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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA 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 inte nt 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]os session with [i]ntent to [d]eliver a [c]ontrolled [s]ubstance, crack cocaine, and

____________________________________________ * Ret ired Senior Judge assigned to the Superior Court. 1 35 P.S. § 780 - 113(a)(30). 2 18 Pa.C.S. § 903.J - S21016 - 15

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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 forty two (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 consec utive 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 two hundred and sixteen (216) months of incarceration. On February 7, 2014, [tria l 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). Ap pellant 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 th e [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?J - S21016 - 15

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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 App ellant’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 judg ment; 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 o ffered: 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 r eview 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:J - S21016 - 15

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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 sub stantial 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 inclu des 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.Su per.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 cl aim 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 despi te the deficiencies noted by the Commonwealth.J - S21016 - 15

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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 co urt, 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 judg ment. 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 e vidence 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 circumstanc es 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 combinedJ - 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 b e 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 i ssues 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 a nd conspiracy to deliver a controlled substance where the evidence illustrated police observed Appellant and a co defendant working together to conduct hand - to - hand drug sales on a street corner; and (3) the court properly deviated from the sentencing guid elines and imposed consecutive sentences on Appellant after reviewing the presentence investigation report, examining the aggravating factorsJ - S21016 - 15

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involved, and considering Appellant’s age, family history, and rehabilitative needs). Accordingly, we affirm on t he basis of the trial court’s opinion. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/27/20151 1The d e fendant wa s repre s ente d by Do l o r e s Bb j a z i , Esq . a t t r ia l . 

### c on tempt o f c ou rt for f a i l i ng t o appe a r f o r triai. In total , co n sec uti ve thr e e (3) to si x (6) 

### mo n t h s o f in c a r c e r ati on f or cont r o l l ed s ub stan c e. Th e Appe l l ant wa s a l so sen t ence d t o a n i n ety (9 0 ) mo n t h s o f in cir c e tati o n f or C o n spi r a cy t o D e l i ve r a c on t r o ll e d subs tan c e and a c6 ns ec uti ve thir t y- t hr ee ( 3 3) t o mo n ths o f in carc e ra ti o n f o r Pos s e s s i o n w i th I nt e n t t o De li ve r a t h e Appe ll an t to fort y- two ( 4 2) t o one -hund re d and t wen t y

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absenc e w itho u t c ause at t h e t i me sc h edul ed f o r the sta r t of Ru l es o f Cr i m i na l P roce dur e p r ov i de s tha t " t he Appel l ant ' s Ru l e 602 of the Penn s ylvania without ca u se from hi s t r i a l. due t o the fac t tha t t h e App e l la nt was vo l unta r il y ab se n t Th is Court d i d not er r i n t ry i ng t h e Appe ll ant i n absen ti a 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 l i sting five appe ll ate i s s ues . No r e li e f is du e . Appe l lan t, f iled a S t at emen t o f E rrors Comp la i n ed o f on Appea l,

On May 1 6 , 20 14, Mr~ Co tter, on be hal f o f t he appea l. appointed John Cotter , E sq . t o re pr e s en t t he Appe l lan t for h is represent a t i on of t h e Appe ll ant . On Apr il 4, 2011 , th is Cou r t twenty
- one ( 21) days . Ms . B o j az i s ubsequ ent l y wit hdrew fr om Compla i ned on Appeal pursuan t t o P a. R .A . P . 1 92 5 (b) w i t h in t his Court ordered t he Appellant to fil e a Statement of E r r ors Ms . Bo j az i f i le d a t i me l y No ti ce o f App ea l. O n Mar c h 4 , 2014 , t hi s Cou r t denied on Fe bruary 2 0, 20 1 4 . On F ebruary 2 5, 20 14, Recons i de r at i on o f Sentence o n beha lf of t h e Appel l an t , wh i c h On F eb ru a ry 7, 20 14 M s . B o jazi fil ed a M o ti o n f or hundred and s ixt ee n (2 1 6) mo n th s of i ncarc erati o n. t hi s C o urt sent en c e d t he Appell an t t o se ve nty- e i ght (78) to t woCirculated 03/31/2015 04:02 PM3



