Com. v. Banks, J.

J-S66004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JAMES BANKS,

Appellant No. 1286 WDA 2016

Appeal from the Judgment of Sentence Entered July 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015867-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 18, 2017

Appellant, James Banks, appeals from the judgment of sentence of

and aggregate term of 26-52 years’ incarceration, followed by 5 years’

probation, imposed after his conviction for attempted homicide, robbery, and

related offenses. Appellant challenges the weight of the Commonwealth’s

evidence supporting his identity as the perpetrator of the crimes at issue in

this case, the discretionary aspects of his sentence, as well as its legality.

We reject Appellant’s weight challenge. However, we are compelled to

vacate Appellant’s sentence and to remand for resentencing due the

imposition of an illegal sentence. Consequently, we decline to address

Appellant’s discretionary-aspects-of-sentencing claim at this time.

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-S66004-17

A full recitation of the facts adduced at trial is provided in the trial

court’s opinion. See Trial Court Opinion (TCO), 2/15/17, at 3-8. Briefly

stated, the victim, Anthony Matthews, was sleeping in his City of Pittsburgh

apartment at approximately 8:30 a.m. on October 10, 2014, when he awoke

to find three knife-wielding men standing at his bedside. Id. at 3. Appellant

immediately recognized two of the unmasked men, Appellant and Jerome

Banks, as the younger brothers of his former girlfriend, London Banks. Id.

The third man demanded money. Id. at 4. As Matthews attempted to get

out of his bed, one of the intruders stabbed him in the abdomen. Id. When

Matthews began to struggle with his assailants, Appellant stabbed him in the

back. Id. The melee continued for some time, until Matthews heard

Appellant tell his brother, Jerome, “[h]it him, hit him, hit him.” Id. Jerome

then struck Mathews in the head six or seven times with a brick. Id. After

this, Appellant and his cohorts fled, but not before stealing a game system

and a laptop from the Matthew’s apartment. Id. at 5.

Matthews managed to call 911 while he crawled into the hallway of his

apartment building, where a neighbor assisted him. Id. In the ambulance

on the way to the hospital, and believing he was going to die, Matthews told

the attending paramedic that he was stabbed by his ex-girlfriend’s brothers.

Id. at 6. Although he survived, Matthews was placed in a medically induced

coma for two days before police could speak with him. Id. When the police

were finally able to communicate with Matthews, he identified Appellant and

Jerome Banks as his assailants. Id. Matthews’ injuries required multiple

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J-S66004-17

surgeries, resulted in extensive nerve damage in his hands and back, and

left him struggling with post-traumatic stress, including severe anxiety and

sleeplessness. Id. at 7.

The Commonwealth charged Appellant with attempted homicide, 18

Pa.C.S. § 901; robbery, 18 Pa.C.S. § 3701(a)(1); burglary, 18 Pa.C.S. §

3502(a)(1); aggravated assault, 18 Pa.C.S. § 2702(a)(1); as well as

conspiracy to commit each of those offenses, 18 Pa.C.S. § 903. Following a

trial held on December 2-3, 2015, the jury found Appellant not guilty of

conspiracy to commit homicide, but guilty of all the remaining charges. On

July 14, 2016, the trial court sentenced Appellant to 15-30 years’

incarceration for attempted homicide, with consecutive terms of 7-14 years’

and 4-8 years’ incarceration for conspiracy to commit robbery and burglary,

respectively, and a concurrent term of 8-16 years’ incarceration for robbery.

The trial court also ordered Appellant to serve a consecutive term of 5 years’

probation for robbery. Thus, Appellant received an aggregate sentence of

26-52 years’ incarceration and 5 years’ probation.

Appellant timely filed post-sentence motions challenging the weight of

the evidence supporting his convictions and the discretionary aspects of his

sentence. The trial court denied Appellant’s post-sentence motions on

August 5, 2016, from which he filed a timely notice of appeal. Appellant

filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on December 5,

2016, and the trial court issued its Rule 1925(a) opinion on February 15,

2017.

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J-S66004-17

Appellant now presents the following questions for our review:

I. Did the trial court abuse its discretion in denying the post-
sentence motion that the verdict was contrary to the weight of
the evidence presented in that no physical or scientific evidence,
including fingerprints, DNA, weapons, or inculpatory statements
were presented implicating [Appellant] in the commission of the
crimes, the victim gave three different versions of the facts,
named persons other than [Appellant] as his attackers, and
[Appellant] presented an alibi?

II. Did the trial court abuse its discretion in sentencing
[Appellant] to an aggregate term of 26 to 52 years of
imprisonment, to be followed by 5 years of probation, in that the
sentence is manifestly unjust, unreasonable, and excessive, is
contrary to the Sentencing Code, and the fundamental norms
underlying the sentencing process in that the court failed to
apply, as it must, all required sentencing factors including the
gravity of the offense in relation to the impact on the victim, the
history, character and condition of the defendant, and his
rehabilitative needs?

