Opinion
J-S85042-16 No. 3049 EDA 2014
01-27-2017
COMMONWEALTH OF PENNSYLVANIA v. JAMES PITTS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 19, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0009914-2012 BEFORE: PANELLA, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
James Pitts ("Pitts") appeals from the judgment of sentence imposed after a jury convicted him of possession with intent to deliver a controlled substance ("PWID"), possession of a controlled substance, and conspiracy to commit PWID. We affirm.
See 35 P.S. § 780-113(a)(30), (16); 18 Pa.C.S.A. § 903(a).
Briefly, on the afternoon of April 19, 2012, Officer James Reilly ("Officer Reilly") was conducting surveillance, in plainclothes and as part of the Narcotics Strike Force, at the corner of E and Lippincott Streets in Philadelphia. Officer Reilly and other officers observed Pitts and two co-conspirators engage in hand-to-hand sales of heroin and crack cocaine, and thereafter arrested Pitts. The Commonwealth charged Pitts with the above- mentioned offenses. Prior to trial, Pitts filed a Motion to suppress, which the trial court denied. The matter proceeded to a jury trial, at the close of which the jury found Pitts guilty on all charges. Before sentencing, the trial court ordered the preparation of a pre-sentence investigation report ("PSI").
In its Opinion, the trial court fully set forth the facts, which are not pertinent to our disposition of this appeal. See Trial Court Opinion, 2/9/16, at 2-5.
On May 19, 2014, the sentencing court imposed a sentence on Pitts's PWID conviction of 51 to 102 months in prison, followed by six years of probation. On the conspiracy conviction, the court imposed an identical sentence as that imposed for PWID, and ordered it to run concurrently. The court imposed no further penalty on the conviction of possession of a controlled substance.
Notably, this sentence was within the aggravated range of the sentencing guidelines.
On May 27, 2014, Pitts filed a Motion for reconsideration of sentence. The following day, he filed a post-sentence Motion. Both of these Motions were denied, by operation of law, after which Pitts timely filed a Notice of Appeal. In response, the trial court ordered Pitts to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Pitts timely filed a Concise Statement.
Pitts now presents the following questions for our review:
1. Is the verdict for all crimes which [Pitts] was convicted of against the weight of the evidence and so contrary to the evidence that it shocks one's sense of justice in light of the circumstances as set forth in the evidence presented at trial ...?
2. Is the sentence imposed in this matter unduly harsh, excessive and unreasonable under the circumstances[,] where it is above the standard range of the sentencing guidelines and the court failed to establish sufficient reasons for the imposition of an above[-]guideline sentence?Brief for Appellant at 7-8 (issues numbered).
Pitts first argues that the jury's verdicts cannot stand because they are against the weight of the evidence. See id. at 24-28 (asserting, inter alia, that there was no forensic evidence linking Pitts to the narcotics recovered by the police, and the only evidence that inculpated him was the testimony of Officer Reilly).
Preliminarily, we must address whether Pitts properly preserved this claim for our review.
[A] weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth v. Priest , 2011 PA Super 85, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion. Commonwealth v. Sherwood , 603 Pa. 92, 982 A.2d 483, 494 (2009).Commonwealth v. Lofton , 57 A.3d 1270, 1273 (Pa. Super. 2012).
Here, Pitts did not present a challenge to the weight of the evidence in his post-sentence Motion, nor did he preserve the claim elsewhere. Accordingly, he waived this claim. See id.
In relevant part, the post-sentence Motion stated only as follows: "[t]he evidence presented by the Commonwealth was insufficient to sustain the verdict as to all of the charges[,]" and "lacked sufficient credibility to be worthy of belief by the jury." Post-sentence Motion, 5/28/14, at ¶¶ 9, 11. Neither of these claims raise a challenge to the weight of the evidence.
Additionally, Pitts waived this claim for his failure to preserve it in his court-ordered Rule 1925(b) Concise Statement. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that "[a]ny issues not raised in a 1925(b) statement will be deemed waived."); see also Pa.R.A.P. 1925(b)(4)(vii) (providing that "[i]ssues not included in the Statement ... are waived.").
Nevertheless, even if Pitts had not waived his weight of the evidence challenge, we would have determined that it lacks merit, and the jury's verdict does not shock our collective conscience, for the reasons set forth in the trial court's Opinion. See Trial Court Opinion, 2/9/16, at 7-8; see also Commonwealth v. Gonzalez , 109 A.3d 711, 723 (Pa. Super. 2015) (setting forth our standard of review concerning a weight of the evidence claim).
In his second claim, Pitts contends that the sentencing court abused its discretion by considering improper information in imposing a purportedly excessive, aggravated-range sentence, including hearsay evidence. See Brief for Appellant at 31-40.
We point out that Pitts is incorrect in asserting that his sentence was "outside of the guidelines range," Brief for Appellant at 34; rather, the sentence was at the top end of the aggravated range of the sentencing guidelines.
Pitts challenges the discretionary aspects of his sentence, from which there is no automatic right to appeal. See Commonwealth v. Hill , 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has preserved the sentencing challenge for appellate review by raising it at sentencing or in a timely post-sentence motion, the appellant must (1) include in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Id. at 363-64.
