J-S21016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DONNIE RUDOLPH
Appellant No. 672 EDA 2014
Appeal from the Judgment of Sentence February 20, 2014 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005455-2011
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED APRIL 27, 2015
Donnie Rudolph (“Appellant”) appeals the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
conviction for possession of a controlled substance with intent to deliver,1
and conspiracy to deliver a controlled substance.2 We affirm.
The trial court set forth the procedural posture of this matter as
follows:
On December 9, 2013, in a jury trial [], [Appellant] was tried in absentia and found guilty of [p]ossession with [i]ntent to [d]eliver a [c]ontrolled [s]ubstance, crack cocaine, and ____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. § 780-113(a)(30). 2 18 Pa.C.S. § 903. J-S21016-15
[c]riminal [c]onspiracy to [d]eliver [c]rack [c]ocaine. On February 4, 2014, this [c]ourt sentenced the Appellant to forty- two (42) to one-hundred and twenty (120) months of incarceration for [p]ossession with [i]ntent to [d]eliver a controlled substance and a consecutive thirty-three (33) to ninety (90) months of incarceration for [c]onspiracy to [d]eliver a controlled substance. The Appellant was also sentenced to a consecutive three (3) to six (6) months of incarceration for contempt of court for failing to appear for trial. In total, this [c]ourt sentenced Appellant to seventy-eight (78) to two- hundred and sixteen (216) months of incarceration.
On February 7, 2014, [trial counsel] filed a Motion for Reconsideration of Sentence on behalf of Appellant, which this [c]ourt denied on February 20, 2014. On February 25, 2014, [trial counsel] filed a timely Notice of Appeal. On March 4, 2014, this [c]ourt ordered the Appellant to file a Statement of Errors Complained [of] on Appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one (21) days. [Trial counsel] subsequently withdrew from representation of the Appellant. On April 4, 2011, this [c]ourt appointed [appellate counsel] to represent the Appellant for his appeal. On May 16, 2014, [appellate counsel], on behalf of the Appellant, filed a Statement of Errors Complained of on Appeal[.]
Trial Court Pa.R.A.P. 1925(a) Opinion, field October 21, 2014, pp. 1-2
(footnote omitted).
Appellant raises the following issues for our review:
I. Is the [A]ppellant entitled to a new sentenc[ing] hearing because the sentence imposed by the trial court of 6 years, 3 months to 17 years, 5 months in prison is unreasonable?
II. Did the trial court err in trying the [A]ppellant in absentia because the Commonwealth did not prove by a preponderance of the evidence that [Appellant] willfully, voluntarily and without ca[u]se absented himself from the trial?
III. Was the evidence insufficient to find the [A]ppellant guilty of [p]ossession of a controlled substance with intent to deliver because at most the evidence showed that the [A]ppellant was a purchaser of illegal drugs not a seller of illegal drugs?
-2- J-S21016-15
IV. Was the evidence insufficient to find the [A]ppellant guilty of [c]onspiracy to distribute drugs because at most the evidence showed that the [A]ppellant was a purchaser of illegal drugs, but did not enter into an agreement to distribute or sell illegal drugs?
Appellant’s Brief, p. 2.
Regarding Appellant’s discretionary aspects of sentencing claim, we
observe:
[T]he proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. ...[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, our Court recently offered: 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.
Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super.2010)
(internal citations omitted).
Further, we note that “[c]hallenges to the discretionary aspects of
sentencing do not entitle a petitioner to review as of right.”
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before
this Court can address such a discretionary challenge, an appellant must
comply with the following requirements:
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An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: (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.
Allen, 24 A.3d at 1064.
Here, Appellant filed a timely notice of appeal, and preserved his
issues in a post-sentence motion. Further, Appellant’s brief includes a
concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p. 3. Further,
Appellant has raised a substantial question for our review. See
Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super.2002) (holding a
“claim that the sentencing court imposed an unreasonable sentence by
sentencing outside the guideline ranges presents a ‘substantial question’ for
the Superior Court’s review.”). Thus, we can properly address Appellant’s
sentencing claim on appeal.3
____________________________________________
3 We acknowledge and appreciate the Commonwealth’s argument that Appellant submitted a deficient Pa.R.A.P. 2119(f) statement. See Commonwealth’s Brief, pp. 7-8. However, since the 2119(f) statement succeeds in articulating the substantial question of whether the trial court sentenced in the aggravated range without providing adequate reasons therefor, we will review the claim despite the deficiencies noted by the Commonwealth.
