Com. v. Hopkins, D.

C
J-A06043-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL KEITH HOPKINS                       :
                                               :
                        Appellant              :   No. 598 WDA 2020

          Appeal from the Judgment of Sentence Entered April 4, 2018
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000573-2017


BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.:                        FILED: March 26, 2021

        Daniel Keith Hopkins (Appellant) appeals, nunc pro tunc, from the

judgment of sentence imposed in the Jefferson County Court of Common

Pleas. The trial court sentenced Appellant to an aggregate term of 95 to 190

years’ imprisonment, following his jury conviction of two counts of corrupt

organizations,1 one count of criminal conspiracy,2 and eighteen counts of

possession with intent to deliver controlled substances,3 for his participation

in an interstate drug ring. On appeal, Appellant challenges the discretionary

aspects of his sentence. We affirm.


____________________________________________


1   18 Pa.C.S. §§ 911(b)(3), (4).

2   18 Pa.C.S. § 903.

3   35 P.S. §§ 780-113(a)(30).
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     In a prior appeal, a panel of this Court summarized the relevant facts

and procedural history as follows:

     Between November 8, 2016, and August 2, 2017, Appellant, Larry
     Dean, and others conspired to sell and sold 35 pounds of crystal
     methamphetamine worth $1.6 million throughout central
     Pennsylvania.     Appellant supplied the methamphetamine in
     Altoids mint tins, sent through priority mail packages from
     Arizona, to Dean, who distributed the methamphetamine[ ] to a
     circle of drug traffickers in Clarion, Clearfield, Elk, Forest, and
     Jefferson Counties in Pennsylvania. The Pennsylvania State
     Police, the Office of the Attorney General, several local police
     departments, and the United States Postal Service conducted an
     extensive joint investigation (“Operation Snail Mail”) involving
     controlled purchases, wiretaps, and review of financial documents
     and wire transfers. Following a grand jury investigation and
     presentment naming 30 co-conspirators, Appellant was arrested
     in Arizona and transferred to Pennsylvania to stand trial. . . .

            [Appellant and Dean were tried together.] A four-day joint
     trial commenced on March 19, 2018, in which, inter alia, a postal
     inspector, drug traffickers, and the drug traffickers’ associates
     testified on behalf of the Commonwealth. A jury convicted
     Appellant of one count each of Corrupt Organizations, Conspiracy
     to Commit Corrupt Organizations, and Conspiracy to Deliver a
     Controlled Substance, and eighteen counts of Delivery of a
     Controlled Substance.

            On April 4, 2018, the trial court sentenced Appellant to an
     aggregate term of 95 to 190 years of imprisonment.6 Appellant
     filed a Post-Sentence Motion challenging, among other things, the
     court’s exercise of discretion in imposing consecutive terms of
     incarceration that rendered his aggregate sentence excessive.
     The trial court denied the Post-Sentence Motion.
     __________
     6 The court imposed the sentences as follows: a term of 2 and ½
     to 5 years’ incarceration for each of the Corrupt Organizations
     convictions, to be served concurrently, a consecutive term of 5 to
     10 years’ incarceration for Conspiracy; . . . terms of 5 to 10 years’
     incarceration for [17] of the Delivery convictions, each to be
     served consecutively[; and a consecutive term of two and one-



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        half to five years for the delivery charge at Count 12,] for an
        aggregate of 95 to 190 years’ incarceration.

Commonwealth v. Hopkins, 779 WDA 2018 (unpub. memo. at 2-3) (Pa.

Super. Oct. 4, 2019).

        Appellant filed a direct appeal, in which he argued, inter alia, his

sentence was excessive. This Court affirmed Appellant’s judgment of sentence

on October 4, 2019, concluding nearly all of his arguments — including his

sentencing claim — were waived as a result of direct appeal counsel’s failure

to develop the arguments in the brief.4 See Hopkins, 779 WDA 2018 (unpub.

memo. at 5-10, 12).          Appellant did not seek allowance of appeal in the

Pennsylvania Supreme Court.

        On January 29, 2020, Appellant filed a timely, pro se petition for relief

pursuant to the Post Conviction Relief Act (PCRA).5 Counsel was appointed

and filed an amended petition on April 21, 2020,6 requesting reinstatement of

____________________________________________


4 The panel did address, and reject, Appellant’s claim that the verdict was
against the weight of the evidence. See Hopkins, 779 WDA 2018 (unpub.
memo. at 10-12).

5   42 Pa.C.S. §§ 9541-9546.

