Com. v. Corbett, J.

• Court: Superior Court of Pennsylvania
• Decided: May 24, 2022
• Docket: 496 MDA 2021
• Status: Published

Opinion

J-S01032-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES ARTHUR CORBETT : : Appellant : No. 496 MDA 2021

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

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: MAY 24, 2022

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.1

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

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 911(b)(3), (4), respectively. J-S01032-22

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.2 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.

2 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.

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Appellant was acquitted of the remaining charges relating to Bocchini’s

overdose death.

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.3 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.4

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

3 The conspiracy to commit corrupt organizations count merged with corrupt

organizations for purpose of sentencing. 4 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.

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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.5 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

5 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.

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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.

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

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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).

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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

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.6 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

6 The other confidential informant, Linda Johnson, was deceased at the time

of trial.

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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.

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.

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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.7 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 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

7 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.

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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

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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

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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.

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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.

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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.

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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

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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

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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

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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.8 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 ____________________________________________

8 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.

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must consider the following factors set forth in Section 9781(d) of the

Sentencing Code:

(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]

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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

- 20 - J-S01032-22

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.

- 21 - J-S01032-22

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,

- 22 - J-S01032-22

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.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/24/2022

- 23 - Circulated 04/27/2022 08:31 AM

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-67-CR-0002239-2019

v. POST-SENTENCE MOTIONS JAMES ARTHUR CORBETT, Defendant

COUNSEL OF RECORD:

Timothy J. Barker, Esquire James R. Robinson, Esquire Counsel for the Commonwealth Counsel for the Defense

OPINION IN SUPPORT OF ORDER

Defendant James A. Corbett. by and through his counsel, lames R. Robinson,

Esquire. has filed post-sentence motions, which were docketed December 10, 2020.By a

separate order, of April 7. 2021. this Court has denied those motions. We now supply this

opinion in support of order.

I. Factual and Procedural Background

The Defendant was convicted of four counts of Possession with Intent to

Deliver (PWID). Corrupt Organizations, and Conspiracy to Corrupt Organizations by a jury at

the conclusion of trial on September 18. 2020. He was acquitted of Drug Delivery Resulting

in Death, Conspiracy to Drug Delivery Resulting in Death, one count of PWID, and one count

of Criminal Conspiracy to PWID.

At Defendant's trial Detective Clayton Glatfelter of the York City Police Department

testified to the procedures used to establish drug buys from the Defendant through the use of I two confidential informants. - The detective testified regarding his - unit's procedurefor- vetting -

aninformant, We would meet with a confidential source or potential confidential source, talk

to them, judge the truthfulness, of their information that they were trying to give us, and - - - ultimately the approval for them to serve as a confidential source would be approved through

the DA's office." N.T. at 477. He then testified regarding the standard protocol used when

having a confidential informant perform a controlled purchase from a suspected drug dealer:

Typically when we do a controlled purchase of any type of narcotic with a confidential source, we would meet with the source beforehand. We would obtain all the information that we can about the person'sintent topurchase the drugs from, phone numbers. descriptions, that type of thing, nickname, real names if they have them. From there we would search the informant or the confidential source. which is typically outer garments in wintertime. If they're wearing coats, I will take offtheircoats. Ill search all the pockets oftheir coats, nooks and crannies. Any loose clothing, shoes. look insidethe shoes, have them turn their pockets out. run their waistband to make sure nothing falls out. Females, we'll have them, without showingme anything as I always predicate this, pull their bras out, shake their bras out, so that anything hidden within the bandwould fall out.

N.T. at 47778. - He further testified- -the informants - - are given - a specific set of bills. tracked by ,

the York City PoliceDepartment, with which to make the purchase, and that the informants

are not allowed to have their own money on them when they make the purchase. N.T, 478-79.

Regarding standard protocols, the detective alsotestified that when a contrlled o buy isset up,

have multiple officers observing the location. N.T. at479. his task force will

Detective Glatfelter then testified regarding two specific controlled purchases from the

Defendantmade usinginformant Kayleigh Jo Hess. N.T. at 480-526. On August 13,2018.

Hess was charged with illegally dealing a controlled substance. N.T. at 482. On August 16. . 2018. Hess agreed to cooperate with the police in other related drug dealing investigations.

N.T. at 486. She told the police about the people she purchased her drugs from, including a

man who went by the name of "Sha," whom she identified as the Defendant at trial. N.T. at

486. 242. On August 28, 2018, after she had been released on bail, Hess agreed to work as a

confidential informant for the York City Police to conduct a controlled purchase from the

Defendant. N.T. at 488-489. Hess provided the police with the phone number she was using at

the time to set up buys from the Defendant. She called the Defendant in the presence of

Detective Glatfelter to set up a controlled purchase. N.T. at 490. The purchase was scheduled

to take place behind a Turkey Hill convenience store near the 700 block of Avon Avenue in

the City of York at around 7 p.m. N .T. at 491

Detective Glatfelter testified that he had four other detectives performing surveillance

in the vicinity of the Turkey Hill store. When asked why he required extra assistance on

surveillance, he stated:

It's completely not unusual for drug dealers to change locations on us where we'll be set up in one location and they'll call the informant and say. hey, meet me over here now. These arc all things that I need contingency plans to help and extra people to help cover this if these things should occur. It's also to help follow people after the fact, after the deal is completed to assist me in locating stash houses and that type of thing.

N.T. at 492. Prior to conducting the controlled purchase. Detective Glatfelter performed a

search of her person to ensure she was not bringing any extra drugs or contraband. He ensured

that she only had the $70 in official recorded funds to make the purchase. N.T. at 493.

The detectives dropped Hess off in the vicinity of Maryland A venue and Hartley Street 3 and told her to walk toward the area at which the deal was to be performed. N.T. at 496. The

e split intothree teams and were patrolling the area conducting four other detectives wre

surveillance. Detective Glatfelterhimselfwas conducting surveillance as well. This was done

to ensure that Hess would be observed during the entire course of the controlled purchase. N.T.

at 497-98. One of the observers noticed a tan . Mercury Mountaineer vehicle turn into . the . alley,

Avon Avenue,behind the Turkey Hill from Maryland Avenue. Hess walked to the passenger

side of theMercury Mountaineer, spoke with someone in the passenger seat,spoke with the occupant of that seat for a few seconds, and then walked back to Maryland Avenue. N.T. at , -

499-500. After this interaction the four detectives performing surveillance followed the

Mountaineer while Detective Glatfelter recovered the confidential informant. N.T. at 501.

Hess. hadreceived a bundle of heroin, 10 bags, from the�� passenger . / - -· ofthe Mountaineer. N.T. at 50I. Detective Glatfelter performed another searchofthe informant to ensure she had . - - not hidden extra drugs or money on her person. N.T. at 501. The other detectives trailed the

Mercury Mountaineer, which traveled approximately a quarter of a mile away to a Sunoco gas e

station and parked at a gas pump. N.T. at 502. One of the detectives took pictures of the

occupants of the vehicle at the gas station. One occupant, the passenger, was identified as

James Corbett. N.T. at 503-04, 513. Detective Glatfelter identified the Defendant at trial as

James Corbett, the same man who was photographed at the Sunoco station after exiting the

Mercury Mountaineer that was involved in the controlled purchase. N.T. at 504. Detective

Glatfelter also identified Alexis Weedon as an occupantof that vehicle. N.T. at 505. The vehicle was registered to Alexis Weedon. N.T. at 506.

