Com. v. Bennett, J. ( 2023 )

J-S25019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN BENNETT :
:
Appellant : No. 198 EDA 2022
Appeal from the Judgment of Sentence Entered May 18, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0005523-2019
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 8, 2023
Jonathan Bennett (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of attempted murder, aggravated
assault, simple assault, and persons not to possess firearms.1 We affirm.
The trial court detailed the underlying facts:
On or around March 5, 2019, Elijah Joseph (hereinafter “Mr.
Joseph” [or “the victim”]) moved into the second-floor apartment
[(the apartment)] located at 5918 N. Marvine Street in the [C]ity
and [C]ounty of Philadelphia. Notes of Testimony (hereinafter
“N.T.”), 2/16/21, at 15-16. Mr. Joseph rented a bedroom, which
included a lock on the bedroom door, from the individual currently
residing in the apartment. Id. Said individual was identified as
Whitney Allen (hereinafter “Ms. Allen”). Id. On the morning of
March 12, 2019, a verbal altercation occurred between Mr. Joseph
and Ms. Allen. Id. at 17-19. Mr. Joseph responded by offering to
vacate the apartment on the condition that the one hundred fifty
(150) dollars he paid as rent be refunded. Id. Ms. Allen agreed
to this condition and told Mr. Joseph that she would retrieve the
____________________________________________
1 18 Pa.C.S.A. §§ 901(a) and 2502(a), 2702(a), 2701(a), 6105(a)(1).
J-S25019-23
rent money from her mother. Id. Following this discussion, Mr.
Joseph left the apartment. Id.
After Mr. Joseph left the apartment, Ms. Allen reported a
disturbance at the apartment to the police and Officer [Joseph]
Sugan responded to the call. Id. at 72-76. Officer Sugan testified
that upon his arrival at [the apartment], Ms. Allen informed him
that she was having an issue with a tenant and needed to know
how to evict said tenant. Id. More specifically, Ms. Allen
requested that Officer Sugan kick the tenant’s bedroom door
down. Id. Officer Sugan told Ms. Allen that he could not legally
comply with her request and explained that she would have to
evict the tenant through the court system. Id. Following this
interaction with Ms. Allen, Officer Sugan generated a police report
memorializing the encounter. Id.
At or around 8:00 P.M. on March 12, 2019, Mr. Joseph
encountered Ms. Allen’s mother, Angela Horn (hereinafter “Ms.
Horn”), and Appellant while walking near the … apartment. Id. at
20. Mr. Joseph briefly interacted with Ms. Horn, before continuing
his walk. Id.
At or around 10:00 P.M. on March 12, 2019, Mr. Joseph
returned to the … apartment to retrieve his Play Station [video
game console]. Id. at 20-32. Mr. Joseph began recording a video
on his cellphone shortly before he arrived at the apartment [(the
video)]. Id. [As we discuss below, the trial court permitted the
prosecution to play the video during direct examination of Mr.
Joseph, over the defense’s objection that the video is “protected
under … the Pennsylvania Wiretap law.”2 Id. at 22.] When Mr.
Joseph entered the apartment, Ms. Allen and her mother were
already inside. Id. [at 29-30.] Despite their presence, Mr. Joseph
walked from the entrance of the apartment to his locked bedroom
door. Id. After reaching the door to his bedroom, Mr. Joseph
observed Appellant enter the apartment holding a gun. Id. [at
31.] About five seconds after Appellant entered the apartment,
Appellant fired the gun, hitting Mr. Joseph in the right thigh and
back. Id. at [32,] 33-36.
____________________________________________
2 “In general, the Wiretap Act prohibits the interception, disclosure or use of
any wire, electronic or oral communication.” Commonwealth v. Byrd, 235
A.3d 311, 319 (Pa. 2020) (citation and quotation marks omitted); 18
Pa.C.S.A. § 5701 et seq.
