J-S21016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DONNIE RUDOLPH

Appellant No. 672 EDA 2014

Appeal from the Judgment of Sentence February 20, 2014

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005455-2011

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED APRIL 27, 2015

Donnie Rudolph (“Appellant”) appeals the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following his 

conviction for possession of a controlled substance with intent to deliver,1

and conspiracy to deliver a controlled substance.2 We affirm.

The trial court set forth the procedural posture of this matter as 

follows:

On December 9, 2013, in a jury trial [], [Appellant] was 

tried in absentia and found guilty of [p]ossession with [i]ntent to 

[d]eliver a [c]ontrolled [s]ubstance, crack cocaine, and 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).

2 18 Pa.C.S. § 903.
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[c]riminal [c]onspiracy to [d]eliver [c]rack [c]ocaine. On 

February 4, 2014, this [c]ourt sentenced the Appellant to fortytwo (42) to one-hundred and twenty (120) months of

incarceration for [p]ossession with [i]ntent to [d]eliver a 

controlled substance and a consecutive thirty-three (33) to 

ninety (90) months of incarceration for [c]onspiracy to [d]eliver 

a controlled substance. The Appellant was also sentenced to a 

consecutive three (3) to six (6) months of incarceration for 

contempt of court for failing to appear for trial. In total, this 

[c]ourt sentenced Appellant to seventy-eight (78) to twohundred and sixteen (216) months of incarceration.

On February 7, 2014, [trial counsel] filed a Motion for 

Reconsideration of Sentence on behalf of Appellant, which this 

[c]ourt denied on February 20, 2014. On February 25, 2014, 

[trial counsel] filed a timely Notice of Appeal. On March 4, 2014, 

this [c]ourt ordered the Appellant to file a Statement of Errors 

Complained [of] on Appeal pursuant to Pa.R.A.P. 1925(b) within 

twenty-one (21) days. [Trial counsel] subsequently withdrew 

from representation of the Appellant. On April 4, 2011, this 

[c]ourt appointed [appellate counsel] to represent the Appellant 

for his appeal. On May 16, 2014, [appellate counsel], on behalf 

of the Appellant, filed a Statement of Errors Complained of on 

Appeal[.]

Trial Court Pa.R.A.P. 1925(a) Opinion, field October 21, 2014, pp. 1-2 

(footnote omitted).

Appellant raises the following issues for our review:

I. Is the [A]ppellant entitled to a new sentenc[ing] hearing 

because the sentence imposed by the trial court of 6 years, 3 

months to 17 years, 5 months in prison is unreasonable?

II. Did the trial court err in trying the [A]ppellant in absentia

because the Commonwealth did not prove by a preponderance of 

the evidence that [Appellant] willfully, voluntarily and without 

ca[u]se absented himself from the trial?

III. Was the evidence insufficient to find the [A]ppellant guilty of 

[p]ossession of a controlled substance with intent to deliver 

because at most the evidence showed that the [A]ppellant was a 

purchaser of illegal drugs not a seller of illegal drugs?
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IV. Was the evidence insufficient to find the [A]ppellant guilty of 

[c]onspiracy to distribute drugs because at most the evidence 

showed that the [A]ppellant was a purchaser of illegal drugs, but 

did not enter into an agreement to distribute or sell illegal drugs?

Appellant’s Brief, p. 2.

Regarding Appellant’s discretionary aspects of sentencing claim, we 

observe:

[T]he proper standard of review when considering whether to 

affirm the sentencing court's determination is an abuse of 

discretion. ...[A]n abuse of discretion is more than a mere error 

of judgment; thus, a sentencing court will not have abused its 

discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will. In more expansive terms, 

our Court recently offered: An abuse of discretion may not be 

found merely because an appellate court might have reached a 

different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or 

such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate review is that the 

sentencing court is in the best position to determine the proper 

penalty for a particular offense based upon an evaluation of the 

individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super.2010) 

(internal citations omitted).

Further, we note that “[c]hallenges to the discretionary aspects of 

sentencing do not entitle a petitioner to review as of right.” 

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before 

this Court can address such a discretionary challenge, an appellant must 

comply with the following requirements: 
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An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: (1) whether appellant has filed a timely notice of 

appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was 

properly preserved at sentencing or in a motion to reconsider 

and modify sentence, see Pa.R.Crim.P. [720]; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) 

whether there is a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code. 

Allen, 24 A.3d at 1064. 

