summarized the facts and procedural history of

Appellant’s case, as follows:

On January 20, 2020, the Altoona Police Department and the

Office of the Attorney General filed a criminal complaint charging

[Appellant] with the following criminal offenses:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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Corrupt Organizations, 18 Pa.C.S.[] § 911(b)(3); Corrupt

Organizations - Conspiracy, 18 Pa.C.S.[] § 911(b)(4); Criminal

Conspiracy [PWID], 18 P[a.C].S.[] § 903(a)(1); [PWID], 35 P.S.

[§] 780-113(a)(30) (4 counts); and [CUCF], 18 Pa.C.S.[] § 7512.

The charges arose from a statewide investigating grand jury.

Pertaining to the instant Appellant, the Grand Jury Presentment

alleged that co-defendants Shawn Jackson, Appellant, and Darwin

Herring, as well as … others[,] were part of a larger

methamphetamine distribution network, which operated in Blair

County from mid-2018 through October of 2019. The

Commonwealth alleged that these individuals conspired with each

other and others in this “business[.”] The Commonwealth

acknowledged that not all members participated during the entire

extent of the organization and that many moved in and out,

playing a particular role. The Commonwealth identified local

dealers, mid-level suppliers, and higher[-]level sources, as the

roles within the organization and identified both co-defendant

Herring and Appellant, as dealers for Jackson.

The criminal charges were waived to the Court of Common Pleas

from the magisterial district judge level on March 17, 2020. The

Attorney General filed a criminal information consistent with the

above[-]referenced charges on May 7, 2020. The Commonwealth

also provided notice pursuant to Rule 582(B) of the Pennsylvania

Rules of Criminal Procedure of its intent to try [Appellant’s] case

with seventeen (17) other defendants.

***

On December 8, 2020, the defense filed a motion to sever. The

court held an argument on March 12, 2021. At the time of oral

argument on the matter, the Commonwealth revised its notice of

joinder and represented to the court and defense counsel that it

would only seek to try … Appellant’s case with co-defendants …

Herring and … Jackson. The court also received from the

Commonwealth the Grand Jury Presentment in support of the

Commonwealth’s position that the cases of … Appellant, co-

defendant … Jackson, and co-defendant … Herring are related and

should be tried together. After considering the record and the

briefs filed by counsel, this court denied the motion to sever by

Opinion and Order dated April 26, 2021. As the time for trials

w[as] forthcoming and with the disposition of several co[-

]defendants’ cases through negotiated guilty pleas/sentences, the

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Commonwealth requested separate trials for [co-d]efendant

Herring and Appellant.

A jury trial commenced for … Appellant on October 20, 2021. At

the outset of trial, the Commonwealth withdr[e]w and amended

certain counts on the Criminal Information. The jury was asked

to determine whether Appellant was guilty of: Count 1 - [PWID]

(Methamphetamine) - June 2018 through October 2018; Count 2

- [PWID] (Methamphetamine) - November 3, 2018; Count 3 -

[PWID] (Fentanyl) - November 6, 2018; Count 4 - Delivery of a

Controlled Substance (Methamphetamine) - November 6, 2018;

Count 5 - Conspiracy to [commit PWID] (Methamphetamine and

Fentanyl) - June 2018 through November 6, 2018[;] Count 6 –

[CUCF] — June 2018 through November 6, 2018.1

1 Count 1 was primarily based upon historical information

from the Confidential Informant’s [(C.I.)] drug buys with the

Appellant, which occurred without police oversight and

involvement. Counts 2, 3, and 4 were based upon controlled

purchases alleged with the Appellant by the C.I. while the

C.I. was working with police. Counts 5 and 6 covered both

periods of time when the C.I. was allegedly independently

buying drugs and when the C.I. was doing so with police

involvement.

In support of its case, the Commonwealth presented the

testimony of the [C.I.], as well as law enforcement, who worked

with the C.I. The jury heard testimony about why the C.I. was

working with police and the procedures used by the police to

protect the integrity of the controlled purchases of drugs. The C.I.

explained the nature and type of communications she had with …

Appellant and co-defendant Jackson. The Commonwealth

submitted exhibits, including photographs taken by the police of

the electronic communications between … Appellant and the C.I.

The Affiant also explained to the jury the use of veiled language

when parties are engaged in the sale of illegal drugs. Other

Commonwealth evidence addressed the forensic identification and

weight of the drugs involved. … Appellant testified in his defense.

His defense centered around his promiscuity with women during

the time of the alleged drug buys. He denied the criminal activity

and attributed his interaction with the C.I. as a sexual relationship.

He described other interactions when she was helping him move.

He denied knowing co-defendant Jackson. Rebuttal evidence from

the Commonwealth was presented to show that the Appellant and

the co-defendant Jackson were “friends” on Facebook. …

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Appellant further denied the significance of … Jackson[’s] being

listed as a “friend” on Facebook.

On October 22, 2021, … Appellant was found guilty by a jury of:

Count 2 – [PWID] (Methamphetamine) - November 3, 2018;

Count 3 - [PWID] (Fentanyl) - November 6, 2018;

Count 4 – [PWID] (Methamphetamine) - November 6, 2018;

Count 6 – [CUCF] - June 2018 through November 6, 2018.

… Appellant was found not guilty of: Count 1 [- PWID]

(Methamphetamine) - June 2018 through October 2018; and

Count 5 - Conspiracy to [commit PWID] (Methamphetamine and

Fentanyl) – June 2018 through November 6, 2018.

Following his convictions, the court ordered a pre[-]sentence

investigation[,] the submission of sentencing memoranda, and set

sentencing to occur on January 11, 2022. At the sentencing

hearing, the Commonwealth and the defense presented

arguments. … Appellant also testified and submitted documents.

After considering the presentations, the sentencing memoranda,

the trial record, the amended pre-sentence investigation and all

mitigating information, the court imposed consecutive[,] middle[-

]of[-]the[-]standard[-]range sentences on each count.

Trial Court Opinion (TCO), 8/30/22, at 1-5 (some spacing altered and

unnecessary capitalization omitted).

