J-A17044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PERRY FORD,
Appellant No. 3294 EDA 2015
Appeal from the Judgment of Sentence September 30, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009903-2011
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 08, 2017
Appellant, Perry Ford,1 appeals from the judgment of sentence
imposed following his re-sentencing. Specifically, he challenges his new
sentence as excessive. Appellant also raises numerous claims which were
previously litigated, or are waived. We affirm.
This case returns to us on appeal, after the trial court resentenced
Appellant pursuant to a remand from a previous panel of this Court. (See
Commonwealth v. Ford, No. 3125 EDA 2013, 2015 WL 7572950,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant insisted to the trial court judge that he was no longer Perry Ford,
and wanted to be known as Faaruk Hasiym-Bey. (See N.T. Sentencing,
9/30/15, at 4-14). Appellant also goes by half a dozen other aliases. (See
Commonwealth v. Ford, Criminal Docket, at 4 of 26).
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(unpublished memorandum at *4) (Pa. Super. filed February 4, 2015));
(see also N.T. Sentencing, 9/30/15).
Following a bench trial from January 23 to January 25, 2013, the trial
court convicted Appellant of unlawful contact with a minor, 18 Pa.C.S.A.
§ 6318(a)(1) (F3), indecent assault by forcible compulsion, 18 Pa.C.S.A.
§ 3126(a)(2) (M1); indecent exposure, 18 Pa.C.S.A. § 3127(a) (M1); simple
assault, 18 Pa.C.S.A. § 2701(a) (M2); and corruption of minors, 18
Pa.C.S.A. § 6301. (See N.T. Trial, 1/25/13, at 5). The court acquitted
Appellant of rape, involuntary deviate sexual intercourse, unlawful restraint,
statutory sexual assault, sexual assault, false imprisonment, recklessly
endangering another person, and endangering the welfare of a child. (See
id.).
Appellant’s conviction arose out of his assault, on May 28, 2011, of a
neighborhood child, while he was outside on the street, putting her in a
headlock, and rubbing his exposed penis between the victim’s buttocks. This
occurred around 7:30 p.m., (still daylight), in front of other neighbors,
including the victim’s mother. (See Trial Court Opinion, 6/30/14, at 3). The
victim, eleven years of age at the time, was a mentally challenged child who
could only function at the pre-kindergarten level. Born on April 21, 1975,
Appellant was thirty-six at the time of the incident.
An angry crowd of onlookers prevented Appellant from doing anything
more, and they summoned the police. The police arrested Appellant and
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took him to a hospital to treat a bruised lip. He gave them a statement
which essentially confirmed the entire course of events.
Before trial, Appellant moved to suppress his incriminating statement,
claiming he was high on PCP when he gave it; in fact, he further claimed
that he had been a long-term daily PCP user. The trial court denied
suppression. On the eve of trial, Appellant made a motion to dismiss his
counsel and have new counsel appointed for him. The trial court denied the
motion. After his conviction, the court sentenced Appellant to a term of not
less than eight nor more than sixteen years of incarceration in a state
correctional institution. (See Ford, supra at *3).
On his first appeal, Appellant raised three questions, challenging the
denial of his motion to suppress his statement, the denial of his motion to
change counsel, and challenging his sentence as excessive. (See id. at *4).
Our predecessor panel concluded all of Appellant’s claims of trial error
were devoid of merit. (See id. at *15). However, after noting inconsistent
references in the sentencing materials to whether the conviction of
corruption of minors was for section 6301(a)(1)(i), a misdemeanor, or
section 6301(a)(1)(ii), a felony, the panel vacated sentence and remanded
to the trial court for clarification of the grading of the sentence.2 (See id. at
*12-14).
____________________________________________
2
(a) Offense defined.─
(Footnote Continued Next Page)
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The trial court held a new sentencing hearing on September 30, 2015.
The court expressly considered Appellant’s presentence investigation report
(PSI). (See N.T. Sentencing, 9/30/15, at 37-38). The court also considered
Appellant’s long criminal history, beginning with an adjudication of
delinquency for possession with intent to deliver, when he was sixteen. The
court noted adult convictions for violation of the Uniform Firearms Act,
conspiracy to engage in forgery, knowing and intelligent possession, and
retail theft, in all, eleven arrests, six convictions, one violation, and one past
commitment. (See id. at 37-40). The court agreed with the father of the
victim, that Appellant’s attack on a mentally challenged child was
“exceptionally serious,” and “abominable and gruesome.” (Id. at 35).
