J-S36025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MONROE WEEKLEY, III
Appellant No. 1732 WDA 2014
Appeal from the Judgment of Sentence September 19, 2014 in the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0002162-2011
BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY JENKINS, J.: FILED JULY 10, 2015
Appellant Monroe Weekley, III, appeals from the judgment of sentence
entered in the Beaver County Court of Common Pleas following his jury trial
conviction for third degree murder,1 receiving stolen property,2 and firearms
not to be carried without a license.3 We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 2501(a). 2 18 Pa.C.S. § 3925(a). 3 18 Pa.C.S. § 6106(a). J-S36025-15
In its Pa.R.A.P. 1925(a) opinion, the trial court fully and correctly sets
forth the relevant facts and procedural history of this case. See 1925(a)
Opinion, pp. 1-12.4 Therefore, we have no reason to restate them.
Appellant raises the following issues for our review:
I. The [t]rial [c]ourt erred in determining that the evidence was sufficient to support a conviction for [r]eceiving [s]tolen [p]roperty, where the Commonwealth failed to offer any evidence that [Appellant] knew the firearm was stolen.
II. The [t]rial [c]ourt abused its discretion in imposing consecutive sentences, using an incorrect offense gravity score of 9 (loaded weapon) rather than 7, which resulted in an unduly harsh sentence, without considering [Appellant’s] specific circumstances and rehabilitative needs when compared to the need to protect the public.
Appellant’s Brief, p. 6.
When examining a challenge to the sufficiency of evidence, this Court’s
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 ____________________________________________
4 The introductory paragraph of the trial court’s 1925(a) opinion incorrectly indicates that the instant matter is an appeal of the disposition of Appellant’s PCRA petition. See 1925(a) Opinion, p. 1. In actuality, the instant appeal is of Appellant’s judgment of sentence following the trial court’s grant of Appellant’s PCRA petition requesting reinstatement of his direct appeal rights nunc pro tunc after this Court dismissed his first appeal because Appellant’s direct appeal counsel failed to file a brief. See Commonwealth v. Weekley, 424 WDA 2013, Order filed January 22, 2014. The body of the trial court’s 1925(a) opinion correctly states the procedural posture of the matter (see 1925(a) Opinion, pp. 10-12) and the trial court’s misstatement has no bearing on its thorough analysis of the issues raised.
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evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [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. Smith, 97 A.3d 782, 790 (Pa.Super.2014).
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.
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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:
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.
Id. at 1064.
“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 which underlie the sentencing process.” Commonwealth v.
Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see
also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a
substantial question on a case-by-case basis.” Id. at 10.
Here, Appellant filed a timely notice of appeal, and preserved his
issues in a post-sentence motion. Further, Appellant’s brief includes a
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concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p. 10. A court’s
exercise of discretion in imposing a sentence concurrently or consecutively
does not ordinarily raise a substantial question. Commonwealth v.
Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010), appeal denied, 14 A.3d
825 (Pa.2011). Rather, the imposition of consecutive rather than concurrent
sentences will present a substantial question in only “the most extreme
circumstances, such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of imprisonment.”
Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super.2012), appeal
denied, 75 A.3d 1281 (Pa.2013). This Court has stated that
a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),
reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)
(emphasis in original). However, an allegation that a trial court employed
an improper calculation of an Offense Gravity Score raises a substantial
question for appellate review. See, e.g., Commonwealth v. Archer, 722
A.2d 203, 210-211 (Pa.Super.1998) (claim that sentencing court used
incorrect Offense Gravity Score raises a substantial question regarding
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discretionary aspect); see also Commonwealth v. Jackson, 585 A.2d
533, 534 (Pa.Super.1991) (“Where [an] appellant avers that the sentencing
court failed to properly apply the sentencing guidelines a substantial
question as to the appropriateness of the sentence has been raised.”).
Therefore, Appellant has raised a substantial question for our review, and we
can properly address Appellant’s discretionary aspects of sentencing on
appeal.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Kim Tesla,
we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. See Trial Court Opinion, dated November 20, 2014, pp. 12-21
(finding: (1) evidence that Appellant was in possession of firearm within
three months of its theft and sold firearm after murder, without proof of
ownership and with the help of a known illegal firearms dealer, was sufficient
to support conviction for receiving stolen property; (2) court properly
sentenced Appellant after considering 42 Pa.C.S. § 9721(b) sentencing
factors, Appellant’s pre-sentence report, sentencing guidelines, Appellant’s
prior record, evidence presented at sentencing, Appellant’s allocution, and
Appellant’s rehabilitative needs; and (3) court properly employed offense
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gravity score of 95 because jury could infer that firearm Appellant used to
shoot victim was loaded while in Appellant’s possession). Accordingly, we
affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/10/2015
5 In sentencing Appellant on the firearms not to be carried without a license conviction, the trial court would have properly used an offense gravity score of 9 if the weapon were loaded, whereas an offense gravity score of 7 would have been appropriate were the weapon unloaded.
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1:",I THE COL"RT OF COMMON PLEAS OF BEAVER COL'"KTY PE~".\:S YLVA NlA CRJ\ifIJ\AL DlVJSION - LAW ) COMYIOI\\VEAL TH OF PE:t\~SYL VAN IA,
vs. J'\o. 2162 of 20l l MONROE WEEKLEY. ur,
Defendant
Tesla, J, November 90 . 2014 Rt;LE 1925(a). OPINION Before this Court for disposition is the petition for post-conviction collateral relief under
the Post C onviction Relief Act ( hereinafter. ··PCR.A .. l filed on behalf of Defendant Monroe
Weekly. Ill. This is the second time this matter has been appealed, and this the second 1925(a)
Opinion issued by this Court. For the reasons staled below, Defendant's Petition is denied.