The second purchase was set up the following day, August 29, 2018. Hess again placed

a call to the Defendant on her phone in front of the detectives. This time it went unanswered

initially, but the Defendant called Hess back a few minutes later. This occurred around 2 p.m.

N.T. at 511. The controlled purchase was set to take place at the McDonalds Restaurant in

York City on South George Street. Detective Glatfelter testified that, at this point, he had

identified Sha as James Corbett and had two detectives performing surveillance on two

possible locations in which he lived, one of them being the home address of Alexis Weedon.

N.T. at 512-13.

The Detective testified that he performed the same preliminary search of the informant

prior to dropping her off to ensure she only had the $70 of official recorded funds necessary to

make a purchase and no other contraband on her person. N. T. at 513-14. He dropped Hess off

on the west side of the McDonalds and observed her while remaining in radio contact with his

other detectives who were performing surveillance. N.T. at 514-16. The officers who were

observing Alexis Weedons residence noticed the Defendant get into a silver Nissan Sedan

with North Carolina registration plates. The vehicle was a rental and the Defendant was the

sole occupant. N.T. at 519-20. The Defendant drove to the McDonalds, picked up Hess, and

then drove to a Wendy's Restaurant on I]" Avenue in North York. The detectives performing

surveillance near the McDonalds followed the Defendant and Hess in the silver Nissan to

Wendy's. N.T. at 521-22. Hess and the Defendant pulled into the Wendy's drive-thru at 2:50

5 p.m. and left the drive-thru at 2:54 p.m. N.T. at 522. The detectives followed the pair through

town until they reached the vicinity of Pershing Avenue and Market Street. N.T. at 522-23.At . .

this point the detectives lost visual contact withthe Defendant and Hess for about five minutes.

During these five minutes the Defendant had dropped off Hess in that area and Detective

Glatfelter made phone contact with her. She was picked up in that vicinity at the end of this

five-minute . period. N.T. . , . . at 523.

When Detective Glatfelter picked up Hess he received the heroin that Hess had

purchased from the Defendant and performed another search of her person to ensure she did not retain the money she had been given or have extra contraband. N.T. at 524. The detectives

performing surveillance did locate the Defendants silver Nissan and observed him re-entering

Alex Weedon s residence. N.T. at 524-525.

NextDetective Glatfelter testified regarding a second confidential infrmant, o Linda

Johnson, who also performed a controlled purchase from the Defendant that same day, August

29, 2018.' Johnson contacted the YorkCity Police about a possible heroin purchase she could

make with a person she knew as "D. N.T. at 528. Johnson provided the police with a contact

number for "D" which was the same number Hess had been using to set up controlled purchases

with "Sha" on that day and the previous day. N.T. at 528. Johnson stated that the purchase

would be taking place in the 100 block of West King Street in the City of York. Detective

Glatfelter testified that he assigned officers to perform surveillance in that area during the

I Linda Johnson died before trial. 6 purchase. N.T. at 529-30. Prior to the purchase, Detective Glatfelter performed a search of the

informant in the same manner he had of Hess. N.T. at 530. Johnson had arranged to purchase

$120 worth of heroin from "D" and the detective gave her official recorded funds to make the

purchase. N.T. at 530. Detective Glatfelter testified that he posted himself in a vehicle in the

vicinity where he could watch the informant as she met with"·D" N.T. at 534.

At around 3:49 p.m. the same silver Nissan that had been involved in the Hess purchase

earlier that day pulled up to the area where the controlled purchase was set to be made. N.T. at

535-537. The detectives took photographs and noted that "D" was the Defendant, James

Corbett. N.T. at 537. The informant went to the passenger side of the vehicle, entered, and

stayed in the vehicle for approximately three minutes. N.T. at 539-40. After that, both the

informant and the Defendant got out of the vehicle and Defendant walked over to where

Detective Glatfelter was performing surveillance. N.T. at 540-542. The Defendant spoke

briefly with an unidentified person behind the vehicle the Detective was sitting in while

observing the transaction. N.T. at 541-542. At this point in the trial Detective Glatfelter again

identified the Defendant as the one he had seen that day selling heroin to Johnson. N.T. at 542.

After talking to the person behind the Detective's vehicle, the Defendant went back into his

own car and drove away. N.T. at 542. He was followed back to the same residence he had been

seen at earlier that day. belonging to Alexis Weedon. N.T. at 542-43. The Defendant was video

taped arriving hack at that residence. N.T. at 543. After the Defendant left the I 00 block of

West King Street, Johnson went back to Detective Glatfelter's vehicle, got in, and was searched

7 again. Sheturned over a bundle of heroin, 10 bags, to the detective. N.T. at 544.

Detective Glatfelter next testified about his subsequent interactions with Kayleigh Jo Hess. She had stopped working with the police after performing the controlled purchaseon

August 29, 2018, and did not have any interactions with Detective Glatfelter until she was

arrested for violating the conditions of her release. N.T. at 546-47. This occurred in early

December of 2018.At that time Hess provided the police with information regarding the

identity of another individual that associated with the Defendantin his heroin selling enterprise. N.T. at 547. She named the person as "C" or "Cease." whom the Defendant had

told Hess was his nephew. N.T. at 547. Hess said that when she had attempted to purchase

again from the Defendant, the Defendant had referred her to "C to make a purchase as he had

moved toLancaster, Pennsylvania. N.T. at 547.The police first got wind ofwho "Cmight be

when a vehicle registered to Alexis Weedon was crashed by an individual named Curtis Ford. N.T. at 548. The police obtained photographs of Ford and presented one of them to Hess for

identification in an eight-person line up. N.T. at 548-49. Detective Glatfelter testified to the

formal procedure for creating and properly administering the lineup. N.T. at 549-553. Hess "

, / ,

identified Curtis Ford asthe personshe knew as "C7 or "Cease. N.T. at 552. e e

Detective Glatfelter's testimony was corroborated by the testimony of two of the

officers who had performed surveillance during the controlled purchases and by the testimony

of Kayleigh Jo Hess herself. Detective Vincent Monte first testified regarding his role in

performing surveillance on the three controlled purchases set up by Detective Glatfelter. N.T.

8 at 572-580. Then he testified regarding a fourth controlled purchase between Linda Johnson

and the Defendant that he set up himself as Detective Glatfelter was unavailable. On October

18, 2018, Johnson performed a controlled buy in the vicinity of the I 00 block of West King

Street. Prior to the purchase Detective Monte searched the informant to ensure she did not have

any contraband on her and gave her another $120 of official recorded funds to purchase heroin

from the Defendant. N.T. at 581-82. Other detectives were in the area performing surveillance.

N.T. at 584. Johnson walked through a nearby parking lot to meet the Defendant and make the

purchase. N.T. at 584-85. Johnson and the Defendant, who was wearing a grey hoodie

sweatshirt with the hood up, walked through the lot toward Pershing Avenue. N.T, at 585.

