Com. v. Petty, J.

• Court: Superior Court of Pennsylvania
• Decided: March 1, 2016
• Docket: 793 EDA 2015
• Status: Unpublished

Opinion

J-A28001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

JAMAL PETTY

Appellee No. 793 EDA 2015

Appeal from the Judgment of Sentence October 15, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004385-2007

BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 01, 2016

Appellant, the Commonwealth of Pennsylvania, appeals from the

judgment of sentence entered in the Philadelphia County Court of Common

Pleas, following this Court’s remand for resentencing in connection with

Appellee, Jamal Petty’s, jury trial convictions for possession of a controlled

substance with the intent to deliver (“PWID”), criminal conspiracy, and

criminal use of a communication facility.1 We affirm.

The relevant facts and procedural history of this case are as follows.

On April 21, 2005, May 4, 2005, May 18, 2005, and June 8, 2005, special

agents from the Attorney General’s Office set up controlled drug buys using

a confidential informant (“C.I.”). During each controlled buy, the agents ____________________________________________

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903; 7512, respectively. J-A28001-15

conducted surveillance and observed the C.I. meet with Paul Villari to

purchase cocaine. Each time, the C.I. gave Mr. Villari money for the drugs,

Mr. Villari would meet his supplier to obtain the drugs, and Mr. Villari would

return and deliver the drugs to the C.I. The agents’ investigation of these

controlled buys led them to the area of the Thomas Jefferson University

Hospital, where Mr. Petty (Mr. Villari’s drug dealer) would supply him with

drugs outside of the hospital.

On September 21, 2005, special agents of the Attorney General’s

Office waited outside of the hospital for Mr. Petty in an effort to converse

with him and to try to “flip” him. In other words, the agents wanted to

obtain Mr. Petty’s cooperation with their ongoing drug investigation to learn

who was supplying Mr. Petty with drugs. When the agents identified

themselves, Mr. Petty made movements toward the back of his waistband

which indicated to the agents that Mr. Petty might be reaching for a weapon.

The agents then patted-down Mr. Petty and retrieved multiple baggies of

marijuana from Mr. Petty’s person; the agents did not find any weapons.

The agents asked Mr. Petty if they could speak with him, and Mr. Petty

agreed to speak with the agents in their vehicle. The agents also asked if

they could search Mr. Petty’s backpack for weapons, and Mr. Petty

consented to the search. The agents did not discover any weapons, but they

found cocaine, marijuana, and a digital scale.

The Commonwealth subsequently charged Mr. Petty with multiple

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counts of PWID, criminal conspiracy, and criminal use of a communication

facility, in connection with the four controlled buys and the search and

seizure on September 21, 2005. Mr. Petty proceeded to a jury trial on June

26, 2008. On July 11, 2008, the jury reached its verdict. The jury acquitted

Mr. Petty of all charges related to the April 21, 2005 and May 4, 2005

controlled buys. With respect to the May 18, 2005 controlled buy, the jury

convicted Mr. Petty of PWID (cocaine), criminal use of a communication

facility, and conspiracy. Regarding the June 8, 2005 controlled buy, the jury

convicted Mr. Petty of PWID (cocaine), criminal use of a communication

facility, and conspiracy. Concerning the September 21, 2005 incident, the

jury convicted Mr. Petty of PWID (marijuana). The court deferred

sentencing until October 23, 2008.

Following the trial, the court asked the jurors to complete Jury

Selection Commission Questionnaires about their experiences as jurors. Two

unidentified jurors submitted responses indicating the court crier had given

other jury members information about Mr. Petty’s prior record and had

stated Mr. Petty was a “bad guy.” The court subsequently secured a copy of

the jury list for the attorneys and provided the attorneys with the names and

addresses of the jurors who had served on Mr. Petty’s trial, so that the

parties could investigate the matter further.

On October 23, 2008, the parties appeared before the court for the

scheduled sentencing hearing. Prior to sentencing, however, the court

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discussed the alleged jury tampering and asked if the parties had brought in

any jurors to testify. Both parties indicated they had not brought in any

jurors to testify about the alleged jury tampering and declined the court’s

opportunity for more time to contact the jurors who had served on Mr.

