J-S09009-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD HARVEY FOSTER : : Appellant : No. 505 WDA 2018
Appeal from the Judgment of Sentence October 17, 2017 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0002368-2016
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 9, 2019
Ronald Harvey Foster appeals from the judgment of sentence imposed
after a jury verdict found Appellant guilty of two counts of third degree
murder, see 18 Pa.C.S.A. § 2502(b), one count of conspiracy to commit
robbery, see 18 Pa.C.S.A. § 903(a)(1), three counts of robbery, see 18
Pa.C.S.A. § 3701(a)(1)(i) and (ii), and one count of criminal use of a
communication facility, see 18 Pa.C.S.A. § 7512(a). After careful review, we
affirm.
This case arises from a drug deal gone bad. Many of the facts are
undisputed. On several occasions, Appellant sought to purchase marijuana
from Dane Mathesius, one of the two murder victims. When Mathesius
appeared at an abandoned building to consummate the transaction, Appellant,
____________________________________________
Retired Senior Judge assigned to the Superior Court. J-S09009-19
Lawrence Reddick, Deontae Jones, and Rasheid Hicks were waiting. Present
with Mathesius was sixteen-year-old William Booher and thirteen-year-old
N.R.
Mathesius stopped his car, and Reddick climbed into the rear passenger
seat. Reddick brandished a firearm and directed Mathesius to pull over.
Reddick then robbed Mathesius, Booher, and N.R. At the conclusion of the
robbery, Reddick fatally shot both Mathesius and Booher.
The primary issue at trial was Appellant’s awareness of Reddick’s intent
to rob Mathesius. Appellant admitted he set up the drug deal. He also
admitted he agreed to have Reddick accomplish the transaction, as Appellant
feared that Booher intended to rob Appellant.
In contrast, the Commonwealth presented testimony that Appellant
planned the robbery with Reddick. Hicks testified that he heard Appellant plan
the robbery with Reddick the night before it occurred. Xavier Fisher also
testified to Appellant’s involvement in planning the robbery the night before.
Jones testified that Appellant had informed him of his intent to rob Mathesius
a week prior to the robbery.
At sentencing, Appellant was sentenced to an aggregate period of thirty-
four to seventy years. While Appellant’s initial counsel did not file a post-
sentence motion or notice of appeal, on November 14, 2017, the trial court
granted Appellant permission to file a post-sentence motion nunc pro tunc
within thirty days of its order. After the trial court allowed for another
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extension, Appellant ultimately filed his supplemental omnibus post-sentence
motion on February 2, 2018, raising eighteen discrete issues.
On March 15, 2018, the trial court denied Appellant’s application for
relief as to all of his claims with the exception of one relating to restitution.
On April 10, 2018, Appellant filed a timely notice of appeal to this Court. One
day later, Appellant was directed by the trial court to file a concise statement
of matters complained of on appeal, which he timely filed.
In his brief before this Court, Appellant raises seven issues on appeal:
1) Appellant challenges the sufficiency of the evidence used to support the jury’s finding of two third-degree murder verdicts, three robbery verdicts, and its conspiracy to commit robbery verdict.
2) Appellant challenges the weight of the evidence used to support the jury’s finding of two third-degree murder verdicts, three robbery verdicts, and its conspiracy to commit robbery verdict.
3) Appellant contends the trial court erred in permitting the Commonwealth to display for the jury a specific text message that demonstrated an intent to commit a crime for which he was not charged.
4) Appellant suggests the trial court erred when it continually forced him to confirm or deny the testimony of Commonwealth witnesses, where he was asked to comment on the accuracy and veracity of those witnesses.
5) It was error for the jury to have access to cellphone data reports containing text messages between Appellant and Mathesius, as they amounted to a confession.
6) Appellant challenges the discretionary aspects of his sentence, contending that his sentence is violative of both the United States Constitution as well as Pennsylvania’s Constitution.
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7) Appellant maintains that the trial court abused its sentencing power when it failed to order the total joint costs and restitution be paid jointly and severally with co-defendants, as well as when it failed to delay the collection of the costs and restitution until Appellant’s release from his prison sentence.
See Appellant’s Brief, at 15-16.
First, Appellant asserts that the evidence was insufficient to support the
third-degree murder verdicts, the robbery verdicts, and the conspiracy to
commit robbery verdict.
When reviewing a sufficiency of the evidence claim, we must determine whether, when viewed in the light most favorable to the verdict winner, the evidence at trial and all reasonable inferences therefrom are sufficient for the trier of fact to find that each element of the crime charged is established beyond a reasonable doubt. The Commonwealth may sustain its burden by proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.
