J-S13017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES STEPHON JOHNSON
Appellant No. 781 WDA 2014
Appeal from the Judgment of Sentence April 7, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001345-2013
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED MARCH 05, 2015
Appellant, Charles Stephon Johnson, appeals from the April 7, 2014
aggregate judgment of sentence of four to eight years’ imprisonment,
imposed after he was found guilty of one count each of intimidation of a
witness, terroristic threats, and simple assault.1 After careful review we
affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows.
This case had its genesis with events which
occurred on January 30, 2013. That day, Appellant
was involved in a violent fight with Antwane McCaleb
in Kramer’s On the Avenue, a bar in Erie,
Pennsylvania. The incident began in the men’s
room, and continued outside the restroom in the
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1
18 Pa.C.S.A. §§ 4952(a)(3), 2706(a)(1), and 2701(a)(3), respectively.
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poolroom area. Michael Wellman, the tavern owner,
and his girlfriend, Mary Shauberger, who is
employed at the bar, were present. Wellman
witnessed a portion of the incident, which was
recorded on videotape by the tavern’s security
system. Appellant was charged at Erie County
Docket No. 855 of 2013 with [a]ggravated [a]ssault,
a second[-]degree felony; [t]erroristic [t]hreats, a
first[-]degree misdemeanor; [r]ecklessly
[e]ndangering [a]nother [p]erson, a second[-]degree
misdemeanor; and [d]isorderly [c]onduct, a
summary offense.
Pursuant to a plea agreement, the charge of
[a]ggravated [a]ssault was changed to [s]imple
[a]ssault, a misdemeanor. The remaining charges
were nolle prossed as part of the plea agreement.
On July 10, 2013, Appellant entered a guilty plea to
[s]imple [a]ssault. On September 10, 2013,
Appellant was sentenced to 6 to 12 months of
incarceration, consecutive to Count 4 at Erie County
Docket No. 310 of 2013.[2]
In the early afternoon of March 26, 2013,
before the underlying criminal action was resolved,
Appellant returned to Kramer’s. Appellant
approached the bar area where Wellman and
Shauberger were sitting side-by-side doing
paperwork. Wellman’s father and a bartender were
also present.
Wellman asked Appellant to leave when
Appellant entered the bar. Appellant appeared angry
and refused to leave. Appellant demanded the
videotape of the bar fight involving Appellant in
January of 2013. Appellant came nose-to-nose with
Wellman. Appellant yelled at Wellman and
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2
At docket number CP-25-CR-310-2013, Appellant pled guilty to one count
each of carrying a firearm without a license and intentional possession of a
controlled substance. The trial court imposed an aggregate sentence of
three to seven years’ imprisonment.
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Shauberger, calling them a “snitch” and a “b _ _ _
_”, and telling them they were “marked” persons.
Appellant threatened to put a bullet in their heads.
Appellant told Wellman and Shauberger they were
unsafe, and it would never be safe for them to walk
outside without having to worry Appellant would
come for them. Appellant leaned forward and took a
full swing with his hand toward Shauberger’s face
and knocked a cigarette out of her mouth.
Shauberger asked Appellant to leave the bar a
number of times. When Appellant refused to leave,
Shauberger ran to the kitchen and called 911.
Wellman and Shauberger were afraid and feared for
their lives. Appellant remained in the bar and was
present when the police arrived.
City of Erie Police Officers Roofner and Attalla
responded to the dispatch, arrived at Kramer’s at
approximately 4:45 p.m., and arrested Appellant.
Wellman and Shauberger were visibly shaken and
afraid when the police arrived. Wellman told the
officers the alarm and video security system were
not turned on when Appellant arrived. Wellman
showed the officers the security system and turned it
back on in their presence.
Trial Court Opinion, 7/2/14, at 2-3 (internal citations omitted).
On June 12, 2013, the Commonwealth filed an information charging
Appellant with one count each of intimidation of a witness, terroristic
threats, and simple assault.3 On November 12, 2013, Appellant proceeded
to a one-day bench trial, at the conclusion of which the trial court found
Appellant guilty of all charges. On April 7, 2014, the trial court imposed an
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3
For clarity, this is a second simple assault charge, independent of the
charge Appellant pled guilty to on July 10, 2013.