As stated supra, the court imposed an aggregate term of 10 to 42 years’

incarceration. Appellant filed a timely post-sentence motion, requesting

reconsideration of his sentence.1 The trial court denied the post-sentence

____________________________________________

1 We note that the trial court’s docket did not originally contain an entry for a

post-sentence motion and, therefore, Appellant’s notice of appeal appeared to

be facially untimely, as it was filed more than 30 days after the imposition of

his sentence. See Pa.R.Crim.P. 720(A)(3) (“If the defendant does not file a

timely post-sentence motion, the defendant’s notice of appeal shall be filed

within 30 days of imposition of sentence….”). Accordingly, by Order dated

(Footnote Continued Next Page)

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motion on March 16, 2022. Appellant filed a timely notice of appeal on April

14, 2022. He thereafter complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the trial

court filed its Rule 1925(a) opinion on August 30, 2022.

Herein, Appellant states two issues for our review:

I. Did the Commonwealth adduce sufficient evidence to prove the

requisite mens rea for Count 6, [CUCF]?

II. Did the trial court abuse its discretion by imposing an unduly

harsh, excessive, and unreasonable sentence of 10 to 42 years’

imprisonment, which was incongruent with the conduct for which

[Appellant] was convicted…, and … constituted a statutory

maximum sentence that did not comport with the trial court’s

stated purpose of lengthy supervision?

Appellant’s Brief at 5 (emphasis omitted).

Appellant first challenges the sufficiency of the evidence to sustain his

conviction of CUCF, which is defined as follows:

(a) Offense defined.--A person commits a felony of the third

degree if that person uses a communication facility to commit,

cause or facilitate the commission or the attempt thereof of any

crime which constitutes a felony under this title or under the act

of April 14, 1972 (P.L. 233, No. 64), known as The Controlled

Substance, Drug, Device and Cosmetic Act. Every instance where

____________________________________________

May 16, 2022, this Court directed Appellant to show cause as to why the

instant appeal should not be quashed as untimely. Appellant filed a timely

response, wherein he attached a copy of a post-sentence motion that was

time-stamped by the Blair County Clerk of Courts on January 19, 2022 - within

10 days of the imposition of sentence. By order dated May 19, 2022, this

Court directed the trial court to amend its docket to include an entry for the

January 19, 2022 post-sentence motion. The trial court’s docket has now

been amended. This Court’s show-cause order was subsequently discharged.

As the post-sentence motion was timely filed within 10 days of the imposition

of sentence, the appeal period was tolled.

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the communication facility is utilized constitutes a separate

offense under this section.

18 Pa.C.S. § 7512(a) (footnote omitted). This Court has recognized that

“[f]acilitation has been defined as ‘any use of a communication facility that

makes easier the commission of the underlying felony.’” Commonwealth v.

Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (quoting United States v. Davis,

929 F.2d 554, 559 (10th Cir. 1991)).

Here, Appellant insists that the Commonwealth failed to present

sufficient evidence to prove the facilitation element of CUCF. Specifically, he

avers that there was no evidence establishing that he “made the delivery of

narcotics ‘easier’ through the use of a messaging app on his cell phone.”

Appellant’s Brief at 41. Appellant posits that “the context of the existing

relationship between [him] and [the CI]” supports that the two were

communicating for and about matters other than the drug deliveries. Id. He

also stresses that “any veiled references to narcotics were solely initiated by

[the C.I.] and [Appellant] either did not reply or replied in non-adoptive

terms.” Id. According to Appellant,

[t]he conversations – which is a generous term to apply to the

broken strings of messages – do not establish that the two were

arranging narcotics sales. The messages are more indicative of

mindless interaction between two familiar parties, ancillary to any

narcotics sales. A common-sense reading of the messages shows

this – rides, moving, selfies, and emojis, which are not the

hallmarks of messages hammering out the logistics of a drug deal.

Falling short of the facts in [United States v.] Wheat[, 988 F.3d

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299 (6th Cir. 2021),2] the discussions between [the C.I.] and

[Appellant] did not come close to facilitating the deliveries.

Id. (emphasis in original).

We disagree with Appellant’s argument. Initially, we observe that,

[w]hether the evidence was sufficient to sustain the charge

presents a question of law. Commonwealth v. Toritto, 67 A.3d

29 (Pa. Super. 2013) (en banc). Our standard of review is de

novo, and our scope of review is plenary. Commonwealth v.

Walls, 144 A.3d 926 (Pa. Super. 2016). In conducting our

inquiry, we examine[,]

whether the evidence at trial, and all reasonable inferences

derived therefrom, when viewed in the light most favorable

to the Commonwealth as verdict-winner, [is] sufficient to

establish all elements of the offense beyond a reasonable

doubt. We may not weigh the evidence or substitute our

judgment for that of the fact-finder. Additionally, the

evidence at trial need not preclude every possibility of

innocence, and the fact-finder is free to resolve any doubts

regarding a defendant’s guilt 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. When

evaluating the credibility and weight of the evidence, the

fact-finder is free to believe all, part or none of the evidence.

For purposes of our review under these principles, we must

review the entire record and consider all of the evidence

introduced.

____________________________________________

2 In Wheat, the appellant

sent his phone number to [a large-scale drug-dealer named]

Reels[,] and later spoke with Reels over the phone the night

before their exchange of [a] heroin sample. During the call,

Wheat alerted Reels of the heroin that he had come across and

arranged for a meeting with Reels to exchange that sample.

Wheat, 988 F.3d at 313. Based on this evidence, the court found that “Wheat

knowingly used his phone to make it easier to distribute the sample to Reels.”

Id.

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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.

2014) (quotation omitted).

Commonwealth v. Rojas-Rolon, 256 A.3d 432, 436 (Pa. Super. 2021),

appeal denied, 285 A.3d 879 (Pa. 2022).

Here, the trial court found sufficient evidence to prove that Appellant

committed the crime of CUCF, explaining:

Under the Commonwealth’s theory of the instant case, …

Appellant used his cell phone to contact the [C.I.] to arrange

deliveries of methamphetamine and fentanyl between the summer

of 2018 through November 6, 2018. The Commonwealth charged

one count for the entire timeframe. In support of this theory, the

Commonwealth presented the testimony of … the [C.I. She]

testified that she was addicted to drugs, particularly

methamphetamine.2 It is a battle she “fights every day[.”] ([N.T.

