Com. v. Dozier, K. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KARIE DOZIER, : No. 2171 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 26, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003036-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 20, 2016
Karie Dozier appeals from the June 26, 2015 aggregate judgment of
sentence of 17 to 35 years’ imprisonment imposed after he was found guilty
of attempted murder, aggravated assault, criminal conspiracy to commit
murder, possessing instruments of crime (“PIC”), and multiple violations of
the Uniform Firearms Act (“UFA”).1 After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows:
[O]n November 29, 2013, at approximately
9:45 p.m., [Philadelphia Police Officer Milord Celce]
received a radio call for a shooting and person with a
gun at 2603 West Harold Street in Philadelphia.
Officer Celce, who was approximately four (4) blocks
away at the time, promptly arrived at the above
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901, 2702, 903, 1102(c), 907, 6105, 6106, and 6108,
respectively.
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location, where he observed bullet holes in the
windows and encountered the complainant,
Enoch Carter. Based on his conversation with
Mr. Carter, they proceeded to 2642 North 26th Street
-- literally just around the corner, not even
30 seconds later -- where they met Highway Patrol
Officer Reid, and knocked on the door. Appellant’s
cohort, Co-Defendant Jamar Matthews, who was in a
wheelchair, answered the door; [a]ppellant was
seated on a couch directly facing the front door of
the residence. As soon as Mr. Carter saw him, he
yelled and pointed to [a]ppellant, [t]hat’s the guy.
Officer Celce placed [a]ppellant on the floor to
detain him. He lifted the cushion where [a]ppellant
was sitting and recovered a handgun; [a]ppellant
was sitting on the gun. Officer Celce escorted
[a]ppellant outside, where he was positively
identified by Mr. Carter, and took him into custody.
Mr. Carter also was transported to Central Detectives
for an interview, during which Officer Celce learned
of Co-Defendant Matthews’ involvement; he then
went back to the residence and placed Matthews
under arrest at 12:15 a.m.
. . . . Mr. Carter testified that, prior to the shooting,
he had lived around the corner from Co-Defendant
Matthews (“Matthews”) for approximately one and
one-half (1½) years and was friends with him.
Mr. Carter used to hang out with Matthews
frequently, and also helped him with chores such as
laundry and grocery shopping. Several weeks before
the shooting, on October 17, 2013, Matthews was
driving a van (with handicapped hand controls) in
which Mr. Carter and a female friend of Matthews
were riding as passengers. Approaching a red light,
[a]ppellant mistook the accelerator for the brakes,
and crashed into a building, injuring Mr. Carter and
the female. Matthews was arrested at the scene for
his involvement in the crash. Mr. Carter was
transported to the hospital via ambulance for
treatment and subsequently required physical
therapy for his injuries. Several weeks later,
Mr. Carter commenced a personal injury lawsuit
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against Matthews, which Matthews took to heart.
Matthews thereafter had several different individuals
approach Mr. Carter to persuade him to drop the
lawsuit, including a younger gentleman earlier on the
day of the shooting, who proposed a fistfight in front
of Matthews’ residence. Mr. Carter declined the
proposal and went home.
Later that evening, at approximately
9:40 p.m., [a]ppellant knocked on Mr. Carter’s door.
Mr. Carter stuck his head out of his second-story
window to see who it was. Appellant asked him why
he had a beef with Matthews; Mr. Carter explained
that he did not have a problem with Matthews, it was
Matthews who had a problem with him due to the
lawsuit. After speaking with [a]ppellant for five (5)
to seven (7) minutes, Matthews approached on his
wheelchair and parked it next to [a]ppellant.
Appellant then asked Matthews, “what do you want
me to do[?]” at which point Matthews said
“go ahead[.]” Right on cue, [a]ppellant retrieved a
black handgun, pointed it at Mr. Carter and opened
fire. Mr. Carter saw the flash from the gun, and a
bullet went through his window; he fell back into the
home. As he was falling, [a]ppellant fired several
more shots at him. Fortunately, none of the bullets
struck Mr. Carter, who immediately dialed 911 to
summon police. During the call, he provided a
physical description of [a]ppellant and reported
Matthews’[] involvement. A few minutes later, he
accompanied police to Matthews’ residence, where
Appellant and the handgun were taken into custody
following Mr. Carter’s positive identification.
