Com. v. Syga, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN J. SYGA
Appellant No. 2477 EDA 2014
Appeal from the Judgment of Sentence April 11, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008932-2009
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 16, 2015
Appellant, John J. Syga, appeals from the April 11, 2014 aggregate
judgment of sentence of 10 to 20 years’ imprisonment, imposed after he
was found guilty of one count each of simple assault, aggravated assault,
and recklessly endangering another person (REAP).1 After careful review,
we affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
On May 8, 2009, at around 3:00 a.m., Larry Jones
heard someone screaming for help as he exited the
back door of his apartment on the 7100 block of
Oxford Avenue, Philadelphia. Mr. Jones determined
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2701(a), 2702(a), and 2705, respectively.
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that the screaming was coming from the rear parking
lot of an apartment complex at 7110 Oxford Avenue,
where he saw a young woman, later identified as
Jeanette Mercado, lying on the black concrete
surface. As Ms. Mercado lay defenseless on the
ground, [Appellant] was observed kicking her in the
head and face. Mr. Jones also saw another man,
later identified as Eric Garcia, with [Appellant].
However, he did not see Garcia strike or kick Ms.
Mercado at that time. Instead, Mr. Jones saw Garcia
pulling items from Ms. Mercado’s bag as he searched
it.
After witnessing this incident, Mr. Jones
approached off-duty Police Officers Edwin Correa and
Ralph Harris (now Sergeant) who were standing in a
parking lot outside of the Princeton Tavern at 7100
Rising Sun Avenue. He advised the officers of his
observation and Officers Correa and Harris walked
from 7100 Rising Sun Avenue to the parking lot at
7110 Oxford Avenue. They arrived on the scene
within fifteen seconds. Officers Correa and Harris
observed both [Appellant] and Garcia kicking Ms.
Mercado in the head and upper torso while she was
lying on the ground. [Appellant] was on one side of
Ms. Mercado’s body and Garcia was on the other
side. [Appellant] and Garcia continued to kick Ms.
Mercado as she lay motionless, moaning and
groaning from the assault. As Officers Correa and
Harris moved closer, they saw [Appellant] and Garcia
pick up Ms. Mercado and attempt to place her in the
back seat of a vehicle, later determined to belong to
[Appellant]. The men were folding Ms. Mercado’s
body as if it were a lawn chair, and placing her inside
the vehicle.
Officers Correa and Harris identified
themselves as police officers, and Officer Correa
ordered [Appellant] and Garcia to stop what they
were doing. Both men turned and stated that they
were helping a friend. When Officers Correa and
Harris approached the vehicle, they heard Ms.
Mercado gurgling loudly and observed that she was
having difficulty breathing. Officer Harris asked her
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questions, but received no response. Ms. Mercado
was unconscious, and bleeding from the nose and
mouth. There was blood on her face and body, and
on the floor of the vehicle. Officers Correa and
Harris tried to ascertain her name, but they could
not find any identification documents among the
various items spread out on the ground, about two
to four feet away from the vehicle. Officer Correa
drew his weapon and ordered the men to stop
moving and to lie down in a prone position on the
ground. The men complied.
Afterwards, Officer Correa called 911 and
requested medical assistance. At around 3:30 a.m.,
Police Officers Robert Livewell and Kenneth Smith
responded to a radio call of a person screaming at
that location. Within minutes, Officers Livewell and
Smith arrived on the scene and exited their patrol
vehicle. They encountered off-duty Officers Correa
and Harris, who requested that they arrest
[Appellant] and Garcia.
Officers Correa and Harris both pointed to a
gold Dodge Stratus and stated: “She is real bad.
She is real bad.” When Officer Smith approached
the vehicle, he saw Ms. Mercado’s twisted and
contorted body in the back seat. Ms. Mercado was
semi-conscious, and she was barely breathing. She
suffered head trauma, including multiple cuts on her
head and a caved-in skull. There was blood on her
face and in her hair. Officer Smith also saw the
following items spread out on the ground: one black
sneaker, one gold necklace, and a pair of sunglasses.
Officers Livewell and Smith then arrested [Appellant]
and Garcia. Officer Smith also prepared the incident
report and the arrest memorandum. Ms. Mercado
was simply referred to as “Jane Doe” until police
later discovered her name.
