J-S60034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE L. GONZALEZ
Appellant No. 299 MDA 2014
Appeal from the Judgment of Sentence August 28, 2013
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000176-2013
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2014
Jose Gonzalez (“Appellant”) appeals the judgment of sentence imposed
on August 28, 2013, following his conviction for attempted murder 1 and two
counts of aggravated assault.2 After careful review, we affirm.
The trial court summarized the trial testimony and procedural history
as follows:
On April 8, 2012, Magdalena Cruz (hereafter “Cruz”)
resided at 228 Brookside Apartments in the City of Lebanon,
Pennsylvania. Until roughly 2:00 a.m. on April 8, Cruz partied
with friends at the Woofer Magoos Bar in downtown Lebanon.
Among other people who partied together were Tiffany Koziara,
Chris Malandra, Anthony DeJesus, Derek DeJesus and
[Appellant]. When the bar closed, the group reconvened their
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1
18 Pa.C.S. § 901(a).
2
18 Pa.C.S. § 2702(a)(1) & (4).
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party at Cruz’s home. Wanda Colon, Larry Graves and Jose
Martinez (hereafter “Victim”) attempted to join the party.
Shortly after [] the arrival of Colon, Graves and Victim, an
argument ensued between Cruz and Victim over a cell phone.
Cruz became frustrated and slapped Victim in the face. Anthony
DeJesus and Derek DeJesus then began fighting with Victim near
the top of a staircase. Graves attempted to intervene. At this
point, a shot was fired and Victim fell to the bottom of the stairs.
While lying at the bottom of the stairs, Victim looked up and saw
[Appellant] holding a silver gun.
Following the shooting, Wanda Colon and Anthony DeJesus
drove Victim to the hospital. They dropped him off in the front
of the hospital and then drove away. At the time, Victim was
breathing profusely. He was also paralyzed.
Cruz remained at her apartment and cleaned up blood and
other evidence. The rest of the individuals at the party
scattered. No one called the police. No one even advised staff
at the hospital what had occurred.
Police were called to the Good Samaritan Hospital
Emergency Room by hospital staff. Police arrived and were
advised that Victim had been shot and was fighting for his life.
Initially, police had no leads with respect to how, where or when
the shooting occurred or whether anyone had witnessed it.
As of April 2012, Destiny Gonzalez was the fiancée of
Victim. Ms. Gonzalez expected Victim to return home shortly
after 2:00 a.m. When he did not arrive, Ms. Gonzalez attempted
to reach Victim using his cell phone. Chris Malandra and Tiffany
Koziara were in possession of Victim’s cell phone. When Ms.
Gonzalez called, Mr. Malandra and Ms. Koziara advised Ms.
Gonzalez to call the Good Samaritan Hospital.
Police were able to piece together from Victim’s family that
Victim may have been attending a party at Cruz’s apartment.
Sergeant Jonathan Hess, Detective Keith Ulrich and Officer Ryan
Margot responded to Cruz’s apartment. Sgt. Hess observed a
red stain on the door and floor mat. Officer Margot noticed what
he believed to be blood on the baby gate at [sic] the stairwell.
Through investigation, police were able to learn the names
of people reported to have been at Cruz’s party during the early
morning of April 8, [2012]. Seven of the ten people reported to
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be present at the party were interviewed. It became quickly
apparent to police that those who attended the party wanted to
protect the culprit. For example, Cruz attempted to clean the
crime scene. She also denied [Appellant] was even at the party
at her house. When police attempted to speak to Tiffany
Koziara, she would not answer the door to her home. When
they eventually were able to speak to Ms. Koziara, she was not
cooperative. Similarly, Anthony DeJesus told police that he did
not even remember being at the party at Cruz’s house. His
brother Derek also denied being present at the party.
When Victim was medically able, Sgt. Hess conducted an
interview. Victim was initially uncooperative. However, he later
gave Sgt. Hess a full recorded statement. In that statement, he
identified [Appellant] as the person he saw holding a silver gun
immediately after he had been shot. At trial, Victim testified
that he was “one hundred percent certain” that [Appellant] was
the person holding the gun.
Sgt. Hess testified that he wanted to interview [Appellant],
but he and his fellow officers could not locate him. Sgt. Hess
spoke with [Appellant’s] mother and his brothers. Police also
spoke with informants. They contacted the Pennsylvania State
Police Fugitive Task Force and the United States Marshal’s
Service. Unfortunately, [Appellant’s] whereabouts remained
unknown for nine months.
