Com. v. Lowman, N. ( 2019 )

J-A10038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NICHOLAS LOWMAN :
:
Appellant : No. 603 EDA 2018
Appeal from the Judgment of Sentence January 12, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005134-2016
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 18, 2019
Appellant, Nicholas Lowman, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for robbery, conspiracy to commit aggravated assault, and
intimidation of a witness or victim.1 We affirm Appellant’s convictions but
vacate and remand for resentencing.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case as follows:
On February 26, 2016, at approximately 12:40 A.M., on the
south side of the 5300 block of Woodland Avenue, a verbal
and physical altercation occurred between [Appellant] and
[V]ictim…outside of Charlie’s bar. [Appellant] confronted
and accused [Victim] of divulging information to law
enforcement officials on a legal case involving a family friend
____________________________________________
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii); 903 (section 2702(a)(1) related); and
4952(a)(1), respectively.
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in another jurisdiction. [Appellant] then organized and
directed other individuals from inside the bar to drag
[Victim] outside, chase him as he tried to flee, intimidate
and severely beat him. [Victim] was stripped of all clothing
and belongings and made to walk naked down Woodland
Avenue. Sergeant Davis investigated and found a video
recording of the altercation made available for public
viewing on the Snapchat social media application by the
[c]odefendant. In the alleyway of Charlie’s Bar, police
officers recovered [V]ictim’s left boot and a pair of
underwear. Police officers also recovered a broken pool
stick near the incident and documented images of facial
injuries to [Victim’s] left eye. After the altercation, [Victim]
was missing $175 in U.S. currency, his Pennsylvania photo
identification, and his welfare benefits card. Upon the
execution of a search warrant, police officers also recovered
the blue and white striped shirt seen on [Appellant] in his
bedroom at [Appellant’s] residence. [Victim] failed to timely
notify law enforcement officers of the altercation because he
testified feeling threatened and scared to do so after the
incident.
[Appellant] appeared before the [court] on August 30, 2017,
and was charged with Aggravated Assault, Robbery, threat
of immediate serious injury, Conspiracy to Commit
Aggravated Assault, Retaliation Against a Witness or Victim,
and Intimidation of a Witness or Victim. On [September 1,
2017], [Appellant] was found guilty by a jury of Robbery,
threat [of] immediate serious injury, Conspiracy to Commit
Aggravated Assault, and Intimidation of a Witness or Victim,
and was sentenced [on January 12, 2018], to an aggregate
twenty to forty years in state custody.[2]
[Appellant] then filed his Notice of Appeal on February 4,
2018, and later filed his Statement of [Errors] complained
of on appeal on May 18, 2018 [following an extension].
(Trial Court Opinion, filed July 16, 2018, at 1-2) (internal citations omitted).
____________________________________________
2 Specifically, the court sentenced Appellant to concurrent terms of 10 to 20
years’ imprisonment on the conspiracy and robbery convictions and a
consecutive 10 to 20 years’ imprisonment for the intimidation conviction.
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Appellant raises six issues for our review:
1. WAS NOT THE EVIDENCE AT TRIAL INSUFFICIENT TO
ESTABLISH THE CHARGES OF ROBBERY AND CONSPIRACY?
2. WAS NOT THE EVIDENCE AT TRIAL INSUFFICIENT TO
ESTABLISH ROBBERY AS A FIRST DEGREE FELONY, OR OF
CONSPIRACY TO COMMIT ANY DEGREE OF AGGRAVATED
ASSAULT IN THAT THERE WAS NO EVIDENCE THAT
[VICTIM] SUFFERED SERIOUS BODILY INJURY, OR THAT
[APPELLANT] ATTEMPTED TO CAUSE SERIOUS BODILY
INJURY TO [VICTIM]?
3. WAS NOT THE EVIDENCE INSUFFICIENT TO ESTABLISH
INTIMIDATION OF A WITNESS OR VICTIM, SINCE [VICTIM]
WAS NEITHER A VICTIM NOR A WITNESS IN A PRIOR
CRIMINAL MATTER?
4. DID NOT THE TRIAL COURT ERR IN DETERMINING THAT
INTIMIDATION SHOULD BE GRADED AS A FELONY OF THE
FIRST DEGREE, AFTER THE JURY SPECIFICALLY
DETERMINED, IN AN INTERROGATORY, THAT THE MOST
SERIOUS OFFENSE CHARGED IN THE CASE ABOUT WHICH
[APPELLANT] SOUGHT TO INFLUENCE OR INTIMIDATE A
WITNESS WAS NOT A FELONY OF THE FIRST DEGREE?