Ms. Mercado was transported by ambulance to
the emergency room at Albert Einstein Medical
Center, where she arrived unresponsive, sedated
and paralyzed. She was placed on a ventilator after
being diagnosed with respiratory failure. A catheter
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was inserted. Ms. Mercado also suffered a small
subarachnoid hemorrhage in her brain. She had
lacerations on the left side and right side of her skull
and bruises behind her left ear. After a drug screen,
Ms. Mercado tested positive for cocaine, marijuana
and opiates and negative for alcohol. Ms. Mercado
was later transferred to the surgical intensive care
unit for further treatment. On May 18, 2009, Ms.
Mercado underwent two surgeries: a gastrostomy to
insert a feeding tube and a tracheostomy to insert a
breathing tube. On May 22, 2009, Ms. Mercado
opened her eyes for the first time, but she was
unable to follow commands. On May 23, 2009, Ms.
Mercado was transferred from the surgical intensive
care unit to the step-down unit.
On June 4, 2009, Ms. Mercado was discharged
to the Drucker Brain Injury Center at Moss
Rehabilitation in Elkins Park, Pennsylvania. At that
time, she was diagnosed with bleeding in the brain
and traumatic brain injury. Ms. Mercado was in a
minimally conscious state and she did not
demonstrate oral movements or attempt to
communicate. During her stay, Ms. Mercado
underwent physical therapy five days each week in
order to learn how to walk, talk and sit upright on
her own.
Ms. Mercado’s catheter was removed on June
4, 2009. Her breathing tube was removed on June
11, 2009, and her feeding tube was removed on July
2, 2009. As of June 11, 2009, she was still blind. By
July 13, 2009, Ms. Mercado had regained her vision,
albeit impaired. She had missing teeth and required
assistance with her oral care. On July 17, 2009, Ms.
Mercado was discharged from the rehabilitation
center to her family’s care. Upon discharge, she was
instructed not to shower, dress, or use the bathroom
without assistance. She was further instructed to
complete a home exercise plan with assistance and
to take five medications daily. At that time, she was
unable to drive, ride a bike, walk a dog, or engage in
any activity requiring a high level of balance. At
trial, Ms. Mercado stated that she did not remember
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the incident, but that she knew she had been in a
coma for eight [days]. She further stated that she
had difficulty learning Spanish and English again.
[Appellant] testified at trial and stated that he
and Garcia had been out drinking that evening, and
that afterwards he drove Garcia to the Kensington
section of Philadelphia to pick up a prostitute. He
went on to say that after Garcia picked up Ms.
Mercado, [Appellant] drove to Garcia’s apartment
complex at 7210 Oxford Avenue, which is next to
and shares a parking lot with the apartment complex
at 7110 Oxford Avenue. While en route to the
apartment, Garcia called his girlfriend on a cell
phone. [Appellant] stated that Garcia became angry
with Ms. Mercado because she began to talk loudly
while he was on the phone with his girlfriend.
[Appellant] further stated that Garcia and Ms.
Mercado were in a shouting match for about five
minutes. When they arrived at the rear parking lot
of his apartment complex, Garcia and Ms. Mercado
exited the vehicle. [Appellant] vigorously denied
repeatedly kicking Ms. Mercado in her head and
upper torso. He claimed that Garcia was the only
one who assaulted her in that manner. [Appellant]
admitted to slapping Ms. Mercado in the face several
times, but claimed that he did so only to calm her
down.
Trial Court Opinion, 12/31/14, 2-5 (internal citations omitted).
On July 23, 2009, the Commonwealth filed an information charging
Appellant with the above-mentioned offenses, plus one count each of
criminal conspiracy, unlawful restraint, and false imprisonment.2 Appellant
proceeded to a jury trial, at the conclusion of which on January 16, 2014,
the jury found Appellant guilty of one count each of simple assault,
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2
18 Pa.C.S.A. §§ 903(a)(1), 2902(a)(1), and 2903(a), respectively.
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aggravated assault, and REAP. The jury found Appellant not guilty of
criminal conspiracy, and the unlawful restraint and false imprisonment
charges were nolle prossed. On March 13, 2014, Appellant filed a motion for
extraordinary relief, seeking a new trial on the grounds that the
Commonwealth committed a Brady[3] violation. The trial court denied said
motion on March 21, 2014. On April 11, 2014, the trial court imposed an
aggregate sentence of 10 to 20 years’ imprisonment.4 On April 18 and April
21, 2014, Appellant filed timely post-sentence motions. On April 30, 2014,
Appellant filed an untimely supplemental post-sentence motion. On August
19, 2014, the trial court entered an order denying Appellant’s post-sentence
motions by operation of law. See generally Pa.R.Crim.P. 720(B)(3)(c). On
August 20, 2014, Appellant filed a timely notice of appeal.5
On appeal, Appellant raises the following five issues for our review.
