J. S82024/16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENN SYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : BRADLEY ERCIL JAE BU RGESS, : : Appellant : No. 366 MDA 2016 Appeal fr om the Judgment of Sentence January 22, 2016 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP
- 40
- CR
- 0003452
- 2014
BEFORE: OTT, DUBOW AND PLATT, JJ. * MEMORANDUM BY DUBOW, J.: FILED JANUARY 25, 2017 Appellant, Bradley Ercil Jae Burgess, appeals fr om the January 22, 2016 Judgment of Sentence entered in the Luzerne County Court of Common Pleas. After careful review, we affirm, in part on the basis of the trial court’s Opinion. The trial court summarized the factual and procedural history as follows: On November 19, 2014, the Luzerne County District Attorney filed a Criminal Information charging [Appellant] with possession of heroin with intent to deliver and DUI stemming from an August 20, 2014 traffic stop of a vehicle driven by [Appellant]. [Appel lant] pleaded not guilty and a jury trial was scheduled. On January 9, 2015, represented by the Public Defender's Office, [Appellant] filed a counseled pre
- trial motion to suppress statements made by [Appellant] and physical evidence seized.

* Retired Senior Judge Assigned t o the Superior Court.J.S82024/16

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-

A suppression hearing was held on July 28, 2015. The Commonwealth presented the testimony of Wilkes
- Barre Police Officer David Balchun, and introduced [Appellant’s] driving record and two lab reports into evidence. Officer Balchun testified that on August 20, 2014, he observed a vehicle make a right hand turn from North Empire Court Street onto Coal Street without using its turn signal. Additionally, Officer Balchun testified that he smelled a strong odor of marijuana smoke coming from the vehicle. Officer Balchun in itiated a traffic stop of the vehicle, and when he approached the driver's side door the odor of marijuana got stronger. Officer Balchun observed [Appellant] in the driver's seat, and asked him for his license and registration information, which [Appellan t] provided. Officer Balchun then asked [Appellant] if he had any marijuana in the vehicle because he could smell a strong order of marijuana coming from it. Officer Balchun testified that [Appellant] responded that he had a little marijuana in his vehic le and then handed the officer a cigar wrapper with a small baggie of marijuana inside it. After being handed the marijuana, Officer Balchun advised [Appellant] that he was going to search [Appellant’s] vehicle for any other narcotics. Before the search could be conducted, however, [Appellant] fled in the vehicle. Officer Balchun pursued [Appellant] with his lights and siren activated, but [Appellant] refused to stop and instead ran several stop signs at a high rate of speed, travelled the wrong way down a one way street, and nearly hit a pedestrian. While pursuing [Appellant], Officer Balchun observed him throw several objects out the vehicle's window. [Appellant] was eventually apprehended and placed into custody after he pulled his vehicle into a dri veway and jumped out while the vehicle was still rolling. When Officer Balchun returned to the area where he had observed [Appellant] throw the items out of the vehicle the officer found bundles of packaged heroin, totaling 250 packets. Based on [Appella nt’s] careless and reckless driving, and a statement he made after being taken into custody that he had smoked marijuana prior to being pulled over by Officer Balchun, [Appellant] was taken for blood work. He tested positive for marijuana. Officer Balchu n also testified that as the result of his check on [Appellant’s] driver's license, he learned that the license was suspended. At the conclusion of the suppression hearing, the Court denied [Appellant’s] suppression motion. An Amended Information was su bsequently filed setting forth twenty - nine (29) counts against [Appellant] relating to theJ.S82024/16

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events of August 20, 2014. Following a September 16, 2015 jury trial [Appellant] was found guilty of twenty
- seven (27) of the twenty
- nine (29) counts. A Pre
- Senten ce Investigation (PSI) was ordered to be completed by the Luzerne County Adult Probation and Parole Department, and sentencing was scheduled for November 23, 2015. [Appellant] failed to appear on that date, however, and sentencing was continued until Janu ary 22, 2016. Following review and consideration of the recommendations of counsel and review of the PSI, [the trial court] sentenced [Appellant] to an aggregate term of incarceration of seven and one half (71⁄2) to fifteen (15) years in a state correctional institution. Trial Court Opinion, filed 6/30/16, at 1
- 3. Appellant, still represented by the Public Defender’s Office, filed a Motion for Modification of Sentence on January 28, 2016. Before the trial court ruled on the Motion, Appellant retained priva te counsel, who filed a Notice of Appeal with this Court on February 22, 2016. On March 1, 2016, the trial court denied Appellant’s Post
- Sentence Motion. 1

1 As a general rule, this Court has jurisdiction only over final orders. Commonwealth v. Rojas , 874 A.2d 638, 642 (Pa. Super. 2005). “A direct appeal in a criminal proceeding lies from the judgment of sentence.” Commonwealth v. Patterson , 940 A.2d 493, 497 (Pa. Super. 2007) (quotation marks and citation omitted). If a defendant in a criminal case files a timely post
- sentence motion, the judgment of sentence does not become final for the purposes of an appeal until the trial court di sposes of the motions or the motions are denied by operation of law. Commonwealth v. Borrero , 692 A.2d 158, 160 (Pa. Super. 1997). The denial of a timely post
- sentence motion becomes the triggering event for filing a notice of appeal. Pa.R.Crim.P. 720(A) (2). When an appellant files a notice of appeal before the court has ruled on his post
- sentence motions, the judgment of sentence has not become “final,” and any purported appeal will be interlocutory and unreviewable. Borrero, supra . In those circumsta nces, the proper remedy is to quash the appeal, relinquish Footnote continued on the following page.J.S82024/16

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Appellant raises five issues on appeal. 1. Whether the trial court erred in ruling that there was pr obable cause to initiate a lawful traffic stop of the vehicle that was being driven by the Appellant? 2. Whether the trial court erred in ruling that the statements made by the Appellant during the traffic stop were admissible at trial, given that they we re the result of a custodial interrogation in which the Appellant was not read his Miranda rights? 3. Whether the trial court erred in ruling that the items of purported marijuana and heroin that were seized from the Appellant and taken into evidence were admissible at trial, given that they were fruits of inadmissible statements given by the Appellant to Officer Balchun? 4. Whether the Appellant was provided with effective assistance of counsel throughout the duration of his case? 5. Whether the sentence i mposed by the Honorable Judge David W. Lupas of the Luzerne County Court of Common Pleas on January 22, 2016, was too excessive, given that a lesser sentence would not depreciate the seriousness of the offenses and it would still adequately punish the Appe llant. Appellant’s Brief at 3 (re
- ordered for ease of disposition).