) FACTS AND PROCEDliRAL HISTORY
A. Facts and Investigation
This matter arises out of the death of Rashawn T. Cameron. At approximately 11 :35 a.m,
on Sunday, '.!\o·vember 21, 2010. the Beaver County 911 Emergency Control Center received a
telephone call from an unidentified female located at the residence of Willie Martin at 308
Cooper Street. Aliquippa, Pennsylvania. The female reported that, inside the residence. an
unknown male was lying on the living room couch unresponsive and bleeding from the face, As
a result of the caller· s in formation, the Emergency Control Center dispatched Aliquippa Police to
the reported address. L pon arrival at the residence at approximately l l :40 a.m .. the responding
officers observed a black male identified as Rashawn T. Cameron (hereinafter, "Cameron") lying
in a pool of blood. His waist was positioned at the edge of a scat cushion with his feet resting on
APP.B Circulated 06/30/2015 03:25 PM
the floor. A preliminary examination of Cameron's body by the responding officers and Deputy
') Coroner Wayne Tatalovich revealed that Cameron sustained a gunshot wound to the back of his
head behind his left ear with a large exit wound on his forehead above the right t!}'~- He was
pronounced dead at the scene. During the search of the crime scene, law enforcement located
fragments of a lead projectile. After performing an autopsy. Dr. James Smith determined that
Cameron died as a result of the gunshot wound and that Cameron was the victim of a homicide.
On February 10. 10 IL Assistant Chief County Detective Andrew Gall and County
Detective Robert Heberle interviewed Bradley J. Karas (hereinafter. "Karas") in connection with
their investigation of this matter. Karas told the officers that, during the morning of November
21. 2010. he was sleeping at the residence of James C. Stewart II] (hereinafter ... Stewart": at 181
Baker Street. Aliquippa. Pennsylvania, According to Karas. Defendant arrived at Stewart's
residence between 6:30 a.m. and 7:30 a.m, wearing dark jeans. black boots. a black hoodie, and
carrying a black book bag. Karas stated that. after seeing Defendant. he fell asleep again and
awoke at· approximately 10:30 a.m, Shortly thereafter, Karas walked into the kitchen and
observed Defendant and Stewart talking, Karas slated that he also observed Defendant remove
what appeared to be a .44 caliber Smith and Wesson revolver handgun from his black book bag.
Defendant {hen asked Karas to lake the handgun downstairs to clean it and warned that the
handgun should not be touched until after it was deaned. Karas stated that, after he complied
with Defendants request. Defendant and Stewart left Stewart's residence and attempted to sell
the handgun to James E. Connor HI (hereinafter ... Connor .. ).
Karas toJd Detectives Gall and Heberle that. upon returning lo Stewart's residence.
Defendant described the murder of Cameron. Defendant told Karas that he and an unidentified
black male purchased a S50.00 piece of crack cocaine from an unidentified individual at a crack Circulated 06/30/2015 03:25 PM
house on Plan 11 in Aliquippa, Defendant, the unidentified black male. and someone Defendant
referred to as the "Vic" went outside or the crack house for about a minute and then the "Vic .. ) and Defendant went back inside the crack house. Defendant stated that. when the "Vic" sat on
the couch and bent over to retrieve something from under the coffee table, Defendant shot the
"Vic .. in the head. Defendant stated that he attempted to rob the "Vic" but found nothing in his
pockets. Defendant then walked to Valley Terrace, left his clothes near a dumpster. and
proceeded to Stewart's residence.
After he related these events. Defendant remained at Stewart' s residence umll
approximately 4:00 p.m .• when an unidentified white female driving a white Chevrolet Cavalier
picked Defendant up and drove him from the residence. Kara'> told the detectives that, as
Defendant left. he was carrying the same black book bag that had previously held the revolver.
Also on February l 0. .2011. Detective Heberle and Sergeant Steve Roberts of the
Aliquippa Police Department reported to Connor's residence at 171 Baker Street Aliquippa. ) Pennsylvania to question Connor and to attempt to retrieve the .44 caliber revolver that Stewart
allegedly .sold to Connor on behalf of Defendant. Connor admitted that he purchased a .44
Maznum ~ Ruger ~ Redhawk revolver (hereinafter, "Redhawk revolver") from Stewart. and. based
on information provided by Connor, the investigators were able to recover the Redhawk
revolver, Through an inquiry conducted at the Beaver County Emergency Control Center, law
enforcement officials discovered the identity of the owner of the Redhawk revolver and that it
was reported missing by the owner in May of 2010.
On February l 1. 2011. Connor reported to the police station and provided a statement
regarding how he acquired the Redhawk revolver. Connor indica« . --d that. at some point towards
the end of November 10 l 0. Stewart came to his residence and sold him the Redhawk revolver
) Circulated 06/30/2015 03:25 PM
for 5400.00. Stewart told Connor that he would be unable to transfer ownership of the firearm
until he located the previous owner.
Later that day, Sergeant Roberts. Detective Heberle, and Captain Anthony Q. McClure
interviewed Stewart at the Aliquippa Police Department. Stewart told the officers that, on the
morning of ~OYemher 11, :!OlO. he awoke to find Defendant in his residence. According to
Stewart, Defendant stated that he had
the murder of Cameron. Defendant stated that he regretted bringing Cameron to Stewart's
residence to purchase a gun because Cameron was working with the police and Cameron owed
him $600.00. Defendant also stated that, at approximately 3:00 a.m, earlier that morning.