Petty’s trial. At that time, Mr. Petty’s trial counsel made an oral motion for

extraordinary relief requesting dismissal of all charges for which Mr. Petty

was convicted based on the alleged jury tampering. Trial counsel stated he

did not subpoena any jurors because it was “unnecessary,” as the juror

notes “[spoke] for themselves.” The Commonwealth claimed the juror notes

were merely allegations and failed to meet Mr. Petty’s burden to prove jury

tampering. At the conclusion of the hearing, the court denied Mr. Petty’s

motion for extraordinary relief, but it ordered a new trial on the charges for

which Mr. Petty had been convicted. The court determined the juror notes

constituted “hard evidence” Mr. Petty was denied a fair trial, so a new trial

was the appropriate remedy.

On June 30, 2010, this Court reversed and remanded for sentencing.

See Commonwealth v. Petty, 4 A.3d 703 (Pa.Super. 2010) (unpublished

memorandum). This Court decided the juror notes were hearsay, which did

not constitute competent evidence to prove jury tampering. See id. Mr.

Petty did not file a petition for allowance of appeal with our Supreme Court.

The trial court scheduled a sentencing hearing for January 14, 2011.

At the commencement of the hearing, Mr. Petty made another motion for

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extraordinary relief pursuant to Pa.R.Crim.P. 704(B)2 seeking judgment of

acquittal on all charges for which he was convicted, again based on the

alleged jury tampering. Alternatively, trial counsel asked the court to

appoint new counsel for Mr. Petty, to file a petition for allowance of appeal

nunc pro tunc from this Court’s June 30, 2010 decision. Trial counsel

explained he had been privately retained to represent Mr. Petty at his

preliminary hearing and at trial. Trial counsel stated he represented Mr.

Petty on appeal even though Mr. Petty was out of funds to pay for legal

services, and trial counsel did not file a petition for allowance of appeal due

to Mr. Petty’s financial inability to pay. The court held Mr. Petty’s motion for

extraordinary relief under advisement and said it would appoint new counsel

to investigate trial counsel’s potential ineffectiveness for, inter alia, failing to

file a petition for allowance of appeal on behalf of Mr. Petty and declining to

subpoena and call jurors as witnesses at the originally scheduled October 23,

2008 sentencing hearing.

Due to the court’s failure to sentence Mr. Petty at the January 14,

2011 hearing, the Commonwealth filed an application in this Court on

February 9, 2011, seeking enforcement of this Court’s June 30, 2010

decision, pursuant to Pa.R.A.P. 2591(b) (stating: “At any time, upon its own ____________________________________________

2 See Pa.R.Crim.P. 704(B)(1) (stating: “Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial”).

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motion or upon application, an appellate court may issue any appropriate

order requiring obedience to or otherwise enforcing its judgment or other

order”). This Court granted the Commonwealth’s application on March 2,

2011. This Court’s order expressly prohibited the trial court from

undertaking any collateral proceedings, including investigation of the

ineffective assistance of counsel, which must be raised in a Post Conviction

Relief Act (“PCRA”)3 petition following sentencing.

On April 1, 2011, the parties appeared for sentencing. The

Commonwealth informed the court certain mandatory minimum sentences

applied to Mr. Petty’s case. Specifically, the PWID conviction for the May 18,

2005 controlled buy carried a three (3) year mandatory minimum sentence

(see 18 Pa.C.S.A. § 7508(a)(3)(ii) (PWID for cocaine between 10-100

grams)); and the PWID conviction for the June 8, 2005 controlled buy

carried a seven (7) year mandatory minimum sentence (see 18 Pa.C.S.A. §

7508(a)(3)(iii) (PWID for cocaine over 100 grams, where defendant has

been convicted of another drug trafficking offense)). Consistent with those

mandatory minimum sentences, the court sentenced Mr. Petty to three (3)

to six (6) years’ imprisonment for the PWID conviction related to the May

18, 2005 controlled buy, and seven (7) to fourteen (14) years’ imprisonment

for the PWID conviction related to the June 8, 2005 controlled buy. The

____________________________________________

3 42 Pa.C.S.A. §§ 9541-9546.