jurisdiction, and remand for the trial court to consider the post
- sentence motions nunc pro tunc . Id. at 161. Nevertheless, if the court subsequently denies an appellant’s post
- sentence motions, “[this Court] will treat [an] appellant’s premature notice of appeal as having been filed after entry of [an] order denying post
- sentence motions.” See Commonwealth v. Ratushny, 17 A.3d 1269, 1271 n. 4 (Pa. Super. 2011). Instantly, because the trial court subsequently denied Appellant’s post
- sentence motion on March 1, 2016, we will relate Appellant’s premature notice of appeal forward to March 1, 2016, to resolve any jurisdictional impediments. See id.J.S82024/16

- 5 - Motion to Suppress Appellant’s first three issues challenge the trial court’s denial of his Motion to Suppress. Our well
- settled standard of review in an appeal from an order denying a Motion to Suppress is as follows: Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusi ons drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context o f the record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. Commonwealth v. Jones , 988 A.2d 649, 654 (Pa. 2010) (c itation omitted). With our standard of review in mind, we address each of Appellant’s sub
- arguments in turn. The Traffic Stop At the hearing on Appellant’s Motion to Supress, Officer Balchun testified that prior to effectuating the traffic stop, he persona lly observed Appellant turn without properly signaling, and smelled a strong odor of marijuana emanating from Appellant’s vehicle. The trial court found Officer Balchun’s testimony credible, and found that Officer Balchun had probable cause to stop Appell ant. On appeal, Appellant avers that the trial court erred in finding that Officer Balchun had probable cause to stop Appellant’sJ.S82024/16

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vehicle because there was “no smoke or any visible signs of smoke billowing from the windows of [Appellant’s] vehicle.” Appe llant’s Brief at 8. The Honorable David W. Lupas has authored a comprehensive, thorough, and well
- reasoned Opinion, citing to the record and relevant case law in addressing Appellant’s claim. After careful review of the parties’ arguments, and the record, we affirm on the basis of the trial court’s well written Opinion, which found that (i) Officer Balchun’s credible testimony that he personally witnessed Appellant turn without properly signaling was a violation of 75 Pa.C.S. § 3334; and (ii) Appellant’s v iolation of Section 3334 provided sufficient probable cause to justify the traffic stop. Trial Court Opinion, at 6
- 7. Appellant’s Traffic Stop Statements Appellant next avers that his initial traffic stop and the single question posed therein constituted a custodial interrogation. He argues that, because he was not given his Miranda 2 warnings, the statements he made during his traffic stop should have been suppressed. Judge Lupas has again authored a comprehensive, thorough, and well
reasoned Opinion, citing to the record and relevant case law in addressing Appellant’s claim. After careful review of the parties’ arguments, and the record, we affirm on the basis of the trial court’s well written Opinion, which found that (i) under our jurisprudence, App ellant was subject to an

2 Miranda v. Arizona , 384 U.S. 436 (1966).J.S82024/16

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investigatory detention, not under arrest, and “the dictates of Miranda do not attach during an investigatory detention[;]” and (ii) Officer Balchun’s single question, whether Appellant had marijuana, was a permissible question des igned to “confirm[] or dispel[] the officer’s suspicions” that criminal activity was afoot. See Trial Court Opinion at 9 ( citing Commonwealth v. Chase , 960 A.2d 108, [120] (Pa. 2008), and Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007)). The Sei zure of Marijuana and Heroin Appellant avers, in a single paragraph, that the trial court erred in denying his Motion to Suppress because the drugs that were seized “were fruits of the inadmissible statements made by [Appellant].” Appellant’s Brief at 11. As discussed supra , Appellant’s statement that there was marijuana in the car was not inadmissible or obtained in violation of Miranda . Because Appellant’s scant argument is premised on his averment that the statement should have been suppressed, we co nclude that this argument is without merit. Effective Assistance of Counsel In his fourth issue, Appellant raises an ineffective assistance of counsel claim, averring that trial counsel failed to adequately cross
- examine Officer Balchun at trial. Appella nt’s Brief at 12.J.S82024/16

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Litigation of ineffectiveness claims is not generally a proper component of a defendant’s direct appeal, and is presumptively deferred for collateral attack under the PCRA. See Commonwealth v. Holmes , 79 A.3d 562, 576 (Pa. 2013) (establi shing a deferral rule for ineffectiveness claims litigated after its decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)). However, the Pennsylvania Supreme Court has recognized two exceptions to the rule that ineffectiveness claims should be deferr ed until collateral review, both falling within the discretion of the trial court: First, we held that trial courts retain discretion, in extraordinary circumstances, to entertain a discrete claim of trial counsel ineffectiveness if the claim is both appa rent from the record and meritorious, such that immediate consideration best serves the interest of justice. Second, we held that trial courts also have discretion to entertain prolix claims of ineffectiveness if there is a good cause shown and the unitary review thus permitted is accompanied by a knowing and express waiver by the defendant of the right to pursue a first PCRA petition. Commonwealth v. Arrington , 86 A.3d 831, 856
- 57 (Pa. 2014). Here, the trial court chose not the exercise its discretion to entertain Appellant’s ineffectiveness claim. We agree with the trial court’s denial of relief because neither of the specified exceptions to the rule are present in this matter. It is not clear from the record whether Appellant’s claim is meritorious or whether trial counsel may have had a reasonable trial strategy for cross
- examining Officer Balchun as he did. Nor was good cause or “a knowing and express waiver” of Appellant’s right to his first PCRAJ.S82024/16

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Petition shown. Id. Accordingly, we decline to addr ess Appellant’s ineffective assistance of counsel claims in this direct appeal.