5. WAS NOT THE SENTENCE OF 10 TO 20 YEARS ON THE
INTIMIDATION OF A WITNESS CHARGE AN ILLEGAL
SENTENCE, IN THAT, AS A RESULT OF THE JURY’S
DETERMINATION THAT THE OBJECT OF THE INTIMIDATION
WAS NOT A FIRST DEGREE FELONY, THE GRADING OF THE
INTIMIDATION CHARGE COULD BE NO MORE THAN A
SECOND DEGREE MISDEMEANOR?
6. DID NOT THE SENTENCING COURT ABUSE ITS
DISCRETION IN SENTENCING [APPELLANT] TO 20 TO 40
YEARS, A SENTENCE WHICH GROSSLY EXCEEDED THE
SENTENCING GUIDELINES AND IN SENTENCING
[APPELLANT] TO A CONSECUTIVE 10 TO 20 YEARS ON THE
INTIMIDATION OF A WITNESS CHARGE, WHEN THE
MAXIMUM POSSIBLE SENTENCE COULD BE NO MORE THAN
1-2 YEARS?
(Appellant’s Brief at 4).
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In his first issue, Appellant argues he was merely present at the crime
scene. Appellant asserts that Sergeant Davis testified Appellant was visible
on the Snapchat video with his hands in his pocket. Appellant maintains
Sergeant Davis did not testify about any actions Appellant took to commit the
crimes at issue. Appellant concedes he told Detective DeRose that he might
have assisted with removing Victim’s clothing, but Appellant insisted he was
only “playing with the guy.” Appellant contends there was no other evidence
that he took anything from Victim or assaulted Victim. Appellant concludes
his mere presence at the crime scene was insufficient to support his
convictions, and this Court must reverse. We disagree.
Preliminarily:
[W]e observe generally that issues not raised in a Rule
1925(b) statement will be deemed waived for review. An
appellant’s concise statement must properly specify the
error to be addressed on appeal. In other words, the Rule
1925(b) statement must be specific enough for the trial
court to identify and address the issue an appellant wishes
to raise on appeal. A concise statement which is too vague
to allow the court to identify the issues raised on appeal is
the functional equivalent of no concise statement at all. The
court’s review and legal analysis can be fatally impaired
when the court has to guess at the issues raised. Thus, if a
concise statement is too vague, the court may find waiver.
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (internal citations and quotation
marks omitted).
Instantly, Appellant raised three specific challenges to the sufficiency of
the evidence in his Rule 1925(b) statement. Nevertheless, Appellant did not
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preserve his “mere presence” argument in any of these claims. (See Rule
1925(b) Statement, filed 5/18/18, at 2; R.R. at 13). Appellant’s omission of
this claim of error deprived the court of an opportunity to address it in the
court’s Rule 1925(a) opinion. Thus, Appellant’s first issue is waived. See
Hansley, supra.
With respect to Appellant’s second and third issues, after a thorough
review of the record, the briefs of the parties, the applicable law, and the well-
reasoned opinion of the Honorable Mia R. Perez, we conclude these claims
merit no relief. The trial court opinion comprehensively discusses and properly
disposes of these issues. (See Trial Court Opinion at 2-7) (finding: (issue
2)3 Commonwealth presented evidence that Appellant and his cohorts
physically outnumbered Victim, who was unable to flee or defend himself due
to size and strength of Appellant and his cohorts; Appellant willfully provoked,
organized, and directed others to beat and humiliate Victim by stripping Victim
of his clothing and belongings; Appellant called Victim “rat” and told Victim to
“stop telling on people”; Appellant showed little remorse for his actions or
regard for human dignity during attack on Victim; video evidence
demonstrated Appellant’s intent to inflict serious bodily injury on Victim;
evidence was sufficient to sustain Appellant’s robbery and conspiracy to
____________________________________________
3 Notwithstanding some of the trial court’s mistaken citations to the notes of
testimony regarding the evidence presented, the record supports the court’s
sufficiency analysis.
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commit aggravated assault convictions; (issue 3) during assault, Appellant
and his cohorts repeatedly called Victim “rat” and directed him to “stop telling
on people,” demonstrating Appellant’s attempt to intimidate and instill Victim
with fear; evidence showed Appellant intimidated Victim to prevent Victim
from reporting assault to law enforcement; Victim testified he was scared to
report crime; court observed Victim’s fear and terror; evidence was sufficient
to sustain Appellant’s intimidation conviction4). Therefore, we affirm on the
basis of the trial court’s opinion as to issues two and three.
