Opinion
J-S83022-17 No. 116 EDA 2017
04-09-2018
COMMONWEALTH OF PENNSYLVANIA v. DASHAWN L. SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 14, 2016
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000745-2016, CP-46-CR-0000753-2016, CP-46-CR-0005110-2013 BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J. MEMORANDUM BY OLSON, J.:
Appellant, Dashawn L. Smith, appeals from the judgment of sentence, in three separate criminal matters, entered on December 14, 2016. Upon review, we affirm.
As noted by the trial court:
First, [Appellant] appeals from his judgment of sentence[] entered on December 14, 2016, at docket CP-46-CR-005110-2013 ("5110-2013"), imposed following a stipulated non-jury trial on July 8, 2016, where he was convicted of persons not to possess firearms and possession with intent to deliver [a controlled substance ("PWID")]. [18 Pa.C.S.A. § 6105 and 35 P.S. § 780-113(a)(30), respectively.] [Appellant] has also appealed from his judgment of sentence entered on December 14, 2016, at docket CP-46-CR-0000753-2016 ("753-2016"), imposed following a stipulated non-jury trial on September 26, 2016, at which he was found guilty [PWID], criminal conspiracy, resisting arrest[,] and recklessly endangering another person [("REAP")]. [35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, 18 Pa.C.S.A. § 5104, and 18 Pa.C.S.A. § 2705, respectively.] Finally, [Appellant] has appealed from his judgment of sentence entered on December 14, 2016, at docket CP-46-CR-0000745-2016 ("745-2016"), imposed following his entry of a guilty plea on the same date to criminal trespass[, 18 Pa.C.S.A. § 3503].Trial Court Opinion, 3/29/2017, at 2-3 (footnotes incorporated). However, this appeal only addresses issues related to the first two cases, 5110-2013 and 753-2016, as set forth above.
We briefly set forth the facts and procedural history of these cases as follows. At docket 5110-2013, while on parole for an unrelated PWID conviction, Appellant violated several provisions of his parole in June of 2013, including missing curfew, testing positive twice for controlled substances, and giving his parole officer conflicting excuses for the alleged misconduct. Additionally, when going through the metal detector at the parole office, Appellant's parole officer saw Appellant with a cellular telephone and a stack of currency, despite the fact that Appellant had been unemployed for the prior seven months. Appellant's parole officer and the officer's supervisor searched Appellant's cellular telephone and found incriminating evidence, including text messages indicating Appellant was selling drugs and other text messages discussing Appellant's positive drug tests. Appellant was detained. In a search incident to that detention, the parole agents recovered $460.00 from Appellant's person, which Appellant attributed to selling DVDs or t-shirts. A subsequent search of Appellant's apartment, on June 19, 2013, uncovered 932 individual baggies of heroin, a digital scale, unused baggies, and an unloaded .45 caliber handgun under the mattress in the bedroom belonging to Appellant. Prior to trial, on June 15, 2016, the trial court held a suppression hearing and denied Appellant relief. On July 8, 2016, following a stipulated non-jury trial, Appellant was convicted of persons not to possess a firearm and PWID. On December 14, 2016, the trial court sentenced Appellant to six years and three months to 14 years of imprisonment.
