J-S79006-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SEAN GORDINE,

Appellant No. 2219 EDA 2013

Appeal from the Judgment of Sentence entered June 21, 2013,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0005860-2007.

BEFORE: ALLEN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY ALLEN, J.: FILED DECEMBER 17, 2014

Sean Gordine (“Appellant”) appeals from the judgment of sentence 

imposed after a jury convicted him of second-degree murder and related 

charges.1 We affirm.

The trial court summarized the pertinent facts and procedural history 

as follows:

Appellant[, who was fifteen at the time of the incident,] 

and three co-defendants, Eric Gales, Isaiah Ransome and 

Jerry Ransome, were each arrested and charged with 

murder and related offenses in connection with a robbery 

and shooting in the Frankford section of Philadelphia on 

October 3, 2006. During the course of the robbery, the 

____________________________________________

1 18 Pa.C.S.A. § 2502(b).
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defendants fired shots at each of the four victims, robbing 

all and killing one.

The defendants were jointly tried by jury before the 

Honorable Carolyn [Engel] Temin. On June 13, 2008, the 

jury returned a partial verdict finding all four defendants 

not guilty of first degree murder, but deadlocking on the 

remaining charges.

A second jury trial was set to commence in May of

2009. Prior to the start of trial, the Commonwealth asked 

Judge Temin to reconsider several evidentiary rulings she 

had made prior to [Appellant’s] first trial. Specifically, the 

Commonwealth sought the introduction of cell phone 

records and writings made by one or more of the 

defendants that had been ruled inadmissible at the 

previous trial. Judge Temin denied the Commonwealth’s 

Motion to Reconsider. The Commonwealth appealed Judge 

Temin’s ruling to the Superior Court, which vacated her 

Order. On March 3, 2011, defense counsel filed a Petition 

for Allowance of Appeal in the Pennsylvania Supreme 

Court. This Petition was denied on June 2, 2011. 

Appellant’s case was then scheduled for retrial.

On December 14, 2012, at the conclusion of a second 

jury trial, the jury found [Appellant] guilty of second 

degree murder, three counts of robbery (F-1), three 

counts of aggravated assault (F-1), criminal conspiracy, 

possession of an instrument of crime and violating §§ 6106 

and 6108 of the Uniform Firearms Act.

[Judge Temin retired prior to sentencing Appellant. 

Appellant’s case was administratively reassigned to the 

Honorable Benjamin Lerner, S.J.] On June 21, 2013, the 

court sentenced [Appellant] to a prison term of thirty-five 

(35) years to life on the second degree murder bill, and 

concurrent prison terms of five (5) to ten (10) years on 

each of the robbery bills and two-and-one-half (21⁄2) to five 

(5) years on the § 6106 bill. The court also imposed a 

sentence of five (5) to ten (10) years imprisonment on 

each aggravated assault bill to be served concurrent to 

each other, but consecutive to the sentence imposed on 

the murder bill. No further penalty was imposed on the 

remaining bills. Appellant’s total aggregate sentence was 

forty (40) years to life.
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Appellant filed post-sentence motions on July 1, 2013. 

Post sentence motions were denied by the court on July 5, 

2013.

Trial Court Opinion, 6/23/14, at 1-3 (footnotes omitted). This timely appeal 

followed. Both Appellant and the trial court have complied with Pa.R.A.P. 

1925.

Appellant raises the following issues:

1. DID THE TRIAL COURT COMMIT AN ABUSE OF 

DISCRETION WHEN IT OVERRULED A MOTION FOR 

MISTRIAL PROFFERED AFTER DETECTIVE BAMBERSKI 

OPINED THAT HE BELIEVED THAT JERRY RANSOME HAD 

TOLD HIM THE TRUTH?

2. IS 18 PA.C.S. § 1102.1 UNCONSTITUTIONAL BOTH 

UNDER THE PENNSYLVANIA AND UNITED STATES’ 

CONSTITUTIONS BECAUSE IT VIOLATES THE CRUEL AND 

UNUSUAL PUNISHMENT CLAUSES OF THOSE DOCUMENTS?

3. IS 18 PA.C.S. 1102.1 [] UNCONSTITUTIONAL UNDER 

THE UNITED STATES’ CONSTITUTION BECAUSE IT 

VIOLATES THE EQUAL PROTECTION CLAUSE IN THAT IT 

TREATS JUVENILES CONVICTED OF FIRST OR SECOND 

DEGREE MURDER AFTER ITS PASSAGE DIFFERENTLY THAN 

JUVENILES CONVICTED OF THE IDENTICAL CRIMES PRIOR 

TO ITS PASSAGE?

