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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM VOSE, : No. 3076 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, October 16, 2014,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0003865-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 23, 2015
William Vose appeals from the judgment of sentence of October 16,
2014, following his conviction of one count of conspiracy to commit robbery.
We affirm.
The trial court has set forth the procedural history of this matter as
follows:
A jury found defendant guilty on June 18,
2014, of one count of conspiracy to commit robbery.
He was found not guilty of robbery. This court
sentenced defendant on October 16, 2014, to three
to 10 years in prison and a consecutive five-year
period of probation.
Defendant, through counsel, filed a timely
post-sentence motion on October 21, 2014. He
alleged the sentence imposed was unduly harsh and
excessive and requested a reconsideration of the
length of the prison term. He also moved for a new
trial on the ground the verdict was against the
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weight of the evidence and moved for judgment of
acquittal or a new trial on the ground the evidence
failed to establish each element of the crimes
charged and the commission thereof by defendant.
Finally, defendant requested a new trial on the basis
of alleged after-discovered evidence.
Before this court addressed the motion,
defendant filed a notice of appeal on October 28,
2014. That same day, this court issued an Order
directing defendant to amend his post-sentence
motion within 10 days to assert with specificity the
basis for the claim of after-discovered evidence.
Defendant did not file an amended petition. This
court denied the post-sentence motion in an Order
dated November 13, 2014, and directed defendant to
file within 21 days a concise statement of issues in
accordance with Pennsylvania Rule of Appellate
Procedure 1925(b). Defendant complied with that
directive.
Trial court opinion, 1/5/15 at 1-2.
Appellant has raised the following issues for this court’s review:
1. Whether the trial court was in error when it
ruled against Defendant’s Post Trial Motion in
which Defendant submitted and averred that
the underlying sentence imposed was unduly
harsh and excessive as it relates to the length
of the prison term and to mitigation testimony
presented?
2. Whether the trial [court] was in error when it
ruled against Defendant’s Post Trial Motion in
which Defendant submitted that the underlying
jury’s verdict was against the weight and
sufficiency of the evidence and demonstrated a
reasonable doubt [as] to whether the
Defendant had committed the crimes in which
he was charged?
3. Whether the trial [court] was in error when it
ruled against Defendant’s Motion for Judgment
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of Acquittal in which the Defendant submitted
that the Commonwealth failed to present
sufficient evidence for the trier of fact to find
the Defendant guilty of the crimes in which he
was charged and because the evidence failed
to establish each material element of the
crimes charge[d] and the commission thereof
by the Defendant beyond a reasonable doubt?
Appellant’s brief at 5.
Before we may address the merits of the issues raised on appeal, we
must address the Commonwealth’s contention that the appeal should be
quashed. According to the Commonwealth, the trial court lost jurisdiction
when appellant filed a premature notice of appeal on October 28, 2014, prior
to disposition of his post-sentence motion. Therefore, the Commonwealth
characterizes the trial court’s November 13, 2014 order denying appellant’s
post-sentence motion as a legal nullity. We disagree.
We addressed a similar scenario in Commonwealth v. Rojas, 874
A.2d 638 (Pa.Super. 2005), in which the appellant filed a notice of appeal
prior to disposition of his post-sentence motion. Id. at 641. As in this case,
the Commonwealth argued that the appeal divested the lower court of
jurisdiction over the previously filed post-sentence motion, and, therefore,
the order dismissing the appellant’s post-sentence motion was a nullity,
entered without jurisdiction. Id. Citing Commonwealth v. Borrero, 692
A.2d 158 (Pa.Super. 1997), this court disagreed, finding that because,
pursuant to Pa.R.Crim.P. 720, the judgment of sentence does not become
final for appeal purposes until the trial court disposes of the post-sentence
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motion or it is denied by operation of law, the appellant’s direct appeal was
improperly filed from a non-final order and did not divest the trial court of
jurisdiction to decide his post-sentence motion. Id. at 643. As this court
explained in Borrero, where the appellant also filed a premature direct
appeal before his timely post-sentence motions were disposed of by the trial
court or denied by operation of law:
[T]he appeal did not divest the trial court of
jurisdiction in this instance. As previously indicated,
the comment to Rule [720] explicitly prohibits the
filing of an appeal while post-sentencing motions are
pending. Comment to Pa.R.Crim.P., Rule [720],
42 Pa.C.S.A., supra. The comment further provides
that a judgment of sentence does not become final
until post-sentencing motions are ruled upon by the
trial court or are denied by operation of law. Id.