-4- J-S21016-15
We review discretionary aspects of sentence claims under the following
standard of review:
If this Court grants appeal and reviews the sentence, the standard of review is well-settled: sentencing is vested in the discretion of the trial court, and will not be disturbed absent a manifest abuse of that discretion. An abuse of discretion involves a sentence which was manifestly unreasonable, or which resulted from partiality, prejudice, bias or ill will. It is more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53
(Pa.Super.2006) (citations omitted).
This Court reviews a trial court’s determination to proceed with a trial
in absentia for an abuse of discretion. Commonwealth v. Wilson, 712
A.2d 735, 738 (Pa.1998). An appellant who claims the trial court improperly
tried him in absentia bears the burden of establishing that his absence was
with cause. Commonwealth v. Johnson, 764 A.2d 1094, 1097
(Pa.Super.2000).
Additionally, when examining a challenge to the sufficiency of
evidence, our standard of review is 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
-5- J-S21016-15
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 [trier] 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Chris R.
Wogan, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses the pertinent law and facts, and properly
disposes of the questions presented. (See Trial Court Opinion, dated
October 21, 2014, at 2-5, 7-21) (finding: (1) the court properly tried
Appellant in absentia where Appellant was a fugitive for 22 months and
failed to give any credible reason for failing to appear in court; (2) the
evidence was sufficient to convict Appellant of possession of a controlled
substance with intent to deliver and conspiracy to deliver a controlled
substance where the evidence illustrated police observed Appellant and a co-
defendant working together to conduct hand-to-hand drug sales on a street
corner; and (3) the court properly deviated from the sentencing guidelines
and imposed consecutive sentences on Appellant after reviewing the
presentence investigation report, examining the aggravating factors
-6- J-S21016-15
involved, and considering Appellant’s age, family history, and rehabilitative
needs). Accordingly, we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/27/2015
-7- ) Circulated 03/31/2015 04:02 PM
IN TSE COURT or COMMON PLEAS OF PH'ILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0005455-2011 CP-51-CR-0005455-2011 Comm. v. Rudolph, Oon~le OpinK>n
11111111111111Bii 111111 SUPERIOR COURT 7213236751 672 EDA 2014 DO~IE RUDOLPH
OP I.N. l O.N FILED CHRIS R. WOGAN, J. ocr2 1 2014 . Fi' . mm.a!Appea1s U . Cri · Procadural Posture lrSfJLJd/C/BI Q' f · n,f --------·- is net ofPA On December 9, 2013, in a jury trial before The Honorable
Chris R. Wogan, the Appellant, Donnie Rudolph, was tried in
absentia and found guilty of Possession with Intent to Deiiver a
Controlled Substance, crack cocaine, and Criminal Conspiracy to
Deliver Crack Cocaine.1 on February 4, 2014, this Court sentenced
the Appellant to forty-two (42) to one-hundred and twenty _(120)
months of incarceration for Possession with Intent to Deliver a
controlled substance and a c6nsecutive thirty-three (33) to
ninety (90) months of incircetation for Conspiracy to Deliver a
controlled substance. The Appellant was also sentenced to a
consecutive three (3) to six (6) months of incarceration for
contempt of court for failing to appear for triai. In total,
1The defendant was represented by Dolores Bbjazi, Esq. at trial.
1 Circulated 03/31/2015 04:02 PM
this Court sentenced the Appellant to seventy-eight (78) to two-
hundred and sixteen (216) months of incarceration.
On February 7, 2014 Ms. Bojazi filed a Motion for
Reconsideration of Sentence on behalf of the Appellant, which
this Court denied on February 20, 2014. On February 25, 2014,
Ms. Bojazi filed a timely Notice of Appeal. On March 4, 2014,
this Court ordered the Appellant to file a Statement of Errors
Complained on Appeal pursuant to Pa. R.A.P. 1925(b) within
twenty-one (21) days. Ms. Bojazi subsequently withdrew from
representation of the Appellant. On April 4, 2011, this Court
appointed John Cotter, Esq. to represent the Appellant for his
appeal. On May 16, 2014, Mr~ Cotter, on behalf of the
Appellant, filed a Statement of Errors Complained of on Appeal,
listing five appellate issues. No relief is due.