Discretionary Aspects of Sentence Finally, Appellant challenges the discretionary aspects of his sentence. A challenge to the discretionary aspects of sentencing is not autom atically reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a discretionary sentencing issue:

We conduct a four part analysis to determine: (1) whether appellant has filed a tim ely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and ( 4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006) (citations omitted). In the instant case, Appella nt filed a timely Post
- Sentence Motion and Notice of Appeal. Although Appellant did not include in his brief a separate Rule 2119(f) Statement, the Commonwealth has not objected to this defect and, thus, we decline to find that the defect is fatal. 3 As t o whether Appellant has presented a substantial question, we note:

3 This C ourt may overlook an appellant’s failure to comply with Rule 2119(f) where the Commonwealth fails to object to the omission and a substantial Footnote continued on the following page.J.S82024/16

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- The determination of what constitutes a substantial question must be evaluated on a case
- by
- case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations and quotation omitted). Here, Appellant complains that “the sentences imposed [were] on the higher end of [Appellant’s] applicable sentencing guidelines[,]” and that “the trial court failed to properly take into consideration [Appellant’s] histo ry and characteristics when imposing [Appellant’s] sentences for his offenses.” Appellant’s Brief at 14
- 15. In particular, Appellant avers that the trial court “failed to take into consideration” that Appellant’s prior record score of five was due in lar ge part to “a manslaughter charge brought against [Appellant] when he was sixteen years old[.]” Id. at 14. An argument that the sentencing court failed to consider mitigating factors in favor of a lesser sentence does not present a substantial question appropriate for our review. Commonwealth v. Hanson , 856 A.2d 1254, 1257
- 58 (Pa. Super. 2004). See also Commonwealth v. Griffin , 804 A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams , 562 A.2d 1385, 1388 (Pa. Super. 1989) ( en banc ) (an allegati on that the sentencing
question is obvious from the appellant’s brief. Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010).J.S82024/16

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court did not adequately consider various factors is, in effect, a request that this court substitute its judgment for that of the lower court in fashioning a defendant’s sentence)). Moreover, we note that Appellant does not allege that his 71⁄2 to 15 year sentence is in the aggravated range of the sentencing guidelines or outside of the statutory maximum sentence. Nor does Appellant point to any specific provision of the Sentencing Code that the sentencing court ostensibly violated. Appellant’s bald assertion that his sentence is excessive does not raise a substantial question. See Commonwealth v. Trippett, 932 A.2d 188, 201
- 03 (Pa. Super. 2007) (bald allegations of excessiveness insufficient to permit discretionary review). Be cause we conclude that Appellant has failed to raise a substantial question as to the appropriateness of his sentence, we will not address the merits of Appellant’s sentencing claim. Judgment of Sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 1/25/20171 35 P .S

. 

### § 780 -11 3(a)(30)

.

2 75 P a. C

. S.A. § 3802(d)(1). 3 T h e Defe n dant p res e nted no test i mony or evidence. I testi fi ed th at o n Aug u st 20 , 201 4 , he observed a vehicle make a right hand turn from the Defendant ' s driving record and two lab reports into evi d ence. 3 Officer B alchu n presented the t est imo n y of Wilkes-Ba r re Police O ffi cer David Balchun, and introduced A suppression h e aring was held · on July 28 , 2015

. The Commonwea l th evidence seize d

. counseled p re - tria l motion to suppress statements made by the D efendant and physica l January 9 , 20 1 5 , represente d by th e Public Defe n der ' s Office, the De f enda n t filed a by the D e fe n da n t. T h e Defendant pleaded not guilty and a jury trial was scheduled

. On to deliver 1 and D U l 2 stemming from an August 20 , 20 14 t raffic st op of a ve h icle driven I n f o rm ation cha rging th e above named Defendant with possession of he roin wi t h intent On Novembe r 1° 9 , 2014 , the L uzerne Cou n ty D ist ri ct Att o rney fi l ed a C rim i nal I. FACTS AND PROCEDURAL HISTOR Y : BY : T H E H O N O RAB L E D AV I D W. L U PAS 

### OPINION N 0.3452 OF 2014 BRADLEY E RCIL B U RGESS De f endant 

### I A ppe ll a n t C R IMIN AL D I VIS I O N v . I N T H E COURT OF COMMO N PLEAS OF LU ZER N E COU N TY COMMONWEA LT H O F P EN N SY LVA N IA

11T !-I J U DICIAL DIST R ICT OF P E NN SY LVA N IA Circulated 12/28/2016 11:31 AM2

North Empire Court Street onto Coal Street without using its turn signal. N.T. 7/28/15 at 5. Additionally , Officer Balchun testified that he smelled a strong odor of marijuana smoke coming from the vehicle

. Id

. at 6 , 15

. Officer Balchun in i tiated a traffic stop of the vehicle, and when he approached the driver ' s side door the odor of marijuana got stronger
. Id. at 16

. Officer Balchun observed the Defendant in the driver' s seat, and asked him for his license and registration information , which the Defendant provided. !Q
. at 6 , 16. Officer Balchun then asked the Defendant if he had any marijuana in the vehicle because he could smell a strong order of marijuana coming from it. Id

. at 6-7 , 17. Officer Balchun testified that Defendant responded that he had a little marijuana in his vehicle and then handed the officer a cigar wrapper with a small baggie of marijuana inside it. Id

. at 7

. After being handed the marijuana , Officer Balchun advised the Defendant that he was going to search the Defendant ' s vehicle for any other narcotics

. Id. Before the search could be conducted, however, the Defendant fled in the vehicle. Id. at 8

. Officer Balchun pursued the Defendant with his lights and siren activated, but th e Defendant refused to stop and instead ran several stop signs at a high rate of speed, travelled the wrong way down a one way street , and nearly hit a pedestrian

. Id. at 9, 19. While pursuing the Defendant, Officer Balchun observed him throw several objects out the vehicle ' s window. Id

. at 9-10. The Defendant was eventually apprehended and p l aced into custody after he pulled his vehicle into a driveway and jumped out while the vehicle was still rolling

. Id. at 10-11. When Officer Balchun returned to the area where he had observed the Defendant throw the items out of the vehicle the officer found bundles of packaged heroin , totaling 

### 250 packets. 

### Id. at 

### 11-12
. Based on the Defendant's careless and reckless driving , and a statement he made after3

4 A l t h oug h the Defendant was present duri ng t h e tria l , afte r the jury concluded its de l iberatio n s and t he parties we re reassemb l ed fo r the reading of the verdict the Defen d an t did not ret urn to the courtroom and cou l d not be located

. T he verdict was thus read in h i s absence

. N.T. 9/16/15 at 1 86. 5 Each o f th e i ndivi dua l sente n ces imposed upon the D efendant fell within the standard se n tencing guide l i n e ranges . T h e speci fi c c h a rges and sentences were as follows: Count 1 - Possession wi th intent to deliver controlled substance (heroin)

, 35 P.S. 

