Opinion
J-S69035-19 No. 2742 EDA 2018
03-11-2020
COMMONWEALTH OF PENNSYLVANIA v. CRAIG WHITE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 7, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001679-2017 BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J. MEMORANDUM BY COLINS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Craig White, appeals from the aggregate judgment of sentence of six to twelve years of confinement, which was imposed after his jury trial convictions for: manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance (113 oxycodone pills); and knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered. We affirm on the basis of the trial court opinion.
35 P.S. § 780-113(a)(30) and (16), respectively.
In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. See Trial Court Opinion, filed March 29, 2019, at 1-3. Therefore, we have no reason to restate them.
On September 9, 2018, Appellant filed this timely direct appeal. Appellant filed his statement of errors complained of on appeal on October 30, 2018. The trial court entered its opinion on March 29, 2019.
Appellant presents the following issues for our review:
I. Did the trial court err in denying the motion to suppress any and all evidence recovered from his vehicle and/or his person at the time of arrest?Appellant's Brief at 5 (trial court's answers omitted).
II. Did the trial court abuse its discretion in imposing an excessive/improper sentence given the nature and circumstances of Appellant and the facts/circumstances of the underlying case; was Appellant's sentence not supported by sufficient reasons, excessive given the nature and circumstances of Appellant, his lack of any recent criminal history and the facts of the underlying case, including the fact that the offense was not violent; did the trial court improperly allow and/or consider, during the sentencing hearing, the fact that heroin was allegedly recovered from Appellant when the jury acquitted him of all charges relating to heroin?
Appellant first contends that "the trial court erred in denying the motion to suppress any and all evidence recovered from his vehicle and/or his person at the time of arrest." Id. at 10.
Our scope of review from a suppression ruling is limited to the evidentiary record created at the suppression hearing. Commonwealth v. Fulton , 179 A.3d 475, 487 (Pa. 2018).
In reviewing the denial of a suppression motion, our role is to determine 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. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, 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.Commonwealth v. Yim , 195 A.3d 922, 926 (Pa. Super. 2018) (citations and internal brackets omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Glynnis Hill, we conclude Appellant's first issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of that question. See Trial Court Opinion, filed March 29, 2019, at 3-9 (finding: the arresting officers had probable cause to stop Appellant for vehicular violations, were acting within their authority when they asked Appellant to step out of the vehicle, and had probable cause to arrest Appellant based on the warrant for his arrest and the officers' discovery of oxycodone on Appellant's person after one of the officers heard and felt a sizable amount of loose pills in the Appellant's left sweatshirt pocket; Commonwealth v. Johnson , 86 A.3d 182 (Pa. 2014), and Commonwealth v. Edmunds , 586 A.2d 887 (Pa. 1991), can be distinguished from the current action). Accordingly, the trial court did not err when it denied the Appellant's motion to suppress.
Next, Appellant challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary sentencing issue[, w]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).Commonwealth v. Manivannan , 186 A.3d 472, 489 (Pa. Super. 2018) (quotation marks and some citations omitted), reargument denied (July 7, 2018). In the current case, Appellant filed a timely notice of appeal, preserved his issue in a post-sentence motion, and included a statement in his brief pursuant to Pa.R.A.P. 2119(f) ("Rule 2119(f) Statement"). Appellant's Brief at 4. The final requirement, whether the question raised by Appellant is a substantial question meriting our discretionary review, "must be evaluated on a case-by-case basis. 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." Manivannan , 186 A.3d at 489 (quotation marks and some citations omitted).
In his Rule 2119(f) Statement, Appellant contends that the trial court abused its discretion in imposing an excessive sentence, because the trial court did not take into consideration the nonviolent nature of his offenses and his lack of recent criminal history. Appellant's Brief at 4. Additionally, Appellant maintains that "the trial court improperly allowed testimony and/or considered, during the sentencing hearing, the fact that heroin was allegedly recovered from Appellant when the jury acquitted him of all charges relating to heroin." Id. Finally, Appellant argues that the trial court based his sentence "solely on the seriousness of the offense while failing to consider all relevant sentencing factors[.]" Id.
Appellant's assertion that his sentence was excessive given the nonviolent nature of his offenses raises a substantial question. Commonwealth v. Dodge , 77 A.3d 1263, 1266-67, 1270-71, 1273 (Pa. Super. 2013) (claim that sentence is excessive in light of conduct at issue raises substantial question).