Defendant went to Willie Martin· s residence to aet his monev from Cameron and cauzht - J "
Cameron doing something .. foul .. as he entered the house. Defendant stated that he then aimed
his gun atCarneron and demanded his money. According to Defendant. Cameron reached for his
gun and a fight over Defendant's gun ensued. Defendant stated that he ultimately struck
Cameron with his gun and then shot him.
Stewart told the officers that. following this conversation. Defendant asked Karas to clean
his gun, and Karas complied. After cleaning the gun, Karas wrapped it in a black t-shirt and
placed lt in Defendant's black book bag. Stewart indicated that Defendant offered to sell the gun
lo him but Stewart declined and suggested selling it to Connor. Defendant agreed. and Stewart
went to Connor's residence to arrange the deal. Stewart stated that he gave Connor's money to
Defendant and that Defendant handed Stewart the black hook bag containing the gun. Stewart
then gave Che gun to Connor and returned the black book bag to Defendant,
On F cbruary 1 7. 201 I, Detective Heberle. Captain M"'-Clurc. and Detective Tim Staub
interviewed Roger L. Henderson, Jr. (hereinafter. "Henderson") regarding a statement Stewart
made to him. Henderson indicated that on December 29. 201 O. he met with Stewart lo exchange
) handguns; According to Henderson. Stewart stated that Defendant had previously given him a
bloody handgun that was used in the shooting death nf Cameron,
On February l 8. 201 I. Sergeant Donald Couch of the Aliquippa Police Department
submitted the Redhawk revolver and the mutilated bullet fragment seized from the crime scene
to the Pennsylvania State Police Greensburg Regional Crime Laboratory. On February 24. 10J l ,
The forensic scientist from the serology department at the Greensburg Laboratory notified
Sergeant Roberts that the firearm tested positive for the presence of blood and that there would
be future tests comparing the blood from the firearm with the blood samples obtained from
Cameron. The forensic examination also revealed that the mutilated bullet fragment recovered
from the crime scene was discharged from the Redhawk revolver.
On February 28, 201 L Captain McCJure submitted an application for a search warrant
requesting that he be permitted to take the following actions: report to the Community College of ) Beaver County. where Defendant was a student, and seize the black. book bag Defendant may be
carrying and the black boots and black hoodic he may be wearing: transport Defendant to the
Heritage Valley M edical Center so that two purple top rubes of blood may be extracted fl-om
him: search Defendant's residence at 717 Washington Street. Aliquippa. Pennsylvania as well as
the curtilagc for any black book bags .. 44 caliber ammunition. black boots, black hoodic, indicia
of residence, and any other items believed to be associated with the shooting death of Cameron:
and search any vehicles that are possessed by Defendant. ln support of his request. Captain
J'\.kCJure · s application included the information listed above that was gathered from the witness
interviews and initial investigation, At 8:40 a.m. on February 28. 2011. the Honorable Judge
John P. Dnhanich signed and authorized Captain·~ \1eClurc · s search warrant application.
,) 5 Circulated 06/30/2015 03:25 PM
After securing the search warrant. Captain McClure and other detectives proceeded to the
Community College of Beaver County to execute the search warrant. Upon arriving at ) Defendant's class. the detectives and campus security asked the instructor to have Defendant exit
the classroom, Defendant stepped into the hallway. and the detectives put him in handcuffs. He
was subsequently searched for weapons. and a campus security officer took the black book hag
he was carrying and gave it to the detectives. Defendant was then transported to the detectives
office, While at the office. the detectives discovered that the search warrant ( hereinafter.
"unexecuted search warrant") they obtained earlier that day provided the wrong date of birth and
wrong Pennsylvania Driver's License Number for Defendant. After realizing. their mistake, the
officers transported Defendant back to the Community College and returned his book bag to him.
Later that day, Captain McClure retyped the search warrant application and submitted it
to Judge Dohanich, who signed and authorized it at 3 :20 p.m, Other than the corrected date of
birth and driver's license number, the new search warrant contained the same information as the ) unexecuted search warrant. After obtaining the search warrant (hereinafter ... search warrant for
Defendant's clothes. book bag. and blood .. ). the detectives proceeded lo Defendant's residence at
approximately 5 :05 p.m, and searched the premises. seizing Defendant's black and plaid Dakine
back pack from his living room as well as De fondant's Carhart black hooded jacket size 5X.
black and yellow reversible hooded sweatshirt. and black Nike Reax size 13 shoes from his
person. They subsequently transported Defendant to the Heritage Valley Medical Center to have
Defendant's blood drawn. ultimately obtaining two purple capped tubes of Defendants blood.
At approximately 9:00 p.m. on March 1. '.W 11. Captain ~1cClure again met with Stewart.
who indicated that he received a call from Defendant on his cell phone earlier that evening.
According to Stewart. Defendant related to Stewart how the police drew blood from him and Circulated 06/30/2015 03:25 PM
seized his book bag and some of his clothing on February 28. 2011. Defendant also indicated that
he believed it was Karas. Alvin J. Flowers (hereinafter. =Flowers"], or a woman named Donzi
Perry: (hereinafter. "Perry") who were providing information about Cameron's murder lo the
police. Defendant explained that both Perry and Flowers had first-hand knowledge of the
homicide because Perry was sitting outside of Willie Martins home when it occurred and
Flowers was performing oral sex on Cameron inside ihc house just hefore Defendant shot
Cameron. Stewart told Captain :\kCl ure that, at some point during his conversation with
Defendant, Stewart suggested that they communicate by text message rather than talk on the
phone. Defendant agreed. and the tv•.o sent several text messages to each other speculating about
who was responsible for notifying law enforcement about the homicide. During the interview,
Stewart permitted Captain McClurc to review the text messages using Stewart's cell phone.