Detective Monte testified that he was able to keep constant surveillance of both of them

throughout the transaction. N.T. at 586. Eventually Johnson and the Defendant met at a parked

BMW, got into the BMW together, and then Johnson left the BMW to walk back to the 100

block of West King Street where she was picked up by Detective Monte. N.T. at 586. Detective

Monte performed another search of the informant and recovered a quantity of heroin that she

had purchased from the Defendant. N.T. at 586-87. The surveillance team followed the BMW

away from the purchase site and identified the Defendant as the one who had made the purchase

in the grey hoodie and identified the driver of the vehicle as Robert Brown of Lancaster. N.T.

at 589-590. Detective Monte made an in-court identification of James Corbett as the same man

2 Officers were able to identify him shortly after the transaction when they followed him away from the purchase site. N.T. at 589. 9 who wore a grey hooded-sweatshirt during the controlled purchase. N.T. at 590.

Detective Christopher Fordwas thelast witness to testify at trial and he detailedhis

role in interrogating regarding Alan Bocchini's death and recruiting Kayleigh Jo Hess as an informantin this case. N.T. at 605-18.

Hess testified before Detective Glatfelter and the other detectives at trial and her

testimony aligned with the detective's testimony.' Hess testified that she worked with the

policeafter she was released from jail onAugust 27, 2018. N.T. at 301. She recounted the events of the first heroin buy from the Defendant that took place on August 28, 2018. N.T. at 302-310. She also testified regarding the events of the second purchase that took place the next

day on August 29, 2018. N.T. at 310-16. Both accounts matchedup withthe one testified to at

length by Detective Glatfelter. Hess then testified regarding her subsequent relapse and

eventual continued cooperation with the YorkCity Police in this matter. N.T. at 316-318. She

testified to the Defendants referral to a person named "Cease from whom she purchased

heroin. N.T. at 320-322. She then testified to the identification process the Detectives put her

through regarding "Cease" when she resumed working with the police in December of 2018. e e

N.T. at 323-28.

Hess also testified to her role within Defendants drug-vending enterprise. Hess

of 3 The majority Hess's testimony focused onthedeath of Alan Bocchini Jr.. how she came to know the Defendant, and the Defendant's role in selling her the drugs that ultimately killed Mr. Bocchini. N.T. at 233- 300. However, because the Defendant was acquitted of those charges, this Courtwill solely address her testimony regardingthecontrolled purchasessheperformed for the York City Police. This Court also notes Hess positively identified the Defendant at trial. N.T. at 242. 10 testifiedthat Defendant was obtaining drugsfrom New York. N.T. at 253. Hess knew this

because she accompanied Defendant to New York, on multiple occasions, to obtain heroin.

N.T. at -·253-54. Hess - / was - to be Defendants drug tester to determine whether he should bring- /

the drugs from New York to Pennsylvania. N.T. at 254-55. A black male. from Baltimore.

accompanied Defendant and Hess on one trip and Hess believed Defendant and this individual were discussing whatwas to be purchased. N.T. at 255-56. In New York. Defendant directed

Hess' actions and brought her drugs to sample. N.T. at 257-58. Hess ended her direct

examination with a long recounting , ....- - ofthefavorable deal, with the Commonwealth, - , which she / ,,.

received in exchange for the testimony she gave against the Defendant at trial. N.T. at 328-

334. .

II. Omnibus Pretrial Motions

A. Sufficiency of Evidence Defendant's first motion is that there was insufficient evidence presented at trial to

convict Defendant of four counts of possession with intent to distribute delivery, corrupt

organizations, and conspiracy to corrupt organizations. For the following reasons, we

disagree.

Ab initio. due to the overlapping factual support offered for Defendant's sufficiency

of the evidence and weight of the evidence challenges, the Commonwealth addressed them

simultaneously. Commonwealth's Memorandum of Law in Opposition to Defendants Post-

Sentence Motion/Motion to Reconsider Sentence, at I. Though we make no judgment of this

II approach, with caution towards blurring the line betwixt these disparate legal challenges, we

dispense with them separately. Though, we agree with the Commonwealth's approach of

addressing Defendant's sufficiency argument first. Id.

We begin our analysis by noting that while considering Defendant s claims regarding

sufficiency of the evidence. this Court takes note of the inconsistency of these challenges vis-

~-vis Defendants later weight of the evidence challenge. For, "[a] true weight of the

evidence challenge concedes that sufficient evidence exists to sustain the verdict but

questions which evidence is to be believed." Commonwealth v. Galindes, 786 A.2d 1004,

1013 (Pa. Super. Ct. 2001) (quoting Armbruster • Horowitz, 744 A.2d 285, 286 (Pa. Super.

Ct. 1999)). Potential inconsistency aside, in Commonwealth v. Fabian, the Superior Court

laid out their standard of review for sufficiency of the evidence challenges as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner. there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact- finder. In addition. we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally. the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

12 60 A.3d 146, 150-51 (Pa. Super. Ct. 2013) (quoting Commonwealth v. Jones, 886 A.2d 689,

704 (Pa. Super. Ct. 2005)); Accord Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. Ct

2014). This stated. we turn to apply this law to each of the charges.

I. Delivery Charges

Possession with intent to distribute delivery (hereinafter: delivery), is defined as

follows:

(a) The following acts and the causing thereof within the Commonwealth arc hereby prohibited:

(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a control led substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating. delivering or possessing with intent to deliver, a counterfeit controlled substance.

35 P.S. $ 780-1 13(a)(30). As there was no evidence that Defendant was a person registered

under the act. the Commonwealth needed to present evidence that Defendant delivered a

controlled substance. The nature of the substances were stipulated to, at the time or trial, as

being controlled substances. (N.T,, 9/14/20, at 596-600.) With this stipulation, the

Commonwealth only needed to demonstrate that Defendant delivered these controlled

substances. Delivery is defined as follows:

DELIVER" or "DELIVERY" means the actual, constructive, or attempted transfer from one person to another of a controlled substance. other drug, device or cosmetic whether or not there is an agency relationship.

35P.S. $ 780-102.

Before presenting the evidence of delivery, we note that Defendant listed numerous 13 supposed failings ofthe evidence including, inter alia, that no officers observed the actual

transactions and thatno fingerprint orDNA evidence connected Defendant to the deliveries.

Post Sentence Motions/Motion to ReconsiderSentence, at 8 (citations omitted). These

countervailing pieces of evidence, arguably, go more towards theweight of the evidence and

not the sufficiency. However, to the extent that they are asserted to demonstrate that the

evidence was soweak and inconclusive that no probability of fact could be drawn. Fabian, supra, we disagree. Multiple detectives ran typical buy-walk operations in which confidential informants.

bearing all of theusual baggage attendant to informants, were searched and then surveilled as they conducted drug transactions with Defendant. The informants left the custody of officers

with official funds and sans drugs, metwith Defendant, and returned to custody with drugs.