For purposes of disposition, we combine Appellant’s fourth and fifth
issues. Appellant asserts the jury verdict sheet contained a specific
interrogatory on whether the most serious offense charged, related to the
intimidation of a witness or victim, was a felony of the first degree. Appellant
contends the jury expressly answered “no” to that question. In light of the
jury’s finding, Appellant argues his intimidation conviction must be graded as
a second-degree misdemeanor. Appellant complains the court “corrected” the
grading of Appellant’s intimidation conviction to a first-degree felony after the
jury announced its verdict. Appellant concedes defense counsel did not object
____________________________________________
4 We decline Appellant’s invitation to hold that the intimidation of a witness or
victim statute cannot apply to the victim of a current crime and instead applies
only to a victim or witness of a crime that already took place. Appellant cites
no law to support this position. In any event, the evidence here demonstrated
Appellant’s and his cohorts’ dual purpose to punish Victim for his suspected
assistance with law enforcement concerning a criminal case in another
jurisdiction and to deter Victim from any future contact with the police
regarding the current or any future crimes.
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to this “correction.” Nevertheless, Appellant maintains the court had no
authority to overrule the jury’s express factual finding. Appellant emphasizes
that the court’s action increased Appellant’s sentencing exposure ten-fold.
Appellant suggests the 10 to 20 year sentence for his intimidation conviction
graded as a first-degree felony constitutes an illegal sentence. Appellant
submits defense counsel’s acquiescence to the court’s grading “correction”
cannot constitute waiver where the sentence imposed is illegal. Appellant
concludes his sentence is illegal, and this Court must vacate and remand for
resentencing of his intimidation of a witness or victim conviction as a second-
degree misdemeanor. We agree relief is due.
“A claim that the court improperly graded an offense for sentencing
purposes implicates the legality of a sentence.” Commonwealth v.
Mendozajr, 71 A.3d 1023, 1027 (Pa.Super. 2013) (quoting Commonwealth
v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super. 2008)). See also
Commonwealth v. Felder, 75 A.3d 513 (Pa.Super. 2013), appeal denied,
624 Pa. 671, 85 A.3d 482 (2014) (construing challenge to grading of
intimidation of witness or victim conviction as challenge to legality of
sentence). When examining a challenge to the legality of a sentence, our
scope and standard of review is as follows:
A claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a
challenge to the legality of the sentence. If no statutory
authorization exists for a particular sentence, that sentence
is illegal and subject to correction. An illegal sentence must
be vacated. When the legality of a sentence is at issue on
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appeal, our standard of review is de novo and our scope of
review is plenary.
Mendozajr, supra (quoting Commonwealth v. Catt, 994 A.2d 1158, 1160
(Pa.Super. 2010) (en banc)) (internal citations and quotation marks omitted).
See also Commonwealth v. Berry, 877 A.2d 479 (Pa.Super. 2005) (en
banc), appeal denied, 591 Pa. 688, 917 A.2d 844 (2007) (assuming court’s
jurisdiction is proper, challenges to legality of sentence are not subject to
waiver).
The Crimes Code provides the following grading scheme for the crime
of intimidation of a witness or victim:
§ 4952. Intimidation of witnesses or victims
* * *
(b) Grading.—
(1) The offense is a felony of the degree indicated in
paragraphs (2) through (4) if:
(i) The actor employs force, violence or deception,
or threatens to employ force or violence, upon the
witness or victim or, with the requisite intent or
knowledge upon any other person.
(ii) The actor offers any pecuniary or other benefit
to the witness or victim or, with the requisite intent or
knowledge, to any other person.
(iii) The actor’s conduct is in furtherance of a
conspiracy to intimidate a witness or victim.
(vi) The actor accepts, agrees or solicits another to
accept any pecuniary or other benefit to intimidate a
witness or victim.
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(v) The actor has suffered any prior conviction for
any violation of this section or any predecessor law
hereto, or has been convicted, under any Federal statute
or statute of any other state, of an act which would be a
violation of this section if committed in this State.
(2) The offense is a felony of the first degree if a felony
of the first degree or murder in the first or second degree
was charged in the case in which the actor sought to
influence or intimidate a witness or victim as specified in this
subsection.
(3) The offense is a felony of the second degree if a
felony of the second degree is the most serious offense
charged in the case in which the actor sought to influence
or intimidate a witness or victim as specified in this
subsection.
(4) The offense is a felony of the third degree in any
other case in which the actor sought to influence or
intimidate a witness or victim as specified in this subsection.
(5) Otherwise the offense is a misdemeanor of the
second degree.
18 Pa.C.S.A. § 4952(b).
Subsection 4952(b) provides a clear roadmap for the
grading of witness/victim intimidation offenses. If a felony
of the first-degree was charged in the case, then the offense
of witness/victim intimidation is graded as a first-degree
felony. If the most serious offense charged in the case was
a second degree felony, then the witness/victim intimidation
offense is graded as a second-degree felony. If no first-
degree or second-degree felony was charged in the case,
but the criminal defendant nevertheless sought to influence
or intimidate a witness or victim in any manner described in
subsection 4952(b)(1), then the witness/victim intimidation
offense is graded as a third-degree felony. In all other
cases, the offense of witness/victim intimidation is graded
as a second-degree misdemeanor.