Captain McClure reviewed the messages and identified (724) 406&2036 as Stewart's cell phone
number and (724) 513-[579 as the number for the cell phone Defendant was using. ) On March 3. 2:011. Captain vtcClure sent preservation letters to Cricket Communications
and Sprint .' Nextel Communications to preserve the records from Stewart's and Defendant's cell
phone numbers. respectively. Captain :\kClure requested that the subpoena compliance
departments of the companies preserve these records tor the period of February 18, 201 l tu
March 3. 20 l I. On March I 1. 20 l l , the subpoena specialist for Sprint : Next cl Communications
confirmed that the call detail records. subscriber information, and customer account notes for the
cell phone number ( 724} 5 JJ- l 579 were being preserved. The subpoena specialist further
indicated that a search warrant was required to release any content or stored communications.
On March 14. 201 l. Captain \fcClurc submitted two search warrant applications
requesting the billing and account information, call detail records. and text messages for
7 Circulated 06/30/2015 03:25 PM
Stewart's and Defendant's eel] phones. The applications contained information obtained from the
) March I, -]011 interview of Stewart as well as the same information included in the application
thr the search warrant for Defendant's clothes. book bag. and blood. On March 14, 2011, this
Court signed and authorized the search warrant for Stewart' s cell phone records at 3:05 p.rn. as
well as the scare h warrant for Defenda 11 f s eel I phone record s ( he re i na frer. "first searc h w arrant
for Defendant's cell phone records") at 3: 15 p.m. Based on a review. of the record. no evidence
was obtained as a result of these search warrants.
B. C rimlaal Proceedings
On July 18, 201 J. Sergeant Roberts filed a Criminal Complaint against Defendant,
charging him with criminal homicide (18 Pa.CS.A. § 250 l(a )), robbery ( rn Pa.CS .A. §
370l(a){ l )(i)), receiving stolen property ( 18 Pa.CS.A. § 3925(a)>. firearms not to be carried
without a license ( 18 Pa.CS.A. § 6 l 06{ a)( I),. and crimes committed with firearms {18 Pa.C. S.A_
§ 6103). On the same day. a warrant was issued for Defendant's arrest. and Defendant was taken ) into custody. While incarcerated in the Beaver County Jail. Defendant s phone conversations
were recorded. During these conversations, a message was broadcasted multiple times warning
that the conversation was being recorded. On September 2. 201 J. a subpoena duces tecum was
issued for recorded telephone conversations involving Defendant from the date of his
incarceration to September 1, 2011. Warden William Schouppe of the Beaver County Jail
complied with the subpoena (hereinafter. "subpoena for jail recordings").
On November 15. :!O I L a subpoena duces tecum was issued to Sprint .' Nextel for the
subscriber information. call detail records including text messages. and cell site tower location
data for cell phone number (724} 513-1579 for the dates and times of November 19. 2010 at
12:00 p.m. to July 18.2011 at 1.:toO p.m. Sprint: Nextel did not provide any of the requested Circulated 06/30/2015 03:25 PM
information except for a list of phone numbers and a letter stating thal the requested data could
) not be supplied because the proper paperwork was not issued. As a result. on November 13.
20 I L Detective Chamberlain submitted an application for search warrant requesting the same
information for the period ofNovember 19. 2010 at 12:00 p.m. to November 18. 2011 at 12:00
p.m. In the affidavit, Detective Chamberlain indicated that Stewart testified during the November
9. 2011 preliminary hearing regarding communications he had with Defendant. Stewart testified.
that he was receiving text messages from Defendant. who was using a cell phone with the
number (724) 513-1579. Detective Chamberlain also indicated that he verified that this cell
phone was active before. during. and after the investigation into Cameron· s death. At
approximately I: 12 p.m. on Xovember 13. 10 l L Judge Dohanich signed and authorized the
search warrant (hereinafter ... second search warrant for Defendants cell phone records"), Sprint.'
Nextel provided the requested information on December 5. 20 l 1.
On that same- date, the Commonwealth fiJed an Information charging Def endant with
criminal homicide. robbery, recci ving stolen property. and firearms not to be carried without a
license. On \1ay 21. 2012. Defendant filed an Omnibus Pre-Trial Application, which included
several different motions. A hearing on Defendaru's Application was held on June 1. :?OJ 2 and
June 4. 20l2. During the hearing. the Court denied Defendant's request for a bill of particulars,
and in an Order tiled on June 1 L .'.:!01.2. the Court addressed Defendant s discovery issues, On
July 5, 20J 2, the Court issued an Order denying Defendant's Motion to Suppress Evidence.
Trial in this matter commenced on August 6, 2011. During the testimony of Stewart. the
Commonwealth displayed to the jury a series nf photographs of text messages exchanged
between Defendant and Stewart on March 1. 1011. Defendant initially objected to the
presentation and admission of the photographs. and the Court overruled Defendam's objection.
9 Circulated 06/30/2015 03:25 PM
On August 10, 2012. Defendant filed a Trial Motion for Suppression of Evidence and Mistrial,
\ seeking to suppress the text message exchange and all evidence derived from the seizure of it. !
According to Defendant. Stewart testified that he sent text messages to Defendant at Captain
~vkClur~·s direction in violation of the Pennsylvania Wiretapping and Electronic Surveillance
Control Act
on August 1-L 201:2 and issued an Order on August 15. 2012 denying Defendant's Trial Motion,
The trial concluded on August 20. 20J 2 with a jury verdict of guilty on the charges of third
degree murder. firearms not to be carried w. ithout a license. and receiving stolen property and a
jury verdict or not guilty on the charges of first and second degree murder and robbery.