Discussion
A. Appellant's first error complained of on appeal is: "The trial court erred in trying the Appellant in absentia. The Appellant did not voluntarily absent himself from trial. The Appellant was not absent without cause froin his trial."
This Court did not err in trying the Appellant in absentia
due to the fact that the Appellant was voluntarily absent
without cause from his trial. Rule 602 of the Pennsylvania
Rules of Criminal Procedure provides that "the Appellant's
absence without cause at the time scheduled for the start of
2 Circulated 03/31/2015 04:02 PM
trial or during trial shall not preclude proceeding with the
trial, including the return of the verdict and the imposition of
sentence." Pa. R. Crim. P 602. Furthermore; the Supreme Court
of Pennsylvani~ has held that "whert a defend~nt is absent
without cause at the time his trial is scheduled to begin, he
may be tried in absentia." Com.. v .. Sullens, 533 Pa. 99, 104
(1992).
With the exception of situations in which the defendant is
prevented from attending the proceedings for reasons beyond his
other control, the defendant is expected to be present at all
stages of trial. Com. v. Wilson, 551 Pa. 593, 600 (1998).
Moreover, a "defendant owes the court an affirmative duty to
advise [the court] if he or she will be absent" and "if a
defendant has a valid reason for failing to appear ... then the
defendant can alert the court personally or through counsel of
the problem." Id. In the case of Comm. v. Wilson, the Supreme
Court of Pennsylvania upheld a lower court's decision to try a
defendant in absentia when there was proof that the defendant
knew the date and time of the trial, and the defendant had
attended court proceedings leading up to the commencement of the
trial. Id. The court found those two f~cts to be sufficient to
show that the defendant voluntarily absented himself from trial.
Id.
3 Circulated 03/31/2015 04:02 PM
The Appellant was a fugitive for approximately twenty-two
(22} months and failed to give any credible reason for failing
to appear in court.2 He claimed that a "fire" prevented him from
showing up for court for twenty-two months; however, this Court
found this to be ridiculous. When the Court asked the Appellant
for details regarding the fire, the Appellant was unable to
identify when the fire took place or even give a location of
where the supposed fire took place. The Appellant went on
further to bizarrely blame his lack of attendance on the
authorities for failing to find him while he was a fugitive!
N.T. 02/04/2014 pg. 9-12. Additionally, the Appellant was aware
of his trial date and time, and the Appellant had attended
previously scheduled court prbceedings.3 Furthermore, the
Appellant argued he was unable to attend his court dates because
he was caring for his child, as if this served as an excuse for
missing court appearances. Appellant also has an outstanding
warrant in Monmouth County, New Jersey for failure to pay court
ordered child support.
This Court found the Appellant's continual failure to
appear, his knowledge of various trial dates, and his lack of
credible explanation for his absences showed that he voluntarily
2 The defendant failed to appear to twelve court dates from April 2012 through January 2014 . . 3 The defendant was present in court for arraignment on June 1, 2011, and scheduling conferences on June 30, 2011, July 25, 2011, and September 20, 2011 .. 4 Circulated 03/31/2015 04:02 PM
absented him$elf withbut c~use from his trial. Therefore, this
Court did not err in trying the Appellant in absentia.
B. Appellant's second error complained of on appeal is: "The Appellant was denied both his Federal and State Constitutional Rights to be present at his trial. See Pa.. Const Art 1 sec. 9, s= Amendment U.S. constitution."
Neither the United States Constitution nor the Pennsylvania
Constitution prohibits this Court from trying the Appellant in
absentia. Although a defendant has an absolute right under both
the 6th Amendment of the U.S. Constitution and Art. I, sec. 9 of
the Pennsylvania Constitution to be present at trial, this right
can be waived implicitly or explicitly by a defendant's own
actions. Com. v. Hill, 737 A.2d 255, 261 (Pa. Super. Ct. 1999).
A defendant's repeated absence without cause constitutes a
voluntary waiver of this right, and tryirtg such a defendant in
absentia does not offend the defendant's con$titutional rights.
Id., at 261.
A defendant should not be allowed to avert an unfavorable
judgment by simply absconding from trial, "otherwise there could
be no conviction of any defendant unless he wished to be present
at the time the verdict is rendered." Diaz v. United States,
223 U.S. 442, 223 (1912) (quoting Barton v. State, 67 Ga. 653).
As a result, the Supreme Court has long held that:
5 Circulated 03/31/2015 04:02 PM
'where the offense is not capital and the accused is not in custody, the prevailing rule has been that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.'