Felder, supra at 516-17 (internal citations omitted). “[T]he statute’s focus
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on the most serious crime charged makes eminent sense, since the relevant
charge is the most serious one a criminal defendant attempted to escape by
use of intimidation.” Id. at 517.
Instantly, the verdict sheet contained the following interrogatory: “If
you entered GUILTY for INTIMIDATION OF A WITNESS OR VICTIM, do you
find that the most serious offense charged in the case in which the defendant
sought to influence or intimidate a witness was a felony of the first degree?”
(Verdict Sheet, dated 9/1/17, at 1). The jury circled the answer “NO.” (Id.)
Importantly, the verdict sheet did not ask the jury to decide the grade of the
offense found tied to the intimidation of a witness or victim charge, such as
whether it was a second-degree or third degree felony, or a misdemeanor.
After the verdict was recorded, the trial court had a discussion with counsel,
and stated that the jury’s specific finding was erroneous, because the jury
convicted Appellant of only first-degree felonies. Consequently, the court
purported to “correct” the grading of the intimidation conviction to a first-
degree felony.5
____________________________________________
5 The trial court interprets Appellant’s claims as challenging the underlying
convictions rather than the legality of the sentences for those convictions. In
Commonwealth v. Spruill, 622 Pa. 299, 80 A.3d 453 (2013), the issue
before the appellate Court was whether the trial court erred by convicting the
appellee of aggravated assault graded as a second-degree felony where the
Commonwealth charged her with aggravated assault as a first-degree felony.
In Commonwealth v. Shamsud-Dim, 995 A.2d 1224 (Pa.Super. 2010), the
issue was whether the trial court erred by convicting the appellant of simple
assault as a third-degree misdemeanor where: the Commonwealth had not
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Nevertheless, any ambiguity in the verdict should be construed in favor
of Appellant. See generally Commonwealth v. Riley, 811 A.2d 610
(Pa.Super. 2002) (holding jury’s general conspiracy verdict must be resolved
in favor of defendant and construed only as conviction of conspiracy to commit
least serious underlying offense). Given this record, we cannot say with
clarity whether the jury convicted Appellant of intimidation of a witness or
victim because Appellant intimidated Victim not to report the current assault,
or because Appellant intimidated Victim so he would stop cooperating with
authorities in the matter concerning one of Appellant’s friends in another
jurisdiction.
Further, when charging the jury on intimidation, the court stated that
aggravated assault is a felony of the first degree but did not inform the jury
of the grading of the other offenses charged in this case. We should not
____________________________________________
charged the appellant with that offense as a third-degree misdemeanor and
simple assault as a third-degree misdemeanor was not a lesser included
offense to any of the charges before the trial court. In each case, the
reviewing Courts considered the issues as challenges to the respective
convictions, which required specific and timely objections to avoid waiver. In
both Spruill and Shamsud-Dim, the remedy for each complaint would have
been an arrest of judgment for the challenged conviction.
Here, Appellant claims the sentence on his intimidation conviction was illegal
because the court improperly graded that offense as a first-degree felony in
contravention of the jury’s express finding on the special interrogatory. As
well, Appellant does not seek an arrest of judgment for this conviction;
instead, Appellant complains about the sentence. Therefore, Spruill and
Shamsud-Dim are inapposite, and the trial court erred in relying on those
cases to define and decide Appellant had waived his issues.
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speculate on what the jury had in mind when it answered the special
interrogatory. See Commonwealth v. Jones, 378 A.2d 1245 (Pa.Super.
1977) (explaining appellate court should not try to analyze thinking process
of jury and speculate on basis of verdict).
In light of the incomplete verdict sheet, the jury charge on intimidation,
and the different theories of intimidation pursued at trial, the best resolution
of this case is to reduce the grading of the intimidation conviction to the least
grading as a second-degree misdemeanor. See Commonwealth v. Weimer,
167 A.3d 78 (Pa.Super. 2017), appeal denied, 644 Pa. 336, 176 A.3d 838
(2017) (reducing grading of appellant’s unlawful contact with minor conviction
to default third-degree felony; court did not charge jury on specific offense for
which appellant was accused of contacting victim; thus, this Court could not
know most serious offense underlying unlawful contact of minor for purposes
of grading, and trial court would have had to guess what crime appellant
sought to commit when he contacted minor, which is neither permitted nor
intended under statute). Notably, the Commonwealth does not oppose
resentencing Appellant on the intimidation conviction, graded as a second-
degree misdemeanor pursuant to Section 4952(b)(5). (See Commonwealth’s
Brief at 24). Moreover, we cannot ignore the ramifications associated with
the improper grading of this offense for sentencing. See, e.g., 204 Pa.Code
§ 303.15 (dictating offense gravity score and prior record points associated
with offenses; misdemeanor offenses carry different offense gravity score and
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prior record point value than felony offenses). Accordingly, we affirm
Appellant’s convictions, but we vacate the entire judgment of sentence and
remand for resentencing.6 See Commonwealth v. Bartrug, 732 A.2d 1287
(Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding
sentencing error in multi-count case normally requires appellate court to
vacate entire judgment of sentence so trial court can restructure its
sentencing scheme on remand).