.... [Ballistics expert and Philadelphia Police
Officer Jesus] Cruz testified that he test-fired the
handgun that [a]ppellant was sitting on and
compared the fired cartridge casing (“FCC”) with the
five (5) FCCs recovered in front of Mr. Carter’s
residence. Based on his analysis, which was
peer-reviewed, he concluded to a reasonable degree
of scientific certainty that each of the five (5) FCCs
recovered at the scene was, in fact, fired from
[a]ppellant’s handgun.
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. . . . [Philadelphia Police Detective Michael] Repici
testified that, on November 29, 2013, he was
assigned to investigate this matter. At
approximately 11:35 p.m., he interviewed Mr. Carter
at Central Detectives. When Mr. Carter described
Matthews’[] involvement, Detective Repici asked
Officer Celce -- who was present -- if he knew where
this guy is? Officer Celce responded, [y]eah, he’s
still back there, at which point Detective Repici
directed him to arrest [a]ppellant. Officer Celce
embarked on this quest a few minutes prior to
12:00 a.m.
Detective Repici then went to the crime scene,
2603 Harold Street, which was being held, or
secured, by fellow officers. There, he recovered
under property receipt four (4) FCCs on the
pavement and one (1) FCC in the street, all in close
proximity to each other in front of Mr. Carter’s
residence. He also took photographs of all the
evidence, including the bullet holes in the windows
and inside the residence, which he described as the
photos were displayed to the jury. Detective Repici
then proceeded to 2642 North 26th Street, where he
took photographs of the couch and black handgun,
the latter of which he recovered under property
receipt.
Finally, the Commonwealth introduced via
stipulation: (a) certificates of non-licensure with
respect to both [a]ppellant and Matthews,
establishing that neither male was licensed to carry a
firearm and thus not permitted to carry a firearm in
Pennsylvania; (b) authenticity of prison phone call
records between [a]ppellant and Matthews, in which
they discuss methods to prevent the case from going
forward -- which recordings were played for, and
their transcripts displayed to, the jury.
Trial court opinion, 11/24/15 at 2-5 (citations to notes of testimony,
footnotes, and some internal quotation marks omitted).
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Appellant was arrested in connection with this incident and charged
with the aforementioned offenses on March 25, 2014. On April 21, 2015,
appellant proceeded to a jury trial alongside Matthews. Following a
three-day trial, the jury found appellant guilty of attempted murder,
aggravated assault, criminal conspiracy to commit murder, PIC, carrying a
firearm without a license, and carrying a firearm on public streets or public
property in Philadelphia. That same day, the trial court found appellant
guilty of unlawful possession of a firearm. Following the completion of a
pre-sentence investigation (“PSI”) report, the trial court sentenced appellant
to 17 to 35 years’ imprisonment on June 26, 2015. On July 6, 2015,
appellant filed post-sentence motions alleging the verdict was against the
weight of the evidence and for reconsideration of his sentence. The trial
court denied appellant’s post-sentence motions on July 8, 2015. This timely
appeal followed on July 21, 2015.2
On appeal, appellant raises the following issues for our review:
1. Whether the trial court erred by instructing the
jury on constructive possession where the
Commonwealth failed to request said
instruction?
2. Whether the verdicts of guilty on all charges
w[ere] against the weight of the evidence
where they were based on inconsistent and
unreliable eyewitness identification testimony;
[w]here the testimony regarding the recovery
of the firearm was conflicting, failing to prove
constructive possession; and where the
2
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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damage to the complainant’s home could not
be solely attributed to the charged crime?
3. Whether the evidence presented was
insufficient to sustain the convictions for
attempted murder, aggravated assault, and
criminal conspiracy where the Commonwealth
failed to prove that he possessed the requisite
intent or malice?
4. Whether the evidence was insufficient to
sustain the convictions, beyond a reasonable
doubt, to the charges of Violation of the
Uniform Firearms Act and [PIC] where the
Commonwealth failed to prove appellant
constructively possessed the recovered
firearm?
5. Whether the [trial c]ourt erred in imposing an
excessive and manifestly unreasonable
sentence by ordering all three (3) [UFA] counts
to run consecutively to one another and
consecutively to the conviction for attempted
murder, where said sentences were based on
factors already accounted for in the prior
record score . . . and the offense gravity score,
and in failing to provide reasons justifying its
decision?
