Opinion
496 MDA 2021 J-S01032-22
05-24-2022
COMMONWEALTH OF PENNSYLVANIA v. JAMES ARTHUR CORBETT Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 22, 2020 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0002239-2019
Joseph D. Seletyn, Esq.
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
Appellant, James Arthur Corbett, appeals from the judgment of sentence imposed following his conviction of four counts of possession with intent to deliver a controlled substance ("PWID"), corrupt organizations, and criminal conspiracy to commit corrupt organizations.
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 911(b)(3), (4), respectively.
On March 17, 2018, Alan Bocchini, Jr. was found dead in a bathroom of his workplace, a factory in York County. It was later determined that Bocchini died of an overdose of heroin and fentanyl. Police arrested Bocchini's dealer, Kayleigh Hess, in August 2018, and she confirmed that she had sold opioids to Bocchini on the day of his death. Hess also informed police that she had purchased the drugs she sold to Bocchini from Appellant, her dealer whom she knew by the name of "Sha." Detectives arranged for Hess to make two controlled purchases on August 28 and August 29, 2018 from "Sha"; on each occasion, she purchased ten packets of a white substance that tested positive for fentanyl and acetyl fentanyl, a fentanyl derivative.
Detectives also worked with another confidential informant, Linda Johnson, who bought drugs from Appellant, whom she knew as "D." Johnson performed two controlled purchases from Appellant on August 29 and October 16, 2018. During the first purchase, Appellant sold Johnson ten packets of fentanyl and acetyl fentanyl and the second sale consisted of ten glassine bags containing fentanyl.
Appellant was arrested and charged in relation to Bocchini's overdose death as well as the four subsequent controlled purchases. The charges against Appellant included drug delivery resulting in death, five counts of PWID, criminal conspiracy to commit drug delivery resulting in death, criminal conspiracy to commit PWID, corrupt organizations, and criminal conspiracy to commit corrupt organizations. A jury trial commenced on September 14, 2020. On September 18, 2020, the jury found Appellant guilty of four counts of PWID, corrupt organizations, and conspiracy to commit same; each of these charges related to the controlled purchases in August and October 2018. Appellant was acquitted of the remaining charges relating to Bocchini's overdose death.
18 Pa.C.S. § 2506(a), 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903(a)(1), and 18 Pa.C.S. § 911(b)(3), (4), respectively.
On October 22, 2020, the trial court sentenced Appellant to an aggregate sentence of 23 ½ to 47 years' imprisonment, consisting of 5-to-10-year sentences on each of the PWID counts and a 42-to-84-month sentence on the corrupt organizations charge. Each of the sentences were imposed consecutively. Appellant then filed a post-sentence motion in which he raised the three issues argued in this appeal. The trial court denied the post-sentence motion on April 7, 2021. Appellant thereafter filed this timely appeal.
The conspiracy to commit corrupt organizations count merged with corrupt organizations for purpose of sentencing.
The trial court filed an opinion explaining its rationale for denying Appellant's post-sentence motion on April 19, 2021. After the notice of appeal was filed, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, which Appellant did on April 29, 2021. On May 27, 2021, the trial court filed a Rule 1925(a) opinion in which it largely relied on its earlier opinion with additional analysis pertaining to Appellant's weight-of-the-evidence claim.
Appellant raises the following issues for our review:
I. Whether the evidence was insufficient to support the verdict as to possession with intent to deliver (4 counts), corrupt organizations and criminal conspiracy to corrupt organizations, in that it was not established [that] Appellant delivered drugs or was involved in a conspiracy.
II. Whether the verdicts as to possession with intent to deliver (4 counts), corrupt organizations and criminal conspiracy to corrupt organizations were against the greater weight of the evidence, in
that it was not established [that] Appellant delivered drugs or was involved in a conspiracy.
III. Whether the honorable trial court erred and abused its discretion in sentencing Appellant to 23 ½ to 47 years.Appellant's Brief at 4 (unnecessary capitalization omitted; issues reordered for ease of disposition).