6  We note that after counsel was appointed on February 5, 2020, Appellant
filed a motion requesting to proceed pro se. See Appellant’s Motion for
Correction of an Error of the P.C.R.A. Court, 2/20/20, at 1-2. That same day,
the PCRA court scheduled a Grazier hearing for April 13th. Commonwealth
v. Grazier, 

713 A.2d 81

, 82 (Pa. 1998) (requiring “on-the-record
determination” of voluntariness of waiver of right to counsel at appellate
stages). However, on March 9, 2020, Appellant submitted another pro se
filing, in which he withdrew his request to dismiss counsel. See Appellant’s
Petition to Withdraw Motion for Dismissal of P.C.R.A. Counsel, 3/9/20.



                                           -3-
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Appellant’s post-sentence and direct appeal rights due to prior counsel’s

ineffectiveness for failing to develop arguments on direct appeal. On June 1,

2020, the PCRA court granted Appellant’s requested relief.               See Order,

6/1/20.

       Appellant filed a post-sentence motion nunc pro tunc on June 8, 2020,

in which he argued the sentence imposed by the trial court was “clearly

unreasonable,”      based     upon    “impermissible   factors,”   and   “essentially

guaranteed [him] life imprisonment.”             Appellant’s Post-Sentence Motion,

6/8/20, at 2-3. Appellant also insisted the trial court failed to address his

“rehabilitative needs” and “disproportionately punishe[d him] in excess of

what [was] necessary” pursuant to the Sentencing Code.

Id. at 3-4.

The trial

court denied the motion that same day. See Order, 6/8/20. This timely nunc

pro tunc appeal follows.7

       Appellant raises one issue on appeal:

       Did the trial court abuse its discretion in entering its April 4, 2018,
       sentencing orders in the within case?

Appellant’s Brief at 3.

       Appellant’s sole issue on appeal challenges the discretionary aspects of

his sentence. It is well-established that such a challenge does not entitle an

____________________________________________


Counsel then requested, and was granted permission to file the amended
petition.

7Appellant complied with the trial court’s directive to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).


                                           -4-
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appellant to “review as of right.” Commonwealth v. Caldwell, 

117 A.3d

763

, 768 (Pa. Super. 2015) (en banc). Rather,

      [b]efore this Court can address such a discretionary challenge, an
      appellant must comply with the following requirements:

         An appellant challenging the discretionary aspects of his
         sentence must invoke this Court’s jurisdiction by satisfying
         a four-part test: (1) whether appellant has filed a timely
         notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
         the issue was properly preserved at sentencing or in a
         motion to reconsider and modify sentence, see Pa.R.Crim.P.
         [720]; (3) whether appellant’s brief has a fatal defect,
         Pa.R.A.P. 2119(f); and (4) whether there is a substantial
         question that the sentence appealed from is not appropriate
         under the Sentencing Code.

Id. (some citations omitted).

      In the present case, Appellant filed a timely, nunc pro tunc, notice of

appeal, and preserved his claim in a timely-filed, nunc pro tunc, post-sentence

motion. See Appellant’s Post Sentence Motion at 2-4. In addition, he has

included in his brief the requisite statement of reasons relied upon for appeal

pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at 11-13. Accordingly,

we must now determine whether Appellant’s claim raises a substantial

question.

      An appellant “presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Conte, 

198 A.3d 1169

, 1174 (Pa. Super. 2018) (citation

omitted), appeal denied, 

206 A.3d 1029

(Pa. 2019). Here, Appellant argues

the trial court imposed an aggregate term of imprisonment that is “manifestly

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excessive,” and essentially “a life sentence for nonviolent offenses.”

Appellant’s Brief at 11-12.     Further, he insists the trial court considered

“impermissible factors” in imposing his sentence, and failed to consider his

rehabilitative needs pursuant to 42 Pa.C.S. § 9721(a). See

id. at 12-13.

We

conclude these allegations raise a substantial question for our review. See

Commonwealth v. Pacheco, 

227 A.3d 358

, 376 (Pa. Super. 2020) (“[A]n

allegation that the court considered an impermissible sentencing factor raises

a substantial question.”), appeal granted in part on other grounds, 

237 A.3d

396

(Pa. 2020); Commonwealth v. 

Caldwell, 117 A.3d at 770

(“Appellant’s

challenge to the imposition of his consecutive sentences as unduly excessive,

together with his claim that the court failed to consider his rehabilitative needs

upon    fashioning   its   sentence,   presents    a   substantial    question.”);

Commonwealth v. Mastromarino, 

2 A.3d 581

, 587 (Pa. Super. 2010)

(explaining a substantial question is raised when “the decision to sentence

consecutively raises the aggregate sentence to, what appears upon its face to

be, an excessive level in light of the criminal conduct at issue”).