Trial,] 10/20/21[, at] 92-93). [The C.I.] told the jury about coded

text messages and described the transactions, exchanging money

for drugs. ([See, e.g., id. at] 112-[]15, 123-[]35)[.] She further

told the jury about communications with the co-defendant Jackson

and her knowledge of the relationship between Jackson and …

Appellant based upon the circumstances of her receipt of drugs

and the payment of money. ([Id. at] 112-[]13). She advised the

jury that co[-]defendant Jackson directed her to deal with …

Appellant in his absence. ([Id. at] 99). [The C.I.] explained that

she would communicate by Facebook, text message or telephone

calls with Appellant. ([Id. at] 99). She described the content of

certain messages between [she] and … Appellant. ([See, e.g.,

id. at] 115, 122-[]23, 124-[]25, 126, 130-[]31).

2 The jury heard that [the C.I.] bought drugs from …

Appellant and co-defendant Jackson from the summer of

2018 through October of 2018 when she began making

controlled purchases for the police. She was charged $100

to $150 per gram and the drugs she received had the same

effect on her body as the drugs she had used over the years.

([Id. at] 100-[]01, 146). The jury did not convict ...

Appellant of buys for that time frame, however.

The Commonwealth also admitted exhibits of the electronic

messages. For instance, Commonwealth Exhibit #10 was alleged

to be a text conversation between Appellant and the C.I. on

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November 3rd wherein Appellant stated: “150, I can’t go lower.”

Additionally, [the C.I.] testified that this message was …

Appellant’s response to her inquiry about a lower price. ([Id. at]

130-[]31). [The C.I.] told the jury that she paid co-defendant

Jackson for drugs, but got drugs from … Appellant on November

3rd. ([Id. at] 145). Sergeant Moser identified the photographs

he took of conversations between the C.I. and … Appellant,

including those relating to November 3rd and the $150 price.

([N.T. Trial,] 10/21/21[, at] 97). The jury convicted … Appellant

at Count 2 for delivery of methamphetamine on November 3rd.

Commonwealth Exhibit #17 was another alleged conversation

between Appellant and the C.I. referencing the “G” and “2 BGS.”

[The C.I.] told the jury that the purpose of the electronic contact

was because … Appellant had methamphetamine available. She

again identified pictures from her cell phone taken by Sgt. Moser

at the time of the controlled buy, documenting communications

between her and … Appellant. She testified that she spoke to …

Appellant on the phone in the presence of the police and that they

exchanged electronic messages. She identified a message where

she said “the same as the last time, then” to … Appellant about

arranging a drug transaction for a gram. Appellant and the C.I.

[went] on to discuss where … Appellant [was] located and the

purchase of a gram of methamphetamine and two bags of heroin.

([N.T. Trial,] 10/20/21[, at] 136-[]39). She [was] directed to a

location by … Appellant and [gave] him $190 for one gram of

methamphetamine and two bags of heroin. ([Id. at] 141-[]43,

146). Sgt. Moser was qualified as an expert witness in narcotics

investigations[.] ([Id. at] 42, 44). He testified that he took

photographs of the C.I.[’]s phone and the communications

between the [C.I.] and Appellant. He identified the conversation

occurring over Facebook[.] ([N.T. Trial,] 10/21/21[, at] 106-

[]07). Sgt. Moser told the jury that based upon his training and

experience, the [“]G[”] referred to a gram and the [“]2 BGS[”]

meant bags of heroin[.] ([Id. at] 107). As it relates [to] these

communications, the jury convicted [Appellant] of delivery of

methamphetamine and fentanyl on November 6th.

***

Because the Commonwealth charged and alleged a continuing

count of [CUCF], it was not necessary for the jury to determine if

each text the Commonwealth presented throughout its case arose

to the commission of the crime. It was only necessary for the jury

to believe that at least on one occasion[,] … Appellant had used a

communication device to facilitate a delivery of drugs. According

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to the verdict slip, the jury concluded that[,] at least on two

occasions (November 3rd and November 6th)[,] … Appellant had

arranged for the deliveries of drugs to the C.I. The afore-listed

examples of electronic communications are sufficient evidence for

the jury to find beyond a reasonable doubt that Appellant

possessed sufficient mens rea to be guilty of [CUCF]. Based upon

the above evidence and the reasonable inferences from that

evidence, the jury reasonably [and] properly concluded that …

Appellant had the mens rea of intentionally, knowingly, or

recklessly using a communication device to arrange deliveries of

controlled substances.

TCO at 8-10 (unnecessary capitalization omitted).

The record supports the court’s decision, and confirms that the

Commonwealth presented sufficient evidence to prove that Appellant used an

electronic device to facilitate – or make easier – his delivery of drugs to the

C.I. Appellant and the C.I. exchanged messages on their phones about the

availability, pricing, and quantities of drugs that the C.I. wished to purchase

from Appellant. Appellant also used his phone to tell the C.I. his location,

where she then met him and completed the drug transaction. Clearly, this

evidence demonstrates that Appellant used an electronic device to facilitate

the commission of his drug deliveries to the C.I. Thus, no relief is due on his

first issue.

In Appellant’s second issue, he challenges the discretionary aspects of

his sentence.

Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right. Commonwealth v.

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant

challenging the discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four-part test:

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We conduct a four-part analysis to determine: (1) whether

[the] 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 Pa.R.Crim.P. 720; (3) whether [the]

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.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),

appeal denied, … 909 A.2d 303 ([Pa.] 2006). Objections to the

discretionary aspects of a sentence are generally waived if they

are not raised at the sentencing hearing or in a motion to modify

the sentence imposed. Commonwealth v. Mann, 820 A.2d 788,

794 (Pa. Super. 2003), appeal denied, … 831 A.2d 599 ([Pa.]

2003).

The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis. Commonwealth v. Paul,

925 A.2d 825, 828 (Pa. Super. 2007). A substantial question

exists “only when the appellant advances a colorable argument

that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”

Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Instantly, Appellant has presented a Rule 2119(f) statement in his brief

in which he argues that “the trial court imposed a statutory maximum

sentence without making any connection between its stated purpose for the

sentence and why such a sentence was necessary for Appellant.” Appellant’s

Brief at 34 (emphasis and citations omitted). Appellant stresses that he

was convicted of, namely, two relatively minor drug deliveries.

