J-S71017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT SANDS,
Appellant No. 244 WDA 2015
Appeal from the Judgment of Sentence August 25, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009317-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 27, 2016
Appellant, Robert Sands, appeals from the judgment of sentence
entered following his convictions of two counts of aggravated assault and
one count of carrying a firearm without a license, a violation of the Uniform
Firearms Act (“VUFA”). We affirm.
We summarize the history of this case as follows. On April 17, 2013,
at approximately 1:30 p.m., Appellant and Carloto Neal had a confrontation
on the street outside of Mr. Neal’s home in the East Liberty section of
Pittsburgh. The situation arose from a dispute regarding Appellant’s alleged
girlfriend. Mr. Neal’s mother, Jennifer Scott, was also present at the time.
The incident culminated in Appellant pulling a gun, pointing the firearm at
Mr. Neal’s face and chest, and ultimately shooting Mr. Neal in the groin.
Prior to fleeing the scene, Appellant also pointed the gun at Ms. Scott’s face.
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In an information filed on August 16, 2013, Appellant was charged
with one count of criminal attempt (criminal homicide), two counts of
aggravated assault, and one count of VUFA. On March 28, 2014, Appellant
proceeded to a nonjury trial and upon motion of defense counsel a mistrial
was granted. Subsequently, after new counsel was appointed, Appellant
proceeded to a jury trial that commenced on June 16, 2014.
The trial court summarized the remaining procedural history of this
case as follows:
On June 17, 2014, [Appellant] was found guilty of two
counts of aggravated assault, [18 Pa.C.S. §] 2702 (A)(1) and
[18 Pa.C.S. §] 2702 (A)(4), and carrying a firearm without a
license, [18 Pa.C.S. §] 6106 (A)(1).1 A pre-sentence report was
ordered. It was received in time for sentencing on August 25 th.
At Count 2 - causing serious bodily injury - the Court’s sentence
was 6-12 years incarceration followed by 8 years of probation. A
concurrent 1-2 year period of incarceration was imposed at the
remaining two counts.
1
The jury acquitted [Appellant] of attempted
homicide which was Count One in the Information.
On September 3, 2014, a Motion to Reconsider Sentence
was file[d] along with a separate Omnibus Post-Sentence Motion.
The reconsideration request was denied on September 4th.
Within the Omnibus [Post-Sentence] Motion was a request to file
a supplemental motion. It was granted. On October 30, 2014,
[Appellant] filed his anticipated Supplemen[tal] Post-Sentence
Motion. On December [1]2, 2014, the Government finally
docketed its response. [On January 14, 2015, the Allegheny
County Director of Court Records issued an order indicating that
the post-sentence motions were denied by operation of law.] On
February 11, 2015, this Court authored an opinion addressing
[Appellant’s] post-sentence arguments. . . . A timely Notice of
Appeal was docketed on February 10, 2015, and a 1925(b) order
followed. [Appellant] timely filed and properly served his
Concise Statement of Matters Complained of on Appeal.
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Trial Court Opinion, 4/6/15, at 1-2 (emphases in original).
Appellant presents the following issues for our review:
I. Did the Trial Court err as a matter of law in determining that
there was sufficient evidence to convict [Appellant] of
Aggravated Assault?
II. As such, did the Trial Court err as a matter of law in denying
[Appellant’s] Motion for a New Trial due to the Verdict against
the Weight of the Evidence?
III. Did the sentence imposed by the Trial Court violate the Due
Process Clause of the Fourteenth Amendment as the sentencing
factor was not proven beyond a reasonable doubt?
IV. Finally, were the jury instructions presented by the Judge
unconstitutional?
Appellant’s Brief at 2.1
We first address Appellant’s claim that there was insufficient evidence
to support his convictions. Appellant’s Brief at 6-8. In reviewing the
sufficiency of the evidence, we must determine whether the evidence
admitted at trial and all reasonable inferences drawn therefrom, viewed in
the light most favorable to the Commonwealth as verdict winner, was
sufficient to prove every element of the offense beyond a reasonable doubt.
Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009). It is within the
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1
Appellant has included in the statement of questions presented at issue
number four a claim that the jury instructions were unconstitutional.
Appellant’s Brief at 2. However, we conclude that the claim is abandoned
because Appellant has not developed any argument relating to the trial
court’s instructions to the jury in the argument section of his appellate brief.
Appellant’s Brief at 6-12. See Pa.R.A.P. 2119(a).
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province of the fact-finder to determine the weight to be accorded to each
witness’s testimony and to believe all, part, or none of the evidence.
Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007). The
Commonwealth may sustain its burden of proving every element of the
crime by means of wholly circumstantial evidence. Commonwealth v.