Id., at 455.
The Supreme Court's decision in Diaz v. United States was
at one point limited to those situations where the defendant
voluntarily absented himself from trial after having appeared
for the commencement of the trial proceedings. However, since
the Court's decision in Diaz, Pennsylvania courts have
interpreted the Court's holding to include defendants who fail
to appear without cause regardless of whether or not they were
present at the beginning of trial. See Com. v. King, 695 A.2d
412 (Pa. Super. Ct. 1997} (The court properly tried the
defendant in absentia when the defendant was absent without
cause at the time his trial began. The defendant was fully
aware of his trial date and had appeared in court for his
arraignment, preliminary hearing and scheduling conferences.}
See Com. v. Hill, 737 A.2d 255, 261 (Pa. Super. Ct. 1999) (The
defendant was not present during pretrial proceedings, the
Commonwealth attempted to locate him unsuccessfully, and he
never provided an explanation for his continued absence. The
6 Circulated 03/31/2015 04:02 PM
court properly tried the defendant in absentia for being
voluntarily absent without cause.)
The Appellant voluntarily absented himself without cause.
As a result, this Court's decision to try the Appellant in
absentia did not violate the Appellant's right to be present at
trial.
C. Appellant's third error complained of on appeal is: "The evidence was insufficien-t to establish that the Defendant was the perpetrator of the offenses of Criminal Conspiracy to distribute controlled substances and possession with intent to distribute controlled substance. The evidence was insufficient to find that the Defendant possessed a controlled substance or that the Defendant possessed a cont.rolled substance with intent to distribute. The evidence was insufficient to find that the defendant was involved in an agreement to distribute a controlled substance."
The evidence at trial was more than sufficient to convict
Appellant of criminal conspiracy to distribute controlled
substances and of possession with intent to deliver controlled
substances, beyond a reasonable doubt, and no relief is due.
In reviewing a clai~ regarding the sufficiency of the
evidence, an appellate court views all the evidence admitted at
trial in the light most favorable to the verdict winner and must
determine whether the evidence was sufficient to allow the fact-
finder to find every element of the crime beyond a reasonable
doubt. Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super.
2005) (citations omitted). A reviewing court must also draw all
7 Circulated 03/31/2015 04:02 PM
reasonable inferences from the evidence in the light most
favorable to the verdict winner. Commonwealth.v. Lacava, 666
A.2d 221, 226 (Pa. 1995) (citation omitted).
To sustain Appellant's convictions, the Commonwealth must
prove, beyond a reasonable doubt, that he possessed a controlled
substahce with th~ intent to deliver it (35 P.S. § 780-
113(a) (30)),and that he, with the intent of promoting or
facilitating the commission of a crime, "agreed with another
person or persons that they or one or more of them would engage
in conduct which would constitute such crime .. and such
other person committed an overt act in pursuance of such
agreement.n (18 Pa.C.S. § 903).
Here, the evidence clearly demonstrates that the Appellant
was part of an illicit drug dealing scheme with Mr. Shaheeed
Hall.
"When contraband is not found on the defendant's person,
the Commonwealth must establish constructive possession ... " Jones, supra at 121 (citing Commonwealth v. Haskins, 677 A.2d
328, 330 (Pa.Super. 1996), appeal denied, 692 A.2d 563 (Pa.
1997)). "Constructive poss~ssion is the ability to exercise
conscious control or dominion over the illegal substance and the
intent to exercise that control." Commonwealth v. Kirkland, 831
A.2d 607, 610 (Pa.Super. 2003). "The intent to exercise
8 Circulated 03/31/2015 04:02 PM
conscious dominion can be inferred from the totality of the
circumstances." Id,
However, constructive possession is irrelevant where the
defendant is convicted of a conspiracy with the person in
possession of the illegal drugs. Commonwealth v. Holt, 711 A.2d
1011, 1011 (Pa.Super. 1998) {"In other words, when the appellant
was convicted of conspir~cy to possess with intent to deliver
the drugs ... he is also culpable for the crime itself, that
is possession with intent to deliver cocaine."); accord
Commonwealth v. Perez, 931 A.2d 703, 709 (Pa.Super. 2007).
Further, each member of a conspiracy is liable for the acts of
his co~conspirators committed in furtherance of their criminal
activity. Commonwealth v. Geiger, 944 A.2d 85, 91 (Pa.Super.