### § 7 8 0 - 11 3 (a)(30) : thi rty-three (33) 

### to sixty
- six (66) months incarceration in a state co r rectional in st i tution; se n te n ce r ights befo re the h earing concluded

. Id. at 1 2 -1 3. i n sti tu tion

. 5 N .T. 1/22/16 at 8- 1 1. The Defendant was advised by this Court of h i s postincarcerat ion o f seven and one half (7 Yi) to fifteen (15) yea rs in a state co r rectional review of the PS I , t h is Court sentenced the Defendant to an agg regate term of Fo ll owing review and consideration of the recommendations of counsel and that date, h oweve r, a n d sentencing was continued until January 22, 2016

. sentencing was sc h eduled for N ovember 23, 2015. The Defendant failed to appea r on twenty-n i ne (29) counts
. 4 A P re-Sentence I nvestigation (PSI) was ordered to be completed by t he Luze rn e Co u nty Adu l t Probation and Paro l e Department, and Septembe r 1 6, 20 1 5 jury trial the Defendant was found guilty of twenty-seven (27) of the counts against the Defendant relating to the events of August 20 , 2014

. F o ll owing a An Amended Information was subsequently fi l ed setting forth twenty-n i ne (29) suppression motion. Id. at 33

. th e concl u sion of t he suppression hea r ing, the Court denied the Defendant's Defendant's driver ' s l icense, he learned t h at the license was suspended. ld

. at 8

. At for ma r ijuana

. Id. Officer Balchun also testified that as the result of his check on the Officer Balc h un, the Defendant was taken for blood work. Id. at 12. He tested pos i tive being taken into custody that he had smoked marijuana prior to being pulled over byCo unt 2 - Po ssess ion of a Contro ll e d Substanc e (h e ro in) , 35 P.S. § 780-113(a)(16):

me rged with Count 1 for sentencing purposes ; C o u n t 3 - Po s se ss ion of a Sm a ll Amount of Marijuana , 35 P.S. § 7 8 0-113(31)(i) : fifteen (15) t o th i rty (30) days incarceration , to run concurrently to the p reviously i m p o s ed s e nte n ce ; C o u nt 4 - F l e e in g or Att e mpting to Elud e an Offi c er , 75 Pa. C .S

. A. § 3 73 3( a) : eighteen (18 ) to thirty-six (3 6) months inca rceration , to run consecutively t o the previ o u sly imp o s e d se nt ences ; C ou n t 6 - R e ckl ess l y End a ng e r i ng An o th e r P ers on , 1 8 P a . C.S

. A. § 2 7 05 : twelve (12) to twe nty- four ( 2 4) months i nca rcerat ion , t o r un consec u tive l y to the p reviously impose d sentence ; Co u n t 8 - DUI (1 s t Off e n se ) , 75 Pa.C

. S

. A

. § 38 02(d)(1 ) : seventy - two (72) hours t o s ix (6) mont h s i n ca rce rati on; t o r u n co n currently to the previous ly imposed sentences ; Count 9 - Flight t o Avoid Appre h e n s i o n , 18 P a. C.S

. A

. 5126 ( a ) : e i ghteen ( 1 8) to t hi rty- s ix (36) mo nt h s i nca rce ratio n , to run co n sec ut ively to the previously i mposed sentences ; C ount 10 - D e fiant Tres p ass, 1 8 Pa

. C.S

. A. 3503(b)(1)(ii): $ 2 5. 00 fi n e p lus costs ; C o u n t 11 - R es i s t i ng Arres t , 1 8 P a .C.S.A. § 5104 : n i ne ( 9) to eighteen (18 ) months incarc eration to run consecut i ve ly to t he previ ously imposed sentences ; C ount 1 2 - Dri v ing Without a Li ce n s e, 75 P a . C .S

. A

. § 1501 (a): $25.00 fine plus costs ; C o unt 1 3 - Dri v ing Whil e Op e rating Pri v i le g es are Su s p e nd e d , 75 P a.C

. S.A. § 154 3 ( a ): $2 0 0

. 00 fi n e plus costs ; C ou n ts 14 , 2 3 - 29 - Duti es at a St o p Sign , 7 5 P a .C.S.A. 

### § 332 3 (b ): $25

. 00 fine plus cos t s on ea c h count; C ount 15 , 1 6 - Dr iv in g th e Wro n g Way, 75 P a . C.S

. A. § 3 308 ( b ): $25

. 00 fine plus cos t s o n ea c h cou n t; Count 17 - Limitation s o n ove rtaking o n th e l e ft , 75 Pa.C.S

. A

. § 33 05 : $25

. 00 fine plus costs ; C o unt 18 - Turning M ove m e nt s and R e quire d Turn i ng Si g n a l s, 75 P a . C .S.A. 

### § 33 3 4 ( a ): $25

. 00 fin e plus costs

. c o unt 1 9 - Drivin g at S af e Spe e d: $ 25.00 fin e p l us costs C o unt 20 - E x cee din g 35 mph in Urb a n Di s tri ct , 75 P a. C.S

. A

. 

### § 3362 (A 1-25 ): $25

. 00 fine p l us cos t s ; C o unt 21 - Ca re l e s s Driving , 75 Pa

. C.S

. A. 