On October 3. 2012. Defendant was sentenced to serve an aggregate term of 24 and one-
half years to 51 years of incarceration and to pay an aggregate fine of S 1 1,500.00. In addition
Defendant was ordered to pay restitution in th<: amounts of S9.440.t>O to the Pennsylvania State
Police Laboratory for lab fees, $1-71 LOO to Cameron's father for funeral expenses. and ) 56.500.00 to the Victims Compensation Fund for funeral expenses. On October 15, 2012,
Defendant filed an Omnibus Post-Sentence Application containing a Motion in Arrest of
Judgment. a Motion for a New Trial. and a Motion for Modification of Sentence. Following the
transcription of the notes of testimony. Defendant filed a Supplemental Omnibus Post-Sentence
Application on January 2. 2012. Oral argument on Defendant's post-sentence motions was held
on February 4. 2013. On February R. 2013. the Court issued an Order denying Defendant· s post-
sentence motions.
C. Defendant's First Appeal
On March 5. 2013. Defendant filed an appeal of the February 8. 2013 Order. That
appellate case was docketed as Case '\'o. 424 WDA 2013. Defendant was directed to fi1e a Rule
10 Circulated 06/30/2015 03:25 PM
1925(b) statement which he submitted on March 25. 2013. Defendant raised numerous
) allegations of error in his 1925(b) statement. An extensive J 925(a) Opinion was issued on April
29. 2013 addressing the twenty-one issues.
Defendant's counsel. Dennis Di:'vfartini, was granted three extensions by the Superior
Court to file an Appellate Brief. The first extension was granted on J unc 20. 20 l 3. the second on
September 19, 2013. and the third on Novem bcr 2~. 2013. Defendant's counsel then failed either
to file an Appellate Brief or to request another extension. The Superior Court dismissed
Defendant's appeal on January 2:2. 201-4- for failure to file a Brief.
D. Defendanr's Cu rrcnt Appeal
Defendant's case having been dismissed due to his counsel's failure to file an Appellate
Brief or request an additional extension. Defendant himself ti led pro se a Post Conviction Relief
Act Petition on March 17. 2014. On April J.1014, new counsel was appointed for Defendant and
Defendant ·°' Motion for an extension of time in which to file an amended PCRA petition was ) granted on May 7. 2014. The Amended PCRA Petition was tiled on July 7. 2014. Through his
Amended PCRA Petition. Defendant argued ineffective assistance of his prior counsel. Dennis
Di Martini. on the basis of counsel's failure to file a timely brief which resulted in the dismissal
of Defendant's first appeal. Defendant !3 sole request for relief was that his appeal rights be
reinstated nunc pro tune.
On September 19. 10 I 4. The Court signed an Order reinstating Defendant s appellate
rights and granting him 30 days in which to file a. notice of appeal, Defendant filed his notice of
Appeal on October 17. 2014. On October 31. 2014. the Court issued an Order directing
Defendant to file a 1925{b) Concise Statement of Matters Complained of on Appeal. Defendant
filed his Concise Statement the same day. raising: only two issues. These rwo issues, challenging
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the sufficiency of the evidence with regard to the Receiving Stolen Property charge and the
) propriety of Defendant's sentence, are the same first two issues previously raised by Defendant's
counsel Dennis Di Martini in his l 925( b] Concise Statement (rum his first appeal,
ANALYSIS
The Court has reviewed Defendant's new Concise Statement and the (\VO issues now
raised appear to be the same as those previously addressed hy the Court in its first I 925ta}
Opinion. In the interests of judicial efficiency, rather than simply referring to an attached copy of
this Court's lengthy response to the twenty-one issues previnusly raised by Defendant' s counsel
Dennis Di:Man1n1. this Court instead will, for the convenience of appellate review, reproduce
here only those portions fmm the Court's first 1925(a) opinion which may be relevant to the two
issues being now raised again. Although the sentencing issues complained of in Defendant's first
Concise Statement were broader than those which arc raised at present appear co be. in order to
comprehensively address any of Defendant's legitimate sentencing issues. the Court's entire ) sentencing analysis is here included with additional explanatory footnotes distinguishing 1 Defendant's first and second Concise Statements.
A. Sufficiency of t2,:idcncc
Defendant's first allegation or error is that the Court improperly held that the record
evidence was sufficient to support the finding that Defendant was guilty of receiving stolen
property; When reviewing a sufficiency of the evidence claim, the standard to be applied is
whether the evidence, when viewed in the light most favorable to the verdict winner, is sufficient
i Ncvcrthcicss. Defendant 1:-. hmned to rhose issues raised in his present 19251 b) Concise Statement. C'om. ,·. Rut]er, 571 P.J. -1-1 l. 445. 812 ,\.~d 63 l. 6'.U (JOO:? J ("'In lord, however, this Court climmated any aspect of discretion and c.~1.abll~hed a bright-line rule for waiver under Ruic 192.5: ·[i]n order to preserve their claims for appellate review. [ajppellants must comply whenever the trial court orders them t" file a Statement of Matters Complained of on Appeal pursuant lo Ruic 19~5. Any issues not raised in a 19::!~(b} statement 1\"l"/1 ht' deemed waived. · lord, 7] 9 A.~d at 309 ( emphasis added). Thus. \\
to enable the fact-finder lo find that all of the clements of the crimes were established beyond a
) reasonable doubt. Commomvcalth v. Hartzell, 2009 Pa. Super. 137. 988 A.2d 141. 143 (2009).