Appellant first challenges the sufficiency of the evidence related to each of his convictions. A challenge to the sufficiency of the evidence presents a question of law and is subject to plenary review under a de novo standard. Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020). When reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth, were sufficient to prove every element of the offense beyond a reasonable doubt. Id. "[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence." Commonwealth v. Bowens, 265 A.3d 730, 740 (Pa. Super. 2021) (en banc) (citation omitted). "The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Id. (citation omitted). Finally, we note that the trier of fact has the authority to determine the weight of the evidence and credibility of the witnesses and is free to believe all, part, or none of the evidence. Id. at 741.
We note that the portions of Appellant's brief related to his sufficiency and weight-of-the-evidence arguments are largely duplicative of each other. As our Supreme Court has explained, sufficiency and weight challenges are distinct claims, with sufficiency relating to the legal issue of whether, viewing the evidence in the light most favorable to the Commonwealth, the elements of the crime are proven beyond a reasonable doubt. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). A weight claim, by contrast, concedes that sufficient evidence exists to support the verdict but asks the trial court to exercise its discretion to determine whether certain facts established at trial are so clearly of a greater weight that to ignore them would deny the defendant justice. Id. at 751-52; see also Commonwealth v. Smyser, 195 A.3d 912, 916 (Pa. Super. 2018) (question of witness's credibility goes to weight, not sufficiency, of the evidence). Here, we address Appellant's specific arguments as they properly relate to the distinct sufficiency and weight-of-the-evidence claims.
The jury convicted Appellant of four counts of PWID, one count of corrupt organizations, and one count of criminal conspiracy to commit corrupt organizations. With respect to Appellant's PWID convictions, the Controlled Substance, Drug, Device and Cosmetic Act prohibits "the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act." 35 P.S. § 780-113(a)(30). Delivery is defined as "the actual, constructive, or attempted transfer from one person to another of a controlled substance . . . whether or not there is an agency relationship." 35 P.S. § 780-102(b).
"Thus, for a defendant to be liable . . . for the delivery of a controlled substance there must be evidence that he knowingly made an actual, constructive, or attempted transfer of a controlled substance to another person without the legal authority to do so." Commonwealth v. Ellison, 213 A.3d 312, 319 (Pa. Super. 2019) (quoting Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004)). "A defendant actually transfers drugs whenever he physically conveys drugs to another person." Id. (citation omitted). There is no requirement that an exchange of money take place or that the defendant transfers the drugs to a law enforcement officer; "all that is necessary is that the transfer be between two people." Id. (citation omitted).
With respect to Appellant's convictions for corrupt organizations and conspiracy to commit corrupt organizations, Section 911 of the Crimes Code provides as follows:
(b) Prohibited activities.--
(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.
(4)It shall be unlawful for any person to conspire to violate any of the provisions of paragraphs (1), (2) or (3) of this subsection.18 Pa.C.S. § 911(b)(3), (4). An enterprise is defined as "any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity, engaged in commerce and includes legitimate as well as illegitimate entities and governmental entities." 18 Pa.C.S. § 911(h)(3). "Racketeering activity" includes the commission of an act punishable as PWID under the Controlled Substance, Drug, Device and Cosmetic Act, and a "[p]attern of racketeering activity[] refers to a course of conduct requiring two or more acts of racketeering activity[.]" 18 Pa.C.S. § 911(h)(1)(ii), (4).
To prove that Appellant was guilty of the conspiracy charge, the Commonwealth was required to establish that Appellant:
1) entered into an agreement to commit or aid in an unlawful act with another person or persons; 2) with a shared criminal intent; and 3) an overt act was done in furtherance of the conspiracy. The conduct of the parties and the circumstances surrounding such conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. The conspiratorial agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode.Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015) (citation omitted).
Appellant argues that there was insufficient evidence to support his convictions as police did not observe any of the actual transfers of drugs to the confidential informants and there were no records of Appellant's communications or scientific evidence offered to support the Commonwealth's case. Appellant also notes that police did not recover any marked funds from him after the controlled purchases and only one of the two confidential informants, Kayleigh Hess, testified at trial. Appellant further argues that the Commonwealth failed to show that he was engaged in an enterprise with any other individuals. Appellant contends that, despite Hess's testimony that she accompanied him on visits to New York City, she did not testify that she witnessed the actual drugs that were allegedly brought back to York.