-2-
J-S25019-23
Mr. Joseph testified that after he heard the initial gun shot,
he immediately turned away from Appellant to avoid getting shot
in the face or chest. Id. [at 35-36.] After Mr. Joseph was shot in
the right thigh and back, he fell to the ground and attempted to
“play dead” because he realized Appellant was “trying to kill” him.
Id. Mr. Joseph remained on the ground until he was alone inside
the apartment, at which point Mr. Joseph called 911. Id. at 37.
Mr. Joseph stated that he believed he was going to die after he
was shot. The police arrived shortly thereafter and transported
Mr. Joseph to Albert Einstein Medical Center. Id. at 38.
Detective [Anthony] Glaviano and his partner, Detective
Cahill, were assigned to investigate the incident. Id. at 76.
Detective Glaviano initially proceeded to Albert Einstein Medical
Center but was unable to interview Mr. Joseph because he was in
critical condition. Id. Later that night, a search warrant was
issued and executed inside [the apartment]. An iPhone belonging
to Mr. Joseph, two .45 caliber [fired cartridge casings,] and
various documents were recovered from the crime scene.
On March 13, 2019, Ms. Allen and Ms. Horn traveled to the
Northwest Detectives, where Ms. Allen provided a formal
statement detailing the events of the shooting. Id. at 85-87.
More specifically, Ms. Allen identified the shooter as [] Appellant
… and stated that [Appellant] was the longtime boyfriend of her
mother, Ms. Horn. Id. Furthermore, Ms. Allen explained that she
originally intended to offer Mr. Joseph one hundred fifty (150)
dollars to vacate the apartment on the night of March 12, 2019.
Id. However, Ms. Horn and Mr. Joseph began to argue, at which
point Appellant entered the apartment and shot Mr. Joseph twice
in the back without provocation. Id. After Mr. Joseph was shot,
Appellant ordered Ms. Allen and Ms. Horn to flee the premises.
Id. Ms. Allen also informed detectives that Ms. Horn had come to
Northwest Detectives with the intention of lying to detectives
about her involvement in the shooting. Id. Ms. Horn briefly spoke
with detectives but refused to give a formal statement and denied
that any shooting occurred at [the apartment]. Id.
The contents of said statements le[]d Detective Glaviano to
develop Appellant as a suspect in the shooting of Mr. Joseph. Id.
On March 14, 2019, Detective Glaviano and his partner returned
to Albert Einstein Medical Center, where Mr. Joseph was shown a
photo lineup that included a photo of Appellant. Id. at 88. Mr.
-3-
J-S25019-23
Joseph indicated that the third photo in the lineup was the
individual that shot him, stating “I recognize his face. I just don’t
remember seeing those tattoos.” Id. at 64-65. Mr. Joseph was
asked if he was confident in his identification, to which he
responded, “It looks like him. I’m pretty sure that’s the one that
shot me.” Id. at [59, 98]. Detective Glaviano testified that Mr.
Joseph immediately began to cry and shake when shown the
photo of Appellant. Id. [at 87-88.] After Mr. Joseph identified
Appellant as the individual [who] shot him, Detective Glaviano
took Mr. Joseph’s formal statement. Id.
Hospital records show that Mr. Joseph was treated at Albert
Einstein Medical Center for multiple gunshot wounds, which
resulted in a bullet wound to the right forearm, bullet wound to
the chest cavity, T5 closed fracture, T6 vertebral body fracture,
T7 vertebral body fracture, L3 spinal processes fracture, and L4
spinal processes fracture. Id. at 106-[]08. Upon Mr. Joseph’s
arrival at the hospital, his injuries were found to be operable, and
he underwent multiple surgeries. Id. Mr. Joseph was discharged
directly to Moss Rehab Center on or around March 22, 2019. Id.
Mr. Joseph is now a paraplegic due to the bullet fragments that
remain in his spinal cord. Id.
Trial Court Opinion, 5/25/22, at 2-5 (footnote added).