Here, Appellant filed a timely notice of appeal, and preserved his 

issues in a post-sentence motion. Further, Appellant’s brief includes a 

concise statement of the reasons relied upon for allowance of appeal 

pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p. 3. Further, 

Appellant has raised a substantial question for our review. See 

Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super.2002) (holding a 

“claim that the sentencing court imposed an unreasonable sentence by 

sentencing outside the guideline ranges presents a ‘substantial question’ for 

the Superior Court’s review.”). Thus, we can properly address Appellant’s 

sentencing claim on appeal.3

____________________________________________

3 We acknowledge and appreciate the Commonwealth’s argument that 

Appellant submitted a deficient Pa.R.A.P. 2119(f) statement. See

Commonwealth’s Brief, pp. 7-8. However, since the 2119(f) statement 

succeeds in articulating the substantial question of whether the trial court 

sentenced in the aggravated range without providing adequate reasons 

therefor, we will review the claim despite the deficiencies noted by the 

Commonwealth. 
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We review discretionary aspects of sentence claims under the following 

standard of review:

If this Court grants appeal and reviews the sentence, the 

standard of review is well-settled: sentencing is vested in the 

discretion of the trial court, and will not be disturbed absent a 

manifest abuse of that discretion. An abuse of discretion 

involves a sentence which was manifestly unreasonable, or 

which resulted from partiality, prejudice, bias or ill will. It is 

more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 

(Pa.Super.2006) (citations omitted).

This Court reviews a trial court’s determination to proceed with a trial 

in absentia for an abuse of discretion. Commonwealth v. Wilson, 712 

A.2d 735, 738 (Pa.1998). An appellant who claims the trial court improperly 

tried him in absentia bears the burden of establishing that his absence was 

with cause. Commonwealth v. Johnson, 764 A.2d 1094, 1097 

(Pa.Super.2000). 

Additionally, when examining a challenge to the sufficiency of 

evidence, our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying [the above] test, 

we may not weigh the evidence and substitute our judgment for 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 
J-S21016-15

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circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

[trier] of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, part 

or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal 

denied, 32 A.3d 1275 (Pa.2011).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Chris R. 

Wogan, we conclude Appellant’s issues merit no relief. The trial court 

opinion comprehensively discusses the pertinent law and facts, and properly 

disposes of the questions presented. (See Trial Court Opinion, dated 

October 21, 2014, at 2-5, 7-21) (finding: (1) the court properly tried

Appellant in absentia where Appellant was a fugitive for 22 months and 

failed to give any credible reason for failing to appear in court; (2) the 

evidence was sufficient to convict Appellant of possession of a controlled 

substance with intent to deliver and conspiracy to deliver a controlled 

substance where the evidence illustrated police observed Appellant and a codefendant working together to conduct hand-to-hand drug sales on a street 

corner; and (3) the court properly deviated from the sentencing guidelines 

and imposed consecutive sentences on Appellant after reviewing the 

presentence investigation report, examining the aggravating factors 
J-S21016-15

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involved, and considering Appellant’s age, family history, and rehabilitative 

needs). Accordingly, we affirm on the basis of the trial court’s opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2015
1 

1The defendant was represented by Dolores Bbjazi, Esq. at trial. 

contempt of court for failing to appear for triai. In total, 

consecutive three (3) to six (6) months of incarceration for 

controlled substance. The Appellant was also sentenced to a 

ninety (90) months of incircetation for Conspiracy to Deliver a 

controlled substance and a c6nsecutive thirty-three (33) to 

months of incarceration for Possession with Intent to Deliver a 

the Appellant to forty-two (42) to one-hundred and twenty _(120) 

Deliver Crack Cocaine.1 on February 4, 2014, this Court sentenced 

Controlled Substance, crack cocaine, and Criminal Conspiracy to 

absentia and found guilty of Possession with Intent to Deiiver a 

Chris R. Wogan, the Appellant, Donnie Rudolph, was tried in 

ocr2 1 2014 

Cri · 

. Fi' . mm.a! Appea1s U . 

Procadural Posture lrSfJLJd/C/BI Q' f · n,f 

--------·- is net of PA 

On December 9, 2013, in a jury trial before The Honorable 

CHRIS R. WOGAN, J. 

OP I.N. l O.N FILED 

DO~IE RUDOLPH 

SUPERIOR COURT 

672 EDA 2014 

11111111111111 Bii 111111 

7213236751 

CP-51-CR-0005455-2011 

CP-51-CR-0005455-2011 Comm. v. Rudolph, Oon~le 

OpinK>n 

COMMONWEALTH OF PENNSYLVANIA 

IN TSE COURT or COMMON PLEAS OF PH'ILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

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2 

absence without cause at the time scheduled for the start of 

Rules of Criminal Procedure provides that "the Appellant's 

without cause from his trial. Rule 602 of the Pennsylvania 

due to the fact that the Appellant was voluntarily absent 

This Court did not err in trying the Appellant in absentia 

A. Appellant's first error complained of on appeal is: "The 

trial court erred in trying the Appellant in absentia. The 

Appellant did not voluntarily absent himself from trial. The 

Appellant was not absent without cause froin his trial." 