[Appellant] was finally apprehended on January 10, 2013.
When questioned, [Appellant] denied that he was even at the
party where the shooting occurred.
During their investigation, police learned that [Appellant]
and Hasaan Hargett were Facebook friends. Police obtained a
Facebook post dated April 18, 2012. That post referenced a
“hammer” that [Appellant] had given to Mr. Hargett. [Appellant]
messages [sic] Mr. Hargett and stated: “I felt safe knowing you
had it because I know you wouldn’t let it go in the wrong hands
but now that you don’t got it, I am not safe anymore?” Mr.
Hargett responded that he had disposed of the “hammer” “with
additional waste.” Det. Ulrich testified that he was familiar with
street terminology and that the term “hammer” refers to a gun.
At trial, Mr. Hargett initially denied getting rid of anything for
[Appellant]. He later acknowledged that he had discarded a bag
that had been given to him by [Appellant].
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At trial, Victim identified [Appellant] as the person who
shot him.1 In addition, the District Attorney’s Office presented
the Facebook communications sent by [Appellant] to Hasaan
Hargett that, fairly interpreted, revealed that Hargett disposed of
a gun on behalf of [Appellant]. The District Attorney also
presented evidence that [Appellant] abruptly left Lebanon after
the shooting.2
1
Specifically, the Victim said that [Appellant] was holding
a gun immediately after he was shot. No one else was
seen with a gun.
2
To be sure, inconsistent and obviously misleading
testimony was presented from Magdelina [sic] Cruz,
Lawrence Graves, Tiffany Koziara, Anthony DeJesus and
Derek DeJesus. When evaluating issues pertaining to
weight and sufficiency of evidence, this [c]ourt did not
afford much weight to the testimony of the aforesaid
individuals.
On August 9, 2013, a jury convicted [Appellant] of all
counts lodged against him. Sentencing occurred on August 28,
2013. As a result, this [c]ourt sentenced [Appellant] to a period
of imprisonment of between 20 and 40 years.
Trial Court Post-Sentence Motion Opinion, January 9, 20143 (“Trial Court
Opinion”), pp. 1-6 (record citations and capitalizations omitted).
On September 9, 2013, Appellant filed post-sentence motions raising:
(1) a sufficiency of the evidence claim; (2) two claims relating to the trial
court’s denial of Appellant’s motion in limine regarding the circumstances of
Appellant’s flight/arrest; (3) a claim that the trial court improperly instructed
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3
By Order dated March 6, 2014, the trial court forwarded the trial court file
to this Court, noting that its January 9, 2014 opinion addressed Appellant’s
matters complained of on appeal. Accordingly, we will treat the trial court’s
January 9, 2014 opinion as its Pa.R.A.P. 1925(a) opinion.
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the jury on whether Appellant’s flight could be considered as consciousness
of guilt; (4) a claim that the trial court improperly precluded Appellant from
drawing a link in his closing argument between Anthony DeJesus’
aggravated assault conviction and a defense claim that Anthony DeJesus
may have been the shooter; (5) a weight of the evidence claim; and (6) a
discretionary aspects of sentence claim. The trial court denied Appellant’s
post-sentence motions on January 9, 2014. Thereafter, Appellant filed a
timely notice of appeal and complied with the trial court’s order to file a
statement of matters complained of on appeal.
Appellant raises the following issues for our review:
I. Did the Commonwealth fail to present sufficient evidence at
trial that:
Appellant was at Brookside apartments on April 8, 2012,
and that Appellant was the person who shot Jose Martinez?
Appellant was guilty of Attempted Homicide?
II. Did the Trial Court erred [sic] by:
Denying Appellant’s Motion In Limine to exclude the
circumstances of Appellant’s arrest on January 10, 2013,
and by instructing the Jury that Appellant’s alleged flight
was consciousness of guilt[?]
Instructing [d]efense [c]ounsel that he could not in his
closing arguments draw a direct link between the fact that
Anthony DeJesus had been convicted of an aggravated
assault involving a handgun and that Anthony DeJesus
may have been the shooter[?]