With onelimited exception, these transactions occurred under constant surveillance and on

multiple occasions in which officers and the informants identified Defendant. There was a

surfeit of circumstantial evidence, which, per Fabian, supra, is sufficient, of four deliveries - - e

of controlled substances by Defendant. We find supportforour conclusion in the factually similar case of Commonwealth •

Ellison, 213 A.3d 312 (Pa. Super. Ct. 2019), highlighted by the Commonwealth.

Commonwealth's Memorandum of Law in Opposition to Defendant's Post-Sentence

Motion/Motion to -reconsider Sentence, at 4. Without expounding - - unnecessarily upon the

Commonwealth s excellent summation of that -- case, the Elison l -- - court --· rejected . the notion - that -

14 a defendant cannot be convicted of PWIDdelivery whereit must be inferred that a

defendant delivered drugs and accepted official funds. Id., at 319-321. Moreover, as the

Commonwealth notes, one ofthe two confidential informants utilized in this case was '

presented, which was not the case in Ellison. Commonwealth's Memorandum of Law in

Opposition to Defendants Post-Sentence Motion/Motion to Reconsider Sentence, at 5. Thus,

there was an additional piece of evidence presented againstDefendant that was notpresented

in the legally sufficient case of Ellison. There was more thansufficient evidence presented to

sustain Defendant's convictions for PWIDdelivery.

2. Corrupt Organizations and Conspiracy to Commit Corrupt Organizations

Defendant was convicted of corrupt organizations and conspiracy to commit corrupt

organizations, which, merged for sentencing purposes. Thus, we dispense with them

simultaneously.

Corrupt organizations is defined, in relevant part, as follows:

(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 suchenterprise'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). Some definitions are in order.

An "enterprise"is defined as follows:

"Enterprise" means any individual, partnership, corporation, associate 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 15 / / illegitimate entities and governmental entities.

I8 Pa.CS. $91(h)(3). "Racketeering activity," in relevant parts, is:

of An offense indictable undersection 13 the act ofApril 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act (relating to the sale an dispensing ofnarcotic drugs)[. or... a] conspiracy to commit any ofthe offenses set forth in subparagraph (i), (ii) and (v).

18Pa.C.S. $ 911(h)(1)(ii) (iii). Pattern of racketeering activity' refersto a course of e o

conduct requiring two or more acts of racketeering activity one of which occurred after the

effective � date - ,,. of this section." I8 Pa.C.S. $ 911(h)(4). ,,.

In Commomwealth v. Dennis, our Superior Court stated the following about

enterprises:

Although Pennsylvania's corrupt organizations statute is based on the federal corrupt organizations statute, federal case law in this area is instructive, but not controlling. Commonwealth v. Taraschi, 475 A.2d 744 (1984). Nevertheless. in United States v. Turkette, 452 U.S. 576 (1981. theUnited States Supreme Court heldthat an enterprise may be is established if there (1) evidence of an ongoing organization." (2) evidence that the various associates function as a formal or "continuing unit,and (3) evidence that the enterprise has an existence separate and apart from the pattern ofactivity in which it engages.

618 A.2d972, 975 (Pa. Super. Ct 1992). TheDennis Court also included the following quote regarding the third element of Turkette:

As we understand this last requirement, itis not necessary to show that the enterprise has some function wholly unrelated to the racketeering activity, but rather that it has an existence beyond that which is necessary to commit each of the acts charged as predicate racketeering offenses. The function of overseeing and coordinating the commission of several different predicate offenses and other activities on an ongoing basis is adequate to satisfy the separate existence requirement. Id., at 975-76 (quoting United States • Riccobene, 709 F.2d 214, 223-24 (3d Cir. 1983), cert.

den.. sub nom. Ciancagliniv. US., 464 U.S. 849 (1983)).

In the case sub judice, the record is replete with evidence that there was a criminal

enterprise. Alexis Weedon was present during Ms. Hess first controlled-buy with Defendant.

Defendant repeatedly departed from and returned to Weedon's home during these deals.

Defendant met and spoke with an unknown subject immediately following a controlled-buy

before returning to his own vehicle. Ms. Hess informed investigators that, when she had

attempted to purchase drugs, Defendant had relocated to Lancaster and had, therefore,

referred her to someone he declared was a nephew to continue illicit drug commerce. That

nephew was only identified after he was involved in a car accident while utilizing a vehicle

registered to Weedon. During one of Ms. Johnson's controlled buys with Defendant, they

met at a BMW driven by a Robert Brown of Lancaster, which buttressed Ms. Hess

information. Ms. Hess was involved in interstate drug purchasing trips to New York,

arranged by Defendant, where he transported her across state lines, that included, on at least

one occasion, an individual from Baltimore. Defendant directed Hess' actions as his drug-

tester during these trips. This all fits the definitions of an enterprise that are laid out in

Dennis, supra.

There was an ongoing organization in that Defendant utilized the same silver Nissan

to depart Weedon?s residence twice on the same day to deal drugs to two different

informants. There was a formal and continuing unit in that Hess was transported multiple 17 times by Defendant, to New York, to sample drugs for him. Weedon's name crops up as a

a driver. host of the operation from her home, and supplier of vehicleto Ford, who Hess

connects to Defendants operation. Finally, the enterprise existed beyond a singular predicate /

crime. The enterprise facilitated multiple illicit drugdeals, multiple interstate buying trips,

and it facilitated drug crimes across at least two counties in this Commonwealth.

Continuing onto the elements of racketeering activity and pattern ofracketeering

activity, there is no question but that Ms. Hess description of the buying trips to New York

in conjunction with the controlled-buys involving Hess and Johnson satisfy these definitions. - - Drug purchases and sales are indictable offenses under TheControlled Substance, Drug,

Device and Cosmetic Act. Insofar as conspiracy, both Hess and Weedon,if not others.

clearly agreed to ongoing roles within Defendant's drug-vending operation. Overt acts

includedHess accompanying Defendant on buying trips and Weedon driving Defendant to a

controlled-buy. The pattern of racketeering activity was satisfied by evidence presented that

there were multiple controlled-buys.

Defendant participated in and directedthe activities of an enterprise that committed

the racketeering activity of trafficking in and distributing illicit drugs. There was a pattern of deed

racketeering activity in that multiple drug sales were facilitated by that enterprise. There was

a conspiracy including. very clearly, Hess and Weedonalong with evidence of others'

involvement to violate The Controlled Substance, Drug, Device and Cosmetic Act. e

Evidence of each element was adduced.

I8 The Court has rviewed e the - litany of facts and / / - characterizations - .-· of facts submitted - bv-

Defendant to support his motions (e.g. that Hess never saw Defendant bring heroin back from

another state or location to York and that the searches ofthe informants were not thorough - -

enough). Post Sentence Motions/Motion to Reconsider Sentence, at 9-10. As we stated

regarding an earlier portion ofthe sufficiency motion, these facts are better directedtowards

a weight of the evidence challenge; however, considered in light of this sufficiency

challenge, we cannot state that the evidence proffered by the Commonwealth was so weak or

inconclusive that no probability offact could be drawn from the combined circumstances. / -

The Commonwealth did not have to preclude every possibility of innocence. Rather, the

Commonwealth had tosupply evidence of every element of the offenses.They did so.