His conduct, by the trial court’s own description, was less severe

than that of many other individuals charged in [the] larger drug[-

]distribution ring. Moreover, [Appellant] was acquitted of

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involvement in that ring and of conspiring to distribute narcotics

with Jackson.

Id. Appellant posits that these claims raise substantial questions for our

review. Id. (citing Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super.

2002) (“A claim that the sentencing court imposed an unreasonable sentence

by sentencing outside the guideline ranges presents a ‘substantial question’

for [] review.”); Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super.

1999) (en banc) (“An allegation that the sentencing court did not adequately

set forth its reasons on the record does present a substantial question.”)).

Initially, at no point at the sentencing proceeding, in Appellant’s post-

sentence motion, or in the memorandum accompanying his motion, did he

argue that the court failed to state sufficient reasons on the record for the

sentence it imposed. Accordingly, this claim is waived. See Griffin, 65 A.3d

at 936 (“[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.”) (citation omitted).

In Appellant’s post-sentence motion, he argued that his sentence “is

unduly harsh given [his] circumstances” and that the court’s imposition of

consecutive sentences “does not take into consideration the rehabilitative

needs of [Appellant].” Post-Sentence Motion, 1/19/22, at 2 (unnumbered).

In his memorandum accompanying the motion, Appellant elaborated on his

circumstances and rehabilitative efforts that he believes warrant a more

lenient sentence. See Memorandum In Support of Post-Sentence Motion,

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2/23/22, at 2 (unnumbered). He also noted several factors that he alleged

the court improperly considered, such as the fact that several of his prior

arrests “resulted in charges being dismissed or in [Appellant’s] being found

not guilty.” Id.

Thus, the only argument that Appellant preserved for our review in his

post-sentence motion, and which he meaningfully develops in the Argument

section of his brief, is his claim that the trial court’s imposition of consecutive

sentences resulted in an aggregate term that is unduly harsh, considering the

circumstances of the case and Appellant’s rehabilitative needs and efforts.3

We conclude that this claim raises a substantial question for our review. See

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“[W]e

conclude that [the a]ppellant’s challenge to the imposition of his consecutive

sentences as unduly excessive, together with his claim that the court failed to

consider his rehabilitative needs and mitigating factors upon fashioning its

sentence, presents a substantial question.”).

In reviewing the merits of Appellant’s sentencing challenge, we are

mindful that,

____________________________________________

3 Appellant also argues, in his appellate brief, that the court abused its

discretion by imposing a maximum sentence of 42 years’ incarceration based

on its intent that Appellant serve a “long tail of parole.” Appellant’s Brief at

51. He insists that the court failed to appreciate that Appellant “will not

necessarily be paroled” and could ultimately serve the entire, maximum

sentence of 42 years’ incarceration in prison. Id. This argument was not set

forth in Appellant’s post-sentence motion, or his memorandum in support

thereof. Accordingly, it is waived. See Griffin, supra.

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[s]entencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal

absent a manifest abuse of discretion. In this context, an abuse

of discretion is not shown merely by an error in judgment. Rather,

the appellant must establish, by reference to the record, that the

sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

In the instant case, Appellant presents the following argument:

Here, the trial court imposed an aggregate sentence of 10 to 42

years’ imprisonment. This sentence was manifestly excessive and

clearly unreasonable. [Appellant] was convicted of delivering

controlled substances that first consisted of 7.17 grams of

methamphetamine, then .79 grams of methamphetamine and .08

grams of fentanyl. [Appellant] does not downplay the seriousness

of delivering controlled substances, but he stresses that the

circumstances of the offenses here clearly do not justify a four-

decades-long sentence of confinement.

[Appellant] put on evidence at sentencing showing that he had

established a consistent, full-time job, and he was doing well in

the community. He explained to the trial court that he was

working to support his own children and the children of his

partner. The trial court was made aware that [Appellant] had a

troubled past and challenging childhood—an explanation but not

an excuse for his criminal history. [Appellant] presented to the

trial court numerous letters from friends and coworkers explaining

that he was doing well in the community and was a good person.

One even came from the probation officer supervising him on

post-trial release. Still, the trial court was unpersuaded and

focused on the seriousness of his current charges and the

protection of the public based upon his criminal history. The

sentence was focused on conduct and not personal history, thus

being far from individualized.

The trial court imposed sentences at each of the four counts that

had minimum terms in the standard range, but extended to the

statutory maximum at each offense. In doing so, the trial court

created the distinct possibility that [Appellant] will serve 42 years

of imprisonment in connection with two, relatively minor, drug

deliveries.

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Appellant’s Brief at 48-50.

In assessing Appellant’s arguments, we have reviewed the certified

record, the briefs of the parties, and the applicable law. We have also

considered the detailed and well-reasoned opinion of the Honorable Jackie

Atherton Bernard of the Court of Common Pleas of Blair County. See TCO at

11-16. We conclude that Judge Bernard’s discussion of her sentencing

considerations and rationale refutes Appellant’s arguments that the court did

not impose an individualized sentence or consider the circumstances of his

case and his rehabilitative needs and efforts. Based on Judge Bernard’s

opinion and the record before us, we discern no abuse of discretion in

Appellant’s sentence. Thus, we adopt Judge Bernard’s decision addressing

Appellant’s sentencing challenge as our own and affirm the judgment of

sentence for the reasons set forth therein.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2023

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Circulated 06/14/2023 07:41 AM

IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

NO. 2020 CR 724

vs.

GERELL SHEPARD,

Defendant

' )

HON. JACKIE ATHERTON BERNARD PRESIDING JUDGE

MICHAEL T. MADEIRA, ESQUIRE SR. DEPUTY ATTORNEY GENERAL

RYAN H. JAMES, ESQUIRE COUNSEL FOR DEFENDANT

• Date: August 29, 2022

OPINION PURSUANT TO RULE 1925(a) OF THE PA

RULES OF APPELLATE PROCEDURE

This Opinion is issued by the Court following the Defendant-Appellant's

(hereinafter Appellant) Statement of Errors. Gerell Shepard, Appellant, appeals from

the judgment of sentence entered on January 11, 2022, following jury convictions.

