February 25, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
TRACEY RAYNARD BRADLEY, Appellant
Appeal from the Judgment of Sentence Entered October 29, 2012, In the Court of Common Pleas of York County, Criminal Division, at No. CP-67-CR-0004137-2010.
BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.
Appellant, Tracey Raynard Bradley, appeals from the judgment of sentence entered following his conviction of first-degree murder and related crimes. We affirm.
Appellant's convictions stem from the death of Lee Choppin ("the Victim"). The Victim had been staying at a Motel 6 in York, Pennsylvania. A motel employee discovered the Victim's body on the floor in his room on May 26, 2010. Appellant, who was staying at the same Motel 6 at the same time, was arrested on unrelated charges. He admitted to entering the Victim's room seeking money and to putting the victim in a "sleeperhold."
On September 11, 2012, a jury convicted Appellant of the crimes of first-degree murder, robbery, burglary, theft by unlawful taking (motor vehicle), and receiving stolen property (motor vehicle). On October 29, 2012, the trial court sentenced Appellant to serve a term of life imprisonment without the possibility of parole for the first-degree murder conviction. The trial court sentenced Appellant to serve a term of incarceration of eight and one-half to seventeen years on the robbery conviction. The trial court sentenced Appellant to serve a term of incarceration of five to ten years on the burglary conviction. For the convictions of theft by unlawful taking and receiving stolen property, the trial court sentenced Appellant to pay the costs of prosecution. The trial court indicated that all sentences were to run consecutively.
Appellant filed post-sentence motions on November 7, 2012. On November 20, 2012, Appellant filed a motion for extension of time to file a brief in support of his post-sentence motions. In an order filed on November 27, 2012, the trial court granted Appellant an additional thirty days in which to file his brief in support of his post-sentence motions. The order also indicated that, as a result of the extension, the trial court would have an additional thirty days in which to render a decision on Appellant's post-sentence motions, pursuant to Pa.R.Crim.P. 720(B)(3)(b). Appellant filed his brief on December 26, 2012. Likewise, on January 14, 2013, the Commonwealth sought a fifteen-day extension of time in which to file a response to Appellant's post-sentence motions. The trial court granted the Commonwealth's request. The Commonwealth then filed its response to Appellant's post-sentence motion on January 30, 2013. The trial court denied Appellant's post-sentence motion on April 8, 2013. This timely appeal followed.
Appellant presents the following issues for our review:
I. Did trial court err in holding that the verdict was legally sufficient despite evidence the decedent could have died from natural causes and despite failing to prove the Appellant intended to commit the act of murder?
II. Did the trial court err in holding that the verdict was not against the weight of the evidence and that it shocked the Court's sense of justice?
III. Did the trial court err by permitting into evidence a taped confession by the Appellant where the confession occurred after the Appellant had requested and was denied counsel?
IV. Did the trial court err by permitting the use of the Appellant's taped confession after the Appellant was arrested on a warrant which lacked probable cause to arrest?
V. Did the trial court err by denying the Appellant's request for a new jury pool when it was discovered that the jury pool consisted entirely of members of a different racial makeup then [sic] the Appellant?
VI. Did the trial court err by sentencing the Appellant to a consecutive prison term following his life sentence considering the consecutive prison term would serve no legitimate purpose?
Appellant's Brief at 5.
Appellant's first issue challenges the sufficiency of the evidence to support his convictions. We observe that, within this argument, Appellant repeatedly contends that the Commonwealth failed to present sufficient evidence to support his various convictions outside of his allegedly inadmissible confession.
However, we do not review an allegation challenging the sufficiency of the evidence based upon a diminished record. Rather, we consider all evidence adduced, even that which Appellant claims should be suppressed. Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011) (stating that "in conducting our [sufficiency] analysis, we consider all of the evidence actually admitted at trial and do not review a diminished record").
Moreover, when reviewing challenges to the sufficiency of the evidence, we evaluate the record in the light most favorable to the Commonwealth as verdict winner, giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d 226, 231 (Pa.Super. 2007) (citation omitted). "Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt." Id. (quoting Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005)). However, the Commonwealth need not establish guilt to a mathematical certainty, and it may sustain its burden by means of wholly circumstantial evidence. Id. In addition, this Court may not substitute its judgment for that of the factfinder, and where the record contains support for the convictions, they may not be disturbed. Id. Lastly, we note that the finder of fact is free to believe some, all, or none of the evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.Super. 2006).
Appellant first argues that the Commonwealth failed to present sufficient evidence to support his various convictions, including first-degree murder, robbery, burglary, theft, and receiving stolen property. Initially, Appellant contends that there was insufficient evidence to establish that the Victim did not die of natural causes, but rather died of asphyxiation caused by Appellant. Appellant asserts that there was a "disconnect between the two experts" which shows that the Commonwealth was unable to prove beyond a reasonable doubt that the Victim died by asphyxiation, let alone that Appellant intended to commit a murder. Appellant's Brief at 21.
Murder is defined, in relevant part, as follows:
§ 2502. Murder
(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
18 Pa.C.S.A. § 2502(a). The Pennsylvania Supreme Court has discussed the elements of first-degree murder as follows:
To convict a defendant of first degree murder, the Commonwealth must prove: a human being was unlawfully killed; the defendant was responsible for the killing; and the defendant acted with malice and a specific intent to kill.
Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa. 2011) (internal citations omitted.)