_______________________
(Footnote Continued)
(1) (i) Except as provided in subparagraph (ii), whoever,
being of the age of 18 years and upwards, by any act corrupts or
tends to corrupt the morals of any minor less than 18 years of
age, or who aids, abets, entices or encourages any such minor in
the commission of any crime, or who knowingly assists or
encourages such minor in violating his or her parole or any order
of court, commits a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards, by
any course of conduct in violation of Chapter 31 (relating to
sexual offenses) corrupts or tends to corrupt the morals of any
minor less than 18 years of age, or who aids, abets, entices or
encourages any such minor in the commission of an offense
under Chapter 31 commits a felony of the third degree.
18 Pa.C.S.A. § 6301(a)(1)(i), (ii).
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The sentencing court confirmed that it intended to convict Appellant of
corruption of minors as a misdemeanor, not a felony. Accordingly, it
reduced the aggregate sentence to a term of not less than seven years, nor
more than fourteen years of imprisonment. (See id. at 44). Appellant’s
post-sentence motion was denied by operation of law.
This appeal followed.
Appellant raises five questions on appeal:
I. Whether the sentence imposed was improper or
excessively punitive or purely based on emotion[?]
II. Whether the Appellant’s statement, while under the
influence of PCP, should have been suppressed[?]
III. Whether the evidence was insufficient to sustain a
verdict of guilty[?]
IV. Whether the verdict was against the weight of the
evidence where the testimony was non-existent and insufficient
to prove any charge[?]
V. Whether it was error to deny Appellant his right to
counsel of choice at sentencing[?]
(Appellant’s Brief, at 9) (unnecessary capitalization omitted).3
Preliminarily, we note that Appellant’s second question (denial of
motion to suppress inculpatory statement), and fifth question (denial of
motion to change counsel, to the extent it refers to the eve of trial) were
____________________________________________
3
In the brief, Appellant repeatedly attempts to incorporate by reference “all
prior arguments.” (Id. at 23, 26, 27, 30). Incorporation by reference is
inappropriate on appeal. See Wilson v. U.S. Sec. Assocs., Inc.,
---A.3d ----, 2017 WL 3034031 at n.30 (Pa. Super. filed July 18, 2017).
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previously litigated.4 Our predecessor panel has already reviewed these
claims and denied them on the merits. (See Ford, supra at *4-*11, *15).
Appellant’s new claim, not previously raised with the trial court, is that he
was denied a change of counsel at sentencing. (See Appellant’s Brief, at 30-
31). Appellant concedes that his claim of an objection to the trial court is
not supported by the record. (See id. at 31). See Commonwealth v.
O'Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (holding that “our review
is limited to those facts which are contained in the certified record” and what
is not contained in the certified record “does not exist for purposes of our
review.”) (citation omitted). These claims are waived.
Appellant’s third claim, insufficiency of the evidence, is also waived.
Appellant fails to develop an argument that the evidence was insufficient for
any, let alone all, of his convictions. (See Appellant’s Brief, at 26-27).
Instead, Appellant merely recites caselaw for the general principles
underlying sufficiency, without, however, relating these general principles to
any specific claim on appeal. As previously noted, incorporation by
reference is inappropriate on appeal.
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4
We observe that although Appellant challenges the denial of choice of
counsel at sentencing, (see Appellant’s brief, at 9), he argues that he was
denied his request for change of counsel by the pre-trial court, an
argument he apparently made in his previous appeal. (See id. at 30-31).
Appellant’s challenge to the denial of change of counsel on the eve of trial
was previously litigated and merits no relief. Appellant’s challenge to the
purported denial of change of counsel at sentencing is waived for failure to
raise it with the trial court, (as noted in the text), or in his prior appeal.
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In fact, Appellant does not discuss the specific facts of the case at all.
(See id.). It is not the role of this Court to scour the record to find evidence
to support Appellant’s arguments. See J.J. DeLuca Co. v. Toll Naval
Assocs., 56 A.3d 402, 411 (Pa. Super. 2012). Accordingly, Appellant’s third
claim is waived. Moreover, it would merit no relief.