Discussion 

listing five appellate issues. No relief is due. 

Appellant, filed a Statement of Errors Complained of on Appeal, 

appeal. On May 16, 2014, Mr~ Cotter, on behalf of the 

appointed John Cotter, Esq. to represent the Appellant for his 

representation of the Appellant. On April 4, 2011, this Court 

twenty-one (21) days. Ms. Bojazi subsequently withdrew from 

Complained on Appeal pursuant to Pa. R.A.P. 1925(b) within 

this Court ordered the Appellant to file a Statement of Errors 

Ms. Bojazi filed a timely Notice of Appeal. On March 4, 2014, 

this Court denied on February 20, 2014. On February 25, 2014, 

Reconsideration of Sentence on behalf of the Appellant, which 

On February 7, 2014 Ms. Bojazi filed a Motion for 

hundred and sixteen (216) months of incarceration. 

this Court sentenced the Appellant to seventy-eight (78) to twoCirculated 03/31/2015 04:02 PM
3 

Id. 

Court of Pennsylvania upheld a lower court's decision to try a 

defendant in absentia when there was proof that the defendant 

knew the date and time of the trial, and the defendant had 

attended court proceedings leading up to the commencement of the 

trial. Id. The court found those two f~cts to be sufficient to 

show that the defendant voluntarily absented himself from trial. 

the problem." Id. In the case of Comm. v. Wilson, the Supreme 

With the exception of situations in which the defendant is 

prevented from attending the proceedings for reasons beyond his 

other control, the defendant is expected to be present at all 

stages of trial. Com. v. Wilson, 551 Pa. 593, 600 (1998). 

Moreover, a "defendant owes the court an affirmative duty to 

advise [the court] if he or she will be absent" and "if a 

defendant has a valid reason for failing to appear ... then the 

defendant can alert the court personally or through counsel of 

(1992). 

may be tried in absentia." Com.. v .. Sullens, 533 Pa. 99, 104 

of Pennsylvani~ has held that "whert a defend~nt is absent 

without cause at the time his trial is scheduled to begin, he 

sentence." Pa. R. Crim. P 602. Furthermore; the Supreme Court 

trial or during trial shall not preclude proceeding with the 

trial, including the return of the verdict and the imposition of 

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4 

2 The defendant failed to appear to twelve court dates from April 2012 through 

January 2014 . 

. 

3 The defendant was present in court for arraignment on June 1, 2011, and 

scheduling conferences on June 30, 2011, July 25, 2011, and September 20, 

2011 .. 

credible explanation for his absences showed that he voluntarily 

appear, his knowledge of various trial dates, and his lack of 

This Court found the Appellant's continual failure to 

ordered child support. 

warrant in Monmouth County, New Jersey for failure to pay court 

missing court appearances. Appellant also has an outstanding 

he was caring for his child, as if this served as an excuse for 

Appellant argued he was unable to attend his court dates because 

previously scheduled court prbceedings.3 Furthermore, the 

of his trial date and time, and the Appellant had attended 

N.T. 02/04/2014 pg. 9-12. Additionally, the Appellant was aware 

authorities for failing to find him while he was a fugitive! 

further to bizarrely blame his lack of attendance on the 

where the supposed fire took place. The Appellant went on 

identify when the fire took place or even give a location of 

for details regarding the fire, the Appellant was unable to 

found this to be ridiculous. When the Court asked the Appellant 

showing up for court for twenty-two months; however, this Court 

to appear in court.2 He claimed that a "fire" prevented him from 

(22} months and failed to give any credible reason for failing 

The Appellant was a fugitive for approximately twenty-two 

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5 

As a result, the Supreme Court has long held that: 

223 U.S. 442, 223 (1912) (quoting Barton v. State, 67 Ga. 653). 

at the time the verdict is rendered." Diaz v. United States, 

be no conviction of any defendant unless he wished to be present 

judgment by simply absconding from trial, "otherwise there could 

A defendant should not be allowed to avert an unfavorable 

Id., at 261. 

absentia does not offend the defendant's con$titutional rights. 

voluntary waiver of this right, and tryirtg such a defendant in 

A defendant's repeated absence without cause constitutes a 

actions. Com. v. Hill, 737 A.2d 255, 261 (Pa. Super. Ct. 1999). 

can be waived implicitly or explicitly by a defendant's own 

the Pennsylvania Constitution to be present at trial, this right 

the 6th Amendment of the U.S. Constitution and Art. I, sec. 9 of 

absentia. Although a defendant has an absolute right under both 

Constitution prohibits this Court from trying the Appellant in 

Neither the United States Constitution nor the Pennsylvania 

B. Appellant's second error complained of on appeal is: "The 

Appellant was denied both his Federal and State Constitutional 

Rights to be present at his trial. See Pa.. Const Art 1 sec. 9, s= 

Amendment U.S. constitution." 