PROCEDURAL HISTORYIFACTUAL HISTORY

On January 20, 2020, the Altoona Police Department and the Office of the

Attorney General filed a Criminal Complaint charging the Defendant with the following

Criminal Offenses:

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Corrupt Organizations, 18 Pa.C.S.A. §911(b)(3); Corrupt Organizations-

Conspiraci

Conspiracy, 18 Pa.C.S.A. §911(b)(4); Criminal Possession with Intent to

Deliver, 18 P .S.A. §903(a)(1 ); Possession with Intent to Deliver, 35 P .S. 780-113(a)(30)

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(4 counts); and Criminal Use of a Communication Facility, 18 Pa.C.S.A. §7512.

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The charges arose from a statewide investigating grand jury. Pertaining to the

instant Appellant, the Grand Jury Presentment alleged that that Co-Defendants Shawn

Jackson, Appellant, and Darwin Herring, as well as, others were part of a larger

methamphetamine distribution network, which operated in Blair County from mid-2018

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through October of 2019. The Commonwealth alleged that these individuals conspired

with each other and others in this "business". The Commonwealth acknowledged that

not all members participated during the entire extent of the organization and that many

moved in and out, playing a particular role. The Commonwealth identified local dealers,

mid-level suppliers, and higher level sources, as the roles within the organization and

identified both Co-Defendant Herring and Appellant, as dealers for Jackson.

The Criminal charges were waived to the Court of Common Pleas from the

magisterial district judge level on March 17, 2020. The Attorney General filed a Criminal

Information consistent with the above referenced charges on May 7, 2020. The

Commonwealth also provided notice pursuant to Rule 582(8) of the Pennsylvania Rules

of Criminal Procedure of its intent to try the Defendant's case with seventeen (17) other

defendants. Those individuals included: Adrian Speedwell, CR 45-2020; Carlos

Custalow, CR 725-2020; Kahil Graham, CR 561-2020; Elroy Wise, CR 440-2020;

Shawn Jackson, CR 267-2020; Ricardo Cade, CR 46-2020; Darwin Herring, CR 722-

2020; Kimberly Riggleman, CR 439-2020; Terry Bookwalter, CR 721-2020; Troy Hicks,

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CR 723-2020; Jenna Raia, CR 436-2020; Mark Watson, CR 1241-2020; Aleeta Queen-

Dively, CR 773-2020; William Snyder, CR 438-2020; Barbara Bordell, CR 437-2020;

Nicole Merkerson-Beale, CR 560-2020; Mark Anthony Watson, Jr., CR 1241-2020.

On December 8, 2020, the Defense filed a Motion to Sever. The Court held an

Arf

argument on March 12, 2021. At the time of Oral ument on the matter, the

Commonwealth revised its notice of joinder and represented to the Court and defense

counsel that it would only seek to try the Appellant's case with Co-Defendants Darwin

Herring and Shawn Jackson. The Court also received from the Commonwealth the

Grand Jury Presentment in support of the Commonwealth's position that the cases of

the instant Appellant, Co-Defendant Shawn Jackson, and Co-Defendant Darwin Herring

are related and should be tried together. After considering the record and the briefs

filed by counsel, this Court denied the Motion to Sever by Opinion and Order dated April

26, 2021. As the time for trials were forthcoming and with the disposition of several co-

defendants' cases through negotiated guilty pleas/sentences, the Commonwealth

requested separate trials for Defendant Herring and Appellant.

A jury trial commenced for the instant Appellant on October 20, 2021. At the

outset of trial, the Commonwealth withdraw and amended certain counts on the Criminal

Information. The jury was asked to determine whether Appellant was guilty of: Count

1-Delivery of a Controlled Substance (Methamphetamine) - June 2018 through October

2018; Count 2- Delivery of a Controlled Substance (Methamphetamine) -- November

3, 2018;

Count 3- Delivery of a Controlled Substance (Fentanyl) -- November 6, 2018; Count 4

- Delivery of a Controlled Substance (Methamphetamine) -- November 6, 2018; Count

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5- Conspiracy to Deliver a Controlled Substance (Metharnphetamine and Fentanyl) -

June 2018 through November 6, 2018. Count 6- Criminal Use of a Communications

Facility- June 2018 through November 6, 2018.1

In support of its case, the Commonwealth presented the testimony of the

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Confidential Informant, as well as law enforcement, who worked with the C.I. The Jury

heard testimony about why the C.I. was working with police and the procedures used

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by the police to protect the integrity of the controlled purchases of drugs. The C.I.

explained the nature and type of communications she had with the Appellant and Co-

Defendant Jackson. The Commonwealth submitted exhibits, including photographs

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taken by the police of the electronic communications between the Appellant and the C.I.

The Affiant also explained to the Jury the use of veiled language when parties are

engaged in the sale of illegal drugs. Other Commonwealth evidence addressed the

forensic identification and weight of the drugs involved. The Appellant testified in his

defense. His defense centered around his promiscuity with women during the time of

the alleged drug buys. He denied the criminal activity and attributed his interaction with

the C.I. as a sexual relationship. He described other interactions when she was helping

him move. He denied knowing Co-Defendant Jackson. Rebuttal evidence from the

Commonwealth was presented to show that the Appellant and the Co-Defendant

Jackson were "friends" on Facebook. The Appellant further denied the significance of

Co-Jackson, being listed as a "friend" on Facebook.

Count 1 was primarily based upon historical information from the Confidential Informant's drug buys with the

Appellant, which occurred without police oversight and Involvement. Counts 2, 3, and 4 were based upon

controlled purchases alleged with the Appellant by the C.I. while the C.I. was working with police. Counts 5 and 6

covered both periods of time when the C.I. was allegedly independently buying drugs and when the C.I. was

doing so with police involvement.