A killing is intentional if it is done in a willful, deliberate and premeditated fashion. 18 Pa.C.S.A. § 2502. The period of reflection needed to establish deliberation and premeditation may be as brief as a fraction of a second. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009). Indeed, the deliberation and premeditation needed to establish intent exist whenever the assailant possesses the conscious purpose to bring about death. Id. The Commonwealth may use circumstantial evidence to establish the elements of first-degree murder, including the element of intent. Id. Furthermore, our Supreme Court has stated that "death by manual strangulation [is] sufficient to establish that the perpetrator acted maliciously and with a specific intent to kill." Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa. 2007).
Appellant's argument is flawed in that he views the evidence in the light most favorable to himself, and he fails to acknowledge the evidence supporting the verdict. Under our standard of review in a sufficiency challenge, we must view the evidence and all of its reasonable inferences in the light most favorable to the Commonwealth as the verdict winner. Applying this standard, the jury was presented with evidence upon which it could find, beyond a reasonable doubt, that Appellant manually strangled the Victim and caused his death. As previously stated, "[D]eath by manual strangulation [is] sufficient to establish that the perpetrator acted maliciously and with a specific intent to kill." Cooper, 941 A.2d at 662. The evidence, therefore, was sufficient to support Appellant's conviction of first-degree murder. Moreover, the jury was free to disregard Appellant's theory concerning the manner and cause of the Victim's death. See Hartle, 894 A.2d at 804 (stating that the jury is free to believe all, part or none of the evidence). Because the evidence supports Appellant's conviction of first-degree murder, Appellant's argument lacks merit.
Further, Appellant challenges his conviction of robbery. Appellant argues that the Commonwealth failed to establish that a theft occurred from the Victim's motel room and that, if a theft was established, a fight or struggle occurred inside of the motel room.
Our legislature has defined the crime of robbery, in pertinent part, as follows:
§ 3701. Robbery.
(a) Offense defined.
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another . . .
18 Pa.C.S.A. § 3701(a)(1)(i).
With regard to whether a theft occurred, our review of the evidence indicates that the Commonwealth established that another motel patron observed Appellant exiting a first floor motel room and carrying various items including what appeared to be a laptop and other property identified as belonging to the Victim. N.T., 9/4-11/12, at 568-572. The Victim was registered to, and was discovered in, Room 128, on the first floor of the motel. Id. at 156-157. Appellant was registered to a room on the second floor, Room 228. Id. at 197. The Commonwealth further established that various items belonging to the Victim were sold at a pawnshop and also to the owner of a family-owned grocery store. Id. at 483-489, 493-496. This evidence established that a theft occurred in Room 128 of the motel.
With regard to whether serious bodily injury was inflicted upon another, there is no doubt that the Commonwealth presented medical evidence indicating that, apart from the various bruises and abrasions discovered on numerous parts of the Victim's body, the Victim died by strangulation. Id. at 791-809. These facts presented by the Commonwealth belie Appellant's contention that there was no evidence of an altercation. Accordingly, the evidence viewed in the light most favorable to the Commonwealth reflects that Appellant, in the course of committing a theft, inflicted serious bodily injury upon the Victim. Thus, Appellant's contrary claim lacks merit.
Appellant challenges the sufficiency of the evidence to support his conviction of burglary. We observe that the crime of burglary is defined, in relevant part, as follows:
§ 3502. Burglary.
(a) Offense defined.--A person commits the offense of burglary if, with the intent to commit a crime therein, the person:
(1) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present;
18 Pa.C.S.A. § 3502(a)(1).
The entirety of Appellant's argument in this regard is as follows:
Turning to the charge of burglary, the Appellant contends there is no evidence he entered the room outside of his own confession.4 Aside from the confession, the Commonwealth has no physical evidence the Appellant ever entered the room.
4 The Appellant's confession was used by the Commonwealth to provide proof of every offense charged, aside from the intent necessary for first degree murder. The Appellant provided a response to the confession. For the sake of brevity, the Appellant draws this Honorable Court's attention to the response for all charges.
Specifically, there was no DNA evidence, no fingerprints, no hairs or fibers or any other evidence linking the Appellant to the motel room. Furthermore, the only Commonwealth witness present at the scene saw the Appellant exit a motel room on the first floor but did not see which room the Appellant exited. The Appellant contends the Commonwealth has failed to establish the elements necessary to convict the Appellant of burglary. The Appellant submits the jury's verdict is so lacking that it shocks the sense of justice and warrants a new trial.
Appellant's Brief at 23-24.
To the extent that Appellant asserts that his confession was not properly admitted and considered by the jury, we reiterate that in addressing challenges to the sufficiency of the evidence, we do not consider a diminished record, but all of the evidence admitted at trial. See Koch, 39 A.3d at 1001. Moreover, when challenging the sufficiency of the evidence on appeal, an appellant must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal. See Commonwealth v. Williams, 959 A.2d 1252, 1257-1258 (Pa.Super. 2008) (finding waiver of sufficiency of evidence claim where the appellant failed to specify in Rule 1925(b) statement the elements of particular crime not proven by the Commonwealth). See also Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009) (holding sufficiency claim waived under Williams for failure to specify either in Rule 1925(b) statement or in argument portion of appellate brief which elements of crimes were not proven beyond a reasonable doubt). Here, Appellant has failed to specify in his appellate brief the elements of the crime of burglary which allegedly were not established. Rather, as previously noted, Appellant's argument consists of claims that there was no evidence outside of his own confession. Consequently, Appellant's non-specific claim challenging the sufficiency of the evidence, which fails to specify the elements of the crime of burglary allegedly not proven by the Commonwealth, is waived. Williams.