       Our standard of review is well-settled:

       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.




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Caldwell, 117 A.3d at 770

(citations omitted). Further, as our Supreme Court

elaborated in Commonwealth v. Walls, 

926 A.2d 957

(Pa. 2007):

            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, .
     . . 

568 A.2d 1242

, 1243 ([Pa.] 1990); see also Commonwealth
     v. Jones, . . . 

613 A.2d 587

, 591 ([Pa. Super.] 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.
     Moreover, the sentencing court enjoys an institutional advantage
     to appellate review, bringing to its decisions an expertise,
     experience, and judgment that should not be lightly disturbed. . .
     .

Id. at 961.

     In the present case, Appellant concedes that all of his individual

sentences fall within or below the standard range of the Sentencing

Guidelines.   See Appellant’s Brief at 8-9 (listing guideline ranges and

sentences imposed for each conviction).      However, because the trial court

directed all, but one, of the 21 sentences run consecutively, the aggregate

sentence imposed is 95 to 190 years’ imprisonment.

     When considering a sentence imposed within the sentencing guidelines,

     we must review to determine whether the trial court’s sentence is
     ‘clearly unreasonable.”          42 Pa.C.S. § 9781(c)(2).     An
     “unreasonable” decision from the sentencing court would be one
     that is ‘irrational’ or ‘not guided by sound judgment.’”




                                     -7-
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            The reasonableness inquiry is to be a “fluid” one, based in
      part on the factors set forth in § 9781(d) of the sentencing code:

         (d) Review of record. — In reviewing the record the
         appellate court shall have regard for:

         (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 addition, a sentence may be
      unreasonable if the sentencing court fails to consider the factors
      set forth in § 9721(b).

Commonwealth v. Dodge, 

957 A.2d 1198

, 1200 (Pa. Super. 2008) (some

citations omitted). Section 9721(b) of the Sentencing Code requires a trial

court to impose a sentence that is “consistent with . . . the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and on the community, and the rehabilitative needs of the defendant.”

42 Pa.C.S. § 9721(b). As our Supreme Court opined in Walls:

      [E]ven though the unreasonableness inquiry lacks precise
      boundaries, we are confident that rejection of a sentencing court’s
      imposition of sentence on unreasonableness grounds would occur
      infrequently, whether the sentence is above or below the guideline
      ranges, especially when the unreasonableness inquiry is
      conducted using the proper standard of review.

Walls, 926 A.2d at 964

.

      We recognize Appellant’s aggregate minimum sentence of 90 years’

imprisonment is lengthy. Nevertheless, we emphasize that each individual

sentence was imposed either within or, in many cases, below the standard


                                      -8-
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range of the sentencing guidelines. See Appellant’s Brief at 8-9. In its opinion

following Appellant’s initial direct appeal, the trial court explained why it chose

to run nearly all of Appellant’s sentences consecutively:

             This was not an instance where the Commonwealth charged
      [Appellant] with multiple crimes based on the same incident.
      Rather, each count of Delivery of a Controlled Substance pertained
      to a separate and distinct instance of [Appellant] deliberately
      reaching out to Jefferson or a nearby county with a shipment of
      crystal methamphetamine.         He purposely prepared eighteen
      packages containing the illicit substance for distribution and use
      in this area. He did not do it alone, either; rather, he laid his plan
      with the help of Larry Dean and knowingly engaged with him[ and
      other co-conspirators] to make sure his product was sold for
      financial gain. Whereas each step of the process was deliberate
      and calculated, and whereas each step created a new and distinct
      harm, therefore, it was not an abuse of discretion for the [c]ourt
      to recognize as much by running all but one sentence
      consecutively.

Trial Ct. Op., 9/21/18, at 6-7.     As this Court has repeated on numerous

occasions, a defendant is “not entitled to a ‘volume discount’ for his multiple

offenses.” Commonwealth v. Prisk, 

13 A.3d 526

, 533 (Pa. Super. 2011)

(rejecting excessiveness challenge to sentence of 633 to 1,500 years’

imprisonment following defendant’s conviction of more than 300 offenses in

connection with the repeated sexual abuse of minor stepdaughter over six

year period; not all sentences imposed consecutively).

      Nevertheless, as Appellant emphasizes in his brief, an appellate court

may vacate a sentence imposed within the guidelines if “the case involves

circumstances    where    application   of    the   guidelines   would   be   clearly

unreasonable.”    See Appellant’s Brief at 18.         Here, Appellant insists his



                                        -9-
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aggregate sentence “for nonviolent crimes” is excessive and “clearly

unreasonable.”

