Opinion
J-A27017-14 No. 1155 WDA 2013
12-23-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ARTHUR LAMONT HENDERSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 26, 2013, In the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CP-02-CR-0001873-2012 and CP-02-CR-0001874-2012. BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J.:
Appellant, Arthur Lamont Henderson, appeals from the judgment of sentence entered following his conviction of fifty-three crimes stemming from multiple violent robberies and sexual attacks on women in the suburbs of Pittsburgh. We affirm.
We summarize the procedural history of this case as follows. Appellant was charged with over fifty crimes in connection with the January 2012 violent robberies of multiple women and several men, and the rapes and sexual assaults of three women. Subsequently, the trial court denied Appellant's motions to sever and suppress evidence, as well as his petition for writ of habeas corpus. On September 6, 2012, the Allegheny County Public Defender's Office moved to withdraw representation of Appellant, and the motion was granted. Appellant then motioned for appointment of counsel. The trial court granted that motion and the Allegheny County Office of Conflict Counsel was appointed to represent Appellant. On September 17, 2012, Attorney Richard Narvin, chief counsel of the Office of Conflict Counsel, entered his appearance on behalf of Appellant.
For a more detailed presentation of the factual and procedural history of this matter, we direct the reader to the redacted version of the opinion authored by the trial court. See Trial Court Opinion, 10/23/13, at 1-7.
On February 4, 2013, Attorney Narvin filed a motion to withdraw as counsel on behalf of Appellant. A colloquy and waiver-of-counsel hearing was held on February 4, 2013. A jury trial commenced on February 5, 2013 and concluded on February 11, 2013. Appellant represented himself at trial, with Mr. Narvin and his associate acting as stand-by counsel. Appellant was found guilty of all charges except those involving a male robbery victim.
On March 5, 2013, Appellant filed a motion for appointment of counsel for sentencing through appeal and to postpone sentencing. The trial court entered an order denying postponement of sentencing and an order granting appointment of conflict counsel.
On March 26, 2013, the trial court sentenced Appellant to serve an aggregate term of incarceration of sixty-one to one hundred twenty-two years. The trial court issued a sentence of "no further penalty" on forty-two of the charges. Appellant filed post-sentence motions, which were denied. This appeal followed.
Appellant presents the following issues for our review:
I. DID THE TRIAL COURT ERR IN DENYING [APPELLANT'S] MOTION TO SUPPRESS WHERE, IF ALL DELIBERATE AND MATERIAL OMISSIONS AND MISSTATEMENTS WERE PROPERLY EXTRACTED, THE FOUR CORNERS OF THE AFFIDAVIT FAILED TO ESTABLISH PROBABLE CAUSE TO JUSTIFY THE SEARCH AND SEIZURE OF [APPELLANT'S] DNA AND PERSONAL BELONGINGS?
II. DID THE TRIAL COURT VIOLATE [APPELLANT'S] CONSTITUTIONAL RIGHTS TO SELF-REPRESENTATION, DUE PROCESS, AND A FAIR TRIAL WHEN IT FORCED [APPELLANT], WHO PROCEEDED PRO SE, TO REMAIN SEATED AT THE DEFENSE TABLE AT ALL TIMES THROUGHOUT THE COURSE OF TRIAL?
III. DID THE TRIAL COURT VIOLATE [APPELLANT'S] CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL BY REFUSING TO APPOINT HIM NEW TRIAL COUNSEL EVEN THOUGH [APPELLANT'S] TRIAL COUNSEL REFUSED TO SUBPOENA AND CALL CRITICAL WITNESSES, WAS UNPREPARED FOR TRIAL, AND THERE WAS NOTHING TO SUPPORT THE TRIAL COURT'S BELIEF THAT [APPELLANT] SOUGHT NEW COUNSEL MERELY TO DELAY TRIAL?
IV. DID TRIAL COURT ABUSE ITS DISCRETION IN REFUSING TO APPOINT [APPELLANT] NEW TRIAL COUNSEL WHERE THAT DECISION WAS INFLUENCED BY THE COURT'S PARTIALITY TOWARDS THE COMMONWEALTH?