### § 3 714 ( a) : $2 5

. 00 fine plus costs; Co u n t 22 - R eckl ess Dri v ing , 75 Pa. C .S.A

. § 3 73 6 : $200

. 00 fine plus costs
. 4 how ever, the De f e n d a nt ( by t hat time rep resente d by private counsel ) fil e d a Notice of a nd wou l d st i ll a d eq u ately punish t h e Defendant. Before th e Court decid e d the motion , h a rsh , a nd that a lesser sentence would not depreciate the seri ousness of the offenses counseled motion t o modify his s e ntence on January 28 , 201 6, asserting t hat it was too Still repres e nted by the Publ i c D e fender' s Offi ce , t he Defendant fi l ed a timely5

e . I n i mpos i ng a sen t ence upon th e Defenda nt t h at was t oo excess ive



### . ' given that a l esser sentence would n ot depreciate the seriousness of t h e o ff e n ses and i t wo ul d sti ll adeq u ately pun i s h th e D efendant. d

. T hat the D efe n dant was provided with e ff ecti ve assista n ce of counsel throughout the duration o f the case; c. I n find i ng t hat the statements made by the Defendant duri n g the traffic stop we re a d m i ssib l e du ri ng tria l , given t hat t h ey we re the res u lt of a custo d ia l interrogation in which the Defendant was not read his Miranda ri g h ts; b. I n finding that the items of purported marijuana and heroin t hat we re s ei zed from the Defendant and .taken into evidence were admissible at t r ia l , g iven th at t h ey we re fru i ts of inadmiss i b l e state me nts made by th e Appellant to Office r Balchune [sic]; a. I n findi n g that the re was probable cause to i n it iate a l awfu l traffic stop of th e veh i cle that was be in g drive n by the D efe nd a n t, wh ic h even t ua ll y l ed to his arrest; th at this C ourt abused its discretio n and comm i tted errors of law as follows: T he Defendant ' s Concise Statement of Errors C omplained of on Appeal asserts II. LAW AND DISCUSSION : sen t e nce s h ou l d be affir m ed

. De f enda nt. F or the reasons set fo rt h be l ow, w e be li eve th e ve rdi ct an d ju dgmen t of Thi s matter is now r ipe for an Opinio n ad d ressi n g the a ll ege d e r ro rs rai s ed by t h e on April 29 , 2016. Statement was subm i tted o n March 16 , 20 1 6 , and the Commonwealth fi l ed its response Commonwea l th was requested to respond the reto
. The Defendant's Ru l e 1925(b) of Errors Complai n ed of on Appeal pursuant to Pa.R.A.P. 1 925(b) and the r ights

. A l so on March 1, 2016, the D efendan t was directed to file a Concise Statement Defenda n t ' s motion to modify his sentence a n d again advised him of his appellate Ap p ea l of hi s Ja nu ary 22, 2016 sentence. On M arch 1, 2016, we denied the6

6 4 A.3 d 1 10 1 , 11 0 5 (Pa

. Sup er . 20 1 3) (citing Commonwealth v. Hernandez, 594 Pa. th e be l ief th at a n off e n se has bee n or is b e i ng committed. " Commonwealth v. Brown, w ithin the off i cer's kn owle dge a re s uff icie nt t o wa r rant a person of reaso n a b le cau t io n in re cogn iz ed th at "[t] he po li ce h ave p rob a b le ca u se w here t he f acts a nd ci rcums ta nces Wi t h rega rd to pro b ab l e cause , th e courts of t hi s Com m o n wea lt h have ( P a . 2011)

. Fec zko, 10 A.3 d 1285 , 1 2 91 ( Pa

. Supe r . 2 010 ) (en bane) , appeal denied, 2 5 A

. 3d 397 drive r was i n violat ion of some provision of the Code ." Id. ( citing Commonwealth v . questio n ed stop , which would provide probable cause t o believe that t he vehicle o r the d eta i n i ng o ff icer m ust " art i culate specific facts possessed by him , at t he ti m e of t he de tention ca n not se rve an i nvestigat o ry pu r pose relevant to the suspected violation , the Commonwealt

h v . Ibrahim, 12 7 A.3 d 819, 823 ( P a. Super. 2015)

. When the driver' s investig at ion to d eter mi ne w he th er a mot o r ist has commi tt ed that offe n se. " d o e s n ot ap pl y in a ll i nstanc e s b ecause ... not all veh i cle offense s req u ire f u rther 75 Pa

. C

. S.A. § 63 0 8( b ). "Al tho u g h s u bs e ction 63 0 8( b ) del in eate s t h e ge nera l rul e, i t Wh e n ever a police o ff ic er ... h as re aso n ab l e susp ici on th at a v iol atio n of this title i s occurring or h as occurred , he may stop a vehicle , upon request o r sig nal , fo r t he pur po s e of c hec k ing the vehicle's regis tratio n , proof of fi n a n cial respons i bil i ty , ve h icle identificatio n number or engine number or t he dr i ver' s l icense, o r t o secure suc h ot h er in fo r mati on as the off icer may rea s onably bel i eve to be necessary to en f orce t he provisions of th i s title

. the Mot o r Vehicle Co d e provides that: Officer B alchun ha d prob a ble cause to stop t he D efendant's vehicle. Section 6308( b ) of We fi rst add ress the Defendant's assertion that this Court erred in finding that Pa. RA.P. 1925(b) Statement of Errors Complained of on Appea l filed 3/16/16.7

bee n supp ressed because it was given during a custodial interrogation and without The D efendant next asserts t h at his st atement to Officer Balchun should have offense. which provided probable cause to believe that the Defendant was committing an Balchun articulated specific facts possessed by him , at the time of the questioned stop , f i nds Office r Balchun's testimony of his observations to be credible, and that Officer Co urt Stree t onto Coa l S t reet wi t hou t using a turn signal. N

. T. 7/28/15 at 5. T his Court personally observed the Defendant's vehicle make a right
- hand turn from N orth Empire conduct violated 75 Pa

. C

. S

. A. § 3334

. Specifically , Officer Balchun testified that he supported a finding that the off icer had probable cause to believe that the Defendant ' s 75 Pa.C.S.A. § 3334(a)-(b)

. T his Court found that the testimony of Officer Balchun § 3 3 34. Turn ing m ove m e n ts and req u i re d s i gna l s ( a) Ge n era l r ul e .-Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position unless and until the movement can be made with reasonable safety n or w ithout giving a n appropriat e sig n al in the manner provided in this section. (b) Sign a l s o n t urnin g and sta rtin g .-At speeds of less than 35 miles per hour, an appropriate signal of intention to turn ri ght or l eft shall be given continuously during not less than the last 100 feet traveled by the ve h i cl e befo re turni n g. The signa l shall be given during not less than the last 300 feet at speeds in excess of 35 miles per hour. The signal shall also be given prior to entry of the vehicle into the traffic stream from a parked position. violation of 75 Pa