Court did not err in trying the Appellant in absentia. 

absented him$elf withbut c~use from his trial. Therefore, this 

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6 

never provided an explanation for his continued absence. The 

Commonwealth attempted to locate him unsuccessfully, and he 

defendant was not present during pretrial proceedings, the 

See Com. v. Hill, 737 A.2d 255, 261 (Pa. Super. Ct. 1999) (The 

arraignment, preliminary hearing and scheduling conferences.} 

aware of his trial date and had appeared in court for his 

cause at the time his trial began. The defendant was fully 

defendant in absentia when the defendant was absent without 

412 (Pa. Super. Ct. 1997} (The court properly tried the 

present at the beginning of trial. See Com. v. King, 695 A.2d 

to appear without cause regardless of whether or not they were 

interpreted the Court's holding to include defendants who fail 

the Court's decision in Diaz, Pennsylvania courts have 

for the commencement of the trial proceedings. However, since 

voluntarily absented himself from trial after having appeared 

at one point limited to those situations where the defendant 

The Supreme Court's decision in Diaz v. United States was 

Id., at 455. 

'where the offense is not capital and the accused is 

not in custody, the prevailing rule has been that if, 

after the trial has begun in his presence, 

he voluntarily absents himself, this does not nullify 

what has been done or prevent the completion of 

the trial, but, on the contrary, operates as a waiver 

of his right to be present and leaves the court free 

to proceed with the trial in like manner and with like 

effect as if he were present.' 

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7 

2005) (citations omitted). A reviewing court must also draw all 

doubt. Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 

finder to find every element of the crime beyond a reasonable 

determine whether the evidence was sufficient to allow the facttrial in the light most favorable to the verdict winner and must 

evidence, an appellate court views all the evidence admitted at 

In reviewing a clai~ regarding the sufficiency of the 

substances, beyond a reasonable doubt, and no relief is due. 

substances and of possession with intent to deliver controlled 

Appellant of criminal conspiracy to distribute controlled 

The evidence at trial was more than sufficient to convict 

C. Appellant's third error complained of on appeal is: "The 

evidence was insufficien-t to establish that the Defendant was 

the perpetrator of the offenses of Criminal Conspiracy to 

distribute controlled substances and possession with intent to 

distribute controlled substance. The evidence was insufficient 

to find that the Defendant possessed a controlled substance or 

that the Defendant possessed a cont.rolled substance with intent 

to distribute. The evidence was insufficient to find that the 

defendant was involved in an agreement to distribute a 

controlled substance." 

trial. 

absentia did not violate the Appellant's right to be present at 

As a result, this Court's decision to try the Appellant in 

The Appellant voluntarily absented himself without cause. 

voluntarily absent without cause.) 

court properly tried the defendant in absentia for being 

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intent to exercise that control." Commonwealth v. Kirkland, 831 

A.2d 607, 610 (Pa.Super. 2003). "The intent to exercise 

" 

"When contraband is not found on the defendant's person, 

the Commonwealth must establish constructive possession ... 

Jones, supra at 121 (citing Commonwealth v. Haskins, 677 A.2d 

328, 330 (Pa.Super. 1996), appeal denied, 692 A.2d 563 (Pa. 

1997)). "Constructive poss~ssion is the ability to exercise 

conscious control or dominion over the illegal substance and the 

other person committed an overt act in pursuance of such 

agreement.n (18 Pa.C.S. § 903). 

Here, the evidence clearly demonstrates that the Appellant 

was part of an illicit drug dealing scheme with Mr. Shaheeed 

Hall. 

in conduct which would constitute such crime .. and such 

reasonable inferences from the evidence in the light most 

favorable to the verdict winner. Commonwealth.v. Lacava, 666 

A.2d 221, 226 (Pa. 1995) (citation omitted). 

To sustain Appellant's convictions, the Commonwealth must 

prove, beyond a reasonable doubt, that he possessed a controlled 

substahce with th~ intent to deliver it (35 P.S. § 780- 

113(a) (30)),and that he, with the intent of promoting or 

facilitating the commission of a crime, "agreed with another 

person or persons that they or one or more of them would engage 

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9 

conscious dominion can be inferred from the totality of the 

circumstances." Id, 

However, constructive possession is irrelevant where the 

defendant is convicted of a conspiracy with the person in 

possession of the illegal drugs. Commonwealth v. Holt, 711 A.2d 

1011, 1011 (Pa.Super. 1998) {"In other words, when the appellant 

was convicted of conspir~cy to possess with intent to deliver 

the drugs ... he is also culpable for the crime itself, that 

is possession with intent to deliver cocaine."); accord 

Commonwealth v. Perez, 931 A.2d 703, 709 (Pa.Super. 2007). 