### 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. In the case of Comm. v. Wilson, the Supreme the problem." Id. 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). 104 99, 533 Pa. Com. . v . . Sullens, may be tried in absentia." of Pennsylvani~ has held that "whert a defend~nt is absent without cause at the time his trial is scheduled to begin, he Furthermore; the Supreme Court sentence." Pa. R. Crim. P 602. trial or during trial shall not preclude proceeding with the trial, including the return of the verdict and the imposition of Circulated 03/31/2015 04:02 PM4

2 The d e fendant failed to appear to twelve court dat e s from April 2012 through January 2014 .

. 3 The defendant wa s present in court for arraignment on June 1, 2011, and scheduling conferences o n 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 da t e 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 sh o wing 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 Circulated 03/31/2015 04:02 PM5

As a resul t , the Sup reme Court has long held that: 2 2 3 U. S . 44 2 , 2 23 (1912) (qu o ting Barton v. State, 6 7 Ga . 6 53 ) . at the time the ver d ict is rendered." Diaz v. United S tates, b e no c onviction of any defendant unless h e wished to be present judgment by simply abs cond i ng from trial, " o therwise there c o ul d A d efend an t sh o uld not be allowed to avert a n unfavorabl e Id ., at 261. 

### abs en t ia does no t offend the defendant's con$titutional right s . vo luntary wai ve r o f this right, a nd tryi rt g such 

### a defendant 

### in A d efendant's r epea t e d ab s e nce without cause constitut e s a acti o ns. Com. v . Hill, 737 A.2d 25 5 , 261 (Pa. Super. Ct. 1 99 9). c an b e wa ived implicitly o r exp licitly by a defendant's o wn th e P e nns ylvan i a C onstit u t i on t o be pre s ent at trial, this ri ght the 6th Am endment o f the U. S . Constitution and Art. I, sec. 9 o f abs enti a . Alth o ugh a defendant has an absolute ri ght unde r bo t h Co nstitution prohibits this Court from trying the Appe l lant in Neither t he United States Constitution nor the Pennsylvani a 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." Co ur t did n ot er r in t rying the Appellant 

### in absenti a . absented hi m $elf withbut c~use from his trial. Therefore, this Circulated 03/31/2015 04:02 PM6

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.' Circulated 03/31/2015 04:02 PM7



### 2005) (cita ti ons om itt ed) . A rev i ew i ng cour t must a l so draw all doubt . Commonwea l t h v . Jones , 874 A. 2d 1 08 , 1 20

- 2 1 ( P a . Super . finder t o f i nd every e l ement of the cr ime b eyo nd a r e a sonab l e determi ne whethe r the evi dence was su ffi c i en t to a ll ow the fact trial in the light most favorable t o the verdict winner and must ev i dence , an appella t e c o urt views a ll the ev i dence admitted a t In rev i ewing a clai~ regardi ng the s u ff i c i ency of the substances , beyond a reasonable do ub t , and no r e l ief is due . substances and of posses s ion w it h i nt en t to de li ver contro l led Appel l ant o f cr imi na l consp i racy t o dis tr i bu t e controlled The evidence a t tr i al was mo r e than s u f fi cient t o conv i ct 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." 

### t ri al . absentia d i d not violate the Appe ll ant ' s ri gh t to be p r esent at As a resu l t , t his Co ur t ' s dec i s i on to t ry the Appellant in The Appel lan t voluntari l y absented h imse lf without ca u se . voluntari l y absent w i thou t caus e. ) court p r ope rl y t r i ed th e de f endan t 

### in absent i a fo r be ing Circulated 03/31/2015 04:02 PM8

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. and such in conduct which would constitute such crime .. 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 Circulated 03/31/2015 04:02 PM9

conscious dominion can be inf e rred from the totality of the cir c umstances." Id , However, c o nstru c tive p o ssession is irrelevant where the defendant i s c o nvicted of a c onspiracy with the pers o n in p o ssession of the illegal drugs. Commo nwealth v. Holt, 711 A.2d 1011, 1 0 11 (Pa.Super. 1998) {"In other w o rds, when the appella nt

was c o nvicted o f conspir~cy to possess with intent to deliver the d rugs ... he is als o culpable for the crime itself, that is possession with intent to deliver cocaine."); accord C ommonwealth v. Perez, 931 A.2d 703, 709 (Pa.Super. 2 007). Further, e a c h m ember of a c o nspiracy is li able for the a cts of his co~ co n s pir a tors committed in furtherance of their criminal