Appellant also challenges the sufficiency of the evidence to support his convictions of theft and receiving stolen property. Each of these crimes is defined, in relevant part, as follows:
The relevant statute regarding theft provides that "[a] person is guilty of theft [by unlawful taking or disposition] if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa.C.S.A. § 3921(a). Proof of theft by unlawful taking requires three elements: (1) unlawful taking or unlawful control over movable property; (2) movable property belongs to another; and (3) intent to deprive. Criminal intent may be inferred from surrounding circumstances. Commonwealth v. McConnel, 436 A.2d 1201 (Pa.Super. 1981). Movable property is defined as "property the location of which can be changed." 18 Pa.C.S.A. § 3901. Deprivation occurs if a person: (1) "withholds property of another permanently;" or (2) "disposes of the property so as to make it unlikely that the owner will recover it." Id.
The crime of receiving stolen property is defined as follows:
(a) A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
18 Pa.C.S.A. § 3925(a). In order to convict a defendant for receiving stolen property, the Commonwealth must prove: "(1) the property was stolen; (2) the defendant was in possession of the property; and (3) the defendant knew or had reason to believe the property was stolen." Commonwealth v. Foreman, 797 A.2d 1005, 1011 (Pa.Super. 2002).
[A] permissible inference of guilty knowledge may be drawn from the unexplained possession of recently stolen goods without infringing upon an accused's right of due process or his right against self-incrimination, as well as other circumstances, such as the accused's conduct at the time of arrest. Nonetheless, the mere possession of stolen property is insufficient to prove guilty knowledge, and the Commonwealth must introduce other evidence, which can be either circumstantial or direct, that demonstrates that the defendant knew or had reason to believe that the property was stolen. This additional evidence can include the nature of the goods, the quantity of the goods involved, the lapse of time between possession and theft, and the ease with which the goods can be assimilated into trade channels. Further, whether the property has alterations indicative of being stolen can be used to establish guilty knowledge. Finally, even if the accused offers an explanation for his possession of stolen property, the trier of fact may consider the possession as unexplained if it deems the explanation unsatisfactory.
Foreman, 797 A.2d at 1012-1013 (citations omitted). In addition, "[w]e have previously held that possession of a vehicle twelve days after it had been stolen allowed for an inference of guilty knowledge." Commonwealth v. Marrero, 914 A.2d 870, 873 (Pa.Super. 2006) (citing Commonwealth v. Williams, 362 A.2d 244, 250 (Pa. 1976)).
The complete argument presented by Appellant challenging the sufficiency of the evidence to support the convictions of theft and receiving stolen property is as follows:
Turning to [the] charge of theft of moveable property, the Appellant contends there was no evidence of theft beyond his confession. Specifically, the Appellant contends the items found by the police which were associated with the decedent were pawned by a co-defendant. The Appellant contends the only witness to link the property from the Appellant to the co-defendant was a co-defendant herself who testified to benefit her own criminal case and to avoid taking responsibility for her criminal actions.
Turning to the charge of receiving stolen property, the Appellant contends he was never in possession of any stolen property. Aside from his own confession, the only evidence he was in possession of any property came from a co-defendant who failed to identify the property beyond the property's color.
The Appellant notes, the co-defendant witness failed to witness the Appellant with all of the stolen property mentioned and failed to identify the laptop as the specific laptop stolen from the decedent. Furthermore, the co-defendant's testimony must be subject to scrutiny because the co-defendant received a benefit for testifying.
Appellant's Brief at 24.
Appellant's argument in his appellate brief is completely devoid of any discussion as to which elements of the crimes of theft and receiving stolen property were allegedly not established by the Commonwealth. Consequently, Appellant's non-specific claim challenging the sufficiency of the evidence, which fails to specify the elements of the crimes allegedly not proven by the Commonwealth, is waived. Williams.
As for Appellant's challenge to the credibility of the evidence presented by the Commonwealth, we observe that a sufficiency of the evidence review does not include an assessment of the credibility of the testimony. Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003). Such a claim is more properly characterized as a weight of the evidence challenge, because a challenge to the weight of the evidence questions which evidence is to be believed. Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.Super. 2006).
In his second issue, Appellant argues that the trial court erred in determining that the verdict was not against the weight of the evidence. Specifically, Appellant asserts that the Commonwealth could not prove beyond a reasonable doubt that the Victim did not die of natural causes and that the Commonwealth failed to prove Appellant intended to commit the crime of murder.
Our standard of review is as follows:
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). "Thus, the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings." Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).
Here, the jury, sitting as the finder of fact, chose to believe the evidence presented by the Commonwealth and to find credible the events as presented by the Commonwealth, as was its right. The trial court aptly concluded, after thoroughly reviewing the evidence presented by the Commonwealth against Appellant, "Moreover, the verdict [of first-degree murder] is not so tenuous, vague, and uncertain that it shocks the conscience of the Court. Therefore, a new trial is not warranted." Trial Court Opinion, 4/10/13, at 21.
The jury was free to believe all, part, or none of the evidence against Appellant. The jury weighed the evidence and concluded Appellant perpetrated the crimes in question, including first-degree murder. This determination is not so contrary to the evidence so as to shock one's sense of justice. We decline Appellant's invitation to assume the role of factfinder and to reweigh the evidence. Accordingly, we conclude that the trial court did not abuse its discretion in determining Appellant's weight of the evidence claims lack merit.
In his third issue, Appellant argues that the trial court erred in admitting into evidence a videotape depicting Appellant confessing to the crimes in question. Appellant contends that the confession should have been suppressed because he had requested an attorney, and no attorney was provided, in violation of his Miranda rights.