III. Did the trial court err in imposing an illegal sentence on
Count 3 (Robbery), as the sentence imposed is greater than the
lawful maximum?

Appellant’s Brief at 9.

Appellant’s first claim asserts that the trial court abused its discretion

in denying his post-sentence motion claim that the verdict was against the

weight of the evidence with respect to Appellant’s identity as one of the

three assailants. We apply the following standard of review to a challenge

that a verdict is against the weight of the evidence:

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.

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J-S66004-17

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.

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, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

After reviewing the certified record, the parties’ briefs and arguments

contained therein, as well as the trial court’s thorough and well-reasoned

Rule 1925(a) opinion, authored in this case by the Honorable Beth A.

Lazzara, we conclude that the trial court did not abuse its discretion in

denying Appellant’s post-sentence motion claim that the verdict was against

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J-S66004-17

the weight of the evidence. We rest our holding on the basis set forth in the

trial court’s opinion. See TCO at 8-19.

For ease of disposition, we now turn to Appellant’s third claim,

whereby he asserts that his sentence for robbery is illegal because it

exceeded the statutory limit for that offense. The Commonwealth concedes

the illegality of the sentence.

“The issue of whether a sentence is illegal is a question of law and our

scope of review is plenary.” Commonwealth v. Crump, 995 A.2d 1280,

1283 (Pa. Super. 2010). If a sentence is illegal, “whether it was properly

preserved below is of no moment, as a challenge to the legality of sentence

cannot be waived.” Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa.

2007). Furthermore, a “sentence that exceeds the statutory maximum is

illegal. If a court imposes a sentence outside of the legal parameters

prescribed by the applicable statute, the sentence is illegal and should be

remanded for correction.” Commonwealth v. Infante, 63 A.3d 358, 363

(Pa. Super. 2013) (internal citations and quotation marks omitted).

Robbery, a first-degree felony, carries a maximum possible sentence

of 20 years’ incarceration. 18 Pa.C.S. § 1103(1). As detailed above, the

trial court imposed a ‘split sentence’ for Appellant’s robbery conviction: 8-16

years’ incarceration, with a consecutive term of 5 years’ probation.

Consequently, Appellant faces the potential of serving up to 21 years’

punishment for his robbery offenses, thereby exceeding the statutory

maximum punishment of 20 years. See, e.g., Crump, 955 A.2d at 1284

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J-S66004-17

(stating that “where the [statutory] maximum [sentence] is ten years[’

incarceration], a defendant cannot receive a term of incarceration of three to

six years followed by five years[’] probation”). Therefore, we agree with

Appellant and the Commonwealth that Appellant’s sentence for robbery is

illegal. Accordingly, we are compelled to vacate Appellant’s sentence in its

entirety and remand for resentencing, as it is possible that a correction of

Appellant’s illegal sentence will upset the overall sentencing scheme

envisioned by the trial court. Infante, supra; see also Commonwealth

v. Dobbs, 682 A.2d 388, 393 (Pa. Super. 1996) (stating that “[w]here we

determine that a sentence must be corrected, this Court has the option of

amending the sentence directly or remanding it to trial court for re-

sentencing. If a correction by this Court may upset the sentencing scheme

envisioned by the trial court, the better practice is to remand”).

Finally, because we must remand for resentencing, we decline to

address Appellant’s second claim, which concerns the discretionary aspects

of the vacated sentence.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

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J-S66004-17

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2017

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 Circulated 11/20/2017 11:55 AM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA, CC No. 2014-15867

v.

JAMES BANKS,
ORIGINAL
Criminal (Division
Defendant. t. of Court Records
OPINI gneny County, PA.

BETH A. LAZZARA, JUDGE
Court of Common Pleas

Copies Sent To:

Mike W. Streily, Esq.
Office of the District Attorney
401 Courthouse
Pittsburgh, PA 15219

0 Suzanne Swan, Esq.
310 Grant Street
Suite 823
tt1
Pittsburgh, PA 15219
"' tst
:
 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION

vs. CC No. 2014-15867

JAMES BANKS,

Defendant.

OPINION

This is a direct appeal from the judgment of sentence entered on July 14, 2016,

following a jury trial that took place between April 6, 2016 and April 8, 2016. The

Defendant was charged in a five (5) count information as follows: Count One (1):

Criminal Attempt - Homicide (18 Pa. C.S.A. §901(a)); Count Two (2): Criminal

Conspiracy to commit Homicide, Robbery, Burglary, and Aggravated Assault (18 Pa.