V. DID THE TRIAL COURT VIOLATE [APPELLANT'S] CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL AT SENTENCING WHERE [APPELLANT] SPECIFICALLY REQUESTED TO BE REPRESENTED BY COUNSEL AND NEVER WAIVED THIS RIGHT?
VI. DID THE TRIAL COURT ABUSE ITS DISCRETION BY NOT ALLOWING [APPELLANT] TO PRESENT VIDEO SURVEILLANCE
FOOTAGE OF HIMSELF AT THE MEADOWS CASINO ON JANUARY 9, 2012, WHERE THAT EVIDENCE WAS BOTH RELEVANT AND CRITICAL TO [APPELLANT'S] DEFENSE?Appellant's Brief at 8-9.
VII. DID TRIAL COURT ABUSE ITS DISCRETION BY SENTENCING [APPELLANT] TO A MANIFESTLY UNREASONABLE AND EXCESSIVE SENTENCE OF INCARCERATION WHERE THE COURT FAILED TO ABIDE BY THE MANDATES OF 42 Pa.C.S. §9721(b), WHICH REQUIRES THE COURT TO CONSIDER THE RECOMMENDED SENTENCING GUIDELINES AT THE SENTENCING HEARING?
Appellant first argues that the trial court erred in denying his motion to suppress physical evidence. Appellant contends that the four corners of the affidavit failed to establish probable cause. He asserts that the affidavit contains deliberate misstatements, which should have been extracted by the trial court, and omissions for the purpose linking Appellant to the sexual assaults.
The standard of review an appellate court applies when considering an order denying a suppression motion is well-established. An appellate court may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004)). Where the record supports the factual findings of the trial court, the appellate court is bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Id. However, it is also well settled that the appellate court is not bound by the suppression court's conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455 (Pa. 2003)).
With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Only factual findings which are supported by the record are binding upon this [C]ourt.Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) (citations omitted). In addition, questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
Moreover, we are aware that Pennsylvania Rule of Criminal Procedure 581, which addresses the suppression of evidence, provides in relevant part as follows:
(H) The Commonwealth shall have the burden . . . of establishing that the challenged evidence was not obtained in violation of the defendant's rights.Pa.R.Crim.P. 581(H).
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the "right of each individual to be let alone."
Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).
Under both state and federal constitutions, search warrants must be supported by probable cause. Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa. Super. 2012), appeal denied, 57 A.3d 68 (Pa. 2012). Pennsylvania Rule of Criminal Procedure 203 addresses the requirements for the issuance of a search warrant and provides, in pertinent part, as follows:
Rule 203. Requirements for IssuancePa.R.Crim.P. 203(B).
(B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
In [Pennsylvania], the question of whether probable cause exists for the issuance of a search warrant must be answered according to the totality of the circumstances test articulated in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), and its Pennsylvania progeny, which incorporates the reasoning of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983). The task of the magistrate acting as the issuing authority is to make a practical, common sense assessment of whether, given all the circumstances set forth in the affidavit, a fair probability exists that contraband or evidence of a crime will be found in a particular place. A search warrant is defective if the issuing authority has not been supplied with the necessary information. The chronology established by the affidavit of probable cause must be evaluated according to a common sense determination.Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013) (internal citations and quotation marks omitted) (quoting Commonwealth v. Huntington, 924 A.2d 1252 (Pa. Super. 2007)). Probable cause is based on a finding of probability of criminality, not a prima facie showing. Id.
Pennsylvania law makes clear probable cause depends only on a "fair probability" that the items sought will be found in the place to be searched. Commonwealth v. Davis, 595 A.2d 1216, 1222 (Pa. Super. 1991). As we stated in Davis :
[T]he law does not require that the information in a warrant affidavit establish with absolute certainty that the object of the search will be found at the stated location, nor does it demand that the affidavit information preclude all possibility that the sought after article is not secreted in another location.Id. at 1222.