Commonwealth v. Dix, 207 A.3d 383 (Pa. Super. 2019) (citations and
quotation marks omitted). In addition, “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.” Commonwealth v. Tejada,
107 A.3d 788, 793 (Pa. Super. 2015) (citation omitted).
In this case, Appellant’s culpability was based on conspiratorial and
accomplice liability. While Appellant concedes that Reddick did, in fact,
commit three acts of robbery and two acts of murder, Appellant contends that
his apparent renunciation of the events on that date absolves him of the
conspiratorial and accomplice-based crimes for which he was found guilty.
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Appellant was convicted of and sentenced to one count of conspiracy to
commit robbery. “A person is a conspirator if the defendant: 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.” Commonwealth v. Mitchell, 135 A.3d 1097,
1102 (Pa. Super. 2016). “Once the trier of fact finds that there was an
agreement and the defendant intentionally entered into the agreement, that
defendant may be liable for the overt acts committed in furtherance of the
conspiracy regardless of which co-conspirator committed the act.”
Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004). Additionally,
we have held that “in order for a withdrawal from a conspiracy to be legally
sufficient, it must occur before the commission of the crime becomes so
imminent that avoidance is out of the question.” Commonwealth v. Carlitz,
466 A.2d 696, 698 (Pa. Super. 1983) (quotation marks and citation omitted).
Appellant concedes that he conspired with Reddick to purchase
marijuana from Mathesius. He further concedes that the testimony of Jones
and Hicks supports a finding that he initially was involved in a conspiracy to
rob Mathesius. However, he argues that the evidence of his abandonment of
the conspiracy was “incontrovertible.” Appellant’s Brief, at 19. He further
argues the evidence was incapable of supporting any inference that he
conspired to commit any crimes against N.R., as there was no evidence he
was aware that N.R. would be present.
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As outlined more fully below, the testimony presented at trial, primarily
through Jones’s account, demonstrated that, at a minimum, Appellant and
Reddick entered into an agreement to commit a robbery against Mathesius.
See N.T., 8/18/17, at 220. The evidence was sufficient to additionally
demonstrate that Appellant had the requisite and shared criminal intent to
effectuate a robbery and utilized his cell phone to bring Mathesius into the
area under the guise of a purported drug transaction.
Appellant was the only one amongst his cohorts who knew any of the
individuals that would arrive in the vehicle. While Reddick possessed
Appellant’s cell phone at some point, Appellant directed most of the activity in
bringing Mathesius, Booher, and N.R. to the area that was agreed upon by
Reddick and Appellant. It is true that the trajectory of the conspiracy altered
after its inception, where the target of the robbery changed from Mathesius,
to both Mathesius and Booher, to what actually occurred: the robbery of
Mathesius, Booher, and N.R. In addition, while it was Reddick who, upon
Appellant learning of Booher’s presence, approached the victims, it does not
alter the actions already taken by Appellant to lure the victims to the ambush.
Not only was Appellant a primary causal point for the commission of the
robbery because he was the person responsible for bringing the victims to the
specific area, Appellant was, too, intricately involved in the actual planning of
the robbery, which occurred primarily between Appellant and Reddick, but
involved others, too. See, e.g., id., at 210-22.
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Contrary to Appellant’s assertion, there is no basis to conclude that
Appellant effectively repudiated his involvement in the conspiracy. While
there was evidence that Appellant oscillated on whether the robbery should
occur on the basis that he knew Booher would be present in the vehicle, “for
an abandonment to be legally sufficient, it must occur before the commission
of the crime becomes so imminent that avoidance is out of the question.”
Commonwealth v. Roux, 350 A.2d 867, 871 (Pa. 1971). The evidence of
record is sufficient to establish that Appellant used his phone to bring
Mathesius to the area while already having agreed to rob him, gave his phone
to Reddick after conversing with Mathesius over the course of several days,
stayed geographically close by while Reddick acted, and then reconvened with
Reddick after Reddick had murdered two individuals and robbed three.
Accordingly, the evidence was sufficient to find Appellant guilty of a conspiracy
to commit a robbery.
Appellant raises a similar challenge to his convictions pursuant to
accomplice liability. “The criminal intent necessary to establish accomplice
liability is identical to the criminal intent necessary to establish conspiracy.”
Commonwealth v. Hennigan, 753 A.2d 245, 254 (Pa. Super. 2000). Our
Supreme Court has further indicated that “[a]n actor and his accomplice share
equal responsibility for the criminal act if the accomplice acts with the intent
of promoting or facilitating the commission of an offense and agrees or aids
or attempts to aid such other person in either the planning or the commission
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of the offense.” Commonwealth v. Cox, 686 A.2d 1279, 1286 (Pa. 1996).