Following a non-jury trial on February 16, 2021, the trial court convicted
Appellant of the aforementioned crimes. The trial court deferred sentencing
for the preparation of a pre-sentence investigation report (PSI). On May 18,
2021, the trial court sentenced Appellant to an aggregate 25 – 50 years in
prison. That same day, Appellant timely filed a post-sentence motion (PSM)
claiming the verdicts were against the weight of the evidence, and the trial
court imposed a manifestly excessive sentence. Appellant’s PSM was denied
by operation of law on September 20, 2021. He did not appeal.
On October 23, 2021, Appellant filed a counseled petition pursuant to
the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant
-4-
J-S25019-23
sought reinstatement of his direct appeal rights nunc pro tunc, based on
defense counsel’s ineffectiveness for failing to file a requested direct appeal.
PCRA Petition, 10/23/21, ¶¶ 6-10. The court granted Appellant’s PCRA
petition on January 4, 2022, and reinstated his direct appeal rights nunc pro
tunc. This timely appeal followed. Appellant and the trial court have complied
with Pa.R.A.P. 1925.
Appellant presents four issues for review:
1. Did the trial court err in overruling defense counsel’s objection
to the admission of a recording that was inadmissible under 18
Pa.C.S. § 5703 and did not fall under any of the exceptions of
18 Pa.C.S. § 5704?
2. Did the trial court err in overruling defense counsel’s objection
to statements made in a recording as they constituted
inadmissible hearsay?
3. Did the trial court err by denying [Appellant’s] request for a
new trial as the weight of the evidence should have resulted in
an acquittal of all charges?
4. Was the sentence manifestly excessive and unreasonable?
Appellant’s Brief at 5.
Appellant first claims the trial court committed reversible error when it
overruled Appellant’s objection to admission of the video. Appellant contends
the video “was inadmissible pursuant to the Wiretap Act” and not subject to
any exception. Id. at 13.
Our “standard of review for a trial court’s evidentiary rulings is narrow.”
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation
omitted).
-5-
J-S25019-23
When we review a trial court’s ruling on admission of evidence,
we must acknowledge that decisions on admissibility are within
the sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In addition,
for a ruling on evidence to constitute reversible error, it must have
been harmful or prejudicial to the complaining party. An abuse of
discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence or the record,
discretion is abused.
Commonwealth v. Jackson, 283 A.3d 814, 817 (Pa. Super. 2022) (citation
omitted).
As noted above, the Wiretap Act prohibits the interception, disclosure or
use of any wire, electronic or oral communication, unless an exception applies.
Byrd, supra; 18 Pa.C.S.A. § 5703(1)–(3); see also 18 Pa.C.S.A. § 5721.1(a)
(providing generally, “no person shall disclose the contents of any wire,
electronic or oral communication, or evidence derived therefrom, in any
proceeding in any court….”). The Wiretap Act defines “oral communication”
as “oral communication uttered by a person possessing an expectation that
such communication is not subject to interception under circumstances
justifying such expectation.” 18 Pa.C.S.A. § 5702. Finally, a claimant alleging
a Wiretap Act violation bears the burden of establishing, inter alia, that the
claimant possessed a justifiable expectation that the communication would
not be intercepted. Agnew v. Dupler, 717 A.2d 519, 522 (Pa. 1998).
The Wiretap Act provides numerous exceptions to the general
prohibition announced in Byrd, supra, including an exception for
-6-
J-S25019-23
[a]ny victim … to intercept the contents of any wire, electronic or
oral communication, if that person is under a reasonable suspicion
that the intercepted party is committing, about to commit or has
committed a crime of violence and there is reason to believe that
evidence of the crime of violence may be obtained from the
interception.
18 Pa.C.S.A. § 5704(17). The Wiretap Act defines “crime of violence” by
listing numerous offenses under the Crimes Code. Id. § 5702 (including, inter
alia, aggravated assault).