Id. at 16.

Furthermore, he maintains that while the trial court

explicitly considered some of the factors listed in Section 9721(b) of the

Sentencing Code, it “neither expressly nor implicitly considered [his]

rehabilitative needs[; rather his] sentence is mainly one of punishment[.]”

Id. at 20-21.

     Lastly, Appellant maintains the trial court relied on

impermissible factors in imposing his sentence. He emphasizes the following

statements made by the court during the sentencing hearing:

      Each one of [the mailed packages of crystal methamphetamine]
      was a separate act. Each one of them resulted in addiction, I’m
      sure, without question.

            Some of them may have resulted in death, we don’t know,
      but we know that you’re a person who took advantage of
      delivering poison through the pipeline of the U.S. mail.

N.T., 4/4/18, at 6-7. Appellant emphasizes there was no evidence presented

at trial that “each delivery resulted in addiction” or that any of the deliveries

“resulted in death.” Appellant’s Brief at 21. We conclude no relief is due.

      Preliminarily, we note the trial court had the benefit of a pre-sentence

investigation report (PSI), which the court considered prior to imposing

sentence. See N.T., 4/4/18, at 3. “When a sentencing court has reviewed a

[PSI], we presume that the court properly considered and weighed all relevant

factors in fashioning the defendant’s sentence.” Commonwealth v. Baker,

72 A.3d 652

, 663 (Pa. Super. 2013). See also Commonwealth v. Bonner,

135 A.3d 592

, 605 (Pa. Super. 2016) (“Where [a PSI] exist[s], we [ ] presume

that the [trial court] was aware of relevant information regarding the

                                     - 10 -
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defendant’s character and weighed those considerations along with mitigating

statutory factors[; a PSI] constitutes the record and speaks for itself.”).

       Here, the trial court explicitly stated it considered the PSI, which detailed

Appellant’s criminal history. The court noted:

       [Y]our prior record . . . is all from Arizona, the state where you
       lived, starting with a DUI in [19]98 to driving under suspension in
       2014.

             The presentence lists your prior record score at five. [8] It’s
       been a fairly consistent situation, at least having some charges
       every few years, one felony for some type of drug violation while
       you were on probation, and the rest, all misdemeanors.

N.T., 4/4/18, at 3.      Thus, while the trial court did not specifically mention

Appellant’s rehabilitative needs, its review of his PSI and “fairly consistent”

prior record implies that it did take his rehabilitative needs into consideration

when imposing its sentence. Moreover, Appellant fails to identify any of his

purported “rehabilitative needs” that the court should have considered more

carefully. Rather, he simply asserts the facts of his case are comparable to

Dodge. See Appellant’s Brief at 20. We disagree.

       In Dodge, a panel of this Court vacated the defendant’s aggregate term

of 57½ to 111 years’ imprisonment, which was “comprised of 37 consecutive,

standard range . . . sentences[,]” for non-violent offenses. 

Dodge, 957 A.2d

at 1199

. In doing so, this Court opined:

____________________________________________


8 A prior record score of five is the maximum score a defendant can receive
when they are not categorized as a repeat violent offender or a repeat felony
offender. See 204 P.S. § 303.4(a)(3).


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J-A06043-21


          We do not quibble with the sentencing court’s conclusion that
      [the defendant’s] multiple offenses and long criminal history
      warrant a lengthy period of incarceration. Nonetheless, the court
      did not acknowledge that its sentence essentially guarantees life
      imprisonment for [the defendant]. Likewise, the court did not
      acknowledge that the life sentence is comprised largely of
      consecutive sentences for receiving stolen costume jewelry. We
      acknowledge that many of the stolen items, though of little
      monetary value, were of significant sentimental value to the
      victims. The sentimental value of these items is an appropriate
      consideration in imposing a sentence. Nonetheless, we conclude
      that, based on the record before us, the trial court abused its
      discretion in imposing a life sentence for non-violent offenses with
      limited financial impact.

Id. at 1202.

      Appellant asserts his convictions, too, are for non-violent offenses, and

the trial court “did not even acknowledge[ ] that its sentence essentially

guaranteed [him] a life sentence.”        See Appellant’s Brief at 16, 20.

Preliminarily, we note that, at Appellant’s sentencing hearing, the trial court

explicitly stated its sentence “would lead to a total aggregate sentence of no

less than 95 nor more [than] a hundred and ninety years.” N.T., 4/4/18, at

10.   Moreover, we view Appellant’s convictions differently from those in

Dodge.    Indeed, Appellant’s charges resulted from a multi-jurisdictional

investigation, in which Appellant and numerous co-conspirators trafficked,

through at least 18 separate deliveries, $1.6 million worth of crystal

methamphetamine throughout multiple counties in central Pennsylvania.