Hansley, 24 A.3d 410 (Pa. Super. 2011). Moreover, as an appellate court,
we may not re-weigh the evidence and substitute our judgment for that of
the fact-finder. Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007).
Instantly, Appellant has abandoned any argument concerning the
sufficiency of the evidence. Regarding sufficiency-of-the-evidence issues, an
appellant must specify the elements upon which the evidence was
insufficient in order to preserve the issue for appeal. See Commonwealth
v. Williams, 959 A.2d 1252, 1257–1258 (Pa. Super. 2008) (finding waiver
where the appellant failed to specify the elements of particular crime not
proven by the Commonwealth). See also Commonwealth v. Gibbs, 981
A.2d 274, 281 (Pa. Super. 2009) (finding claim waived under Williams for
failure to specify either in Rule 1925(b) statement or in argument portion of
appellate brief which elements of crimes were not proven beyond a
reasonable doubt).
Appellant’s Pa.R.A.P. 1925(b) statement presents the following
pertinent issue, which fails to specify the elements of the crimes allegedly
not proven by the Commonwealth:
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8. [Appellant] through undersigned counsel will raise the following
claims on appeal:
• The evidence was insufficient as a matter of law to convict
[Appellant] of the one (1) count of Aggravated Assault; Pa. C.S.
18 §2702§§A1, one (1) count of Aggravated Assault; Pa. C.S 18
§2702§§A4, and one(1) count of Firearm Not to be Carried
Without a License; Pa. C.S. 18 §6106§§A1. The evidence, taken
in the light most favorable to the Commonwealth, failed to prove
his guilt beyond a reasonable doubt.
Concise Statement (Record Entry 32), 3/18/15, at 2-3.
In addressing this claim, the trial court stated the following:
[Appellant’s] initial complaint is the evidence was
insufficient to sustain each of the three convictions. Concise
Statement, paragraph 8 (March 18, 2015). This same argument
was made in his Post–Sentence Motion. The Court addressed
[Appellant’s] lack of specificity in its post-sentence opinion.
Despite the Court’s clue that more will be needed for
preservation purposes, [Appellant’s] Concise Statement fails to
deliver. The sufficiency arguments have been waived.
Trial Court Opinion, 4/6/15, at 2 (emphases in original).
Likewise, Appellant has failed to specify in his appellate brief the
elements of the crimes that allegedly were not established. Rather,
Appellant’s argument consists of citation to case law and challenges to the
credibility and reliability of the testimony offered by Mr. Neal and Ms. Scott
and the lack of physical evidence produced by the Commonwealth.
Appellant’s argument in this regard ends with the following summation:
Without the firearm, bullets, shell casing, or any further
investigation done by the police to corroborate the testimony of
Mr. Neal and his Mother, the Commonwealth’s evidence was not
sufficient to prove [Appellant’s] guilt beyond a reasonable doubt.
The jury’s verdict was in error and [Appellant] should have been
acquitted of the charges pertaining to Aggravated Assault under
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Section 2702 § §A4, as well as Firearm not to be Carried Without
a License pursuant to Section 6106 § §A1.
Appellant’s Brief at 8. Consequently, Appellant’s non-specific claim
challenging the sufficiency of the evidence, which fails to state the exact
elements of the particular crimes allegedly not proven by the
Commonwealth, is waived. Williams.
In his second issue, Appellant argues that the jury’s verdict was
against the weight of the evidence. Appellant’s Brief at 8-10. Appellant
alleges that the jury improperly weighed the testimony of Mr. Neal and Ms.
Scott and wrongly ignored the lack of evidence to support their version of
events. Appellant contends that the jury should have considered the fact
that the gun was never recovered, no bullet was recovered from Mr. Neal,
no testing was done on the hands of Appellant or Neal to determine who
fired the gun, and no photographs or other crime-scene investigatory
evidence was presented.
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
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. Commonwealth v. Widmer, 560
Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000);
Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
1189 (1994). 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. Widmer, 560
A.2d at 319-20, 744 A.2d at 752. Rather, “the role of the trial
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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.’” Id.
at 320, 744 A.2d at 752 (citation omitted). 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.” Brown, 538 Pa.
at 435, 648 A.2d at 1189.
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. Brown, 648 A.2d at 1189. 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. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
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.
Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
added).
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
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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.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the least assailable of its
rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).
Our review of the record reflects that the trial court addressed
Appellant’s challenge to the weight of the evidence supporting his
convictions and determined that it lacked merit. Specifically, the trial court
stated the following:
[Appellant’s] weight challenge fails to convince. The points he
directs our attention to were matters put before the jury and
they weighed them and gave them the weight [they] felt
appropriate. The jury’s acquittal on the most serious charge
demonstrates they gave careful consideration to the evidence
including those items brought forth by [Appellant’s] lawyer.