Appellant contention that the trial court relied on matters not of record also raises a substantial question. Commonwealth v. Downing , 990 A.2d 788, 792 (Pa. Super. 2010) (contention that "trial court's finding that Appellant possessed the gun for 'criminal purposes' [was] not supported by the evidence, but rather, [was] a mischaracterization of the evidence . . . raises a substantial question permitting review"); Commonwealth v. Druce , 796 A.2d 321, 334 n.15 (Pa. Super. 2002) (claim trial court relied on evidence not of record raised substantial question); Commonwealth v. Roden , 730 A.2d 995, 997 (Pa. Super. 1999) (claim trial court relied on improper factor, i.e., adverse negative impact appellant's crimes would have on working mothers who relied on babysitters, raised substantial question).
Finally, although Appellant's claim that the trial court failed to consider the mitigating factor of his lack of a recent criminal record generally would not raise a substantial question, Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (citing Commonwealth v. Wellor , 731 A.2d 152, 155 (Pa. Super. 1999) ("allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise a substantial question"), he has coupled this assertion with a claim that the trial court only considered the serious nature of his offense, thereby ignoring this factor, which does raise a substantial question. Commonwealth v. Bricker , 41 A.3d 872, 875 (Pa. Super. 2012) ("averment that the court sentenced based solely on the seriousness of the offense and failed to consider all relevant factors raises a substantial question"); Commonwealth v. Ventura , 975 A.2d 1128, 1133 (Pa. Super. 2009) ("Ventura further asserts that the trial court imposed his sentence based solely on the seriousness of the offense and failed to consider all relevant factors, which has also been found to raise a substantial question."); Commonwealth v. Lawrence , 960 A.2d 473 (Pa. Super. 2008) (averment that the court sentenced based solely on seriousness of the offense and failed to consider all relevant factors raises a substantial question).
Having found that Appellant's sentencing challenges merit our discretionary review, we turn to our standard of review:
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. Lekka , 210 A.3d 343, 350 (Pa. Super. 2019) (citation omitted).
Again, after a thorough review of the record, the briefs of the parties, the applicable law, and Judge Hill's well-reasoned opinion, we find no merit in Appellant's argument that the trial court abused its discretion by ordering an excessive sentence for a non-violent crime given his lack of a recent criminal record. The trial court opinion comprehensively discusses and properly disposes of that issue. See Trial Court Opinion, filed March 29, 2019, at 9-11 (finding: Appellant's sentence was not excessive as he was convicted of possessing 113 oxycodone pills, a Schedule II narcotic, with intent to deliver and as he had an extensive criminal record; the trial court considered Appellant's arguments that his "conviction was not for a violent crime" and "that he had not been convicted of a crime since 1998").
As for Appellant's insistence that "the trial court improperly considered the fact that heroin was found in the car in which Appellant was stopped, even though he was acquitted by jury of all charges related to heroin[,]" Appellant's Brief at 13, Appellant failed to provide any legal authority for his assertion that the trial court was not permitted to consider this information; this challenge consequently is waived. Kelly v. The Carman Corporation , 2020 PA Super 35, *35-*36 (filed February 12, 2020) (citing Pa.R.A.P. 2119(a) (argument shall include citation of authorities); Commonwealth v. Spotz , 18 A.3d 244, 281 n.21 (Pa. 2011) (without a "developed, reasoned, supported, or even intelligible argument[, t]he matter is waived for lack of development"); In re Estate of Whitley , 50 A.3d 203, 209 (Pa. Super. 2012) ("The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities[; t]his Court will not consider the merits of an argument which fails to cite relevant case or statutory authority" (citations and quotation marks omitted)); Lackner v. Glosser , 892 A.2d 21, 29-30 (Pa. Super. 2006) (appellant's arguments must adhere to rules of appellate procedure; arguments that are not appropriately developed, including those failing to cite any authority in support of contention, are waived on appeal)).
For these reasons, Appellant has failed to demonstrate a manifest abuse of discretion, and we therefore will not disturb Appellant's sentence on appeal. Lekka , 210 A.3d at 350.
Accordingly, we affirm on the basis of the trial court's opinion. The parties are instructed to attach the opinion of the trial court in any filings referencing this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/11/20
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