ac ti v ity. Commonwealth v. Geiger, 944 A.2d 85, 91 (Pa.Super. 2 008 ) . It foll o ws tha t because "the criminal intent necess ary to establish accomplice liability is identical t o the crimin a l intent necessary to establish conspiracy," a co-conspiracy c an be f o und guilty of p6ssessing a controlled substance with inte n t t o d e liv e r even with o ut having any direct contact with the illegal drugs. Commonwe a lth v. Henni g an, 75 3 A.2d 245, 254 (P a .Super. 2000). Here, Appellant and Mr. Hall can be c ha r ged with each other's respective offenses. T o establish possession of a controlle d substance with intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a c o ntrolled Circulated 03/31/2015 04:02 PM10

from th e surrounding circumst a nces, including, but not limited t o : " ( 1) a n association between alleged c o nspirators; ( 2) the knowledge of the commissi o n of crime; (3) presence at th e scene

o f the crime; and (4 ) in some situati o ns, participation in the

( c itations omitted), A conspiracy can be i nferred d o ubt. Id. subst a nce and intended to deliver it. Kirkland, at 611 (citing Commonwe alth v. Co n away, 791 A.2d 359 (Pa.Super. 200 2 ). The trier of fa c t may infer intent from the facts and circumstan c es

o f the c ase, su c h as th e p ac k a ging , quantity of the drugs p o ssessed, f o rm o f the drug, the behavior of the o ffender, and l ac k o f pa r aph e rn a lia for c onsumption. Jones, at 121 ( citations

omitted). Here, App e llant was arrested after being observ~d as serving a s a lo o kout for Mr. H a ll's drug transa c tions and wa s f ound having three packets of crack cocain e o n his person. T o sustain the Appell a nt's convicti o n for crimin a l

co nspi r a c y, the C ommo nwe a lth must establish that the Appellant: ( 1) entered i n to an agreeme nt with anothe r to commit o r a id in

an unl awful act, (2 ) shared criminal intent, and (3) an ove r t

ac t was performed in furtherance of t h e conspiracy. J on es, at 121 (citi ng C ommonw e alth v. Mu rphy, 795 A. 2 d 1025 (Pa.Super. 2 00 2). The conspiracy may be proved by circumstantial evidence. Jones, a t 121. The conduct of the partie s and the surrounding

c ircumst anc es o f their condu c t c an create a we b of e viden ce that links the accused to the a lleged conspiracy be y ond a re a son able Circulated 03/31/2015 04:02 PM11

object of the conspiracy." Commonwealth v . . McKeever, 689 A.2d 27 2 , 274 (Pa.Super. 1997). On February 26, 

### 2011, at approximately 6:40 p.m., Officer Bar ry Stewar t, p a r t of the 

### 16th District Narcotics Enf o rcement T e am ("NETS"), was c o nducting a confidential surveillance for illegal sales of n~r co tics in the ar ea of the 39 00 bloc k of W es t Re no Street in Philadelphia. (N.T. 12/6/13 pg. 50-51). O fficer St e wart has been a Philadelphi a police officer for o ver 1 9 years
and over 1 5 years in the NETS team. Id. at pg. 48, 50. He h as spe c ific training in narcoti c s and has take n part in ov e r 300 to 40 0 nar co tics investigati o ns. Id. at pg. 49-48. On Febru a ry 26, Offic e r Stewart observed Donnie Rud o lph a nd Mr. Shaheed Hall standing t o gether on th e west end o f the 3900 b lock o f Reno Street. After ten minutes of surveillance, O ffic er St e wart observed a gr o up of unknown black fema le s, males, and a white female begin to gather on the c o rner int o a group con si st ing of ten or more. Id. at pg. 53-54. Upon
no ticing th e group, Appellan t and Mr. Hall made a motion with their hands, wave-like, a nd the gr o up f o llowed them up the street into a va cant lot. Id. at pg. 54. Mr. Hall proceed e d t o
s tep int o the lot with the group while Mr. Rudolph stoo d right

o utsi d e o f the opening and began l o oking up and down t h e st r eet, left and right. Id. Circulated 03/31/2015 04:02 PM