C.S.A. §903); Count Three (3): Robbery - Serious Bodily Injury (18 Pa. C.S.A.
§3701(a)(1); Count Four (4): Burglary (18 Pa. C.S.A. §3502(a)(1)); and Count Five (5)

Aggravated Assault (Pa. C.S.A. §2702(a)(1)). At the conclusion of trial, the jury found

the Defendant not guilty of Conspiracy to Commit Criminal Homicide, but guilty of all of

the remaining charges. Sentencing was deferred to allow for the preparation of a Pre -

Sentence Report ("PSR").
 On July 14, 2016, the Defendant was sentenced to an aggregate sentence of 26

to 52 years of imprisonment with a five (5) year period of probation to follow upon his

release from imprisonment. Specifically, the Defendant was sentenced to a period of

fifteen (15) to thirty (30) years of incarceration at Count One (1), and a period of seven

(7) to fourteen (14) years of incarceration at Count Two (2), which was ordered to run

consecutively to the sentence imposed at Count One (1). At Count Three (3), the court

sentenced the Defendant to a period of eight (8) to sixteen (16) years of incarceration,

which was ordered to run concurrently with the sentences imposed at the previous

counts. A five (5) year term of probation was also imposed at Count Three (3), and the

probation term was ordered to commence upon the Defendant's release from

imprisonment. At Count Four (4), the Defendant was sentenced to a period of four (4)

to eight (8) years of imprisonment, which was ordered to run consecutively to Counts

One (1) and Two (2). No further penalty was imposed for the Aggravated Assault

conviction at Count Five (5) because the conviction merged with the Attempted

Homicide conviction at Count One (1). Court costs were imposed, and the Defendant

received 412 days of credit for time served. The Defendant also was ordered to have

no contact with the victim, Anthony Matthews, or his family. The Defendant filed a

timely post -sentence motion, which was heard and denied on August 5, 2016. This

timely appeal followed.

On December 5, 2016, the Defendant filed a timely Concise Statement of Errors

Complained of on Appeal ("Concise Statement"), raising two (2) issues for review.

(Concise Statement, pp. 2-4). The Defendant argues that this court abused its

2
discretion in denying the post -sentence motion because the verdict was against the

weight of the evidence, and he contends that this court abused its discretion in imposing

sentence. The Defendant's allegations of error on appeal are without merit. The court

respectfully requests that the Defendant's convictions and sentence be upheld for the

reasons that follow.

I. FACTUAL BACKGROUND

On the morning of October 10, 2014, at approximately 8:30 a.m., the victim,

Anthony Matthews, was asleep in his bedroom when he was suddenly awakened by

three (3) African -American men standing at his bedside. (Jury Trial Transcript ("TT")

(Volume I), 4/5/16-4/8/16, pp. 72, 87, 89, 94, 96, 102-03, 127, 136, 142-44). The

intruders had broken into his apartment at 100 Moore Avenue, located in the

Knoxville/Mt. Oliver area of the City of Pittsburgh. (TT, pp. 72, 89-90, 127, 136, 165).

All three (3) men were armed with weapons, and they made no attempt to mask their

identities. (TT, pp. 136-37, 140). Mr. Matthews was immediately able to recognize two

(2) of the intruders as James and Jerome Banks, the younger brothers of his ex -

girlfriend, London Banks. (TT, pp. 129-31, 134, 137, 140). Mr. Matthews was well

familiar with the Banks brothers. (TT, pp. 129-31). He knew exactly what the Banks

brothers looked and sounded like because he had spent time with them on multiple

occasions during the time that he was dating their sister. (TT, pp. 129-31). The

Defendant, James Banks, knew exactly where Mr. Matthews lived because London

Banks had briefly resided with Mr. Matthews during the time that they were dating, and

3
the Defendant had been inside of Mr. Matthews' apartment on at least one (1) prior

occasion. (TT, pp. 131-32, 135-36).

Mr. Matthews woke up to an unidentified man yelling "Where's the money?

Where's the money'?" (TT, pp. 73, 81, 136-37, 144-45). Armed with a knife, the

unidentified man was standing on the side of Mr. Matthews' bed, and he stabbed Mr.

Matthews in the abdomen as Mr. Matthews was attempting to stand up in order to get

out of bed. (TT, pp. 136-37, 145). Mr. Matthews began fighting with the unidentified

man, and, with his right hand, Mr. Matthews grabbed the knife that the man was

holding. (TT, pp. 137, 145). During the struggle, Mr. Matthews felt himself get stabbed

in the back. (TT, pp. 137-38, 145). When he turned around, he realized that the

Defendant was also armed with a knife and that the Defendant had been the one who

had stabbed him in the back. (TT, pp. 137, 145).

As Mr. Matthews tried to push the Defendant away from him, the unidentified

man stabbed him again, this time in the side. (TT, pp. 137, 145-46, 161). Mr. Matthews

turned back around to grab the knife from the unidentified man, and, as he continued to

struggle for the knife, the co -Defendant, Jerome Banks began hitting Mr. Matthews

repeatedly in the head with a brick, delivering between six (6) and seven (7) blows. (TT,

pp. 137-38, 145-46, 162). Mr. Matthews heard the Defendant yell to his brother

Jerome, "[h]it him, hit him, hit him." (TT, pp. 137, 146). Shortly thereafter, the

Defendant and his brother ran out of the bedroom, leaving Mr. Matthews alone with the

4
 unidentified male. (TT, pp. 137-38, 146). At that point, Mr. Matthews, who still had a

grip on the unidentified male's knife, released his grip from the knife, which allowed the

man to flee from the apartment. (TT, pp. 138, 146). Before leaving the apartment,

however, the three (3) men stole Mr. Matthews' Playstation 3 gaming system and laptop

from his living room, and they smashed his television with the same brick that Jerome

Banks had used to repeatedly hit him in the head. (TT, pp. 138-39, 153, 161-63, 274).