The other confidential informant, Linda Johnson, was deceased at the time of trial.
In its April 19, 2021 opinion in support of its order denying Appellant's post-sentence motion, the trial court thoroughly summarized the evidence adduced at trial relating to Appellant's convictions. Trial Court Opinion, 4/19/21, at 1-11. This evidence includes the testimony of detectives with the York City Police Department regarding the four controlled purchases from Appellant, including the detectives' search of the confidential informants before the transaction occurred, their provision of official funds to the informants, the surveillance of the transactions and Appellant's subsequent movements, and recovery of the purchased opioids from the informants afterward. Id. at 1-10. This testimony showed that another individual, Alexis Weedon, accompanied Appellant to the first controlled purchase and that Appellant used Weedon's car and repeatedly visited Weedon's house before and after the second and third purchases, which both took place on the same day. Id. at 5-8. In addition, the trial court summarized Hess's testimony regarding the two controlled purchases in which she participated; Hess also testified that she accompanied Appellant and another male to New York City on at least two occasions to buy drugs and act as Appellant's "drug tester" and that Appellant referred her to one of his associates, Curtis Ford, as a source for drugs after the controlled purchases at issue in this case. Id. at 10-11.
The trial court also comprehensively addressed Appellant's sufficiency arguments, concluding that the evidence supported each of Appellant's convictions. Id. at 11-19. The trial court concluded that, in addition to Hess's testimony as to her participation in two of the controlled purchases, there was a "surfeit of circumstantial evidence" to establish that Appellant engaged in four deliveries of fentanyl and/or acetate fentanyl to the confidential informants. Id. at 13-15 (citing Ellison, 213 A.3d at 319-20, which held that officers' detailed testimony regarding controlled purchases of drugs, including the provision of buy money and recovery of drugs afterwards, was sufficient evidence to support PWID conviction, even in absence of confidential informant's testimony).
The parties stipulated as to the results of the chemical testing of the substances recovered from the confidential informants after the controlled purchases. N.T. (Trial), at 594-600.
The trial court further explained that the record supported the jury's conclusion that Appellant was a part of a criminal enterprise involved with the purchase and sale of opioids based upon such evidence as the involvement of Weedon in three of the transactions, Appellant's referral to Hess of his associate, Flood, as another source of drugs, and Hess's own role in traveling to New York with Appellant and an unknown individual to assist in drug purchases. Id. at 15-18. The trial court additionally concluded that the evidence established the required "pattern of racketeering activity" based upon Appellant's four drug transactions that formed the basis of his PWID convictions and that there was clear evidence of a conspiracy based upon the agreement of Appellant, Weedon, Hess, and others to their ongoing roles in the drug vending enterprise. Id. at 16-18; see also Commonwealth v. Dellisanti, 876 A.2d 366, 370 (Pa. 2005) (four sales of drug paraphernalia from store constitute a pattern of racketeering activity); Commonwealth v. McCurdy, 943 A.2d 299, 302-03 (Pa. Super. 2008) (four drug dealers who traveled together and pooled money for purchases and sold drugs out of same house were associated together as an enterprise for purpose of corrupt organizations statute).
Upon review, we conclude that the trial court has accurately described the relevant evidence of record, set forth the applicable law, and correctly determined that Appellant's sufficiency of the evidence claims lack merit. Accordingly, we rely on the trial court's well-reasoned April 19, 2021 opinion with respect to Appellant's sufficiency claims. See Trial Court Opinion, 4/19/21, at 1-19.
Appellant next argues that his convictions were against the weight of the evidence. We are guided by the following principles when reviewing a claim that the verdict is against the weight of the evidence. "The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of witnesses." Commonwealth v. Clemens, 242 A.3d 659, 667 (Pa. Super. 2020) (citation omitted). A verdict will only be reversed as against the weight of the evidence where the evidence is "so tenuous, vague and uncertain that the verdict shocks the conscience of the court." Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021) (citation omitted). The factfinder is charged with the responsibility to resolve contradictory testimony and questions of credibility, and we may not substitute our judgment in place of the factfinder. Commonwealth v. Cramer, 195 A.3d 594, 600 (Pa. Super. 2018).