I. Whether the trial court abused its discretion in
denying the jury’s request to view the prior
inconsistent statement of Officer Correa,
concerning the incident, which was a lynchpin
of Appellant’s defense?
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3
Brady v. Maryland, 373 U.S. 83 (1963).
4
Specifically, the trial court sentenced Appellant to 10 to 20 years’
incarceration for aggravated assault, and no further penalty on the
remaining charges.
5
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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II. Whether the trial court erred in denying
Appellant’s [m]otion for [e]xtraordinary [r]elief
based on the Commonwealth’s prosecutorial
misconduct by failing to provide critical Brady
material pretrial, in the nature of Appellant’s
Philadelphia arrest record, which could have
been used to impeach [Officer] Harris’s
testimony that he saw blood on Appellant’s
clothing and took pictures of such, where the
arrest record would have revealed that no such
pictures were taken by Officer Harris?
III. Whether this Court should grant review of the
discretionary aspect of sentencing because
[A]ppellant raises a substantial question that
imposition of the statutory maximum sentence
is not appropriate under the Sentencing Code?
a. Whether the trial court abused its
discretion in sentencing Appellant to the
maximum authorized by law of not less
than ten (10) nor more than twenty (20)
years in a [s]tate [c]orrectional
[i]nstitution, which was more than triple
the co-defendant’s sentence, not
supported by sufficient reasons stated on
the record, and failed to take into
account [A]ppellant’s personal
characteristics?
IV. Whether there was insufficient evidence to
support Appellant’s conviction for [a]ggravated
[a]ssault committing serious bodily injury, in
that the Commonwealth failed to prove that
Appellant caused serious bodily injury to the
victim, or was guilty as an accomplice?
V. Whether the weight of the evidence fails to
support the jury’s finding that Appellant is
guilty of [a]ggravated [a]ssault committing
serious bodily injury, in that the
Commonwealth failed to prove that Appellant
caused serious bodily injury to the victim, or
was guilty as an accomplice?
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Appellant’s Brief at 6-7.
We address Appellant’s fourth issue first, as the remedy for lack of
sufficient evidence is a discharge order, rather than a new trial.
Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011). Our
standard of review regarding the sufficiency of the Commonwealth’s
evidence is well settled.
“In reviewing the sufficiency of the evidence, we consider whether the
evidence presented at trial, and all reasonable inferences drawn therefrom,
viewed in a light most favorable to the Commonwealth as the verdict winner,
support the jury’s verdict beyond a reasonable doubt.” Commonwealth v.
Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied,
Patterson v. Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth
can meet its burden by wholly circumstantial evidence and any doubt about
the defendant’s guilt is to be resolved by 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.
Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation
marks and citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an
appellate court, we must review “the entire record … and all evidence
actually received[.]” Id. (internal quotation marks and citation omitted).
“[T]he 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
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evidence.” Id. (citation omitted). “Because evidentiary sufficiency is a
question of law, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013)
(citation omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145(2014).
Instantly, Appellant only challenges the sufficiency of the evidence for
his aggravated assault conviction. Appellant’s Brief at 40. The statute for
aggravated assault provides as follows.
§ 2702. Aggravated assault
(a) Offense defined.--A person is guilty of
aggravated assault if he:
(1) 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 Crimes Code defines serious bodily injury 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. Appellant
avers that the Commonwealth presented insufficient evidence to prove that
it was he who caused serious bodily injury to Mercado. Appellant’s Brief at
41.
At trial, the Commonwealth presented several different eyewitnesses
to the assault on Mercado. Officer Correa testified that when he arrived on
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the scene he observed “two males standing and one body on the floor.”