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/19
____________________________________________
6Due to our disposition, we do not need to address Appellant’s sixth issue on
appeal, challenging the discretionary aspects of sentencing.
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Circulated 07/02/2019 03 06 PM
)
I
,.
I
,. IN THE COURT OF COMMON PL1':AS
FIRST ,JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION 20 I 8 JUL I 6 PH 3= C
orncr OF Jf.101C!AL REGO
CRIMIM,�l. DfVlSlOH
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-5134-2016 FIRST JUDICIAL DISTRIC
OF PEn!SYLVANL<''i,
vs.
NICHOLAS LOWMAN
OPINION
- ....
CP-51-CR..()(X)5134·2016 Comm. 'I. Lowman. NichOIH
Perez, J. Op(nlon
I 111111111111111
I IIII I8136913001
PROCEDURAL AND FACTUAL HISTORY
On February 26, 2016, at approximately 12:40 AM, on the south side of the 53 00 block of
Woodland Avenue, a verbal and physical altercation occurred between the Defendant, Nicholas
Lowman, and the victim, Mark Epps, outside of Charlie's Bar. The Defendant confronted and
accused Mr. Epps of divulging information to law enforcement officials on a legal case involving
a family friend in another jurisdiction. Notes of Testimony, 8/30/17 at 128. The Defendant then
organized and directed other individuals from inside the bar to drag Mr. Epps outside, chase him
as he tried to flee, intimidate and severely beat him. Isl, at 91-92. Mr. Epps was stripped of all
clothing and belongings and made to walk naked down Woodland A venue. Id., at 131. Sergeant
Davis investigated and found a video recording of the altercation made available for public viewing
on the Snapchat social media application by the Codcfcndant. Id .. at 4 7. In the alleyway of
Charlie's Bar, police officers recovered the victim's left boot and a pair of underwear. Notes of
Testimony, 9/1/2017 at 30. Police officers also recovered a broken pool stick near the incident,
and documented images of facial injuries to Mr. Epps's left eye. J.fl, at 39. After the altercation,
Epps was missing $175 in U.S. currency, his Pennsylvania photo identification, and his welfare
benefits card. lfl, at 55. Upon the execution of a search warrant, police officers also recovered the
blue and white striped shirt seen on the Defendant in his bedroom at the Defendant's residence.
Id., at 83. Mr. Epps failed to timely notify law enforcement officers of the altercation because he
testified feeling threatened and scared to do so after the incident. Notes of Testimony, 8/31 /17 at
18.
The Defendant appeared before the Honorable Mia. R. Perez on August 30: 2017, and was
charged with Aggravated Assault, Robbery, threat of immediate serious injury, Conspiracy to
Commit Aggravated Assault, Retaliation Against a Witness or Victim, and Intimidation of a
Witness or Victim. On :>ty1P1�•1 �1, . the Defendant was found guilty by a jury of Robbery,
threat for immediate serious injury, Conspiracy to Commit Aggravated Assault, and Intimidation
o1'1 '1Q""1"rt l'l.1 Zol fl
of a Witness or Victim: and was sentenced'to an aggregate of twenty to forty years in state custody.
The Defendant then filed his Notice of Appeal on February 4, 2018: and later filed his
Statement of Matters complained of on appeal on May 18: 2018.
This trial court opinion follows.
Standard of Review
1. Sufficiency of the Evidence
The standard of review for sufficiency of the evidence is well settled in Commonwealth v. Kearney:
... whether viewing all the evidence admitted at trial in the light most favorable to
the verdict winner: there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence. Any doubts
regarding a defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no probability of fact
may be drawn from the combined circumstances. The Commonwealth may
sustain its burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover: in applying the
above test, the entire record must be evaluated and all evidence actually received
must be considered. Finally, the trier of fact while passing upon the credibility of
witnesses and the weight of the evidence produced is free to believe all, part or
none of the evidence. Furthermore, when reviewing a sufficiency claim, our Court
is required to give the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
However, the inferences must flow from facts and circumstances proven in the
record, and must be of such volume and quality as to overcome the presumption
of innocence and satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and speculation and a
verdict which is premised on suspicion will fail even under the limited scrutiny of
appellate review.
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super Ct. 2014).