Viewing the evidence in the light most favorable to the verdict-winning

Commonwealth, there was morethan sufficient evidence presented to support Defendants

convictions for corrupt organizations and conspiracy to commit corrupt organizations. This

motion is denied.

B. Weight ofthe Evidence Defendants nextpost-sentence motion for relief is that the verdictswere against the

weight ofthe evidence. We disagree. Allegations that a verdict is against the weight of the evidence are decided based upon

the discretion ofthetrial court. Commonwealth • Chine, 40 A.3d 1239, 1243 (Pa. Super. Ct. e e

2012)(citing Gommomwealth • Dupre, 866 A.2d 1089, 1101 (Pa. Super. Ct. 2005)). The trier 19 of fact, "is free to believe all. part, or none of the evidence and to determine the credibility of

thewitnesses." Commonwealt h v. Ramthal. 33 A.3d 602,609 (Pa. 2011). Morover. e the

trial courtshould not disturb a jury's verdict unless the verdict is "so contrary to the evidence

as to shock one's sense of justice." Id. What "shocks ones sense of justice"is defined as

When the figure ofthe Justice totters on herpedestal, or when the jury's verdict, at thetime ofits rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience. /

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super. Ct. 2004) (internal citations and e

quotations omitted). Further, "unless the evidence is so unreliable and/or contradictory as to

makeany verdict based thereon pure conjecture, these types of claims are not cognizable on

appellate review." Commonwealth • Gibbs. 981 A.2d 274, 282 (Pa. Super. Ct. 2009) (citing

Commonwealth • Rossetti, 863 A.2d 1185, 1191 (Pa. Super. Ct. 2004)). Appellate review

will not overrule a trial courts determination as to weight of the evidence unless "the facts

and inferences of record disclose a palpable abuse ofdiscretion." Id. To this end, "the trial

court's denial ofa motion for a new trialbased on aweight of the evidence claim is the least

assailable of itsrulings." Id.

There are pieces of evidence which do not strengthen the Commonwealths case:

however, the test is not whether there is any evidence that goes against the Commonwealth's

assertions. Rather, , .. -· / this Court -is to examine whether the verdict was ,. - so contrary to the / /'

evidence as to shock one's sense of justice." In contrast, the evidence firmly supported that 20 the Defendant was a chronic and sophisticated drug dealer, for profit, who preyed upon

addicts both as customers and as toolsto perpetuate his criminal enterprise. This Courtwas _/. /_ -· . .· -

not shocked in the least. The figure of Justice is still firmly fixed atop her pedestal. No relief

is granted on this claim.

C. Sentence Consideration

Defendants next series of motions alleges that this Court abused its discretion in

sentencing him. For the reasons citedinfra, wedisagree.

Though we will address each of Defendant's challenges in turn, there is merit in stating the basic law regarding discretion in sentencing and the relevant facts. We begin with ea

the law.

In Commonwealth • Foust, the Superior Court quoted 42 Pa.C.S.A. $ 9721(b) forthe

propositionthat ✓- - - - -

the sentence imposcd should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the lifeof the victim and on the community, and the rehabilitative needs of the defendant. ,/

180 A.3d 416,439 (Pa. Super. Ct. 2018).And. " [t]he [trial] court is not required to parrot the words of the Sentencing Code, stating every fctor a that must be considered underSection

9721(b), however, the record as a whole must reflect due consideration by the court of the

statutory considerations at the time of sentencing."Id. (quoting Commonwealth v. Bullock,

170 A.3d 1109, 1126 (Pa. Super. Ct. 2017) (internal alterations, quotation marks, and

citations omitted in original). The basic lawstated, we recite the considerations and findings - 21 weighed by this Court at sentencing.

At the start of the sentencing proceeding, the Commonwealth acknowledged that,

with Defendant having been acquitted of those charges connected to the death of Alan

Bocchini, the Court could not consider Mr. Bocchinis demise in fashioning Defendants

sentence. (Notes of Testimony. 10/22/20, at 4-5.) This Court agreed. Id.

The Commonwealth explicitly highlighted that Defendant was not a young adult with

capacity to change. Id., at 10. He committed these crimes at 47 and 48 years of age and, at

the time of sentencing. was going on 50 years old. Id. Defendant claimed not to have any

addiction issues. Id.

Upon beginning our sentencing order, this Court stated the following:

As I noted, Ive considered the PSI and its recommendations. Ive considered the arguments of counsel, the statements of the Defendant, considered all or the evidence presented in the case and the surrounding circumstances, considered the Defendant's age and health issues, considered numerous other factors that Y-11 go into in more detail in my sentencing decision.

Id., at 22. Defendants prior record at sentencing was a 5. Id. We acknowledged that the

conduct leading to that prior record score could not be double counted; however, we

professed that it could be addressed for relevant factors beyond the prior record score. /d., at

22. Specifically. this Court was looking at the prior record score for evidence of Defendant's

rehabilitative potential, or lack thereof. Id., at 22-23. This Court wished to know if

Defendant's prior record score was owed, at all, to repeated behavior that would indicate a

poor rehabilitative potential. ld., at 23. And, we found Defendant had two prior drug

22 delivery-type offenses, which concerned this Court. Id. Moreover, though we acknowledged

that it was "not a constant parade of charges," Defendant had fairly regular ongoing criminal

behavior associated with drugs. Id., at 23-24.

As we stated in great detail, Defendants victimization of people was of concern. Id..

at 24. Defendant had prior convictions for robbery of the first degree, tampering with a

witness to prevent testimony, and criminal possession of a weapon. Id. We noted that

Defendant victimizes his drug delivery customers. Id., at 24-25.

While acknowledging that he is not individually responsible for the full impact

Defndants e impact on society has been great because he has trafficked in highly addictive

and potentially deadly drugs. Id., at 25. In fact, we acknowledged that on the spectrum of bad

actors dealing drugs, Defendant is somewhere between those feeding their own habit and the

true professionals who make billions of dollars at "legitimate" drug companies. Id.. at 28.

This Court, at great length. indicated the sorry history that has created a market for

Defendants wares. Id., at 25-28. We tied Defendant to this by acknowledging that he is not

responsible for creating this market but that, as a predator, he identified the opportunity that

this marketplace of misery offered and he availed himself of it. Id., at 28.

We highlighted that Defendant has no mental health issues. Id. We noted that

Defendant had no addiction issues driving his conduct. Id. Thus, we identified Defendant as a

mid-level drug dealer, motivated by money, with no care for other human beings. Id., at 29.

Referring to the danger posed by Defendant and his lack of rehabilitative potential, we sentenced in the aggravated range on criminal organizations. Id. We stated how

Defendant trafficked drugs across state and county lines. Id. We kept coming back to

Defendants victimization of others and his usage of Kayleigh Jo Hess as a lab rat to test his

drugs. Id., at 29-30. As to the dealing offenses, we stated our belief that as soon as Defendant

is released, because he has no rehabilitative potential, Defendant is going to return to dealing

drugs. Id.. at 31. As such, "[t]o protect society, he needs to be sentenced for a lengthy period

because his conduct and ongoing conduct has reflected that he is irredeemable." Id., at 32. As

evidence of Defendants continued recalcitrance. we noted that, while awaiting sentencing.

he received write-ups at York County Prison for fighting and for refusing an order. Id.