. C.S.A. § 3334, which provides in pertinent part as f ollows. Here, the Defe n dant's vehicle was stopped for failing to use a turn signal, in Brown, supra. eva l uated by considering all relevant facts under a totality of circumstances analysis

. 319, 935 A.2d 1275 , 1284 (2007) (quotation and citations omitted))

. Probable cause is

### 8

Miranda warnings , and further , that the marijuana surrendered by him and the heroin recovered afte r he threw it from the vehicle should have been suppressed because they were fruits of the inadmissib l e statement. An examination of the circumstances, however , as testified to by Officer Balchun and uncontradicted by the Defendant , supports the conclus i on that both the statement and the evidence were properly ruled adm i ssible

. As explained , Officer Balchun had probable cause to lawfully stop the Defendant's vehicle for the motor veh i cle code violation. When the officer performed the traffic stop a n d approached the Defe n dant's vehicle, however, he smelled a st rong odor of marijuana coming from it. At this poin t , Office r Balch u n was well within his authority to conduct an investigation detention and to search the vehicle

. To m a i nta in constitutio n al validity, an investigative detention must be supported by a reasonable and articulable suspic i on that the perso n se i zed is engaged i n criminal activity and may continue only so long as is necessary to confirm or dispel such suspicion

. " Commonwealth v . Strickler, 563 Pa. 4 7, 58, 757 A.2d 884, 889 (2000)

. See also Commonwealth v

. Parker , 619 A.2d 735 , 738 (Pa. Supe r. 1993). The determinat ion

· of whether an officer had reasonable suspicion is an objective one which must be
cons i dered i n light of t h e t ota li ty of the circumstances. Commonwealth v . Kemp, 961 A.2d 1247 , 1258 (Pa

. Supe r . 2008). A stop focusing upon one vi olation may, in appropriate circumstances, be extended for purposes of pursuit of a separate suspected violat i on . Commonwealth v. Freeman, 563 Pa

. 82 , 89-90 , 757 A.2d 903, 907-08 (2000). The smell of marijuana emanating from a person's vehicle is a specific and articulable fact reasonably wa r ranting a belief that criminal activity is afoot. Common w ealth v . Trenge, 45 1 A.2d 701, 708 (Pa

. Super

. 1982). Here, the evi de n ce supports a finding9

6 I ndeed, as we will discuss, the smell of mari ju ana comi n g from the veh i cle provided p ro b a b l e ca u se to sea rc h th e D efe nd ant's ve hicl e regardless of furt h er investigat i on or questioning

. See Commonwealth v. Gary, 625 P a . 183 , 91 A.3d 102 (2014) (p l urality) ( not. i ng that the smell of marijuana ema n at in g f rom i nside t he vehi cle provid e d undisputed probable cause to sea rch) ; Commonwealth v . Stoner, 344 A.2d 633, 635 (Pa. S up e r. 1975) ( h o l d in g th at the sme ll of m a r ij u ana p rovides pro b able caus e to search). to confirm or di spel t h e office r ' s sus p icions that the Defendant was engaged in criminal Beca u se O ff i c e r Ba l c hun aske d th e D efe n dant a s i ng l e questio n , designed s pecifica ll y office r aske d hi m why h e h ad a g u n i n h i s car, thus Mi ra n da warn i ng were not requi red)

. de f endant was the subj e ct of an i n vestigat ory d ete n tion

. n ot under a r rest. when a n de t entio n ."' Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007) (citing Commonwealth v. Kondash, 808 A

. 2d 9 4

. 3, 9 4 8 (Pa. Super

. 2002) (find i ng that t h e estab l ished that 'the dictates of Miranda do not attach during an investigatory quest i ons, but that does not obviate the officer's right to ask them. Furthe r , "[i]t is wellPa. 80, 960 A.2d 108, 115-16 (2008). T he Defenda n t could have refused to answer o r dispelling t he office r 's suspic i ons of criminal activity. Commonwealth v. Chase, 599 ask a d eta i nee a mode rat e n umbe r of questio n s to try to obtain information confirming stat ement. Regard in g th e prop r iety of Off i cer Ba l chun's i nq ui ry, we n ote that police may t hreatened the Defendant in any w ay o r used force aga i nst him in orde r to ob ta in a marijuana in it. T he record does not suggest that i n as k ing th is questio n Office r B a l c h u n from the D efendant's vehicle , Officer B alchun asked the Defendant if there was D uring the investigat ive detention prompted by the smell of marijuana coming investigative detention to pursue that suspected activity. 6 reasonable s u spicion to believe that additiona l crimina l activity was afoot , jus t ifying an that during the lawful traffic stop for the motor vehicle violation, Officer Balchu n had7 Th e fa ctual ci rc um st a nc e s o f ~ are very s imi l a r t o the i nstant case. T herein, police

stopped a ca r for a suspected M otor Ve h icle Code violation , then noticed the smell of marijuana coming f rom it When they approached

. Commonwealth v . Gary , 29 A.3d 80 4 , 806 (P a . S u p e r. 201 1 ). A n officer asked t h e defendan t i f " t he re was an yt hi ng in the ve h icle th at the offi cers ' needjedj'to be worried about "' and the defendant replied that
" t h ere was some ' weed ' in the car. " 

### Id. T he defendant was removed from t he ca r and p l aced i n a police cr ui ser, a n d a ca n i n e sn iff of hi s car b egan . Id

. D uri n g th e ca n i n e s niff , the defe n dan t got ou t of t he police cruiser a n d fled

. Id. H e was app re h e n ded and returned t o t he cr u iser

. Id

. Marijuana was d i scovered i n the car . Id

. 10 See Gary

, s upra; 7 Commonwea lth v. Caban, 60 A.3d 1 20, 1 32 (Pa. S u per. 20 1 2) co m ing fro m t h e D efe nd a nt ' s ve h icl e, alo n e , wo ul d have provide d grounds to search it. 625 Pa

. 183, 2 4 2. 91 A

. 3d 102

. 1 38 ( 201 4 ) ( plurality)

. T hus , the smell of mari j uana beyo nd the inherent mo b i l ity of a mot o r vehicle is requ ire d

