Com. v. Cesar (memorandum)

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J-S01009-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PHILOME CESAR, Appellant No. 453 EDA 2012 Appeal from the Judgment of Sentence December 20, 2011 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0005299-2010 CP-39-CR-0005301-2010 CP-39-CR-0005302-2010 BEFORE: BENDER, J., LAZARUS, J., and COLVILLE, J.* MEMORANDUM BY LAZARUS, J. Filed: April 25, 2013 Philome Cesar appeals from the judgment of sentence of 95 to 190 years incarceration, imposed after he was convicted by a jury of nineteen counts of robbery and one count of providing false identification to law enforcement. On appeal, Cesar challenges the trial court s denial of his pretrial motion to suppress, the denial of his petition for writ of habeas corpus, the sufficiency of the evidence to sustain several of his robbery convictions, and the discretionary aspects of his sentence. After our review, we find no error or abuse of discretion. Therefore, we affirm the judgment of sentence. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S01009-13 A jury convicted Cesar of committing nineteen separate armed robberies of Lehigh County convenience stores, hotels, and other commercial establishments. Cesar displayed a firearm, threatening and terrorizing the victims with it during the crimes. After a months-long robbery spree, Cesar was ultimately apprehended and discovered to be in possession of items stolen from several victims, as well as clothing matching the description of that worn by the perpetrator of these numerous offenses. Other physical evidence directly tied Cesar to several of the robberies, and as all of the crimes had a similar modus operandi, the jury found Cesar guilty of committing all nineteen robberies. Cesar s conviction of providing false identification to law enforcement was based on his giving officers a false name at the time of his arrest. The sentencing court reviewed a presentence report and, on December 20, 2011, the court held a sentencing hearing. Following the hearing, the court sentenced Cesar to a mandatory term of five to ten years incarceration for each of his nineteen robbery convictions, for an aggregate term of 95 to 190 years imprisonment. The court imposed the mandatory sentence because during each offense, Cesar brandished a firearm, placing his victims in fear of death or serious bodily injury. See 42 Pa.C.S. § 9712(a). Cesar filed a timely notice of appeal, as well as a timely concise -2- J-S01009-13 statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).1 He raises five issues for our review: I. Did the court err in denying Cesar s pre-trial motion to suppress the evidence seized during a stop in violation of [Cesar s] rights under the fourth amendment to the Constitution of the United States and Article I, Section 8 of the Constitution of the Commonwealth of Pennsylvania? II. Did the court err in failing to grant Cesar s pre-trial motion in the nature of a habeas corpus motion where the Commonwealth failed to make out a prima facie case for each robbery? III. Did the court err in failing to grant a new trial where the evidence was insufficient as a matter of law to support the conviction[s]? IV. Is there a substantial question for which the Superior Court should grant allowance of appeal from the discretionary aspects of the sentence? V. Did the court err in sentencing Cesar to a harsh and excessive sentence which was therefore unjust where the sentence is the equivalent to a [term of] life in prison without the possibility of parole where there were no allegations of serious bodily injuries? Appellant s Brief at 5. Cesar first argues that the court improperly denied his pretrial motion to suppress evidence seized subsequent to his arrest. In reviewing an order from a suppression court, we consider the Commonwealth s evidence, and only so much of the defendant s ____________________________________________ 1 We note that during his trial and sentencing hearing, Cesar chose to represent himself with the assistance of court-appointed standby counsel. However, following the imposition of his sentence, Cesar moved for appointment of counsel to represent him on appeal, which the court granted. Accordingly, Cesar is represented by counsel in this appeal. -3- J-S01009-13 evidence as remains uncontradicted. We accept the suppression court s factual findings which are supported by the evidence and reverse only when the court draws erroneous conclusions from those facts. Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998). Cesar argues that after he was arrested, police officers interrogated him without giving him the requisite warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).2 He maintains that, consequently, the information provided during the course of the interrogation of [Cesar] after he was placed in custody was gained in violation of his constitutional rights making his arrest unlawful conduct by the police. Appellant s Brief, at 21. Thus, Cesar contends that [a]ny evidence obtained as a result of this unlawful arrest should have been suppressed. Id. Initially, we note that in his motion to suppress, Cesar did not challenge the legality of his arrest on the basis that police officers impermissibly interrogated him prior to giving him Miranda warnings. See Appellant s Omnibus Pre-Trial Motions, 2/18/11, at 6-8. Therefore, this specific claim is waived. See Commonwealth v. Richter, 791 A.2d 1181, 1186 (Pa. Super. 