2008). It follows that because "the criminal intent necessary
to establish accomplice liability is identical to the criminal
intent necessary to establish conspiracy," a co-conspiracy can
be found guilty of p6ssessing a controlled substance with intent
to deliver even without having any direct contact with the
illegal drugs. Commonwealth v. Hennigan, 753 A.2d 245, 254
(Pa.Super. 2000). Here, Appellant and Mr. Hall can be charged
with each other's respective offenses.
To establish possession of a controlled substance with
intent to deliver, the Commonwealth must prove beyond a
reasonable doubt that the defendant possessed a controlled
9 Circulated 03/31/2015 04:02 PM
substance and intended to deliver it. Kirkland, at 611 (citing
Commonwealth v. Conaway, 791 A.2d 359 (Pa.Super. 2002). The
trier of fact may infer intent from the facts and circumstances
of the case, such as the packaging, quantity of the drugs
possessed, form of the drug, the behavior of the offender, and
lack of paraphernalia for consumption. Jones, at 121 (citations
omitted). Here, Appellant was arrested after being observ~d as
serving as a lookout for Mr. Hall's drug transactions and was
found having three packets of crack cocaine on his person.
To sustain the Appellant's conviction for criminal
conspiracy, the Commonwealth must establish that the Appellant:
(1) entered into an agreement with another to commit or aid in
an unlawful act, (2) shared criminal intent, and (3) an overt
act was performed in furtherance of the conspiracy. Jones, at
121 (citing Commonwealth v. Murphy, 795 A.2d 1025 (Pa.Super.
2002). The conspiracy may be proved by circumstantial evidence.
Jones, at 121. The conduct of the parties and the surrounding
circumstances of their conduct can create a web of evidence that
links the accused to the alleged conspiracy beyond a reasonable
doubt. Id. (citations omitted), A conspiracy can be inferred
from the surrounding circumstances, including, but not limited
to: " ( 1) an association between alleged conspirators; ( 2) the
knowledge of the commission of crime; (3) presence at the scene
of the crime; and (4) in some situations, participation in the
10 Circulated 03/31/2015 04:02 PM
object of the conspiracy." Commonwealth v .. McKeever, 689 A.2d
272, 274 (Pa.Super. 1997).
On February 26, 2011, at approximately 6:40 p.m., Officer
Barry Stewart, part of the 16th District Narcotics Enforcement
Team ("NETS"), was conducting a confidential surveillance for
illegal sales of n~rcotics in the area of the 3900 block of West
Reno Street in Philadelphia. (N.T. 12/6/13 pg. 50-51). Officer
Stewart has been a Philadelphia police officer for over 19 years
and over 15 years in the NETS team. Id. at pg. 48, 50. He has
specific training in narcotics and has taken part in over 300 to
400 narcotics investigations. Id. at pg. 49-48.
On February 26, Officer Stewart observed Donnie Rudolph and
Mr. Shaheed Hall standing together on the west end of the 3900
block of Reno Street. After ten minutes of surveillance,
Officer Stewart observed a group of unknown black females,
males, and a white female begin to gather on the corner into a
group consisting of ten or more. Id. at pg. 53-54. Upon
noticing the group, Appellant and Mr. Hall made a motion with
their hands, wave-like, and the group followed them up the
street into a vacant lot. Id. at pg. 54. Mr. Hall proceeded to
step into the lot with the group while Mr. Rudolph stood right
outside of the opening and began looking up and down the street,
left and right. Id.
11 Circulated 03/31/2015 04:02 PM
Officer Stewart then noticed Mr. Hall begin to perform
hand-to~hand motions with the individuals, receiving United
States currency from the individuals while providing them with
unknown small objects. Id. at 54-55. Officer Stewart stated
that Mr. Hall's hand-to-hand motions consisted of him holding
something in a bawled up fist and each individual would then
catch it. Id. at 55. Officer Stewart stated that upon
receiving the object from Mr. Hall the individuals would
immediately leave the lot. Id. at 56.
While Mr. Hall was exchanging items with these individuals,
Mr. Rudolph was standing in front of the lot in the middle and
looking up and down the street. Id. at 57. After the
individuals dispersed, Mr. Hall came out of the lot and stood
next to Mr. Rudolph. Id. at 59. They eventually left the lot
together, walking westbbund on Reno Street. Mr. Stewart
testified that he felt Mr. Rudolph was serving as a lookout for
Mr. Hall while he sold drugs. Id. at 59. Officer Stewart, based
on these facts and circumstances and his own training and
experience, believed that Hall and Rudolph were involved in a
drug-dealing scheme. Id. at 91.
