Com. v. Cedeno, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
JOSEPH CEDENO,
Appellant No. 1458 MDA 2015
Appeal from the Judgment of Sentence May 15, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001061-2014
BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED APRIL 21, 2016
Appellant, Joseph Cedeno, appeals from the judgment of sentence
entered on May 15, 2015, in the Lackawanna County Court of Common
Pleas. We affirm.
The trial court set forth the relevant factual background of this case as
follows:
Just before 10:30 a.m. on April 1, 2014, Lackawanna
County Prison inmate Jacob Huff was laying on the top bed rack
inside his cell, S-14. (Notes of Testimony (“N.T.”), 12-13:24-1,
2/18/15). As Huff prepared to go back to sleep, fellow inmate
[Appellant] entered the cell and began arguing with Huff’s
cellmate about money. (Id. at 12- 13:24-1; 14:4; 15:24 -25).1
[Appellant], known to Huff as a “murderer,” also told Huff to “get
out.” (Id. at 14:12 -14; 13:2). When Huff did not, [Appellant]
punched him in the stomach, told him again to “get out,” and
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*
Former Justice specially assigned to the Superior Court.
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then began punching Huff successively. (Id. at 13:3-6). Huff, still
on the top bed rack, put his foot out to try to stop [Appellant]
and create distance between the two, but [Appellant] grabbed
Huff’s foot and pulled him from the top bed rack onto the floor.
(Id. at 13:7 -9).
1
Huff’s testimony regarding [Appellant] entering cell
S-14 was corroborated by Intelligence Captain
Lackawanna County Prison Robert Maguire, who
testified that video footage from the day of the
assault shows [Appellant] walking out of his own cell,
S-11, and into Huff’s cell, S-14. N.T., 79:5-16,
02/17/15.
When Huff got to his feet, he told [Appellant] that he
“didn’t want to fight.” (Id. at 13:10-11). Nevertheless,
[Appellant] put Huff in a headlock. (Id. at 13:10-11). In
response, Huff “put [his] hands up” and continued to tell
[Appellant] that he “didn’t want to fight.” (Id. at 13:11-14).
[Appellant], though, just “squeezed harder and harder.” (Id.)
Defending himself, Huff “undid” [Appellant’s] hands to undo his
grip. (Id. at 17:16). When Huff stood up, however, [Appellant]
hit him in the face. (Id. at 13:14-17; 17:16-19). A fist fight then
ensued. (Id.)
The two inmates continued fighting until [Appellant] fell
into a desk inside the cell. (Id. at 17:20-21). Huff then walked
toward the cell door because, as he said at trial, he still “didn’t
want to fight.” (Id. at 17:20-23). When [Appellant] stood up, he
grabbed something from his waistband and told Huff that “he
was playing before” and “that he was gonna air Huff out.” (Id. at
23:23-24; 24:19-22). [Appellant] then walked over to Huff,
object in hand, and “stabbed him twice in the back” and once in
“the back of his neck.” (Id. at 24:23-25; 29:14-15). He then hit
Huff a few times in the face. (Id. at 25:1). Defending himself
again, Huff grabbed [Appellant] and put him in a headlock. (Id.
at 25:1-3). With his head near Huff’s midsection, [Appellant] bit
Huff on the side of his body. (Id. at 25:3-4). By that point, the
prison had called for a “lock in,” so Huff, his cellmate, and
another inmate pushed [Appellant] out of cell S-14. (Id. at 25:5
-8).
At approximately 10:30 a.m., Correctional Officer Robert
Mazzino noticed that S-14’s call button had been pushed from
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inside the cell. (N.T., 38:24-25, 02/17/15). When he arrived to
S-14, Huff, now alone with his cellmate, told Officer Mazzino that
[Appellant] had “shanked” him. (Id. at 39:2-3, 9). While doing
so, Huff pointed out a pen that was broken in half and laying on
the floor. (Id. at 45:20 -23). Officer Mazzino noticed that half of
the pen was normal while the other half was wrapped in white
linen. (Id. at 46:1-3). He further noticed that Huff had sustained
visible injuries, including three puncture wounds on his upper to
mid back and a bite mark on his side. (Id. at 45:9-11). While
still in the cell, Officer Mazzino handed the broken, linen-
wrapped pen to Lackawanna County Prison Intelligence Captain
Robert Maguire, who was also called to S-14 shortly after the
fight and had just arrived. (Id. at 81:22; 24-25). At trial,
Captain Maguire testified that the pen was actually wrapped with
both linen and cardboard. (Id. at 82:5-6).