The Court is also required to give the Commonwealth the benefit of all reasonable inferences to
be drawn from the evidence. Commonwealth r. Kendricks. 2011 Pa. Super. 2 l S, 30 A.3d 499,
508 (2011 ). In applying this standard. the entire record and all evidence should be evaluated and
considered. Commonwealth ,·. Hairston. 603 Pa. 660. 668. 985 A.:!d 804, 809 (2009) (citing
Commonwealth v. Kennedy. 598 Pu. 621. 959 A.2d 916, 9.:W (2008)). ··Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be drawn from the combined
circumstances," Commonwealth v. Brown, 201 l Pa. Super. 67. 23 A.3d 544. 559 (2011 ) .
.. A person is guilty of [receiving stolen property] if he intentionally receives. retains, or
disposes of movable property of another knowing that it has been stolen. or believing that it has
probably been stolen. unless the property is receiving, retained or disposed with intent to restore
it to the owner." 18 Pa.C.S.A. * 3925(a). Accordingly. the elements of receiving stolen property are as follows: ( 1) intentionally acquiring possession. control or title. retaining. disposing. or
lending on the security of movable property of another; (::?.) with knowledge or belief that it was
probably stolen: and {3) intent to deprive permanently. Commonwealth Y. Young. 1011 Pa,
Super. '277. 35 A.Jd 54, 63 (201 l ).
In his Rule I 925(b) statement. Defendant does nol specify what part of the
Commonwealth's case chat he found lacking with respect to the receiv ing stolen property charge.
In his Omnibus Post-Sentence Application. however, Defendant claims that insuffici c"Ilt evidence
was presented at trial to establish the second clement of receiving stolen property. that he had
knowledge that the Redhawk revolver was probably stolen. Defendant states that the only
) 13 Circulated 06/30/2015 03:25 PM
evidence presented at trial that relates to this element is the evidence that he did not steal the gun
) and the evidence that he was in possession of the gun six months after it was reported stolen.
Defendant argues chat possession of a stolen item six months after it was reported stolen does not
support an inference that Defendant knew the firearm was stolen.
The Superior Court of Pennsylvania has stated:
[AJ permissible inference of guilty knowledge may be drawn from the unexplained possession of recently stolen goods without infringing upon an accused's right of due process or his right against self-incrimination, as well as other circumstances. such as the accused's conduct at the time of the arrest. Nenctheless, the mere possession of stolen property is insufficient to prove guilty knowledge. and the Commonwealth must introduce other evidence, which can be either circumstantial or direct. that demonstrates that the defendant knew or had reason to believe that the property was stolen. This additional evidence can include the nature of the goods. the quantity of the goods involved. the lapse of time between possession and theft. and the ease with which the goods can be assimilated into trade channels. Further. whether the property· has alterations indicative of being stolen can be used to establish guilty knowledge. Finally. even if the accused offers an explanation for his possession of stolen property, the trier of fact may consider the possession as unexplained if it deems the explanation un sati s foe tory, ) Commonwealth v. Foreman. 1002 Pa. Super. 125, 797 A.2d 1005. 1012· l 3 (2002) (internal
citations omitted). Other factors to consider .. include but arc not limited to the unexplained
possession of recently stolen property, flight from the police or other evidence indicating an
attempt to avoid capture and the condition of the property indicating a theft." Common,i,:ealth \.
Carson, 405 Pa. Super. 492, 497. 592 A.2d 1318. 132 J ( 1991 ).
Defendant is correct chat some of the testimony at trial indicated that he was in
possession of the firearm six months after it was reported stolen. James Sarvey. the record owner
of the firearm, testified on redirect examination that he would have no reason to doubt a. Raccoon
Township police report which indicated that the firearm was stolen on May 8, 20l0. 'S'.T ..
it 13: 12_ at 2 l. He also tcsti fied. however. that he believed he reported the firearm stulen on
) 14 Circulated 06/30/2015 03:25 PM
October 10. 20 I 0. ld. at l 7. F urthermore, there was evidence presented at trial indicating that
) Defendant was in possession o r the stolen firearm earlier than six months after it was reported
stolen. Larry Alston testified that he gave Defendant a ride to the community college in August
or September of 2010 and observed in Defendant's bookbae the barrel of a revolver that matched
the description of the Redhawk revel vcr, Id. at 25_ 18. As a result. the jury was presented with
evidence indicating that Defendant was in possession of the stolen firearm one, three. or four
months after it was reported stolen. The Court concludes that chis was sufficient evidence to
permit the jury to find that Defendant was in possession of the firearm sooner than six months
after it was reported stolen.
In addition to this evidence. the jury was entitled to consider the nature of the stolen
property. As a firearm, the Rcdhawk revolver will> subject to a highly regulated process to
achieve legal transfer of ownership, Substantial evidence was presented at trial indicating that
Defendant. in selling the Rcdhawk revolver, enlisted Stewart, a known illegal firearms trafficker.
to act as his agent. When the Redhawk revolver was sold to Connor, no proof of ownership was
provided by Defendant and no legal transfer of ownership occurred, even though Connor made
known that his fulJ payment for the firearm was conditioned upon the transfer of ownership,
l\.T., 8.'8:l2. at .27-29. 40. The absence of any documentation demonstrating the legality of
Defendant's possession and sale of the Redhawk revolver as well as Defendant's decision to sell
the firearm with the help of a known illegal firearms trafficker permits an inference of guilty
knowledge. when combined with the evidence of Defendant's unexplained possession of the
firearm approximately three months after it was reported stolen. There is no indication that
Defendant challenges the sufficiency of the evidence for any other clement of the receiving
) 15 Circulated 06/30/2015 03:25 PM
stolen property charge. Therefore, the Court concludes that sufficient evidence was presented at
) trial for the jury to find Defendant guilty of receiving stolen property.