As the buyers dispersed from the lot, Officer Stewart
relayed their descriptions to his backup officers over his
police radio. Id. at 59-60. Officer Stewart instructed his
12 Circulated 03/31/2015 04:02 PM
backup officers to arrest these individuals along with Hall and
the Appellant. Id.
One of officer Stewart's backup officer, Officer Chitra
Sethuraman, a 14-year veteran with 8 years as part of the NETS
team, was directed to stop and conduct a narcotics investigation
on a white female who was wearing a long black leather coat.
Id. at 107-08. Officer Sethuraman approached the suspect and
identified himself as a police officer. Id. at 108-110. After
doing so he immediately observed her discard a small item from
her left hand. Id. at 108-110. As he got closer he noticed it
was a small blue tinted Ziploc packet containing a chunky off-
white powdery substance. Id. at 108. Officer Sethuraman
retrieved the package and placed the white female, later
identified as Ms. Cynthia Steel, under arrest for narcotics
violations. Id.
At trial, Officer Sethuraman was provided Commonwealth
Exhibit-7, a Philadelphia property receipt number 2949957 and a
blue Ziploc packet containing an off-white chunky substance.
Id. at 110. Officer Sethuraman testified that the crack cocaine
in the blue packet was a fair and accurate representation of the
crack cocaine that Ms. Steel discarded on the ground. Id. at
110-11. Officer Sethurman also testified that in his ekperience
as a narcotics officer drug purchasers typically leave the
13 Circulated 03/31/2015 04:02 PM
location of the transaction immediately after it takes place.
Id. at 111.
Another backup officer, Justin Falcone, was instructed by
Officer Stewart to apprehend a woman wearing an orange jacket
and blue jeans and recently left the vacant lot following a
meeting with Mr. Hall. Id. at 118. The woman, later identified
as Diane Gilchrist, was stopped by Officer Falcone on 40th and
Parrish Street. Id. Officer Falcone recovered one blue Ziploc
packet with crack cocaine inside from Ms. Gilchrist's left
jacket pocket. Id. at 118-19. The packet was identified at
trial by Officer Falcone and he stated that it was a fair and
accurate representation of the packet he recovered off of Diane
Gilchrist. Id. at 120~21~ The crack cocaine was not included at
the trial presentation, but residue remained in the packet. Id.
Officer Falcone is also part of the NETS unit and has
worked 150 to 200 narcotic surveillances, 90% of them in a
backup capacity. Id. at 123. His role in these investigations
as a backup is to arrest drug addicts and drug dealers. Id. at
124. Officer Falcone testified that drug purchasers do not
typically hang out with their dealers after the transaction is
consummated. Id.
Shaheed Hall was arrested by Officer Patrick DiDomenico on
February 26, 2011, at approximately 7 p.m. Officer DiDomenico
was part of the NETS team and working in his backup role to
14 Circulated 03/31/2015 04:02 PM
Officer Stewart. Id. at 126-28. Officer DiDomenico arrested
Mr. Hall based on the location and direction of travel provided
by Officer Stewart. Id. at 128-29. Officer DiDomenico
testified that wheh he arrested Mr. Hall he recovered, from Mr.
Hallis mouth, three blue-tinted packets. Id. at 129. Inside
these packets was an off-white chunky substance, consistent with
crack cocaine. Id. Officer DiDomenico also recovered $377 in
U.S. currency from Mr. Hall. Id. After searching Mr. Hall,
Officer DiDomenico returned to the lot on the 3900 block of Reho
Street and found an additional blue packet that matched the
packets recovered from Mr. Hall's mouth. Id. at 130-31. At trial
Officer DiDomenico was presented the property receipts for the
three packets seized from Mr~ Hall's mouth, the $377, and the
additional blue bag that he found in the vacant lot. Id. at
130-32. Officer DiDomenico testified that these were the items
recovered from Mr. Hall. Id. at 131-32.
Officer DiDomenico went on to testify that usually buyers
and sellers go their separate ways after a transaction. Id. at
132-33. He stated that this is because sellers don't like to be
amongst the buyers and buyers like to go someplace quickly to
use their drugs. Id. at 133.
The Commonwealth also called police officer Raymond Kirk.