2002) (citation omitted) (failure to raise issue in suppression motion constitutes waiver of that claim). ____________________________________________ 2 In its January 6, 2012 opinion ruling on Cesar s post-sentence motions, the trial court provides a detailed discussion of the circumstances surrounding Cesar s arrest, and the subsequent search of his vehicle and residence. For purposes of this appeal, we adopt the court s discussion of those facts. See Trial Court Opinion, 1/6/12, at 15-21. -4- J-S01009-13 Nevertheless, even had Cesar raised this argument in his motion to suppress, we would conclude that it is meritless. Assuming, arguendo, that following Cesar s arrest, officers interrogated him without first providing Miranda warnings, that error does not retroactively make his arrest illegal. Rather, the omission of Miranda warnings might justify suppression of statements made by Cesar, or perhaps evidence that would not have inevitably been discovered absent those statements. See Commonwealth v. Hoffman, 589 A.2d 737, 743 (Pa. Super. 1991) (evidence which would have been inevitably discovered by lawful means is purged of original illegality and may be admitted). Cesar does not identify what precise statements or evidence should have been suppressed due to the alleged omission of Miranda warnings. Therefore, his challenge to the court s denial of his suppression motion would be meritless even had it been properly preserved. Secondly, Cesar alleges that the trial court erred in denying his pretrial Petition for Writ of Habeas Corpus and Motion to Dismiss for Failure to Establish a Prima Facie Case. In his petition, Cesar argued that the Commonwealth presented insufficient evidence at the preliminary hearing to sustain any of the charges pending against him. However, this Court has declared that: [O]nce a defendant has gone to trial and has been found guilty of a crime, any alleged defect in the preliminary hearing is rendered immaterial. Where, as in the instant case, it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the -5- J-S01009-13 presentation harmless. before the district justice would have been Commonwealth v. Kelley, 664 A.2d 123, 127 (Pa. Super. 1995) (citations and internal quotation marks omitted). Accordingly, in the present case, the alleged defects in the preliminary hearing were rendered immaterial upon Cesar s conviction. In his third issue, Cesar challenges the sufficiency of the evidence to sustain twelve of his robbery convictions. His sole argument is that no witness could directly identify him as the person who committed those twelve robberies and, therefore, the evidence was necessarily insufficient to sustain his convictions. In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136. Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011). Additionally, [a] person is guilty of robbery if, in the course of committing a theft, he ¦ threatens another with or intentionally puts him in fear of immediate serious bodily injury. 18 Pa.C.S. § 3701(a)(1)(ii). Instantly, Cesar is correct that the Commonwealth was only able to present witness identification testimony and/or physical evidence directly -6- J-S01009-13 linking him to seven of the nineteen robberies of which he was convicted. However, the Commonwealth proffered ample circumstantial evidence tying Cesar to the other twelve robberies, as detailed by the trial court in its January 6, 2012 opinion. Rather than reproducing that thorough analysis, we adopt it herein, and conclude that the evidence discussed by the court was sufficient to sustain each of Cesar s nineteen robbery convictions. See Trial Court Opinion., supra at 4-25. Finally, Cesar challenges the trial court s discretion to impose an aggregate sentence of 95 to 190 years imprisonment. His right to review of this assertion is not absolute. Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011) (citing Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super. 2005); Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) ( A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal[.] )). The Rules of Appellate Procedure mandate that to obtain review of such claims, the appellant must include in his brief a Concise Statement of Reasons Relied Upon for Allowance of Appeal. See [Fiascki, 886 A.2d at 263]; see also Pa.R.A.P. 2119(f). The defendant s Concise Statement must, in turn, raise a substantial question as to whether the trial judge, in imposing sentence, violated a specific provision of the Sentencing Code or contravened a fundamental norm of the sentencing process. See Fiascki, 886 A.2d at 263; Commonwealth v. Ousley, 573 A.2d 599, 601 (Pa. Super. 