Because reasonable minds can differ on whether a particular affidavit establishes probable cause, "the preference for warrants is most appropriately effectuated by according great deference to a magistrate's determination." Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010). "A grudging or negative attitude by reviewing courts towards warrants...is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner." Id. at 655-656. "Further, a reviewing court is not to conduct a de novo review of the issuing authority's probable cause determination...." Id. at 655. Rather, the proper inquiry is whether there is record evidence to support the decision to issue the warrant. Id.
Here, we have reviewed the briefs of the parties, the relevant law, the certified record before us on appeal, and the thorough opinion of the Honorable Donna Jo McDaniel dated October 23, 2013. It is our conclusion that the trial court properly determined that the evidence seized should not have been suppressed and that Judge McDaniel's opinion adequately and accurately addresses this issue. Accordingly, we adopt Judge McDaniel's analysis as our own and affirm on its basis. Trial Court Opinion, 10/23/13, at 7-10. The parties are directed to attach the redacted copy of that opinion in the event of further proceedings in this matter.
In his second issue, Appellant argues that the trial court violated his constitutional rights to self-representation and a fair trial by forcing him to remain seated throughout the trial and prohibiting him from participating in sidebars. Appellant claims these restrictions denied him the right to meaningful self-representation and created the impression that he posed a danger in the courtroom.
"It is universally accepted that the trial judge has the responsibility and authority to maintain in the courtroom the appropriate atmosphere for the fair and orderly disposition of the issues presented. Proper security measures fall within the trial court's exercise of discretion. When necessary to prevent a defendant from disrupting a trial and possibly injuring others, reasonable security measures will not prejudice the defendant's fair trial rights." Commonwealth v. Gross, 453 A.2d 620, 622 (Pa. Super. 1982). See also In re F.C. III, 2 A.3d 1201, 1222 (Pa. 2010) (stating that "Proper security measures are within the sound discretion of the trial court, and, thus, will not be disturbed absent an abuse of that discretion"). "[W]henever a courtroom arrangement is challenged as inherently prejudicial ... the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether an unacceptable risk is presented of impermissible factors coming into play." Commonwealth v. Philistin, 53 A.3d 1, 32 (Pa. 2012) (internal quotations omitted).
Again, we have reviewed the briefs of the parties, the relevant law, the certified record before us on appeal, and the thorough opinion of the trial court dated October 23, 2013. It is our conclusion that the trial court properly addressed Appellant's conduct during trial and that the trial court's opinion adequately and accurately addresses this issue. We decline to substitute our judgment for that of the trial court, based on the cold record before us, and discern no error in the trial court's determination, in conjunction with the sheriffs in charge of courtroom security, that Appellant's movement be restricted. We are left to conclude that the trial court's handling of the matter was not so egregious as to deprive Appellant of his right to a fair trial. See Commonwealth v. Rega, 70 A.3d 777, 786, n.8. (Pa. 2013) (stating "courts have never tried, and could never hope, to eliminate from trial procedures every reminder that the State has chosen to marshal its resources against a defendant to punish him for alleged criminal conduct"). Accordingly, we adopt the trial court's analysis as our own and affirm on its basis. Trial Court Opinion, 10/23/13, at 19-21.
In his third issue, Appellant argues that the trial court abused its discretion by failing to appoint new trial counsel where court-appointed counsel refused to subpoena critical witnesses and was allegedly unprepared for trial. Appellant asserts that he waived his right to counsel only after the trial court denied his request for newly appointed counsel.
A criminal defendant's right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 and Article V, Section 9 of the Pennsylvania Constitution. Commonwealth v. Owens, 750 A.2d 872, 875 (Pa. Super. 2000). The Pennsylvania Rules of Criminal Procedure provide that "[a] motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons." Pa.R.Crim.P. 122(C). This Court has explained that "[a] defendant is not entitled to appointed counsel of his choice." Commonwealth v. Burkett, 5 A.3d 1260, 1277 (Pa. Super. 2010) (citation omitted). "Whether a motion for change of counsel should be granted is within the sound discretion of the trial court and will not be disturbed on appeal absent abuse of discretion." Commonwealth v. Cook, 952 A.2d 594, 617 (Pa. 2008) (citation omitted). Generally, before this Court will conclude that a trial court erred in refusing to appoint new counsel, "a defendant must demonstrate that he has an irreconcilable difference with counsel that precludes counsel from representing him." Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 2008) (citations omitted).