The standard of review an appellate court applies when considering an order denying a suppression motion is well established. An appellate court may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004)). Where the record supports the factual findings of the trial court, the appellate court is bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Id. However, it is also well settled that the appellate court is not bound by the suppression court's conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455, 459 (Pa. 2003)).
With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Commonwealth v. Quiles, 422 Pa.Super. 153, 619 A.2d 291, 292 (1993). Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350, 353 (1992). However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678, 680 (1993). Only factual findings which are supported by the record are binding upon this court.
Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa.Super. 1995). In addition, we are aware that questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa.Super. 2003).
With regard to Appellant's contention that his Miranda rights were violated for multiple reasons during his interrogation, we have reviewed the briefs of the parties, the relevant law, the certified record, and the opinion of the trial court which thoroughly addressed this issue in response to Appellant's post-sentence motions; we conclude that the claim lacks merit. Accordingly, we affirm on the basis of the trial court's opinion, filed on April 10, 2013, adopt its language as our own, and set forth the relevant portions as follows:
In paragraph number nine, subparagraphs (a) through (j), of his Brief in Support [of post-sentence motions], [Appellant] lists certain facts which he claims were presented at the hearings on the Motion to Suppress. This Court's reaction to those assertions is as follows:
In regard to subparagraph (b), after the Detectives took custody of [Appellant] from the U.S. Marshalls, Corporal John Hartley gave [Appellant] his Miranda warnings. (N.T., 12/20/10, page 15). [Appellant's] response to those warnings was that his attorney advised him to lay low. (N.T., 12/20/10, page 17). Corporal Hartley took this as a request for his attorney, stopped talking to [Appellant], and told [Appellant] he was done talking to him. (N.T., 12/20/10, page 17). [Appellant] told Corporal Hartley that his attorney's name was Kevin Hoffman, and that he was located at the corner of King St. and Duke St. in the City of York. (N.T., 12/20/10, page 18). Corporal Hartley indicated he had never heard of Attorney Kevin Hoffman, and contacted York County Control (Dispatch) to get a phone number for Attorney Hoffman. (N.T., 12/20/10, page 18). Commonwealth's Exhibit # 1 was a recording of Corporal Hartley's phone call to Dispatch and was played. (N.T., 12/20/10, pages 19-22). From the recording, you could hear Corporal Hartley ask Dispatch to find a phone number for Attorney Kevin Hoffman at the location given by [Appellant]. (N.T., 12/20/10, page 19). Also from the recording, Dispatch indicated they checked the white pages, yellow pages, and their database, but could not locate either Kevin Hoffman, or a law office at that location. (N.T., 12/20/10, pages 20-22). In addition, Dispatch indicated that it would continue to look for Kevin Hoffman's phone number (N.T., 12/20/10, page 22), however Corporal Hartley never heard back from Dispatch. (N.T., 12/20/10, pages 22-23).
In regard to subparagraph (c), you could hear part of a conversation between Corporal Hartley and [Appellant] while Corporal Hartley was on the phone with Dispatch. (N.T., 12/20/10, pages 19-22). In the first part of the conversation, Corporal Hartley was trying to find out when [Appellant] spoke to his attorney last, and what time that would have been. (N.T., 12/20/10, page 19). The rest of the "conversation" between Corporal Hartley and [Appellant] from the recording is as follows:
Officer: It makes a difference you understand that.
[Appellant]: Are you calling me crooked. Why you got to call me crooked. Oh, you are going to tell me - okay, lawyer Pennsylvania - law.
Officer: I'll charge you again with Megan's law.
Officer: -- your family –
[Appellant]: So they didn't do anything?
Officer: You keep to that story. Go ahead.
You keep to your story.
Officer: You can't -- you are now in custody and that phone is now ours.
Officer: No, that's not true. No, I am not going to say that. I never said that. It wouldn't have come this far. All you had to do is talk to me, right. You guys think that you know we are just going to lay down and listen to people lie to us and shit. I am going to do what I have to do.
It is clear that what was heard was only part of the conversation. Corporal Hartley was asked about this conversation on cross examination. Corporal Hartley indicated he was not sure what "all you had to do was talk to me" was in regard to. (N.T., 12/20/10, page 32). He went on to explain that he and [Appellant] were talking back and forth about the cell phone and why neither [Appellant] nor Corporal Hartley could use it. (N.T., 12/20/10, page 32). Corporal Hartley further explained that [Appellant] was mad at him for charging him with a Megan's law offense. (N.T., 12/20/10, page 32). In addition, he said that when [Appellant] saw the photos of his family hanging up, he was furious and accused Corporal Hartley of messing around with his family. (N.T., 12/20/10, page ).
In regard to subparagraph (d), [Appellant] failed to mention that Corporal Hartley explained that the reason why he would not use [Appellant's] cell phone to contact his attorney was because it was evidence. (N.T., 12/20/10, page 24). Corporal Hartley further explained on cross-examination that he did not want to use [Appellant's] cell phone because this was a homicide investigation and he was told the phone was going to be evidence. (N.T., 12/20/10, pages 36-37). Therefore, he was not going to open the cell phone, turn it on, or turn it off. (N.T., 12/20/10, page 37).