A motion for a new trial based on a weight-of-the-evidence claim is addressed to the discretion of the trial court, and therefore we review only the lower court's exercise of discretion and not the underlying question of whether the verdict is against the weight of the evidence. Commonwealth v. James, 268 A.3d 461, 468 (Pa. Super. 2021). When reviewing a trial court's determination on a weight claim, we give the "gravest consideration to the findings and reasons advanced by the trial judge" because it is the trial judge, not the appellate court, that had the opportunity to see and hear the evidence presented. Delmonico, 251 A.3d at 837 (citation omitted).
Appellant argues that the verdict was against the weight of the evidence as one of the Commonwealth's principal witnesses, Hess, was unreliable and not credible. Appellant argues that this Court should apply "great scrutiny" to Hess as she was facing a maximum of 232 years in jail on a variety of drug charges, but in exchange for her testimony the Commonwealth had agreed to an aggregate sentence of one year less one day to two years less two days of incarceration followed by seven years of probation. Appellant's Brief at 15; see also N.T. (Trial), at 328-42. Appellant contends that the veracity of Hess's testimony is called into question by the fact that she testified that her practice was to always buy opioids from Appellant in bulk, yet for each of the two controlled purchases that she participated in, the fentanyl was sold in a bundle of ten small packages. See N.T. (Trial), at 242, 314, 501, 512, 594-97. Appellant further argues that the evidence of his conviction was undermined based upon the fact that the phone recovered from Appellant during his March 6, 2019 arrest did not match the number given by the confidential sources and that the video shown of Appellant from one of the August 29, 2018 controlled purchases had an August 19, 2018 date stamp. See id. At 563-66.
Addressing the weight claim, the trial court concluded that, in addition to the "independent police observations" of Appellant's drug dealing, "clearly, the jury resolved the question of Ms. Hess'[s] credibility in her favor." Trial Court Opinion, 5/27/21, at 3. The trial court likewise found Hess to be a credible witness. Id.
Ms. Hess did not avail herself of an easy opportunity to embellish or overstate in her testimony and that undermines Appellant's claim that her testimony was contrived and unreliable. [] Appellant's arguments repeatedly sound in arguing disparate facts through a lens that only matches his subjective view of the issues. The jury considered the totality of the evidence in the case, including Ms. Hess'[s] troubled background, for which [Appellant] was significantly responsible as her drug dealer. They found her testimony to be corroborated by the other evidence of record and found Appellant guilty beyond a reasonable doubt. Appellant's arguments do not state a basis for legal relief [on a weight-of-the-evidence claim], but merely seek to factually relitigate nuances of testimony that the jury already considered.Id. at 3-4; see also Trial Court Opinion, 4/19/21, at 20-21.
We discern no abuse of discretion in the trial court's determination that the jury verdict was not against the weight of the evidence. As the court explained, the jury acted within its authority as factfinder in finding Hess's testimony credible and in resolving conflicts in the evidence in favor of the Commonwealth. Appellant's second appellate issue thus merits no relief.
In his final issue, Appellant argues that the trial court abused its discretion in imposing the sentence of 23 ½ to 47 years' imprisonment by misapplying the sentencing guidelines, running Appellant's PWID sentences consecutively, considering improper factors, and not sufficiently explaining the aggravated range sentence on the corrupt organizations count. A challenge to the discretionary aspect of a sentence is not appealable as of right. Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa. Super. 2019) (en banc).
Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth "a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence[;]" and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code[.]Id. (citation omitted). Only once the appellant has satisfied each of the four requirements to invoke our jurisdiction will we proceed to review the merits of the discretionary sentencing issue under an abuse of discretion standard. Id. at 328-29.
Appellant filed a timely notice of appeal, preserved his sentencing issues in his post-sentence motion, and included a Rule 2119(f) statement in his brief. We, therefore, must review the Rule 2119(f) statement to determine whether Appellant has raised a substantial question. A substantial question is present where the appellant advances an argument that the sentence was inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. Id. at 328.