Further, each member of a conspiracy is liable for the acts of 

his co~conspirators committed in furtherance of their criminal 

activity. Commonwealth v. Geiger, 944 A.2d 85, 91 (Pa.Super. 

2008). It follows that because "the criminal intent necessary 

to establish accomplice liability is identical to the criminal 

intent necessary to establish conspiracy," a co-conspiracy can 

be found guilty of p6ssessing a controlled substance with intent 

to deliver even without having any direct contact with the 

illegal drugs. Commonwealth v. Hennigan, 753 A.2d 245, 254 

(Pa.Super. 2000). Here, Appellant and Mr. Hall can be charged 

with each other's respective offenses. 

To establish possession of a controlled substance with 

intent to deliver, the Commonwealth must prove beyond a 

reasonable doubt that the defendant possessed a controlled 

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from the surrounding circumstances, including, but not limited 

to: " ( 1) an association between alleged conspirators; ( 2) the 

knowledge of the commission of crime; (3) presence at the scene 

of the crime; and (4) in some situations, participation in the 

doubt. Id. (citations omitted), A conspiracy can be inferred 

substance and intended to deliver it. Kirkland, at 611 (citing 

Commonwealth v. Conaway, 791 A.2d 359 (Pa.Super. 2002). The 

trier of fact may infer intent from the facts and circumstances 

of the case, such as the packaging, quantity of the drugs 

possessed, form of the drug, the behavior of the offender, and 

lack of paraphernalia for consumption. Jones, at 121 (citations 

omitted). Here, Appellant was arrested after being observ~d as 

serving as a lookout for Mr. Hall's drug transactions and was 

found having three packets of crack cocaine on his person. 

To sustain the Appellant's conviction for criminal 

conspiracy, the Commonwealth must establish that the Appellant: 

(1) entered into an agreement with another to commit or aid in 

an unlawful act, (2) shared criminal intent, and (3) an overt 

act was performed in furtherance of the conspiracy. Jones, at 

121 (citing Commonwealth v. Murphy, 795 A.2d 1025 (Pa.Super. 

2002). The conspiracy may be proved by circumstantial evidence. 

Jones, at 121. The conduct of the parties and the surrounding 

circumstances of their conduct can create a web of evidence that 

links the accused to the alleged conspiracy beyond a reasonable 

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object of the conspiracy." Commonwealth v .. McKeever, 689 A.2d 

272, 274 (Pa.Super. 1997). 

On February 26, 2011, at approximately 6:40 p.m., Officer 

Barry Stewart, part of the 16th District Narcotics Enforcement 

Team ("NETS"), was conducting a confidential surveillance for 

illegal sales of n~rcotics in the area of the 3900 block of West 

Reno Street in Philadelphia. (N.T. 12/6/13 pg. 50-51). Officer 

Stewart has been a Philadelphia police officer for over 19 years 

and over 15 years in the NETS team. Id. at pg. 48, 50. He has 

specific training in narcotics and has taken part in over 300 to 

400 narcotics investigations. Id. at pg. 49-48. 

On February 26, Officer Stewart observed Donnie Rudolph and 

Mr. Shaheed Hall standing together on the west end of the 3900 

block of Reno Street. After ten minutes of surveillance, 

Officer Stewart observed a group of unknown black females, 

males, and a white female begin to gather on the corner into a 

group consisting of ten or more. Id. at pg. 53-54. Upon 

noticing the group, Appellant and Mr. Hall made a motion with 

their hands, wave-like, and the group followed them up the 

street into a vacant lot. Id. at pg. 54. Mr. Hall proceeded to 

step into the lot with the group while Mr. Rudolph stood right 

outside of the opening and began looking up and down the street, 

left and right. Id. 

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Officer Stewart then noticed Mr. Hall begin to perform 

hand-to~hand motions with the individuals, receiving United 

States currency from the individuals while providing them with 

unknown small objects. Id. at 54-55. Officer Stewart stated 

that Mr. Hall's hand-to-hand motions consisted of him holding 

something in a bawled up fist and each individual would then 

catch it. Id. at 55. Officer Stewart stated that upon 

receiving the object from Mr. Hall the individuals would 

immediately leave the lot. Id. at 56. 

While Mr. Hall was exchanging items with these individuals, 

Mr. Rudolph was standing in front of the lot in the middle and 

looking up and down the street. Id. at 57. After the 

individuals dispersed, Mr. Hall came out of the lot and stood 

next to Mr. Rudolph. Id. at 59. They eventually left the lot 

together, walking westbbund on Reno Street. Mr. Stewart 

testified that he felt Mr. Rudolph was serving as a lookout for 

Mr. Hall while he sold drugs. Id. at 59. Officer Stewart, based 

on these facts and circumstances and his own training and 

experience, believed that Hall and Rudolph were involved in a 

drug-dealing scheme. Id. at 91. 