After the third male ran out of his bedroom, Mr. Matthews stumbled out into his

living room screaming, "I don't have anything, I swear to God don't have any money,
I I

don't have anything for you all to take." (TT, pp. 73, 84, 138). Mr. Matthews collapsed

on the floor of his living room. However, he managed to call 911 on his cell phone. (TT,

pp. 147-48). Mr. Matthews then crawled across his living room floor and out into the

hallway of his apartment building. (TT, pp. 90, 147, 161, 204). His next-door neighbor,

Donald Fuller, heard the struggle take place. Mr. Fuller came outside of his apartment

and tried to assist Mr. Matthews. Mr. Fuller had seen three (3) black men fleeing from

Mr. Matthews apartment when he peered through his peephole after he heard the

commotion outside. (TT, pp. 72-75, 77-80, 82, 147-49).

Law enforcement officials were dispatched to the scene at approximately 8:56

a.m. (TT, pp. 88-89). Officers and medical personnel arrived within minutes and found

Mr. Matthews in the hallway outside of his apartment, laying in a large pool of his own

blood. (TT, pp. 89-92, 104-05,147-48, 204). Mr. Matthews was bleeding profusely, and

5
he was fading in and out of consciousness due to the amount of blood loss he had

sustained. (TT, pp. 90-92, 104). Mr. Matthews was in substantial pain due to the

"multiple severe stab wounds" that he suffered. (TT, pp. 103-04, 148). His intestines

were hanging out of his body, and he was struggling to breathe because of a stab

wound to his lung. (TT, pp. 75, 105-06, 151). Mr. Matthews was transported in an

ambulance to Mercy Hospital. (TT, pp. 93, 107-08, 150). While he was in route to the

hospital, Mr. Matthews began panicking, believing that he was going to die, and he

attempted to provide paramedic Shawn Eigenbrode with information about the attack.

(TT, pp. 107-09, 150-51). Although he was struggling to breathe through an oxygen

mask, Mr. Matthews asked Mr. Eigenbrode to tell his mother, father, and daughter, if he

did not survive, that he loved them. (TT, pp. 105, 107,120-121, 150-51). Mr. Matthews

also relayed to Mr. Eigenbrode that he was stabbed by his ex -girlfriend's brothers and

that there were three (3) men who attacked him. (TT, pp. 109-10, 113-15, 150). When

Mr. Eigenbrode asked the name of his ex -girlfriend, Mr. Matthews replied, "London

Banks." (TT, pp. 110, 150).

Upon his arrival at Mercy Hospital, Mr. Matthews was put into a medically

induced coma for approximately two (2) days. (TT, p. 151). For approximately the next

week, Mr. Matthews remained at the hospital, undergoing various surgeries and

treatment. (TT, pp. 151-53). On October 17, 2014, Mr. Matthews' condition stabilized

sufficiently that he was able to speak with the police about the attack and stabbing. Mr.

Matthews spoke with Detective Judd Emery, identifying his attackers as Jerome and

James Banks, the younger brothers of his ex -girlfriend, London Banks. Mr. Matthews

6
was presented with separate photo arrays for each brother, and he positively identified

both brothers without any hesitation. He circled their pictures, wrote their nicknames

next to their faces, and signed his name. (TT, pp. 167-171; 257-262)

After spending approximately a week in the hospital, Mr. Matthews was

discharged. Unfortunately, he was readmitted less than 48 hours later due to various

complications from his injuries. (TT, pp. 151-52). Mr. Matthews required yet more

surgical procedures,and he developed deep vein thrombosis. (TT, p. 152). He spent

nearly a month in the hospital due to the complications that he developed from his stab

wounds. (TT, p. 152). He was ultimately discharged from the hospital on November 6,

2014. (TT, pp. 152-53). By the time of trial, Mr. Matthews still was experiencing the

symptoms from nerve damage in both of his hands and in his lower back. (TT, p. 153).

He continued to struggle with pain in his abdominal area from the scar tissue that had

developed after his surgeries. (TT, p. 153). He reported some slight short-term

memory loss from the head injury that had been caused by the blows from the brick

wielded by Jerome Banks. (TT, pp. 153-54). In addition to his physical injuries, Mr.

Matthews struggled with anxiety and post -traumatic stress, and he reported difficulty

sleeping since the attack in his bedroom. (TT, p. 153).