Furthermore, “[t]he least degree of concert of collusion is sufficient to sustain
a finding of responsibility as an accomplice.” Commonwealth v. Coccioletti,
425 A.2d 387, 390 (Pa. 1981).
Appellant largely restates his argument that he effectively repudiated
his involvement in any conspiracy. Appellant contends that Reddick acted
unilaterally on September 29, and even if Appellant knew Reddick were to
commit a crime, that is not enough to designate him as an accomplice. See
Commonwealth v. Rega, 933 A.2d 997, 1015 (Pa. 2007) (establishing that
“a person cannot be an accomplice simply based on evidence that he knew
about the crime or was present at the crime scene”). In addition, Appellant
argues that merely introducing the buyer and seller to each other does not
inherently make one an accomplice. See Commonwealth v. Flowers, 387
A.2d 1268, 1270 (Pa. 1978) (indicating that “a test of partnership or concert
of action to determine guilt as an accessory” is the proper analysis for
accomplice liability rather than a “but-for” test).
Appellant also suggests that he cannot be an accomplice to the robbery
of N.R. because the uncontroverted evidence at trial indicated that those
outside of the vehicle were not aware of N.R.’s presence. Finally, Appellant
states that the crime of murder was not in progress and even less imminent
when he allegedly renounced his intent to participate in Reddick’s scheme.
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Thus, the question remains whether it was sufficient for the trier of fact
to find that each element of every crime for which Appellant was convicted
was established beyond a reasonable doubt. “An accomplice is equally
criminally liable for the acts of another if he acts with the intent of promoting
or facilitating the commission of an offense and agrees or aids or attempts to
aid such other person in either planning or committing the criminal offense.”
Commonwealth v. Potts, 566 A.2d 287, 291 (Pa. Super. 1989) (citation and
quotation marks omitted). However, an “offense-specific analysis of intent
and conduct is required” to ascertain whether Appellant had the requisite
intent to promote or facilitate the offense and thereafter solicited or aided,
agreed to, or attempted to aid the other person in planning or committing the
offense. Commonwealth v. Knox, 105 A.3d 1194, 1196-97 (Pa. 2014)
(rejecting the notion that “an accomplice [is] liable for all of natural and
probable consequences of the principal’s actions in the commission of a target
offense”); see also 18 Pa.C.S.A. § 306(c).
Here, there was ample evidence tending to demonstrate Appellant’s
intentional involvement, and therefore culpability, in the planning of the
underlying robbery. First, Appellant’s actions, via text messages sent to
Mathesius over the course of several days, set into motion the chain of events
that led to the robberies and murders. No one else affiliated with Appellant
knew any of the people who arrived by vehicle to participate in the drug deal.
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See N.T., 8/28/17, at 156-57 (Appellant stating that he was the only one who
knew Mathesius and Booher).
Reddick’s use of Appellant’s phone does not change the fact that
Appellant provided the framework for Mathesius, Booher, and N.R. to travel
to Aliquippa under the pretense of a drug deal. In addition, these series of
text messages provided the impetus for Reddick, who had no prior knowledge
of any of these individuals, to ultimately enter Mathesius’s vehicle.
Second, beyond merely being the causal point for the events of
September 29, testimony established that Appellant had the requisite intent
to commit a robbery. Hicks, Jones, and Fisher all testified, to varying degrees,
to Appellant’s desire to, at least conceptually, rob Mathesius. While it is true
that Fisher heard Appellant state “[w]e can’t do this with [Booher] in the car,”
Fisher also indicated that he heard Appellant use the word “lick,” which was
known to Fisher to mean a robbery. N.T., 8/18/17, at 76-77.
It is also noteworthy that Appellant never left the scene upon expressing
his concerns with Booher’s presence. Hicks corroborated Fisher’s account of
hearing Appellant use the word “lick” and knew it to mean a robbery. See
id., 8/22/17, at 116. In addition, Hicks stated that he had heard Appellant
identify that he did not have a weapon, but that Reddick would give Appellant
his. See id. Hicks also testified that Appellant suggested Jones could use
Appellant’s mask. See id., at 117.
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Most notable was the testimony of Jones. At trial, Jones testified that
Appellant “told [him] he had a lick” a week prior to when the robbery
happened. See id., 8/18/17, at 210-11. Jones conveyed that it was
Appellant’s cousin who told Appellant that he could rob Mathesius. See id.,
at 212. Jones recalled that Appellant told him it was going to be someone
from Beaver that would come to Aliquippa. See id., at 213. Jones further
stated that “[t]he plan was for [Appellant and Reddick] to put the money
together and act like they were going to buy it and then rob them.” Id., at
220. Moreover, Appellant wanted to use Reddick’s gun and sought to use
Jones as a diversion. See id., at 220-22.