2. Excessive Sentencing
Under 42 Pa.C.S.A. § 9781, n court can vacate a sentence and remand for resentencing if:
(l) the sentencing court purported to sentence within the sentencing ,
guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the
case involves circumstances where the application of the guidelines would
be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentenci ng guide! ines and
the sentence is unreasonable.
See 42 Pa.C.S.A. § 9781.
Under this standard" ... the Superior Court is required to vacate sentences that are outside
of the Sentencing Guidelines if they are 'unreasonable,' and is also required to vacate sentences
within the Sentencing Guidelines if they are 'clearly unreasonable.:" See Commonwealth. v.
Mouzon, 812 A.2d 61 7, 625 (Pa. 2002). It is also well settled that the statutory Sentencing
Guidelines are solely advisory in nature and are only one factor among many that the court must
consider when imposing a sentence. See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775
( 1987).
LEGAL ANALYSIS
I. Sufficiency of Evidence Claims
i
Robbery and Conspiracy to Commit Aggravated Assault
The Defendant asserts in claims (a) and (b) that this Court erred in finding him guilty of
Robbery and Conspiracy to Commit Aggravated Assault because it did not have sufficient
evidence demonstrating that the Defendant's acts caused serious bodily injury. The
Commonwealth met its evidentiary burden in proving beyond a reasonable doubt that the
Defendant attempted to cause serious bodily injury to Mr. Epps, pursuant to 18 Pa.C.S.A. §
2301.
Serious bodily injury is defined as: "bodily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ." See 18 Pa.C.S.A. § 2301.
Serious bodily injury need not itself be life-threatening; it is the conduct giving rise to the
inference that the Defendant intended to cause serious bodily injury that is applicable and
significant. See Commonwealth v. Rodriguez, 449 Pa. Super. 319, 673 A.2d 962 ( 1996) (holding
that the evidence that defendant and two other men punched and kicked lone victim while victim
was on ground, stopping only when police officer arrived, was sufficient to support defendant's
conviction for aggravated assault).
"In order to find Defendant guilty of aggravated assault. .. the jury had to examine two
elements under 18 Pa.C.S. §2702(a)(I) in determining Defendant's culpability: first, Defendant
had attempted to cause serious bodily injury to the victim; and second, Defendant had acted with
the requisite intent to cause such injury." See Commonwealth v. CraiQ, No. l3320F2004, 2005
WL 5798236 (Pa. Com. Pl. 2005), a!Td. 953 A.2d 596 (Pa. Super. Ct. 2008).
There are four basic factors to consider for whether the intent to inflict serious bodily
injury was present: the evidence of a significant difference in size or strength between the
defendant and the victim, any restraint on the defendant preventing him from escalating the
attack, the defendant's use of a weapon or other implement to aid his attack, and his statements
before, during, or after the attack which might indicate his intent to inflict injury. See
Commonwealth v. Alexander, 4 77 Pa. 190, 194, 383 A.2d 887, 889 (1978). This Court will now
establish how the evidence presented by the Commonwealth satisfied the test in Alexander for
whether the intent to inflict serious bodily injury was present.
Under the first prong of the Alexander test, the Commonwealth sufficiently established a
significant difference in size and strength between the defendant and the victim, because Mr.
Epps was physically outnumbered by more than one individual and could not possibly avoid
'
confrontation. Notes of Testimony, 8/31117 at 26-27. The Defendant approached Mr. Epps inside
Charlie's Bar, and forcibly removed Mr. Epps from his seat and into the adjacent lot. Id., at 17.
Mr. Epps attempted to flee but was chased by another man who pulled Mr. Epps toward the
alleyway next to the bar. rd. Mr. Epps was then repeatedly beaten by more than two men-
further supporting the Commonwealth's assertion that Mr. Epps was unable to adequately flee or
defend and protect himself because of the size and strength of the Defendant and the other men.
Isl, at 27.
The Defendant's actions satisfied the second prong of Alexander, because the Defendant
exhibited no restraint whatsoever to prevent him from escalating the attack. Contrarily, the
Defendant willfully provoked, organized and directed others to beat Mr. Epps, and the attack
instead worsened to one of grave public humiliation after Mr. Epps was stripped of his clothing
and belongings and made to walk naked down Woodland Avenue. Notes of Testimony, 8/31/17 at
2 l-22.
The Defendant made statements prior to and during the attack that satisfy the fourth prong
of the test in Alexander. The Defendant called Mr. Epps "a rat" and told him to "stop telling on
people." Ii., at 19. These statements made by the Defendant intensified the assailants' original
purpose for the attack and served to further motivate and encourage beating Mr. Epps. A Snapchat
video of the assault posted by the Codefendant, Mr. Evans, also revealed that the Defendant
showed little to no remorse for his actions and role or regard for human dignity during the beating.
The video demonstrates the Defendant's intent to inflict serious bodily injury on Mr. Epps through
his recorded statements.