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aggregate sentence of four to eight years’ imprisonment.4 On April 28,
2014, Appellant filed an untimely “Post Sentence Motion Nunc Pro Tunc,”
which the trial court denied on May 6, 2014. On May 7, 2014, Appellant
filed a timely notice of appeal.5
On appeal, Appellant raises the following two issues for our review.
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4
Specifically, the trial court imposed a sentence of four to eight years’
imprisonment for intimidation of a witness, relevant to this appeal, graded
as a second-degree felony. The trial court imposed a sentence of six to 12
months’ imprisonment for the terroristic threats and simple assault charges.
All sentences were to run concurrent to each other but consecutive to any
other sentence Appellant was already serving.
5
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) statement on May 9, 2014. The statement was due 21
days from the date of said filing, on May 30, 2014. The trial court’s docket
reflects that the order was served the same day. Appellant did not request
an extension of time to file his Rule 1925(b) statement. Appellant’s Rule
1925(b) statement was not filed until June 11, 2014. Our Supreme Court
has held that “Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement, when so
ordered[.]” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
However, this Court has held that failure to timely file a Rule 1925(b)
statement is the equivalent of a failure to file said statement.
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012), citing
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en
banc). Both failures constitute per se ineffective assistance of counsel,
which in criminal cases ordinarily requires a remand pursuant to Rule
1925(c)(3). Id. However, this Court held “[w]hen counsel has filed an
untimely Rule 1925(b) statement and the trial court has addressed those
issues we need not remand and may address the merits of the issues
presented.” Id. On July 2, 2014, the trial court issued its Rule 1925(a)
opinion, addressing the issues Appellant now raises before this Court.
Therefore, pursuant to Thompson, we may address the merits of
Appellant’s claims.
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A. Whether the trial court erred in grading
Appellant’s conviction for intimidation of
witnesses or victims as a felony of the second
degree when the charge was ultimately based
on a conviction for simple assault – a
misdemeanor[?]
B. Whether the sentence imposed by the trial
court was illegal, in part, as it was based on an
improper grade of a felony of the second
degree or, in the alternative, whether the
sentence was manifestly excessive and clearly
unreasonable[?]
Appellant’s Brief at 3.
In his first issue, Appellant avers that the trial court erroneously
graded his conviction for intimidation of witnesses as a second-degree
felony, as it was based on his conviction for simple assault which was graded
as a second-degree misdemeanor. Appellant’s Brief at 7. The
Commonwealth counters that the gradation was proper because the
conviction was based on the charge originally sought by the Commonwealth,
aggravated assault, which was graded a second-degree felony.
Commonwealth’s Brief at 4.
At the outset, we note the grading of a felony goes to the legality of
the sentence. Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super.
2013), appeal denied, 85 A.3d 482 (Pa. 2014). With this in mind, we begin
by noting our well-settled standard of review. “A challenge to the legality of
a sentence … may be entertained as long as the reviewing court has
jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa.
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Super. 2011) (citation omitted). It is also well-established that “[i]f no
statutory authorization exists for a particular sentence, that sentence is
illegal and subject to correction.” Commonwealth v. Rivera, 95 A.3d 913,
915 (Pa. Super. 2014) (citation omitted). “An illegal sentence must be
vacated.” Id. “Issues relating to the legality of a sentence are questions of
law[.] … Our standard of review over such questions is de novo and our
scope of review is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238
(Pa. Super. 2014) (citations omitted).
In this case, Appellant was convicted of intimidation of witnesses, the
statute for which provides as follows.
§ 4952. Intimidation of witnesses or victims
…
(b) Grading.--
(1) The offense is a felony of the degree indicated in
paragraphs (2) through (4) if:
(i) The actor employs force, violence or
deception, or threatens to employ force or
violence, upon the witness or victim or, with
the requisite intent or knowledge upon any
other person.
(ii) The actor offers any pecuniary or other
benefit to the witness or victim or, with the
requisite intent or knowledge, to any other
person.
(iii) The actor’s conduct is in furtherance of a
conspiracy to intimidate a witness or victim.
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(iv) The actor accepts, agrees or solicits
another to accept any pecuniary or other
benefit to intimidate a witness or victim.