In regard to subparagraph (e), [Appellant] left out the context in which this was stated. After they had arrived at police headquarters and they had made the call to Dispatch, [Appellant] asked for a cigarette. (N.T., 12/20/10, page 26). Corporal Hartley took [Appellant] down to the garage (the only place anyone was allowed to smoke). (N.T., 12/20/10, pages 27-28). While down there, [Appellant] asked Corporal Hartley hypothetically, if [Appellant] had information on an investigation they were working on, and if [Appellant] gave them that information, would that help him out. (N.T., 12/20/10, page 27). Corporal Hartley told [Appellant] that he could not talk to him, that he doesn't make any promises, and that [Appellant] continuously asked Corporal Hartley to help him out with the Megan's law charge. (N.T., 12/20/10, page 27). Corporal Hartley proceeded to tell [Appellant] that the only way he would talk to him is if [Appellant] would say he did not need his attorney anymore. (N.T., 12/20/10, page 27). Because [Appellant] invoked his right to an attorney, he was not going to talk to him. (N.T., 12/20/10, page 27). Corporal Hartley further told [Appellant] that the only way he would even consider talking to [Appellant] was if he went on audio video voluntarily, and that the Corporal couldn't make any deals with him or make promises. (N.T., 12/20/10, page 28). The Corporal indicated the only person that could do that was DA Kearney or an ADA, asked [Appellant] if he wanted the Corporal to make contact, and [Appellant] said "yes." (N.T., 12/20/10, page 28). After going back upstairs, Corporal Hartley talked with Detective Sergeant Steffen and told him about the conversation, at which point Detective Sergeant Steffen contacted DA Thomas Kearney. (N.T., 12/20/10, page 29).
In regard to subparagraph[s] (f) and (g), the citations noted pertain to [Appellant's] testimony at the suppression hearing on February 16, 2011, which the Court did not find credible.
In regard to subparagraph (h), it is true that [Appellant] did see photographs of his family hanging up. (N.T., 12/20/10, page 32).
In regard to subparagraph (i), the citation provided refers to [Appellant's] testimony at the suppression hearing on February 16, 2011, which the Court did not find credible.
In regard to subparagraph (j), the citation refers to [Appellant's] testimony at the suppression hearing, which the Court did not find credible. Moreover, these contentions by [Appellant] are belied by the video tapes. [Appellant] did admit to taking heroin around 10:00 a.m. the morning of June 4, 2010. (N.T., 6/4/10, 2010 hrs., page 11). [Appellant] was asked if he was under the influence of heroin right now to the point that it would be making any impacts at all on his ability to make a decision as to a willingness to make a statement, or as far as [Appellant's] ability to give a statement. (N.T., 6/4/10, 2010 hrs., pages 11-12). In response, [Appellant] said "no, I am ok." [Appellant] was also asked if he has impaired judgment or anything like that as far as the use of the heroin. (N.T., 6/4/10, 2010 hrs., page 12). In response, [Appellant] said "no." (N.T., 6/4/10, 2010 hrs., page 12). Furthermore, [Appellant] indicated he has been using heroin for approximately 3 or 4 months, and that he would know, whether or not this dosage of heroin that [Appellant] took would make a difference in his ability to make decisions. (N.T., 6/4/10, 2010 hrs., page 12). [Appellant] also indicated that with the absence of heroin, he still feels he can go forward and give a statement to the best of his ability. (N.T, 6/4/10, 2010 hrs., page 12).
In addition, it is clear from watching the video tapes that [Appellant] was able to appropriately respond to the questions presented and form coherent sentences. [Appellant] appeared to be conducting himself in a very normal way with regard to the conversation that was going on.
Trial Court Opinion, 4/10/13, at 4-9 (emphasis in original).
INTERROGATION OF [APPELLANT]
Regarding paragraph[s] number[ed] twenty-six through thirty-eight of his Brief in Support, [Appellant] contends that the Court erred by allowing into evidence the taped confession by [Appellant]. Specifically, [Appellant] contends that the police improperly initiated custodial interrogation after [Appellant] had invoked his right to counsel.
"An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police." Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981)(emphasis added).
In this case, after the Detectives and [Appellant] had arrived at police headquarters and they made the call to Dispatch, [Appellant] asked for a cigarette. (N.T., 12/20/10, page 26). Corporal Hartley took [Appellant] down to the garage (the only place anyone was allowed to smoke). (N.T., 12/20/10, pages 27-28). While in the garage, [Appellant] asked Corporal Hartley hypothetically, if [Appellant] had information on an investigation they were working on, and if [Appellant] gave them that information, would that help him out. (N.T., 12/20/10, page 27). Corporal Hartley told [Appellant] that he could not talk to him, that he doesn't make any promises, and that [Appellant] continuously asked Corporal Hartley to help him out with the Megan's law charge. (N.T., 12/20/10, page 27). Corporal Hartley proceeded to tell [Appellant] that the only way he would talk to him is if [Appellant] would say he did not need his attorney anymore. (N.T., 12/20/10, page 27). Because [Appellant] invoked his right to an attorney, he was not going to talk to him. (N.T., 12/20/10, page 27). Corporal Hartley further told [Appellant] that the only way he would even consider talking to [Appellant] was if he went on audio video voluntarily, and that the Corporal couldn't make any deals with him or make promises. (N.T., 12/20/10, page 28). The Corporal indicated the only person that could do that was DA Kearney or an ADA, asked [Appellant] if he wanted the Corporal to make contact, and [Appellant] said "yes." (N.T., 12/20/10, page 28). After going back upstairs, Corporal Hartley talked with Detective Sergeant Steffen and told him about the conversation, at which point Detective Sergeant Steffen contacted DA Thomas Kearney. (N.T., 12/20/10, page 29). In addition:
• On June 4, 2010, at 4:11 p.m., [Appellant] was given his Miranda Rights, and he indicated he understood those rights (N.T., 6/4/10, 4:11 p.m., pages 2-3);
• On June 4, 2010 at 4:42 p.m., after they had to restart the recording because the battery died, Detectives explained [Appellant's] Miranda rights again, [Appellant] indicated again that he understood those rights and that he did not have any questions about those rights (N.T., 6/4/10, 4:42 p.m., pages 2-3);
• In addition, the following exchange took place:
Q. You said previously when we got you in the police car the first time when you were in our custody that you wanted to talk to an attorney, but you changed your mind about that - is that correct ?