Appellant argues in his Rule 2119(f) statement that the trial court erred in calculating his offense gravity score ("OGS"); this claim raises a substantial question. See Commonwealth v. Sunealitis, 153 A.3d 414, 421 (Pa. Super. 2016); Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa. Super. 1998) (en banc). Appellant also asserts that the trial court improperly double counted his prior record when it was already taken into account in the sentencing guidelines, a claim which also presents a substantial question. See Commonwealth v. Goggins, 748 A.2d 721, 731 (Pa. Super. 2000) (en banc). Furthermore, Appellant has raised substantial questions to the extent he argues that the trial court considered an improper sentencing factor and failed to state sufficient reasons for imposing a sentence in the aggravated range. See Commonwealth v. Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020); Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009).
However, we conclude that Appellant's claim that the trial court's imposition of consecutive sentences on his four PWID convictions resulted in an excessive aggregate sentence does not raise a substantial question. Generally, an excessiveness claim based upon the trial court running sentences consecutively, rather than concurrently, is not deemed to be a substantial question. Commonwealth v. Radecki, 180 A.3d 441, 468-70 (Pa. Super. 2018); Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc). "Rather, the imposition of consecutive rather than concurrent sentences will present a substantial question in only 'the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.'" Caldwell, 117 A.3d at 769 (quoting Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012) (en banc)).
Here, Appellant argues simply that the four drug sales occurred over a brief time period, and therefore the Commonwealth had probable cause to arrest and charge him after the first sale. Appellant's Brief at 10. We find that Appellant has not demonstrated "extreme circumstances" that warrants our review of this discretionary sentencing issue. Caldwell, 117 A.3d at 769 (citation omitted); see also Radecki, 180 A.3d at 470 (concluding that, even if court reached merits of discretionary sentencing issue related to imposition of consecutive sentences, appellant was not entitled to a "volume discount for committing multiple crimes").
Turning to the merits of Appellant's sentencing claims, our standard of review for challenges to the discretionary aspects of sentencing 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. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020) (citation omitted).
We first review Appellant's claim that the trial court improperly calculated his OGS on the PWID offenses as 9 when it should have been 8. While Appellant acknowledges that he had several past convictions of PWID and other felony drug offenses, he asserts that because there was no record of the kind of drug involved in those past crimes, they cannot be considered prior offenses for the purpose of calculating his OGS. With Appellant's prior record score of 5 and an OGS of 8, the sentencing guidelines called for a standard range minimum sentence of 27 to 33 months for his PWID convictions with an aggravated range sentence of up to 42 months. 204 Pa. Code § 303.16(a). With an OGS of 9, the guidelines provided for a standard range minimum sentence of 48 to 60 months and an aggravated range sentence of up to 72 months. Id. As stated above, Appellant's minimum sentence on each of his PWID counts was 5 years, or 60 months. The trial court deemed the OGS for the PWID counts to be a 9 over Appellant's objections. N.T., 10/22/20, at 6-8, 22.
While a question related to the misapplication of the sentencing guidelines constitutes a challenge to the discretionary aspects of sentencing, "[t]he calculation of the offense gravity score is a matter of statutory interpretation, which raises a question of law." Sunealitis, 153 A.3d at 421. Therefore, we apply a de novo review to this issue. Id. "An improper calculation of the offense gravity score affects the outcome of the sentencing recommendations, resulting in an improper recommendation, thereby compromising the fundamental norms which underlie the sentencing process." Id. (quoting Archer, 722 A.2d at 210-11). When sentencing a defendant convicted of a felony or misdemeanor, the trial court must consider the guidelines. Id. Furthermore, where the trial court purports to sentence the defendant within the guidelines but applies the guidelines erroneously, an appellate court must vacate the sentence. 42 Pa.C.S. § 9781(c)(1).