(v) The actor has suffered any prior conviction
for any violation of this section or any
predecessor law hereto, or has been convicted,
under any Federal statute or statute of any
other state, of an act which would be a
violation of this section if committed in this
State.
(2) The offense is a felony of the first degree if a
felony of the first degree or murder in the first or
second degree was charged in the case in which the
actor sought to influence or intimidate a witness or
victim as specified in this subsection.
(3) The offense is a felony of the second degree if a
felony of the second degree is the most serious
offense charged in the case in which the actor sought
to influence or intimidate a witness or victim as
specified in this subsection.
(4) The offense is a felony of the third degree in any
other case in which the actor sought to influence or
intimidate a witness or victim as specified in this
subsection.
(5) Otherwise the offense is a misdemeanor of the
second degree.
18 Pa.C.S.A. § 4952(b). Appellant argues that because the sentence he pled
guilty to was simple assault graded as a second-degree misdemeanor, the
instant offense should have been graded as a second-degree misdemeanor
as well. Appellant’s Brief at 7. However, in the Commonwealth’s view,
because it originally charged Appellant with aggravated assault as a second-
degree felony, the gradation was proper, and it is of no moment that
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Appellant pled guilty to simple assault as a second-degree misdemeanor.
Commonwealth’s Brief at 4. Both parties cite to our decision in Felder.
In Felder, the defendant was convicted by a jury of intimidation of a
witness, simple assault, and criminal conspiracy. Felder, supra at 514.
Relevant to her appeal, the jury deadlocked on the charge of aggravated
assault, and the Commonwealth nolle prossed the charge. Id. Felder
challenged the grading of her intimidation of a witness conviction as a first-
degree felony on the same grounds as Appellant does in this case.
Felder… argues that because the jury hung on the
aggravated assault charge and it was nolle prossed
by the Commonwealth before sentencing, application
of subsection 4952(b)(2) was improper here.
According to Felder, the language of subsection
4952(b)(2) is ambiguous, and the proper
interpretation should be that grading is based upon
the highest grade offense existing at the time of
sentencing upon which the jury reached a verdict.
Based upon this interpretation, Felder contends that
she should have been sentenced on the
witness/victim intimidation conviction as a second[-
]degree misdemeanor.
Id. at 516 (internal quotation marks and citations omitted). After applying
traditional statutory construction principles, this Court concluded that
Section 4952(b) is not ambiguous.
If “a felony of the first-degree ... was charged in the
case,” then the offense of witness/victim intimidation
is graded as a first-degree felony. If the most
serious offense charged in the case was a second
degree felony, then the witness/victim intimidation
offense is graded as a second-degree felony. If no
first-degree or second-degree felony was charged in
the case, but the criminal defendant nevertheless
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sought to influence or intimidate a witness or victim
in any manner described in subsection 4952(b)(1),
then the witness/victim intimidation offense is
graded as a third degree felony. In all other cases,
the offense of witness/victim intimidation is graded
as a second-degree misdemeanor.
Id. Applying these principles to Felder’s case, this Court noted that because
the defendant was charged with aggravated assault as a first-degree felony,
the grading of the intimidation of a witness charge, also as a first-degree
felony, was proper. Id.
A first-degree felony was charged in this case,
and thus the trial court properly graded Felder's
conviction for witness/victim intimidation as a first-
degree felony pursuant to subsection 4952(b)(2).
Felder’s alternative interpretation of this subsection
would require us to insert additional language into
the statute, namely that the first-degree felony
charge “continued to exist in the case at the time of
sentencing.” Nothing in section 4952(b)(2) suggests
that the legislature intended such a result. To the
contrary, the statute’s focus on the most serious
crime charged makes eminent sense, since the
relevant charge is the most serious one a criminal
defendant attempted to escape by use of
intimidation.
Id. at 517.
Instantly, Appellant notes that this case is similar to Felder.
Appellant’s Brief at 8. Like in Felder, the Commonwealth charged Appellant
with aggravated assault as a second-degree felony, which was “the most
serious offense charged in the case in which [Appellant] sought to influence
or intimidate a witness[.]” 18 Pa.C.S.A. § 4952(b)(3). However, Appellant
argues that this case is different than Felder because “[p]ursuant to a plea
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agreement, the charge was amended to [s]imple [a]ssault and the
remaining charges were nolle prossed.” Appellant’s Brief at 8. Therefore, in
Appellant’s view, the second-degree felony gradation was improper because
it “was based on a charge that no longer existed.” Id.