. " Common wea lth v . Gary , for a war rant l ess sea rch of a mot o r ve hi cle is p robab l e cause to s e arch; no exi gency ve h icles is coexte n s ive with federa l law under the Fourth Amendment. T he prerequisite " In t his Commonweal th , t he law governi n g wa rra ntl e s s sea rc h es of motor and th at sea rc h wo u l d h ave revea l ed t he marijua n a and heroin

. pro b a bl e cause to s earch the vehicle , based on t he sme ll of mar ijuana com i ng fro m i t , to sup p res s it w as p ro p e rly d eni e d

. F urt h er, reg ard l ess of t h e propriety of his question to the D e f end a nt and t he Defendant's respo n se t h e reto, O ff icer B a lchun a lready h ad detention at the t i me the Defe n da n t handed him the marijuana , the Defendant's req u est I n response t o the question asked by Office r Balchun , t h e Defendan t indicated th at he h a d ma r iju an a i n t h e veh i cle, and then immediately handed a baggie of it to the off i ce r. N

. T. 7/28/15 at 7

. Since Off i ce r B a l c h u n was conductin g a lawf ul i nvestigat ive statement was properly denied

. activity, we f

!nd t h at th e question was properly posed pursuant to , and i n f u rt hera nce of , a l ega l i n vest i gat ory detention

. As such, the Defendant's motion t o suppress his1 1 The t r i a l court refuse d to suppress the marij u ana , bu t t he Superio r C o urt reverse d , findi n g t h at the d e f endant w as in p o lice c u st ody prior t o t he sea rch a n d there w as n o im p e rative ne e d for prompt police actio n , th u s , exigent circumstances we re not pres e n t t o just i fy the wa r rantless search an d the evidence obtaine d f rom t hat sea rc h should h ave be e n sup p ressed. Id., 29 A.3 d at 808. Gra nti ng the Commo n w e alth ' s Pe t it i on fo r A ll owance of Appeal , the Pen n sylva ni a Supreme Court agreed to address the following two iss u es: a . We re th e p o li ce p erm i tte d to con d uct a wa r ra n tless sea rch of d efe n da n t's SUV fo r m arijuana w h ere , during a traffic stop, they co u ld s m ell ma rijuana emanat i ng from the vehicle , defendant informe d police that h e had marijua n a in t h e S U V , a n d t h e offi ce rs h a d not had the opport un i ty to o btain a warra n t pr io r to stoppi n g the ve hi cle? b

. Shou l d this Court adopt the federal automobile exception to the warrant req ui remen t ? Commonwea lth v

. Ga ry, 6 1 5 Pa

. 610, 44 A.3d 11 4 6 (20 1 2). The Supreme Court subsequently vacated the order of the Superior Co u rt and reinstated th e d e fendant's judgment of sentence , f i nding that "the re is n o disp ut e t hat pro b able ca u se ex i ste d to sea rc h Ap p e ll ee's motor veh icl e. N othi n g mo re i s requi red. " Q_fily, 625 Pa

. at 2 4 2 , 91 A.3d at 138

. dis cove red d ur ing the l awfu l search of the veh i cle had the D efenda n t not f led , and can reques t to suppress the heroin was properly denied , as th at evi dence wo u ld h ave b ee n f l e ei ng , th e D e f e n dant t hrew t he heroin ou t t h e win dow of th e ve h ic l e. T he Defendant ' s v ehic l e because t h e D efendant handed h i m t h e marijuana , then drove away . While As the record reflects , O ff icer Balchun did not h ave th e o p portun i ty to searc h th e p rob a bl e cause to sea rch)). i n b ein g where h e is , his detection of the odor of marijuana is sufficient to establish "p lain smell" concept with that of plain view , and h o l ding t hat where an offi cer is ju sti fie d ( citing Commonwea l

th v. Stoner, 3 44 A. 2 q 633, 635 ( P a . Super.1975) (ana l ogizing a bel i eve that m ar ijuana was inside the vehicl e and to support a sea rch of that vehicle) 401, 402 - 403 (Pa. Super. 2008) (the odor of marijua n a p rovided pro b able ca use to (probab l e ca u se existed where troopers cl early smelled the odor of raw marij u ana em an ati n g fro m the tr un k of th e vehicle); Commonwealth v. Copeland , 95 5 A.2d 396 ,1 2

acti on. subsequent flight a nd abandonme n t of the heroin was not coerced by unlawful po l i ce handed it to po l ice) th ey had probab l e ca u se to sea rc h t he vehi cle and the D efe n da nt ' s the o do r of ma rijuan a , duri ng which the Defenda n t admitted having marijua n a a n d M otor Vehicle C ode violation (which escalated into an i n vestigative d etention based on citations omi tte d)

. He re , b ecau se th e pol i c e l awf u lly co nduct ed a t raffi c sto p for the Comm onwea lth v

. . Shoatz, 366 A.2d 1216, 1219 - 1220 ( P a . 1976) (emphas i s added , T he theory of aban d onment is pred i cated upo n t he clear in te n t of a n i ndi vi d u a l to re l i nq uis h co n tro l of t h e property h e po s se s ses . A b an d o n ment is p r imarily a question of intent , and intent may be inferred from wo rd s spoken , acts done , and othe r o bjecti ve t acts
. A ll releva nt circ u m sta n ces existing at the t i m e of t he · alleged abandon m ent should be considered

. Poli c e pursuit or the exi

s tence of a polic

e investigation do e s not of it

self render abandonment involuntary . T he is sue is n ot a ba n donment in the st ri ct property-right sense , bu t whether the pe rson prej udiced by th e se a rch had vo l unta rily di s carded, l eft b e hi nd , o r ot he rwi se reli nqui sh e d hi s i nt e rest i n the property in question so that h e could no longer retain a reaso n able expectation of p r ivacy w it h regard to i t at t h e t im e of t h e se arch. M o re ove r, it is we ll sett l e d that no one h as standing to complain of a search o r seizure of p roperty that he has vo l un t ar il y abandone d

. T hi s C o mm o nw eal th ha s a d o pt ed th e t heo ry of ab a nd onm e n t of p ro pe rty only wh en it i s s h ow n t hat the seized evidence was n ot discarded as a result of unlawful police coercion. A l tho u g h ab an d on e d prop e rty may no r mall y be ob t ained a nd used fo r ev ide nti ary pu r p oses by th e pol i ce , such property may not be utilized where t he abandonment is coerced by unla w ful police action

