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[U] Commonwealth v. Fequiere

Superior Court of Pennsylvania

February 28, 2014



Appeal from the Judgment of Sentence of May 14, 2013 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002379-2012




Appellant, Giovanni Fequiere, appeals from the judgment of sentence entered on May 14, 2013, as made final by the denial of his post-sentence motion on May 28, 2013. We affirm.

The factual background of this case is as follows. Appellant admitted that on October 7, 2012, at approximately 11:16 p.m., he and his co-conspirators forced their way into Ruby Tuesday's ("the restaurant"). Commonwealth's Exhibit 6. He contended that he had forgotten his bag at the restaurant, where he was employed, and forced his way into the restaurant in order to retrieve his belongings. Id. The evidence presented at trial demonstrated that while in the restaurant, Appellant and his co-conspirators had a discussion about opening the safe. E.g., Commonwealth's Exhibit 10, 1:03-1:45.[1] They discussed removing money from the cash register. Id. at 5:10-5:20. They also discussed mixing their own drinks. Id. at 0:14-0:20. The break-in triggered an alarm, and the security company called the Stroud Area Regional Police Department which arrived on scene and apprehended Appellant. See id. at 10:36.

The trial court accurately summarized the procedural history of this case as follows:

On December 21, 2012, the Commonwealth filed a [c]riminal [i]nformation, charging [Appellant] with one [] count of [b]urglary[2] and one [] count of [c]riminal [t]respass.[3] Also on th[at] day, [Appellant] was formally arraigned. On March 7, 2013, the Commonwealth filed a [m]otion to [a]mend the [c]riminal [i]nformation, seeking to add counts of [c]onspiracy to [c]ommit [c]rimes of [b]urglary and [c]riminal [t]respass.[4] By [o]rder of the same date, th[e trial c]ourt granted the Commonwealth[] leave to file an [a]mended [c]riminal [i]nformation.
Trial in [Appellant]'s case began with the selection of a jury on March 5, 2013. Testimony began on March 11, 2013 and the jury reached their verdict on the same day. [Appellant] was convicted of the following crimes: one [] count of [b]urglary - [n]ot [a]dapted for [o]vernight [a]ccommodation, [n]o [p]erson [p]resent, one [] count of [c]riminal [t]respass - [e]nter [s]tructure[, ] and one [] count of [c]onspiracy to [c]ommit [b]urglary and [c]riminal [t]respass.
On May 14, 201[3], [Appellant] was sentenced to a period of incarceration of not less than nine [] months nor more than 23½ months to be served in the Monroe County Correctional Facility[, which was within the standard range of the sentencing guidelines]. . . .
On May 23, 2013, [Appellant] filed a [m]otion to [r]econsider [s]entence. [Appellant] argued that "the sentence imposed, though less than the recommendation provided by the [p]robation [d]epartment, was nonetheless excessive for a first-time offender who has pursued regular employment." [Appellant] further argued that the sentence was excessive for the following reasons: (1) "the sole aggravating factor was the use of marijuana, which, [although] illegal, nonetheless is historically in widespread use, particularly in certain social, cultural, and age strata"; (2) "the sentence imposed was out of proportion to the harm caused, particularly viewed in [] light of [the] disposition of other offenders and the damage they wrought"; (3) "while the prosecutor made much of the audio used at trial in which the cash register was mentioned . . . she did not realize that the cash registers are emptied every night as part of the closing process of Ruby Tuesday's"; (4) "it was the co-defendant who drank a Corona beer at the scene"; (5) "[Appellant] ha[d] already spent []12[] days in jail at the time of sentencing, has now spent further time in jail, such that the punishment sufficiently impresses upon [Appellant] the nature of his transgression" and (6) "parole supervision from this point on would best satisfy penal needs and the rehabilitative needs of this [Appellant]." By [o]rder dated May 28, 2013, th[e trial c]ourt denied [Appellant]'s [m]otion to [r]econsider [s]entence.
On June 4, 2013, [Appellant] filed a [n]otice of [a]ppeal, appealing to th[is] Court from the [judgment] of [s]entence entered on May 14, 2013. On June 5, 2013, [Appellant] was directed to file a [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal [("concise statement")] within [ ]21[] days of the date of the [o]rder. On June 26, 2012, [Appellant] filed his [c]oncise [s]tatement []. [The trial court issued an o]pinion in accordance with Pa.R.A.P. 1925(a) [on August 16, 2013.]