Prior to the attack, Mr. Matthews had been working full-time at the Chipotle

Mexican Grill. (TT, pp. 128, 154). He primarily worked on the grill and was also training

for a management position at the restaurant. (TT, p. 128). Since the stabbing,

7
however, Mr. Matthews has not been able to work in any capacity because he is

significantly limited in his ability to use his hands for an extended period of time. (TT,

pp. 154-55). It is also difficult for him to work in any position that requires lifting or

squatting because of the scar tissue in his stomach and the nerve damage in his back.

(TT, p. 154). Mr. Matthews also has difficulty sitting and standing for prolonged periods

of time because he experiences severe, sharp pains in his back that shoot down his leg.

Mr. Matthews is unsure whether he will be able to work a full workday again. (TT, pp.

154-55).

II. DISCUSSION

A. The Defendant's convictions for Attempted Murder, Criminal
Conspiracy, Robbery, Burglary, and Aggravated Assault were not
against the weight of the evidence.

In his first allegation of error, the Defendant contends that this court "abused its

discretion in denying the post -sentence motion [because] the evidence presented was

so contrary to the verdict rendered that it shocks one's sense of justice." (Concise

Statement, pp. 2-3). In support of his assertion, the Defendant cites to: (i) the lack of

physical and scientific evidence implicating the Defendant in the commission of the

crimes, (H) the credibility of the victim and the conditions surrounding his identification of

the Defendant, (Hi) the fact that the Defendant and the unidentified coconspirator

perpetrated the attack using knives from Mr. Matthews' kitchen, (iv) the fact that the

Defendant presented an alibi defense at trial, and (v) the apparent lack of motive for the

attack. (Id.).

8
 It is well -established that a challenge to the weight of the evidence "concedes

that there is sufficient evidence to sustain the verdict." Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000); Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa. Super.

2005), appeal denied, 880 A.2d 1237 (Pa. 2005) ("A true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but questions

which evidence is to be believed.") (emphasis added). In reviewing claims that the

verdict was against the weight of the evidence, our appellate courts have explained that

Mho weight of the evidence is exclusively for the finder of fact who is
free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may only reverse the lower
court's verdict if it is so contrary to the evidence as to shock one's sense
of justice. 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 limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
Commonwealth v. Lewis, 911 A.2d 558, 565 (Pa. Super. 2006) (emphasis

added); Commonwealth v. Torres, 578 A3d 1323, 1326 (Pa. Super. 1990) ("The

determination whether to grant a new trial on the ground that the verdict is

against the weight of the evidence rests within the discretion of the trial court,

and we will not disturb that decision absent an abuse of discretion.").

Indeed, "appellate review of a trial court's decision on a weight of the

evidence claim is extremely limited." Torres, supra, at 1326. Courts have

reasoned that

9
 [b]ecause 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.

Widmer, supra, at 753. Stated differently, "[o]ne 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." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting

Widmer, supra, at 753).

In determining whether a trial court abused its discretion in denying a

motion for a new trial based on a claim that the verdict was against the weight of

the evidence, our Supreme Court has cautioned that

[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, supra, at 751-52]. Rather, "the role of the
trial 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."' [Widmer, supra] 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." [Commonwealth v. Brown,
648 A.2d 1177, 1189 (Pa. 1994)].

Clay, supra, at 1055.

This court did not abuse its discretion in denying the Defendant's post -sentence

motion because the verdict was not against the weight of the evidence. To the contrary,

10
 the weight of the evidence presented at trial was substantially against the Defendant

and his brother, Jerome Banks. Although the Defendant correctly notes that the

Commonwealth was unable to present physical or scientific evidence linking him to the

crime, his "CSI" argument loses substantial force when considered against the evidence

as a whole, and it seeks to distract one's attention away from the fact that the

determination of guilt in this case was centered on credibility determinations and the

resolution of conflicting testimony, matters that are solely within the province of the jury.

Although this court did not sit as the fact -finder, it presided over the trial and

closely studied the victim as he recounted the horrific events that unfolded on October

10, 2014. At all times throughout the proceedings, Mr. Matthews came across as

sincere, genuine, and highly credible. He testified calmly, confidently and consistently,

and his credibility was bolstered by other compelling pieces of evidence that

corroborated his account of what transpired on October 10, 2014.

One of the most salient pieces of evidence in this case was the fact that Mr.

Matthews identified the Banks brothers as his attackers on the way to the hospital, while

believing he was going to die. (TT, pp. 107-09, 150). Mr. Matthews told paramedic

Shawn Eigenbrode, as he was bleeding out and struggling to breathe, that he was

stabbed by his ex-girlfriend's younger brothers. (TT, pp. 107-09,121,150-51). When the

paramedic asked the name of his ex -girlfriend, Mr. Matthews replied, "London Banks."

(TT, pp. 110, 150). Mr. Eigenbrode testified at trial and corroborated Mr. Matthews'

11
 testimony. Specifically, Mr. Eigenbrode confirmed that, while they were in the

ambulance, Mr. Matthews asked him, "Am I going to die?" and he also testified that Mr.