At docket 753-2016, police saw Appellant enter an apartment building located at 3 West Fourth Street in Montgomery County, Pennsylvania on December 17, 2015. They saw Appellant and a woman later identified as Appellant's girlfriend, Melissa Griffin, enter the building together. At the time, there was an active, outstanding warrant for Appellant's arrest and one of the investigating officers knew Appellant carried a firearm in the past and believed he may be armed. Appellant eventually left the building alone, saw the police when they approached him, and fled. While fleeing, Appellant discarded a cellular telephone and 14 individual bags of heroin. Police arrested Appellant and applied for a search warrant for the apartment at 3 West Fourth Street. Before obtaining a search warrant, the officers decided to secure the apartment because Griffin was still inside and could destroy evidence. Police announced their presence, opened the unlocked front door, and Griffin came out of one of the bedrooms with her hands up. Police then conducted a protective sweep of the apartment, only looking in places where a person could hide. In doing so, police observed three cellular telephones and a stack of money in one room. In another bedroom, they saw items of drug paraphernalia. All of these items were in plain view and police did not confiscate them. Instead, they awaited the search warrant for the apartment. While in police custody, Appellant asked why the police were searching the residence at 3 West Fourth Street when he lived at 416 Vine Street. Thereafter, the police applied for a search warrant for 416 Vine Street. While executing the search warrants, police recovered over 1,200 individually packaged bags of heroin totaling 24.5 grams. On September 26, 2016, the trial court held a suppression hearing and denied Appellant relief. Appellant proceeded directly to a stipulated non-jury trial wherein he was convicted of the aforementioned charges. On December 14, 2016, the trial court sentenced Appellant to 27 months to six years of imprisonment and imposed this sentence consecutive to the sentence at docket number 5110-2013. A timely appeal followed.
As the trial court noted, and appellate counsel concedes on appeal, counsel for Appellant filed a timely single notice of appeal challenging the judgment of sentence at all three docket numbers on December 28, 2016. See Appellant's Brief at 14; see also Trial Court Opinion, 3/29/2017, at 1-2. Generally, taking one appeal from separate judgments is not acceptable practice and is discouraged. See Dong Yuan Chen v. Saidi , 100 A.3d 587, 589 n.1 (Pa. Super. 2014), citing Pa.R.A.P. 341, Note and Pa.R.A.P. 512, Note. However, we have overlooked such procedural error when the trial court has addressed the issues pertaining to each order. Id. Moreover, as discussed later, because Appellant challenges the trial court's imposition of his sentence at docket 753-2016 consecutive to the sentence imposed at docket number 5110-2013, the issues raised on appeal overlap. Each appeal also specifically challenges suppression. Had Appellant filed separate notices of appeal, this Court could have sua sponte ordered consolidation for appellate review. See Pa.R.A.P. 513 ("...where the same question is involved in two or more appeals in different cases, the appellate court may, in its discretion, order them to be argued together in all particulars as if but a single appeal.) After receiving the notices of appeal, on January 6, 2017, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely, raising issues related to docket numbers 5110-2013 and 753-2016. The trial court issued a single opinion pursuant to Pa.R.A.P. 1925(a) on March 29, 2017, addressing all of Appellant's issues related to both cases. For all of these reasons we will overlook the procedural misstep of filing a single notice of appeal.
On appeal, Appellant presents the following issues for our review:
1. [At docket 5110-2013, d]id [Appellant's parole agent] have reasonable suspicion to engage in a warrantless confiscation and search of Appellant's cellphone pursuant to 61 Pa.C.S.A. [§] 6153?Appellant's Brief at 11.
2. Based on the United States and Pennsylvania Constitutions, the trial court erred in denying the suppression of all evidence recovered from the properties located at 3 West Street and 416 Vine Street [at docket 753-2016?]
3. Whether the trial court erred in finding that the prohibition against nighttime warrants applied?
4. Whether the trial court erred in sentencing Appellant to consecutive sentences under the circumstances?
Appellant's statement of questions involved does not correspond with his subsequent argument. To avoid confusion, we have provided Appellant's second issue as set forth in the argument section of his appellate brief. See Appellant's Brief at 30 (complete capitalization omitted).
In his first issue presented, with regard to docket 5110-2013, Appellant claims that the trial court erred by denying suppression of evidence recovered from his cellphone and residence upon finding violations of the terms of his parole. Appellant's Brief at 19-29. More specifically, Appellant claims that once his parole agent witnessed a curfew violation and received confirmation that Appellant tested positive for controlled substances, the investigation into the violations should have concluded. Id. at 20. "Thus, Appellant asserts that two positive urines and a curfew violation, both of which were confirmed, would not give the parole agents the right to seize, and search his cellphone or his residence at that time because the two violations were no longer suspicions and had been confirmed prior to the search of the phone." Id. at 27. As such, Appellant argues that the subsequent search of his cellular phone and residence were illegal and the evidence obtained required suppression.