Q. Yes? Is that correct ?
Q. Did myself or Detective Hartley threaten you or promise you anything in exchange for that?
A. Absolutely not.
Q. Ok. Well, I just want to make sure that that is understood that, you know, we didn't make you change your mind. You changed your mind right?
Q. (from Detective Hartley) Do you mind saying it, since it was you and I that had the conversation ?
A. Me and Officer Hartley was having a hypothetical conversation. And, if I can say, based on the hypothetical conversation, I felt that it was [in] my best interest to speak to him on my own.
Q. (from Sgt. Steffen) Okay.
A. He didn't coerce me.
Q. He didn't threaten you or anything like that. Okay.
A. He didn't threaten me. He didn't hit me with a phone book.
Q. (from Detective Hartley) Did I tell you I would have to have the right people here to talk to you?
Q. (by DA Kearney) You are here now. We are talking. You know, you have an absolute right to an attorney if you want one. Okay? Am I correct that you are willing to proceed at this time without one?
A. Yes, sir.
Q. Ok, I just want to make sure, because I want to make sure that you get one if you wanted one. But if you want to proceed, then that's fine. We can do that. I just want to make clear that that's ok.
• On June 4, 2010 at 5:56 p.m., Detectives again explained [Appellant's] Miranda rights, [Appellant] indicated again that he understood those rights (N.T., 6/4/10, 5:56 p.m., page 2);
• Detectives asked [Appellant] if he was still willing to talk to them without the presence of an attorney, to which [Appellant] responded "yeah. I told you everything that I know." (N.T., 6/4/10, 5:56 p.m., pages 3-4);
• [Appellant] acknowledged that he is talking to them freely and voluntarily and of his own free will; that no-one is forcing him to do this, and that he was
doing this because he is hoping to get some benefit on his other charge. (N.T., 6/4/10, 5:56 p.m., page 3);
• [Appellant] acknowledged that during the break Detective Hartley did not threaten him, yell or scream at him, or anything like that. (N.T., 6/4/10, 5:56 p.m., page 4);
• On 6/4/10, at 2010 hours (8:10 p.m.), after [Appellant] was transported to the judicial center [and] met with his wife and daughter, Detectives again explained [Appellant's] Miranda rights; [Appellant] indicated again that he understood those rights (N.T, 6/4/10, 2010 hrs., page 10);
• [Appellant] acknowledged that during the break he was allowed to see his wife and daughter, was given a meal and something to drink (N.T., 6/4/10, 2010 hrs., pages 10-11);
• [Appellant] also acknowledge that during the break he was not threatened or coerced or in any way made any promises (N.T., 6/4/10, page 11);
• After [Appellant's] heroin use was discussed, Detectives asked [Appellant] if he still intended to proceed without counsel, to which [Appellant] responded "yeah." (N.T., 6/4/10, page 13);
• Finally, at the conclusion of the interviews, [Appellant] was asked if the statement that at no point during either the breaks or anything else did he request an attorney was a fair statement, to which [Appellant] responded "Everything is ok - yeah." (N.T., 6/4/10, 2010 hrs., page 62).
Given the foregoing, it is clear that [Appellant] is the one who initiated further communication with the Detectives, and that a valid waiver of his right to counsel [had] repeatedly been established. Therefore, [Appellant's] taped confession was properly admitted.
In regard to paragraph thirty-two, Corporal Hartley did not want to use [Appellant's] cell phone for any reason because it was evidence in a homicide investigation. (N.T., 12/20/10, pages 24, 36-37).
The issue addressed in paragraph thirty-three was previously addressed in response to paragraph nine(c).
[Appellant's] contentions in paragraph thirty-four appear to be from [Appellant's] testimony at the suppression hearing on February 16, 2011 (even though no cites to the record were provided). The Court did not find [Appellant's] testimony to be credible.
In regard to paragraph thirty-five, [Appellant's] contention that he made repeated requests to speak to a lawyer during his taped interviews is belied by the record. (N.T., 6/4/10, 4:11 p.m., pages 2-3; 614/10, 4:42 p.m., pages 2-5; 6/4/10, 5:56 p.m., pages 2-4; 6/4/10, 2010 hrs., pages 10-13).
In addition, the Court is unsure what [Appellant] meant in reference to his heroin use that he "did have control of his facilities" (emphasis added). However, the Court previously addressed the issue of [Appellant's] heroin use in response to paragraph nine(j).
In regard to paragraph thirty-six, Corporal Hartley testified that the reason [Appellant] was being taken to headquarters was so that they could first try to locate [Appellant's] attorney, and then interview [Appellant] with his attorney present. (N.T., 12/20/10, pages 25-26, 36). In addition, [Appellant]'s contention that he had to wait for over an hour before being Mirandized is belied by the record. [Appellant] was Mirandized several times that day, but the first time was in the police car shortly after the Detectives took him into custody. (N.T., 12/20/10, pages 15-17). Also, [Appellant's] contention that he was made to wait for over an hour before being subject to questioning is a mischaracterization of what occurred during that hour. [Appellant] seems to imply that he was sitting by himself for that hour and nothing else was going on. However, during the interval between arriving at police headquarters and the beginning of the interviews, the following occurred:
• Detectives tried to locate [Appellant's] Attorney Kevin Hoffman;
• Detectives allowed [Appellant] to smoke a cigarette;
• [Appellant] requested that Detectives contact DA Kearney because he wanted to talk. As a result, they had to wait for the arrival of the District Attorney.