While Appellant’s drug delivery and corrupt organizations offenses are

technically non-violent, we detect no abuse of discretion on the part of the




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trial court for its consideration of the impact the drug trade has on the

community.

      Furthermore, we disagree with Appellant’s contention that the trial court

relied upon impermissible factors when imposing his sentence. Although the

court mentioned addiction and drug-related deaths, it did not indicate that it

relied on either of these two factors when imposing sentence, nor was it

unreasonable for the court to presume Appellant’s trafficking in crystal

methamphetamine resulted in drug addictions.          Rather, the length of

Appellant’s sentence was due to the imposition of consecutive terms for each

of his drug delivery charges. As 

noted supra

, the trial court explained that it

imposed consecutive sentences because each separate mailing of crystal meth

was “deliberate and calculated, and . . . created a new and distinct harm.”

Trial Ct. Op. at 6.

      Moreover, contrary to Appellant’s characterization, we conclude the trial

court’s statements in the present case are not similar to those deemed

improper in Commonwealth v. Sypin, 

491 A.2d 1371

(Pa. Super. 1985). In

that case, the defendant pled guilty to involuntary deviate sexual intercourse

and corruption of minors for his sexual abuse of a nine-year-old boy.

Id. at

1372.

At sentencing, the trial court commented:

      As you know, there are thousands of kids, and I mean it’s
      thousands of kids that disappear every year. . . .

      Youngsters that no one ever sees or hears from again. Sometimes
      they’re found dead; sometimes they’re never found. . . .

      And their problems result from men like you. . . .


                                    - 13 -
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Id. (citation omitted). On

appeal, this Court vacated the judgment of

sentence, concluding the trial court relied on factors not related to his case:

“[The defendant] was not charged in connection with the disappearance or

death of any child.”

Id.

Here, as we

noted above, the trial court’s reference to the addictive

nature of crystal methamphetamine was not an impermissible consideration.

Further, the court clearly stated it had no knowledge if Appellant’s actions

resulted in any deaths. As the Commonwealth argues in its brief: “[W]hat

the sentencing court was simply acknowledging was the reality that illicit

trafficking of methamphetamine is a risky business with many potential

human costs including the possibility of death.” Commonwealth’s Brief at 6.

Thus, we reject Appellant’s assertion that the court’s lengthy sentence was

based upon impermissible factors.9
____________________________________________


9 Appellant’s string citation to several other “impermissible factors” cases is
similarly unavailing. See Appellant’s Brief at 23. In Commonwealth v.
Bethea, 

379 A.2d 102

(Pa. 1977), the Pennsylvania Supreme Court vacated
the defendant’s sentence after concluding the court’s remarks before imposing
sentence “may have been influenced by the fact that [the defendant] chose
to stand trial rather than plead guilty[.]” See

id. at 105-07

(“If you had pled
guilty, perhaps you were involved, there is no question in my mind, but had
you pled guilty it might have shown me the right side of your attitude about
this, but you pled not guilty, fought it all the way, and the jury found you
guilty, and I’m going to sentence you at this time.”). In Commonwealth v.
Stufflet, 

469 A.2d 240

(Pa. Super. 1983), this Court vacated the defendant’s
sentence after the sentencing court indicated that it considered the fact that
the defendant’s co-defendant raped one of the victims of their burglary,
despite the fact the defendant was not charged with rape.

Id. at 243.

Similarly, in Commonwealth v. Karash, 

452 A.2d 528

(Pa. Super. 1982), a
panel of this Court vacated the defendant’s sentence when the trial court



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       Accordingly, no relief is warranted and we affirm Appellant’s judgment

of sentence.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2021




____________________________________________


revealed it relied upon newspaper and television reports of the defendant’s
purported escape when he was first arrested, despite the fact he was not tried
for that crime.

Id. at 529.

Lastly, in Commonwealth v. Cruz, 

402 A.2d 536

(Pa. Super. 1979), this Court concluded that the Commonwealth’s assertion
that the defendant — who was convicted only of selling four packets of heroin
— was a “weight dealer” of narcotics, “based upon information from unnamed
informants and undercover agents[,]” was an improper consideration for the
sentencing court.

Id. at 538.

Nevertheless, because the defendant “did not
object to the Commonwealth’s assertion but merely pointed out that the
instant case did not involve large quantities of heroin,” we concluded the
defendant waived the claim on appeal.

Id. The sentencing hearing

in the
present case featured none of the blatant consideration of impermissible
factors as was present in these cases.




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