In addition, a criminal defendant has a well-settled constitutional right to dispense with counsel and to defend himself before the court. Commonwealth v. Starr, 664 A.2d 1326, 1334 (Pa. 1995) (citing Faretta v. California, 422 U.S. 806 (1975)). "Deprivation of these rights can never be harmless." Commonwealth v. Payson, 723 A.2d 695, 699-700 (Pa. Super. 1999).
As our Supreme Court explained in Starr :
In short, this highly personal constitutional right operates to prevent a state from bringing a person into its criminal courts and in those courts force a lawyer upon him when he asserts his constitutional right to conduct his own defense. Faretta, supra, at 807. Further, the denial of a criminal defendant's right to proceed pro se is not subject to a harmless error analysis. McKaskle v. Wiggins, 465 U.S. 168, 177, n.8, 104 S.Ct. 944, 79 L.Ed. 2d 122 (1984) ("the right to self-representation is either respected or denied; its deprivation cannot be harmless").Starr, 664 A.2d at 1334-1335. However, a criminal defendant's right to self-representation is not absolute. Commonwealth v. Vaglica, 673 A.2d 371, 373 (Pa. Super. 1996).
Pennsylvania Rule of Criminal Procedure 121 addresses the right to waive counsel and the appropriate colloquy for a criminal defendant who wishes to assert his right to self-representation, as contemplated in Faretta, and provides as follows:
Rule 121. Waiver of Counsel
(A) Generally.
(1) The defendant may waive the right to be represented by counsel.
(2) To ensure that the defendant's waiver of the right to counsel is knowing, voluntary, and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant:
(a) that the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges;
(c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;
(e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
(3) The judge or issuing authority may permit the attorney for the Commonwealth or defendant's attorney to conduct the examination of the defendant pursuant to paragraph (A)(2). The judge or issuing authority shall be present during this examination.
* * *
(C) Proceedings Before a Judge. When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary, and intelligent waiver of counsel.
(D) Standby Counsel. When the defendant's waiver of counsel is accepted, standby counsel may be appointed for the defendant. Standby counsel shall attend the proceedings and shall be available to the defendant for consultation and advice.
A defendant's request to proceed pro se must be timely and unequivocal and not made for purpose of disruption or delay. Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005). Also, "the inquiry surrounding whether a request to proceed pro se is unequivocal is fact intensive and should be based on the totality of the circumstances surrounding the request." Id. at 439. Thus, "[t]he right to waive counsel's assistance and continue pro se is not automatic." Commonwealth v. El, 977 A.2d 1158, 1163 (Pa. 2009). "Rather, only timely and clear requests trigger an inquiry into whether the right is being asserted knowingly and voluntarily." Id.
"Regardless of the defendant's prior experience with the justice system, a penetrating and comprehensive colloquy is mandated." Commonwealth v. Owens, 750 A.2d 872, 876 (Pa. Super. 2000). "The question of waiver [of counsel] must be determined regardless of whether the accused can or cannot afford to engage counsel." Payson, 723 A.2d at 701 (quoting Commonwealth v. Ford, 715 A.2d 1141 (Pa. Super. 1998)). Failure to conduct a thorough on-the-record colloquy before allowing a defendant to proceed to trial pro se constitutes reversible error. Id.