Instantly, Appellant’s counsel argued at trial that the exception at Section
5704(17) was inapplicable:
One of the exceptions is crimes of violence, which if the individual
believes that they’ll be recording a crime of violence, obviously, you
should allow that [evidence]. But in a situation where the [victim]
testified that he thought [a person] was going to be lying[,] that
will not [fall] under the exception.
N.T., 2/16/21, at 23. Appellant’s counsel referenced Mr. Joseph’s testimony
on direct examination:
Just before I got to the [apartment,] I started recording, because
I felt [Ms. Allen] was going to … call the cops or say I threatened
her or something. So I just started recording.
Id. at 20. The trial court overruled Appellant’s objection, id. at 24, and
permitted the prosecution to play the video depicting the shooting. See id.
at 24-38.
Appellant argues the exception at Section 5704(17) is inapplicable
because Mr. Joseph’s trial testimony purportedly “revealed that the [video]
recording was made not to capture evidence of a violent crime, but rather to
dispute accusations that [Ms.] Allen could make when [Appellant] entered the
-7-
J-S25019-23
[apartment].” Appellant’s Brief at 14 (citing Mr. Joseph’s testimony regarding
his motive when he began recording the video); see also N.T., 2/16/21, at
20.
Contrary to Appellant, the Commonwealth argues:
[T]he evidence at issue does not meet the definition of “oral
communication” protected by the [Wiretap Act.] Here, [Appellant]
had no justifiable expectation that his communications would not
be subject to interception. He was not in his own home during
the recorded incident. He was in [Mr. Joseph’s] home.
Commonwealth Brief at 9; see also 18 Pa.C.S.A. § 5702, supra (defining
“oral communication”). In the alternative, the Commonwealth states:
“[A]ssuming arguendo that this was an interception of protected oral
communications—it would fall under the violent crime exception” at 18
Pa.C.S.A. § 5704(17). Commonwealth Brief at 10. We agree.
The trial court opined that it did not err in overruling Appellant’s
objection to the video’s admission. The court explains that the exception at
Section 5704(17) applies, because
the Commonwealth established that Mr. Joseph, the victim, was
under a reasonable suspicion that Ms. Allen, Ms. Horn, and
Appellant were about to commit a crime of violence against him
and had reason to believe that evidence of the crime might be
obtained from recording his interaction with said individuals.
Preliminarily, the term “crime of violence” includes attempt to
commit murder and aggravated assault. 18 Pa.C.S. § 5702.
Further, Mr. Joseph was acting as a private citizen, and was not
acting as an agent of the Commonwealth or at the discretion of
law enforcement. 18 Pa.C.S. § 5704. Mr. Joseph began making
the [video] recording after [previously] having an unrecorded
altercation with Ms. Allen, as well as an unrecorded encounter with
Ms. Horn and Appellant. N.T., 2/16/21, at 17-20. It was after
these interactions that Mr. Joseph began to record his return to
-8-
J-S25019-23
[the apartment] in order to document and gather evidence of a
potential violent crime. Id. at 20-36. After Mr. Joseph was shot,
he informed law enforcement from his hospital bed that he had
captured a video and audio recording of the shooting on his
cellphone. N.T., 2/16/21, at 77-92. The iPhone [police] found at
the crime scene was then returned to Mr. Joseph and the video of
the incident was recovered. Id. Based on these facts, Mr.
Joseph’s recording falls squarely within the exception to the
Wiretap Act under 18 Pa.C.S. § 5704(17). Accordingly,
Appellant’s claim lacks merit.
Trial Court Opinion, 5/25/22, at 8-9 (some capitalization modified). Our
review discloses that the record supports the trial court’s reasoning. Contrary
to Appellant’s claim, the trial court did not abuse its discretion in overruling
Appellant’s objection to admission of the video. Thus, Appellant’s first issue
lacks merit.