4. IS THE SENTENCE IMPOSED ON APPELLANT UNDER 18 

PA.C.S. 1102.1 UNCONSTITUTIONAL UNDER THE UNITED 

STATES’ AND PENNSYLVANIA CONSTITUTIONS BECAUSE 

IT VIOLATES THEIR RESPECTIVE EX POST FACTO 

CLAUSES?

5. DID THE SENTENCING COURT COMMIT AN ABUSE OF 

DISCRETION BY IMPOSING A SENTENCE THAT WAS FAR 

GREATER THAN NECESSARY TO REHABILITATE APPELLANT 

AND WHICH FAILED TO ADEQUATELY CONSIDER THAT 

APPELLANT WAS A JUVENILE WHEN THE CRIME HEREIN 

WAS COMMITTED AS WELL AS THE FACTORS SET FORTH 

IN [Miller v. Alabama, 132 S.Ct. 2455 (2012)] AND THE 

SENTENCING CODE?
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Appellant’s Brief at 3. 

In his first issue, Appellant asserts that the trial court erred in denying 

his motion for mistrial. We recently reiterated the applicable standard of 

review as follows:

It is well-settled that the review of a trial court’s denial 

of a motion for mistrial is limited to determining whether 

the trial court abused its discretion. An abuse of discretion 

is not merely an error of judgment, but if in reaching a 

conclusion the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice bias or ill-will . . . discretion is 

abused. A trial court may grant a mistrial only where the 

incident upon which the motion is based is of such a 

nature that its unavoidable effect is to deprive the 

defendant of a fair trial by preventing the jury from 

weighing and rendering a true verdict. A mistrial is not 

necessary where cautionary instructions are adequate to 

overcome prejudice.

Commonwealth v. Brooker, 2014 PA Super 209, *10-11, ___ A.3d. ___ 

(Pa. Super. 2014) (citation omitted).

The following exchange at trial, between the Commonwealth and a 

police detective who took a statement from one of Appellant’s codefendants, provides the basis for Appellant’s claim:

Q. Detective Bamberski, I notice that you documented in 

here if [Jerry Ransome] was given a soda and the 

opportunity to use a bathroom. Why did you do that?

A. Just, basically, to show that there was no coercion on 

anybody’s part. I mean, it’s - - you know, there are times 

when allegations are made and things of that nature in 

regards to what goes on in the Homicide Division. And in 

this case he was very forthcoming. He indicated that he 

wanted to talk and in my opinion was very truthful about 

the fact - -
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[JERRY RANSOME’S COUNSEL]: Objection.

N.T., 12/12/12, at 33.

The trial court responded:

THE COURT: The objection is sustained. The 

jury will totally disregard that last statement by the 

detective. What is true and what is not true is up to you to 

decide and nobody else’s opinion, including mine, is 

relevant on that issue.

So you are to totally wipe from your mind what 

the detective said. You are not to consider it in any way, 

shape or form. Truthfulness and accuracy of any 

testimony, including the statements that are being read to 

you so far are totally up to you to determine.

Id. at 33-34.

We initially note that the record supports the Commonwealth’s 

contention that Appellant’s claim is waived because he failed to make a 

timely motion for mistrial. See Pa.R.A.P. 605(b) (explaining that, in order to 

be timely, a motion for mistrial “shall be made when the [allegedly 

prejudicial] event is disclosed”). Here, Appellant did not join in Jerry 

Ransome’s request for a mistrial until the conclusion of Detective 

Bamberski’s testimony. See N.T., 12/12/12, at 74. Case law has held that 

such a delay renders a motion for mistrial untimely. See, e.g., 

Commonwealth v. Boring, 684 A.2d 561, 568 (Pa. Super. 1996) 

(explaining that a motion for mistrial was untimely when it was made a 

considerable length of time after the prejudicial reference was made, and 

after the Commonwealth had concluded direct examination of its witness). 
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Even if not waived, the trial court found Appellant’s claim to be 

meritless and belied by the record. According to the trial court:

At trial, Detective Bamberski testified about the facts 

and circumstances surrounding Jerry Ransome’s decision 

to give a detailed statement to police following his arrest. 

Detective Bamberski stated that he gave Jerry Ransome a 

soda and allowed him to use the rest room during the 

course of his interview. This testimony was elicited to 

demonstrate that Ransome was not coerced into giving his 

statement. Detective Bamberski further testified that 

Ransome was “very forthcoming” and in his opinion “very 

truthful.” At that point, Jerry Ransome’s attorney 

objected. He did not request a mistrial, as [Appellant] 

claims herein. The court sustained counsel’s objection and 

immediately gave a curative instruction. The court told 

the jury it was to disregard Detective Bamberski’s 

statement, and that it was up to the jury to determine the 

truthfulness and accuracy of any statement, including 

statements being read into evidence.