Appellant's argument is premised upon his assertion that the sentencing guidelines provide that delivery of under 1 gram of fentanyl and its derivatives and analogues-the quantity of the sales applicable to the four PWID counts in this case-has an OGS of 8. However, our review contradicts Appellant's interpretation of the guidelines. In 2018, the Pennsylvania Commission on Sentencing issued the Supplement to Amendment 4 of the 7th Edition of the guidelines, with an effective date of June 1, 2018; the Supplement provides that the OGS for PWID of under 1 gram of fentanyl was 9. See 204 Pa. Code § 303.15 (effective June 1, 2018). Therefore, at the time Appellant committed the four controlled purchases that led to his PWID charges in August and October 2018, the appropriate OGS was 9. See 204 Pa. Code § 303.1(c) ("The sentencing guidelines shall apply to all offenses committed on or after the effective date of the guidelines. Amendments to the guidelines shall apply to all offenses committed on or after the date the amendment becomes part of the guidelines."); Commonwealth v. Greene, 702 A.2d 547, 552 n.9 (Pa. Super. 1997). Subsequent to October 2018, in Amendment 5 to the 7th Edition, the Pennsylvania Commission on Sentencing revised the guidelines to reduce the OGS for PWID of under 1 gram of fentanyl from 9 to 8, where the guideline remained at the time of Appellant's sentencing. See 204 Pa. Code § 303.15 (effective January 1, 2020).
Accordingly, the trial court did not err in applying the sentencing guidelines, but rather the court correctly calculated the OGS for the PWID counts as 9. Moreover, we observe that the 60-month minimum sentences imposed by the trial court for each of the four counts fell within the standard guideline range based upon the proper application of an OGS of 9.
Next, we address Appellant's argument that the trial court did not state sufficient reasons to deviate from standard guidelines for the corrupt organizations conviction and sentence him in the aggravated range. Although Appellant was sentenced in the aggravated range on this count, his sentence was within the sentencing guidelines and therefore we may only vacate his sentence "where the application of the guidelines would be clearly unreasonable." 42 Pa.C.S. § 9781(c)(2). In making this determination, we must consider the following factors set forth in Section 9781(d) of the Sentencing Code:
The OGS for corrupt organizations was 8 and therefore the standard range minimum sentence under the guidelines was 27 to 33 months with an aggravated range sentence of up to 42 months. 204 Pa. Code §§ 303.15, 303.16(a); N.T., 10/22/20, at 22. The trial court imposed a sentence of 42 to 84 months' imprisonment.
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3)The findings upon which the sentence was based.
(4)The guidelines promulgated by the commission.42 Pa.C.S. § 9781(d).
At sentencing, the trial court noted that it had reviewed the pre-sentence investigation report ("PSI") and considered the Appellant's age and health issues as well as the representations and argument of his counsel. N.T., 10/22/20, at 21-22. The trial court took into account Appellant's "lengthy" and "regular ongoing" history of criminal convictions over the course of more than 30 years, including two other drug-delivery convictions, concluding that he had a lack of any rehabilitative potential. Id. at 22-24, 30-31.
The trial court also discussed at length the severe impact of the fentanyl-opioid epidemic on the community and, more acutely, on victims such as Kayleigh Hess. Id. at 25-28. The trial court stated that Appellant did not create the epidemic and he was not at the top of the chain of drug dealers, but he was an "entrepreneur" who saw a "business opportunity . . . and decided he was going to prey on that pain and that opportunity for profit." Id. at 28. Appellant was "not a minor drug dealer supporting his habit[, but] a significant player[, ] an organizer and [] a distributor to other dealers." Id. at 31. The trial court found that Appellant lacked any remorse or empathy and was highly likely to re-engage in similar conduct upon release. Id. at 30-32.
With respect to the trial court's decision to impose an aggravated range sentence on the corrupt organizations count, the court stated that the sentence was imposed in light of Appellant's ongoing, drug-dealing enterprise trafficking significant quantities of drugs across state lines. Id. at 29, 34. As well, the court sentenced Appellant "in the aggravated range due to the heinous nature of his criminal enterprise using an addicted person [i.e., Hess] as a lab rat to engage in human testing of deadly drugs, which put her life at risk each time he did that." Id. at 34.