N.T., 1/14/14, at 75. The two men were kicking Mercado, specifically “using
[their] right [feet] moving forward and down in a forceful manner.” Id. at
75-76. Officer Correa identified Appellant as one of the two men he saw
kicking her. Id. Officer Harris testified that he also observed two men
kicking Mercado as she was lying on the ground. Id. at 43. Officer Harris
further identified Appellant in court as one of those men. Id. at 38, 42. In
addition, Jones testified that when he first heard someone screaming for
help and arrived on the scene, he observed Mercado behind a car with her
head protruding from behind the car. Id. at 6. Jones testified that someone
was stomping on her body as she lay there. Id. at 7. Jones also identified
that man as Appellant. Id. at 6.
Our Supreme Court has held that the testimony of one eyewitness to
an element of the offense is sufficient evidence of that element.
Commonwealth v. Brown, 52 A.3d 1139, 1165 (Pa. 2012);
Commonwealth v. Duncan, 373 A.2d 1051, 1054 (Pa. 1977). Here, the
Commonwealth presented three eyewitnesses that each identified Appellant
as the perpetrator who repeatedly and forcefully kicked Mercado as she laid
on the ground. See generally N.T., 1/14/14, at 7, 42, 75-76. Based on
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these considerations, Appellant is not entitled to relief on this issue. 6 See
Patterson, supra; Diamond, supra.
We next address Appellant’s first issue, where he avers that the trial
court erred when it refused the jury’s request to review a prior written
statement by Officer Correa. Appellant’s Brief at 26. The Commonwealth
counters that the trial court did not err, as allowing the jury to have only this
statement with it during deliberations would have placed undue emphasis on
Officer Correa’s written statement. Commonwealth’s Brief at 14. We note
that we review a trial court’s decision pertaining to a jury’s request to have
exhibits during deliberations for an abuse of discretion. Commonwealth v.
Parker, 104 A.3d 17, 25 (Pa. Super. 2014) (citation omitted), appeal
denied, 117 A.3d 296 (Pa. 2015).
Pennsylvania Rule of Criminal Procedure 646 governs this issue
generally, and provides in relevant part as follows.
Rule 646. Material Permitted in Possession of
the Jury
(A) Upon retiring, the jury may take with it such
exhibits as the trial judge deems proper, except as
provided in paragraph (C).
(B) The trial judge may permit the members of the
jury to have for use during deliberations written
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6
Because we have concluded that the Commonwealth presented sufficient
evidence that Appellant was the principal perpetrator, we need not address
his argument that the Commonwealth did not present sufficient evidence to
convict him on an accomplice theory of liability.
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copies of the portion of the judge’s charge on the
elements of the offenses, lesser included offenses,
and any defense upon which the jury has been
instructed.
(1) If the judge permits the jury to have
written copies of the portion of the judge’s
charge on the elements of the offenses, lesser
included offenses, and any defense upon which
the jury has been instructed, the judge shall
provide that portion of the charge in its
entirety.
(2) The judge shall instruct the jury about the
use of the written charge. At a minimum, the
judge shall instruct the jurors that
(a) the entire charge, written and oral,
shall be given equal weight; and
(b) the jury may submit questions
regarding any portion of the charge.
(C) During deliberations, the jury shall not be
permitted to have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded
confession by the defendant;
(3) a copy of the information or indictment;
and
(4) except as provided in paragraph (B),
written jury instructions.
(D) The jurors shall be permitted to have their notes
for use during deliberations.
Pa.R.Crim.P. 646. In addition, this Court has held that a trial court may
refuse to permit the jury to have one exhibit in its possession during
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deliberations if it will cause the jury to place undue emphasis on that
singular piece of evidence above others. Commonwealth v. Taylor, 596
A.2d 222, 224 (Pa. Super. 1991), appeal denied, 602 A.2d 859 (Pa. 1992).
In Taylor, the defendant was convicted of various drug offenses and
the jury requested that a tape recorded conversation between Taylor and a
confidential informant be sent back so it could listen to it again. Id. The
trial court refused and we concluded that it was not an abuse of discretion.
Specifically, we agreed with the trial court that “the quality of the
reproduction was poor, and that he did not wish the jury to emphasize that
piece of evidence over the other evidence presented.” Id.; see also, e.g.,
Commonwealth v. Hall, 407 A.2d 1335, 1337 (Pa. Super. 1979) (stating
that the trial court did not abuse its discretion in deciding that the “re-
reading of the victim’s testimony was unnecessary and potentially prejudicial
to appellant because it might seemingly place undue emphasis on the
victim’s testimony[]”).