The trial court did not abuse its discretion in failing to 

order a mistrial sua sponte. The testimony in issue was 

related only to Jerry Ransome’s statement. It was not 

entered into evidence against [Appellant]. Moreover, the 

court gave an immediate instruction to the jury that it 

should not consider Detective Bamberski’s opinion. 

Appellant was in no way prejudiced by the court’s ruling.

Trial Court Opinion, 6/23/14, at 12.

Our review of the record supports the trial court’s conclusions. The 

trial court’s immediate curative instruction remedied any prejudice caused 

by detective’s unsolicited opinion. Brooker, supra. Appellant’s first issue 

fails.

Appellant next claims that the recently enacted juvenile sentencing 

provision found at 18 Pa.C.S.A. section 1102.1 is unconstitutional because it 
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“violates the United States and Pennsylvania constitutions’ prohibition 

against cruel punishment found in the Eighth Amendment and Article 1, 

section 13, respectively, because it requires the imposition of a mandatory 

minimum sentence of thirty years’ incarceration upon defendants fifteen 

years or older convicted of second-degree murder, a sentence that is the 

equivalent of a life sentence, without consideration of the factors set forth” 

in Miller, supra. Appellant’s Brief at 26.

This Court has recently rejected a similar claim under the federal 

constitution made by a juvenile who was sentenced following the passage of 

Section 1102. See Brooker, supra; Commonwealth v. Lawrence, 99 

A.3d 116 (Pa. Super. 2014). As we are bound by these decisions, we need 

not discuss Appellant’s claims further. 

Moreover, as to Appellant’s claim under the Pennsylvania constitution, 

we agree with the Commonwealth that Appellant has waived his challenge 

because his brief is devoid of the requisite independent constitutional 

analysis. See generally, Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 

1991). Rather, Appellant concedes that the protection provided under both 

constitutions is co-extensive, and that Pennsylvania courts have repeatedly 

held that “the Pennsylvania Constitution affords no broader protection 

against excessive sentences than that provided by the Eighth Amendment to 

the United States Constitution.” Appellant’s Brief at 26 n.7. Accordingly, 

our decisions in both Brooker and Lawrence amply demonstrate why 
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Appellant’s constitutional challenge is equally meritless under the 

Pennsylvania Constitution.

In his next two issues, Appellant asserts that Section 1102.1 is 

unconstitutional because it violates both the equal protection clause of the 

United States Constitution, as well as the prohibition against ex post facto 

laws contained in both the federal and state constitutions. Although 

Appellant did not raise these claims in his post-sentence motions, he asserts 

that they implicate the legality of his sentence and cannot be waived. See 

Appellant’s Brief at 36-37. Addressing this same factual circumstance in 

Lawrence, supra, this Court thoroughly reviewed the distinction “between 

legal sentencing questions and an illegal sentence” claim. Lawrence, 99 

A.3d at **13. We then concluded:

Because Appellant’s Equal Protection and Ex Post Facto 

Clause arguments directly seek protection from 

legislatures, not judges, we hold that these arguments fall 

into the category of a sentencing issue that presents a 

legal question rather than a claim that the sentence is 

illegal.

***

As a result, we conclude that the trial court was correct 

that Appellant waived his arguments under the Equal 

Protection and Ex Post Facto Clauses by not raising them 

in his post-sentence motion below.

Id. at **17-18 (citation omitted).

Here, given our holding in Lawrence, we agree with the trial court 

that Appellant has waived his remaining constitutional challenges. 
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Moreover, we note that in Brooker, supra, this Court addressed and 

rejected a claim that Section 1102 violated the ex post facto clauses of both 

the federal and state consitutions. See Brooker, 2014 PA Super 209, at 

**30-40.

In his final issue, Appellant challenges the discretionary aspects of his 

sentence. As this Court has summarized:

Appellant challenges the discretionary aspects of sentencing 

for which there is no automatic right to appeal. This appeal 

is, therefore, more appropriately considered a petition for 

allowance of appeal. Two requirements must be met before 

a challenge to the judgment of sentence will be heard on 

the merits. First, the appellant must set forth in his [or her] 

brief a concise statement of matters relied upon for 

allowance of appeal with respect to the discretionary 

aspects of his [or her] sentence. Pa.R.A.P. 2119(f). 

Second, he or she must show that there is a substantial 

question that the sentence imposed is not appropriate under 

the Sentencing Code. 42 Pa.C.S.A. § 9781(b)[.]