Once again, we have thoroughly reviewed the briefs of the parties, the relevant law, the certified record before us on appeal and the opinion authored by the trial court and it is our determination that the trial court's opinion comprehensively and accurately addresses this issue. Upon review, we conclude that the trial court's decision to deny Appellant's requests for new counsel was fully within its discretion, and we decline to grant Appellant relief on this basis. Appellant's request at issue was made after jury selection and sought new appointed counsel, not substitution of counsel of his choosing at his own expense. Moreover, contrary to Appellant's assertion, defense counsel was indeed prepared for trial. The trial court determined that Appellant failed to set forth a legitimate reason for appointing new counsel. Therefore, Appellant's request was properly denied. See e.g. Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007) (citation omitted) (holding that "'substantial reasons' or 'irreconcilable differences' warranting appointment of new counsel are not established where the defendant merely alleges a strained relationship with counsel, where there is a difference of opinion in trial strategy, where the defendant lacks confidence in counsel's ability, or where there is brevity of pretrial communications"); see also Pa.R.Crim.P. 122(C). In addition, the trial court properly colloquied Appellant on his request for self-representation, then permitted Appellant to proceed pro se. Accordingly, Appellant's claim of trial court error fails, and we affirm on the basis of the trial court's well-reasoned opinion. Trial Court Opinion, 10/23/13, at 10-18.
In his fourth issue, which also concerns the appointment of counsel, Appellant argues the trial court's decision to refuse Appellant's request for the appointment of new defense counsel was influenced by partiality towards the Commonwealth. Appellant asserts that, at the waiver-of-counsel hearing, the trial court made statements that demonstrated it was acting in concert with the Commonwealth when it denied Appellant's request for new trial counsel.
At the outset, we observe that Appellant has failed to provide any legal argument on this issue beyond citation allegedly pertaining to due process and fair trial. Appellant's Brief at 63-66. Appellant baldly concludes, "Because the Court's 'partiality, prejudice, bias, or ill-will' is evidenced by the record, the Court abused its discretion and thus violated [Appellant's] constitutional rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution." Id. at 66.
We note that Appellant's single citation to legal authority actually pertains to the appropriate standard of review to be utilized in addressing challenges to the discretionary aspects of sentencing. Commonwealth v. Cunningham, 80 A.2d 566, 575 (Pa. Super. 2002).
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We need not reach the merits of this issue because we are constrained to conclude that Appellant's discussion contained in the argument section of his brief addressing this issue is not properly developed for appellate review. It is well settled that the argument portion of an appellate brief must be developed with pertinent discussion of the issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a). See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996) (stating that "[t]he argument portion of an appellate brief must be developed with a pertinent discussion of the point which includes citations to the relevant authority").
In Commonwealth v. B.D.G., 959 A.2d 362 (Pa. Super. 2008), a panel of this Court offered the following relevant observation regarding the proper formation of the argument portion of an appellate brief:
In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. Commonwealth v. Williams, 566 Pa. 553, 577, 782 A.2d 517, 532 (2001) (Castille, J., concurring). To do so places the Court in the conflicting roles of advocate and neutral arbiter. Id. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996).Id. at 371-372. Thus, failure to cite case law or other legal authority in support of an argument results in waiver of the claim. Commonwealth v. Owens, 750 A.2d 872, 877 (Pa. Super. 2000).
Here, Appellant's argument pertaining to this issue contains no citation to relevant legal authority beyond a cursory legal citation at the end of his argument. Appellant's Brief at 63-66. Instead, the argument portion of Appellant's brief contains a list of circumstances which allegedly support his allegation that the trial court was partial towards the Commonwealth. Id. Because Appellant's argument on this issue consists of broad statements and allegations but no analysis with relevant law, the argument is not properly developed for our review as it fails to apply the law to the facts of the case. This failure to develop a legal argument precludes appellate review. Thus, we conclude that this issue is waived.
In his fifth issue, Appellant argues that the trial court violated his right to assistance of counsel at sentencing where Appellant had requested to be represented by counsel. Appellant notes that the trial court reappointed Attorney Narvin, but also expressed that Attorney Narvin would be serving only as stand-by counsel.