In the case sub judice, the trial court concluded that the jury’s request
should be denied based on the following reasoning.
[The trial] court deemed it inappropriate to send out
[Officer Correa’s statement] because it would have
unnecessarily highlighted that statement as no other
statements were provided to the jury during its
deliberations. [The trial] court denied the jury’s
request to prevent undue emphasis being placed on
that exhibit at the expense of other evidence
presented at trial. … During this trial the jury had the
opportunity to hear Officer Correa’s full testimony
and to view his demeanor as he testified. Only a
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portion of Officer Correa’s testimony involved the
content of his statement. Instead of sending that
statement out to the jury, [the trial] court instructed
the jurors to rely upon their own recollections as to
what Office Correa said and the circumstances under
which he said it during their deliberations.
Trial Court Opinion, 12/31/14, at 8-9.
After careful review, we conclude Appellant is not entitled to relief on
this issue. As we explained above, our cases state that undue emphasis is a
sufficient reason for the trial court to exercise its discretion to not send an
exhibit back to the jury. Taylor, supra; Hall, supra. The jurors’ original
request was for “[a]ll police reports, incident reports … arrest reports and
statements.” N.T., 1/16/14, at 57. The trial court concluded that the only
exhibit that was moved into evidence that did not contain any inadmissible
hearsay was Officer Correa’s statement. Id. at 62. The trial court did not
wish to overemphasize this one statement and de-emphasize other pieces of
evidence. The trial court was well within its discretion to do so. See
Taylor, supra; Hall, supra. Based on these considerations, we conclude
the trial court did not abuse its discretion in denying the jury’s request. See
Parker, supra.
In his second issue, Appellant avers that the trial court erred when it
denied his motion for extraordinary relief, alleging that the Commonwealth
committed a Brady violation when it did not disclose the record of
Appellant’s arrest which allegedly contained impeachment information
regarding Officer Harris’s testimony, specifically photographs that Officer
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Harris allegedly took of Appellant. Appellant’s Brief at 31. The
Commonwealth counters that it did not commit a Brady violation because
the hypothetical evidence in question does not exist, and if it did, it was
inculpatory. Commonwealth’s Brief at 18.
“Under Brady, the State violates a defendant’s right to due process if
it withholds evidence that is favorable to the defense and material to the
defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630
(2012) (citation omitted). “Thus, to establish a Brady violation, an
appellant must prove three elements: (1) the evidence at issue is favorable
to the accused, either because it is exculpatory or because it impeaches; (2)
the evidence was suppressed by the prosecution, either willfully or
inadvertently; and (3) prejudice ensued.” Commonwealth v. Weiss, 81
A.3d 767, 783 (Pa. 2013) (citation omitted).
Pursuant to Brady and its progeny, the
prosecutor has a duty to learn of all evidence that is
favorable to the accused which is known by others
acting on the government’s behalf in the case,
including the police. Kyles v. Whitley, 514 U.S.
419, 437 (1995). Pursuant to Kyles, “the
prosecutor’s Brady obligation clearly extends to
exculpatory evidence in the files of police agencies of
the same government bringing the prosecution.”
Commonwealth v. Burke, 781 A.2d 1136, 1142
([Pa.] 2001). Moreover, there is no Brady violation
when the defense has equal access to the allegedly
withheld evidence. See Commonwealth v. Spotz,
896 A.2d 1191, 1248 ([Pa.] 2006) (“It is well
established that no Brady violation occurs where the
parties had equal access to the information or if the
defendant knew or could have uncovered such
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evidence with reasonable diligence[]” (internal
citation omitted)).
Id. (parallel citations omitted).
After careful review, we conclude that Appellant is not entitled to
relief. Appellant has not shown that the disputed photographs ever existed,
such that they were withheld or suppressed by the Commonwealth. The
Commonwealth informed the trial court that neither its office nor the
Philadelphia Police Department were in possession of any photographs, other
than Appellant’s arrest photograph. N.T., 4/11/14, at 25-26. Nor were
there any evidence logs or other similar documents showing that such
photographs ever existed and then were lost. Id. We further note that
Appellant himself testified at trial that the police never took any photographs
of him at all, other than his arrest photograph. N.T., 1/15/14, at 129.