Matthews told him he was attacked by "his ex's brothers." (TT, 107-109). Although Mr.

Matthews' injuries were not ultimately fatal, Mr. Matthews essentially made a dying

declaration to Mr. Eigenbrode when he identified his attackers in the ambulance,

because he genuinely believed he was going to die. Our Supreme Court has

recognized the reliability of dying declarations, noting that such reliability "is based on

the premise that no one who is immediately going into the presence of his Maker will do

so with a lie upon his lips." Commonwealth v. Smith, 314 A.2d 224, 225 (Pa. 1973)

(internal quotations omitted). For that reason, our Supreme Court has even stated that

dying declarations "should be considered as the equivalent of testimony given under

oath in open Court" because an individual who believes that death is imminent is "more

likely to tell the truth than is a witness in Court who knows that if he lies he will have a

locus penitentiae, an opportunity to repent, confess and be absolved of his sit]"
Commonwealth v. Brown, 131 A.2d 367, 369-370 (Pa. 1971).

Thus, the fact that Mr. Matthews identified the Banks brothers as his attackers

while he thought he was dying on the way to the hospital makes his identification highly

credible and worthy of belief. It should be noted that at trial, the defense attempted to

undermine the identification made in the ambulance by claiming that Mr. Matthews

identified his ex -girlfriend as "Linda Bey." (TT, pp. 114-16, 121, 222). This argument is

nothing more than an attempt to mislead the jury. When considered against the

evidence in its entirety, it is clear that the "name issue" is a desperate attempt by the

12
 defense to attack the credibility of the victim. Considering Mr. Matthews' physical

condition, the noise from the ambulance's sirens, the fact that Mr. Matthews was

"panicking" and that he was trying to speak through an oxygen mask, with a punctured

lung, at the time he made his identification, Mr. Eigenbrode understandably could have

been confused as to the name that he thought that he heard. (TT, pp. 120-21). This is

even more likely given that "London" is a much less common name than "Linda". Given

how similar the names sound even without all of the background noise, Mr. Eigebrode's

confusion as to the name is easily understood. In any event, any discrepancy as to the

identification of the perpetrators was for the jury to consider and resolve. The jurors

obviously resolved this "discrepancy" in Mr. Matthews' favor after weighing the evidence

as a whole. It should also be noted that Mr. Matthews identified his attackers as the

brothers of his ex -girlfriend, no matter what name was heard or mis-heard, and he

testified credibly that he did not even know, let alone date, a Linda Bey.

Any doubt as to whether Mr. Matthews said the name "Linda Bey" or "London

Banks" is further cast away by the fact that Mr. Matthews identified the Banks brothers

as his attackers two (2) more times in the week following his attack. Detectives Emery

and Bolin initially went to the hospital on the day of the stabbing to talk to Mr. Matthews,

but they were unable to speak with him because of his condition. (TT, p. 257). On

October 14, 2014, Detectives Emery and Bolin returned to the hospital, and they were

able to have a brief conversation with Mr. Matthews about the attack. (TT, p. 257). Mr.

Matthews told them that he knew two (2) of his attackers because they were his ex -

girlfriend's brothers, and he identified his ex -girlfriend as London Banks. (TT, p. 257).

13
On October 17, 2014, Detective Emery returned to the hospital and presented Mr.

Matthews with two (2) separate photo arrays for purposes of making an official

identification. (TT, pp. 167-71, 257-262). Mr. Matthews had no trouble positively

identifying the brothers in each array. He circled their pictures, wrote their nicknames

"Jimmy" (James Banks) and "Rome" (Jerome Banks) next to their respective pictures,

and signed his name. (TT, pp. 167-261-62). Thus, from the time of the attack

throughout all the proceedings, Mr. Matthews consistently maintained that the Banks

brothers were responsible for his stabbing, which further demonstrates the reliable and

credible nature of his testimony.

Although the Defendant attempts to undermine the circumstances surrounding

his ability to see his attackers, this argument is unavailing in light of the fact that the

attack happened around 8:30 a.m. in the morning, and the sheer curtains in Mr.

Matthews' bedroom were open when the attack occurred. (TT, pp. 142, 277).

Additionally, the attackers made no efforts to cover or mask themselves. Mr. Matthews

was easily able to identify the familiar faces that he saw in his room. Additionally, he

was able to recognize their voices, as well as their appearances.

The court further notes that, although there were no other eyewitnesses that

could speak to the identity of the attackers, the testimony of Mr. Matthews' next-door

neighbor, Donald Fuller, also lent substantial credibility to Mr. Matthews' account of

what transpired. As noted, Mr. Fuller and Mr. Matthews' apartments shared a common

14
wall. Because the walls were thin, Mr. Fuller was able to hear the attack take place.