This Court finds that after viewing the testimony and evidence in a light most favorable to
the Commonwealth, the evidence clearly established the requisite elements of the Conspiracy to
Commit Aggravated Assault and Robbery charges.
Intimidation of a \Vitncss or Victim
The Defendant also asserts in claim (c) that the evidence at trial was insufficient to establish
intimidation of a witness or victim, since Mr. Epps was neither a victim or a witness in a prior
criminal matter, and since there was no evidence that the assault upon him was intended to
intimidate Mr. Epps from reporting the current assault upon him. The Commonwealth met its
evidentiary burden in proving beyond a reasonable doubt that the Defendant intimidated Mr. Epps
as a victim and witness to his own assault, pursuant to § 4952(a)(I):
A person commits an offense if, with the intent to or with the knowledge that his conduct
will obstruct, impede, impair, prevent or interfere with the administration of criminal
justice, he intimidates or attempts to intimidate any witness or victim to:
(I) Refrain from informing or reporting to any law enforcement officer,
prosecuting to any law enforcement officer, prosecuting official or judge
concerning any information, document or thing relating to the commission of a
cnme.
Actual intimidation of a witness is not an essential element of the crime. The crime is
committed if one, with the necessary mens rea, "a/tempts" to intimidate a witness or victim. See
Commonwealth v. Collington, 419 Pa. Super. 538, 540, 615 A.2d 769, 770 (1992). While Mr.
Epps was being severely beaten by the Defendant and his counterparts, Mr. Epps was repeatedly
called "a rat" and told to "stop telling on people," demonstrating the Defendant's attempt to
intimidate and instill fear into Mr. Epps. Notes of Testimony, 8/3 l /17 at 19.
This Court finds that the Defendant intimidated Mr. Epps in order to prevent Mr. Epps
from reporting the assault against him on February 26, 2016 to law enforcement officials. 19.,, at
37-38. Mr. Epps asserted in his testimony that he was "scared at the time," when asked why he did
not report the assault to police right away. Id., at 18. This Court plainly observed the fear and terror
from Mr. Epps while present at the trial. Notes of Testimony, 1/12/18 at 17. After viewing the
testimony and evidence in a light most favorable to the Commonwealth, the evidence clearly
established the requisite clements of the Intimidation of a Witness or Victim charge.
2. This Court Did Not Err in Grading Witness Intimidation as a First Degree Felony
for Se11te11ci11g Purposes
In claims (d) and (g), Defendant claims that this Court erred in sentencing him on
intimidation of a witness as a first degree felony where the interrogatory completed by the jury
graded the charge as a third degree felony.
The offense of intimidation of a witness is graded as a felony of the first degree if a felony
of the first degree was charged in the case in which the actor sought to influence or initimidate a
witness. 18 Pa. C.S.A. § 4952.
The Pennsylvania Supreme Court in Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013),
held that an error in grading an offense concerns the underlying conviction rather than the legality
of the sentence, and is therefore subject to waiver. Commonwealth v. Shamsud-Din, 995 A.2d
1224 (holding that an appellant failed to preserve for appellate review a claim that 'the trial court
erred by convicting her of third-degree misdemeanor assault where appellant did not timely object
to the trial court's consideration of that offense or to conviction immediately following the court's
guilty verdict.); see also, Commonwealth v. Spmill, 105 A.3d 802 (Pa.Super., July 28, 2014)
(memorandum opinion).
When delivering the verdict in this case, the jury foreman stated on the record that the most
serious offense charged in the case in which the defendant intimidated a witness was not a felony
in the first degree. Notes of Testimony, 11/1117 at 21. This answer was clearly stated in error, as
the offense charged in the case in which the Defendant intimidated Mr. Epps was a robbery as a
felony in the first degree and the Defendant was found guilty on this charge. This admitted error
on the record goes to the conviction and not to the legality of sentence. Therefore, Appellant should
have objected to this Court's consideration of that offense or to the conviction immediately
following the jury's guilty verdict.
3. This Court Properly Sentenced the Defendant Within its Discretion
The Defendant' s claims (e) and (f) assert that this Court erred by imposing an excessive
and unreasonable sentence to a concurrent 10-20 years in state custody for Robbery: and l 0-20
years in state custody for Conspiracy to Commit Aggravated Assault. The Defendant also asserts
-
that this court erred in sentencing him to a consecutive 10-20 vears in state custodv for
. �
Intimidation of a Witness or Victim. Further, the Defendant asserts in claim (h) that this Court
improperly considered Defendant's failure to admit guilt as a "factor" in sentencing.
Under the standard set forth in 42 Pa.CS.A.§ 9781, Courts have applied statutory law by
vacating sentences that are outside of the Sentencing Guidelines if they are 'unreasonable' or
'clearly unreasonable.' See Commonwealth. v. Mouzon, 812 A.2d 617, 625 (Pa. 2002).