Officer Kirk was part of the NETS team and was working the
aforementioned investigation as a backup to Officer Stewart.
15 ) Circulated 03/31/2015 04:02 PM
Id. at 137-139. Officer Kirk was the arresting officer of
Appellant. Id. at 139~ Officer Kirk recovered three blue
tinted Ziplocs that contained an off-white chunk substance,
alleged crack cocaine, from Appellant's left jacket pocket. Id.
Appellant was not with Mr, Hall when he was arrested, Mr. Hall
was about a half a block away. Id. Officer Kirk was presented
the property receipt at trial the three Ziploc packets
containing an off-white chunky substance of alleged crack
cocaine. Id. at 14li Officer Kirk identified the packets as
those recovered from Appellant at his arrest.
Officer Kirk ~lso testified that drug buyers do not
typically congregate with their dealers after a transaction. Id.
at 144-45. Typically they usually complete their purchase and
then go use their drugs. Id. at 145.
Viewing all of the evidence presented at trial and drawing
all inferences from such evidence in the light most favorable to
the Commonwealth, the verdict winner, it is clear that the
evidence was sufficient for the jury to find that the
Appellant's convictions must be upheld.
Appellant was arrested with crack cocaine on his person and
his associate, Mr. Hall, was also apprehended with packets of
the drug as well as $377 in cash. Further, Appellant was
observed by NETS officers as serving as a look-out for Mr. Hall
while he engaged in drug transactions.
16 Circulated 03/31/2015 04:02 PM
Two of these buyers, Ms. Steel and Ms. Gilchrist, were
arrested and found to have packets of crack-Cocaine that matched
the packets found on Appellant and Mr. Hall.
Viewing this evidence and drawing all reasonable inferences
from the evidence in the light most favorable to the
Commonwealth, the jury verdict winner, it is clear that there is
sufficient evidence to establish that Appellant was part of a
drug-dealing conspiracy with Mr. Hall and his convictions for
possession with intent to distribute a controlled substance and
conspiracy to deliver~ controlled substance.
D. Appellant's fourth error complained of on appeal is: ·"The trial court abused its discretion in the sentence it imposed and the sentence was unreasonable. The trial court did not take into consideration all the factors required by 42 Pa.CSA sec. 9721(b). The trial court did not take into consideration the defendant's age family history and rehabilitative needs in imposing the sentence. The trial court also ran the sentences consecutively which also was unreasonable. The sentence was outside the aggravated range of the sentence guidelines."
This Court did not abuse its discretion in the sentence
imposed, nor did it violate the sentencing requirements of 42
Pa.C.S. 9721(b) of the Sentencing Code by failing to consider
the Appellant's rehabilitative needs or mitigating
circumstances. To the contrary, this Court did consider the
Appellant's rehabilitative needs, mitigating circumstances, as
well as aggravating factors such as the potential danger the
Appellant poses to society. In crafting the Appellant's
17 Circulated 03/31/2015 04:02 PM
sentence, this Court struck a balance between the Appellant's
potential for rehabilitation and the Court's duty to protect the
public.
Allowance of an ctppeal of a sentence is only permitted when
the appellate court determines that there is a substantial
question in regard to the appropriateness of the sentence.
Commonwealth v. Boyer, 856 A.2d 149, 151-52 (Pa. Super 2004).
This determination is made on a case-by-case basis and is made
in conjunction with what is laid out in the Sentencing Code.
Id, In selecting from the alternatives set forth in subsection
(a), the court shall follow the general principle that the
sentence imposed 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 life of the victim and on the
community, and the rehabilitative needs of the defendant. 42
Pa.C.S.A. § 9721(b)
This Court did address aggravating factors at the
sentencing hearing justifying an above guideline sentence.
These factors include: Appellant's thirteen (13) arrests and
seven (7) convictions; being a multi-state offender and having
warrants in three (3) states, including one in New Jersey for
failing to pay child support, despite the Appellant's contention
that supporting his daughter was one of his reasons for not
showing up to court; his habit of being a chronic absconder
18 Circulated 03/31/2015 04:02 PM
evidenced by twelve failures to appe~r for this case; his lying to the Court during sentencing regarding alleged excuses why he
did not show up for his trial; and his lack of remorse and
failure to accept responsibility. In addition, being a fugitive
on this case for twenty~two (22) months is an aggravating
factor.