(TT, pp. 72-74). He testified that he and his girlfriend were actually awakened by the

sound of a struggle taking place in Mr. Matthews' apartment. Mr. Fuller testified that it

sounded like people were "wrestling" or "playing football" in the apartment. (TT, pp. 72-

73). Significantly, Mr. Fuller heard a man say, "Give me the money, give me the

money," and he heard Mr. Matthews respond by saying "I don't got no money, I don't

got no money," (TT, p. 73). Mr. Fuller then looked out the peephole in his front door

and saw three (3) black men running out of Mr. Matthews' apartment and down the

stairs of the apartment building. (TT, pp. 74, 78, 80). Mr. Fuller credibly corroborated

key details of the victim's account of the incident.

Mr. Fuller's testimony also corroborated another relevant point regarding the

entry into the apartment building. Mr. Matthews testified that, although he lived in a

"secure" building, the security door was anything but secure because it easily could be

opened with the use of a credit card. (TT, pp. 165, 179). Mr. Matthews testified that he

showed London Banks how to open the door with a credit card during the time that she

resided with him. Mr. Fuller testified that "everybody was accessing [the security door]

through a credit card." (TT, pp. 84, 165, 179). Detective Emery further corroborated

the ease with which the building could be accessed, testifying that he used a business

card to gain entry into the building. (TT, p. 281). Given that the Defendant's sister knew

how to access the building, and given that the Defendant had been in Mr. Matthews'

apartment on at least one (1) prior occasion, this was another link in the chain of

evidence that was relevant to the determination of guilt in this matter. (TT, pp. 165-66).

15
 With respect to the lack of physical and scientific evidence in this case, the court

notes that Mr. Matthews' own fingerprints could not be lifted from his own apartment

door. (TT, p. 276). Additionally, no testing was conducted on the security door of the

building because of the amount of traffic that flows through that door and because the

officers touched the door when they were conducting their investigation. (TT, p. 280).

No scientific testing could be conducted on the knives that were used in the attack

because they were never located. The brick used by Jerome Banks was tested, but,

because of the nature of its surface, there was no evidence that could be successfully

lifted from it. (TT, pp. 241-42).

The Defendant also suggests that it was illogical that he and his unidentified co-

conspirator armed themselves with knives from Mr. Matthews' own apartment instead of

bringing their own weapons with them. (TT, pp. 140-41, 230). Again, this was an

argument that was for the jury to consider. The jurors evidently rejected this argument,

perhaps because it is well -understood that criminals often do not behave logically and

are opportunistic. Moreover, Mr. Matthews testified that he recognized the knives as his

own, and he never saw them again after the incident. Regardless of when and how the

intruders armed themselves, the fact remains that they were armed with deadly

weapons and used those weapons to inflict serious bodily injury upon the victim.

16
 The Defendant also attempts to undermine the victim's credibility by arguing

that it was illogical for him to keep his door unlocked given the neighborhood in which

he lives. To that end, Mr, Matthews testified he had a "bad habit" of leaving his

apartment door unlocked. He further testified credibly that the door was left unlocked

the morning of the incident because his new girlfriend had left his apartment at 2:00

a.m. to go to work, and he forgot to lock the door behind her. (TT, pp. 182-83, 272).

Even if Mr. Matthews could have exercised more care in securing entry into his own

apartment, the reason why his door was unlocked was easily explained by him and is

ultimately irrelevant to the question of who attacked him.

Finally, the Defendant contends that the verdict was against the weight of the

evidence because he presented an "alibi" defense at trial. His alibi defense, however,

was not based on any piece of objective evidence, but rather the testimony of his
child's

mother, Angela Teasley, and her mother, Tiffany Teasley. (Jury Trial Transcript,

Volume II ("TT2"), 4/5/16-4/8/16, pp. 5-47). The Defendant's alibi defense relied solely

on whether the jury found the Teasley women to be credible, and it is not at
all

surprising that the jurors ultimately rejected the alibi defense as not worthy of belief.

First, Angela and Tiffany Teasley were interviewed by a defense investigator on
their
June 29, 2015 at the same time, in the same room, thereby allowing them to align

stories. (TT2, pp. 7, 16, 22, 24). Second, Angela Teasley materially changed the

she
details of her alibi defense between the time of her statement and trial. Specifically,

17
first claimed that she was able to remember exactly where the Defendant was on the

day of the incident because on October 9, 2014, the day before the incident, the

Defendant accompanied her to Magee Women's Hospital to find out the gender of their

baby. (TT2, pp. 8, 22-27). She admitted that she had used that hospital date as the

lynchpin for determining where the Defendant was on October 10, 2014. (TT2, p. 28).

However, after finding out that the Commonwealth would be able to prove through

medical records that she was never at the hospital on October 9, 2014, Angela Teasley

changed her story and said that the Defendant was at her mother's house with her from

October 9, 2014 until October 11, 2014, and that the couple did not leave the house at

all for those three (3) days. (TT2, pp. 13-14, 28-29).