Pitts included the requisite Rule 2119(f) Statement in his brief. See Brief for Appellant at 31-35. Moreover, we determine that Pitts's above-mentioned claim presents a substantial question for our review. See Commonwealth v. Downing , 990 A.2d 788, 792 (Pa. Super. 2010) (stating that a claim that the sentencing court relied on improper factors when imposing an aggravated-range sentence presents a substantial question); see also id. at 793 (stating that "[a] sentence is invalid if the record discloses that the sentencing court may have relied in whole or in part upon an impermissible consideration. This is so because the court violates the defendant's right to due process if, in deciding upon the sentence, it considers unreliable information, or information affecting the court's impartiality, or information that it is otherwise unfair to hold against the defendant."). Accordingly, we will review the merits of Pitts's claim.
Our standard of review is as 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 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. Garcia-Rivera , 983 A.2d 777, 780 (Pa. Super. 2009) (citation omitted).
Pitts argues that the sentencing court abused its discretion in imposing an unreasonable aggravated-range sentence, where the court improperly relied upon hearsay information in the PSI (a comment purportedly made by Pitts concerning his reason for dealing drugs), and using this as an aggravating circumstance. See Brief for Appellant at 36-37, 39. Pitts asserts that he "was denied his right to due process as a result of the trial court's consideration of hearsay allegations, which [] Pitts promptly and consistently denied, without affording [] Pitts the opportunity to confront the person providing that hearsay information to the court." Id. at 35.
In its Opinion, the sentencing court explained that it "put several reasons for the aggravation of the sentence on the record[,]" which
included [Pitts's] complete lack of remorse and his failure to accept responsibility for his actions. Th[e sentencing] court was
also appalled at [Pitts's] reasons for becoming involved in narcotics sales. [Pitts] stated that he wanted to make money to buy material things that his parents couldn't afford. Accordingly, [the sentencing] court viewed [Pitts's] complete lack of remorse and his seeming mockery of the legal system as a valid reason to sentence in the aggravated range of the guidelines.Trial Court Opinion, 2/9/16, at 11 (emphasis added); see also N.T. (sentencing), 5/19/14, at 21-22 (wherein the sentencing court recounted that the PSI stated as follows: "[U]nder the substance abuse history, you ... claimed that you started to sell drugs because you wanted to lead a better lifestyle[,]" and "wanted material things that [your] parents could not provide." (hereinafter collectively referred to as "the PSI drug dealing comments")); see also id. at 22 (wherein Pitts responded that "I never said those things.").
We are unpersuaded by Pitts's claim. This Court has observed that
hearsay testimony is precisely the type of evidence which ... is the right of a court in sentencing to consider even though such information is obtained outside the courtroom from persons whom the defendant has not been permitted to confront or cross-examine. Significantly, the admission of hearsay in sentencing proceedings, especially those which do not involve a capital crime, is a common occurrence. In fact, sentencing courts, as a matter of course, consider hearsay in nearly every sentencing case since pre-sentence investigations are routinely ordered and considered by the court, and a pre-sentence report is the very definition of hearsay, i.e., the pre-sentence report is a report by a probation officer reciting other person's out-of-court statements offered for their truth.Commonwealth v. Medley , 725 A.2d 1225, 1230 (Pa. Super. 1999) (emphasis added; citation, quotation marks and ellipses omitted); see also id. at 1229 (stating that "a proceeding held to determine sentence is not a trial, and the court is not bound by the restrictive rules of evidence properly applicable to trials. Rather, the court may receive any relevant information for the purposes of determining the proper penalty.") (internal citations omitted). Additionally, we observe that Pa.R.Crim.P. 702(A)(3) provides that "[t]he pre-sentence investigation report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the judge in determining sentence." Here, the sentencing judge was permitted to consider any hearsay statements contained in Pitts's PSI to ascertain his character, including the PSI drug dealing comments.
Moreover, the sentencing court expressly acknowledged Pitts's denial that he had uttered the PSI drug dealing comments, see N.T., 5/19/14, at 22, but, nevertheless, deemed it appropriate to impose a sentence in the aggravated range. Id.
Further, a sentencing court has wide discretion and may consider any legal factor in imposing an aggravated-range sentence. Commonwealth v. Bowen , 975 A.2d 1120, 1122 (Pa. Super. 2009). One legal factor is a defendant's level of remorse. See Commonwealth v. Matroni , 923 A.2d 444, 455 (Pa. Super. 2007). Here, the sentencing court cited Pitts's lack of remorse as one of the reasons it imposed an aggravated-range sentence. See N.T., 5/19/14, at 21. The sentencing court also considered Pitts's significant prior criminal history, which contained several felony convictions. See id. at 15-20. Accordingly, the sentencing court acted well within its discretion, and stated adequate reasons, in imposing an aggravated-range sentence.
In sum, we discern no abuse of discretion or error of law by the sentencing court, nor do we deem the aggravated-range sentence to be unreasonable or excessive under the circumstances.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017