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On October 22, 2021, the Appellant was found guil, by a jury of:

Count 2- Delivery of a Controlled Substance (Methamphetamine)- November 3, 2018;

Count 3- Delivery of a Controlled Substance (Fentanyl) - �ovember 6, 2018;

{MethamphetJmine)

Count 4-Delivery of a Controlled Substance - November 6, 2018;

Count 6 - Criminal Use of a Communications Facility -- June 2018 through November

6, 2018. The Appellant was found not guilty of: Count 1 Delivery of a Controlled

Substance (Methamphetamine) -- June 2018 through October 2018; and Count 5 -

Conspiracy to Deliver a Controlled Substance (Methamphetamine and Fentanyl) -- June

2018 through November 6, 2018.

Following his convictions, the Court ordered a presentence investigation; the

submission of sentencing memoranda, and set sentencing to occur on January 11,

2022. At the sentencing hearing, the Commonwealth and the defense presented

arguments. The Appellant also testified and submitted documents. After considering the

presentations, the sentencing memoranda, the trial record, the amended pre-sentence

investigation and all mitigating information, the Court imposed consecutive middle of

the standard range sentences on each count.

ISSUES PRESENTED FOR APPEAL

The Court's interpretation of the Statement of Errors filed by the defense, are as

follows:

1. Whether the record supported the jury's verdict that the requisite mens rea for

Count 6, Criminal Use of Communication facility was established beyond a

reasonable doubt?

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Suggested Answer: In the Affirmative. There was ample evidence in the

record to support the jury's verdict that Appellant knowingly, intelligently or

recklessly used a communication device to facilitate the delivery of a controlled

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substance.

2. Whether the aggregate sentence imposed was in accordance with the law and

within the Court's discretion?

Suggested Answer: In the Affirmative. The Court properly exercised its

discretion, taking into account the record of the trial, the sentencing guidelines,

the PSI, the sentencing code, presentations made on behalf of the Appellant and

all mitigating factors and the rehabilitative potential for the Appellant, as well as,

the need to protect society.

DISCUSSION

I. The record supported the Jury's conclusion that the Defendant had the

requisite mens rea to commit the crime of Criminal Use of

Communication Facility.

Pursuant to Section 7512 of Title 18, the crime of Criminal Use Communication

Facility requires the Commonwealth to prove beyond a reasonable doubt: that the

defendant intentionally, knowingly, or recklessly used a communication facility; that the

defendant intentionally, knowingly, or recklessly used the communication facility to

facilitate the commission of the crime of Possession with Intent to Deliver a Controlled

Substance; and finally, that the crime of Possession with Intent to Deliver actually

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occurred. In the closing charge, the Jury was instructed, consistent with the Standard

Jury Instruction 15.7512 on the above elements and the definition of a communication

facility being: a public or private instrumentality used or useful in the transmission of

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signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in

whole or in part, including, but not limited to, telephone, wire, radio, electromagnetic,

photo-electronic, or photo-optical systems or the mail. This closing instruction also

included legal definitions for the mens rea terms of intentional, knowingly, and

recklessly. (T.T. 10/22/21 at p. 4647). This Jurist told the jury:

A defendant acts intentionally when it is his conscious object to facilitate the

commission of the crime charged by using the communication facility. A defendant

acts knowingly when he is aware that it is practically certain that his use of a

communication facility will facilitate the commission of the crime charged and fourth,

the defendant acts recklessly when he consciously disregards a substantial and

unjustifiable risk that his use of the communication facility will, in fact, facilitate the

commission of the crime charged. (T.T. 10/22/21 at p. 47, I. 14-22).

The appellate courts have held that evidence was sufficient to support a

defendant's conviction for Criminal Use of a Communication Facility, when the

defendant engaged in several telephone conversations with a confidential informant

and the conversations led to a controlled buy of drugs between the defendant and the

confidential informant. See Commonwealth v Moss, 852 A.2d 374 (Pa. Super 2004)

(further stating that mens rea requirement applied to each material element of the

offense and also overturning a conviction under Section 7512 where there was no

evidence to establish that the delivery of drugs actually occurred between the defendant

and his supplier).

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Under the Commonwealth's theory of the instant case, the Appellant used his

cell phone to contact the Confidential Informant �o arrange deliveries of

methamphetamine and fentanyl between the summer of 2018 through November 6,

2018. The Commonwealth charged one count for the entire timeframe. In support of this

theory, the Commonwealth presented the testimony of Tiffany lraca, the Confidential

Informant. Ms. lraca testified that she was addicted to drugs, particularly

methamphetamine.2 It is a battle she "fights every day". (T.T. 10/20/21 p. 92-93). Ms.

lraca told the jury about coded text messages and described the transactions,

exchanging money for drugs. (In example, T.T. 10/20/21 p. 112-115, 123-135) She

further told the jury about communications with the Co-Defendant Jackson and her

knowledge of the relationship between Jackson and the Appellant based upon the

circumstances of her receipt of drugs and the payment of money. (T.T. 10/20/21 p.112-

113). She advised the jury that Co Defendant Jackson directed her to deal with the

Appellant in his absence. (T.T. 1/20/21 p. 99). Ms. lraca explained that she would

communicate by Facebook, text message or telephone calls with Appellant. (T.T.

10/20/21 p. 99). She described the content of certain messages between her and the

Appellant. (For instance, T.T. 10/20/21 p. 115, 122-123, 124-125, 126, 130-131).

The Commonwealth also admitted exhibits of the electronic messages. For

instance, Commonwealth Exhibit #10 was alleged to be a text conversation between

Appellant and the C.I. on November 3"° wherein Appellant stated: "150, I can't go lower."

'The jury heard that Ms. lraca bought drugs from the Appellant and Co-Defendant Jackson from the summer of

2018 through October of 2018 when she began making controlled purchases for the police. She was charged

$100 to $150 per gram and the drugs she received had the same effect on her body as the drugs she had used

over the years. (T.T. 10/20/21 p. 100-101, 146). The Jury did not convict the Appellant of buys for that time

frame, however.