Shortly thereafter, Officer Mazzino and several other
officers found [Appellant] in his own cell, S-11, and placed him
in handcuffs. (Id. at 54:18-19). Registered nurse and prison
health care unit administrator Kenneth McCawley was called to
Huff’s cell, where he treated Huff for three puncture wounds—
two in the midthoracic and upper posterior ribcage and one in
the left posterior neck—and a bite on the left lateral ribcage.
(N.T., 60:8-9; 15-16, 02/18/15). Huff was further treated with
first aid, wound cleaning, a tetanus toxoid, an antibiotic for
seven days, pain management Motrin twice a day, and daily
treatment until he was healed. Id. at 55:20-25.
Memorandum and Order, 8/21/15, at 1-3.
Appellant was charged with multiple crimes in connection the
aforementioned attack. On February 18, 2015, a jury found Appellant guilty
of aggravated assault (attempt to cause serious bodily injury), aggravated
assault with a deadly weapon, assault by prisoner, terroristic threats, simple
assault (attempt to cause bodily injury), and recklessly endangering another
person (“REAP”). Additionally, the trial court convicted Appellant of the
summary offense of harassment. On May 15, 2015, the trial court
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sentenced Appellant as follows: 108 to 240 months for aggravated assault
(attempt to cause serious bodily injury); forty-five months to eight years for
aggravated assault with a deadly weapon; forty-two months to eight years
for assault by prisoner; and twenty-two months to four years for terroristic
threats. The sentences were ordered to be served consecutively. 1 This
resulted in an aggregate minimum sentence of eighteen years and one
month to a maximum term of forty years of incarceration.
Appellant filed a timely post-sentence on May 26, 2015,2 and the trial
court denied Appellant’s motion in an order filed on August 21, 2015. This
timely appeal followed. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
On appeal, Appellant presents six issues for this Court’s consideration:
A. Whether there was sufficient evidence to support the verdicts
of aggravated assault with a deadly weapon, aggravated assault
with attempted serious bodily injury, and assault by a prisoner?
B. Whether the verdicts of aggravated assault with a deadly
weapon, aggravated assault with attempted serious bodily injury
and assault by a prisoner were against the weight of the
evidence?
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1
The convictions for simple assault and REAP merged with aggravated
assault (attempt to cause serious bodily injury) for sentencing purposes, and
the trial court imposed no further penalty for harassment.
2
The timeliness of Appellant’s post-sentence motion will be discussed in
greater detail below.
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C. Whether the trial court erred in granting the Commonwealth’s
Motion in Limine to introduce evidence that the Appellant was
incarcerated for a homicide conviction?
D. Whether the trial court erred when it failed to merge the
sentences on the aggravated assault-attempt to cause bodily
injury with assault by a prisoner?
E. Whether the trial court erred when it failed to impose
concurrent sentences on the aggravated assault, the assault by a
prisoner, and terroristic threats charges?
F. Whether the trial court imposed harsh, unreasonable and
excessive sentences due to, inter alia, the fact that the injuries
were minor?
Appellant’s Brief at 4.
In his first issue, Appellant claims that the evidence was insufficient to
prove his guilt beyond a reasonable doubt on the aggravated assault
(attempt to cause serious bodily injury), aggravated assault with a deadly
weapon, and assault by prisoner charges. However, we are constrained to
point out that Appellant failed to state which element or elements of these
crimes were not proven by sufficient evidence.