B. Sentencing
[n his next issue on appeal, Defendant challenges various aspects of the sentence irnpnsed
upon him by this Court on October 3. 201:!. Specifically, Defendant states in his J925(b)
statement:
The Court abused its discretion in imposing an aggregate of consecutive minimum and maximum sentences carefully designed to impose a virtual life sentence contrary to the \ erdict by imposing the virtual maximum penalty permitted under the Sentence Code, where the Offense Gravity Score (O.U.S.) for Currying Firearm Without a License was incorrect nothing in the record could support a finding. of either an aggravating circumstance or the death had a great impact on the community, evidence in the record could support a finding of mitigated circumstances. and amounts to an unwarranted expression of victim family sympathy. and the monetary penalty disregarded the rehabilirarive needs of Defendant and is tantamount to cruel and unusual punishment.t
De Cs 19~5(b) statement. The Superior Court has repeatedly stated:
) Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence wi II not he disturbed on appeal absent a manifest abuse of discretion. In this context. an abuse of discretion is not shown merely by an error in judgment. Rather. the appellant must establish. by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality. prejudice, bias or ill will. or arrived at a manifestly unreasonable decision.
Common~walth v. Glass . .2012 Pa. Super. 137, 50 A.Jd 720. 7'27 (2012). ··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 de term inc the proper penalty for a particular offense
based upon an evaluation of the individual circumstances before it. ... Commonwealth ,·. Perrv,
= Defendant s prcse nt Cone i se Statem enr stares on b ... The Tri a I Court ab used its di screii on in i Illposing consec ut he sentences, usmg an mcorrect offense gra\·ity ~.::0r1: 0f9 (loaded weapon) rather than '.\ which resulted in an unduly harsh sentence, without considering Mr. Weekleys specific circumstances and rchabihtauve needs when compared to the need to protect the public." J'hus, it appears that Defendant's present sentencing issue complained of on appeal i~ m~re narrow and focused 1han that prev iously raised. ,,' ) I6 Circulated 06/30/2015 03:25 PM
612 Pa. 557. 565. 32 A.3d 232. 236 {2011) (citing Commonwealth,·. \Valls. 592 Pa. 557. 926
) A.2d 957 {1007) ). "Moreover. the sentencing court enjoys an institutional advantage to appellate
review, bringing to its decisions an expertise. experience. and judgment that should not lightly be
disturbed." Id. at 137. Nevertheless. the Court's discretion is not unfettered ... When imposing a
sentence. the sentencing court must consider the factors set out in 42 Pa.C.S. * 9721 (h l, that is. the protection of the public. gravity of offense in relation to impact on victim and community.
and rehabilitative needs of the defendant" as well as the sentencing guidelines, Commonwealth
\', C4.b.-erson, 2011 Pa. Super. 255. 34 A.3d 135. 144 {Pa. Super.2011).
For several reasons. Defendant requests that the Court decrease the minimum and
maximum sentence for each count with which he was charged. run the sentences on the lesser
counts concurrently. and lower the monetary penalty. In response to Defendant" s overall request
for a reduction in his sentence. the Court offers the following general explanation for the
sentence imposed.' Following a lengthy jury trial. Defendant was convicted of third degree ) murder. receiving stolen property. and firearms not to be carried without a license. The evidence
presented indicated that Defendant shot the victim at close range. execution style. behind the car
in the back of the head. The shot fired was powerful enough to destroy a large portion of the
victim's skull and travel through a nearby wall before coming to rest on the porch outside. The
firearm Defendant used was a .44 Magnum revolver with a l2-inch barrel. The jury determined
that the firearm was stolen and that Defendant knew or should have known that it was stolen.
Under 18 Pa.C.S.A. § 6105(a)(l) and (b). Defendant was prohibited from possessing or
transferring a firearm due to his prior conviction for burglary. which was found to be a home
invasion and therefore constituted a crime of violence, Defendant disregarded this prohibition
.tThi: Court also our lined the reasoning for its sentence during the sentencing hearing on October 3. ~O l.:!. ~-L 10 3 l~ . .it 97-100. ) 17 Circulated 06/30/2015 03:25 PM
and committed third degree murder using an illegal weapon. Defendant's actions demonstrate
) that he poses a significant threat to the public, especially in light uf the fact that Defendant
exhibited no remorse or sympathy whatsoever for the loss suffered by the victim· s family.
Defendant · s crimes cannot be attributed to youth. nor can his mistakes be blamed upon his
environment or his chosen lifestyle being the only one available to him. Defendant was a 27·
year-old adult at the time these crimes were committed. Prior to committing th1..."SC crimes.
Defendant had numerous educational and athletic opportunities available to him. He received
athletic scholarships and attended five different colleges. hut, in one way or another, Defendant
neglected to take full advantage of these opportunities. Instead, Defendant chose a path that
ultimately led to the shooting. death of Cameron. In light of these considerations and after a
thorough review of the pre-sentence report 4. sentence guidelines. and applicable law. the Court,
acting within its discretion. imposed its sentence upon Defendant.
Defendant claims that the aggn:gatc sentence imposed constitutes a ··virtuaJ life
sentence." Defendant was sentenced 10 undergo imprisonment for 24 and one-half years to 52
years after being found guilty of third degree murder. receiving stolen property. and firearms not
to be carried without a license. At the time of sentencing, Defendant was 29 years old. Such a
sentence does not constitute a "virtual life sentence." Furthermore. Defendant cites no authority
demonstrating how this sentence, which is permitted by statute and within the sentencing
guidelines. is somehow a misapplication of the law or a manifestly unreasonable decision.