Appellant’s brief at 6 (citations omitted). For the purposes of our review, we
have elected to address appellant’s claims in a slightly different order than
presented in his appellate brief.
Appellant first argues the trial court erred in instructing the jury on
constructive possession where the Commonwealth failed to request said
instruction. (Id. at 17.)
“[A] trial court has broad discretion in phrasing its instructions, and
may choose its own wording so long as the law is clearly, adequately, and
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accurately presented to the jury for its consideration.” Commonwealth v.
Charleston, 94 A.3d 1012, 1021 (Pa.Super. 2014), appeal denied, 104
A.3d 523 (Pa. 2014) (citation omitted). “A jury charge will be deemed
erroneous only if the charge as a whole is inadequate, not clear or has a
tendency to mislead or confuse, rather than clarify, a material issue.”
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013).
During the course of its deliberations, the jury submitted a question to
the trial court requesting the definition of possession. (Notes of testimony,
4/23/15 at 115.) The trial court heard argument on the issue and ultimately
instructed the jury, over appellant’s objection, on the legal definition of
possession and its relation to constructive possession. (See id. at 119-
121.) Appellant maintains that “by providing clarification through the
instruction the [trial] court imposed upon the jury’s role as fact-finder . . .
[and] essentially bolstered the Commonwealth’s case.” (Appellant’s brief at
17.) We disagree.
Pennsylvania Rule of Criminal Procedure 647(D)3 authorizes the trial
court to provide additional instructions to the jury after the jury has retired
to consider its verdict. In Commonwealth v. Davalos, 779 A.2d 1190(Pa.Super. 2001), appeal denied, 790 A.2d 1013 (Pa. 2001), a panel of
this court reasoned as follows:
3
Rule 647(D) provides, in relevant part, that “[a]fter the jury has retired to
consider its verdict, additional or correctional instructions may be given by
the trial judge in the presence of all parties. . . .” Pa.R.Crim.P. 647(D).
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The scope of supplemental instructions given in
response to a jury’s request rests within the sound
discretion of the trial judge. There may be situations
in which a trial judge may decline to answer
questions put by the jury, but where a jury returns
on its own motion indicating confusion, the court has
the duty to give such additional instructions on the
law as the court may think necessary to clarify the
jury’s doubt or confusion.
Id. at 1195 (citations omitted).
Instantly, the record reflects that the trial court properly delivered
clarifying instructions in response to the jury’s inquiry, as permitted by
Rule 647(D). Read as a whole, these instructions clearly and accurately set
forth the applicable law on possession and were neither misleading nor
confusing to the jury. Accordingly, appellant’s claim of trial court error must
fail.
We now turn to appellant’s claim that there was insufficient evidence
to sustain his convictions for attempted murder, aggravated assault, and
criminal conspiracy to commit murder because the Commonwealth failed to
prove he had the specific intent to kill or seriously injure Carter. (Appellant’s
brief at 21.) In support of this assertion, appellant contends that he was
only intending “to scare Mr. Carter[,]” and “it is more likely that the weapon
was fired only as a means of intimidation.” (Id. at 23.)
In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted
at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
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reasonable doubt. As an appellate court, we may
not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Any question of
doubt is for the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no
probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal
denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).
“A person commits an attempt when with intent to commit a specific
crime, he does any act which constitutes a substantial step towards the
commission of the crime.” 18 Pa.C.S.A. § 901(a). A conviction for
attempted murder requires the Commonwealth to prove beyond a
reasonable doubt that the defendant “t[ook] a substantial step toward the
commission of a killing, with the specific intent in mind to commit such an
act.” Commonwealth v. Tucker, A.3d , 2016 WL 4035602, at *7
(Pa.Super. July 19, 2016) (citation omitted). It is the element of a willful,
premeditated, and deliberate intent to kill that distinguishes first-degree
murder from all other types of criminal homicide. “To convict a defendant of
first-degree murder, the jury must find that (1) a human being was
unlawfully killed; (2) the defendant is responsible for the killing; and (3) the
defendant acted with a specific intent to kill.” Commonwealth v.
