J-S40013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN WILLIAMS,
Appellant No. 1795 MDA 2013
Appeal from the Judgment of Sentence Entered July 8, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001688-2012
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 26, 2014
Appellant, Kevin Williams, appeals from his judgment of sentence of
robbery, two counts of criminal conspiracy to commit robbery, criminal
trespass, theft by unlawful taking or disposition, and receiving stolen
property. Appellant challenges the sufficiency of the evidence to sustain his
convictions, and also alleges that the trial court abused its discretion in
fashioning his sentence. For the reasons stated below, we affirm.
The trial court summarized the facts adduced at trial as follows:
On March 15, 2012, at approximately 9:00 a.m., a robbery
occurred at the Carousel Lounge located in Plymouth Township,
Luzerne County, Pennsylvania. Two individuals entered the
business, pointed guns at the owner, and removed in excess of
$3,000.00.
Several weeks later, a third co-conspirator [Courtney Sandusky]
gave a statement to the Pennsylvania State Police in which she
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described her role in the robbery as well as the roles of the two
individuals who entered the Carousel Lounge. Based upon this
statement, [Appellant] was arrested and charged [with the
above stated offenses].
Trial Court Opinion (T.C.O.), 11/25/13, at 1 (unnumbered pages). Following
his jury trial, Appellant was convicted of all the crimes with which he was
charged. Appellant then filed a post-sentence motion, arguing that the
ight
of the evidence, and that the court abused its discretion in sentencing him.
The trial court denied the motion. Appellant subsequently filed a timely
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
In his brief to this Court, Appellant raises the following issues for our
review:
I. Whether the evidence was sufficient as a matter of law to
establish guilt beyond a reasonable doubt[?]
II. Whether the [t]rial [c]ourt abused its discretion in
sentencing [Appellant][?]
evidence. In his Rule 1925(b) statement, Appellant presents his sufficiency
issue in essentially the same manner as in his brief.1 After reviewing
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1
In his Rule 1925(b) statement, Appellant states his sufficiency issue as
follows:
(Footnote Continued Next Page)
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did not preserve this issue on appeal.
Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super.
2008), this Court reiterated that when challenging the sufficiency
for appeal. Williams, 959 A.2d at 1257 (quoting
Commonwealth v. Flores, 921 A.2d 517, 522-23 (Pa. Super.
2007)). Such specificity is of particular importance in cases
where, as here, the [a]ppellant was convicted of multiple crimes
each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt. Id., at
1258 n.9. Here, [the] [a]ppellant not only failed to specify
which elements he was challenging in his 1925 statement, he
also failed to specify which convictions he was challenging.
While the trial court did address the topic of sufficiency in its
because we apply Pa.R.A.P. 1925(b) in a predictable, uniform
e to address an unpreserved
Id. at 1257 (quoting Flores at 522-23).
Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (quoting
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal
denied, 3 A.3d 670 (Pa. 2010)) (emphasis added).
Flores, which we applied in
Williams, Garang, and Gibbs
statement is insufficient to preserve his sufficiency of the evidence claim.
_______________________
(Footnote Continued)
1. The evidence was insufficient as a matter of law to establish
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Those cases make clear that appellants, in their Rule 1925(b) statements,
must state which particular conviction(s) they are challenging, and specify
the element(s) for which they allege the evidence was insufficient. Here,
Appellant was convicted of five different offenses, each containing multiple
elements. Appellant nevertheless filed a boilerplate Rule 1925(b) statement,
where he did not specify the conviction(s) or element(s) that he sought to
contest. Instead, Appellant presented a general allegation that the
reasonable doubt. Consequently, the trial court found this issue to be
the evidence was insufficient.
challenging the sufficiency of the evidence is waived.2
____________________________________________
2
Appellant argues that, notwithstanding his boilerplate Rule 1925(b)
statement, his sufficiency claim can be readily apprehended, and therefore
warrants our review under Commonwealth v. Laboy, 936 A.2d 1058, 1060
(Pa. 2007) (holding that appellate review should be afforded,
notwithstanding a vague Rule 1925(b) statement challenging the sufficiency
detail in its Rule 1925(a) opinion). In Laboy, however, our Supreme Court
common pleas court may require a more detailed statement to address the
Id. While it was clear that the appellant
in Laboy was only contesting the evidence supporting his conviction for
conspiring to sell narcotics, id. at 1058-59, Appellant was convicted of five
In contrast to the trial court in Laboy, the trial court here could not
determine which offenses Appellant was contesting and, therefore, it
Laboy is
distinguishable.
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sufficiency claim, our review of his issue would be hindered. In his brief, the
linking Appellant to the crimes was from an incredible source, Courtney
Sandusky.3 By attacking the credibility of Sandusky, though, Appellant
actually contests whether the verdict was against the weight of the
evidence, not whether the evidence was sufficient.4 See, e.g., Griffin, 65
A.3d at 938-39 (stating that arguments that challenge the credibility of the
ce, but
citations omitted). Our standard of review for challenges to the weight of
the evidence is well established:
Appellate review of a weight claim is a review of the
exercise
underlying question of whether the verdict is against the
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3
-conspirator. T.C.O. at 1. Appellant argues
that Sandusky is not credible because the Commonwealth agreed to reduce
her charges in exchange for her testimony. See
rder to
receive a reduced sentence for several other charges that were pending
4
We reiterate that Appellant preserved his weight of the evidence claim in a
post-sentence motion. See Commonwealth v. Griffin, 65 A.3d 932, 938
(Pa. Super.
either in a post-sentence motion, by a written motion before sentencing, or
Commonwealth v. Lofton, 57 A.3d
1270, 1273 (Pa. Super. 2012)).
