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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ZAQUAN STEVEN HARGETT, :
:
Appellant : No. 1569 MDA 2015
Appeal from the Judgment of Sentence August 12, 2015
in the Court of Common Pleas of Dauphin County,
Criminal Division, at No(s): CP-22-CR-0003317-2014
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 14, 2016
Zaquan Steven Hargett (Appellant) appeals from the judgment of
sentence entered on August 12, 2015, following his conviction for simple
assault. We affirm.
The trial court aptly set forth the relevant factual and procedural
history of this matter as follows.
On May 10, 2014, at around midnight, Scotty Ball and his
then fiancé[e] Rachel Hartman were in a hospital room at the
Milton S. Hershey Medical Center with Rachel’s young son,
Zamari, who was scheduled for surgery for injuries suffered as a
result of a dog bite. [Appellant] is the biological father of Zamari.
At approximately 2 o’clock a.m., as Mr. Ball and Ms.
Hartman prepared to rest for the night on a chair and sofa near
Zamari, [Appellant] entered the room and told Mr. Ball, who was
seated, “You [sic] sleeping outside.”
Ms. Hartman responded that Mr. Ball was not going to
leave and stepped between [Appellant] and Mr. Ball. [Appellant]
became angry and ripped off his shirt. As Mr. Ball remained
*Retired Senior Judge assigned to the Superior Court.
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seated, [Appellant] suddenly began punching him with closed
fists. Mr. Ball attempted to cover his face and stand. As Mr. Ball
stood, [Appellant] continued to punch him, causing him to fall.
Because Mr. Ball did not want to brace himself on the child’s crib
during the attack, he fell directly onto his arm. Mr. Ball did not
throw a punch to [Appellant] at any time.
[Appellant’s] blows struck Mr. Ball in the nose, face and
forehead. Photographs admitted as Commonwealth Exhibits 1-3
depict the injuries [Appellant] inflicted upon Mr. Ball. Mr. Ball
sustained contusions, swelling of the eye, a broken nose, lumps
on the left side of the head, a broken index finger and injury to
his arm. A nurse gave Mr. Ball a towel to attempt to stop the
profuse bleeding.
Officer Michael McCormick responded to the dispatch to
the Medical Center. When Officer McCormick arrived at the
hospital room, Mr. Ball was holding a blood-soaked towel to his
face. [Appellant] had no injuries.
At trial, [Appellant] admitted that he punched Mr. Ball in
the face, but claimed that Mr. Ball struck him first. [Appellant]
testified that Mr. Ball inflicted injuries upon himself.
The jury found [Appellant] guilty of simple assault[, but
acquitted him of disorderly conduct.]
Immediately following the verdict, the [c]ourt sentenced
[Appellant] to a term of not less than one year nor more than
two years in a state correctional institution. [Appellant] filed a
post sentence motion on August 21, 2015 to which the
Commonwealth filed an answer and new matter. On September
1, 2015, the [c]ourt denied [Appellant’s] post sentence motion.
[Appellant] filed a notice of appeal on September 10,
2015. Pursuant to the [c]ourt’s order, [Appellant] filed a timely
concise statement of [errors] complained of on appeal on
September 15, 2015. [The trial court filed a 1925(a) opinion.]
Trial Court Opinion, 11/5/2015, at 1-3 (citations to notes of testimony and
unnecessary capitalization omitted).
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Appellant raises the following issues for our review.
1. Whether the trial court erred in denying Appellant’s post
sentence motion for arrest of judgment where the jury verdict of
guilty was against the weight of the evidence because the
Commonwealth failed to show that Appellant sustained any
injuries indicative of fighting?
2. Whether the trial court abused its discretion in sentencing
Appellant to the maximum permissible sentence of one to two
years of incarceration where the sentence is excessive and
unreasonable in light of the Appellant’s background and
rehabilitative needs and the trial court considered Appellant’s
prior record score twice for sentencing purposes?
Appellant’s Brief at 6.
Appellant first argues that the lack of “visible injuries” and “blood on
his hands” at the time of his arrest belies the victim’s testimony that
Appellant committed an assault. Appellant’s Brief at 15. We address
Appellant’s claim mindful of the following.1
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review. Moreover, where the trial court
has ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate review is
1
Although presented in his statement of questions involved as a sufficiency
claim, Appellant’s first argument implicates the weight of the evidence. See
Commonwealth v. Vogel, 461 A.2d 604, 607 (Pa. 1983) (holding that
arrest of judgment is the proper remedy at law when the evidence presented
is insufficient to support a conviction); Commonwealth v. Yong, 120 A.3d
299, 312 n.9 (Pa. Super. 2015) (reiterating that a challenge to the credibility
of the Commonwealth’s witnesses implicates the weight, not the
sufficiency of the evidence presented at trial.)