[Appellant's] contention that he was told his family was going to be arrested and go to jail for crimes they did not commit pertains to [Appellant's] testimony at the suppression hearing on February 16, 2011 (even though there is no cite to the record). The Court did not find [Appellant's] testimony to be credible.
While at police headquarters, [Appellant] did see photographs of his family hanging up. (N.T., 12/20/10, pages 26, 32). However, the fact that his wife and daughter were persons of interest in regard to the death of Lee Choppin was reality and the truth. Even though it might be an unfortunate truth and one that [Appellant] did not want to face, it does not amount to coercion.
The contention in paragraph thirty-seven that the interrogation included a break where [Appellant] saw his family in leg irons and handcuffs is a mischaracterization of what occurred and why. [Appellant] had requested to meet with Detectives and DA Kearney because he wanted to see his wife and daughter before he told them the truth about what happened. (N.T., 6/4/10, 6:44 p.m., pages 2-4). [Appellant] was informed that his wife and daughter were in central booking. They agreed to [Appellant's] request and made the appropriate arrangements for the meetings to occur, including transporting [Appellant] to the judicial center where central booking is located. (N.T., 6/4/10, 6:44 p.m., pages 3-7).
[Appellant] further contends that he was in custody for over eight hours and the actual interrogation took over four hours. Presumably [Appellant] is alleging that based on the length of time he was in custody, his confession was involuntary.
Voluntary statements by an accused, given more than six hours after arrest when the accused has not been arraigned, are no longer inadmissible per se. Rather, regardless of the time of their making, courts must consider the totality of the circumstances surrounding the confession. In reviewing the totality of the circumstances, it must be considered whether, under the circumstances, the confession was freely and voluntarily made. Various other factors to consider include the interrogation's duration and means, the defendant's physical and mental state, the detention conditions, police attitude during the interrogation, and any other factors indicating whether coercion was used.
Commonwealth v. Garland, 2013 WL 772678 (Pa.Super. ).
In regard to the length of time [Appellant] was in custody in this case:
• Once [Appellant] was in custody, it took approximately half an hour to return to police headquarters;
• Once at police headquarters, Detectives attempted to locate [Appellant's] attorney;
• Detectives allowed [Appellant] to smoke a cigarette;
• After [Appellant] indicated he wanted Detectives to contact DA Kearney because he wanted to talk, they had to wait for the DA to arrive;
• Once interrogation began, they took multiple breaks and [Appellant] was provided with meals and beverages, and allowed to smoke a cigarette;
• The total time period included the length of time to comply with [Appellant's] request to see his wife and daughter:
-This included transporting [Appellant] to the judicial center;
-It also included the amount of time for [Appellant] to meet with his wife and daughter separately.
• From reviewing the tapes, and by [Appellant's] own words, the conduct and attitude of the Detectives and the DA is as follows:
-They were straight with [Appellant] while they talked;
-They did not say anything harmful;
-They did not treat him bad;
-They did not push [Appellant];
-They were not cursing;
-They treated [Appellant] respectfully;
-They did not break their word to [Appellant], "not one time";
-They granted his request to be with his family and gave him that opportunity;
-They did not make any promises to [Appellant] at any point.
(N.T., 6/4/10, 6:44 p.m., pages 60-61). Moreover, the Court has previously determined that [Appellant's] confession was not involuntary due to either exhaustion or intoxication. Given the totality of these circumstances, [Appellant's] confession was voluntary.
Trial Court Opinion, 4/10/13, at 30-38 (emphasis in original).
In his fourth issue, Appellant argues that the trial court erred in failing to suppress his confession to police because he was arrested on a warrant that lacked probable cause. Therefore, he claims that his subsequent confession should not have been admitted.
In this memorandum, we have stated the appropriate standard of review an appellate court applies when considering an order denying a suppression motion. Moreover, we are mindful that Pennsylvania Rule of Criminal Procedure 581, which addresses the suppression of evidence, provides in relevant part as follows:
(H) The Commonwealth shall have the burden . . . of establishing that the challenged evidence was not obtained in violation of the defendant's rights.
Pa.R.Crim.P. 581(H). Furthermore,
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the "right of each individual to be let alone." Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L.Ed.2d 854, 93 S.Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593, 596 (Pa.Super. 1990).
Commonwealth v. By, 812 A.2d 1250, 1254 (Pa.Super. 2002).
To secure the right of citizens to be free from intrusions by police, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa.Super. 2000).
It is undisputed that:
State case law recognizes three categories of interaction between police officers and citizens, which include: (1) a mere encounter, or request for information, which need not be supported by any level of suspicion, but which carries no official compulsion to stop or to respond; (2) an investigative detention, which must be supported by reasonable suspicion as it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest; and (3) arrest or custodial detention, which must be supported by probable cause.
Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa.Super. 2003) (en banc).
Probable cause for an arrest exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime. Commonwealth v. Santiago, 736 A.2d 624, 630 (Pa.Super. 1999). Probable cause justifying an arrest is determined by the totality of the circumstances. Commonwealth v. Colon, 777 A.2d 1097 (Pa.Super. 2001). Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference. Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa.Super. 2004).