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Additionally, Ms. lraca testified that this message was the Appellant's response to her

inquiry about a lower price. (T.T. 10/20/21 p. 130-131). Ms. lraca told the jury that she

paid Co-Defendant Jackson for drugs, but got drugs from the Appellant on November

3rd. (T.T. 10/20/21 p. 145). Sergeant Moser identified the photographs he took of

conversations between the C.I. and the Appellant, including those relating to November

3rd and the $150 price (T.T. 10/21/21 p. 97). The jury convicted the Appellant at Count

2for delivery of methamphetamine on November 3rd. Commonwealth Exhibit #17 was

another alleged conversation between Appellant and the C.I. referencing the "G" and "2

BGS." Ms. lraca told the jury that the purpose of the electronic contact was because

the Appellant had methamphetamine available. She again Identified pictures from her

cell phone taken by Sgt. Moser at the time of the controlled buy, documenting

communications between her and the Appellant. She testified that she spoke to the

Appellant on the phone in the presence of the police and that they exchanged electronic

messages. She identified a message where she said ''the same as the last time, then"

to the Appellant about arranging a drug transaction for a gram. Appellant and the C.I.

go on to discuss where the Appellant is located and the purchase of a gram of

methamphetamine and two bags of heroin. (T.T. 10/20/21 p. 136-139). She is directed

to a location by the Appellant and gives him $190 for one gram of methamphetamine

and two bags of heroin. (T.T. 10/20/21 p. 141- 143, 146). Sgt. Moser was qualified as

an expert witness in narcotics investigations (T.T. 10/20/21 p. 42, 44). He testified that

he took photographs of the C.l.s phone and the communications between the Cl and

Appellant. He identified the conversation occurring over Facebook (T.T. 10/21/21 p.

106-107). Sgt. Moser told the jury that based upon his training and experience, the G

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referred to a gram and the 2 BGS meant bags of heroin (T.T. 10/21/21 p. 107). As it

relates these communications, the Jury convicted the I Defendant of delivery of

methamphetamine and fentanyl on November 6t

This Court believes that the defense argument may be based upon the testimony

of the C.I. about text messages between the Appellant and her discussing "clothes".

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These references have common meanings in addition to any illicit or ulterior meaning

Howevbr,

attributed to them by the C.I. and Sgt. Moser. this defense argument

completely ignores the conversations detailed previously. I

Because the Commonwealth charged and alleged a continuing count of Criminal

Use of a Communication Facility, it was not necessary for the Jury to determine if each

text the Commonwealth presented throughout its case arose to the commission of the

crime. It was only necessary for the Jury to believe that at least on one occasion the

Appellant had used a communication device to facilitate a delivery of drugs. According

to the verdict slip, the Jury concluded that at least on two occasions (November 3rd and

November 6th) the Appellant had arranged for the deliveries of drugs to the C.I. The

afore-listed examples of electronic communications are sufficient evidence for the Jury

to find beyond a reasonable doubt that Appellant possessed sufficient mens rea to be

guilty of Criminal Use of a Communication Facility. Based upon the above evidence and

the reasonable inferences from that evidence, the jury reasonably properly concluded

that the Appellant had the mens rea of intentionally, knowingly, or recklessly using a

communication device to arrange deliveries of controlled substances.

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II. The aggregate sentence imposed was in accordance with the law and

within the court's discretion

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In the Statement of Errors, the Defense alleges as follows:

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Pennsylvania law makes clear that a minimum sentence serves as a guide to the

earliest potential release date. The punishment imposed is the maximum period

of confinement. The Commonwealth sought a sentence of 11.25 to 25 years'

imprisonment, and the Court imposed a sentence of 10 to 42 years. In doing so,

the Court expressed that it was "deviating" from the Commonwealth's

recommendation, and it believed the sentence to be "appropriate" in relation to

the Appellant's charged co-conspirator, who received ' 15 to 30 years'

imprisonment but ''who had a much larger role in the distribution of

methamphetamine." The Court, therefore, sentenced with a focus to the

minimum sentence imposed, believing it was imposing a more lenient sentence,

one ''with a long tail of parole." The Court's consecutive sentencing scheme,

however, was incongruent with the conduct of conviction -- a mere two drug

deliveries resulting in the distribution of 7. 8 grams of methamphetamine and 4.08

grams offentany/. (Emphasis added)

Consequently, was the Court's sentence "unduly harsh," excessive, and

unreasonable?

Under Pennsylvania Law, the sentencing Court is vested with sound discretion

to render judgment and this judgment will not be disturbed absent an abuse of

discretion. Commonwealth v. Sharp, 792 A.2d 1266, 1268 (Pa. Super. 2002).

However, an abuse of discretion is more than just an error in judgment.

Commonwealth v. Jordan, 125 A.2d 55, 71 (Pa. Super. 2015). Such abuse of

discretion will only be found if the judgment was "manifestly unreasonable or the result

of partiality, prejudice, bias, or ill-will." Id. This discretion allows the sentencing judge to

sentence up to and including the maximum sentence authorized by statute; the only line

that a sentence may not cross is the statutory maximum sentence. Commonwealth v.

Gordon, 942 A.2d 174, 182 (Pa. 2007).

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Pennsylvania law requires that the sentence court "make as part of the record

and disclose in open court at the time of the sentencing, al statement of the reason or

reasons for the sentence imposed". 42 Pa.C.S.A. $9712(b). "Indeed, in fashioning

sentence, a judge is obligated to follow the general principl, that the sentence imposed

should call for confinement consistent with the protection of lhe public, the gravity of the

offense as it relates to the impact on the life of the victim and the community, and the

rehabilitative needs of the Defendant." Commonwealth Monahan, 860 A.2d 180,

184 (Pa. Super. 2004).

Section 9725 of Title 18 states:

The court shall impose a sentence of total confinement if, having regard to the

nature and circumstance of the crime and the history, character, and condition of the

defendant, it is of the opinion that the total confinement of the defendant is necessary

because:

(1) There is undue risk that during a period of probation or partial confinement

the defendant will commit another crime;

(2) The defendant is in need of correctional treatment that can be provided most

effectively by his commitment to an institution; or

(3) A lesser sentence will depreciate the seriousness of the crime of the

defendant.

The Court is satisfied that it followed the statutory sentencing requirements of

the Judicial Code and the mandates of Pennsylvania law. The Defendant was given a

middle of the standard range sentence on each count with a long tail of parole. The

Appellant was provided notice of why and how the Court was fashioning his sentence

at the time of the sentencing hearing? and also referenced those considerations in the

sentencing Order of January 11, 2021. This Jurist readily acknowledged at the

3

This Court incorporates by reference herein the full sentencing transcript.