Also1 this Court was equipped with a current Presentence
Investigation Report (PSI) .4 The evaluative summary of the
Appellant in the PSI indicates the Appellant "is a threat to the
community wherever he resides. He has incurred arrests and
convictions in four different states, and he currently has
~arrants issued by three different states. He does not appear to
be amenable to community supervision as he fails to appear for
court indicating his disregard for the judicial order and
authority." Presentence Investigation Report, pg, 2. Based on
these aggravating factors, the Court properly sentenced the
Appellant.
4 See Commonwealth v .. Devers, 519 Pa. 88, 101-102 (Pa. 1988) ("Where pre- sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having. been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand"). 19 Circulated 03/31/2015 04:02 PM
This Court did regard the Appellant's age, family history,
and rehabilitative needs when it imposed its sentence. These
factors and others were addressed at the sentencing hearing on
February 4, 2014. They were more than counter balanced by the
numerous aggravating factors cited. The Court found that the
Appellant lctcked almost any rehabilitative potential. This Court
did consider all factors the Appellant claims were overlooked.
Imposition of consecutive sentences is a choice left
completely up to the discretion of the trial court and does not
in and of itself give rise to the level of a substantial
question. Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super
2004). This Court did just that. It followed the guidelines and
chose to impose consecutive legal sentences based upon the
evidence presented at trial and the Appellant's history. No
substantial question has been raised at any point in the present
case. The sentence imposed was lawful and within this Court's
power and discretion and should be affirmed.
Therefore, this Court did not abuse its discretion in
sentencing the Appellant. This Court's sentence is not
excessive, unreasonable, unsupported by the Appellant's
character, nor did it fail to consider Appellant's
rehabilitative needs or mitigating circumstances. This Court
determined that the Appellant's criminal history, its duty to
protect the public, and the scant rehabilitative potential of
20 Circulated 03/31/2015 04:02 PM
the Appellant called for the sentences imposed. Th~ Appellant
showed no remorse about his crimes, nor did he ever admit
responsibility. There is no substantial question regarding the
appropriateness of these sentences as the requirements of the
Sentencing Code were followed. See 42 Pa. c.s. §9721.5
E. Appellant's fifth error complained of on appeal is: "The defendant was denied his right to a prompt and speedy trial under Rule 600(G) ."
The Appellant was not denied his prompt and speedy trial
rights under Rule 600 because he waived these rights by
voluntarily absenting hi~self from trial. "Rule 600 requires a
defendant to file a written motion to dismiss, and that, by
failing to appear in court on the day his or her case is listed
for trial, a defendant waives his or her Rule 600 claim." Com.
v. Brock, 619 Pa. 278i 61 A.3d 1015, 1016 (2013).
5 Under "42 Pa.C.S. §9721(b) General standards. --In selecting from the alternatives set forth in subsection (a), the court shall follow the general principle that the sentence imposed 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 life of the victim and on the community, and the rehabilitative needs of the defendant. ... " See Contrnonwealth v. McAfee, 849 A.2d 270 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) ("the trial court was correct in determining that a sentence of total confinement was necessary to vindicate the authority of the court because [a)ppellant had demonstrated a complete lack of willingness to comply with the multiple court orders entered in this case. We find no abuse of discretion in sentencing"); Commonwealth v. Sierra, 752 A.2d 9101 911 (Pa. Super. 2000) (sentence affirmed where parole and probation revoked and appellant sentenced to statutory maximum for technical violations); Conunonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010) (where "court considered the testimony at the VOP hearing regarding [a]ppellant's lack of success under probation, arrest while under supervision, failure to appear on numerous occasions, and flight from a halfway house while under parole supervision", "the record as a whole reflects that the ttial court considered the facts of the crime and character of [a]ppellant in making its determination, [and appellate court} cannot re- weigh the sentencing factors to achieve a different result").
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On September 20, 2011, the Appellant rejected a smart room
offer, and the case was given the earliest possible date for
trial. On April 12, 2012, this Court issued a bench warrant
because the Appellant failed to appear for trial. On December 9,
2013, this Court began an in absentia jury trial as the
Appellant persisted in failing to appear for listed court dates.
The Appellant remained a fugitive for twenty-two months until
authorities finally arrested him. Therefore, because the
Appellant voluntarily absented himself from trial, his claims
for relief under Rule 600 fail.
22 Circulated 03/31/2015 04:02 PM
Conclusion
For all of the above reasons, the claims Appellant raises
on appeal should provide no relief. Appellant's sentences
should, therefore, stand.