Our standard of review for challenges to the denial of a suppression motion is as follows:
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted....Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where ... the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus,
the conclusions of law of the courts below are subject to our plenary review.Commonwealth v. Haslam , 138 A.3d 680, 685-686 (Pa. Super. 2016) (citation omitted).
Upon review of the trial court opinion, the parties' briefs, the facts of this case, and the applicable law, we conclude that the trial court's factual findings in denying Appellant's suppression claim are supported by the record. The trial court first recognized that because Appellant was on parole, he had a diminished expectation of privacy and parole officers need only a reasonable suspicion that a parolee is violating the law in order to conduct a search of the parolee's person or property. Trial Court Opinion, 3/31/2017, at 7-8. The trial court considered the statutory factors set forth at 61 Pa.C.S.A. § 6153 and determined the parole agent in this matter had the requisite reasonable suspicion to conduct the subsequent searches. Id. at 8-9. The trial court found that the parole agent knew Appellant's criminal history and was supervising him for a prior PWID conviction. Id. at 9. When Appellant missed curfew, he provided conflicting statements about his whereabouts. Id. He tested positive for controlled substances, and did not have a prescription, which showed Appellant had access to illicit narcotics. Id. The parole agent also personally witnessed Appellant with a large sum of cash and a cellular telephone, even though Appellant was not employed. Id.
Appellant relies upon the United States Supreme Court decision Riley v. California , 134 S. Ct. 2473 (2014) for the proposition that "there is an intimate expectation of privacy in the cellphone and it is not subject to a search without a warrant." Appellant's Brief at 27. However, we have specifically held that Riley is inapplicable, and a warrantless search of a cellular telephone is proper, when the search involves a parolee and the parole officer has reasonable suspicion to believe there was a violation of parole. See Commonwealth v. Murray , 174 A.3d 1147, 1156 (Pa. Super. 2017).
Appellant does not challenge or address this determination.
Section 6153 only requires reasonable suspicion that the cellular telephone contained evidence of violations. There is simply no provision that a parole officer must stop searching once a suspicion is confirmed, as Appellant suggests. Moreover, despite Appellant's claim that breaking curfew and testing positive for controlled substances were the only potential violations the parole agent was investigating, it is also clear from a totality of the evidence of record that the parole agent had the requisite reasonable suspicion to believe that Appellant was also procuring and potentially selling narcotics. The facts here suggested drug dealing (i.e., lack of gainful employment coupled with possession of a cellular telephone and cash), which is a separate violation of parole from using narcotics and missing curfew. Hence, the subsequent searches were proper and suppression unwarranted. We conclude that there has been no error at docket 5110-2013 and that the March 31, 2017 opinion meticulously, thoroughly, and accurately disposes of Appellant's issue on appeal. Accordingly, we adopt its rationale as our own.
In his second issue presented, Appellant claims the trial court erred in denying suppression of evidence recovered from 3 West Fourth Street and 416 Vine Street at docket 753-2016. Appellant's Brief at 30. More specifically, Appellant argues that police had a warrant for his arrest in an unrelated, alleged burglary and that the trial court erred "by finding that exigent circumstances were present that permitted the initial warrantless entry into 3 West Fourth Street that led to the observation of drug related materials and ultimately the search warrant that led to the finding of contraband." Id. Additionally, Appellant challenges the protective sweep at 3 West Fourth Street alleging that, because he was arrested outside, Appellant claims there were no issues with officer safety or any risk of destruction of evidence inside "in this arrest for the alleged burglary." Id. at 31. He claims "[t]he [possibility that Appellant carried a] gun was known [by police] prior to going to the premises and, the discarding of drugs occurred outside the property with no indication the drugs were related to the property." Id. at 33 (case citation omitted). Appellant posits that if the investigating officer "already knew prior to going into the property without a warrant that he would be looking for evidence of criminal activity such as a gun or drugs, he should have obtained the warrant before he went, or at least justified his reason for not being able to timely secure a warrant prior to engaging in the operation." Id. at 35. Appellant also argues that it was unreasonable for the police to conduct a protective sweep of 3 West Fourth Street. Id. As such, Appellant argues:
The trial court concluded that the items of contraband observed during the initial illegal foray into 3 West Fourth Street would support probable cause to issue the search warrants for the two properties[, 3 West Fourth Street and 416 Vine Street.] Thus, if [] the initial foray into the property [at 3 West Fourth Street] was not constitutional, then the items seized pursuant to the search warrant are the fruit of the poisonous tree and both sets of respective items confiscated from each property must be suppressed[.]Id. at 36.