This Court has addressed this issue as follows:
If Appellant wants to preserve a claim that the
evidence was insufficient, then the 1925(b)
statement needs to specify the element or elements
upon which the evidence was insufficient. This Court
can then analyze the element or elements on appeal.
Where a 1925(b) statement does not specify the
allegedly unproven elements, ... the sufficiency issue
is waived on appeal.
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.
2008), quoting Commonwealth v. Flores, 921 A.2d 517, 522-
523 (Pa. Super. 2007).
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Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015).
Here, Appellant merely asserted that the evidence was insufficient to
support his convictions for aggravated assault (attempt to cause serious
bodily injury), aggravated assault with a deadly weapon, and assault by
prisoner. Pa.R.A.P. 1925(b) Statement, 9/14/14, at 1. We conclude that
Appellant’s boilerplate statement failed to specify which element or elements
were not established with sufficient evidence. Tyack, 128 A.3d 254, 260.
Accordingly, we deem this claim waived. Id.
However, had Appellant properly presented this issue, we would
conclude that he is entitled to no relief. The standard for evaluating
sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is 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[’s]. 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
finder 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.
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Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
As noted, Appellant argues that the evidence was insufficient to
establish aggravated assault (attempt to cause serious bodily injury),
aggravated assault with a deadly weapon, and assault by prisoner. Those
crimes are defined in the Crimes Code as follows:
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;
* * *
(4) attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly
weapon[.]
18 Pa.C.S. § 2702(a)(1) and (4).
Assault by prisoner
(a) Offense defined.--A person who is confined in or
committed to any local or county detention facility, jail or prison
or any State penal or correctional institution or other State penal
or correctional facility located in this Commonwealth is guilty of
a felony of the second degree if he, while so confined or
committed or while undergoing transportation to or from such an
institution or facility in or to which he was confined or committed
intentionally or knowingly, commits an assault upon another
with a deadly weapon or instrument, or by any means or
force likely to produce serious bodily injury. A person is
guilty of this offense if he intentionally or knowingly causes
another to come into contact with blood, seminal fluid, saliva,
urine or feces by throwing, tossing, spitting or expelling such
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fluid or material when, at the time of the offense, the person
knew, had reason to know, should have known or believed such
fluid or material to have been obtained from an individual,
including the person charged under this section, infected by a
communicable disease, including, but not limited to, human
immunodeficiency virus (HIV) or hepatitis B.
18 Pa.C.S. § 2703(a) (emphasis added).
In the case at bar, the trial court comprehensively addressed the
elements of each of these crimes and Appellant’s challenges to the
sufficiency of the evidence underlying each conviction. If Appellant had
properly preserved these issues on appeal, we would conclude that the
evidence was sufficient to sustain his convictions, and we would do so on the
basis of the trial court’s thorough discussion. Memorandum and Order,
8/21/15, at 6-15.
Next, Appellant avers that the guilty verdicts on the charges of
aggravated assault (attempt to cause serious bodily injury), aggravated
assault with a deadly weapon, and assault by prisoner were against the
weight of the evidence. Before we may reach the merits this challenge, we
must determine whether Appellant properly preserved this claims on appeal.
Commonwealth v. Mikell, 968 A.2d 779, 780 (Pa. Super. 2009). “[T]he
date of imposition of the sentence is the date the sentencing court
pronounces the sentence.” Commonwealth v. Green, 862 A.2d 613, 621
(Pa. Super. 2004). “This Court has held that the date of imposition of
sentence in open court, and not the date on which the sentence is docketed,
is the reference point for computing the time for filing post-sentence
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motions.” Commonwealth v. Nahavandian, 954 A.2d 625, 630 (Pa.
Super. 2008).
Pennsylvania Rule of Criminal Procedure 607 provides as follows:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a
new trial:
(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before sentencing;
or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A).