Trial Court Opinion, 8/16/13, at 1-3 (certain footnotes, internal citations, and internal alterations omitted).

Appellant presents three issues for our review:[5]

1. Whether the [trial] court erred in admitting the audio recording created by the security system of the burglarized restaurant without proper authentication?
2. Whether the [trial] court erred by failing to structure the verdict slip so that the "not guilty" choice appeared first?
3. Whether the sentence imposed was excessive under the particular facts of this case?

Appellant's Brief at 4 (capitalization removed).

Although Appellant's first issue on appeal asserts that the audio recording from the restaurant's security system was not properly authenticated and, therefore, should not have been admitted into evidence, Appellant's entire argument with respect to this issue is that this case should be remanded for the preparation of a transcript of the audio recording. Appellant's Brief at 9-10. Nowhere in his brief does Appellant set forth an argument or legal authority as to why the audio recording should have been excluded for lack of proper authentication.

We note that Appellant's concise statement filed in accordance with Pa.R.A.P. 1925(b) does not raise any issue as to whether the audio recordings should have been transcribed. See Defendant's Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal. As such, the issue is waived. Pa.R.A.P. 1925(b)(3)(vii) (issues not included in the concise statement are waived). Moreover, even if said issue were preserved, we do not believe that it merits relief.

This Court has held that when an audio recording is played at trial, a transcript of that audio recording should be included in the certified record forwarded to this Court. Commonwealth v. Ramin, 568 A.2d 1329, 1331 n.1 (Pa. Super. 1990). However, we find that Appellant has waived this argument for two reasons. First, "[o]bjections to the trial transcript are properly settled in the [trial] court." Commonwealth v. Szakal, 50 A.3d 210, 217 (Pa. Super. 2012), citing Pa.R.A.P. 1922(a). Our review of the docket reveals that counsel failed to file any request in the trial court to have the transcripts amended to include the audio recording from the restaurant. Second, counsel for Appellant contends that he needs a transcript of the audio from the restaurant to argue that it contains hearsay and/or is irrelevant. Appellant's Brief at 9-10. However, Appellant's brief does not raise the issues of relevance or hearsay. The only issue set forth in the statement of questions involved is whether the trial court erred in admitting into evidence the audio recording without proper authentication. Id. at 4.[6]

To the extent Appellant asserts that transcription is necessary for him to argue lack of proper authentication, we must disagree. The very nature of an authentication objection is that it is made prior to the exhibit being admitted into evidence. See Zuk v. Zuk, 55 A.3d 102, 112 (Pa. Super. 2012). Thus, transcription of the audio recording would not assist counsel in arguing that the recording was not properly authenticated. Accordingly, we deny counsel's request to remand this matter for preparation of a transcript of the audio recording. Moreover, since Appellant failed to set forth any argument as to why authentication was not proper, he has waived any review of the merits of his claim. See Pa.R.A.P. 2119 (briefs must contain an argument section that develops claims through meaningful discussion supported by pertinent legal authority and citations to the record).

Appellant next contends that the verdict slip should have listed the option "not guilty" first. However, as Appellant's counsel forthrightly acknowledges in his brief, this argument is without merit. See Commonwealth v. Selenski, 18 A.3d 1229, 1235 (Pa. Super. 2011) (rejecting this same argument).

Finally, Appellant contends that the trial court abused its discretion in imposing an excessive sentence. Appellant's claim challenges the discretionary aspects of his sentence. Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013). "We note that "[s]entencing 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." Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (citation omitted). As Appellant was sentenced within the guidelines, we may only vacate his sentence if we find this "case involves circumstances where the application of the guidelines would be clearly unreasonable[.]" 42 Pa.C.S.A. § 9781(c)(2); see Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).

Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id.

As this Court has explained:
To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citation omitted). Appellant filed a timely notice of appeal and the issue was properly preserved in a post-sentence motion. Appellant's brief also has a statement pursuant to Pennsylvania Rule of Appellate Procedure 2119(f). Thus, we turn to whether the appeal presents a substantial question.