Summing up much of what we had already recounted, this Court stated the following:

Taking all of these matters into consideration, considering the Defendants background, his criminal disposition, his character, lack of remorse. and rehabilitation, the fact that he was at the center of a criminal organization doing this, the Defendant is going to be sentenced to consecutive sentences. There is going to be no group discount to reward Mr. Corbett for the volume of misconduct he was engaged in. That would send the wrong message to Mr. Corbett. It would send the wrong message to others in society who are engaged in criminal enterprises. It would send a message that, well. if you do more business. you 're just going to end up getting a concurrent sentence any way, so you might as well sell as much as you can. This Judge wants to send the opposite message, which is in appropriate cases, such as Mr. Corbett's, if you re drawing in more victims, spreading more misery, you're going to pay for it, and you re going to pay for each occasion when you have a character such as the Defendant has.

Id., at 32-33. We believe that we thoroughly stated our reasons for sentencing Defendant in

the fashion that we did and that, per Foust, supra, in consideration of protecting the public,

24 the gravity of the offense, and Defendants rehabilitative needs, Defendant was sentenced

appropriately. With this stated. we turn to the specific allegations of error and abuse.

1. Warranting of Concurrent Sentences

Defendant opines that because the police possessed sufficient evidence to effectuate

an arrest after the first controlled-buy operation, his PWID-delivery charges should run

concurrently. Defendant believes that this Court committed error in imposing consecutive

sentences on the delivery charges. For the following reasons, we disagree.

To begin, though defense counsel specifically denied invoking sentencing entrapment

in advocating for concurrent sentences, (N.T., 10/22/20, at 18.), we believe this complaint

sounds in that doctrine. We therefore analyze it through that prism.

In Commonwealth v. Paul, the Superior Court stated that "[s]entencing manipulation

occurs when a defendant, although predisposed to commit a minor or lesser offense, is

entrapped in committing a greater offense subject to greater punishment."" 925 A.2d 825,

830 (Pa. Super. Ct. 2007) (quoting Commonwealth v. Petzold, 701 A.2d 1363, 1365 (Pa.

Super. Ct. 1997)) (emphasis added). Each of the deliveries in question was for less than a

gram, which is to say that Defendant was not entrapped into committing a greater offense.

Rather, Defendant simply was engaged in distributing the smallest of considered amounts of

a lethal substance and less than the threshold that begins to increase punishments.

In addition to the foregoing, in approving of the notion of sentencing entrapment as a

cognizable legal concept in our Commonwealth, the Superior Court has stated the following:

25 With our acceptance of the premise underlying sentencing entrapment and manipulation, we adopt the standard typically applied in such cases, namely, or theexistence of "outrageous government conduct" "extraordinary government misconduct"which is designed to and results in an increased sentencefor the convicted defendant. This standard presents a heavy burden forthe defendant seeking a sentence reduction. Simply put, sentencing entrapment/manipulation is difficult to prove; it is not established "simply by showing that the idea originated with the government or that the conduct was encouraged by it, ... or that thecrime was prolonged beyond the first criminal act... or exceeded in degree or kind what the defendant had done before.

Commonwealth v. Petzold, 701 A.24 1363. 1366-1367 (Pa. Super. Ct. 1997) (Quoting United

States • Montoya, 62 F.3d I, 3 (1st Cir. I995)). Defendant has not established outrageous , , � -

government conduct designed to increase his sentence. The fact that multiple controlled buys

occurred helped to establish that there was a criminal enterprise, which we will address in relation - to alater motion. .- � -

/

- Defendant's hefty sentence did notsimply flow fromthe fact that there were four . . .· deliveries. Rather, as this Court stated at sentencing, the tone and tenor of Defendants

sentencingwas to remove a dangerous repeat victimizer of vulnerable persons from the

streets, becauseDefendants / - record - indicated that he would continue ./ . todeal- poison . to his

fellow citizens. - -- No - relief is warranted. ,,.

2. Rectitude of Offense Gravity Score For Counts 4, 5,6, and 10

Defendant avers that this Court erred in assessing an offense gravity score of 9

instead of an 8 where there was nothing of record that Defendant had any prior convictions

26 To begin, we acknowledge the following:

Amendment 4 ofthe 7" Edition Sentencing Guidelineswere effective January 1, 2018 and apply to all offenses committed on orafter that date. The Supplement to Amendment 4 was effective June 1, 2018 andapplies to violations of 35 P.S. $ 780-113(a)(14) and (30) involving fentanyl and its derivatives and analogues. Amendment 5 will be effective January 1, 2020 and apply to offenses committed on or after that date.

The Commission decreased the OGS assignment for the smallest amount of fentanyl (

49 Pa.Bull. 5110 (emphasis added). The drug deliveries in question occurred from August

through October 2018. Bearing this in mind, we continue. If the correct OGS was an 8 then,with a prior record score (hereinafter: PRS) of 5,

the sentencing matrix calls for a standard range of 27-33 months with the aggravated range,

with the addition of 9 months, being +2 months. 204 Pa. Code $ 303.16(a). And 35 P.S. $

780-115 states:

(a) Any person convicted of a second or subsequentoffense under clause () of subsection (a) ofsection 13 of this act or of a similar offense under any statute ofthe United States or of any state may be imprisoned for a term up to twice the term otherwise authorized. fined an amount up to twice that otherwise authorized, or both.

(b) For purposes of this section, an offense is considered a second or subsequent offense, if, priorto thecommission of thesecond offense, the offender has at any time been convicted under clause (30) of subsection (a) of section 13 of this act or ofa similar offense underany statute of the United 27 States or of any state relating to controlled substances.

Thus, withDefendants prior drugdelivery convictions, he could have been sentenced up to

84 months under the guidelines.

Admittedly, at the time of sentencing, this Court stated that Defendant's 0GS was a 9

for each of therelevant counts. If the 0GS of 9 was correct then the sentencing guidelines

called for a standard range of48 to 60 months, with an aggravated range of up to 72 months. See 204 Pa. Code $ 303.16(a). Per 35 P.S. $ 780-115, Defndant e could have been sentenced

up to 144 months under the guidelines.

We have emphasized under the guidelines in our preceding explication because for all -- - - - / - -- - - - - , - - - of the numerous reasons laid out bythis Court at sentencing, this Defendant deserved a

sentence outside of , , - the guidelines becauseofthe extreme dangerhe. poses - to society. His

usage of a co-conspirator as a drug tester evidences a disregardfor human life above and

beyond the depraved nature of drug dealers who show no concern for their clientele.

Defendant does not even care for those who are ostensibly in league with him. As we said at

sentencing. he displays no sense of empathy. Defendant's age and prior record show that he . safe from him. We cannot be rehabilitated. The best that this Court can dois to make societv

stated all ofthis, and more, at sentencing and, because of those reasons, a change in the prior record score would not change the appropriate sentence under this Court's reasoning. This is

not a disregard ofthe sentencing guidelines. It is a recognition that Defendants particular

conduct in this case merits consideration ofthe guidelines, and to thendepart from them, to 28 attain the reasons and goals laid out in detail by this Court-protection of society. deterrence,

and punishment.