As we previously indicated, "The right to counsel is enshrined in both the United States and Pennsylvania Constitutions." Commonwealth v. Smith, 69 A.3d 259, 265 (Pa. Super. 2013) (citations omitted). Moreover, there is no disputing that there exists a constitutional right to counsel at sentencing. Id. Furthermore, to the extent that Appellant sought the appointment of new counsel, we note that "the right to appointed counsel does not include the right to counsel of the defendant's choice." Id. at 266 (quoting Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998)). Rather, the decision to appoint different counsel to a requesting defendant lies within the discretion of the trial court. Smith, 69 A.3d at 266. A defendant must show irreconcilable differences between himself and his court-appointed counsel before a trial court will be reversed for abuse of discretion in refusing to appoint new counsel. Id.
Here, our review of the record reflects that on March 5, 2013, Appellant filed a pro se "Motion for Appointment of Counsel for Sentencing through Appeal and to Postpone Sentencing." Docket Entry 23. On March 22, 2013, the trial court entered an order granting the motion for appointment of conflict counsel and denying the motion for postponement of sentencing. Docket Entry 24. Thereafter, Attorney Narvin filed a motion to withdraw as counsel. Docket Entry 25. Attorney Narvin's motion contained the following statement:
3. On March 18, 2013, by Order of this Honorable Court, counsel was again appointed to represent [Appellant] at sentencing now scheduled for March 26, 2013.Motion to Withdraw, 3/26/13, at 2. In addition, review of the sentencing transcript reflects that Attorney Narvin was appointed to represent Appellant at the sentencing proceedings, and did, in fact, represent Appellant at the time of sentencing. N.T., 3/26/13, at 2-5, 6-7. Accordingly, Appellant's contrary assertion that he was deprived of counsel at the time of sentencing is belied by the record. Therefore, this claim lacks merit.
In his sixth issue, Appellant argues that the trial court abused its discretion in failing to permit Appellant to show video-surveillance footage at trial. Specifically, Appellant contends that the trial court erred in failing to permit him to show a video of himself at the Meadows Casino in which he was wearing a different hooded sweatshirt than the one worn by the suspect in the Citizen's Bank ATM video surveillance footage.
Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the trial court's decision on such a question absent a clear abuse of discretion. Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa. Super. 2005). An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record. Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001).
Pennsylvania Rule of Evidence 402 provides that generally, "[a]ll relevant evidence is admissible" and "[e]vidence that is not relevant is not admissible." Pa.R.E. 402. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Pa.R.E. 401.
Thus, the basic requisite for the admissibility of any evidence in a case is that it be competent and relevant. Freidl, 834 A.2d at 641. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Commonwealth v. Barnes, 871 A.2d 812, 818 (Pa. Super. 2005). Although relevance has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Freidl, 834 A.2d at 641.
Our review of the record reflects that Appellant sought to show video-surveillance footage of himself at the Meadows Casino on the afternoon of one of the crimes, in which Appellant was wearing a light grey colored sweatshirt. The purpose was to refute that he was the perpetrator of the rape committed eight hours earlier on that day. The victim of the rape indicated that the perpetrator was wearing a dark colored sweatshirt. However, as the trial court explains "The Commonwealth never alleged that [Appellant] had only one hoodie - in fact, as the police search demonstrated, [Appellant] had multiple hoodies of several different brands - including Champion and Nike . . . . Since there was never an averment that [Appellant] had only one hoodie, video footage of him in different color hoodies is not probative of anything and has absolutely no relevance to the case." Trial Court Opinion, 10/23/13, at 35-36 (emphasis in original). Accordingly, we cannot conclude that the trial court abused its discretion in refusing to permit Appellant to show the video-surveillance footage in question. Thus, this claim lacks merit.
In his final issue, Appellant argues that the trial court abused its discretion by sentencing him to the statutory maximum term of incarceration on multiple convictions. Appellant claims that the trial court fashioned his sentence without acknowledging the recommended sentencing guideline ranges.
Appellant contends that the trial court erred in imposing a manifestly unreasonable sentence, and thus, he challenges the discretionary aspects of his sentence. It is well settled that there is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). Rather, an appellant's appeal should be considered to be a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)).
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Whether a particular issue constitutes a substantial question about the appropriateness of a sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001). As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the sentencing court's actions violated the sentencing code. Id. "A substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted).