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court sentenced Mr. Petty to one (1) year of probation for the PWID

(marijuana) conviction related to the September 21, 2005 incident.

Regarding Mr. Petty’s criminal use of a communication facility and conspiracy

convictions, the court sentenced Mr. Petty to three (3) years’ probation for

each conviction. The court imposed all sentences concurrently. The court

also imposed the mandatory $50,000.00 fine under Section 7508(a)(3)(iii).

The court stayed the sentence pending post-sentence motions. The court

also permitted trial counsel to withdraw from the case and appointed new

counsel (“replacement counsel”) to represent Mr. Petty.4

On April 11, 2011, Mr. Petty timely filed a post-sentence motion

requesting additional time to file a supplemental post-sentence motion after

receipt of the relevant notes of testimony. The court did not rule on the

motion. Mr. Petty filed a supplemental post-sentence motion on March 23,

2012, indicating replacement counsel had received the relevant notes of

testimony but had not received transcription of audio tapes presented at

trial. Replacement counsel requested transcription of the audio tapes.

Replacement counsel also challenged, inter alia, the weight and sufficiency

of the evidence produced at trial and trial counsel’s effectiveness. Mr. Petty

filed a supplement to his supplemental post-sentence motion on March 27, ____________________________________________

4 Notwithstanding the court’s indication at the January 14, 2011 sentencing hearing, that it was appointing new counsel to represent Mr. Petty, trial counsel remained counsel of record for Mr. Petty until sentencing on April 1, 2011.

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2012. Meanwhile, Mr. Petty also filed a PCRA petition asserting trial

counsel’s ineffectiveness for failing to file a petition for allowance of appeal

with our Supreme Court from this Court’s June 30, 2010 decision, and

requesting reinstatement of Mr. Petty’s right to file a petition for allowance

of appeal nunc pro tunc. Due to the fact that Mr. Petty still had not begun

serving his sentence, the Commonwealth filed a motion to revoke bail and to

order Mr. Petty to commence serving his sentence.

On April 9, 2012, the court held a hearing regarding the parties’

respective filings. The Commonwealth alleged the court lacked jurisdiction

to rule on Mr. Petty’s post-sentence motions because the 120-day timeframe

had expired,5 so the Commonwealth submitted Mr. Petty’s post-sentence

motions were effectively denied by operation of law. The Commonwealth

also maintained the court lacked jurisdiction to entertain Mr. Petty’s PCRA

claims because Mr. Petty had not begun serving his sentence, so he was

ineligible for PCRA relief. The court disagreed with the Commonwealth’s

contentions and scheduled a hearing for Mr. Petty’s post-sentence motions.

On December 10, 2012, the parties appeared for the hearing on Mr.

Petty’s post-sentence motions. Prior to the hearing, the Commonwealth

again submitted that the court lacked jurisdiction to rule on the post-

sentence motions and requested that the trial court direct the Clerk of ____________________________________________

5 See Pa.R.Crim.P. 720(B)(3) (discussing time limits for decision on post- sentence motions).

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Courts to issue an order denying the post-sentence motions by operation of

law. The court denied the Commonwealth’s request. Replacement counsel

stated she had no notice from the Clerk of Courts that the post-sentence

motions had been denied by operation of law and wanted to proceed with

the hearing. Replacement counsel presented two witnesses at the hearing

who offered character testimony on Mr. Petty’s behalf.

On January 24, 2013, Mr. Petty filed an amended PCRA petition. The

court held another hearing on Mr. Petty’s post-sentence motions on January

28, 2013. Replacement counsel presented two more witnesses who offered

character testimony on Mr. Petty’s behalf. Replacement counsel then called

trial counsel to testify about, inter alia, his decisions not to call character

witnesses at Mr. Petty’s trial or subpoena jurors for the originally scheduled

October 23, 2008 sentencing hearing or file a petition for allowance of

appeal on Mr. Petty’s behalf from this Court’s June 30, 2010 decision. At the

conclusion of the hearing, the court took the post-sentence motions under

advisement.

On April 1, 2013, the parties appeared for another hearing.