Succinctly, Appellant has not provided any indication that these photographs
exist, much less that the Commonwealth withheld or suppressed them. As a
result, we conclude the trial court did not err when it denied Appellant’s
motion for extraordinary relief.
In his fifth issue, Appellant argues that the jury’s verdict was against
the weight of the evidence. We begin by noting our standard of review
regarding weight of the evidence issues. “A claim alleging the verdict was
against the weight of the evidence is addressed to the discretion of the trial
court.” Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014)
(citation omitted). An argument that the jury’s verdict was against the
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weight of the evidence concedes that the evidence was sufficient to sustain
the convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa.
2013), cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our
Supreme Court has admonished that “[a] new trial should not be granted
because of a mere conflict in the testimony or because the judge on the
same facts would have arrived at a different conclusion.” Commonwealth
v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). Instead, “the
trial judge is to determine that notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.” Id. (internal quotation marks and
citation omitted). “[A] new trial should be awarded when the jury’s verdict
is so contrary to the evidence as to shock one’s sense of justice ….” Id.As an appellate court, it “is not [our role] to consider the underlying
question of whether the verdict is against the weight of the evidence.”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).
An argument that the jury’s verdict was against the weight of the evidence
remains “[o]ne of the least assailable reasons for granting … a new trial ….”
Id. (citation omitted). “Thus, only where the facts and inferences disclose a
palpable abuse of discretion will the denial of a motion for a new trial based
on the weight of the evidence be upset on appeal.” Id. (citation omitted;
emphasis in original).
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In this case, Appellant avers the jury’s verdict was against the weight
of the evidence because Officer Correa, Officer Harris, and Jones had been
drinking on the night of the incident, Jones used crack cocaine, and Officer
Correa’s trial testimony differed from his written statement. Appellant’s
Brief at 45. Appellant essentially argues the jury inaccurately weighed these
factors relative to Appellant’s testimony as well as other evidence. Id.Instantly, as noted above, the Commonwealth presented three
witnesses, Officers Correa and Harris, as well as Jones, all of whom
identified Appellant as assaulting Mercado on the night in question. N.T.,
1/14/14, at 6, 38, 75-76. Appellant in his brief, and at trial, highlighted
inconsistencies among the witnesses’ testimony as well as reasons why their
ability to recall events may have been impaired. See generally Appellant’s
Brief at 45. However, our cases are emphatically clear that as “an appellate
court [we] will not make [our] own assessment of the credibility of the
evidence.” Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super.
2013) (citation omitted). “The jury sat as the finder of facts in this case[,
and it] was in the best position to view the demeanor of the
Commonwealth’s witnesses and to assess each witness’ credibility.” Id. In
this case, the jury was free to find the Commonwealth’s witnesses’ trial
testimony credible, find Appellant’s testimony not credible, and resolve any
inconsistencies in the Commonwealth’s favor. See generally
Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014) (concluding
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the weight of the evidence claim could not prevail as “the jury resolved the
inconsistencies among the testimonies as it saw fit and reached a
verdict[]”). The jury was presented with Officer Correa, Officer Harris, and
Jones’ testimony and Appellant’s own testimony. The jury weighed all of the
testimony and ultimately concluded that the officers and Jones were credible
and Appellant was not credible. As an appellate court, we will not reweigh
the evidence and substitute our judgment for that of the fact-finder. Olsen,
supra; Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013)
(citation omitted). Based on these considerations, we conclude the trial
court did not commit a palpable abuse of discretion in deciding the jury’s
verdict was not against the weight of the evidence. See Morales, supra.
Finally, in his third issue on appeal, Appellant contends the trial court
abused its discretion in going outside the sentencing guidelines and imposing
the statutory maximum sentence for aggravated assault. Appellant’s Brief at
40. The Commonwealth counters that the record reveals the trial court
considered all the necessary factors and adequately explained its reasons for
the upward departure. Commonwealth’s Brief at 36.
At the outset, we note that Appellant’s arguments pertain to the
discretionary aspects of his sentence. It is axiomatic that in this
Commonwealth, “[t]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d
663, 666 (Pa. Super. 2014) (citation omitted). When an appellant raises an
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argument pertaining to the discretionary aspects of the sentence, this Court
considers such an argument to be a petition for permission to appeal.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n
[a]ppeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the
sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (internal quotation marks and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
[Pa.C.S.A.] § 9781(b).
Id.