III. Did the Jury place too great a weight on the testimony that
Appellant was at 228 Brookside [A]partments on April 8, 2012,
specifically, the testimony of Lawrence Graves, Magdelina [sic]
Cruz, and Jose Martinez[?]
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IV. Did the Sentencing Court err in sentencing the Appellant to
the top of the standard range for his minimum sentence at
Action Number CP-38-CR-175-2013 and running that sentence
consecutively to the sentence imposed at Action Number CP-38-
CR-176-2013 when the Appellant had a prior record score of
zero and had only two (2) misdemeanor juvenile adjudications,
and did the Sentencing Court consider improper facts when
molding Appellant’s sentence[?]
Appellant’s Brief, p. 4.
Appellant first argues that the Commonwealth failed to prove that he
committed the crime of attempted murder. See Appellant’s Brief, pp. 10-
13. Specifically, Appellant claims the Commonwealth failed to prove that he
was at 228 Brookside Apartments and that he was the shooter. Id. He is
incorrect.
When examining a challenge to the sufficiency of evidence, this Court’s
standard of review 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. 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
[trier] of fact while passing upon the credibility of witnesses and
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the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011).
The Crimes Code provides:
(a) Definition of attempt.–A person commits an attempt
when, with intent to commit a specific crime, he does any act
which constitutes a substantial step toward the commission of
that crime.
18 Pa.C.S. § 901. “A person may be convicted of attempted murder if he
takes a substantial step toward the commission of a killing, with the specific
intent in mind to commit such an act.” Commonwealth v. Jackson, 955
A.2d 441, 444 (Pa.Super.2008) (internal citations and quotations omitted).
“The substantial step test broadens the scope of attempt liability by
concentrating on the acts the defendant has done and does not any longer
focus on the acts remaining to be done before the actual commission of the
crime.” Id. “[A]ttempted murder requires an intent to bring about that
result described by the crime of murder (i.e., the death of another).”
Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.2004). “The
mens rea required for first-degree murder, specific intent to kill, may be
established solely by circumstantial evidence.” Jackson, 995 A.2d at 444.
“The law permits the fact finder to infer that one intends the natural and
probable consequences of his acts.” Id. “The offense of attempt to kill is
completed by the discharging of a firearm at a person with the intent to kill,
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despite the fortuitous circumstances that no injury is suffered.”
Commonwealth v. Mapp, 335 A.2d 779, 781 (Pa.Super.1975) (necessary
intent found for attempted murder where defendant shot at victim and
missed). Additionally, our Supreme Court has repeatedly determined that
“[t]he use of a deadly weapon on a vital part of the body is sufficient to
establish the specific intent to kill” required for a first degree murder
conviction. See Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.2007);
Commonwealth v. Cousar, 928 A.2d 1025, 1034 (Pa.2007) (“a specific
intent to kill may be inferred from the use of a deadly weapon on a vital part
of a victim’s body.”). Further, evidence of flight is admissible for the
purpose of establishing guilty knowledge. Commonwealth v. Gooding,
649 A.2d 722, 726 (Pa.Super.1994) (citing Commonwealth v. Jones, 319
A.2d 142, 149 (Pa.1974)).
Here, the trial court explained its rejection of Appellant’s sufficiency of
the evidence claim as follows:
Although this [c]ourt believes that Graves lied at trial and that
his written statement to police was in fact accurate, we
nevertheless will not consider today the testimony of Graves or
even of Cruz. In fact, the evidence that we will rely upon to
reject [Appellant’s] challenge to [the] . . . sufficiency of [the]
evidence is as follows:
(1) Victim testified that immediately after he was shot, he saw
a gun in the hand of [Appellant]:
Q. Jose, as you are sitting here today are you certain
that when you were shot that the person you saw holding
the gun was [Appellant]?
A. Yes, hundred percent.
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(2) Following the shooting, [Appellant] abruptly left Lebanon
County. He told a close friend that he likely would never return.
(3) In a Facebook exchange, [Appellant] confirmed that he
had given a “hammer” to hold and/or dispose for him. Police
testified that the term “hammer” refers on the streets to a gun.
To be sure, significant additional information and evidence
was presented to the jury. However, the three pieces of
evidence outlined above, by themselves, are sufficient to support
the jury’s verdict.
1925(a) Opinion, pp. 11-12 (record citation, footnote, and capitalizations
omitted).