Here, the trial court first recognized that there is an exigency exception to the search warrant requirement. Trial Court Opinion, 3/31/2017, at 14-15. The trial court then examined the 10 established factors regarding exigency and concluded that the exception to the warrant requirement had been met. Id. at 15. Although police had a warrant for Appellant's arrest in conjunction with an alleged burglary, they were also investigating illegal drug activity at that location. Id. at 16 (record citation omitted). The investigating officer was aware that Appellant previously carried a weapon. Id. Appellant fled from police and they recovered packets of heroin that Appellant discarded while fleeing the officers. Id. Police were concerned that Melissa Griffin, who was still inside the residence, could destroy additional evidence. Id. Thus, the trial court determined "that the initial entry into the residence was permitted pursuant to exigent circumstances." Id. The trial court then concluded that the police were justified in conducting a protective sweep of the property to ensure their safety and were not required to ignore the contraband seen in plain view. Id. at 17. The trial court found that police knew at least one other person was present and the protective sweep was limited to locating people inside the residence, in places where a person could hide. Id. at 18.
Based upon our standard of review, we discern no error or abuse of discretion in denying suppression at docket 753-2016. Police believed that Appellant could have been armed. When they attempted to execute an arrest warrant, Appellant fled and discarded narcotics. It was reasonable for police to believe they would find additional evidence of narcotics in the residence Appellant recently exited and they knew that Griffin was still inside and could destroy evidence. Moreover, police did not uncover a firearm upon Appellant's arrest and, thus, recognized that their safety was still compromised. Accordingly, exigent circumstances were present and a protective sweep of the property permissible. Thus, suppression was unwarranted. We conclude that there has been no error in this case and that the March 31, 2017 opinion meticulously, thoroughly, and accurately disposes of Appellant's issue on appeal. Again, we adopt its rationale for denying suppression.
In his third issue presented, Appellant again challenges the trial court's decision to deny suppression at docket 753-2016. Appellant's Brief at 39-46. Appellant claims that the initial entry into 3 West Fourth Street, as well as the subsequent searches executed by search warrant of 3 West Fourth Street and 416 Vine, were conducted in violation of the prohibition on executing searches at nighttime. Id. He claims that "[n]othing in the warrant explained why a nighttime search of either property was necessary" and the trial court erred by concluding "the nighttime search was appropriate due to fear of destruction of evidence and the fact that police were holding the location secure while waiting for the search warrant." Id. at 41.
The trial court and the Commonwealth assert that Appellant waived this issue. See Trial Court Opinion, 3/31/2017, at 21; Commonwealth's Brief at 17. Upon review, we agree. We have previously determined:
"[A]ppellate review of an order denying suppression is limited to examination of the precise basis under which suppression initially was sought; no new theories of relief may be considered on appeal." Commonwealth v. Little , 903 A.2d 1269, 1272-1273 (Pa. Super. 2006); Commonwealth v. Thur , 906 A.2d 552, 566 (Pa. Super. 2006) ("When a defendant raises a suppression claim to the trial court and supports that claim with a particular argument or arguments, the defendant cannot then raise for the first time on appeal different arguments supporting suppression.").
It is well-settled law that motions to suppress evidence are decided prior to the beginning of trial. Moreover, pre-trial rulings on the suppression of evidence are final. In sum, suppression motions must ordinarily be made before the trial to the suppression court, they must be made with specificity and particularity as to the evidence sought to be suppressed and the reasons for the suppression, and the suppression court's determination is to be final, except in the case of evidence not earlier available.