Jones admitted that the surveillance video showed Appellant, Reddick,
and himself at Reddick’s house, which is when Reddick and Appellant obtained
Reddick’s gun. See id., 8/21/17, at 10-11, 20-21. When Appellant, Jones,
and Reddick reconvened shortly thereafter, Appellant and Reddick had a
disagreement over where they wanted the robbery to occur. See id., at 15,
17-18. While Appellant stated his reservations about going through with the
robbery in light of Booher’s presence, ultimately Appellant and Reddick
decided upon a general location for the robbery. See id., at 17-19.
While waiting for Mathesius’s vehicle to arrive at the scene of the crime,
Appellant gave Reddick his phone to continue relaying the location of the deal
to the victims. See id., at 31-32. Reddick waited for the vehicle on the side
street, while Jones and Appellant waited in an alley, and Hicks waited in front
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of a house and under an alcove. See id., at 35-36. After Reddick got into
the vehicle, Appellant, Jones, and Hicks heard gunshots. See id., at 42. Then,
Reddick, Appellant, Hicks, and Jones all had a rendezvous after the robberies
and shootings before they went their separate ways. See id., at 43-44.
Clearly, there was sufficient evidence to support a finding that Appellant
acted as an accomplice to Reddick’s actions. Through his interactions with
others in addition to cell phone records, the testimonial and physical evidence
was sufficient to establish that Appellant had the intent to promote or facilitate
the robbery. Moreover, the record contains evidence both that Appellant
solicited others, including Reddick, to aid in the commission of the robbery
and that Appellant subsequently aided Reddick in the planning and
commission of the robbery. Accordingly, when viewed in the light most
favorable to the Commonwealth, there is sufficient evidence to conclude that
Appellant was an accomplice to Reddick’s robberies.
Undoubtedly, even if we were to conclude, as Appellant suggests, that
Appellant terminated his complicity prior to the robberies and murder, neither
of the relevant exceptions would apply. Appellant did not “wholly deprive[]
[the offenses] of effectiveness” nor did he “give[] timely warning to law
enforcement authorities or otherwise make[] [a] proper effort to prevent the
commission of the offense.” 18 Pa.C.S.A. § 306(f)(3)(i-ii); see also
Commonwealth v. Howard, 517 A.2d 192, 197 (Pa. Super. 1986)
(establishing that an accomplice’s duty under the law is “not only [to]
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terminate his complicity, but to otherwise take steps to prevent the
commission of the crime”).
Appellant further contends that the evidence was insufficient to convict
Appellant of two counts of murder of the third degree. In Pennsylvania, a
third-degree murder is defined as “[a]ll other kinds of murder” that are not an
intentional killing nor committed “while defendant was engaged as a principal
or an accomplice in the perpetration of a felony.” 18 Pa.C.S.A. § 2502(a)-(c).
Third degree murder requires malice, which may include an intent to cause serious bodily injury that results in death, but third degree murder does not require such intent because malice can also be established by a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty, which indicates an unjustified disregard for the likelihood of death or great bodily harm, and an extreme indifference to the value of human life.
Commonwealth v. Williams, 980 A.2d 510, 524 (Pa. 2009) (citation
omitted). In the domain of accomplice liability, “a conviction for murder of
the third degree is supportable under complicity theory where the
Commonwealth proves the accomplice acted with the culpable mental state
required of a principal actor, namely, malice.” Commonwealth v. Roebuck,
32 A.3d 613, 624 (Pa. 2011). Moreover, “accomplice liability does not require
the defendant to have the conscious objective to cause a particular result
when such an outcome is an element of the offense.” Id., at 623.
While in Knox, our Supreme Court rejected the “natural and probable
consequence” theory to accomplice liability and concluded that accomplice
liability is offense-specific, 105 A.3d 1194, 1196-97 (Pa. 2014), there is ample
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evidence of record indicating that Appellant knew and in fact encouraged the
use of a deadly weapon, either to use himself or for use by Reddick, which
unquestionably carries a significantly greater risk of harm in comparison to an
unarmed robbery. See Commonwealth v. Roebuck, 32 A.3d at 615 n. 4
(affirming Superior Court’s conclusion that“[a]ppellant demonstrated the
requisite malice by participating in a scheme designed, at a minimum, to stage
an armed confrontation with the victim”). Therefore, the evidence was
sufficient to support a finding of malice. As a result, the evidence was
sufficient for the jury to find Appellant guilty as an accomplice to third-degree
murder.