Moreover, a trial court may proceed further in any
matter in which a nonappealable order has been
entered, notwithstanding the filing of a notice of
appeal. Pa.R.A.P., Rule 1701(b)(6), 42 Pa.C.S.A.
Consequently, appellant’s improper appeal did not
divest the trial court of jurisdiction to decide
appellant’s post-sentencing motion or deny it by
operation of law.
Id., quoting Borrero, 692 A.2d at 161 n.4. Thus, when the trial court
denied appellant’s post-sentence motion on November 13, 2014, appellant’s
judgment of sentence became final for appeal purposes. Despite having
filed a premature notice of appeal, the instant appeal is not from an
interlocutory judgment of sentence and this court has jurisdiction. See
Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a
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determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”).
In his first issue on appeal, appellant challenges the discretionary
aspects of sentencing. Appellant argues that the trial court failed to put
reasons on the record justifying an upward departure from the standard
range of the sentencing guidelines.
“A challenge to the discretionary aspects of a sentence requires the
claimant to set forth in his brief a separate, concise statement of the reasons
relied upon for the allowance of appeal as to that challenge.”
Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super. 2002), appeal
denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),
citing Commonwealth v. Eby, 784 A.2d 204, 206 n.2 (Pa.Super. 2001), in
turn citing Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 522 A.2d
17 (Pa. 1987). Appellant has complied with this requirement. (Appellant’s
brief at 8.)
This Court may reach the merits of an appeal
challenging the discretionary aspects of a sentence
only if it appears that a substantial question exists as
to whether the sentence imposed is not appropriate
under the Sentencing Code. “A substantial question
will be found where the defendant advances a
colorable argument that the sentence imposed is
either inconsistent with a specific provision of the
code or is contrary to the fundamental norms which
underlie the sentencing process. A claim that the
sentencing court imposed an unreasonable sentence
by sentencing outside the guideline ranges presents
a ‘substantial question’ for our review.”
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Griffin, supra, quoting Eby, supra.
The matter of sentencing is vested within the sound
discretion of the trial court; we only reverse the
court’s determination upon an abuse of discretion.
To demonstrate that the trial court has abused its
discretion, 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.
Moreover, 42 Pa.C.S.A. § 9721(b) provides that the
trial court must disclose, on the record, its reasons
for imposing the sentence.
Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)
(citations and internal quotation marks omitted). “[T]he sentencing judge
must state of record the factual basis and specific reasons which compelled
him or her to deviate from the guideline ranges. When evaluating a claim of
this type, it is necessary to remember that the sentencing guidelines are
advisory only.” Griffin, supra at 8, citing Eby, supra.
Here, appellant received an aggravated range sentence of 3-10 years’
incarceration. The trial court explained at sentencing that appellant failed to
appreciate the seriousness of his conduct or take responsibility for his crime.
(Trial court opinion, 1/5/15 at 4.) Appellant was only interested in himself
and did not demonstrate any empathy towards the victim. (Id.) Appellant
characterized the victim as “a drug dealer and somebody robbed him.”
(Notes of testimony, 10/16/14 at 26.) Appellant sought to minimize the
incident, remarking that, “It was against the law. But I feel like it is worse
than what it really was, you know.” (Id. at 27.) Appellant continued to
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deny his involvement, allowing only that, “I did know about it.” (Id. at 26.)
Appellant focused on himself and his punishment, lamenting that,
being in jail has not helped me at all, it is not helping
my family. And I understand that there is a justice
system and, you know, there is [sic] rules, you
know, but I feel like I have changed a lot and I feel
like my family deserves to have me there and my
son deserves to have me there.
Id. at 25.
In addition, the alleged robbery involved the use of a firearm which
was discharged. (Trial court opinion, 1/5/15 at 4.) As the trial court
remarked, appellant is fortunate that no one was injured. (Id.) Finally, the
trial court considered the information contained in the pre-sentence
investigation report. (Id.) “Where the sentencing judge had the benefit of
a pre-sentence report, it will be presumed that he was aware of relevant
information regarding appellant’s character and weighed those
considerations along with the mitigating statutory factors.”