“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.”
Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006),
appeal denied, 926 A.2d 972 (Pa. 2007) (citation omitted).
Here, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, we have no hesitation in concluding that
the Commonwealth presented sufficient evidence, including Appellant’s own
inculpatory statement to the police, for each element of each of Appellant’s
convictions, beyond a reasonable doubt. His insufficiency claims would not
merit relief.
Appellant’s remaining attempts to litigate issues other than sentencing
are devoid of merit. As a general principle, the review of issues on remand
is limited to those issues specified by the appellate court. See Pa.R.A.P.
2591(a); see also Commonwealth v. Sepulveda, 144 A.3d 1270, 1279–
80 (Pa. 2016). Moreover, where a case is remanded to resolve a limited
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issue, only matters related to the issue on remand may be appealed. See
Commonwealth v. Jackson, 765 A.2d 389, 395 (Pa. Super. 2000), appeal
denied, 793 A.2d 905 (Pa. 2002).
Accordingly, Appellant’s fourth claim, a boilerplate weight claim
intermixed with an assertion of insufficiency, is beyond the scope of
appellate review. (See Appellant’s Brief, at 27-30). Moreover, to avoid
further confusion, we confirm that even if reviewable, the claim would not
merit relief.
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.
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations
and footnote omitted)
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
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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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting
Widmer, supra at 753 (emphasis added in original)) (citation omitted).
Here, on independent review, we would discern no basis on which to
disturb the verdict of the trial court. Appellant baldly asserts that the
evidence was contradictory (without identifying the contradictions), and
notes the incapacity of the mentally challenged victim. (See Appellant’s
Brief, at 27-30).
It was the role of the trial court sitting as factfinder in the bench trial
to weigh the evidence and to accept all, part or none of it. The trial court’s
verdict does not shock the conscience of this Court. Even if review of
Appellant’s weight claim were available on this remand, it would not merit
relief.
Next, we address Appellant’s sentencing issue. Here, in pertinent part,
our predecessor panel remanded on the issue of illegality of sentence, but
expressly permitted Appellant to raise “any sentencing issue that may arise
from said resentencing.” (Ford, supra at *14). Appellant concedes that his
new sentence is not illegal. (See Appellant’s Brief at 15). Accordingly, the
only issue properly before us is Appellant’s claim of an excessive sentence.
Appellant’s claim of excessiveness involves the discretionary aspects of his
sentence.
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There is no automatic right to appeal the discretionary aspects of a
sentence. See Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002).
Instead, the defendant must petition this Court for leave to appeal by
presenting in his brief a separate Rule 2119(f) statement. See Pa.R.A.P.
2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa. 1987);
Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006). In that
Rule 2119(f) statement, an appellant must prove that there is a substantial
question of whether his sentence is appropriate under 42 Pa.C.S. § 9781.
See Commonwealth v. Yeomans, 24 A.3d 1044, 1049 (Pa. Super. 2011).
Here, Appellant claims that the trial court failed to give adequate
weight to mitigating or positive factors with regard to him. (See Appellant’s
Brief, at 16). He claims, inter alia, that he is no longer addicted to PCP, and
that he apologized to the victim’s family.
[T]his Court has held on numerous occasions that a claim
of inadequate consideration of mitigating factors does not raise a
substantial question for our review. Accordingly, we conclude
Appellant’s argument that the trial court failed to give adequate
weight to mitigating factors does not present a substantial
question appropriate for our review.
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citations
and internal quotation marks omitted).
Additionally, where, as here, the trial court had the benefit of a
presentence investigation report, it is presumed that it considered the
relevant mitigating factors. See Commonwealth v. Boyer, 856 A.2d 149,
154 (Pa. Super. 2004) (“[W]here the sentencing judge had the benefit of a
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presentence investigation report, it will be presumed that he or she was
aware of the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”).
Appellant fails to present a substantial question. Moreover, even if we
were to determine that Appellant’s claim did raise a substantial question, we
would find no merit to his underlying allegation. Our standard of review of a
sentencing challenge is well-settled:
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. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, 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.
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal
denied, 63 A.3d 774 (Pa. 2013) (citation omitted). Here, Appellant fails to
demonstrate an abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2017
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