Commonwealth v. Metzer , 634 A.2d 228, 233 (Pa. Super. 1993) (citations omitted).Commonwealth v. Freeman , 128 A.3d 1231, 1241-1242 (Pa. Super. 2015). Upon review, Appellant's omnibus pretrial motion to suppress did not challenge the search of property based upon the time of night. See Omnibus Pre-Trial Motion, 3/11/2016, (unpaginated) at 2, ¶ 5(a)-(g). Thus, we conclude that Appellant waived this issue.
Although the burden in suppression matters is on the Commonwealth to establish "that the challenged evidence was not obtained in violation of the defendant's rights," Pa.R.Crim.P. 581(D), that burden is triggered only when the defendant "state[s] specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof." Commonwealth v. McDonald , 881 A.2d 858, 860 (Pa. Super. 2005). Thus, when a defendant's motion to suppress does not assert specifically the grounds for suppression, he or she cannot later complain that the Commonwealth failed to address a particular theory never expressed in that motion. McDonald , 881 A.2d at 860; Commonwealth v. Quaid , 871 A.2d 246, 249 (Pa. Super. 2005) ("[W]hen a motion to suppress is not specific in asserting the evidence believed to have been unlawfully obtained and/or the basis for the unlawfulness, the defendant cannot complain if the Commonwealth fails to address the legality of the evidence the defendant wishes to contest.").
Finally, Appellant contends that the trial court erred in sentencing him to an aggravated range sentence at docket 5110-2013 and imposing it consecutively to the sentence at docket 753-2116. Appellant's Brief at 49-50. Appellant also argues that the trial court failed to consider "mitigating circumstances and salient rehabilitation factors[,]" including his "drug addiction" and "horrific childhood." Id. at 51 and 61. Appellant claims these failures resulted in him receiving unreasonable sentences. Id. at 61.
We have previously determined:
It is well-settled that "[t]he right to appeal a discretionary aspect of sentence is not absolute." Commonwealth v. Dunphy , 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the discretionary aspects of a sentence, an appellant's appeal should be considered as a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated 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:
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Radecki , 2018 WL 989152, at *21 (Pa. Super. 2018).
Id. at 170 (citing Commonwealth v . Evans , 901 A.2d 528 (Pa. Super. 2006)). Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-case basis. See Commonwealth v. Kenner , 784 A.2d 808, 811 (Pa. Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, the first three requirements have been met. Appellant filed a timely appeal, preserved the issue in a post-sentence motion, and included a statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. Thus, we turn to whether Appellant raises a substantial question to implicate our review.
We have previously determined:
We have found that a substantial question exists "when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). "[W]e cannot look beyond the statement of questions presented and the prefatory [Rule] 2119(f) statement to determine whether a substantial question exists." Commonwealth v. Christine , 78 A.3d 1, 10 (Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa.2015).
It is settled that this Court does not accept bald assertions of sentencing errors. See Commonwealth v. Malovich , 903 A.2d 1247, 1252 (Pa. Super. 2006).
* * *
We consistently have recognized that excessiveness claims premised on imposition of consecutive sentences do not raise a substantial question for our review. See Commonwealth v. Caldwell , 117 A.3d 763, 769 (Pa. Super. 2015) (en banc ) (stating, "[a] court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question[.]"), appeal denied, 126 A.3d 1282 (Pa. 2015); see also Commonwealth v. Ahmad , 961 A.2d 884, 887 n.7 (Pa. Super. 2008) ; Commonwealth v. Pass , 914 A.2d 442, 446-447 (Pa. Super. 2006).
* * *
[However, a]s we explained in Commonwealth v. Dodge , 77 A.3d 1263 (Pa. Super. 2013)]:
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.
Radecki , 2018 WL 989152, at *22 (parallel citations omitted).
Dodge , 77 A.3d at 1270 (emphasis added).
* * *
We cautioned that although Dodge had raised a substantial question in his particular case, a defendant does not raise a substantial question "where the facts of the case [being reviewed] do not warrant the conclusion that there is a plausible argument that the sentence is prima facie excessive based on the criminal conduct involved." Id. at 1271.