In the case sub judice, Appellant filed a timely post-sentence motion
and notice of appeal. In addition, Appellant has included a Rule 2119(f)
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statement in his brief. We therefore proceed to determine whether
Appellant has raised a substantial question for our review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75(Pa. 2013). “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.” Id.(citations omitted). “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa. Super. 2012).
Instantly, Appellant avers that the trial court erred at sentencing
because the imposition of the statutory maximum for aggravated assault
was “harsh and excessive” and the trial court gave “inadequate reasons … to
justify such a sentence.” Appellant’s Brief at 37. Appellant also argues that
the sentence is unreasonable because his co-defendant was sentenced to a
lesser term of three to seven years’ imprisonment by a different judge. Id.Finally, Appellant argues that the trial court did not take into account his
employment history or his family life. Id. at 38.
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We note that when a defendant claims that his sentence is excessive
because the trial court sentenced outside the guidelines and without
explanation, he or she has raised a substantial question for our review.
Commonwealth v. Tirado, 870 A.2d 362, 365-366 (Pa. Super. 2005)
(citations omitted). This Court has also held that a claim of disparate
sentencing treatment between co-defendants raises a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)
(citation omitted), appeal denied, 14 A.3d 825 (Pa. 2011). Finally, “an
excessive sentence claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question.”
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (citation omitted). As a result, we grant Appellant’s petition for
permission to appeal the discretionary aspects of his sentence, and proceed
to address the merits of his claims.
We begin with our well-settled standard of review.
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.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
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We initially recognize that “where the court imposes a sentence
outside the sentencing guidelines ... the court shall provide a
contemporaneous written statement of the reason or reasons for the
deviation from the guidelines.” Commonwealth v. Leatherby, 116 A.3d
73, 83 (Pa. Super. 2015); accord 42 Pa.C.S.A. § 9721(b). “The court is not
required to parrot the words of the Sentencing Code, stating every factor
that must be considered under Section 9721(b) …. [T]he record as a whole
must reflect due consideration by the court of the statutory considerations.”
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014)
(citation omitted; brackets in original), appeal denied, 95 A.3d 275 (Pa.
2014).
[Section 9721(b)] requires a trial judge who intends
to sentence a defendant outside of the guidelines to
demonstrate on the record, as a proper starting
point, [its] awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate
from the guidelines, if necessary, to fashion a
sentence which takes into account the protection of
the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates
to the impact on the life of the victim and the
community, so long as [it] also states of record the
factual basis and specific reasons which compelled
[it] to deviate from the guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation
omitted), appeal denied, 64 A.3d 640 (Pa. 2013).
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In this case, the trial court gave the following statement on the record
during sentencing as to why it concluded an upward departure from the
guidelines was appropriate in this case.
I can tell all of you without fear of
contradiction that this was an exceedingly difficult
case to preside over. When the complainant came
out, she was unable to recall any of the occurrences
that led to her being, for a long period of time,
essentially incapacitated.
This was like something out of a horror movie.
Two young men out having a good time, and they
decide to go into another area of the city to pick up a
prostitute.
And what struck me about [Appellant]’s
testimony, and he was a very good witness, is on the
one hand his willingness to put most of the blame on
his co-defendant, but he did say that once the victim
was on the ground and having been kicked
repeatedly, in his words, by his co-defendant, he, in
an effort to intervene, did not call the authorities or
pull the aggressor from the victim. He went over
and got down on her and smacked her about the
face in order, in his words, to stop her from crying
out, because the more she did, the more [his co-
defendant] would kick her.
It was very difficult to listen to his testimony,
very difficult to listen to the account through the
medical records of what this young woman suffered
as a result of this beating. This was essentially a
failed homicide, two men beating up on a woman for
reasons only they are privy to.
I have read the reports, including the mental
health evaluation, and the presentence investigation,
with great care, and I can tell you that the person
documented in the various letters that [Appellant]
was so kind to submit to me is not the person who is
described in [the Commonwealth]’s sentencing
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memorandum, nor was he the person that the jury
convicted of this heinous crime.
We are a society of drinkers, and despite the
efforts of Mothers Against Drunk Driving and other
groups, we remain very forgiving of people who
imbibe and then voluntarily put themselves behind
the wheel of a ton or 2 tons of steel and propel it
throughout the society’s streets, highways, and the
like. That’s akin to, in my humble opinion, firing a
gun in a crowd. [Appellant] has done that twice.