Montalvo, 956 A.2d 926, 932 (Pa. 2008), cert. denied, 556 U.S. 1186(2009) (citation omitted); 18 Pa.C.S.A. § 2502.
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Criminal conspiracy, in turn, requires the Commonwealth to establish
that appellant “(1) entered into an agreement to commit or aid in an
unlawful act with another person or persons; (2) with a shared criminal
intent; and (3) an overt act was done in furtherance of the conspiracy.”
Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa.Super. 2016).
Additionally, a person will be found guilty of aggravated assault if he
“attempts to cause serious bodily injury to another, or causes such injury
intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1).
The term “serious bodily injury” is defined by statute as “[b]odily 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.” 18 Pa.C.S.A. § 2301. Where the victim does not sustain
serious bodily injury, the Commonwealth must prove that the appellant
acted with specific intent to cause serious bodily injury. Commonwealth v.
Matthew, 909 A.2d 1254, 1257-1258 (Pa. 2006).
For aggravated assault purposes, an “attempt”
is found where an accused who possesses the
required, specific intent acts in a manner which
constitutes a substantial step toward perpetrating a
serious bodily injury upon another. An intent
ordinarily must be proven through circumstantial
evidence and inferred from acts, conduct or
attendant circumstances.
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Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa.Super. 2013)
(en banc), appeal denied, 78 A.3d 1089 (Pa. 2013) (citations and some
internal quotation marks omitted).
Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, we find that there was ample evidence
for the jury to conclude that appellant possessed the requisite intent to kill
or seriously injure Carter. The testimony presented at trial established that
appellant’s co-defendant, Matthews, was angry with Carter for filing a
lawsuit against him and made multiple attempts to persuade him to forgo
the suit. (Notes of testimony, 4/22/15 at 10-14, 22-23, 97.) On the day of
the alleged incident, Matthews enlisted appellant to speak with Carter about
the “beef” he had with Matthews. (Id. at 15-18.) During the course of this
conversation, Matthews expressly directed appellant to “go ahead,” and
appellant subsequently fired five gunshots at Carter’s head as he hung out of
his second-story window. (Id. at 19-20, 68-69.) Thereafter, Officer Celce
found appellant and Matthews sitting together at Matthews’s residence.
(Notes of testimony, 4/21/15 at 90-92.)
It is well settled that “[t]he firing of a bullet in the general area in
which vital organs are located can in and of itself be sufficient to prove
specific intent to kill beyond a reasonable doubt.” Commonwealth v.
Manley, 985 A.2d 256, 272 (Pa.Super. 2009), appeal denied, 996 A.2d
491 (Pa. 2010) (citation omitted). Likewise, the act of firing a gun at
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someone is sufficient to support a conviction for aggravated assault, even
when the victim is not actually injured. See Commonwealth v.
McCalman, 795 A.2d 412, 415-416 (Pa.Super. 2002), appeal denied, 812
A.2d 1228 (Pa. 2002) (concluding that appellant possessed the intent to
cause serious bodily injury where he fired a gun in the direction of victims
and narrowly missed them); Commonwealth v. Galindes, 786 A.2d 1004,
1012 (Pa.Super. 2002), appeal denied, 803 A.2d 733 (Pa. 2002) (holding
that the act of firing a gun at victim was sufficient to establish that appellant
attempted to cause serious bodily injury to the victim, even though the
victim was not struck by any of the bullets). Based on the foregoing,
appellant’s claim that there was insufficient evidence to sustain his
convictions for attempted murder, aggravated assault, and criminal
conspiracy to commit murder must fail.
Appellant next argues there was insufficient evidence to sustain his
convictions for PIC, unlawful possession of a firearm, carrying a firearm
without a license, and carrying a firearm on public streets or public property
in Philadelphia. (Appellant’s brief at 23.) In support of this contention,
appellant avers that the Commonwealth failed to prove he was in possession
of the firearm in question. (Id. at 23-24.) For the following reasons, we
disagree.
Possession of a firearm can be established by showing either actual or
constructive possession. In situations where it cannot be proven that a
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suspect had the firearm on his person, the Commonwealth is required to
prove constructive possession. See Commonwealth v. Hopkins, 67 A.3d
817, 820 (Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013).