In his second issue, Appellant contends the trial court erred in overruling
his objection to statements made by people in the video. See Appellant’s
Brief at 14-16. According to Appellant, the out-of-court statements constitute
inadmissible hearsay, as “they were being offered for the truth of the matter
asserted … to show, consistent with [Mr.] Joseph’s testimony, that an
argument actually occurred” at the apartment. Id. at 15. Appellant further
claims the statements “do not fall under any established exceptions” to the
rule against hearsay. Id. at 16.
The Commonwealth counters that the video
recording is [] not hearsay because it is not being used to prove
the truth of the matter asserted. The [video] recording
contains an argument between the victim, [his] roommate
Whitney Allen, her mother Angela Horn, and [Appellant]. It was
not introduced at trial to establish the truth of the specific
-9-
J-S25019-23
statements made, but to establish that a heated argument
occurred (proving motive) and [Appellant] was the shooter
(proving identity).
Commonwealth Brief at 12 (emphasis added).
“Hearsay generally is inadmissible unless it falls within one of the
exceptions to the hearsay rule delineated in the Pennsylvania Rules of
Evidence.” Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. 2020);
Pa.R.E. 802 (general hearsay rule). Our Rules of Evidence define hearsay as
“a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Pa.R.E. 801(c) (emphasis added). However, “[w]hen a hearsay
statement is offered for a purpose other than proving the truth of its contents,
it is not hearsay and is not excludable under the hearsay rule.”
Commonwealth v. Hood, 872 A.2d 175, 181 (Pa. Super. 2005); see also
Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999) (“statements are
admissible to establish ill-will or motive where they are not being offered for
the truth of the matter contained therein.”).
Here, the trial court explained that it properly overruled Appellant’s
objection because the statements were not hearsay:
The statements contained in the video and audio recording
did not constitute inadmissible hearsay because said statements
were not offered for the truth of the matter asserted therein.
N.T., 2/16/21, at 27-30. Instead, the statements involving the
dispute over the apartment and rent were offered to establish
Appellant’s motive for shooting Mr. Joseph by showing that
ill-will existed between Ms. Horn, Ms. Allen, and Mr. Joseph. Id.Accordingly, the statements made in the audio and video
- 10 -
J-S25019-23
recording were admissible, as they were not offered to prove the
truth of the matter asserted, but rather to establish a motive for
the shooting. [See Puskar, supra (hearsay “statements are
admissible to establish … motive where they are not being offered
for the truth”).]
Should it be determined that the statements made in the
video and audio recording constitute hearsay, nevertheless, the
issue lacks merit because said statements are admissible under
the excited utterance exception to the rule against hearsay. The
Pennsylvania Rules of Evidence provide certain exceptions to the
rule against hearsay evidence. See Pa.R.E. 803. One such
exception is an excited utterance. Id. An excited utterance is “a
statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused.”
Pa.R.E. 803(2). An excited utterance need not describe or explain
the event, but only relate to it, and it need not be made
contemporaneously with the event. Id.
Under the excited utterance exception, the timing of the
statement is crucial and must show that “the nervous excitement
continues to dominate while the reflective processes remain in
abeyance.” Id. (quoting Commonwealth v. Gore, 396 A.2d
1302, 1305 (Pa. Super. 1978)). The determination of what
constitutes an excited utterance is a fact[-]specific inquiry, which
is made on a case-by-case basis. Commonwealth v. Wholaver,
989 A.2d 883, 907 (Pa. 2010). In determining that the statement
was an excited utterance, this court considered the following
factors: whether the statement was a narrative; the time that
elapsed between the occurrence and the utterance; and whether
the declarant had the opportunity to, or did, speak to others. See
Commonwealth v. Carmody, 799 A.2d 143, 147 (Pa. Super.
2002) (citing Commonwealth v. Sanford, 580 A.2d 784, 788
(Pa. 1990), appeal denied, 588 A.2d 508 (Pa. 1991)).