### 12 Officer Stewart then noticed Mr. Hall begin to perform hand-to~hand motions with the individuals, re c eiving Unite d States currency from the individuals while pr o viding them with unkn o wn sma ll o bjects. Id . at 54-55. Officer Stewart stated that Mr. H a ll' s ha nd-t o - h and motions consisted of him h o lding something in a bawled up fist and each individual would then cat c h it. Id. a t 55. O fficer Stewart stated that upo n recei v ing the o b ject fr om Mr. H a ll the individuals wo uld imme diately l eave the lot. Id. a t 56. While Mr. Hall was excha nging items with these individuals, Mr. Rudolph was st a nding in front of the lot in th e middle and look i ng up and down the s treet . Id . at 57. After the individu a ls dispersed, Mr. Hall came out of the lot a nd sto o d

ne xt t o Mr. Rud o lph. Id. a t 59. They eventually l e ft the l o t together, wa l k ing west bbund on Ren o Street. Mr. Ste wa rt testified that h e felt Mr. Rudolph was serving as a l oo kout for Mr. Hall while h e s o ld dru g s. Id. at 59. Officer Stewa rt, bas e d

o n the se facts a nd ci r cum st an ce s a nd his own t raining and

e xpe rienc e , beli ev ed that H a ll a nd Rudolph were involved in a drug- d e al ing sch eme. Id. at 91. As the buyers disperse d from the lot, Officer Stewart

r e l ayed their descripti o ns to his backup officers over his police r a di o . Id. at 5 9 -60. Office r Stewart instructed his Circulated 03/31/2015 04:02 PM

### 13

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 Circulated 03/31/2015 04:02 PM14

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 tri a l 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. Circulated 03/31/2015 04:02 PM

### 15

af o rementioned investigation as a backup to Officer Stewart. O fficer Kirk was part of the NETS team and was working the The C ommonwealth also called police officer Raymond Kirk. u se their drugs. Id. at 133. amo ngst the buyers and buyers like to go someplace qui c kly to 132-33. He stated that this is because sellers don't like to be and sellers go their separate ways after a transacti o n. Id. at Officer DiDomenico went on to testify that usually buyers recovered fr om Mr. Hall. Id. at 131-3 2 . 13 0 -32. Office r DiDomenico testified that these were th e items add itio n al blue bag that he found in the vacant lot. Id. at thre e packets seized fr om Mr~ Hall's mouth, the $377, and the O fficer DiDomenico was presented the property receipts for the p a ckets rec o vered from Mr. Hal l 's mouth. Id. at 130-31. At trial Street a nd found an additional blue packet that match e d the Officer DiDomenico returned to the lot on the 3900 block of Reh o U .S. currency from Mr. Hall. Id. After searching Mr. Hall, c r a ck c oc aine. Id . Officer DiDomenico also recovered $377 i n these packets was an off-white chunky substance, consistent with Hallis mo uth, three blue-tinted packets. Id. at 129. Inside testif i ed t hat wheh he arrested Mr. H a ll he rec o vered, fr om Mr. by Officer Stewart. Id. at 128- 2 9. Officer DiDomenico Mr. Hall based on the location and directi o n of travel provided Officer Stewart. Id. at 126-28. Officer DiDomenico arrested Circulated 03/31/2015 04:02 PM16

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.

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

Appe l lan t poses to s oc i e t y . I n c r a f t i ng t he App e llant ' s wel l as aggr avat i ng fac t ors such a s t he potent ial danger t h e Appe ll ant ' s rehabili tat i ve needs , m iti gat i ng circ ums t ances , as circumstances . T o the contr a ry , th i s Court d i d consider the the Appellant ' s rehabi li tat i ve needs or m i tigating Pa . C . S . 9721(b) o f the Se n tenc i ng C ode by f ai l ing to cons i der imposed , nor d id it v i olate the sente nci ng requirements o f 42 Th i s Court d i d n o t abu se it s discretio n i n the sentence D. Appellan t '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 de l iver~ co nt ro ll ed substance. possession with intent to distri bu te a cont r o l led substance and drug-dea l ing co n spi r acy with Mr . Ha l l and h i s conv i ctions for suffic i ent ev i dence t o estab li sh tha t Appe ll ant was pa r t o f a Commonwea l th, the j ury verd i ct w i nner , i t i s c l ear that the r e is from the evidence in the light most favorab l e to t h e V i ew i ng th i s evidence and draw i ng a ll reasonab l e infe r ences the packets found on Appel l ant and Mr . Ha ll. arrested and found to have packe t s of c r ack