Here, Appellant challenged the weight of the evidence in a post-
sentence motion filed on May 26, 2015. As noted above, Appellant’s
judgment of sentence was entered on May 15, 2015, and therefore, in order
to be timely filed, Appellant’s post-sentence motion needed to be filed by
May 25, 2015. Pa.R.Crim.P. 720(A)(1). Due to the Memorial Day holiday,
however, the Lackawanna Court of Common Pleas was closed on Monday,
May 25, 2015. For computations of time, whenever the last day of any such
period falls on a Saturday, Sunday, or a legal holiday, that day is omitted
from the computation. 1 Pa.C.S. § 1908; Green, 862 A.2d at 618. The
next day the trial court was open was Tuesday, May 26, 2015. Accordingly,
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Appellant’s post-sentence motion was timely filed and his challenge to the
weight of the evidence was preserved.3
With respect to a weight claim, we apply the following standards:
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. 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. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were
a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of 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.
Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (citations,
footnote, and internal quotation marks omitted). “An appellate court cannot
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3
We are constrained to note that Appellant’s post-sentence motion was
never entered on the docket. However, the post-sentence motion is
included in the certified record and bears a Clerk of Judicial Records Criminal
Division date stamp of May 26, 2015. Moreover, the Commonwealth filed a
response to the motion, and the trial court addressed the issues raised in the
post-sentence motion in its August 21, 2015 Memorandum and Order. Thus,
we are satisfied that the motion was timely filed, and we conclude that its
absence from the docket entries was an oversight. See Commonwealth v.
Carter, 122 A.3d 388, 391 (Pa. Super. 2015) (stating that we will regard as
done that which ought to have been done and treating a filing as timely)
(citing Commonwealth v. Howard, 659 A.2d 1018, 1021 n.12 (Pa. Super.
1995)). Upon the return of the certified record to the trial court, we direct
the docket entries to be corrected to reflect that Appellant’s post-sentence
motion was filed on May 26, 2015.
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substitute its judgment for that of the finder of fact. Thus, we may only
reverse the lower court’s verdict if it is so contrary to the evidence as to
shock one’s sense of justice.” Commonwealth v. Serrano, 61 A.3d 279,
289 (Pa. Super. 2013) (citation omitted).
In addressing Appellant’s weight of the evidence claims, the trial court
provided the following analysis:
Here, the jury, as the trier of fact, was “free to believe all,
part or none of the evidence.” Commonwealth v. Chine, 40 A.3d
1239, 1244 (Pa. Super. 2012) (citations omitted), appeal denied,
63 A.3d 773 (Pa. 2013). Simply put, we find that the evidence of
[Appellant’s] guilt on the charges he now challenges was neither
tenuous nor vague such that that the jury’s guilty verdicts shock
our conscience. The direct and circumstantial evidence … reflects
that [Appellant], a prisoner, initiated and continued a fist fight
with Huff, a fellow inmate, then escalated that fight when, during
a break in the altercation, he removed from his waistband a
previously concealed pen with a white linen and cardboard
handle, verbally threatened Huff’s life, walked over to him, and
stabbed him repeatedly in the neck and back. While the defense
suggested, via cross-examination and argument, that the pen
was not a deadly weapon capable of seriously injuring Huff and
that [Appellant], at no point, intended to seriously injure Huff,
the jury was empowered to disbelieve these suggestions and
accept the Commonwealth’s evidence. See id. at 1244. Given
[Appellant’s] failure to demonstrate that his guilty verdicts were
against the weight of the evidence, his Motion for a New Trial on
this ground will be denied.
Memorandum and Order, 8/21/15, at 16.
We agree. The Commonwealth introduced ample evidence of
Appellant’s culpability with regard to the challenged convictions, and the jury
was free to weigh the evidence as it did. We cannot conclude that the trial
court abused its discretion by denying Appellant’s weight challenge, and the
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verdict does not shock our sense of justice. Widmer, 744 A.2d at 751-752;
Serrano, 61 A.3d at 289.
Next, Appellant claims the trial court erred in granting the
Commonwealth’s motion in limine to introduce evidence that Appellant was
incarcerated for a homicide where he stabbed the victim. Appellant claims
that this evidence was more prejudicial than probative and should not have
been admitted under Pa.R.E. 404(b).