As the buyers dispersed from the lot, Officer Stewart 

relayed their descriptions to his backup officers over his 

police radio. Id. at 59-60. Officer Stewart instructed his 

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backup officers to arrest these individuals along with Hall and 

the Appellant. Id. 

One of officer Stewart's backup officer, Officer Chitra 

Sethuraman, a 14-year veteran with 8 years as part of the NETS 

team, was directed to stop and conduct a narcotics investigation 

on a white female who was wearing a long black leather coat. 

Id. at 107-08. Officer Sethuraman approached the suspect and 

identified himself as a police officer. Id. at 108-110. After 

doing so he immediately observed her discard a small item from 

her left hand. Id. at 108-110. As he got closer he noticed it 

was a small blue tinted Ziploc packet containing a chunky offwhite powdery substance. Id. at 108. Officer Sethuraman 

retrieved the package and placed the white female, later 

identified as Ms. Cynthia Steel, under arrest for narcotics 

violations. Id. 

At trial, Officer Sethuraman was provided Commonwealth 

Exhibit-7, a Philadelphia property receipt number 2949957 and a 

blue Ziploc packet containing an off-white chunky substance. 

Id. at 110. Officer Sethuraman testified that the crack cocaine 

in the blue packet was a fair and accurate representation of the 

crack cocaine that Ms. Steel discarded on the ground. Id. at 

110-11. Officer Sethurman also testified that in his ekperience 

as a narcotics officer drug purchasers typically leave the 

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Another backup officer, Justin Falcone, was instructed by 

Officer Stewart to apprehend a woman wearing an orange jacket 

and blue jeans and recently left the vacant lot following a 

meeting with Mr. Hall. Id. at 118. The woman, later identified 

as Diane Gilchrist, was stopped by Officer Falcone on 40th and 

Parrish Street. Id. Officer Falcone recovered one blue Ziploc 

packet with crack cocaine inside from Ms. Gilchrist's left 

jacket pocket. Id. at 118-19. The packet was identified at 

trial by Officer Falcone and he stated that it was a fair and 

accurate representation of the packet he recovered off of Diane 

Gilchrist. Id. at 120~21~ The crack cocaine was not included at 

the trial presentation, but residue remained in the packet. Id. 

Officer Falcone is also part of the NETS unit and has 

worked 150 to 200 narcotic surveillances, 90% of them in a 

backup capacity. Id. at 123. His role in these investigations 

as a backup is to arrest drug addicts and drug dealers. Id. at 

124. Officer Falcone testified that drug purchasers do not 

typically hang out with their dealers after the transaction is 

consummated. Id. 

Shaheed Hall was arrested by Officer Patrick DiDomenico on 

February 26, 2011, at approximately 7 p.m. Officer DiDomenico 

was part of the NETS team and working in his backup role to 

location of the transaction immediately after it takes place. 

Id. at 111. 

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aforementioned investigation as a backup to Officer Stewart. 

Officer Kirk was part of the NETS team and was working the 

The Commonwealth also called police officer Raymond Kirk. 

use their drugs. Id. at 133. 

amongst the buyers and buyers like to go someplace quickly to 

132-33. He stated that this is because sellers don't like to be 

and sellers go their separate ways after a transaction. Id. at 

Officer DiDomenico went on to testify that usually buyers 

recovered from Mr. Hall. Id. at 131-32. 

130-32. Officer DiDomenico testified that these were the items 

additional blue bag that he found in the vacant lot. Id. at 

three packets seized from Mr~ Hall's mouth, the $377, and the 

Officer DiDomenico was presented the property receipts for the 

packets recovered from Mr. Hall's mouth. Id. at 130-31. At trial 

Street and found an additional blue packet that matched the 

Officer DiDomenico returned to the lot on the 3900 block of Reho 

U.S. currency from Mr. Hall. Id. After searching Mr. Hall, 

crack cocaine. Id. Officer DiDomenico also recovered $377 in 

these packets was an off-white chunky substance, consistent with 

Hallis mouth, three blue-tinted packets. Id. at 129. Inside 

testified that wheh he arrested Mr. Hall he recovered, from Mr. 

by Officer Stewart. Id. at 128-29. Officer DiDomenico 

Mr. Hall based on the location and direction of travel provided 

Officer Stewart. Id. at 126-28. Officer DiDomenico arrested 

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16 

then go use their drugs. Id. at 145. 

Viewing all of the evidence presented at trial and drawing 

all inferences from such evidence in the light most favorable to 

the Commonwealth, the verdict winner, it is clear that the 

evidence was sufficient for the jury to find that the 

Appellant's convictions must be upheld. 