- Cocaine that matched Two of these buyers , Ms . Steel and Ms . Gilchr i st , were Circulated 03/31/2015 04:02 PM18

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 Circulated 03/31/2015 04:02 PM19 4 Se e C ommo nweal t h v . . Deve r s, 519 Pa. 88, 101-1 02 (Pa . 1 9 8 8 ) ( "Where pr e sen tence r ep orts ex i s t, we s hall conti nu e to p resume tha t the se n t e ncing judge wa s awar e o f relevant informa tion regarding th e defendant's cha rac ter and we igh e d t hose co ns i d e rations along with miti g at i ng stat utory f acto r s . A p re - s ent ence rep ort co nst it u t es the re cord and speak s f or its e lf. In or der to disp e l any linger i ng d o ubt as to o ur int e ntion o f e ngaging in an effort of le g al purification, w e st a te c learly t ha t se n tencers ar e unde r n o compulsi o n t o emp l oy checklists or any ext e nded o r systematic definitions o f t h eir p unis hme n t proc edu re . Hav i ng. been fully inf o rmed by the p re-sent e n c e rep o rt, t he se n t e ncing c ourt's di s cr e t io n sh o uld not be d istu rb ed. This is par ticul ar l y true , we r ep e at, in those c i rc umst anc es wh er e it c an b e demo nstr ate d that the judge had any de gre e of awareness of th e se nten ci ng co n s ider a tions, and there we will presume also tha t the weighing proce ss to ok place in a me aning ful fa s hi on. It would be f oo lish, indeed, t o take t he p os iti o n that if a cou r t is in po s sessi o n of the facts, it wi l l fail to apply t hem t o the ca s e at hand"). Appella n t. th e se aggravatin g factors, the Court properly senten c ed the authority." Pr e sentence Investigati o n Report, pg, 2. B a sed o n c ourt ind icati n g his disregard for the judicial ord e r and b e amen ab l e to community supervisi o n as he fails to app e ar for ~arrants is s u e d by three different states. He does not appear t o c onvicti o ns in four different stat e s, and he currently ha s community wherever he resides. He has incurre d arrests and Appellant in th e PSI indicates the Appell a nt "is a threat to th e Inv estig a ti o n Rep o rt (PSI) . 4 The evaluative summary of the Als o 1 this Court was equipped with a current Presentence fact o r. on this case for twenty~two (22) months is an aggravating failure to accept resp o nsibility. In addition, being a fugitive di d not show up f o r his trial; and his lack of remorse and to the Court during sentencing regarding alleged excuses why he evidenced 

### by twelve failures t o appe~r for this case; his lying Circulated 03/31/2015 04:02 PM

### 20

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 Circulated 03/31/2015 04:02 PM