Next, Appellant challenges the weight of the evidence supporting his
convictions. A weight of the evidence challenge “concedes that there is
sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153
A.3d 1049, 1054 (Pa. Super. 2016) (citation omitted). Our standard of review
for a claim that the verdict was against the weight of the evidence is as
follows:
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. It has often been stated that a new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.
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An appellate court’s standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations and
quotation marks omitted) (emphasis in original). “Discretion is abused where
the course pursued [by the trial court] represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill-will.” Commonwealth v. Widmer, 744 A.2d
745, 753 (Pa. 2000).
Appellant advances the argument that Appellant’s murder, robbery, and
conspiracy verdicts “shock[] the conscience” because Appellant “took all
action necessary to (A) announce his intention to abandon any further
continuation of the conspiracy to rob anyone and (B) renounce his intention
to continue aiding Reddick in the robbery of anyone and terminated his
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involvement and aid in it as soon as he learned Booher would be present.”
Appellant’s Brief, at 26. Appellant claims that when he gave his cell phone to
Reddick, it eliminated his “culpability as to all robbery and murder counts,”
which occurred “prior to any meeting between Reddick and the persons in the
car.” Id.
The trial court disagreed:
The Commonwealth presented twenty different witnesses, some of whom testified multiple times, and introduced numerous items of documentary and physical evidence. The Commonwealth presented the testimony of N.R., who was present during the shooting, and the testimony of Jones, Hicks, and Fisher, who were present during, and heard discussions related to, the planning of the robbery. The Commonwealth further presented evidence of the surveillance footage …, showing the meeting of the co- conspirators, and evidence of the extraction of Mathesius’ cellphone, showing text messages sent back and forth between Mathesius and [Appellant].
Trial Court Opinion, 5/23/18, at 32.
In light of all the evidence that was presented, we cannot conclude that
the judgment demonstrated by the trial court was manifestly unreasonable or
that a misapplication of the law has occurred. Accordingly, the trial court did
not abuse its discretion in determining that any of the verdicts were against
the weight of the evidence.
In his third issue, Appellant avers the trial court erred in admitting a
text message he sent to Mathesius. This text message outlined a “future plan
to sell the marijuana once he bought it from Mathesius, a non-charged crime
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or bad act[.]” Appellant’s Brief, at 27. Appellant claims this text message
painted him as a drug dealer and unfairly prejudiced him.
When considering the admission of evidence, our standard of review is
very narrow. Our review of a trial court's evidentiary ruling is limited to
determining whether the trial court abused its discretion. See
Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005). “An abuse of
discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citation omitted). Finally, “[t]o
constitute reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party.” Commonwealth v.
Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted).
The trial court admitted the text message as evidence of Appellant’s
motive and a res gestae (course of conduct) statement. Further, the court
indicated that it would provide a cautionary instruction advising the jury to
consider the message only for the motive of Appellant to commit the charged
crimes.
Delivery of a controlled substance is against the law in Pennsylvania.
See 35 P.S. § 780-113(a)(30). “Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a
particular occasion he person acted in accordance with the character.” Pa.R.E.
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404(b)(1). However, “evidence may be admissible for another purpose, such
as motive” or “intent.” Id., at 404(b)(2). But such evidence in a criminal
case is “admissible only if the probative value of the evidence outweighs its
potential for unfair prejudice.” Id.
Appellant asserts that “[t]he Commonwealth ha[d] no need to introduce
the additional reference to future intent to sell the purchased drugs to others.”
Appellant’s Brief, at 29. Appellant believes that his plans for the marijuana
had no bearing on his motive to commit the robbery. He also argues that his
plans could not possibly be construed as a res gestae statement, as they were
wholly irrelevant to anything occurring on the date the text was sent. See id.
As such, he contends the probative value of the text message was outweighed
by the unfair prejudice incurred by Appellant at trial.
Moreover, Appellant contends the Commonwealth violated Pa.R.E.
404(b)(3) when it did not provide advance notice of the fact that it intended
to use the text message at trial. Finally, Appellant claims the trial court’s jury
instruction was “woefully inadequate” as it did not “mention the objectionable
portion of the text” nor militate against a finding that Appellant is a bad person
as a result of this activity. Appellant’s Brief, at 30-31.
As such, Appellant’s three arguments as to the admissibility of this text
message can be distilled down to: 1) lack of notice provided by the
Commonwealth; 2) the trial court’s inadequate limiting instruction; and 3) the
relevancy of and prejudice suffered from the message itself. All three
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concerns deal with the whether the trial court made an erroneous evidentiary
ruling.