Defendant also claims in his allegation of sentencing error that the Court imposed the
virtual maximum penalty allowed by the Sentence Code. Defendant does not assert that tbe
sentence was either prohibited by statute or contrary to the sentencing guidelines themselves. Jn
" "[ WJh~re the trial court is tnforrncd by a pre-sentence report. it is presumed 1ha1 the court i~ aware of all appropriate sentencing factors and considerations." Conunouweahh \", Vemura. '.!QQ9 Pa. Super. 96. 975 A.~d 11~8. l 135 {~009). ,) 18 Circulated 06/30/2015 03:25 PM
addition. Defendant does not indicate why a sentence that was, in his words. the "virtual
) maximum penall) ·· was not appropriate in this instance. Assuming Defendant is alleging that it
was error to run his sentences consecutively, the Court notes that .. the imposition of consecutive.
rather than concurrent. sentences may raise a substantial question in only the most extreme
circumstances. such as where the aggregate sentence is unduly harsh, considering the nature of
the crimes and the length of imprisonment." CummonwcaJth \', Lamonda. 2012 Pa. Super. 180.
5::! AJd 36.5. 372 (2012). Taking into account the nature of Defendan f~ crimes. it cannot be said
that the aggregate sentence was unduly harsh.
Defendant also suggests that the calculation of the offense gravity score for the count of
firearms not to be carried without a license was incorrect.i ln his Omnibus Post-Sentence
Application. Defendant states chat {he offense gravity score was determined to be nine. indicating
that the firearm Defendant carried was loaded. as opposed to seven. indicating that the firearm
was unloaded. Defendant argues that nothing was presented at trial showing that the firearm was ) loaded while he carried it concealed. The jury was able to infer from circumstantial evidence that
the Redhawk revolver was loaded at the time of concealment. Substantial evidence presented at
trial demonstrated that Defendant frequently carried the firearm in his hook hag. lt is unlikely
that Defendant upon shooting Cameron. failed to conceal the firearm as he walked to Stewart's
residence. It is also illogical that Defendant would conceal the gun when it was unloaded. as he
did in Stewarts residence, hut carry it unconcealed when it was loaded. Furthermore, the jury
could infer from statements made during the trial that Defendant concealed the loaded weapon
prior to shooting Cameron. for example. Stewart testified that De fondant told him he "pulled out
his gun" before struggling with and eventually shooting Cameron. ~.T .. 8:8· l.2, at 126. The jury
~ Mere Defendant' s previous issee raised in his first appeal appears identical 10 that n(m argued in his instant appeal. challenging applicanon of a gra\ i1y score c,f9 for a loaded weapon. as opposed ro 7 tor an unloaded weapon, ) 19 Circulated 06/30/2015 03:25 PM
could infer from this testimony that Defendant had concealed the loaded Redhawk rcvol ver,
) Therefore. the use of an offense gravity score of nine was appropriate in this case.
Defendant also asserts that nothing in the record could support a finding of an
aggravating circumstance or that the- victim's death caused a great impact on the community. The
Court notes that Defendant was not sentenced in the aggravated range. He was sentenced in the
standard range. but the sentences were run consecutively. Further. the sentence imposed was not
~oldy based on the impact Cameron's death had on the community. The Court stated its reasons
for the sentence imposed during the sentence hearing and previously in this Opinion. Apart from
again restating its rationale for the sentence imposed. the Court is unable to address this issue
other than to note that it acted within its discretion in sentencing Defendant. See Commonwealth
v. Boyer, 2004 Pa. Super. 303. 856 A.2d 149 (2004) (concluding that the court did not abuse its
discretion in imposing a series of consecutive. standard range sentences when the court
considen .xl the prescntcncc report and the particular circumstance of the crime). ) Defendant next argues that evidence in the record could support a finding of mitigated
circumstances. In his Omnibus Post-Sentence Application. Defendant elaborates on this
argument .. stating that a minimum sentence in the mitigated range was warranted because
Defendant nearly completed a Bachelor's degree and had a reputation for being a peaceful
person. The Court was aware of these factors and weighed them along with ocher considerations
in determining Defendanr's sentence. For example, the Court weighed the factors raised by
Defendant along with the fact that Defendant had a previous conviction in a home invasion
burglary. In light of these and many other factors. Defendant was not entitled to a minimum
sentence in the mitigated range.
) ,I Circulated 06/30/2015 03:25 PM
Defendant also claims that the sentence imposed amounted to an unwarranted expression
') of "victim family sympathy." Again, the Court outlined its reasons for Defendant· s sentence in
this Opinion and during the sentencing hearing. Defendant offers no explanation as to why the
sentence imposed amounted to an unwarranted expression of sympathy for the victim's family,
Be fore issuing De tendant' s sentence, the C ourt did state: ··J will express my sympathy lo the
Cameron family for the loss that they have incurred." \:.T .. 10.J:12. at 97-98. Apart from this
statement. however. there is no indication that the Court was motivated by sympathy for the
victims family. and Defendant cites no authority holding that such a statement constitutes an
abuse of discretion.
COI\CLUSIO:"i
Based on the foregoing reasons, the Court concludes that the issues Defendant raises in
his present i 925(b) statement are without merit. Therefore. the Court respectfully submits {hat
the judgment of sentence should be affirmed. The Beaver County Clerk of Courts is hereby ) directed to file the record of proceedings in this case with the Superior Court of Pennsylvania,
BY THE COLiR T.
J.
. ..,
- C 7 .. _ '-• • .. I ,t • 1
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