1990) (citations and internal quotation marks omitted) ( [A]ppeals from the discretionary aspects of sentence are not to be granted as a matter of course, but ... only in exceptional circumstances where it can be shown in the 2119(f) statement that despite the multitude of factors impinging on the sentencing decisions, the sentence imposed contravenes the sentencing code. ) The determination of -7- J-S01009-13 whether a particular issue poses a substantial question is to be made on a case-by-case basis. See Fiascki, 886 A.2d at 263. If the Rule 2119(f) statement is absent or if the statement provided fails to demonstrate a substantial question, this Court may refuse to accept the appeal. See id. Coulverson, 34 A.2d at 142. Cesar s Rule 2119(f) statement reads as follows: 1. The sentence of [] [A]ppellant ¦ was manifestly excessive, and therefore unjust. 2. The trial court sentenced [] [A]ppellant to not less than five to not more than ten years on each of the 19 robberies and ran them consecutive to one another giving an aggregate sentence of not less than 95 to nor more than 190 years which, under the circumstances, was excessive. 3. The sentences were run consecutive making them the equivalent to a life sentence without parole in a case which did not involve bodily injury to any victim. 4. The trial court failed to give due consideration to mitigating factors presented by [] [Cesar]. Appellant s Brief, at 17. Essentially, Cesar alleges that the consecutive nature of his sentences resulted in a manifestly excessive aggregate term of imprisonment in light of the particular circumstances of his case. This argument, combined with the term of incarceration at issue, compels us to conclude that Cesar has presented a substantial question permitting our review. See Coulverson, 34 A.3d at 143 (citations omitted) ( We have concluded in prior cases that claims of excessiveness may be justiciable as substantial questions based on the circumstances of the case and the extent to which the appellant s Rule 2119(f) statement suggests the trial court s deviation from sentencing -8- J-S01009-13 norms. ); Commonwealth v. Dodge, 957 A.2d 1198, 1200 n.1 (Pa. Super. 2008) (appellant s claim that consecutive nature of his standard range sentences, totaling 58 ½ to 124 years, was manifestly excessive and amounted to substantial question). Our standard of review, and the rationale underlying it, is as follows: Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (quotation marks and citatons omitted)). See also Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007) (citation omitted) ( 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 a lack of support 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. Ward, 524 Pa. 48, 568 A.2d 1242, 1243 (1990); see also Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587, 591 (1992) (en banc) (offering that the sentencing court is in a superior position to view the defendant s character, displays of remorse, defiance or indifference and the overall effect and nature of the crime. ). Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. -9- J-S01009-13 Id. Nevertheless, the trial court s discretion is not unfettered. When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant.... [A]nd, of course, the court must consider the sentencing guidelines. [Commonwealth v.] Fullin, 892 A.2d [843,] at 847 48 [(Pa. Super. 2006)]. Coulverson, 34 A.3d at 144. In the present case, Cesar concedes that each of his individual sentences were within the standard range of the sentencing guidelines. However, Cesar contests the court s decision to run each of those individual sentences consecutively, thus totaling what is necessarily a life term of incarceration, without the possibility of parole. See 42 Pa.C.S. § 9712(a) (individuals subject to this mandatory minimum shall not be eligible for parole, probation, work release or furlough ). Cesar argues that such a severe sentence was not warranted, especially in light of the fact that he did not physically harm or kill anyone during the commission of the robberies. In imposing this sentence, the trial court was required to consider the factors set forth in 42 Pa.C.S. § 9721(b), which states, in relevant part: (b) General standards.--In selecting from the alternatives set forth in subsection (a), the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing and taking effect under section 2155 (relating to publication of guidelines for sentencing, resentencing and parole and recommitment ranges following revocation). - 10 - J-S01009-13 Id. Furthermore, in assessing whether the trial court s sentence amounts to an abuse of discretion, this Court must adhere to section 9781 of the Sentencing Code. That section directs that we shall vacate the sentence and remand for resentencing where a sentence that is within the guidelines is clearly unreasonable. 42 Pa.C.S. § 9781(c)(2). That statutory provision mandates that in evaluating the discretionary aspects of a sentence, this Court shall have regard for the following: (1) The nature and circumstances of the offense and the history and characteristics of the defendant. (2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation. (3) The findings upon which the sentence was based. (4) The guidelines promulgated by the commission. 