In Appellant’s case, the [trial] court did not allow
inadmissible hearsay when the court permitted the statements
made in the video and audio recording to be admitted into
evidence. The statements were admissible pursuant to the
excited utterance exception to the rule against hearsay. Pa.R.E.
803(2). The statements of Ms. Horn and Ms. Allen related to the
ongoing dispute regarding the apartment and rent. N.T., 2/16/21,
at 25-30. Further, Ms. Horn and Ms. Allen were screaming said
statements during the heated argument that ensued upon Mr.
- 11 -
J-S25019-23
Joseph’s return to [the apartment]. Id. Thus, the statements
contained in the audio and video recording were made during the
occurrence, both in time and place, as to exclude the likelihood
that the statement emanated in whole or in part from Ms. Horn
and Ms. Allen’s reflective faculties. Accordingly, Appellant’s claim
lacks merit.
Trial Court Opinion, 5/25/22, at 9-11 (emphasis added; some capitalization
modified). Again, our review discloses that the trial court’s rationale and
conclusion is supported by the record and law. We thus conclude that
Appellant’s second issue lacks merit. See id.In his third issue, Appellant claims the trial court “erred by denying
[Appellant’s] request for a new trial as the weight of the evidence should have
resulted in an acquittal of all charges.” Appellant’s Brief at 17 (bold omitted).
Appellant emphasizes, “there was no physical evidence recovered to link
[Appellant] to the shooting.” Id. According to Appellant, “there was no[]
concrete identification made of [Appellant] as the shooter until trial.” Id.Appellant asserts that when police interviewed Mr. Joseph at the hospital on
March 14, 2019, and presented him with a photo lineup containing Appellant’s
picture, Mr. Joseph was unable to identify Appellant,
beyond a reasonable doubt[,] because [Mr.] Joseph’s exact
statement [in response to viewing Appellant’s] photo was “it looks
like him, I’m pretty sure he’s the one who shot me.”
Id. (quoting N.T. (trial), 2/16/21, at 59). Finally, Appellant avers Mr. Joseph’s
“testimony is inconsistent and not credible.” Id. at 18.
The Commonwealth responds that the verdicts are “not against the
weight of the evidence because physical evidence is not a requirement for a
- 12 -
J-S25019-23
conviction and the victim’s identification of [Appellant] was credible.”
Commonwealth Brief at 13 (bold omitted). The Commonwealth emphasizes
this Court’s holding in Commonwealth v. Johnson, 180 A.3d 474 (Pa.
Super. 2018):
[T]he uncorroborated testimony of a single witness is sufficient to
sustain a conviction for a criminal offense, so long as that
testimony can address and, in fact, addresses, every element of
the charged crime.
Id. at 481; see also Commonwealth Brief at 15.
In reviewing Appellant’s weight claim, we recognize:
The weight of the evidence is a matter exclusively for the
finder of fact, who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses. A new
trial is not warranted because of a mere conflict in the testimony
and must have a stronger foundation than a reassessment of the
credibility of witnesses. 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.
On appeal, our purview is extremely limited and is confined
to whether the trial court abused its discretion in finding that the
jury verdict did not shock its conscience. Thus, appellate review
of a weight claim consists of a review of the trial court’s exercise
of discretion, not a review of the underlying question of whether
the verdict is against the weight of the evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(citations and quotation marks omitted). “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 evidence….” Commonwealth
v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).
- 13 -
J-S25019-23
The trial court addressed its exercise of discretion in rejecting
Appellant’s weight challenge, stating:
The verdict was not so contrary to the evidence as to shock
one’s sense of justice. This court[, sitting as fact-finder,]
considered the evidence, including the video that recorded the
incident and the testimony of the victim, Mr. Joseph, which
detailed the events of the shooting. The court found the
victim’s testimony to be credible, and that the weight of the
evidence supported the verdict.
Trial Court Opinion, 5/25/22, at 14-15 (emphasis added; some capitalization
modified).