We find that the trial court provided ample reasons for imposing Appellant's sentence on corrupt organizations. First, the trial court indicated its review of the PSI and specific mitigating factors noted therein, including Appellant's age and health issues. Id. at 21-22. Where the court has the benefit of a PSI, we "presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Knox, 165 A.3d 925, 930 (Pa. Super. 2017) (citation omitted). The trial court also addressed on the record each of the three general sentencing considerations found in Section 9721(b) of the Sentencing Code, "the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b). Furthermore, as described above, the trial court indicated its awareness of the guideline sentence for corrupt organizations and offered specific reasons for deviating from the standard range and imposing an aggravated range sentence on this count. Therefore, we conclude the court adequately discharged its responsibility to state the reasons for its sentence. Id.; Macias, 968 A.2d at 777.
We likewise reject Appellant's claim that the trial court considered improper factors when sentencing him. Appellant argues that the trial court effectively double counted his prior record when it considered his past convictions despite the fact that they were already incorporated into the prior record score. When a factor is already incorporated into the sentencing guidelines, such as the defendant's prior record, a sentencing court may not count that factor a second time when arriving at a sentence. Goggins, 748 A.2d at 732. However, as this Court has explained, the sentencing court may consider a defendant's prior record in order to assess the scope of a defendant's problematic behavior as well as the potential for rehabilitation. Commonwealth v. Messmer, 863 A.2d 567, 573 (Pa. Super. 2004). Here, that is exactly what occurred: the trial court explicitly recognized that it could not simply double count Appellant's prior record and instead properly analyzed Appellant's long history of criminal behavior, including his drug-delivery offenses committed over a period of 16 years, in determining that he had no rehabilitative potential. N.T., 10/22/20, at 22-24, 30-31.
Appellant further claims that the trial court's finding that he lacked remorse contravened his right to remain silent. "[A] court may not consider a defendant's silence at sentencing as indicative of his failure to take responsibility for the crimes of which he was convicted." Commonwealth v. Bowen, 975 A.2d 1120, 1121 (Pa. Super. 2009). However, a sentencing court may consider a defendant's remorse or lack of contrition as evidenced by other factors beyond the defendant's silence. Commonwealth v. Begley, 780 A.2d 605, 643-44 (Pa. 2001); Bowen, 975 A.2d at 1121, 1127-28. In the instant matter, the trial court determined that Appellant lacked remorse- not from Appellant's decision not to testify or give a voluntary statement to the police-but instead based upon his multiple felony drug-distribution offenses, his decision to prize his own financial gain over the misery of others, and his decision to use Hess as a "lab rat" to test his product. N.T., 10/22/20, at 30-31. Therefore, the trial court's consideration of Appellant's lack of remorse did not infringe on his right to remain silent. Bowen, 975 A.2d at 1121, 1127-28.
Finally, Appellant contends that the trial court considered that Appellant transported drugs across state lines when that finding was contradicted by Hess's testimony that she did not see the drugs that Appellant brought back with him from New York City. N.T. (Trial), at 258, 379. However, this characterization of the record ignores the remainder of Hess's testimony that she accompanied Appellant on two or three trips to New York City, she understood the purpose of those trips to be for the purchase of opioids, another male was present on one of the trips and they discussed the drugs they would purchase, and Hess acted as a drug tester on each one of these visits. Id. at 253-61. That Hess did not see the actual quantities of drugs that were purchased does not detract from the trial court's reasonable inference that the New York visits were for the purpose of purchasing heroin, fentanyl, or other opioids to bring back to York County.
In sum, we determine that the trial court adequately stated the reasons for its sentence and did not rely on improper factors. Moreover, in light of the trial court's consideration of the guidelines and the PSI, its opportunity to observe Appellant and its familiarity with his history and characteristics, and the court's proper application of the guidelines to this case, including its well-explained decision to sentence in the aggravated range on the corrupt organizations count, we do not find that the sentences imposed here were "clearly unreasonable." 42 Pa.C.S. § 9781(c)(2). Therefore, Appellant's discretionary sentencing issues lack merit, and we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.