Viewed in the light most favorable to the Commonwealth as verdict
winner, the trial court properly concluded that this evidence was sufficient to
convict Appellant of attempted murder.
Appellant also claims the trial court erred in denying his motion for a
new trial based on a weight of the evidence claim. See Appellant’s Brief, pp.
15-16. Specifically, Appellant claims the jury placed too much weight on the
testimony of Magalena Cruz and the victim that Appellant was at 228
Brookside Apartments on April 8, 2012. Id. This claim lacks merit.
This Court’s review of weight of the evidence claims is governed by the
following standard:
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
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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, 751-52 (Pa.2000) (internal
citations, quotations, and footnote omitted).
Stated differently, a court may award a new trial because the verdict is
against the weight of the evidence only when the verdict is so contrary to
the evidence as to shock one’s sense of justice, 4 “such that right must be
given another opportunity to prevail.” Commonwealth v. Goodwine, 692
A.2d 233, 236 (Pa.Super.1997). Moreover, 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. Widmer, 744 A.2d at 753. When reviewing the
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4
This Court has explained the notion of “shocking to one’s sense of justice”
as follows:
When the figure of Justice totters on her pedestal, or when the
jury's verdict, at the time of its rendition, causes the trial judge
to lose his breath, temporarily, and causes him to almost fall
from the bench, then it is truly shocking to the judicial
conscience.
Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).
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trial court’s determination, this Court gives the gravest deference to the
findings of the court below. We review the court’s actions for an abuse of
discretion. Id.
Simply stated, the jury’s verdict in this matter implicitly illustrates that
the jury found the victim’s testimony that Appellant was at the scene of the
crime and was holding the gun after the victim was shot to be credible and
the testimony of the defense witnesses to the contrary to be incredible. The
verdict also demonstrates that the jury found other evidence of guilt
significant, including Appellant’s flight from Lebanon County, his statement
to his friend that he would likely never return, and his Facebook post to
Hasaan Hargett about the “hammer”. The trial court agreed with the jury’s
assessment in denying Appellant’s post-sentence motion for a new trial
based on the weight of the evidence. See Trial Court Opinion, pp. 10-12.
Nothing about the verdict or the trial court’s reasoning shocks the
conscience. Appellant’s weight of the evidence claim fails.
Next, Appellant argues the trial court erred in denying his motion in
limine requesting the Commonwealth be precluded from discussing the
circumstances of Appellant’s arrest, including his flight following the
commission of the crime. See Appellant’s Brief, pp. 13-14. In a related
claim, Appellant suggests that the trial court erroneously charged the jury
regarding flight as consciousness of guilt. Id. Appellant is incorrect.
In reviewing the grant or denial of motions in limine, this Court applies
an evidentiary abuse of discretion standard of review. Commonwealth v.
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Stokes, 78 A.3d 644, 654 (Pa.Super.2013). “An abuse of discretion will not
be found based on a mere error of judgment, but rather exists where the
court has reached a conclusion which overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Commonwealth v. Alicia, 92 A.3d
753, 760 (Pa.2014).
This Court has stated the well-established standard of review for
admission of evidence claims as follows:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the
trial court upon a showing that it abused its discretion or
committed an error of law. Thus, [this Court’s] standard of
review is very narrow. To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful
or prejudicial to the complaining party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012). Further, as
previously stated, evidence of flight is permissible for the purpose of
establishing guilty knowledge. See Gooding, supra; see also
Commonwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa.Super.2005)
(“where evidence exists that a defendant committed a crime, knew he was
wanted, and fled or concealed himself, such evidence is admissible to
establish consciousness of guilt.”).
Additionally, “[w]hen reviewing the propriety of a jury charge, an
appellate court examines the charge as a whole. The trial court has broad
discretion in formulating jury instructions, as long as the law is presented to
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the jury in a clear, adequate, and accurate manner.” Lukowich, 875 A.2d
at 1174 (internal citation omitted).
Here, the trial court explained its decision to allow evidence of
Appellant’s flight following the crime as follows:
In this case, [Appellant] abruptly left his home in Lebanon
County. In communication [Appellant] had with Hasaan Hargett,
[Appellant] indicated he might never be returning. [Appellant’s]
abrupt relocation away from Lebanon County coincided to the
day with the shooting that permanently paralyzed Victim. Under
such circumstances, it was permissible for the jury to infer that
[Appellant] had a guilty conscience. If in fact there were other
possible explanations for [Appellant’s] flight, [Appellant] was at
liberty to provide those explanations to the jury and we clearly
communicated this to [Appellant’s] counsel. Ultimately, we
determined that it was for the jury to decide whether flight
occurred and, if so, how flight should be considered.