Herein, the first three requirements of the four-part test are met; Appellant brought an appropriate appeal, raised the challenge in his post-sentence motions, and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant has raised a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court.
In Appellant's Rule 2119(f) statement, he extensively cites case law explaining that the sentencing court must provide adequate reasons for departing from the sentencing guidelines and asserts that the sentencing court abused its discretion because "the sentences imposed on six of the seven counts exceeded the aggravated recommended sentence, yet the trial court failed to reference the applicable guideline ranges at sentencing. Thus, a substantial question exists and this Court should review the discretionay aspects of [Appellant's] sentence.." Appellant's Brief at 78. We have found that a claim, which challenges the adequacy of the reasons given by the court for its sentencing choice, raises a substantial question. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (explaining that a substantial question is raised when an appellant claims the sentencing court failed to sufficiently state reasons for imposing a sentence outside the guidelines). Thus, we conclude that in this instance, Appellant has raised a substantial question. Accordingly, because Appellant has stated a substantial question, we will consider this issue on appeal. Nevertheless, we conclude that Appellant is entitled to no relief on this claim, as the record reveals that the court did consider the appropriate factors at the time of sentencing.
We reiterate that sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006). In this context, an abuse of discretion is not shown merely by an error in judgment. Id. 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. Id.
When the sentencing court imposes a sentence outside the guidelines, it must provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. The Sentencing Code requires a trial judge who intends to sentence outside the guidelines to demonstrate, on the record, his awareness of the guideline ranges. Having done so, the sentencing court may, in an appropriate case, deviate from the guidelines by fashioning a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community. In doing so, the sentencing judge must state of record the factual basis and specific reasons which compelled him or her to deviate from the guideline ranges. When evaluating a claim of this type, it is necessary to remember that the sentencing guidelines are advisory only.
[W]hen deviating from the sentencing guidelines, a trial judge must indicate that he understands the suggested ranges. However, there is no requirement that a sentencing court must evoke "magic words" in a verbatim recitation of the guidelines ranges to satisfy this requirement. Our law is clear that, when imposing a sentence, the trial court has rendered a proper "contemporaneous statement" under the mandate of the Sentencing Code "so long as the record demonstrates with clarity that the court considered the sentencing guidelines in a rational and systematic way and made a dispassionate decision to depart from them."
Our Supreme Court has ruled that where pre-sentence reports exist, the presumption will stand that the sentencing judge was both aware of and appropriately weighed all relevant
information contained therein. . . . As our Supreme Court has explained, "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."Commonwealth v. Griffin, 804 A.2d 1, 7-8 (Pa. Super. 2002) (citations omitted) (quotation marks in original).
When the record demonstrates that the sentencing court was aware of the guideline ranges and contains no indication that incorrect guideline ranges were applied or that the court misapplied the applicable ranges, we will not reverse merely because the specific ranges were not recited at the sentencing hearing.
Here, the sentencing court specifically stated that it "ordered, read and considered a pre-sentence report in this case." N.T., 3/26/13, at 2. In fact, the sentencing judge stated at the time of sentencing that she had the report for several weeks. Id. at 3. Although the sentencing court may not have recited at the time of sentencing the myriad of specific sentencing guideline ranges applicable, our review of the record does not reflect that incorrect guideline ranges were applied or that the sentencing court misapplied the applicable ranges. Therefore, we decline to find an abuse of discretion merely because the specific ranges were not recited by the sentencing court at the sentencing hearing.
Furthermore, our review of the record reveals that the sentencing court fulfilled the requirement of a contemporaneous written statement when it placed its reasons for the sentence imposed on the record during sentencing. N.T., 3/26/13, at 37-38. At the conclusion of sentencing, the judge reiterated Appellant's applicable prior record score and offense gravity score for the multiple felony-one convictions. Id. at 40. Thus, the record reflects proper consideration by the court of the appropriate statutory considerations. Therefore, we discern no abuse of discretion on the part of the sentencing court. Appellant's contrary claim lacks merit.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014