Commonwealth v. Fullin, 892 A.2d 843, 849-850 (Pa.Super. 2006),
quoting Commonwealth v. L.N., 787 A.2d 1064 (Pa.Super. 2001). The
trial court placed sufficient reasons on the record justifying an aggravated
range sentence. Appellant’s discretionary aspects of sentencing claim fails.1
1
Appellant argues that the trial court mistakenly stated the firearm was
discharged three times, when the testimony indicated the firearm was
discharged only once. (Appellant’s brief at 10.) However, this apparent
discrepancy did not appear to be crucial to the trial court’s disposition.
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Next, appellant argues that the jury’s verdict was against the weight of
the evidence. Appellant argues that the victim, Tyler Smith (“Smith”),
lacked credibility as a drug dealer and was not able to identify appellant.
(Appellant’s brief at 13.) Appellant also states that his co-conspirator,
Lauren Caroluzzi (“Caroluzzi”), agreed to an open plea to third-degree
robbery in exchange for her testimony against appellant. (Id.) Appellant
paints Caroluzzi as a biased witness with a motive to lie. Caroluzzi admitted
that the robbery was her idea. (Id.) Appellant testified on his own behalf
and denied any participation in the robbery.
A weight of the evidence claim concedes
that the evidence is sufficient to sustain
the verdict, but seeks a new trial on the
ground that the evidence was so
one-sided or so weighted in favor of
acquittal that a guilty verdict shocks
one’s sense of justice.
Commonwealth v. Lyons, Pa. , 79 A.3d
1053, 1067 (2013).
The Pennsylvania Supreme Court has
reiterated the proper standard of review of a weight
claim as follows:
A motion for a new trial based on a claim
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. Rather,
“the role of the trial judge is to
determine that ‘notwithstanding all the
facts, certain facts are so clearly of
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greater weight that to ignore them or to
give them equal weight with all the facts
is to deny justice.’” It has often been
stated that “a new trial should be
awarded when the jury’s verdict is so
contrary to the evidence as to shock
one’s sense of justice and the award of a
new trial is imperative so that right may
be given another opportunity to prevail.”
An appellate court’s standard of review
when presented with a weight of the
evidence claim is distinct from the
standard of review applied by the trial
court:
Appellate review of a weight
claim is a review of the
exercise of discretion, not of
the underlying question of
whether the verdict is against
the 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.
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This does not mean that the exercise of
discretion by the trial court in granting or
denying a motion for a new trial based
on a challenge to the weight of the
evidence is unfettered. In describing the
limits of a trial court’s discretion, we
have explained:
The term “discretion” imports
the exercise of judgment,
wisdom and skill so as to
reach a dispassionate
conclusion within the
framework of the law, and is
not exercised for the purpose
of giving effect to the will of
the judge. Discretion must
be exercised on the
foundation of reason, as
opposed to prejudice,
personal motivations, caprice
or arbitrary actions.
Discretion is abused where
the course pursued
represents not merely an
error of judgment, but where
the judgment is manifestly
unreasonable or where the
law is not applied or where
the record shows that the
action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, Pa. , 64 A.3d
1049, 1054–1055 (2013) (citations omitted)
(emphasis in original).
Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014),
appeal denied, 99 A.3d 925 (Pa. 2014).
Caroluzzi testified that on December 25, 2012, Christmas Day,
appellant invited her to his grandmother’s house for Christmas dinner.
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(Notes of testimony, 6/16/14 at 56.) Caroluzzi and appellant were close
friends and had known each other for three or four years. (Id. at 57-58.)
After dinner, appellant confided to Caroluzzi that he owed someone money
who was “going to come after him.” (Id. at 58.) Caroluzzi suggested
robbing a drug dealer of a quarter pound of marijuana and then selling the
drugs for a profit. (Id.) Appellant readily agreed, without hesitation. (Id.
at 58-59.)
Caroluzzi called a friend of hers, Smith, and asked if he would be able
to sell her a quarter pound of marijuana. (Id. at 59.) Caroluzzi chose Smith
because he is of small stature and she knew he would agree to do it. (Id. at
59-60.) Smith picked Caroluzzi up in his car and they drove to appellant’s
cousin’s house, where the transaction was to take place. (Id. at 62.)
Caroluzzi testified that they did not discuss using a gun; she told appellant
that Smith was “a little kid” and he would be able to physically overpower
him and take the marijuana. (Id. at 63.)
When they arrived and exited the vehicle, appellant came out of the
bushes with a shotgun. (Id. at 67.) Caroluzzi testified that appellant fired
the shotgun and took the marijuana, as well as Smith’s car keys, and ran.