I’m mindful of the fact that he was given ARD in one
instance. I’m mindful of the fact that this is his first
felony conviction.
And what is so difficult for the [trial c]ourt is
looking at who [Appellant] is on paper and who the
jury found him to be. This is a man who’s
supporting two children. He went to college and is
employed. Yet the person [the Commonwealth]
presents to the [trial c]ourt is a very different person
who goes out and drinks and engages in conduct
that is totally inconsistent with what we’d expect of a
well-educated person in a civil society.
I have an obligation to impose the least
amount of incarceration consistent with [Appellant]’s
need for rehabilitation and society’s need for
protection. I’m mindful of the Superior Court’s and
the Supreme Court’s as well as the legislative
imposition on me of my duty. I take into
consideration that which has been imposed on me by
our appellate courts as well as our legislature. I
reviewed and considered all of the reports.
I’ve given due consideration to [Appellant]’s
statements to the [trial] court, but I remain
convinced that he was then and he is now a
dangerous man. Although I am more often than not
given to following the guidelines, this is a case
wherein an upward departure is not simply called for
but required.
N.T., 4/11/14, at 52-56.
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In our view, the trial court’s statement is wholly adequate to support
its sentence. At the beginning of the sentencing proceeding, the trial court
reviewed the guidelines with both parties, and they agreed on what the
standard ranges would be. N.T., 4/11/14, at 31. Also, the trial court
explicitly stated on the record that it had reviewed the presentence report
(PSI). Id. at 54. This Court has consistently stated that where “the
sentencing court had the benefit of a [PSI], we can assume the sentencing
court was aware of relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal
quotation marks and citation omitted), appeal denied, 25 A.3d 328 (Pa.
2011), cert. denied, Rhoades v. Pennsylvania, 132 S. Ct. 1746 (2012).
However, the trial court believed that based on the seriousness of the
offense, the victim’s injuries, and its conclusion that Appellant was a danger
to society, an upward departure from the guidelines was warranted in this
case. Therefore, the trial court complied with Section 9721(b) and
Appellant’s argument to the contrary lacks merit.
We next turn to Appellant’s argument that the trial court abused its
discretion in sentencing Appellant because his co-defendant received a
substantially shorter sentence.
The law is well-settled that co-defendants are not
required to receive identical sentences. Generally, a
sentencing court must indicate the reasons for
differences in sentences between co-defendants.
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This is not to say, however, that the court must
specifically refer to the sentence of a co-defendant.
Rather, it requires that when there is a disparity
between co-defendants’ sentences, a sentencing
court must give reasons particular to each defendant
explaining why they received their individual
sentences.
Mastromarino, supra. In this case, Appellant’s co-defendant received a
sentence of three to seven years’ imprisonment, but he was tried and
sentenced before a different judge. When this occurs, our cases have held
that the trial court is not legally required to explain why there is a disparity
between sentences. Commonwealth v. Szczesniewski, 591 A.2d 1055,
1057 (Pa. Super. 1991), appeal denied, 608 A.2d 29 (Pa. 1992);
Commonwealth v. Fuller, 579 A.2d 879, 887 (Pa. Super. 1990), appeal
denied, 588 A.2d 508 (Pa. 1991). As Appellant and his co-defendant were
not tried nor sentenced before the same judge, the trial court was not
required to explain the disparity in order to impose a higher sentence upon
Appellant. Id. As such, this argument does not entitle Appellant to relief.
Finally, to the extent Appellant argues that the trial court failed to take
into account his employment history or his family life, as noted above, the
trial court explicitly mentioned both of those factors during sentencing. See
N.T., 4/11/14, at 55 (describing Appellant as, “a man who’s supporting two
children[,] … went to college and is employed[]”). In addition, as noted
above, the trial court had the benefit of the PSI; hence, we presume that it
was aware of these mitigating factors in fashioning its sentence. See
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Rhoades, supra. Based on all of the aforementioned considerations, we
conclude Appellant’s sentencing arguments lack merit and the trial court did
not abuse its discretion in sentencing Appellant outside of the guidelines.
See Raven, supra.
Based on the foregoing, we conclude all of Appellant’s issues are
devoid of merit. Accordingly, the trial court’s April 11, 2014 judgment of
sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
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