. abandoned pro p e rty: additiona ll y be viewed as be i ng ab a ndone d by th e Defen d a nt. Th e P e nnsylvan ia S up reme Co u rt set forth the following test for ascertaining whether a defendant13

" '(\t h e n impos i ng a sentence , a court is required t o consider the part i cular ci rc um sta n ces of t he off e ns e and th e chara cter of t h e de f end ant. " a nd quotation mar ks om i tted)

. Comm onwea lth v. Pe rry , 883 A.2d 599 , 60 2 -03 ( Pa

. Super

. 2005) ( c i ting Commonwealth v

. Mouzon, 828 A. 2 d 1 12 6 , 1 128 ( P a . Supe r. 2003)

. ( internal citat i ons Se nt encing is a matter vested i n the s ou n d disc retion of the sentencing j u dg e , a n d a s e nt ence will n ot b e distu r bed o n a pp e al abse n t a manifest abuse of discret i on . To constit u te an a buse of d iscretion , the sentence i mpo se d m u st e ith er exce ed th e stat uto ry l i mits or b e man i f e stly excessive

. In this context , an ab u se of discretion is not shown merely by an er ror i n j ud gm e nt. Rath e r , t he a ppell ant mu st es t ablish, by ref e renc e to the record , that the sen t enc i ng co u rt ignored or misapplied the law , exe rci se d i t s j udg ment for re a so n s of parti al i ty, prej u d ice, b ia s o r ill w ill, o r arrived at a m a n i festly u nreasona b le decisio n . convict i ons . Finally , t he D efen d a n t ch a llen g es the sentences impose follow i ng his avail a ble on direct appeal)

. counse l i n P en n sylvania g enerally are deferred to P CRA review an d ge n era ll y are not 621 P a . 595 , 631 , 79 A.3d 562 , 583 ( 2 013) (c l aims of ine ff ective as s ist ance o f tri al counsel should be dismissed w i thout prejudice

. See also Commonwealth v . Holmes

, accordance w it h this rule , t h e Defendant's claims reg a rding ine ff ective as s ista n ce of assi stance of co u nsel on direct appeal , b u t shou l d d efe r them for co ll atera l review

. In v . Grant , 813 A

. 2d 726 ( P a . 2002) , defendants should not raise clai m s of i neff e cti ve ass i stance of cou n sel throug h out the duration of the case . Pursuant to Commonwealth The De f endant additiona ll y alleges t hat he was prov id ed wi t h i neffect ive that evidenc e was properly denied

. used for evidentiary purposes by the po l ice , a nd the D e f endant's req u est t o supp ress Fo r th e fore going reasons , the m ar ijuana an d heroin we re l awf u lly o bt a i n e d a n d14

se n tences impose d w ere n ot excessi ve , a nd were i m pose d so a s t o n ot d im in is h th e ser i ous nature of t he offenses

. Id. at 7. the De f en d a n t p osed to the public while committ ing the offenses. Id

. at 7, 12. T hus t h e t o reform h is ways, as we ll as t h e serious nature of his current off enses , an d t h e da n ge r recogn i ze d the D e f end an t's fa il ure to t a ke a d vant a ge of the opportu ni ties p rovided h im juven il e, weapons offe n ses, and d ru g trafficking offe n ses . N

. T

. 1/22/1 6 at 7

. We furthe r leng t hy c ri minal h istory , W h ich included mans l augh t e r w h i l e th e De f e n d an t wa s a pre-sen t ence i nve st i g atio n , an d this Cou rt specifi ca ll y recog n ize d the Defendant ' s 

## ,r e. As noted above, t he Defe n dant's sentences were impose d with the benefit of a offe n ses and it would st i ll adequate ly punish the D efenda n t." Ru le 1 925( b ) S t at e m e nt at exc essive beca use " a lesse r se nt e nce wo ul d n ot d ep re ciat e the serio u s n ess of the H e re, the D e fenda nt s p ecifically as s erts th at his standard ranges sentences were Commonwealth v

. Moury , 99 2 A. 2 d 1 62, 17 1 ( P a . S u per. 2 01 0 )

. Commonwealth v. Griff in, 8 04 A. 2 d 1 , 1 0 ( P a. S u pe r. 2002), ap p eal d e nied , 58 2 Pa. 671, 868 A.2d 1 198 (200 5 ), cert. denied , 5 4 5 U.S

. 11 48, 125 S.C t. 2984, 1 62 L. Ed.2d 902 (2005)

. "In particular, t he co u rt should refer t o the d e fe nda n t's prior cr imin al reco rd, h is ag e , perso n al c ha ra cte ri st i cs and h is p ote nt ial for rehab ili tation. " Id. W h ere the sentencing court had the benefi t of a presentence investigation repo rt (" P SI") , we can ass um e t h e se nt e n c in g co urt " w as aw are of re l evant i nfor m at io n regard in g th e de f endant's cha racter and weighed t h ose considerati ons a l ong with mitigatf n g statu tory f actors
. " Commonwealth v . De vers, 519 P a . 88, 1 0 1 -0 2 , 5 4 6 A. 2 d 12 , 18 (19 8 8)

. See also Comm on wea lth v. Tira d o, 8 7 0 A.2 d 362, 368 ( P a. Super

. 2005) (st ating if s entenc in g court has benefit of P SI , l aw expect s court was aware of releva nt inform ation rega rd ing d e f en da n t 's ch a ract e r an d w eig h e d those co ns i d e rat io n s a lo n q wi t h a ny m iti g atin g factors). F urther , whe re a sentence is w i th i n the standard range of the guidelines , Pennsylva nia l aw views the sent e nce a s app ro pri ate unde r th e S ent e nci n g C od e . Se e Comm on w

ealth v . · Cruz-Centeno, 447 P a . S upe r. 98, 668 A.2d 536 (1 9 95), appeal denied , 5 4 4 P a. 653, 676 A.2d 1195 (1996) (stating comb i nation of P S I and standa rd ra ng e se n tence , ab s en t m o re, ca nnot b e conside re d excess ive o r un rea s ona b le)

.

### 15 END OF OPINION For the foregoing reasons, the Defendant ' s appeal should be denied in its entirety , and the verdict and judgment of sentence affirmed.