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an
inference arising from a set of facts that possession
of the contraband was more likely than not. We
have defined constructive possession as conscious
dominion. We subsequently defined conscious
dominion as the power to control the contraband and
the intent to exercise that control.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal
denied, 63 A.3d 1243 (Pa. 2013) (citations and internal quotation marks
omitted). As with any other element of a crime, the Commonwealth may
sustain its burden of proving constructive possession by means of wholly
circumstantial evidence, and the requisite intent may be inferred from
examination of the totality of the circumstances. Hopkins, 67 A.3d at 820.
Upon review of the evidence in the light most favorable to the
Commonwealth, we conclude that there was ample evidence for the jury to
conclude that appellant was guilty of PIC and Sections 6105, 6106, and 6108
of the UFA. The record belies appellant’s claim that he was not in actual or
constructive possession of the firearm in question. As discussed, the
evidence adduced at trial established that appellant fired a handgun at
Carter multiple times while on 2603 West Harold Street in Philadelphia.
(Notes of testimony, 4/21/15 at 87-88.) At trial, the Commonwealth
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introduced a certificate of non-licensure that demonstrated that appellant
was not licensed to carry a firearm, and appellant had a prior felony
conviction enumerated in 18 Pa.C.S.A. § 6105(b) that prohibited him from
possessing a firearm. (Notes of testimony, 4/22/15 at 193; 4/23/15 at
136.) Officer Celce testified that when he located appellant at Matthews’
house minutes after this incident, appellant was on the couch with his hand
between his legs and a handgun was found directly under the couch cushion
where he was sitting. (Notes of testimony, 4/21/15 at 91-92.) Additionally,
Officer Cruz testified to a reasonable degree of scientific certainty as an
expert in the field of ballistics that the cartridge casings recovered at
Carter’s residence were fired from the same handgun that appellant was
found sitting on. (Notes of testimony, 4/22/15 at 117-132.) Based on the
foregoing, appellant’s claim that there is insufficient evidence to sustain his
firearms convictions must fail.
We now turn to appellant’s claim that the verdict was against the
weight of the evidence. (Appellant’s brief at 17.) “An allegation that the
verdict is against the weight of the evidence is addressed to the discretion of
the trial court.” Commonwealth v. Galvin, 985 A.2d 783, 793 (Pa. 2009),
cert. denied, 559 U.S. 1051 (2010) (citation omitted).
[W]here 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.
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Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation
omitted).
Because the trial judge has had the opportunity to
hear and see the evidence presented, an appellate
court will give the gravest consideration to the
findings and reasons advanced by the trial judge
when reviewing a trial court’s determination that the
verdict is against the weight of the evidence. One of
the least assailable reasons for granting or denying a
new trial is the lower court’s conviction that the
verdict was or was not against the weight of the
evidence and that a new trial should be granted in
the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and
emphasis omitted).
Instantly, appellant contends the verdict is against the weight of the
evidence because Carter’s identification of appellant was unreliable;
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Officer Celce’s testimony concerning the recovery of the firearm was
inconsistent; and the physical evidence found at Carter’s home could not be
attributed solely to the charged crime. (Appellant’s brief at 18-21.)
Upon review, we discern no abuse of discretion on the part of the trial
court in rejecting appellant’s weight claim. “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.” Commonwealth v.
Caban, 60 A.3d 120, 132 (Pa.Super. 2012), appeal denied, 79 A.3d 1097(Pa. 2013) (citation omitted). Here, the jury evidently found the
Commonwealth’s witnesses credible and elected not to believe appellant’s
version of the events. We are precluded from reweighing the evidence and
substituting our judgment for that of the fact-finder. Clay, 64 A.3d at 1055.
Accordingly, appellant’s weight claim must fail.
In his final claim, appellant challenges the discretionary aspects of his
sentence. (Appellant’s brief at 25-28.) Challenges to the discretionary
aspects of sentencing do not entitle a petitioner to review as of right. See
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Rather,
an appellant challenging the discretionary aspects of his sentence must
invoke this court’s jurisdiction by satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
[a]ppellant preserved his issue; (3) whether
[a]ppellant’s brief includes a concise statement of
the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
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substantial question that the sentence is appropriate
under the sentencing code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Instantly, the record reveals that appellant has filed a timely notice of
appeal and has preserved his issue in a post-sentence motion. Appellant
has also included a statement in his brief that comports with the
requirements of Pa.R.A.P. 2119(f). (See appellant’s brief at 15-16.)