Here, the facts of the cases do not warrant the conclusion that the consecutive nature of the sentences were prima facie excessive based upon the criminal conduct involved. Here, there were two separate criminal cases involving different crimes, one involving a firearm. We conclude that Appellant failed to raise a substantial question regarding the consecutive nature of the sentences.
We further note that the precedent we relied upon above addresses the imposition of consecutive sentences within the same criminal information. Here, however, Appellant challenges the consecutive nature of sentences imposed in two separate criminal informations. There is no precedent declaring that such sentences are contrary to sentencing norms or inconsistent with our Sentencing Code.
However, "[w]e have held that a substantial question is raised where an appellant alleges the sentencing court erred by imposing an aggravated range sentence without consideration of mitigating circumstances." Commonwealth v. Bowen , 55 A.3d 1254, 1263 (Pa. Super. 2012). Thus, we will address the merits of Appellant's claim that his aggravated range sentence imposed at docket 5110-2013 was excessive and an abuse of the trial court's discretion.
Our standard of review is as follows:
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. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Cunningham , 805 A.2d 566, 575 (Pa. Super. 2002) (citations omitted). More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance to the trial court's sentencing determination:
[T]he sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
In every case where a sentencing court imposes a sentence outside of the sentencing guidelines, the court must
provide in open court a contemporaneous statement of reasons in support of its sentence. 42 Pa.C.S.A. § 9721; see also Commonwealth v. Eby , 784 A.2d 204, 205-206 (Pa. Super. 2001).
The statute requires a trial judge who intends to sentence a defendant outside of the guidelines to demonstrate on the record, as a proper starting point, [its] awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion 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, so long as [it] also states of record the factual basis and specific reasons which compelled [it] to deviate from the guideline range.
Bowen , 55 A.3d at 1263-1264 (Pa. Super. 2012).
Commonwealth v. Gibson , 716 A.2d 1275, 1276-1277 (Pa. Super. 1998) (internal quotations omitted).
When evaluating a challenge to the discretionary aspects of sentence [], it is important to remember that the sentencing guidelines are advisory in nature. Id. at 1277. If the sentencing court deems it appropriate to sentence outside of the guidelines, it may do so as long as it offers reasons for this determination. Id. "[O]ur Supreme Court has indicated that if the sentencing court proffers reasons indicating that its decision to depart from the guidelines is not unreasonable, we must affirm a sentence that falls outside those guidelines." Id. (citations omitted, emphasis in original).
Moreover, where the sentencing court had the benefit of reviewing a pre-sentence investigation report (PSI), an appellate court is required to:
presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.Commonwealth v. Knox , 165 A.3d 925, 930-931 (Pa. Super. 2017) (citation omitted).
In this case, there is no dispute that the trial court had the benefit of PSI reports prior to sentencing. Further, Appellant does not dispute the accuracy of those PSI reports. Thus, we presume that the trial court was aware of Appellant's mitigating circumstances and considered them when fashioning its sentence. Moreover, upon review of the record, the trial court placed its reasons for its sentence on the record, first recognizing that Appellant had a "not-so-wonderful childhood" and chronicling his addiction to controlled substances, but ultimately concluding that he "led a life of committing rather serious crimes, crimes that pose a significant harm and danger to other people and to the community, crimes involving addiction, distributing heroin, a situation that costs society and the police time and money to a considerable degree [and] he admits to long-term selling of controlled substances for profit." N.T., 12/14/2016, at 43. The trial court also stated that it believed a lengthy term of imprisonment was necessary to protect the public, because efforts at prior rehabilitation with Appellant were unsuccessful. Id. For these reasons, an upward departure from the sentencing guidelines was not unreasonable and we discern no abuse of discretion in sentencing Appellant.
Therefore, we affirm Appellant's first two issues based on the trial court's March 31, 2017 and adopt it as our own. Because we have adopted the trial court's opinion, we direct the parties to include the trial court's opinion in all future filings relating to our examination of the merits of these appeals, as expressed herein. Moreover, Appellant waived his third appellate issue and we discern no sentencing error. As such, all of Appellant's appellate issues fail.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/9/18
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