As was noted by the Commonwealth, "a sentence outside of the guidelines shall be

upheld so long as the sentence is not unreasonable. Commonwealth's Memorandum of Law

in Opposition to Defendants Post-Sentence Motion/Motion to Reconsider Sentence, at 8

(citing 42 Pa.CS. 8 9781(c)). For the reasons stated at sentencing and reiterated here. we

believe our sentence was reasonable. This motion is denied.

3. Cited Factors Already Included in Prior Record Score

Defendant argues that this Court abused its discretion in sentencing him in the

aggravated range in consideration of factors (prior record, prior periods of incarceration) that

are already included in the computation of Defendants prior record score. We disagree.

The Commonwealth has cited to Commonwealth • Peck, 202 A.3d 739, 749 (Pa.

Super. Ct. 2019). Commonwealth's Memorandum of Law in Opposition to Defendants Post-

Sentence Motion/Motion to Reconsider Sentence, at 1H. Peck was overturned on other

grounds by our Supreme Court, but it nicely summates relevant principles from

Commowneath v. Messmer as to this point:

The court's references to Appellants prior convictions for drug offenses were proper, as the specific nature of those offenses was relevant to the courts consideration of Appellant's rehabilitative potential. See Messmer, 863 A.2d at 573 (noting that although the prior record score accounted for the defendants prior driving-under-the-influence convictions, the score did not reflect the defendant[s] "complete absence of regard for the law"and the need to protect the public). Similarly, the court's reference to deterrence was adequately related to the protection of the public in light of Appellant's poor 29 rehabilitative potential. Accordingly, we see no merit to Appellant's claim that thetrial court double counted factors already included in the sentencing guidelines. See id.

Therefore, following a review of the record, and mindful of our standard of review, we see no reason to disturb the trial courts decision to impose a maximum sentence. - Id.

In thepresent case, Defendants prior record was referenced in regards to his

complete lackof rehabilitative potential. Despite thoseearlierconvictions. Defendant was

running an intercounty and interstate drug vending operation. We combined this with his

being well into middle age and still engaging in drug offenses and Defendant's utter lack of

empathy for his customers and Kayleigh Jo Hess. As we stated at sentencing. Defendant _ ". - - treated Ms. Hess as a lab ratupon whom he could test deadly drugs prior to buying them in

New York City and importing them to Pennsylvania. Treating humans as chattel property to use and abuse for profit deviates so far from normal drug-dealing behavior that this Court

was compelled tolevy consecutive sentences to protect the public from a defendant with no

rehabilitative potential. This motion is denied.

4. Sufficiency ofReasons- Stated for Deviation , / . - from - the- -Guideline - Range

Defendant next submits that this Court stated insufficient reasons for deviating from , , , , -

the guideline range. We disagree.

This opinion has already grown overlong. We believe therecord of the sentencing

transcript, as repeatedly explored in this opinion, sufficiently identified reasons why Defendants outrageous conduct warranted departure from the standard guidelines on

sentencing. This motion is denied.

5. Consecutive Sentences

Defendant avers that this Court abused its discretion in imposing consecutive

sentences. We disagree.

The Commonwealths brief notes this Courts power to sentence a defendant to

consecutive sentences. Commonwealths Memorandum of Law in Opposition to Defendants

Post-Sentence Motion/Motion to Reconsider Sentence, at 10 (citing Commonwealth v.

.Johnson-Daniels, 167 A.3d 17, 28 (Pa. Super. Ct 2017)). In .Johnson-Daniels, the Superior

Court stated the following:

With respect to the imposition of consecutive versus concurrent sentences, [1Hong standing precedent of this Court recognizes that 42 Pa.C.S. section 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed." Commonwealth ». Gonzalez-Dejusus. 994 A.2d 595, 598 (Pa. Super. Ct. 20 10).

167 A.3d. at 28. Defendants are not entitled to a "volume discount" for their crimes. Id.

(citing Commonwealth v. Hoag, 665 A.2d 1212, 1214 (pa. Super. Ct. 1995)).

Without belaboring the point, we believe we have made it clear, during sentencing

and throughout this opinion. that it was the intention of this Court to sentence Defendant in

such a manner as to incapacitate him from harming the community for a long period of time.

Though we are repeating ourselves. Defendant lacks empathy and his age and record

evidence that he has no rehabilitative potential. Imposing consecutive sentences allowed this 3l Court to accomplish the goal of safeguarding the community. As such, we deny relief on this

motion.

6. Propriety of Considering Prior Record

Defendant claims that this Court improperly considered his prior record in spite of it

already being incorporated into his prior record score. We disagree.

This Court has already addressed a very similar. if not identical, claim above in the

subsection titled: Cited Factors Already Included in Prior Record Score. We would refer to

the arguments therein in refutation of this claim, which we deny.

7. Lack of Remorse

Defendant submits that this Court improperly considered his lack of remorse in

violation of his right to remain silent. We disagree.

The Commonwealth has responded with a quote from Commonwealth v. Grays,"it is

undoubtedly appropriate for a trial court to consider defendants lack of remorse as a factor at

sentencing, provided that it is specifically considered in relation to protection of the public.

the gravity of the offense, and the defendants rehabilitative needs.'Commonwealth's

Memorandum of Law in Opposition to Defendants Post-Sentence Motion/Motion to

Reconsider Sentence, at 9 (quoting Commonwealth v. Grays, 167 A.3d 793, 817 (Pa. Super.

Ct. 2017) (quoting Commonwealth v. Bowen, 975 A.2d 1120, 1125 (Pa. Super. Ct. 2009))). Our sentencing pronouncement, on this point, directly tracks this standard.

Referring to Defendants usage of Kayleigh Jo Hess as a lab rat that he could test

32 drugs on, which imperiled her, we found that Defendant had no rehabilitative potential.

(Notes of Testimony. 10/22/20, at 30.) In terms of gravity of the offense, we noted

Defendants significant role in an economy that has brought so much misery and harm to

York County, and he sold this misery solely for personal profit and because he was unwilling

to do honest work.Id., at 31. And as far as protecting the public, we referred to the harm

that the drug trade has caused in York and to the fact that we are sure Defendant will return

to peddling that poison as soon as he is released. Id. Per Grays, supra, we did not improperly

consider Defendants lack of remorse. This motion is denied.

8. Transport of Drugs Across State Lines

Defendant argues this Court improperly considered that Defendant transported drugs

across state lines when Kayleigh Jo Hess testified that she did not see Defendant bring drugs

back across state lines.