(Id.) Caroluzzi could not see where appellant was pointing the gun when he
fired, but as far as she could tell, he was not pointing it at Smith. (Id. at
67-68.) Caroluzzi and appellant ran to a friend’s house where they smoked
marijuana. (Id. at 68.) When Caroluzzi asked appellant why he brought the
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gun, appellant replied that it was the only way to frighten Smith into giving
up the marijuana. (Id. at 69.) Later, when Caroluzzi’s stepmother
confronted appellant about the incident, appellant was crying and saying he
was sorry. (Id. at 142.)
Smith testified that he agreed to sell Caroluzzi a quarter pound of
marijuana for $1,400. (Id. at 84-85.) As they were walking into the yard,
he heard a gunshot and fell, but could not see the gunman. (Id. at 89.) A
male individual came up from behind and told him to give up the bag of
marijuana. (Id. at 90-91.) They then took the bag and left. (Id. at 92.)
Leigh-Ann Kelly, an area resident, testified that in the early morning hours of
December 26, 2012, she heard a single gunshot. (Id. at 51-52.)
Clearly, as the trial court states, the jury was free to reject appellant’s
version of events and credit the testimony of Caroluzzi and Smith. (Trial
court opinion, 1/5/15 at 5.) Caroluzzi testified that appellant readily agreed
to the robbery and was, in fact, the man with the shotgun. Issues regarding
bias and credibility, including the fact that additional charges against
Caroluzzi were withdrawn in exchange for her truthful testimony, were for
the jury. The trial court did not abuse its discretion in rejecting appellant’s
weight of the evidence claim.
Finally, appellant challenges the sufficiency of the evidence to support
the jury’s verdict. Appellant argues that Caroluzzi’s testimony was tainted
and that the jury clearly did not find her wholly credible, as evidenced by
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their not guilty verdict on the robbery charge. (Appellant’s brief at 14.)
Appellant also claims that Caroluzzi’s testimony was contradicted by one of
his witnesses. (Id.)
In his Rule 1925(b) statement, appellant frames the issue as:
The Honorable Court was in error when it ruled
against the Defendant’s Motion for Judgment of
Acquittal where the Defendant submits that the
Commonwealth failed to present sufficient evidence
for the trier of fact to find to find [sic] the Defendant
guilty of the crimes charged and because the
evidence failed to establish each material element of
the crimes charged and the commission thereof by
the Defendant beyond a reasonable doubt.
Docket #44. Appellant’s post-sentence motion was similarly boilerplate.
Appellant does not specify which particular elements of the offense were not
met. Appellant does not state how or why the evidence was insufficient.
In Commonwealth v. Williams, 959 A.2d 1252,
1257 (Pa.Super. 2008), this Court stated, “[i]f
Appellant wants to preserve a claim that the
evidence was insufficient, then the 1925(b)
statement needs to specify the element or elements
upon which the evidence was insufficient. This Court
can then analyze the element or elements on
appeal.”
Commonwealth v. Manley, 985 A.2d 256, 261-262 (Pa.Super. 2009),
appeal denied, 996 A.2d 491 (Pa. 2010). “As this Court stated in
Williams, the 1925(b) statement is required to determine ‘[w]hich elements
of which offense[s] were unproven? What part of the case did the
Commonwealth not prove?’” Id. at 262, quoting Williams, 959 A.2d at
1257.
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Appellant’s boilerplate Rule 1925(b) statement is manifestly
inadequate to preserve the issue. Furthermore, the arguments appellant
makes now, that Caroluzzi was not credible and that her testimony conflicted
with that of another witness, really go to the weight of the evidence, not its
sufficiency.2 We agree with the trial court that viewing the evidence in the
light most favorable to the Commonwealth, as verdict winner, it was
sufficient to establish each element of the crime of conspiracy to commit
robbery. (Trial court opinion, 1/5/15 at 7.)
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/2015
2
The law is well settled that a sufficiency argument
that is founded upon a mere disagreement with the
credibility determinations made by the fact finder, or
discrepancies in the accounts of the witnesses, does
not warrant the grant of appellate relief, for [i]t is
within the province of the fact finder to determine
the weight to be accorded each witness’s testimony
and to believe all, part, or none of the evidence
introduced at trial.
Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa.Super. 2006), appeal
denied, 923 A.2d 1173 (Pa. 2007) (quotation marks and citations omitted).
“Moreover, a verdict may be predicated upon the uncorroborated testimony
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of an accomplice.” Commonwealth v. Mikell, 729 A.2d 566, 570 (Pa.
1999) (citation omitted).
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