§ 9721(b) of Pennsylvania's Sentencing Code states that a trial court must: "follow the
general principle that the sentence imposed should call for confinement that is consistent with
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."
To find that a sentence is "clearly unreasonable," the appellant must state the reasons
why their sentence raises a substantial question and is an abuse of discretion in violation of
Pa.C.S.A. § 9781. Id. at 435. This Court echoes the decision in Commonwealth v. Hoag: "When
reviewing the sentence for abuse of discretion, it is only when sentencing court goes outside
guideline ranges of sentencing code that reviewing court will presume sentence imposed is not
minimum sentence recommended by statute; recommended ranges within sentencing guidelines
are minimum sentences consistent with requirements and concerns of the state, victims, and
defendant. 42 Pa.C.S.A. § 9701 et seq." See Commonwealth v. Hoag, 445 Pa. Super. 455, 665
A.2d 1212 (1995).
rt is also well settled that the statutory Sentencing Guidelines are solely advisory in
nature and are only one factor among many that the court must consider when imposing a
sentence. See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (l 987).
The Defendant was found guilty by a jury of Robbery, Conspiracy to Commit
Aggravated Assault, and Intimidation of a Witness or Victim. The maximum sentence for
Robbery is 20 years in state custody, and the Offense Gravity Score for this charge is 8. The
maximum sentence for Conspiracy to Commit Aggravated Assault is 20 years in state custody:
and the Offense Gravity Score for this charge is 7. The maximum sentence for Intimidation of a
Witness or Victim is 20 years in state custody, and the Offense Gravity Score for this charge is 8.
This court considered the Offense Gravity Scores and range of 84 to 102: the Defendant's prior
record score of I l , and determined that the Defendant was sentenced well within the sentencing
guidelines to an aggregate 20-40 years in state custody.
This Court considered the Defendant's Pre-Sentence Investigation (PSI) Report and
Psychiatric Reports prepared by the Probation Department and all relevant mitigating factors put
forth by the Defendant. 1 At the sentencing hearing, this Court indicated an awareness of and an
appreciation for the information contained in the reports regarding Defendant's character and
background and weighed those factors when deciding and announcing Defendant's sentence.
Notes ofTestimony, 1/12/18, at 17. This Court's on-record statements incorporating the findings
in the PSI and mental health reports are sufficient to explain the reasons for the sentence
imposed, to demonstrate compliance with applicable sentencing Jaws and regulations, and to
show that, in sentencing Defendant, this Court acted well within its discretion.
This Court carefully reviewed the Defendant's prior record score, offense gravity score and
range, the facts in this trial, the video footage of the attack, the history and character of the
Defendant, and the visible fear and terror from Mr. Epps during the trial. Id.
Specific aggravating factors considered in Defendant's sentence included the nature of
the crime, the Defendant's prior criminal record, the importance of protecting the public from
violence and the Defendant's failure to take responsibility for his crimes. The first aggravating
factor that this Court cited was the nature of the crime, specifically that the assault took the form
of a horrific physical beating by multiple people that resulted in the victim being stripped of his
clothing and made to walk naked in the middle of the night along Woodland Avenue. Isl "When
1
When the "sentencing court ha] s] the benefit of a presentence investigation report ("PS I"), [the
Superior Court] can assume the sentencing court 'was aware of relevant information regarding
defendant's character and weighed those considerations along with mitigating statutory factors."
Commonwealth v. MOU!)', 992 A.2d 162, 171 (Pa. Super, 2010) (citations omitted). The PSI and
Mental Health Reports in this case are attached to this Opinion.
an offense is carried out in a manner which makes it more egregious than is typical for the
offense ... the nature of the offense is a proper aggravating factor to consider. Commonwealth v.
Hanson, 2004 Pa. Super. 326, 856 A.2d 1254 (2004). As such, the nature of the crime was a
proper aggravating factor to consider in sentencing.
Protection of the public may also be considered as an aggravating factor when fashioning
a sentence. 42 Pa.C.S. § 9721 (b ). The Court acknowledged that the Defendant has been
previously found guilty of a violent felony and noted that-the violent nature of the Defendant's
prior criminal history must be considered when factoring the protection of the public into its
sentencing decision.
With regard to Defendant's failure to accept responsibility, this Court in its discretion
properly considered his general behavior throughout the trial indicating a lack of remorse or
accountability for his role in the attack against Mr. Epps as a consideration in sentencing. Notes
of Testimony, 1/12118, at 17.
After careful review of all factors, this Court finds that it has properly sentenced the
Defendant within its discretion.
Conclusion
For the foregoing reasons, it is respectfully requested that the Trial Court's verdict and
sentence be affirmed.
BY THIS COURT:
Mia R. Perez, J.