We review a trial court’s decision to grant or deny a motion in limine
under an abuse of discretion standard. Commonwealth v. Reese, 31 A.3d
708, 715 (Pa. Super. 2011). Moreover, we point out that the admissibility of
evidence is within the sound discretion of the trial court and will be reversed
only upon an abuse of that discretion. Id. “Admissibility depends on
relevance and probative value. Evidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at issue more or
less probable or supports a reasonable inference or presumption regarding a
material fact.” Id. (citation omitted).
Pa.R.E. 404(b) provides in relevant part as follows:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person’s
character in order to show that on a particular
occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible
for another purpose, such as proving motive,
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opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. In a
criminal case this evidence is admissible only if the
probative value of the evidence outweighs its
potential for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
As noted above, an element of assault by prisoner requires proof that
the defendant was incarcerated at the time of the offense. 18 Pa.C.S. §
2703(a). Here, in the motion in limine, the Commonwealth asserted that
Appellant was incarcerated due to charges relating to a stabbing death.
Motion in Limine, 2/11/15, at 1. The Commonwealth claimed that
Appellant’s prior act of stabbing his victim was probative as to motive in the
instant case. Id. at 2. At the time of the instant stabbing, Appellant was
incarcerated awaiting trial on a murder charge. While in prison with Huff,
Appellant shared the details of this earlier stabbing. One month after
Appellant attacked Huff, Huff testified against Appellant at Appellant’s
murder trial.
As noted above, during the instant attack, Appellant told Huff he was
“going to air him out.” N.T., Trial, 2/18/15, at 26. Huff testified that he
believed this to mean that Appellant would stab him, because Huff was
aware that Appellant had stabbed someone else leading to his incarceration.
Id. at 27. The Commonwealth’s theory of the case was that Appellant was
“either seeking revenge for Mr. Huff’s expression of willingness to testify
against Appellant or attempting to prevent Appellant from testifying.”
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Commonwealth’s Brief at 21. Thus, we discern no abuse of discretion in the
trial court’s conclusion to admit the evidence of the earlier stabbing. The
Commonwealth’s theory was that Appellant stabbed Huff to prevent his
testimony. The prior stabbing made the Commonwealth’s theory more
probable than it would have been without that evidence, and the probative
value of this evidence outweighs the prejudice to Appellant.
Next, Appellant alleges that the trial court erred when it failed to
merge the sentences for aggravated assault with a deadly weapon with
assault by prisoner. We disagree.
Merger of offenses is discussed in section 9765 of the Sentencing
Code, which provides as follows:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765. “Accordingly, merger is appropriate only when two
distinct criteria are satisfied: (1) the crimes arise from a single criminal act;
and (2) all of the statutory elements of one of the offenses are included
within the statutory elements of the other.” Commonwealth v. Raven, 97
A.3d 1244, 1249 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa.
2014).
As noted above, aggravated assault with a deadly weapon is defined
as follows: “A person is guilty of aggravated assault if he … attempts to
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cause or intentionally or knowingly causes bodily injury to another with a
deadly weapon[.]” 18 Pa.C.S. § 2702(a)(4). The crime of assault by
prisoner occurs when “a person who is confined in or committed to any local
or county detention facility, jail or prison or any State penal or correctional
institution or other State penal or correctional facility located in this
Commonwealth … intentionally or knowingly, commits an assault upon
another with a deadly weapon[.]” 18 Pa.C.S. § 2703(a).
As can be seen in the definitions of these crimes, each contains an
element the other does not. Assault by prisoner requires a defendant to be
a prisoner, but aggravated assault with a deadly weapon does not.
Moreover, aggravated assault with a deadly weapon can be established with
an attempt, but assault by prisoner requires a defendant to actually commit
the assault. Accordingly, these crimes do not merge. Raven, 97 A.3d at
1249.
Next, Appellant avers that the trial court erred when it failed to impose
concurrent sentences on the aggravated assault, assault by prisoner, and
terroristic threats charges. The decision to impose consecutive rather than
concurrent sentences is left to the discretion of the sentencing court.