We conclude this is a factual distinction without a legal difference. In
both cases, the aggravated assault charge that served as the basis for the
gradation of the intimidation of a witness charge as a felony was dropped.
In Felder, it was nolle prossed after a hung jury, and in this case it was
nolle prossed following an amendment of the charge to simple assault
pursuant to a plea bargain. Appellant does not explain why this factual
distinction makes a legal difference. It appears that Appellant is trying to
make the same argument as was attempted in Felder, to add additional text
into Section 4952, “namely that the [second]-degree felony charge
‘continued to exist in the case at the time of sentencing.’” Felder, supra.
As Felder rejected this extra caveat for Section 4952(b)(2), we reject it as
well for Section 4952(b)(3). Based on these considerations, we conclude the
trial court did not impose an illegal sentence when it graded Appellant’s
intimidation of witnesses charge as a second-degree felony. See Akbar,
supra. As a result, Appellant is not entitled to relief on this issue.
In his second issue, Appellant avers that if his sentence is legal, it was
nevertheless “manifestly excessive, clearly unreasonable and inconsistent
with the objectives of the Pennsylvania Sentencing Code.” Appellant’s Brief
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at 8. Specifically, Appellant argues that the trial court “failed to consider the
fact that the sentence was disproportionate to the circumstances and the
actions alleged to [] Appellant.” Id. at 9.
At the outset, we note that Appellant’s issue on appeal pertains to the
discretionary aspects of his sentence. It is axiomatic that in this
Commonwealth “[t]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d
663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards
an argument pertaining to the discretionary aspects of the sentence, this
Court considers such an argument to be a petition for permission to appeal.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “Rather,
an [a]ppeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the
sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (internal quotation marks and citation omitted).
Prior to reaching the merits of a discretionary sentencing issue, this
Court is required to conduct a four-part analysis to determine whether a
petition for permission to appeal should be granted. Commonwealth v.
Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) (citation omitted), appeal
denied, 99 A.3d 925 (Pa. 2014). Specifically, we must determine the
following.
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(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
[708]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
[Pa.C.S.A.] § 9781(b).
Id.
In the case sub judice, we note that Appellant filed a timely notice of
appeal. We further observe that Appellant has included a Rule 2119(f)
statement in his brief. However, as noted above in the procedural history of
this case, Appellant filed his post-sentence motion 21 days after the
imposition of sentence. Cf. Pa.R.Crim.P. 720(A)(1) (stating, “a written post-
sentence motion shall be filed no later than 10 days after imposition of
sentence[]”). Although Appellant titled his post-sentence motion as one
filed “nunc pro tunc,” the trial court did not expressly grant Appellant
permission to file a post-sentence motion nunc pro tunc. This is a
requirement under our cases. See, e.g., Commonwealth v. Patterson,
940 A.2d 493, 498 n.3 (Pa. Super. 2007) (stating, “a post-sentence motion
cannot toll the appeal period unless the appellant files a motion seeking
permission to file a post-sentence motion nunc pro tunc and the trial court
expressly grants this request within thirty days of the imposition of the
sentence[]”); Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa. Super.
2003) (en banc) (stating, “[t]he trial court’s resolution of the merits of the
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late post-sentence motion is no substitute for an order expressly granting
nunc pro tunc relief[]”). Based on these considerations, we conclude
Appellant has failed to preserve any issue pertaining to the discretionary
aspects of his sentence.6 See Trinidad, supra.
Based on the foregoing, we conclude both of Appellant’s sentencing
claims are either waived or devoid of merit. Accordingly, the trial court’s
April 7, 2014 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2015
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6
Even if Appellant’s post-sentence motion was timely and assuming
arguendo that Appellant had raised a substantial question for our review, we
would still nevertheless deem his issue waived. Appellant’s argument for
this issue is woefully underdeveloped for this Court to engage in any
meaningful appellate review, thus we would deem Appellant’s issue waived
on this basis as well. See generally Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009) (stating, “where an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that
claim is waived[]”), cert. denied, Johnson v. Pennsylvania, 131 S. Ct. 250
(2010).
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