As set forth in our standard of review, Appellant must demonstrate that
he suffered prejudice from at least one of these alleged errors. We conclude
he cannot do this. This text message was one of many inculpating Appellant
in the plan to rob Mathesius. Further, he cannot explain how this evidence
besmirched his character more than the evidence that he planned an armed
robbery that ultimately resulted in two deaths. Accordingly, even assuming
that the Commonwealth should have provided the notice that Appellant sought
or that the trial court’s limiting instruction suffered from some sort of
deficiency, the trial court’s admission of this one specific text message in a
string of hundreds of other text messages constitutes harmless error.
Appellant’s fourth issue contests the appropriateness of the trial court
allowing the Appellant to be repeatedly asked whether individual
Commonwealth witnesses lied during their testimonies. See Appellant’s Brief,
at 31-32. Appellant contends that asking Appellant to confirm or deny other
testimony invaded the province of the jury, as it is within its exclusive purview
to make credibility determinations. See id., at 33.
While we have held that “were they lying” questions are generally
prohibited in Pennsylvania, we have also held that asking such questions are
held to a harmless error standard. See Commonwealth v. Yockey, 158
A.3d 1246, 1256 (Pa. Super. 2017). Appellant claims that he has been
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prejudiced through the trial court allowing this type of questioning, other than
merely making bald assertions, he has not cited to any specific instance in the
record that could lead to such a finding. Even through our independent review
of the record, we were only able to find one instance that featured an objection
to an alleged “were they lying” question. See N.T., 8/29/17, at 59. The trial
court resolved this objection by directing the Commonwealth to rephrase that
specific question, and if the Commonwealth thereafter asked about the truth
of other people’s assertions, the trial court would “sustain the objection.” Id.,
at 60. Therefore, because the trial court did not adversely rule on Appellant’s
objection nor did he place any further contemporaneous objection on the
record, Appellant’s issue is waived. See Commonwealth v. Leaner, 202
A.3d 749, 771 (Pa. Super. 2019) (finding waiver of issue where appellant
failed to object at trial); see also Epstein v. Saul Ewing, LLP, 7 A.3d 303,
314 (Pa. Super. 2010) (declining to address an issue where trial ruling
benefitted appellant) . Waiver notwithstanding, we are not convinced that
any of the Commonwealth’s questions led to anything materially prejudicial to
Appellant’s defense.
Next, Appellant asserts the jury should not have been allowed to take
the cell phone records containing text messages between Appellant and
Mathesius into the deliberation room. Appellant frames the text messages as
a “recorded admission[] of his involvement in setting up an illegal drug sale.”
Appellant’s Brief, at 35. Appellant cites Pa.R.Crim.P. 646(C)(2) in support of
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his argument that during deliberations, “the jury shall not be permitted to
have a copy of any written or otherwise recorded confession by the
defendant.” Appellant’s Brief, at 36. Appellant’s concern stems from the
“prejudice that the physical presence of the recorded confession in the jury
room would lead to overemphasis of that document by the jury at the expense
of evidence presented only upon the witness stand.” Id. This argument is
subject to a harmless error analysis. See Commonwealth v. Strong, 836
A.2d 884, 888 (Pa. 2003).
Arguably, this issue is waived because Appellant failed to timely object
to the text messages going out to the jury. See Leaner, supra. However,
even addressing the issue on its merits, a confession is “an admission
consisting of a direct assertion, by the accused in a criminal case, of the main
fact charged against him or of some fact essential to the charge.”
Commonwealth v. Maloney, 73 A.2d 707, 711 (Pa. 1950) (citation and
quotation marks omitted). Here, Appellant does not demonstrate how any of
the text messages at issue constituted an admission of any element relevant
to the charges for which he was being tried. In fact, a thorough reading of
the messages leads us to conclude that none of them could possibly be
construed as admitting material facts germane to the robbery or any of the
other charges. Accordingly, as the text messages were not a “recorded
confession” within the meaning of Pa.R.Crim.P. 646(C)(2), this issue, even if
preserved, fails.
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In Appellant’s sixth issue, he challenges the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary sentencing issue[, w]e conduct a four- part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(some citations omitted; formatting altered).
Appellant filed a timely notice of appeal, properly preserved his issue by
way of post-sentence motion, and included a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of his sentence in a separate section of his brief to this Court pursuant to
Pa.R.A.P. 2119(f). Therefore, we must evaluate whether the question raised
by Appellant is a substantial question warranting our discretionary review. “A
substantial question will be found where the defendant advances a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the [Sentencing] Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009).