42 Pa.C.S. § 9781(d). In Commonwealth v. Walls, supra, our Supreme Court offered guidance as to how these two statutory sections, 9721 and 9781, impact an appellate court s review of the reasonableness of a sentence. The Court explained: We are of the view, however, that the Legislature intended that considerations found in Section 9721 inform appellate review for unreasonableness. That is, while a sentence may be found to be unreasonable after review of Section 9781(d)'s four statutory factors, in addition a sentence may also be unreasonable if the appellate court finds that the sentence was imposed without express or implicit consideration by the sentencing court of the general standards applicable to sentencing found in Section 9721, i.e., the protection of the public; the gravity of the offense - 11 - J-S01009-13 in relation to the impact on the victim and the community; and the rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b). Walls, 926 A.2d at 568-69. As we pointed out in Coulverson, this Court has deemed these same considerations applicable to a determination that a sentence is clearly unreasonable. Coulverson, 34 A.2d at 147 (citing Commonwealth v. Moore, 617 A.2d 8, 12 (Pa. Super. 1992)). Ultimately, we are mindful that individualized sentencing remains the controlling norm of the sentencing process and that a sentence befitting one defendant may not befit another. Id. After considering the above-stated statutory factors, we are compelled to conclude that the sentence imposed here was not clearly unreasonable within the meaning of section 9781(d), and the sentencing court did not commit a manifest abuse of discretion. Walls, 926 A.2d at 961. 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. Id. (emphasis added); see also Commonwealth v. Druce, 796 A.2d 321, 337 (Pa. Super. 2002). - 12 - J-S01009-13 It is well-settled that a sentencing court has the discretion to impose its sentences consecutively or concurrently. See Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005); see also 42 Pa.C.S. § 9721. Here, the sentencing court had the benefit of, and considered, a presentence report. See Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (where presentence report exists, there is presumption that sentencing judge was aware of and adequately considered information relevant to defendant s character, as well as mitigating factors). Additionally, due to Cesar s decision to represent himself at trial and during his sentencing hearing, the court had more than the typical opportunity to observe him. It is also apparent that the court was aware of the relevant sentencing guidelines, and imposed sentences within the standard range for each of Cesar s nineteen robbery convictions. The judge considered the required statutory factors, the presentence report, the sentencing guidelines, the victims statements and Cesar s demeanor. Cesar, even after conviction, was unwilling to take responsibility for his actions. He insisted he was not a violent person. Sentencing Transcript, 12/20/2011, at 27-28. And yet, as the sentencing judge stated, the jury convicted you of nineteen separate armed robberies where you put guns in peoples faces, counted down how many seconds were left in their lives - and demanded money. Id. at 28. Cesar preyed upon nightshift workers at convenience stores and hotels, terrorizing the victims and counting down the death clock in seconds as he racked the slide on the gun so they - 13 - J-S01009-13 would hurry and give him the money he demanded. Id. at 36. The findings on which the court based its sentence, therefore, do not render it clearly unreasonable. 42 Pa.C.S. § 9781(d). In our view, the sentence is consistent with the protection of the public, the gravity of the offenses as they relate to the impact on the lives of the victims and the community, and Cesar s rehabilitative needs. See 42 Pa.C.S. § 9721(b). The record as a whole reflects the court s reasons and its meaningful consideration of the facts of the crimes and Cesar s character. Cesar committed nineteen robberies with a firearm, and terrorized nineteen victims and an entire community for a whole summer. He is not entitled to a volume discount. See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) (stating appellant is not entitled to volume discount for his crimes by having all sentences run concurrently). See Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006); see also Druce, supra. Cf. Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008) (where court imposed minimum sentence of fifty-two (52) years imprisonment for thirty-seven (37) counts of receiving stolen property, nonviolent property crimes, sentence was manifestly excessive). In conclusion, we do not find the sentencing court s decision to impose consecutive sentences a manifest abuse of discretion in light of the criminal conduct at issue. Judgment of sentence affirmed. BENDER, J., files a Dissenting Memorandum. - 14 -

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