Significantly, the parties stipulated that the Clerk of Courts had failed to

issue an order denying the post-sentence motions by operation of law, and

the trial court should issue an order deeming the post-sentence motions

denied by operation of law. The court accepted the parties’ stipulation and

issued an order deeming the post-sentence motions denied by operation of

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law on April 1, 2013. The parties also stipulated that the court should

dismiss the PCRA filings without prejudice for Mr. Petty to file subsequent

PCRA petitions following a direct appeal; and that the hearings held

December 10, 2012 and January 28, 2013, shall constitute evidence for any

subsequent PCRA proceedings. The court accepted the parties’ stipulations

and permitted Mr. Petty to continue to remain on bail, with his sentence

stayed, pending direct appeal from the judgment of sentence. The court

expressed its belief that Mr. Petty should remain on bail due to some “good

appellate issues,” particularly with regard to the alleged jury tampering.

On April 26, 2013, Mr. Petty timely filed a direct appeal challenging the

weight and sufficiency of the evidence produced at trial, the denial of his

pre-trial suppression motion, and the legality of his sentence. This Court

vacated and remanded for resentencing on June 20, 2014, based on the trial

court’s imposition of mandatory minimum sentences as inconsistent with

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013) (holding any fact increasing mandatory minimum sentence for crime

is considered element of crime to be submitted to fact-finder and found

beyond reasonable doubt). See Commonwealth v. Petty, 2014 WL

10919350 (Pa.Super. June 20, 2014) (unpublished memorandum)

(concluding imposition of mandatory minimum sentences for Mr. Petty’s

PWID (cocaine) convictions violated Alleyne, where jury made no

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determination regarding weight of drugs).6 Based on this Court’s

disposition, it declined to address any of Mr. Petty’s other claims on appeal.

On October 15, 2014, the parties appeared for resentencing.

Replacement counsel acknowledged the court had the benefit of a pre-

sentence investigation (“PSI”) report. Replacement counsel also discussed

Mr. Petty’s family history and prior employment. Replacement counsel

offered as exhibits photographs of Mr. Petty and his family and letters from

Mr. Petty’s friends and family. Replacement counsel indicated several

witnesses were present at the hearing who wished to testify about Mr.

Petty’s good character.

The Commonwealth stressed that Mr. Petty has continued to escape

serving his sentence throughout these proceedings. The Commonwealth

also highlighted that Mr. Villari (Mr. Petty’s cohort) pled guilty to PWID and

conspiracy, and received a four (4) to eight (8) year sentence. The

Commonwealth argued Mr. Petty should receive a harsher sentence than Mr.

Villari, as Mr. Petty supplied the drugs to Mr. Villari, who was merely the

middleman. The Commonwealth set forth the applicable sentencing

guidelines and recommended an aggregate seven (7) year minimum

sentence. During the course of the hearing, replacement counsel made ____________________________________________

6 This Court subsequently declared the mandatory minimum statute at issue, 18 Pa.C.S.A. § 7508, unconstitutional in its entirety. See Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 2014), appeal denied, ___ Pa. ___, 121 A.3d 494 (2015).

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reference to the alleged jury tampering in this case. The court

acknowledged the alleged jury tampering; and the Commonwealth made an

oral motion for the court to recuse itself, based on the court’s purported

inability to separate the alleged jury tampering from the resentencing

proceedings. The court did not expressly rule on the motion, and the

hearing continued.

Mr. Petty testified about his employment, family life, contributions to

the community, and personal growth since the time of trial. Mr. Petty

requested leniency in sentencing so he could continue to take care of his

family. The court also heard testimony from Mr. Petty’s character witnesses.

At the conclusion of the hearing, the court sentenced Mr. Petty to

eleven and one-half (11½) to twenty-three (23) months’ imprisonment, plus

one (1) year of probation, for each of Mr. Petty’s convictions. The court

imposed all sentences concurrently. The court also granted Mr. Petty

immediate parole, with telephone reporting probation once a month. The

court waived the supervision fee and did not impose any fines. The court

stated:

Because he has his children and he’s working—he seems to be a hard worker. He’s taking care of four kids. He seems to have made a turnaround in life. He has character witnesses who have come here and spoken highly of him.