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In his Rule 2119(f) statement, Appellant argues that this case presents
a substantial question because “the minimum sentence imposed was
excessive due to the [t]rial [c]ourt relying on impermissible factors, mis-
characterizing permissible factors, and ignoring appropriate permissible
factors under the Sentencing Guidelines.” Appellant’s Brief, at 39. Appellant
declares that the trial court “purported to sentence within the sentencing
guidelines but applied the guidelines erroneously.” Appellant’s Brief, at 39.
For example, Appellant unambiguously asserts, inter alia, that “no
aggravating factors existed,” id., but Appellant was still sentenced at the top
of the aggravated range for some offenses. Clearly, these averments, in the
aggregate, raise substantial questions that the sentence imposed was
inconsistent with specific provisions of the Sentencing Code or violated the
fundamental norms of the sentencing process. See Commonwealth v.
Riggs, 63 A.3d 780 (Pa. Super. 2012) (indicating that an alleged failure “to
consider relevant sentencing criteria, including the protection of the public,
the gravity of the underlying offense, and the rehabilitative needs of
[a]ppellant” was a substantial question. Accordingly, we proceed to address
the merits of Appellant’s claims.
“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.” Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). “An abuse of discretion is more than just an error in judgment and,
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on appeal, the trial court will not be found to have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996). Furthermore, the
“sentencing court has broad discretion in choosing the range of permissible
confinements which best suits a particular defendant and the circumstances
surrounding his crime.” Commonwealth v. Moore, 617 A.2d 8, 12 (Pa.
Super. 1992). Thus, “our standard when reviewing the merits of the
discretionary aspects of a judgment of sentence is very narrow; this court will
reverse only where an appellant can demonstrate a manifest abuse of
discretion on the part of the sentencing judge.” Commonwealth v. Koren,
646 A.2d 1205, 1208 (Pa. Super. 1994) (emphasis added).
“Sentencing in Pennsylvania is individualized, and requires the trial court
to fashion a sentence that is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.”
Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (quotation
marks and citation omitted). “When a sentencing court has reviewed a
presentence investigation report, we presume that the court properly
considered and weighed all relevant factors in fashioning the defendant’s
sentence.” Id.
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Appellant faults the trial court’s determination that Appellant’s “actions
established a high level of criminal sophistication.” Appellant’s Brief, at 40.
He contends that this was the exclusive basis for the court’s imposition of an
aggravated sentence and therefore constitutes error. See id. Instead,
Appellant contends the situation was merely “an everyday robbery gone bad.”
Id. Building on this assertion, Appellant argues that his involvement in
planning the robbery, withholding information, and providing false information
to police in the post-robbery investigation do not warrant enhanced
sentencing.
Appellant also declares, albeit without authority, that the trial court
“failed to expressly analyze” how its findings “warranted sentences at the top
of the Aggravated Range for some offenses and near the top of the Standard
Range for others.” Id. at 42. Moreover, Appellant mentions that he had
strong familial support, was a minor student-athlete at the time of the
incident, no severe mental illness history, and that, implicitly, the impact on
the surrounding community where the event specifically occurred was
minimal, give the area’s propensity for violence. See id., at 43-44.
Further, Appellant suggests that he, as a minor when the crimes were
perpetrated, should have been treated differently at sentencing in accordance
with Miller v. Alabama. 567 U.S. 460 (2012) (holding that minors cannot
be held for a term of mandatory life imprisonment without the possibility of
parole). Appellant extends the holding of Miller to contend that his “status
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as a juvenile alone requires [him] be treated less harshly than [an] adult[]”
by way of finding that his crimes fall into the mitigated range of sentencing.
Appellant’s Brief, at 50.
Appellant also avers that the trial court failed to acknowledge many
elements contained within the pre-sentence report and fixated too much on
victim impact statements of figures only tangentially related to the victims.
See Appellant’s Brief, at 43-45. Finally, he asserts the trial court failed to
incorporate the jury’s “expressly stated request for leniency.” Id., at 45.
Thus, to Appellant, there is enough mitigating evidence to demonstrate that
his sentence should be reduced from where it currently stands.
In contrast, the Commonwealth argues that Appellant’s disposition,
including favorable factors, were all methodically considered by the trial court,
and each of the sentences received by Appellant were “in conformity with the
sentencing code as well as the sentencing guidelines” and were justified in
light of the facts of this matter. Appellee’s Brief, at 31, 33.