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).
Accordingly, Appellant is challenging a discretionary aspect of his sentence.
It is well settled that a challenge to the discretionary aspects of a
sentence is a petition for permission to appeal, as the right to pursue such a
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claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597, 599
(Pa. Super. 2014). Before this Court may review the merits of a challenge
to the discretionary aspects of a sentence, we must engage in the following
four-pronged analysis:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
Appellant has met the first three parts of the four-prong test:
Appellant filed a timely appeal; Appellant preserved the issues in a post-
sentence motion; and Appellant included a statement pursuant to
Pa.R.A.P. 2119(f) in his brief.4 Thus, we next assess whether Appellant has
raised a substantial question with respect to the issues he raised.
A determination as to whether a substantial question exists is made on
a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.
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4
While Appellant included a Pa.R.A.P. 2119(f) statement, Appellant’s Brief
at 6, the statement is deficient because it fails to articulate how his sentence
violates a particular provision of the Sentencing Code or is contrary to the
fundamental norms underlying the sentencing process. Commonwealth v.
Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013). However, because the
Commonwealth has not objected to this deficiency, and because appellate
review is not hampered, we decline to find waiver. Id.
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2000). This Court will grant the appeal “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. at
912-913.
In his brief, Appellant presents a boilerplate claim that the trial court
should have imposed concurrent sentences for aggravated assault, assault
by prisoner, and terroristic threats. Appellant’s Brief at 29.
Long standing precedent of this Court 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. A challenge to the imposition of consecutive
rather than concurrent sentences does not present a substantial
question regarding the discretionary aspects of sentence. We see
no reason why a defendant should be afforded a volume
discount for his crimes by having all sentences run concurrently.
Zirkle, 107 A.3d at 133 (quotation marks and some citations omitted).
“To make it clear, a defendant may raise a substantial question where
he receives consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines would be
clearly unreasonable, resulting in an excessive sentence; however, a bald
claim of excessiveness due to the consecutive nature of a sentence will not
raise a substantial question.” Dodge, 77 A.3d at 1270. Herein, Appellant
presents no argument or citation to relevant authority on this issue.
Therefore, we conclude that he has failed to raise a substantial question.
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In his final issue, Appellant raises an additional challenge to the
discretionary aspects of his sentence. Appellant avers that the aggregate
sentence was manifestly excessive in light of the fact that Mr. Huff’s injuries
were minor. Appellant’s Brief at 29. He claims that while the sentences
imposed were within the standard range of the Sentencing Guidelines, the
application of the Guidelines in the instant case was clearly unreasonable.
Id.
We conclude that this issue suffers from the same deficiencies as
Appellant’s first challenge to the discretionary aspects of his sentence; it is
an undeveloped and bald challenge to the consecutive nature of his
sentences. Accordingly, to the extent that Appellant purports to challenge
the aggregated sentence due to the consecutive nature of the sentences
imposed, he has failed to raise a substantial question. Dodge, 77 A.3d at
1270. The remaining argument is that the sentence was excessive when
compared to the injuries Mr. Huff suffered. We construe this as a claim that
the trial court failed to consider all relevant factors when it imposed its
sentence.
“An allegation that the sentencing court failed to consider or did not
adequately consider facts of record is effectively a request for this court to
substitute its judgment for that of the lower court.” Commonwealth v.
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J-S27009-16
Montalvo, 641 A.2d 1176, 1186 (Pa. Super. 1994). Such a claim fails to
present a substantial question.5 Id.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
____________________________________________
5
Assuming for the sake of argument that we were to address Appellant’s
claim that the trial court failed to consider all relevant factors, we would
conclude that the argument was meritless and that the trial court did not
abuse its discretion in sentencing Appellant in the instant matter. “Where
the sentencing judge had the benefit of a presentence investigation report, it
will be presumed that he or she was aware of the relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Clarke, 70 A.3d
1281, 1287 (Pa. Super. 2013) (citation omitted).
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