Accordingly, we must determine whether appellant has raised a substantial
question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(citation omitted). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),
appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).
Appellant first contends his sentence was “excessive and manifestly
unreasonable” because the trial court elected to impose consecutive
sentences for his UFA violations and the attempted murder charge.
(Appellant’s brief at 25.)
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The “[l]ong standing precedent of this [c]ourt recognizes that
42 Pa.C.S.A. [§] 9721 affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.” Commonwealth v.
Marts, 889 A.2d 608, 612 (Pa.Super. 2005). Generally, the imposition of
consecutive sentences does not raise a substantial question. See
Commonwealth v. Pass, 914 A.2d 442, 446 (Pa.Super. 2006) (stating that
a challenge to the trial court’s discretion to impose a consecutive sentence
does not raise a substantial question). Such a claim may raise a substantial
question “in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Dodge, 77 A.3d
1263, 1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014)
(citation omitted). This case simply does not present “extreme
circumstances” and appellant’s sentence is not unduly harsh considering the
criminal conduct that occurred in the case, the nature of the crime, and the
length of imprisonment. Accordingly, the trial court’s decision to impose
consecutive, rather than concurrent, sentences does not present a
substantial question for our review.
However, to the extent appellant argues in his Rule 2119(f) statement
that, “[t]here is no indication that the [trial] court considered . . . appellant’s
individual rehabilitative needs” or any of the other relevant factors in Section
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9721(b), we find this claim presents a substantial question for our review.
(See appellant’s brief at 15-16.) This court has recognized that an assertion
that the trial court failed to account for appellant’s rehabilitative needs was a
substantial question suitable for appellate review. Commonwealth v.
Baker, 72 A.3d 652, 662 (Pa.Super. 2013), appeal denied, 86 A.3d 231(Pa. 2014). Likewise, appellant’s contention the trial court considered a
number of “impermissible factors” in fashioning his sentence, including
“focusing primarily on his prior criminal record[,]” also raises a substantial
question. See Allen, 24 A.3d at 1064-1065 (stating, “a claim that a
sentence is excessive because the trial court relied on an impermissible
factor raises a substantial question.” (citation omitted)). Accordingly, we
proceed to consider the merits of these discretionary aspects of sentencing
claims.
When reviewing a challenge to the discretionary aspects of sentencing,
we determine whether the trial court has abused its discretion.
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 [a]ppellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal
denied, 117 A.3d 297 (Pa. 2015) (citation omitted). “[This Court must
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accord the sentencing court great weight as it is in [the] best position to
view the defendant’s character, displays of remorse, defiance or indifference,
and the overall effect and nature of the crime.” Commonwealth v.
Ventura, 975 A.2d 1128, 1134 (Pa.Super. 2009), appeal denied, 987 A.2d
161 (Pa. 2009) (citation omitted).
Herein, the record reveals that the trial court considered and weighed
numerous factors in fashioning appellant’s sentence. At the June 26, 2015
sentencing hearing, the trial court addressed appellant’s difficult childhood
and upbringing, his educational background and prior employment, his
significant history of mental illness, and the fact that he made a conscious
choice to “show[] up to somebody else’s fight with a gun.” (Notes of
testimony, 6/26/15 at 11-12, 14.) The trial court also considered appellant’s
extensive criminal history, noting that, as an adult, appellant has 13 arrests,
11 convictions, 8 commitments, and 2 violations of probation. (Id. at
12-13.) Additionally, the trial court heard testimony from appellant at the
hearing and was aware of the fact that appellant had previously been the
victim of a gunshot and had essentially been abandoned by his mother until
he was eight years old. (Id. at 8-11.) Although the record reflects that the
trial court did not specifically state at the sentencing hearing that it
considered appellant’s rehabilitative needs, the trial court was in possession
of a PSI report. Where the trial court has the benefit of a PSI report, as is
the case here, “we shall . . . presume that the sentencing judge was aware
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of relevant information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.”
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted). Accordingly, we
find no abuse of the trial court’s discretion and appellant’s challenge to the
discretionary aspects of his sentence must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2016
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