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weight of the evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. Super. 2013) (internal
citation omitted) (emphasis added).
In this case, because the trial court found that Appellant waived this
evidence claim.5 Therefore, our review of whether the trial court abused its
discretion would be hampered. These circumstances bolster our
In his second issue, Appellant argues that the court abused its
discretion in sentencing him by not considering his rehabilitative needs and
certain m
consecutive, instead of concurrent, sentences. We are guided by the
The standard employed when reviewing the discretionary
aspects of sentencing is very narrow. We may reverse only if
the sentencing court abused its discretion or committed an error
of law. We must accord the sentencing court's decision great
weight because it was in the best position to review the
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5
Moreover, when th -sentence motion
contesting the weight of the evidence, it did not explain its reasoning for
doing so.
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defendant's character, defiance or indifference, and the overall
effect and nature of the crime.
Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super. 2005) (internal
citations omitted). Additionally, we note,
The right to appeal the discretionary aspects of the sentence is
not absolute. Two requirements must be met before a challenge
to the discretionary aspects of a sentence will be heard on the
merits. First, the appellant must set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of his sentence.
Pa.R.A.P. 2119(f). Second, he must show that there is a
substantial question that the sentence imposed is not
appropriate under the Sentencing Code. 42 Pa.C.S.[] § 9781(b).
The determination of whether a particular issue raises a
substantial question is to be evaluated on a case-by-case basis.
In order to establish a substantial question, the appellant must
show actions by the sentencing court inconsistent with the
Sentencing Code or contrary to the fundamental norms
underlying the sentencing process.
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super. 2005) (quoting
Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003)).
Initially, we must determine whether Appellant complied with Rule
2119(f). This Court has stated,
Rule 2119(f) requires only a concise statement of the reasons
Appellant believes entitle him to allowance of appeal.
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super.
2000). The concise statement must spe
falls in relation to the sentencing guidelines and what particular
Id. Additionally, the
violates and the manner in which it violates Id.
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. Super. 2004).
Rule 2119(f) statement and the appellee has not objected, this Court may
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ignore the omission and determine if there is a substantial question that the
sentence imposed was not appropriate, or enforce the requirements of
Pa.R.A.P. 2119(f) sua sponte, i.e. Id. at 533
(internal citation omitted). Although this Court is permitted to overlook a
party's failure to provide a 2119(f) statement, it should only do so in
situations where the substantial question presented is evident from the
Commonwealth v. Robertson, 874 A.2d 1200, 1211
(Pa. Super. 2005) (citing Commonwealth v. Saranchak, 675 A.2d 268,
277 n.18 (1996)). Here, Appellant failed to provide a Rule 2119(f)
statement in his brief, but the Commonwealth does not object to the error.
substantial question that warrants overlooking this omission.
In his brief, Appellant first alleges that the court failed to consider his
rehabilitative needs, asserting that he has a drug addiction problem.
rt disregarded certain
mitigating factors, namely that he has his GED and has only one prior
conviction. Id.
consecutive sentences, arguing that doing so was unreasonable.
None of these claims clearly raise a substantial question to convince us
to overlook his omission of a Rule 2119(f) statement. This Court has found
that no substantial question exists under similar circumstances. See, e.g.,
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
Court has held on numerous occasions that a claim of inadequate
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consideration of mitigating factors does not raise a substantial question for
Griffin, 65 A.3d at 936
(determining that an allegation
rehabilitative needs does not raise a substantial question); Commonwealth
v. Gonzalez-Dejusus
speaking, the court's exercise of discretion in imposing consecutive as
opposed to concurrent sentences is not viewed as raising a substantial
Commonwealth v. Lawson, 650 A.2d. 876, 881 (Pa. Super. 1994)
is rehabilitative needs in
imposing sentence. [I]t does not constitute a substantial question for our
Commonwealth v. Mobley, 581 A.2d
factors does not raise a substantial question absent extraordinary
Consequently, we decline to review his sentencing challenge in light of his
omitted Rule 2119(f) statement. 6
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6
Nevertheless, we note that even if Appellant had properly raised his issues
in a Rule 2119(f) statement, we would determine that his sentencing claims
do not merit relief. Although Appellant alleges that the trial court abused its
discretion by failing to consider certain mitigating factors, the trial court
-sentencing report, and imposed a sentence within
the standard range of the guidelines. T.C.O. at 6. This Court has generally
(Footnote Continued Next Page)
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In sum, we conclude that Appellant did not properly preserve his
issues for our review. Accordingly, we affirm the judgment of sentence
entered by the trial court.
Judgment of sentence affirmed.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
_______________________
(Footnote Continued)
considered sentences reasonable in these circumstances. See
Commonwealth v. Moury
a sentence is within the standard range of the guidelines, Pennsylvania law
citation omitted); Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.
pr
presumed that the sentencing court was aware of the relevant information
regarding defendant's character and weighed those considerations along
nternal citation omitted). Moreover,
Appellant does not elaborate on his claim that the court failed to consider his
We decline to review such undeveloped arguments. See Pa.R.A.P. 2119(a).
discussion of the particular point raised along with discussion and citation of
sentences for the first time in his appellate brief. Thus, this issue is waived.
Commonwealth v. Hill
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)).
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