As fact-finder, the trial court was free to believe all, part or none of the
evidence, Gonzalez, supra, and we decline Appellant’s suggestion that we
reweigh the evidence. Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa.
2011) (“On appeal, [an appellate] Court cannot substitute its judgment for
that of the [fact-finder] on issues of credibility, or that of the trial judge
respecting weight.”). Mr. Joseph’s testimony, which the trial court expressly
credited, was sufficient to sustain the verdict. See Johnson, supra; see
also Commonwealth v. King, 959 A.2d 405, 410-11 (Pa. Super. 2008).
Accordingly, we discern no abuse of discretion by the trial court’s rejection of
Appellant’s weight claim. See Commonwealth v. Brown, 23 A.3d 544, 561
(Pa. Super. 2011) (concluding weight challenge did not shock one’s conscience
where fact-finder found eyewitness identification of defendant as perpetrator
to be credible). Appellant’s third issue does not merit relief.
- 14 -
J-S25019-23
In his final issue, Appellant claims the trial court abused its discretion in
imposing a manifestly excessive and unreasonable aggregate sentence. See
Appellant’s Brief at 11, 18-19. According to Appellant, “the trial court did not
give careful consideration to [Appellant’s] rehabilitative needs, traumatic
childhood, and unresolved mental health issues.” Id. at 11. Appellant further
contends the sentencing court improperly failed to (1) “indicate that it had
considered [Appellant’s PSI] and mental health report” id.; or (2) “state its
reasons on the record justifying the imposition of sentence.” Id.
Appellant challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. Commonwealth v. Summers,
245 A.3d 686, 691 (Pa. Super. 2021). Here, where Appellant has preserved
his sentencing challenge in a timely PSM, he must (1) include in his appellate
brief a Pa.R.A.P. 2119(f) concise statement of reasons relied upon for
allowance of appeal; and (2) demonstrate there is a substantial question that
the sentence is not appropriate under the Sentencing Code. Id.Appellant has included a Rule 2119(f) statement in his brief. Appellant’s
Brief at 11. Further, he presents a substantial question. See
Commonwealth v. Knox, 165 A.3d 925, 929-30 (Pa. Super. 2017) (“A claim
that the trial court focused exclusively on the seriousness of the crime while
ignoring other, mitigating circumstances, such as [the defendant’s] mental
health history and difficult childhood, raises a substantial question.”);
Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (“The
- 15 -
J-S25019-23
failure to set forth adequate reasons for the sentence imposed has been held
to raise a substantial question. Likewise, an averment that the court … failed
to consider all relevant factors raises a substantial question.” (citations
omitted)).
We are mindful that 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.” Commonwealth v. Barnes,
167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc) (citation omitted).
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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted).
The Pennsylvania Supreme Court has explained:
The reason for this broad discretion and deferential standard of
appellate review is that the sentencing court is in the best position
to measure various factors and determine the proper penalty for
a particular offense based upon an evaluation of the individual
circumstances before it. Simply stated, the sentencing court
sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (citations and
quotation marks omitted).
- 16 -
J-S25019-23
The Sentencing Code provides that “the sentence imposed should call
for confinement that is consistent with the protection of the public, the gravity
of the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A.
§ 9721(b). “A sentencing court has broad discretion in choosing the range of
permissible confinements that best suits a particular defendant and the
circumstances surrounding his crime.” Commonwealth v. Celestin, 825
A.2d 670, 676 (Pa. Super. 2003) (citation omitted). The court “need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Commonwealth v. Schutzues, 54 A.3d 86, 99
(Pa. Super. 2012) (citation omitted).