Trial Court Opinion, pp. 15-16.
We discern no abuse of discretion in the trial court’s admission of flight
evidence. We further conclude that the trial court properly instructed the
jury regarding its consideration of the evidence of flight. 5 Accordingly,
Appellant’s flight-related evidentiary and jury charge claims fail.
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5
At the end of the trial, the court instructed the jury:
Now in this case you heard some evidence that could possibly
lead you to believe that [Appellant] fled after this crime
occurred. It’s up to you to decide whether [Appellant] fled or he
did not flee. That’s your decision. If you find that [Appellant]
fled after the crime was committed, that is evidence of what the
law terms consciousness of guilt. The law recognizes that people
who are guilty will have a tendency to run away and flee after
they commit something that they knew was wrong. And you can
(Footnote Continued Next Page)
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Appellant also claims that the trial court erred by precluding defense
counsel from drawing a direct link in closing between Anthony DeJesus’
aggravated assault and person not to possess firearms convictions and a
suggestion that Anthony DeJesus was the shooter in this case. See
Appellant’s Brief, pp. 15. Appellant is again incorrect.
At trial, Anthony DeJesus testified that he was then incarcerated for
convictions on two counts of aggravated assault and persons not to possess
firearms. See N.T. 8/8&9/2013, p. 169. Prior to closing arguments, the
Commonwealth moved the trial court to preclude defense counsel from
arguing that Anthony DeJesus, by virtue of his convictions, was more likely
than Appellant to have committed the crime in the instant matter. See N.T.
8/8&9/2013, pp. 203-207. The court granted the Commonwealth’s motion,
stating:
_______________________
(Footnote Continued)
use [Appellant’s] flight as evidence of his guilty [conscience] if
you find that he fled. However, the law also recognizes that
there are other reasons beyond a reasonable doubt that could
lead a person to try to avoid the police. You must consider all of
the evidence. You must decide whether in fact this [Appellant]
did flee and if you find that he fled whether he did so out of
guilty [conscience] or for some other reason having nothing to
do with this crime. But if you find that he did flee and you find
that he did so because of a guilty [conscience] you can consider
that as evidence in this case.
N.T. 8/8&9/2013, pp. 249-250. When read as a whole, this instruction
clearly, adequately, and correctly advised the jury that it could consider the
evidence of flight as demonstrating Appellant’s consciousness of guilt, but
that it was not required to do so.
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I’m not going to let [defense counsel] draw a direct link between
the firearms conviction and this event because the evidence does
not establish any such link. So I’m not going to allow [defense
counsel] to specifically say Anthony DeJesus did this because he
did it in the past.
N.T. 8/8&9/2013, p. 206.
Initially, we note that defense counsel did not lodge an objection to
the trial court’s ruling limiting the defense closing regarding the use of
Anthony DeJesus’ criminal record, and, accordingly, Appellant waived this
claim. See Commonwealth v. Baumhammers, 960 A.2d 59, 84
(Pa.2008) (“the absence of a specific contemporaneous objections renders
the appellant’s claim waived.”). Further, because no trial testimony or
evidence placed a weapon in Anthony DeJesus’ hands on the evening in
question, we agree with the trial court’s assessment that the evidence
presented did not warrant an argument relating in any way to Anthony
DeJesus’ prior convictions. Additionally, because Pennsylvania’s Rules of
Evidence expressly state that “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[,]”
such argument in closing would have been improper. Pa.R.E. 404(b).
Accordingly, we discern no abuse of discretion in limiting defense counsel’s
use of Anthony DeJesus’ criminal convictions in his closing argument.6
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6
We note that the trial court did not bar defense counsel from suggesting
that Anthony DeJesus, or any individual whom the evidence indicated was
(Footnote Continued Next Page)
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Finally, Appellant claims the trial court erred in sentencing him to the
top of the standard range of the sentencing guidelines and running the
sentence consecutive to Appellant’s sentence in another matter. See
Appellant’s Brief, pp. 16-17.