The determination of whether a particular case raises a 

substantial question is to be evaluated on a case-by-case 

basis. Generally, however, in order to establish that there 

is a substantial question, the appellant must show actions 

by the sentencing court inconsistent with the Sentencing 

Code or contrary to the fundamental norms underlying the 

sentencing process.

Commonwealth v. Marts, 889 A.2d 608, 611-12 (Pa. Super. 2005) 

(footnote and citations omitted).

In his 2119(f) statement, Appellant asserts:

[T]he sentencing court failed to consider [the Miller] 

factors, and thus further review should be granted.

In the light most favorable to the Commonwealth, the 

evidence shows that [Appellant] was a minor participant in 
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the crime and that he was one of the youngest of the four 

persons who committed the crime. Moreover, given his 

age and involvement, it is respectively submit[ted] that a 

sentence of forty years to life was unreasonably harsh and 

requires further review.

Appellant’s Brief at 53. We conclude that Appellant’s sentencing claim has 

raised a substantial question. See Commonwealth v. Seagraves, 2014 

PA Super 252, *7, ___ A.3d ___ (Pa. Super. 2014) (citing Commonwealth 

v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (concluding that defendant’s 

discretionary sentencing claim raised after he was resentenced in light of 

Miller raised a substantial question; “prior decisions from this Court 

involving whether a substantial question has been raised by claims that the 

sentencing court ‘failed to consider’ or ‘failed to adequately consider’ 

sentencing factors “has been less than a model of clarity and consistency”). 

Thus, we reach the merits of Appellant’s claim.

Our standard of review is well settled:

In reviewing a challenge to the discretionary aspects of 

sentencing, we evaluate the court’s decision under an 

abuse of discretion standard. When, as here, the trial 

court has the benefit of a presentence report, we presume 

that the court was aware of relevant information regarding 

the defendant’s character and weighed those 

considerations along with any mitigating factors.

Seagraves, at *8 (citations omitted).

As noted by the trial court, “[t]he transcript from [Appellant’s] 

sentencing hearing on June 23, 2013 is not available. On June 20, 2014, 

this court held a hearing for purposes of re-creating the record [] from 
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[Appellant’s] sentencing proceedings and directed counsel to submit a 

Statement [in lieu of transcript] pursuant to Pa.R.A.P. 1923 and 1924 for 

this court’s approval.” Trial Court Opinion, 6/23/14, at 2 n.4.

After receiving the statements, the trial court provided the following 

explanation for its sentencing choice in its Pa.R.A.P. 1925(a) opinion:

In fashioning its sentence, the court considered 

[Appellant’s] pre-sentence investigation, the facts and 

circumstances of [Appellant’s] crimes, all of the testimony, 

evidence and arguments presented at [Appellant’s] trial 

and sentencing hearing. The court also considered each of 

the factors listed above and the age-related factors 

espoused in Miller. Appellant’s sentence was completely 

appropriate, and this court did not abuse its discretion 

when it imposed sentence.

Trial Court Opinion, 6/23/14, at 9-10.

Within his brief, Appellant provides no basis upon which we may 

conclude that the sentencing court abused its discretion. Because the 

sentencing court possessed a presentence report, we assume the court “was 

aware of relevant information regarding the defendant’s character and 

weighed those considerations along with any mitigating factors.” 

Seagraves, supra. Of necessity, some of the information regarding 

Appellant disclosed in the presentence report would involve the factors 

discussed in Miller.

Moreover, the only statement made by Appellant in his Pa.R.A.P. 1923 

statement was that the defense argued Appellant “was a follower, not a 

leader, and is amenable to rehabilitation.” Rule 1923 Statement, 6/30/14, 
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at 1. We note, however, statements made by the Commonwealth in its 

detailed sentencing memorandum, submitted prior to Appellant’s sentencing 

hearing. See Sentencing Memorandum, 5/16/13. This memorandum 

demonstrates that, despite his youth, Appellant had multiple contacts with 

the juvenile justice system and, in fact, was on probation at the time of the 

victim’s murder.

Finally, because a thirty year sentence for Appellant’s second-degree 

murder was mandatory, the only real discretion exercised by the sentencing 

court was in its sentencing of Appellant to an additional five years for the 

murder conviction, and its decision to run one of Appellant’s remaining 

sentences consecutive to the sentence for the murder conviction. Given 

Appellant’s multiple convictions and multiple victims, Appellant’s sentencing 

claim fails. See generally, Dodge, supra.

In sum, because his claims on appeal are either waived or without 

merit, we affirm Appellant’s judgment of sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/17/2014