Appellant was arrested with crack cocaine on his person and 

his associate, Mr. Hall, was also apprehended with packets of 

the drug as well as $377 in cash. Further, Appellant was 

observed by NETS officers as serving as a look-out for Mr. Hall 

while he engaged in drug transactions. 

at 144-45. Typically they usually complete their purchase and 

Id. at 137-139. Officer Kirk was the arresting officer of 

Appellant. Id. at 139~ Officer Kirk recovered three blue 

tinted Ziplocs that contained an off-white chunk substance, 

alleged crack cocaine, from Appellant's left jacket pocket. Id. 

Appellant was not with Mr, Hall when he was arrested, Mr. Hall 

was about a half a block away. Id. Officer Kirk was presented 

the property receipt at trial the three Ziploc packets 

containing an off-white chunky substance of alleged crack 

cocaine. Id. at 14li Officer Kirk identified the packets as 

those recovered from Appellant at his arrest. 

Officer Kirk ~lso testified that drug buyers do not 

typically congregate with their dealers after a transaction. Id. 

) Circulated 03/31/2015 04:02 PM
17 

Appellant poses to society. In crafting the Appellant's 

well as aggravating factors such as the potential danger the 

Appellant's rehabilitative needs, mitigating circumstances, as 

circumstances. To the contrary, this Court did consider the 

the Appellant's rehabilitative needs or mitigating 

Pa.C.S. 9721(b) of the Sentencing Code by failing to consider 

imposed, nor did it violate the sentencing requirements of 42 

This Court did not abuse its discretion in the sentence 

D. Appellant's fourth error complained of on appeal is: ·"The 

trial court abused its discretion in the sentence it imposed and 

the sentence was unreasonable. The trial court did not take into 

consideration all the factors required by 42 Pa.CSA sec. 

9721(b). The trial court did not take into consideration the 

defendant's age family history and rehabilitative needs in 

imposing the sentence. The trial court also ran the sentences 

consecutively which also was unreasonable. The sentence was 

outside the aggravated range of the sentence guidelines." 

conspiracy to deliver~ controlled substance. 

possession with intent to distribute a controlled substance and 

drug-dealing conspiracy with Mr. Hall and his convictions for 

sufficient evidence to establish that Appellant was part of a 

Commonwealth, the jury verdict winner, it is clear that there is 

from the evidence in the light most favorable to the 

Viewing this evidence and drawing all reasonable inferences 

the packets found on Appellant and Mr. Hall. 

arrested and found to have packets of crack-Cocaine that matched 

Two of these buyers, Ms. Steel and Ms. Gilchrist, were 

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18 

sentence, this Court struck a balance between the Appellant's 

potential for rehabilitation and the Court's duty to protect the 

public. 

Allowance of an ctppeal of a sentence is only permitted when 

the appellate court determines that there is a substantial 

question in regard to the appropriateness of the sentence. 

Commonwealth v. Boyer, 856 A.2d 149, 151-52 (Pa. Super 2004). 

This determination is made on a case-by-case basis and is made 

in conjunction with what is laid out in the Sentencing Code. 

Id, In selecting from the alternatives set forth in subsection 

(a), the court shall follow the general principle that the 

sentence imposed should call for confinement that is consistent 

with the protection of the public, the gravity of the offense as 

it relates to the impact on the life of the victim and on the 

community, and the rehabilitative needs of the defendant. 42 

Pa.C.S.A. § 9721(b) 

This Court did address aggravating factors at the 

sentencing hearing justifying an above guideline sentence. 

These factors include: Appellant's thirteen (13) arrests and 

seven (7) convictions; being a multi-state offender and having 

warrants in three (3) states, including one in New Jersey for 

failing to pay child support, despite the Appellant's contention 

that supporting his daughter was one of his reasons for not 

showing up to court; his habit of being a chronic absconder 

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19 

4 See Commonwealth v .. Devers, 519 Pa. 88, 101-102 (Pa. 1988) ("Where presentence reports exist, we shall continue to presume that the sentencing 

judge was aware of relevant information regarding the defendant's character 

and weighed those considerations along with mitigating statutory factors. 

A pre-sentence report constitutes the record and speaks for itself. In order 

to dispel any lingering doubt as to our intention of engaging in an effort of 

legal purification, we state clearly that sentencers are under no compulsion 

to employ checklists or any extended or systematic definitions of their 

punishment procedure. Having. been fully informed by the pre-sentence report, 

the sentencing court's discretion should not be disturbed. This is 

particularly true, we repeat, in those circumstances where it can be 

demonstrated that the judge had any degree of awareness of the sentencing 

considerations, and there we will presume also that the weighing process took 

place in a meaningful fashion. It would be foolish, indeed, to take the 

position that if a court is in possession of the facts, it will fail to apply 

them to the case at hand"). 