This claim raises a challenge to the discretionary aspects of Appellant’s
sentence. “Challenges to the discretionary aspects of sentencing do not
entitle a petitioner to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.
Allen, 24 A.3d at 1064.
Appellant in the present case filed a timely notice of appeal, and
preserved his issues in a motion for reconsideration of sentence. Further,
_______________________
(Footnote Continued)
present on the night in question, committed the crime. See N.T.
8/8&9/2013, p. 203. The trial court merely precluded counsel from arguing
that Anthony DeJesus’ prior convictions could be viewed as proof that he had
committed the crime. See N.T. 8/8&9/2013, pp. 204-207.
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Appellant’s brief includes a concise statement of the reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p.
9. Accordingly, we now determine whether Appellant has raised a
substantial question for review and, if so, proceed to a discussion of the
merits of the claim. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki,
522 A.2d 17 (Pa.1987).
In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial
court imposed an unreasonable sentence because it based the sentence
solely on defendant’s lack of remorse at sentencing. See Appellant’s Brief,
p. 9.7 Importantly, Appellant does not argue that the sentencing court relied
upon any impermissible factors in sentencing, relied solely on the severity of
the crime committed,8 or sentenced him beyond statutory limits. Instead,
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7
We note that the trial court sentenced Appellant in another matter, Docket
CP-38-CR-175-2013, on August 28, 2013 as well. Appellant herein also
claims that the trial court erred in deciding to run his 1 to 5 year sentence in
the case consecutive to the 20 to 40 year sentence in the instant case.
Because the trial court ordered Appellant to serve the sentence in this case
first, no claim exists that the court erred in sentencing on this matter
consecutive to another sentence. We note, however, that even if the
sentence order was reversed, and the instant sentence were to be served
consecutive to the 1 to 5 year sentence in Docket CP-38-CR-175-2013, such
a claim would not raise a substantial question for our review. See
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim
that the consecutive nature of sentences violates the Sentencing Code fails
to raise a substantial question for review).
8
We note that a claim that a sentencing court relied solely on the severity of
the crime raises a substantial question for review. Commonwealth v.
Macias, 968 A.2d 773, 776 (Pa.Super.2009).
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he alleges that the sentencing court focused solely on his lack of remorse at
the sentencing hearing in imposing sentence. Id. To the extent Appellant’s
claim is that the trial court viewed his silence at sentencing as a lack of
remorse and relied solely on that silence in sentencing, this claim does raise
a substantial question for appellate review. See Commonwealth v.
Bowen, 975 A.2d 1120 (Pa.Super.2009). We will therefore address the
merits of Appellant’s discretionary aspects of sentencing claim.
If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion
involves a sentence which was manifestly unreasonable, or
which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Our review of the sentencing transcript reveals that the lower court did
not abuse its discretion. Instead, the trial court imposed a sentence that
was consistent with the protection of the public, took into account the
gravity of the offense as it related to the impact on the life of the victim and
on the community, and considered the Appellant’s rehabilitative needs, as
required by 42 Pa.C.S. § 9721(b).
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At sentencing, the trial court explained it considered the presentence
investigative report,9 the nature of Appellant’s actions, the consequences of
Appellant’s actions (including the victim’s injuries), the efforts of Appellant
and his friends to cover up the crime and thwart the police investigation, the
continuing danger Appellant presents to society, the arguments of counsel,
and the testimony received at the sentencing hearing. N.T. 8/28/2013, pp.
7-14. Finally, the court sentenced Appellant to a standard range sentence
within the statutory maximum.10 See Commonwealth v. Moury, 992 A.2d
162, 171 (Pa.Super.2010) (“[W]here a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.”). We find no abuse of discretion.
Given the foregoing, Appellant’s claim that the trial court relied solely
on his lack of remorse in sentencing fails.
Judgment of sentence affirmed.
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9
We note that, where a sentencing court had the benefit of a presentence
investigation report, we can assume the sentencing court was aware of
relevant information contained therein and weighed that information along
with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).
10
The upper level of the sentencing guidelines’ standard range for attempted
murder involving serious bodily injury is the statutory limit regardless of an
offender’s prior record score. See 204 Pa.Code § 303.16. The statutory
maximums for first degree murder, second degree murder, and third degree
murder are death sentence/life imprisonment, life imprisonment, and 40
years, respectively. See 18 Pa.C.S. § 1102.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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