People do make mistakes in life. However, people also deserve to have a second chance in life, and I try to do that. I believe he’s going to be a law-abiding citizen for the rest of his life. I took into consideration that he’s had

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the sword of Damocles hanging over his head for the last seven years, and that was worth a lot.

And that’s why I made the probation so short, because, in my opinion, he’s been on probation for the last seven years.

(N.T. Resentencing Hearing, October 15, 2014, at 51-52; R.R. at 188).

On October 25, 2014, the Commonwealth timely filed a post-sentence

motion, which the court denied on February 26, 2015. The Commonwealth

timely filed a notice of appeal on March 16, 2015. On March 24, 2015, the

court ordered the Commonwealth to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), which the

Commonwealth timely filed on March 30, 2015.

The Commonwealth raises one issue for our review:

WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION BY IMPOSING AN EXCESSIVELY LENIENT SENTENCE WHICH UNREASONABLY DEVIATED FROM THE SENTENCING GUIDELINES, FAILED TO ADEQUATELY EXPLAIN ITS REASONS FOR GUIDELINE DEPARTURE AND DISPARATE SENTENCING OF THE CO-DEFENDANT AND THE SENTENCE WAS MOTIVATED BY BIAS?

(Commonwealth’s Brief at 4).

The Commonwealth argues the court’s sentence was excessively

lenient and an unreasonable deviation from the sentencing guidelines. The

Commonwealth asserts Mr. Petty served only twenty-seven days in jail from

the date of his arrest until the date he posted bail. The Commonwealth

emphasizes that the court also waived the supervision fees, did not order

Mr. Petty to pay a fine, and directed that Mr. Petty be placed on monthly

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telephone reporting probation. The Commonwealth stresses the court failed

to acknowledge its departure from the guidelines and did not provide

adequate reasons for its extreme deviation from the guidelines. The

Commonwealth suggests the court’s remarks on-the-record after it had

already sentenced Mr. Petty related only to why the trial court imposed such

a short probationary period, but not why the court deviated drastically from

the sentencing guidelines. The Commonwealth suggests the court also

lacked authority to grant Mr. Petty immediate parole, prior to the expiration

of his minimum sentence.

The Commonwealth further argues the court did not articulate any

reasons to justify its disparate sentences for Mr. Petty and his cohort, Mr.

Villari. The Commonwealth asserts Mr. Villari pled guilty on June 23, 2008,

to PWID and conspiracy, and received an aggregate sentence of four to eight

years’ imprisonment. The Commonwealth maintains Mr. Petty was the drug

supplier and Mr. Villari was just a lower level drug dealer. Although the

Commonwealth discussed Mr. Villari’s sentence at Mr. Petty’s resentencing

hearing, the court ignored the Commonwealth’s position that Mr. Petty

should receive a harsher sentence than Mr. Villari. The Commonwealth

claims the sentencing disparity is particularly troubling, given the fact that

Mr. Villari was less culpable than Mr. Petty and took responsibility for his

actions by entering a guilty plea.

The Commonwealth also insists the record demonstrates the trial

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court’s bias in favor of Mr. Petty throughout these proceedings. The

Commonwealth submits the court accepted as fact the content of the juror

notes in this case and determined jury tampering took place, despite the

Superior Court’s decision reversing the award of a new trial. The

Commonwealth emphasizes that the trial court refused to sentence Mr. Petty

immediately upon remand. Instead, the Commonwealth insists the court

took under advisement Mr. Petty’s second motion for extraordinary relief,

made orally at the January 14, 2011 sentencing hearing, which raised the

same issue regarding jury tampering that the Superior Court had already

decided. The Commonwealth submits the court indicated it would appoint

new counsel to investigate PCRA issues, disregarding the Commonwealth’s

argument that Mr. Petty was ineligible for PCRA relief as he had not yet been

sentenced. The Commonwealth insists the trial court’s failure to sentence

Mr. Petty in a timely manner compelled the Commonwealth to file an

application for enforcement of the Superior Court’s June 30, 2010 decision.