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limited to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)
(citations and quotations omitted).
Appellant’s limited argument on this point assails the inconsistencies in
the victim’s testimony and suggests that the jury erred in disbelieving his
version of events. However, reconciling inconsistencies in the testimony was
within the province of the fact-finder. Commonwealth v. Simmons, 662
A.2d 621, 630 (Pa. 1995) (“After examining the evidence in this case, we
find that appellant’s assertion that the inconsistencies in the witnesses’
testimony rendered them incredible to have no merit since the inaccuracies
claimed are only minor and a witness’s credibility is solely for the [fact-
finder] to determine.”). Additionally, it is well-settled that “the [fact-finder]
is free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses.” Commonwealth v. Cousar, 928 A.2d 1025,
1035-36 (Pa. 2007).
In evaluating this claim, the trial court concluded that the evidence
presented at trial “sufficiently supports the verdict [and] also weighs in a
manner consistent with the verdict, namely, that [Appellant] struck Mr. Ball
repeatedly out of anger, knocked him down and caused significant bleeding,
bruising and injury.” Trial Court Opinion, 10/6/2015, at 5. We agree.
Appellant has failed to convince us that the trial court abused its discretion
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in holding that the verdict was not against the weight of the evidence.
Accordingly, we hold that he is not entitled to relief on this issue.
Appellant next presents a challenge to the discretionary aspects of his
sentence. We address this claim mindful of the following:
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code…. [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal, he sought reconsideration of his sentence in a post-
sentence motion, and he has included a Rule 2119(f) statement in his brief
to this Court. We now consider whether he has raised a substantial question
for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
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appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).
Appellant first contends that the sentencing court abused its discretion
by sentencing Appellant to one to two years of incarceration, “the maximum
permissible sentence for a misdemeanor of the second degree,” when his
sentencing guidelines suggested a standard range sentence of 3 to 12
months. Appellant’s Brief at 13. While he is correct that simple assault is a
misdemeanor of the second-degree punishable by a maximum term of two
years of incarceration, in this case, due to Appellant’s prior record score and
the applicable sentencing guidelines, the imposed sentence of one to two
years fell within the standard guideline range. It is well-settled that “where
a sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).2
Accordingly, this claim does not raise a substantial question.
2
We note that Appellant’s counsel waived his right to a pre-sentence
investigation at sentencing. N.T., 8/12/2015, at 2.
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Appellant also argues that his sentence is manifestly excessive “in light
of Appellant’s background[3] and rehabilitative needs” and contends that, in
imposing the sentence, the trial court “punished Appellant twice for his prior
record score.” Appellant’s Brief at 13. See Commonwealth v. Keiper, 887
A.2d 317, 319 (Pa. Super. 2005) (holding that “[a] claim that the sentencing
court misapplied the Sentencing Guidelines in double counting a prior
conviction in its calculation of the prior record score presents a substantial
question.”); Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc) (recognizing that this court has held that “an excessive
sentence claim—in conjunction with an assertion that the court failed to
consider mitigating factors—raises a substantial question.”) To the extent
that these claims may raise a substantial question, Appellant is not entitled
to relief.
At sentencing, the trial court heard argument from the district attorney
and Appellant regarding the instant offense and Appellant’s prior record
score. N.T., 8/12/2015, at 2-6. Appellant exercised his right to allocution
and explained that he had recently been released from prison and was
working at the time of the incident. Id. at 7. However, Appellant expressed
disbelief at the victim’s version of events, which was soundly rejected by the
trial court. Id. at 6-7.
3
Appellant agrees that, due to a prior homicide conviction, his prior record
score is 4.
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In fashioning Appellant’s sentence, the trial court explained that it
“relied upon not only [Appellant’s] prior record score of 4 but also considered
the nature of the unprovoked attack upon Mr. Ball” and took into
consideration Appellant’s “violent tendencies in connection with the need to
protect the public and the need for rehabilitation in that [Appellant]
committed this assault within only a few years of completing a sentence for
a homicide charge.” Trial Court Opinion, 11/5/2015, at 6. Moreover, at
sentencing, the trial court acknowledged that Appellant’s homicide conviction
was accounted for properly in the calculation of Appellant’s prior record
score. N.T., 8/12/2015, at 8.
Based on the foregoing, we hold that the trial court did not abuse its
discretion in fashioning Appellant’s sentence. Thus, we affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
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