First, while Miller is sympathetic to the proposition that “children are
constitutionally different from adults for purposes of sentencing,” 567 U.S. at
471, the opinion concludes by stating that “a judge or jury must have the
opportunity to consider mitigating circumstances before imposing the harshest
possible penalty for juveniles.” Id., at 489. Miller’s holding is exclusively
limited to a finding that a minor receiving a sentence of lifetime incarceration
without the possibility of parole violates the Eighth Amendment’s ban on cruel
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and unusual punishment. See id. Without more, we cannot conclude that
Appellant’s sentences ran afoul of any of the principles espoused in Miller,
especially in light of the fact that Appellant was not sentenced to a term of life
imprisonment and, perhaps more importantly, the trial court did consider the
Appellant’s age and characteristics in its sentencing decision. See N.T.,
10/17/17, at 55, 58, 63.
Second, the trial court spoke at length as to its rationale behind its
sentencing decisions. See id., at 51-70. The trial court, after reviewing the
record before it, including the pre-sentence report and sentencing guidelines,
found that Appellant demonstrated “a record of a high level of criminal
sophistication in planning and the commission of the robberies. The facts
show that these robberies … were the product of concerted effort, planning
and afterward concealment.” Id., at 59-64. From its findings, the trial court
sentenced Appellant to incarceration periods “within the standard range on
each of his charges, except for the charges of conspiracy to commit robbery
and the robbery of N.R., where he was sentenced within the aggravated
range.” Trial Court Opinion, 5/23/18, at 92. The trial court’s findings are well
supported by the record and we find no abuse of discretion in its reasoning.
Third, neither the inclusion of victim impact statements, which were
submitted without objection from Appellant, see Commonwealth v. Ali, 149
A.3d 29, 38 (Pa. 2016) (indicating that if the crime is logically connected to a
community impact suffered by specific individuals, such an impact is a
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relevant consideration at sentencing), nor the jury’s request for leniency, see
Pennsylvania Suggested Criminal Jury Instructions § 2.08 (identifying the
bifurcated nature of an adjudication of guilt and an ascertainment of
punishment), warrant relief on this issue.
Accordingly, through a careful review of the trial court’s findings made
on the record during sentencing in addition to the facts that were adduced at
trial, this Court can find no manifest abuse of discretion in the trial court’s
sentencing decisions.
Appellant’s seventh issue proclaims reversible error in the trial court’s
decision to: 1) not order the total joint costs and restitution be paid jointly
and severally with Appellant’s co-defendants; and 2) not delay the collection
of monetary fines, costs, and restitution until Appellant’s release from his
prison sentence. See Appellant’s Brief, at 51. In short, Appellant “is indigent
with no assets and no source of income and is required to serve a minimum
of 34 years and a maximum of 70 years imprisonment under the sentence
order; he will never be able to repay the total of restitution from earnings in
the State Correctional Institution prior to parole.” Id., at 53. In effect, given
the fact that the Department of Corrections will deduct an amount of money
with every deposit made into his account, Appellant will not receive much
financial support from his family, knowing that a deduction will take place.
See id., at 53-54. Appellant contends these two actions were an abuse of
discretion, but has cited to no direct authority in support of either proposition.
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The law regarding restitution is clear. “The court shall order full
restitution: [r]egardless of the current financial resources of the defendant,
so as to provide the victim with the fullest compensation for the loss.” 18
Pa.C.S.A. § 1106(c)(1)(i) (formatting altered). And further, as to the actual
collection of restitution, the Department of Corrections “shall be authorized to
make monetary deductions from inmate personal accounts for the purpose of
collecting restitution.” 42 Pa.C.S.A. § 9728(b)(5).
In addition, the trial court was not required to impose restitution jointly
and severally with Reddick or Jones. Pennsylvania law already prevents a
double recovery while requiring the fullest compensation possible. See 18
Pa.C.S.A. § 1106(c), (g); Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa.
Super. 2007) (“A restitution award must not exceed the victim’s losses.”).
Also, even if the trial court had imposed the restitution as joint and several
with Appellant’s co-defendants, Appellant would still be liable for the full
amount if his co-defendants were unable to pay. See Sehl v. Neff, 26 A.3d
1130, 1133-1134 (Pa. Super. 2011). Therefore, Appellant’s joint and
severable restitution argument fails. Additionally, given the explicit
opportunity for the Department of Corrections to make monetary deductions
from an inmate’s account and without any evidence that the trial court
somehow deviated from this statutory precept, this argument, too, fails.
As such, in finding Appellant due no relief as to any of his seven issues
raised on appeal, we affirm the trial court’s judgment of sentence.
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Judgment of sentence affirmed.
Judge Lazarus joins the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/9/2019
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