The Commonwealth contends the court exhibited its bias once again

when it immediately stayed Mr. Petty’s sentence on April 1, 2011. The

Commonwealth avers the court also ignored the Rules of Criminal Procedure

regarding post-sentence motions by holding evidentiary hearings on the

post-sentence motions far beyond the applicable timeframe in which to rule

on them. The Commonwealth submits the court further displayed its bias

when it stated at the April 1, 2013 hearing that Mr. Petty had a “good

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appellate issue” regarding the jury tampering allegations, when the Superior

Court had already decided that issue. The Commonwealth declares the

court’s leniency upon resentencing, coupled with the grant of immediate

parole, imposition of no fines, waiver of supervision fees, and short

telephone-reporting probationary term, demonstrate the bias that motivated

the court’s sentence.

The Commonwealth concludes the court imposed an excessively

lenient sentence which unreasonably deviated from the sentencing

guidelines, the court failed to state adequate reasons for the guideline

departure, the court did not acknowledge the disparity in sentences between

Mr. Petty and his cohort, the court’s sentence was motivated by bias, and

this Court must vacate and remand for resentencing before a different jurist.

As presented, the Commonwealth’s claims implicate the discretionary

aspects of sentencing. See Commonwealth v. Antidormi, 84 A.3d 736

(Pa.Super. 2014), appeal denied, 626 Pa. 681, 95 A.3d 275 (2014) (stating

claims that court imposed sentence outside of sentencing guidelines without

stating adequate reasons for sentence imposed implicates discretionary

aspects of sentencing); Commonwealth v. Corley, 31 A.3d 293 (Pa.Super.

2011) (explaining allegation that court’s sentence was motivated by bias

challenges discretionary aspects of sentencing); Commonwealth v.

Cleveland, 703 A.2d 1046 (Pa.Super. 1997), appeal denied, 555 Pa. 739,

725 A.2d 1218 (1998) (reasoning claim of unexplained disparity between

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appellant’s and his co-defendant’s sentences challenges court’s sentencing

discretion); Commonwealth v. Moore, 617 A.2d 8 (Pa.Super. 1992)

(explaining Commonwealth’s claim that sentence imposed was excessively

lenient and clearly unreasonable under facts and circumstances of case

presents discretionary sentencing challenge).

A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979

(2001). 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are waived if they are

not raised at the sentencing hearing or in a timely filed post-sentence

motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013).

What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007).

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A substantial question exists “only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.”

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal

citation omitted). In other words, an appellant’s Rule 2119(f) statement

must sufficiently articulate the manner in which the sentence violates either

a specific provision of the sentencing scheme set forth in the Sentencing

Code or a particular fundamental norm underlying the sentencing process.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

On appeal, this Court will not disturb the judgment of the sentencing

court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d

843 (Pa.Super. 2006).

[A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not 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. In more expansive terms, …: 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.

The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Simply stated, the sentencing court sentences flesh- and-blood defendants and the nuances of sentencing

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decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed. Even with the advent of the sentencing guidelines, the power of sentencing is a function to be performed by the sentencing court. Thus, rather than cabin the exercise of a sentencing court’s discretion, the guidelines merely inform the sentencing decision.

* * *

[W]e reaffirm that the guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors—they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence. …

Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65

(2007) (internal quotation marks, footnotes, and citations omitted).

Furthermore, in exercising its discretion, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence that takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as the court also states of record the factual basis and specific reasons which compelled the deviation from the guidelines. This Court must remand for resentencing with instructions if we find that the sentencing court sentenced outside the guidelines and the sentence was unreasonable.

Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001), appeal

denied, 568 Pa. 695, 796 A.2d 979 (2002) (internal citations omitted).

Pursuant to Section 9721(b), “the court shall follow the general

principle that the sentence imposed should call for confinement that is

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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.” 42 Pa.C.S.A. § 9721(b). “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question….” Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010). Rather, the record as a whole must reflect the sentencing court’s

consideration of the facts of the case and the defendant’s character. Id.

See also Commonwealth v. Fowler, 893 A.2d 758 (Pa.Super. 2006)

(stating where sentencing court had benefit of PSI report, we can presume it

was aware of relevant information regarding defendant’s character and

weighed those considerations along with mitigating statutory factors).