In his Rule 2119(f) statement, Appellant contends that we should review the discretionary aspects of his sentence because the trial court focused on his recreational use of marijuana and ignored the other factors outlined in 42 Pa.C.S.A. § 9721.[7] Finally, he contends that his sentence is disproportionate when considered in light of his co-defendants' sentences.

A "substantial question [is] raised where the appellant aver[s that there is] an unexplained disparity between his sentence and that of his co-defendant[.]" Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011), citing Commonwealth v. Cleveland, 703 A.2d 1046 (Pa. Super. 1997). As Appellant raises such a claim, he presents a substantial question and thus we will proceed to consider the merits of his challenge to the discretionary aspects of his sentence.

Appellant first contends that the trial court placed undue influence on his use of marijuana and ignored the other factors outlined in Section 9721. The trial court did spend a significant amount of time at the sentencing hearing discussing Appellant's drug use but this discussion was prompted by defense counsel. Defense counsel stated, unprovoked, that Appellant would test positive for marijuana if he was tested the day of the sentencing hearing. N.T., 5/14/13, at 3-4. Appellant then confirmed to the trial court that he would test positive if he were tested. Id. at 4. The trial court merely used that information, in addition to the fact that Appellant tested positive at his pre-sentence investigation interview, when crafting an appropriate sentence. The trial court properly considered this factor as testing positive for drugs at the pre-sentence interview and admitting to continued drug use after the pre-sentence interview evidences a lack of respect for the trial court and the criminal justice system and serves as legitimate grounds for judicial inquiry into Appellant's need for rehabilitative services. Although not termed as such, the trial court's consideration of Appellant's drug use evidences that the trial court considered the need to protect the public, as well as Appellant's rehabilitative needs.

Furthermore, "[w]here the sentencing court had the benefit of a pre[-]sentence investigation report ('PSI'), we can assume the sentencing court was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (internal quotation marks and citations omitted). In this case, the trial court had the benefit of a PSI. N.T., 5/14/13, at 2. The record reflects that the trial court read and reviewed the PSI and considered the mitigating factors contained therein. See id. at 3 (trial court discussing the PSI's listing of Appellant's past work experience). The record also reflects that the trial court considered the need for rehabilitation. Id. at 15-16 (discussing need to teach Appellant to exercise self-control). The trial court found that such rehabilitation was not possible if it imposed a lesser sentence because Appellant had shown that, even when he knew that he would be tested for marijuana at his PSI interview, he could not control his urge to smoke marijuana. Id. The trial court also considered the seriousness of the offense. See id. at 16. Finally, the sentence imposed reflects that the trial court considered the need to educate Appellant as it made obtaining his GED a prerequisite to being considered for parole. Thus, we conclude that the trial court considered all of the factors set forth in Section 9721 when fashioning its sentence.

Next, Appellant claims that his sentence is disproportionate when considered in light of his co-defendants' sentences. First, we note that sentencing is an individualized process. Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013). Mechanically imposing the same sentence on each co-defendant would violate this principle. Second, in his brief, Appellant does not state what sentences his co-defendants received. However, in his post-sentence motion Appellant cited two case numbers. The defendants in both of those cases were not convicted of burglary. See Commonwealth v. Sabatine, CP-45-CR-364-2013; Commonwealth v. Vanhorn, CP-45-CR-366-2013. Furthermore, Appellant does not aver, nor is there any support for the conclusion, that Appellant's co-defendants also tested positive for marijuana at their PSI interview or admitted to smoking marijuana between the PSI interview and the sentencing hearing. Thus, there were sufficient reasons for the trial court to impose a more severe sentence on Appellant than his co-defendants.

Finally, "where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code." Griffin, 65 A.3d at 937 (citation omitted). Appellant was convicted of burglary, an offense graded as a second-degree felony. Moreover, he continued to use drugs up to his sentencing hearing. Although he was a first time offender, serious crime deserves serious punishment. "We can find no reason to place this case outside of the standard range, which is presumptively where a defendant should be sentenced." Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006) (citation omitted). Thus, we conclude that a guideline sentence in this case was not clearly unreasonable. Accordingly, the trial court did not abuse its discretion by sentencing Appellant to nine to 23½ months' incarceration.

Judgment of sentence affirmed.

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