### 2 1 5 Under " 42 Pa . C . S . § 97 21 (b ) G e ne ra l s t and ar ds . -- I n sel e c t ing fr om the al t e rna t i v es s et f o r t h i n s ubs e ct i o n ( a ) , t h e c o u r t s ha ll f o l l ow the g e n er a l pr in c i p l e t ha t t h e se n t en ce i mp ose d s h o u l d c a l l f o r c onf i n eme nt t ha t i s c o n sis te n t w ith t he p r o t e c t io n of th e pub li c , t he g ravi ty o f t h e o ff e n s e as i t re l a t e s t o t h e i mp ac t on t h e l i f e o f the v i c t i m and o n t he communit y , and t h e r ehab i l i t a tive n e eds o f th e d efe nda nt . ... " Se e C ontrno nwe a l t h v. M cAfe e , 84 9 A. 2 d 2 7 0 (P a . Sup e r . 20 0 4 ) , app ea l d e n ied , 5 8 0 Pa . 69 5 , 8 6 0 A . 2d 1 22 ( 20 0 4 ) ( "t h e tri a l c o u rt wa s co r r e c t in de t e rm i n i ng t ha t a se n t en c e o f t o t a l co n fi n eme nt wa s n ec e s s a ry t o v indi c a te t h e au t ho r it y of t h e c o u r t be c au se [a )pp e l lan t ha d d emo n s t r ated a comp l e te l a c k of wi ll i ngne ss t o c omp ly w i t h the mu l t i p le co u rt o r d e rs e n t e re d in th is cas e . We f i nd n o abu s e of d i s cr e ti o n in s e n te n c i ng " ) ; C ommo nwe al t h v . S ier r a , 752 A .2 d 9 1 0 1 9 1 1 ( P a . Super . 2 00 0) ( se n t e n ce af f i rme d wh e re p a r o le and p r o bati o n re vo k e d and app e llan t s enten c ed t o statut ory max imum f o r t ec hni c a l vio l ati o n s) ; Co nuno nwe a lt h v . Cr ump , 99 5 A . 2 d 1 2 8 0 , 1 2 83 (Pa . Sup er . 2 0 1 0) (whe r e " c ourt co n s i d e r e d t he t est i mo ny a t th e VO P h e a r i ng reg ar di ng [ a ] ppe llan t' s l a ck o f su cce ss unde r p r o ba ti o n, a rr es t while und er s up e rv i s i o n, f a i l u r e to app e a r on numer o u s o cc a s i o n s , and f li gh t f rom 

### a hal f way h o u s e wh i l e und e r p a r o l e s up erv i s i o n " , " t h e r ec or d a s a wh o l e r ef lect s that t he t t ial c o urt c o n s id e r e d the f ac t s o f the cr i me and cha ra c t e r o f [ a ] pp e ll ant i n ma ki ng i t s de t e rmina t i o n, [ and appe ll a te co urt } c ann o t r e we igh t h e s ent e nci ng f a c t o rs t o a c h i e ve a di f f e r e n t re su l t" ) . 

### v . Br oc k , 6 1 9 P a. 27 8i 

### 6 1 A. 3 d 1 01 5 , 101 6 (2 01 3 ) . f o r tri a l, a d efe ndan t waive s hi s or her Ru le 600 c l a im. " C om. f a il i ng t o app e ar in c o u rt on t he day h i s o r h e r case is l i s ted d ef e ndant t o f i l e a wr i tt e n mo ti o n t o di sm i s s, and that , by vo lun t ar i l y abs e n t ing hi~self fr om tr i a l. "Rul e 6 0 0 r e quir e s a r i gh ts unde r Rul e 600 b ecause he waiv e d t h e se r ights by The Appe ll ant was n o t d e ni ed h is pr omp t and sp e e dy tr i al E. Appellant ' s fifth error complained of on appeal i s: " The defendant was denied his right to a promp t and speedy trial unde r Rule 600(G) . " S e nten c ing Co de w ere f o l l owed . S ee 4 2 Pa. 

## c. s . §9721 . 5 appr op ri a t e n ess o f th es e s enten c e s as t h e requi remen t s o f t h e r esp o n si b i lit y . Th e r e is n o s ub s t anti a l qu e st i o n regarding t h e s h owe d n o remo rs e ab o ut his crime s , n o r did he e ve r admit th e App ellant c alled for the se n ten c e s imposed . Th~ Appel lant Circulated 03/31/2015 04:02 PM22 On September 2 0, 2011, the Appellant rejected a smart room offer, and the case was given the earliest p o ssible d a te f o r tri a l. On April 12, 2012, this Court issued a ben c h wa rrant beca us e the Appellant f a iled to appear for trial. On D ecemb er 9, 2 01 3 , this Court began an in absentia jury trial as the Appellan t persisted in failing to appear for listed c o urt d ates . The Appellant remained a fugitive for twe n ty-tw o months until

a uthoriti e s finally arrested him. Therefore, because the Appellant v o luntarily absented hi m self fr om trial, hi s c l a i ms for relief under Rule 600 fail. Circulated 03/31/2015 04:02 PM

### 23 Conclusion 

### For all of the above reaso ns , the c l aims Appellant raises
o n appeal s h ou l d provide no re l ief . Appe ll ant ' s sentences sho u l d , therefore , stand . Circulated 03/31/2015 04:02 PM