Trial Court Opinion, 4/6/15, at 2 (quoting Trial Court Opinion, 2/11/15, at
3).
The jury, sitting as the finder of fact, was free to believe all, part, or
none of the evidence against Appellant, as was its right. The jury weighed
the evidence and concluded Appellant perpetrated the crimes in question.
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This determination is not so contrary to the evidence as to shock one’s sense
of justice. We decline Appellant’s invitation to assume the role of fact finder
and to reweigh the evidence. Accordingly, we conclude that the trial court
did not abuse its discretion in determining that Appellant’s weight of the
evidence claim lacked merit. Thus, this claim fails to provide Appellant
relief.
In his third issue, Appellant argues that the trial court erred in
imposing his sentence. Appellant’s Brief at 10-12. Specifically, Appellant
states that he “was sentenced pursuant to an increased offense gravity score
relating to the actual infliction of serious bodily injury, with a score of eleven
(11) as opposed to ten (10). In this instance a score of ten (10) instead of
eleven (11) would have applied without such an injury.” Appellant’s Brief at
10. Basically, Appellant contends that an incorrect offense gravity score was
utilized by the trial court because the jury should not have convicted
Appellant of aggravated assault with serious bodily injury as there was
insufficient evidence to support his conviction.
Appellant’s claim challenges the discretionary aspects of his sentence.
See Commonwealth v. Lamonda, 52 A.3d 365 (Pa. Super. 2012)
(explaining claim that sentencing court applied incorrect offense gravity
score challenges discretionary aspects of sentencing); Commonwealth v.
Robinson, 931 A.2d 15 (Pa. Super. 2007) (stating miscalculation of offense
gravity score constitutes challenge to discretionary aspects of sentencing);
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Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998) (determining
claim of improper calculation of offense gravity score implicates discretionary
aspects of sentencing).
We note that our standard of review is one of abuse of discretion.
Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion. Commonwealth v. Shugars, 895 A.2d 1270, 1275
(Pa. Super. 2006).
Where an appellant challenges the discretionary aspects of a sentence
there is no automatic right to appeal, and an appellant’s appeal should be
considered to be a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (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, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Objections to the discretionary aspects of a sentence are generally
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waived if they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Id. (citing Commonwealth v. Mann, 820
A.2d 788 (Pa. Super. 2003)). Moreover, where an appellant fails to comply
with Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived
for purposes of review. Commonwealth v. Farmer, 758 A.2d 173, 182
(Pa. Super. 2000).
Herein, the first of the requirements of the four-part test is met
because Appellant brought a timely appeal. Likewise, our review of the
record reflects that Appellant met the second requirement because he raised
a similar challenge in his post-sentence motion.
However, Appellant has not met the third requirement of the test
because he failed to comply with the requirements of Pa.R.A.P. 2119(f).
Specifically, Appellant has not filed a concise statement of reasons relied
upon for the allowance of appeal in his brief. The Commonwealth is aware
of the omission and has objected to this deficiency. See Commonwealth’s
Brief at 29. Accordingly, because of the fatal defect in the appellate brief
and the Commonwealth’s objection, we are precluded from reviewing the
merits of Appellant’s sentencing claim and deem it to be waived. Farmer,
758 A.2d at 182. Cf. Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.
Super. 2002) (holding that if the appellant fails to comply with Pa.R.A.P
2119(f), Superior Court may entertain discretionary sentencing claim if
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Commonwealth does not object to the appellant’s failure to comply with
Pa.R.A.P. 2119(f)).2, 3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2016
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2
In addition, we note that the jury specifically found Appellant guilty of the
crime of “Aggravated Assault: Serious Bodily Injury” under 18 Pa.C.S. §
2702(a)(1). Verdict Sheet, 6/17/14, at 1 (Record Entry 16). Pursuant to
the sentencing guidelines, such a conviction carries an offense gravity score
of 11. 204 Pa.Code § 303.15. Thus, Appellant’s claim that the trial court
abused its discretion at the time of sentencing because it applied an
incorrect offense gravity score for his conviction of aggravated assault under
18 Pa.C.S. § 2702(a)(1) is belied by the record.
3
To the extent that Appellant has, on previous occasions, attempted to
challenge the legality of his sentence for applying an unconstitutional
mandatory minimum sentence as discussed in the Commonwealth’s brief,
Appellee’s Brief at 25-28, our review of the record reflects that the trial court
did not impose any mandatory minimum sentence in this case.
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