Defendant ignores that the main thrust of this Court's pronouncement about drugs

being transported was that the Defendant took Kayleigh Jo Hess across state lines to use her

as a lab rat to test drugs without any care for her safety. (Notes of Testimony, 10/22/20, at

29-30.) It also ignores that a jury found Defendant guilty of conspiracy to commit corrupt

organizations. As stated above, Ms. Hess testified to her role as Defendant's drug-tester. The

fact that she did not state that she saw drugs transported-when she easily could have done

so only increased her credibility. When a member of a conspiracy testified credibly that

they were transported across state lines to test drugs to be imported into our Commonwealth,

33 the Court could easily infer that drugs were in fact transported. It would be the height of

cognitive dissonance to believe Ms. Hess that she was taken by Defendant, on multiple

occasions, to New York to sample drugs for import into Pennsylvania, but to refuse to infer

that the importation occurred. Again, the mention of interstate drug trafficking was more an

aside to get to the damning fact that Defendant callously preyed upon the human frailty of

another human being in order to utilize her as a lab rat. This motion is meritless and is

rejected.

9. Period of Crime

Defendant argues that this Court erred when it imposed consecutive sentences despite

Defendants offenses occurring over a short period of time. We disagree.

To he gin, the crimes were not committed over that short a period of time. The

controlled buys occurred over a period of time that spanned late August into October.

As we already stated in addressing an earlier contention, defendants are not entitled to

a "volume discount" for their crimes. See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (pa.

Super. Ct. 1995). Like the defendant in Commonwealth v. Johnson-Daniels, 167 A.3d 17, 29

(Pa. Super. Ct. 2017), Defendant, in raising this claim, seems not to appreciate the harm his

drug dealing has inflicted upon his community, or the clanger that he poses to it. There will

he no discount from this Court. We departed from the guidelines and we sentenced

consecutively for the numerous reasons we stated on the record and that we have recounted

in this opinion.

34 The public must be protected from the very real danger posed by this Defendant being

at liberty-he deals drugs that cause destruction at best and, potentially. worse. The

community of York was already ravaged by drugs before Defendants addition, but the

gravity of his offenses cannot be overstated. Defendant has no rehabilitative potential. lie

showed no care for the safety of his customers or those in his employ. And he has not

become any less dangerous or less prone to drug-dealing as he has aged. Consecutive

sentences were warranted-no matter the period of time over which the crimes were

committed.

D. Hearsay Objection

Defendants final motion requests a new trial premised upon the assertion that this

Court erred in admitting hearsay testimony over a defense objection. For the following

reasons. we decline to do so.

While on the stand and prior to any objection, Kayleigh Jo Hess testified that on two

or three occasions Defendant took her to New York. because Defendant needed someone to

test drugs for him. (N.T., 9/14/20, at 253-254.) On one of those trips. Defendant and Ms.

Hess picked up a black male in Baltimore. Id., at 255. Ms. Hess was privy to conversations

between that unidentified black male and Defendant during that trip. Id., at 256. At this point

in the testimony, defense counsel objected. Id Commonwealth responded by invoking

hearsay exceptions for statements made by party opponents as well as co-conspirators. Id.

This Court overruled the objection and then Ms. Hess testified that Defendant and the

35 unidentified male spoke in code that she interpreted as them discussing what they were going

to purchase. Id., at 256-57.

Relevant portions of Pa.R.E. 803 (25) states the following:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(25) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(E) was made by the Party's coconspirator during and in furtherance of the conspiracy.

In regards to Pa.R.E. 803(25)(A), the Commonwealth proffers the case of Commonwealth v.

Edwards, 903 A.2d 1139, 1157 (Pa. 2006). Commonwealth's Memorandum of Law in

Opposition to Defendant's Post-Sentence Motion/Motion to Reconsider Sentence, at 13. In

Edwards, the Court related the following quote:

It is fair in an adversary system that a party's prior statements be used against him if they are inconsistent with his position at trial. In addition, a party can hardly complain of his inability to cross-examine himself. A party can put himself on the stand and explain or contradict his former statements.

903 A.2d, at 1157 (quoting Commonwealth • Chmiel, 738 A.2d 406, 420 (Pa. 1999). cert

denied, 528 U.S. 1131 (2000) (citing Packel & Poulin, Pennsylvania Evidence $ 805 (1987)).

The Court went on to state, "in criminal cases, this Court has consistently held that a

defendants out-of-court statements are party admissions and are exceptions to the hearsay

rule. Id.. at 1157-1158 (additional citations omitted). Defendants out-of-court coded speech 36 was admissible against him because it relatedto his drug-buying trip toNew York, which

was inconsistent with his position at trial.

In regards to Pa.R.E. 803(25)(E), theSuperior Court has stated the following: /

To lay a foundation for the co-conspirator exception to thehearsay rule, the Commonwealth must prove that: (I) a conspiracy existed between declarant and theperson against whom the evidence is offered and (2) the statement sought to be admitted was madeduring the course ofthe conspiracy.In addition, there must be evidence other than the statement of the co-conspirator to prove that a conspiracy existed. Commonwealth v. Basile, 458 A.2d 587 (Pa. Super. Ct. 1983).

The order of proof is within the discretion of the lower court, which may. upon only slight evidence of the conspiracy, admit such statements subject to later proof of the conspiracy. Commonwealth v. Plusquellic, 499 A.2d 47 (Pa. Super. Ct. 1982).

482 A.2d600, 604 (Pa. Super. Ct 1984). Thus. for the unidentified male's coded statement,

interpreted by a co-conspirator as being about purchasing drugs, to be admissible against e e

Defendant, the Commonwealth needed to first prove the existence of a conspiracy between - - -

the unidentified male and Defendant.

Prior to admission of the statement, Ms. Hess had testified that sheand the Defendant, during one of their drug-buying trips, drove to Baltimore to pick up the

unidentified male. Baltimore is in the oppositedirection ofNew York, as everyone knows.

which amounts to more than just slight evidence of a conspiracy between Defendant and the

unidentified male. After all, if Hess is to be believed, the unidentified male accompanied

Defendantand Ms. Hess on a triptobuy drugs. e

As for other evidence of a conspiracy, aside from the objected-to statement, the 37 Commonwealth supplied the testimony of Kayleigh Jo Hess. As just discussed, the detour to

pick up the unidentified male to be present during a drug-buying trip is sufficient evidence of

the conspiracyseparate from the hearsay statement.

Finally, the unidentified male's coded language about buying was made during the

course or the conspiracy. Ms. Hess testified that the statement was made during the trip to

New York, which means that the statement was made during the course of the conspiracy.

The Commonwealth laid a proper foundation to admit the unidentified male's hearsay

coded language about buying drugs. Returning to Pa.R.E. 803(25)(A). the statement in

question was made by Defendants coconspirator, the unidentified male. Finally, the

statement was made in furtherance of the conspiracy, as Ms. Hess understood the coded

language to relate to purchasing drugs.

The unidentified male coconspirator's hearsay statement was properly admitted. This

Court did not err in admitting it. Defendants motion for a new trial premised upon this

supposed error is denied.

38 HI. Conclusion

For the foregoing reasons, Defendants post-sentence motions are denied. Pursuant to

Pa.R.Crim.P. 720(A)02)a). Defendant has 30 days from the entry of the order deciding his

post-sentence motions to, if he so chooses. enter noticeof appeal.

BY THE COURT,

DATED: April • 2020