Appellant. 

these aggravating factors, the Court properly sentenced the 

authority." Presentence Investigation Report, pg, 2. Based on 

court indicating his disregard for the judicial order and 

be amenable to community supervision as he fails to appear for 

~arrants issued by three different states. He does not appear to 

convictions in four different states, and he currently has 

community wherever he resides. He has incurred arrests and 

Appellant in the PSI indicates the Appellant "is a threat to the 

Investigation Report (PSI) .4 The evaluative summary of the 

Also1 this Court was equipped with a current Presentence 

factor. 

on this case for twenty~two (22) months is an aggravating 

failure to accept responsibility. In addition, being a fugitive 

did not show up for his trial; and his lack of remorse and 

to the Court during sentencing regarding alleged excuses why he 

evidenced by twelve failures to appe~r for this case; his lying 

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This Court did regard the Appellant's age, family history, 

and rehabilitative needs when it imposed its sentence. These 

factors and others were addressed at the sentencing hearing on 

February 4, 2014. They were more than counter balanced by the 

numerous aggravating factors cited. The Court found that the 

Appellant lctcked almost any rehabilitative potential. This Court 

did consider all factors the Appellant claims were overlooked. 

Imposition of consecutive sentences is a choice left 

completely up to the discretion of the trial court and does not 

in and of itself give rise to the level of a substantial 

question. Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super 

2004). This Court did just that. It followed the guidelines and 

chose to impose consecutive legal sentences based upon the 

evidence presented at trial and the Appellant's history. No 

substantial question has been raised at any point in the present 

case. The sentence imposed was lawful and within this Court's 

power and discretion and should be affirmed. 

Therefore, this Court did not abuse its discretion in 

sentencing the Appellant. This Court's sentence is not 

excessive, unreasonable, unsupported by the Appellant's 

character, nor did it fail to consider Appellant's 

rehabilitative needs or mitigating circumstances. This Court 

determined that the Appellant's criminal history, its duty to 

protect the public, and the scant rehabilitative potential of 

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21 

5 Under "42 Pa.C.S. §9721(b) General standards. --In selecting from the 

alternatives set forth in subsection (a), the court shall follow the general 

principle that the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the offense as 

it relates to the impact on the life of the victim and on the community, and 

the rehabilitative needs of the defendant. ... " 

See Contrnonwealth v. McAfee, 849 A.2d 270 (Pa.Super. 2004), appeal 

denied, 580 Pa. 695, 860 A.2d 122 (2004) ("the trial court was correct in 

determining that a sentence of total confinement was necessary to vindicate 

the authority of the court because [a)ppellant had demonstrated a complete 

lack of willingness to comply with the multiple court orders entered in this 

case. We find no abuse of discretion in sentencing"); Commonwealth v. Sierra, 

752 A.2d 9101 911 (Pa. Super. 2000) (sentence affirmed where parole and 

probation revoked and appellant sentenced to statutory maximum for technical 

violations); Conunonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 

2010) (where "court considered the testimony at the VOP hearing regarding 

[a]ppellant's lack of success under probation, arrest while under 

supervision, failure to appear on numerous occasions, and flight from a 

halfway house while under parole supervision", "the record as a whole 

reflects that the ttial court considered the facts of the crime and character 

of [a]ppellant in making its determination, [and appellate court} cannot reweigh the sentencing factors to achieve a different result"). 

v. Brock, 619 Pa. 278i 61 A.3d 1015, 1016 (2013). 

for trial, a defendant waives his or her Rule 600 claim." Com. 

failing to appear in court on the day his or her case is listed 

defendant to file a written motion to dismiss, and that, by 

voluntarily absenting hi~self from trial. "Rule 600 requires a 

rights under Rule 600 because he waived these rights by 

The Appellant was not denied his prompt and speedy trial 

E. Appellant's fifth error complained of on appeal is: "The 

defendant was denied his right to a prompt and speedy trial 

under Rule 600(G) ." 

Sentencing Code were followed. See 42 Pa. c.s. §9721.5 

appropriateness of these sentences as the requirements of the 

responsibility. There is no substantial question regarding the 

showed no remorse about his crimes, nor did he ever admit 

the Appellant called for the sentences imposed. Th~ Appellant 

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22 

On September 20, 2011, the Appellant rejected a smart room 

offer, and the case was given the earliest possible date for 

trial. On April 12, 2012, this Court issued a bench warrant 

because the Appellant failed to appear for trial. On December 9, 

2013, this Court began an in absentia jury trial as the 

Appellant persisted in failing to appear for listed court dates. 

The Appellant remained a fugitive for twenty-two months until 

authorities finally arrested him. Therefore, because the 

Appellant voluntarily absented himself from trial, his claims 

for relief under Rule 600 fail. 

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Conclusion 

For all of the above reasons, the claims Appellant raises 

on appeal should provide no relief. Appellant's sentences 

should, therefore, stand. 

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