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sentencing hearing and in the sentencing Order that the Pre-Sentence Investigation

(PSI), as corrected, was considered and made part of the record, as was all, the

mitigating information offered for the Defendant. (Sentencing Transcript 1/11/22, p.7-9

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and the sentencing order dated January 11, 2021 incorporated by reference hereto as

though set forth at length herein). The Undersigned disagrees that with the defense

framing of the issue as an unduly harsh sentence for "a mere two drug deliveries

resulting in the distribution of 7.8 grams of methamphetamine and 4.08 grams of

fentanyl. (emphasis added) when the entirety of the facts and circumstances of the

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record are considered, along with the Appellant's history, as well as the Court's mandate

to fashion an individualized sentence upon the Appellant.

The evidence of Appellant's record/history was clear and referenced by the Court

at the proceeding, as contained in the PSI. The Defendant's criminal history spans since

he was 16 years of age. Per the PSI, Appellant had 9 confinements, 18 prior adult

arrests, 3 juvenile arrests (with 2 adjudications), 15 convictions, 8 paroles granted, 3

paroles revoked, 3 paroles denied, 7 prior probations (with 2 revocations). The

Appellant's poor history was cited by the Court as a basis for the sentencing scheme.

"He has a poor supervision history with numerous arrest, revocations, technical

violations on almost a yearly basis since 2009. These arrests include misdemeanors

and felonies and some weapon violation offenses." (1/11/22 Order p. 7). The Court

cited that one of the offenses involved a weapon while incarcerated. "The Court

believes a consecutive sentence is necessary for each of these crimes ... in light of his

prior poor supervision and prior history of opportunities for rehabilitation ... The Court

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recognizes the Defendant's failure to avail himself of rehabilitation while providing

community protection is the purpose of this sentence." (1/11/22/ Order, p. 8).

The need to protect society is supported by the record of the proceedings and

the information within the PSI. The Court referenced the record of the proceedings

when considering the appropriate sentence. (1/11/22 Order p. 8). The record at trial

established that the Defendant knew he was dealing in dangerous substances. Knowing

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that the Cl did not use heroin, Appellant arranged for the C.I. to purchase heroin and

told the C.I. during the November 6th drug delivery that she should advise her

customers to make sure to be careful because that was "the stuff that was killing

people." (T.T. 10/21/21 p. 143, I. 13-16). The Jury learned that the substance sold, as

heroin, by the Appellant to the C.I. on November 6", was confirmed to be fentanyl upon

forensic examination. Yet, despite the Appellant holding the drug out as heroin, he

understood the lethality.

When discussing the rehabilitative aspects of sentencing for Appellant, it is clear

from the record that the nature and type of rehabilitation is not the same for him as for

those who are addicted to drugs. The rehabilitative needs of this Appellant are

criminogenic. There was no evidence to show that Appellant is a drug user. It is

reasonable to infer from the evidence that he was a businessman and used the C.I.,

who are struggling with drug addictions, to make money. He also understood the

financial benefit to be made by selling drugs because he told the C.I. to cut it [heroin]

up to make more money. (T.T. 10/21/21 p. 143, I. 13-16).

His motivations for engaging in criminal behavior in light of his supervision history

and the deadliness of one of the drugs he sold are factors when evaluating the need to

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protect society and thus, whether the Appellant should have received a long period of

supervision and whether he should receive concurrent or consecutive sentences.

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Under these circumstances and considering the history of the Appellant, the sentence

imposed appropriately addresses the need to protect the public for an extended period

of time (with oversight by a parole officer) from the Appellant, a businessman, peddling

dangerous substances with the sole selfish motivation to mjke money.

With regard to the imposition of consecutive sentences, the Pennsylvania

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Superior Court has stated:

[T]he imposition of consecutive rather than concurrent sentences lies

within the sound discretion of the sentence in court. Longstanding

precedent of this court recognizes that 42 Pa.C. S. A. § 9721 affords the

sentencing court discretion to impose its sentence concurrently for

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

sentences already imposed. A challenge to the imposition of a

consecutive rather than a concurrent sentence does not present a

substantial question regarding the discretionary aspects of sentence. We

see no reason why [a defendant] should be afforded a volume discount

for his crimes by having all sentences run concurrently. However, we have

recognized that a sentence can be so manifestly excessive in extreme

circumstances that may create a substantial question, When determining

whether it substantial question has been raised, we have focused upon

whether the decision to sentence consecutively raises the aggregate

sentence to, what appears to be its face to be an excessive level in light

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of the criminal conduct in the case. Commonwealth v. Zirkle, 107 A.3d

127, 132 (Pa.Super. 2014) (citations omitted).

In the case before this Court, the evidence established and the jury convicted

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Appellant of delivering/selling quantities of methamphetamine on more than one

occasion and also of delivering/selling fentanyl. Methamphetamine is a dangerous

substance and of course, the lethality of fentanyl is well known. Based upon the

testimony of record, he was aware that the Commonwealth's witness struggled with

addiction. He had numerous convictions over years and ignored opportunities to

change his criminal behavior. While the Appellant was performing at work, this behavior

coincided with his bail for the current charges. Furthermore, even considering the

Appellant alleged connection to his children and the other mitigation evidence

presented, Appellant engaged in selling drugs, per the Jury verdicts. The Appellant

failed to adhere to appropriate behavior on previous periods of supervision with criminal

conduct spanning the prior 16 years. This Court, like the Zirkle court, found no reason

to give the Defendant a volume discount in his sentencing scheme and said so. (1/11/22

Order, p. 8).

The Court imposed an individualized sentence, taking into account the entirety

of the record, the Defendant's history, rehabilitative needs, contents of the pre-sentence

investigation, mitigation information, punishment and the need to protect society. The

sentence was not manifestly excessive, "unduly harsh," or an abuse of discretion.

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CONCLUSION

Accordingly, based upon the record and the applijable law, the Undersigned

respectfully requests the Honorable Superior Court determine the appeal is without

merit and deny and dismiss the appeal.

Respectfully submitted,

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