Our review of the record reflects that, at the hearing addressing Appellant's motion to suppress his confession, the officer who investigated Appellant in York County, and ultimately received Appellant's confession, explained that he had come into contact with Appellant due to an arrest on a warrant for a Megan's Law violation. N.T., 12/20/10, at 12. As Appellant concedes in his appellate brief, "[Appellant] was evicted from the residence he had registered with and had been moving from motel to motel while attempting to find a permanent residence." Appellant's Brief at 32. Further, it is undisputed that Appellant had been residing for a period at the Motel 6, where the instant murder occurred. These facts are sufficient to justify a person of reasonable caution in believing that Appellant had committed a Megan's Law registration violation. Thus, the Commonwealth had probable cause to obtain an arrest warrant for Appellant and his arrest was appropriate, as was his subsequent confession. Accordingly, Appellant's contrary claim lacks merit.
In his fifth issue, Appellant argues that the trial court erred in denying his request for a new jury pool. Specifically, Appellant, an African-American, contends that the jury pool present at the time of his jury selection consisted entirely of members of a different racial background than Appellant and, therefore, did not represent a fair cross-section of the community.
However, the Pennsylvania Supreme Court has noted that an appellant does not have the right to demand that specific numbers of minorities sit on the jury panel that judges him. Commonwealth v. Johnson, 838 A.2d 663 (Pa. 2003); see also Commonwealth v. Craver, 688 A.2d 691, 696 (Pa. 1997) (stating "'Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.'" (quoting Taylor v. Louisiana, 419 U.S. 522, 538, (1975) (emphasis in original))). Rather, "the Sixth Amendment to the United States Constitution provides for a trial by a jury of one's peers drawn from a source fairly representative of the community." Commonwealth v. Estes, 851 A.2d 933, 934 (Pa.Super. 2004) (citing Taylor).
The Johnson Court summarized the requirements for a challenge to the jury array on the ground that such array does not reflect a fair cross section of the community. Estes, 851 A.2d at 934.
To establish a prima facie violation of the requirement that a jury array fairly represent the community, [a defendant] must show that:
(1) the group allegedly excluded is a distinctive group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation of the number of such people in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. "Systematic" means caused by or inherent in the system by which juries were selected. Proof is required of an actual discriminatory practice in the jury selection process, not merely underrepresentation of one particular group. The defendant bears the initial burden of presenting prima facie evidence of discrimination in the jury selection process.
Johnson, 838 A.2d at 682 (citations omitted).
Moreover, we are mindful that our Supreme Court has rejected various attacks on the basis that African-Americans were under-represented in the racial composition of a jury panel drawn from voter registrations lists. See Commonwealth v. Bridges, 757 A.2d 859, 868 (Pa. 2000); Commonwealth v. Henry, 569 A.2d 929, 933 (Pa. 1990). Likewise, the reasoning and holdings of those cases have been extended to approve the usage of driver's license lists for purposes of jury selection. See Commonwealth v. Johnson, 815 A.2d 563, 575 (Pa. 2002) (plurality) (stating "Absent some showing that driver's license selection procedures are inherently biased, [the defendant] has failed to distinguish jury pool lists derived from voter registration records from those derived from driver's license registration lists.").
Here, Appellant offers only his own evidence in support of the first two prongs of the prima facie test and essentially makes no showing as to the third prong. See Appellant's Brief at 33-34 (presenting allegations of the racial make-up of York County as a whole, and the particular jury pool which appeared on the day of jury selection in Appellant's case). Moreover, our review of the record reflects that Appellant has failed to present prima facie proof that African-Americans are systematically excluded from the jury selection process in York County. The record demonstrates that in York County potential jurors are selected by the jury commission from a master pool compiled through various sources from state agencies, including the Department of Transportation, Department of Health, Department of Welfare, and voter registration. N.T., 9/4-11/12, at 9-10. Although African-Americans may not be represented in the York County juries at any given time at a precise level of mathematic proportionality with regard to their percentage of the population in York County, it is clear that Appellant cannot present a prima facie case that the racially-neutral York County jury selection process is discriminatory against African-Americans by design. Accordingly, Appellant's claim fails. See Johnson, 838 A.2d at 682 (explaining that proof is required of actual discriminatory practice in the jury selection process, not merely under-representation of one particular group).
In his final issue, Appellant contends that the trial court erred in fashioning his sentence and, thus, challenges the discretionary aspects of his sentence. It is well settled that there is no absolute right to appeal the discretionary aspects of a sentence. Hartle, 894 A.2d at 805. Rather, an appellant's appeal should be considered to be a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010):
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (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. ; (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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa.Super. 2006)).
Whether a particular issue constitutes a substantial question about the appropriateness of a sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001). As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.Super. 2006). An appellant must articulate the reasons the sentencing court's actions violated the sentencing code. Id.
Herein, the first three requirements of the four-part test are met, those being that Appellant brought an appropriate appeal, raised the challenge in his post-sentence motions and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court.
Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that "the trial court abused its discretion by not taking into consideration the Appellant's youth and dependency on drugs." Appellant's Brief at 18. As we have stated, "This Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review." Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788 (Pa.Super. 2010)). See also Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa.Super. 2007) (explaining that "[a] claim of inadequate consideration of mitigating factors does not raise a substantial question for our review"). Accordingly, Appellant's allegation of abuse of discretion on the part of the sentencing court for failing to consider certain mitigating factors does not present a substantial question for our review. Thus, we decline to address this issue.
Judgment of sentence affirmed.