The trial court must also consider the sentencing guidelines. See
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008). Here,
the trial court imposed sentences for each conviction within the standard
range of the sentencing guidelines. See Trial Court Opinion, 5/25/22, at 12
(explaining respective guidelines, Appellant’s prior record score, and the
structure of Appellant’s sentence); see also N.T., 5/18/21, at 4-5. Therefore,
we may only vacate Appellant’s sentence if “the case involves circumstances
where the application of the guidelines would be clearly unreasonable.” 42
Pa.C.S.A. § 9781(c)(2); see also Commonwealth v. Raven, 97 A.3d 1244,
- 17 -
J-S25019-23
1254 (Pa. Super. 2014). We are mindful that “rejection of a sentencing court’s
imposition of sentence on unreasonableness grounds [should] occur
infrequently, whether the sentence is above or below the guideline
ranges.” Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
Finally, where a sentencing court is informed by a PSI, “it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988)). We explained:
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a [PSI], 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. Additionally, the sentencing court must state its reasons
for the sentence on the record. The sentencing judge can
satisfy the requirement that reasons for imposing sentence
be placed on the record by indicating that he or she has
been informed by the [PSI]; thus properly considering and
weighing all relevant factors.
Ventura, 975 A.2d at 1135 (emphasis added; citation omitted).
Instantly, the trial court explained it
… was aware of the sentencing guidelines and considered the
sentencing recommendations of both parties. The court offered
sufficient valid reasons for imposing the sentence it did. First, the
trial court had the benefit of and thoroughly reviewed the PSI and
mental health reports, which was indicated on the record. N.T.,
- 18 -
J-S25019-23
5/18/21, at 3-4. See Commonwealth v. Walls, 926 A.2d 957n.7 (Pa. 2007) (stating that when a PSI exists, it is “presume[ed]
that the sentencing judge was aware of the relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”). Second,
the trial court considered the victim’s testimony and the severity
of his injuries. N.T., 5/18/21, at 21-23. The trial court specifically
stated: “… I’ve listened carefully to the testimony and evidence
presented in this case and most importantly the testimony of the
victim in this matter and that is a grave concern to me.” Id. at
22. Finally, the trial court properly considered the deadly weapon
enhancement for the attempted murder charge, as Appellant
committed the crime of attempted murder using a deadly weapon.
See 204 Pa. Code § 303.17(b).
The trial court clearly outlined its reasons for imposing
Appellant’s sentence, which expressed appropriate consideration
for the protection of the public, the gravity of the offense, and the
impact on the life of the victim, as well as Appellant’s rehabilitative
needs and mitigating factors. N.T., 5/18/21, at 21-23. See 42
Pa.C.S. § 9721(b). For all the aforementioned reasons, the trial
court appropriately sentenced Appellant.
Trial Court Opinion, 5/25/22, at 13-14 (some capitalization modified).
The record supports the trial court’s explanation. At sentencing, the
court expressly stated it had “considered” and “reviewed” Appellant’s PSI and
his mental health report. N.T., 5/18/21, at 3-4. Thus, the record belies
Appellant’s claim that “the trial court did not indicate that it had considered
[Appellant’s PSI] and mental health report.” Appellant’s Brief at 11. Further,
the trial court advised Appellant:
Mr. Joseph is lucky to be alive. You do have a prior conviction for
aggravated assault also involving a firearm. I believe your
behavior demonstrates that you are on a path that is getting
worse. I’m going to sentence you within the guidelines.
N.T., 5/18/21, at 23.
- 19 -
J-S25019-23
In sum, we discern no abuse of the sentencing court’s discretion.
Contrary to Appellant’s claim, his standard-guideline-range sentence is not
unreasonable or excessive. See Commonwealth v. Hill, 210 A.3d 1104,
1117 (Pa. Super. 2019) (stating “where a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.”) (citing Commonwealth v. Moury, 992 A.2d
162, 171 (Pa. Super. 2010) (holding combination of PSI and standard-range
sentence, absent more, cannot be considered excessive or unreasonable));
see also Walls, supra (stating rejection of a sentence on unreasonableness
grounds should occur infrequently).
As there is no merit to Appellant’s claims of error, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2023
- 20 -