Additionally, we observe:

[G]enerally…issues not raised in a Rule 1925(b) statement will be deemed waived for review. An appellant’s concise statement must properly specify the error to be addressed on appeal. In other words, the Rule 1925(b) statement must be “specific enough for the trial court to identify and address the issue [an appellant] wishe[s] to raise on appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). “[A] [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all.” Id. The court’s review and legal analysis can be

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fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (some internal citations omitted).

See also Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005)

(holding issues not raised in Rule 1925(b) statement are waived on appeal).

Instantly, the Commonwealth raised the following issues in its Rule

1925(b) statement: (1) the court abused its discretion by imposing an

excessively lenient sentence and unreasonably deviated from the sentencing

guidelines; (2) the court failed to adequately explain the reasons for

departing from the sentencing guidelines; and (3) the court’s sentence

compromised the sentencing scheme as a whole, was inconsistent with the

Sentencing Code and the sentence was contrary to the fundamental norms

of sentencing. (See Commonwealth’s Rule 1925(b) Statement, filed March

30, 2015, at 1-2.) Significantly, the Commonwealth did not include in its

Rule 1925(b) statement its claims on appeal that the court failed to explain

the disparity in sentences between Mr. Petty and Mr. Villari or that the

court’s sentence was motivated by bias. Thus, the disparity and bias claims

are waived.7 See Castillo, supra. Notably, the trial court did not address

7 Additionally, the Commonwealth failed to articulate these precise claims of error in its post-sentence motion. (See Commonwealth’s Post-Sentence Motion, filed October 25, 2014, at 3.) See also Griffin, supra. Instead, (Footnote Continued Next Page)

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these complaints in its Rule 1925(a) opinion. Consequently, to the extent

the Commonwealth purported to include these claims within its statement

that “the court’s sentence compromised the sentencing scheme as a whole,

was inconsistent with the Sentencing Code and the sentence was contrary to

the fundamental norms of sentencing,” the Commonwealth’s Rule 1925(b)

statement was too vague to allow the court to identify those issues,

constituting waiver. See Hansley, supra.

The Commonwealth’s remaining claims of leniency and failure to state

adequate reasons for the guideline departure present substantial questions

which warrant our review. See Antidormi, supra (explaining allegation

sentencing court imposed sentence outside of guidelines without stating

adequate reasons on record presents substantial question); Kenner, supra

(stating Commonwealth’s claim sentence imposed was excessively lenient

and unreasonably deviated from guidelines raises substantial question).

_______________________ (Footnote Continued)

the Commonwealth sought to incorporate these claims in its post-sentence motion by reference to the arguments it made at the resentencing hearing. Nevertheless, Pennsylvania law disapproves of “incorporation by reference” in legal filings. See, e.g., Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291 (2011), cert. denied, ___ U.S. ___, 132 S.Ct. 267, 181 L.Ed.2d 157 (2011) (stating “incorporation by reference” is unacceptable manner of appellate advocacy for proper presentation of claim for relief); Commonwealth v. Smith, 955 A.2d 391, 393 n.5 (Pa.Super. 2008) (en banc) (stating: “We do not condone the Commonwealth’s incorporation by reference of its motion for reconsideration” in its Rule 1925(b) statement). Consequently, the Commonwealth’s claims regarding the disparity in sentencing and the court’s alleged bias are arguably waived on this basis as well.

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In analyzing the Commonwealth’s sentencing challenges, the trial

court reasoned:

This [c]ourt was well aware of the Sentencing Guidelines at the time it sentenced [Mr. Petty]. As can be seen from the record, the guidelines were laid out by the Commonwealth, and this [c]ourt acknowledged that its sentence deviated from the guidelines. This [c]ourt heard lengthy arguments from both [replacement counsel] and the Commonwealth as well as testimony from [Mr. Petty’s] wife, Ebony Pitts, and [Mr. Petty] himself. In addition to Ms. Pitts, [Mr. Petty’s] sister, Ms. Pitts’ father and stepmother, and Ms. Pitts’ mother were present to support [Mr. Petty] and offer testimony on his behalf. This [c]ourt also considered letters, affidavits, and photographs attached to [Mr. Petty’s] Resentencing Memorandum of Law, which was submitted by [replacement counsel] during the hearing and is attached as Exhibit A. This [c]ourt heard testimony that [Mr. Petty] and his wife have four children, including two of Ms. Pitts’ children from previous relationships. By all accounts, [Mr. Petty] has supported his step-children and raised them as his own since becoming involved with Ms. Pitts. [Mr. Petty] works two jobs to support his family, as his wife has medical problems that prevent her from working. Ms. Pitts’ mother, Ms. Marshall, testified that [Mr. Petty] is a good person who took care of her after she had a stroke.

At the time of [resentencing], this [c]ourt noted that [Mr. Petty] is a hard worker, and that he will likely be a law- abiding citizen going forward. This [c]ourt was particularly impressed by the efforts [Mr. Petty] has made to improve his life since his arrest in 2007, and by [Mr. Petty’s] family support. This [c]ourt also took into consideration that, at the time of sentencing, [Mr. Petty’s] case had been ongoing for approximately 7 years, during which time [Mr. Petty] has had no additional contacts with the criminal justice system.

Based on the foregoing, it is clear that this [c]ourt did properly consider the guidelines when fashioning [Mr. Petty’s] sentence, and that its deviation, though significant, was not “unreasonable” or without adequate

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explanation. As such, the sentence of this [c]ourt must stand.

(Trial Court Opinion, filed May 18, 2015, at 6-7) (internal citations omitted).

We see no reason to disrupt the court’s broad sentencing discretion. See

Walls, supra; Fullin, supra; Kenner, supra.

The record confirms the Commonwealth set forth the applicable

sentencing guidelines at the resentencing hearing, and the court chose to

deviate from those guidelines. The court remarked that Mr. Petty has

children and was working hard to support his family. The court

acknowledged Mr. Petty’s character witnesses who spoke highly on his

behalf. The court expressed its belief that Mr. Petty had “made a turnaround

in life” and would “be a law-abiding citizen for the rest of his life.” (See N.T.

Resentencing Hearing at 51-52; R.R. at 188.) The court also emphasized

the fact that Mr. Petty had the weight of these proceedings on his shoulders

for seven years, “and that was worth a lot.” (See id.) The court’s

statements at the time of resentencing make clear the court gave due

consideration to the facts of this case and to Mr. Petty’s character, and

provided reasons for its deviation from the guidelines.8 See Crump, supra;

Kenner, supra. See also Walls, supra.

Additionally, the jurist who presided over Mr. Petty’s resentencing

8 We reject the Commonwealth’s position that the court’s remarks pertained solely to why the court imposed such a short probationary term.

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proceeding also presided over Mr. Petty’s trial and all proceedings since the

2008 trial. Thus, the court was well aware of the circumstances of this case,

the nature of the offenses at issue, Mr. Petty’s rehabilitative needs, and the

gravity of the offenses as they relate to the impact on the community. See

Kenner, supra; 42 Pa.C.S.A. § 9721(b). The court also had the benefit of a

PSI report, so we can presume the court was aware of relevant information

regarding Mr. Petty’s character and weighed those considerations along with

mitigating factors. See Fowler, supra. Given the circumstances of this

case and in light of the court’s remarks at the resentencing hearing and in

its Rule 1925(a) opinion, we cannot say the court’s sentence was

“unreasonable.”9 See Kenner, supra. Therefore, the Commonwealth’s

challenge to the court’s sentencing discretion merits no relief. See Walls,

supra; Fullin, supra; Kenner, supra. Accordingly, we affirm.

Judgment of sentence affirmed.

9 Further, the trial court had authority to grant Mr. Petty immediate parole where the court imposed a maximum term of imprisonment that was less than two years. See 61 Pa.C.S.A. § 6132(a), (b) (stating parole board shall have exclusive power to parole and re-parole; except for special cases, powers and duties conferred by this section shall not extend to persons sentenced for maximum period of less than two years; nothing in this section shall be construed to prevent trial court from paroling any person sentenced by it for maximum period of less than two years).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/1/2016

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