The court notes that it had the opportunity to observe Angela Teasley as she

testified, and her testimony was not credible in the least. Between her demeanor and

tone, her obvious bias and her desire to keep her child's father from going to prison, it is

not surprising that the jury rejected her testimony and found it unworthy of belief. This

court notes that it found, after hearing the same testimony as the jurors, that Ms.

Teasley's alibi testimony was entirely unworthy of any belief.

It is also no mystery why the jury also rejected the testimony of "alibi" witness

Tiffany Teasley. The court notes that Tiffany Teasley cannot even be considered a

proper alibi witness because she could not account for the Defendant's whereabouts

during the specific timeframe of the attack. (TT2, pp. 43-45). Although she testified that

18
 the Defendant was at her house between October 9, 2014 and October 11, 2014, she

specifically testified that she was asleep until almost noon on the day of the incident.

(TT2, pp. 39, 42-45), Tiffany Teasley, therefore, was unable to place the Defendant at

her home at the time of the attack, and she had no way of knowing where the

Defendant was at approximately 8:30 a.m., when the attack on Mr. Matthews occurred.

Accordingly, for all of the reasons cited above, there is no merit to the

Defendant's claim that he deserved a new trial because the verdict was against the

weight of the evidence. The Defendant's challenge to the weight of the evidence is, at

its core, an invitation for the appellate court to reweigh the evidence and second-guess

the credibility determinations made by the jury in this case. The reviewing court

respectfully should decline to accept such an invitation because "[i]t was the function of

the jury as the finder of fact to evaluate the evidence and determine the weight it should

be given." Lewis, supra, at 566. All of the purported weaknesses in the

Commonwealth's case as were outlined in the Defendant's Concise Statement were

matters for the jury to resolve. Based on the foregoing discussion of evidence, the

jurors' assessment of the evidence and their credibility determinations did not shock this

court's sense of justice in any way. There were no facts in this case that were "so

clearly of greater weight that to ignore them or to give them equal weight with all the

facts is to deny justice." Clay, supra, at 1055. To the contrary, the weight of the

evidence was squarely against the Defendant, and this court did not abuse its discretion

when it denied his motion for a new trial.

19
 B. This court did not abuse Its discretion when it imposed an aggregate
sentence of imprisonment of 26 to 52 years of Imprisonment.

The Defendant contends that his standard range sentences were "manifestly

unjust, unreasonable, and excessive," and he argues that the court abused its discretion

when it imposed consecutive sentences. (Concise Statement, pp. 3-4). In support of

his argument, he claims that the court "failed to appropriately consider" his history,

character, substance abuse problems, and rehabilitative needs. He also cites to the fact

that his criminal background involved only non-violent misdemeanor crimes and that he

expressed remorse at sentencing. (Id. at 3-4).

It is well -settled that "[s]entencing 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. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.

2003). "To constitute an abuse of discretion, the sentence imposed must either exceed

the statutory limits or be manifestly excessive." Commonwealth v. Gaddis, 639 A.2d

462, 469 (Pa. Super. 1994) (citations omitted). To that end, "an abuse of discretion may

not be found merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice,

bias, or or such lack of support so as to be clearly erroneous." Commonwealth v.

Greer, 951 A.2d 346, 355 (Pa. 2008). "In determining whether a sentence is manifestly

excessive, the appellate court must give great weight to the sentencing court's

discretion." Mouzon, supra, at 1128. This deferential standard of review acknowledges

that the sentencing court is "in the best position to view the defendant's character,

20
displays of remorse, defiance, indifference, and the overall effect and nature of the

crime." Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011) (internal

citations omitted).

The Defendant's sentencing argument seeks to challenge the discretionary

aspects of sentencing. The court notes that "[t]he right to appeal a discretionary aspect

of sentence is not absolute." Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa.

Super. 1999). A defendant "challenging the discretionary aspects of his sentence must

invoke [appellate] jurisdiction by satisfying a four-part test." Commonwealth v. Moury,

992 A.2d 162, 170 (Pa. Super. 2010). In conducting the four-part test, the appellate

court analyzes

(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.
[708]; (3) whether appellant's brief has a fatal defect, Pa. R. A. P. 2119(0;
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. "The determination of whether there is a substantial question is made on a

case -by -case basis, and [the appellate court] will grant the appeal only when the

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.

Haynes, 125 A.3d 800, 807 (Pa. Super. 2015).

21
 Our courts have "held on numerous occasions that a claim of inadequate

consideration of [mitigating) factors does not raise a substantial question for 0 review."

Haynes, supra, at 807; Commonwealth v. Buterbauoh, 91 A.3d 1247, 1266 (Pa. Super.

2014). Furthermore, "a sentencing court generally has discretion to impose multiple

sentences concurrently or consecutively, and a challenge to the exercise of that

discretion does not ordinarily raise a substantial question." Commonwealth v. Raven, 97

A.3d 1244, 1253 (Pa. Super. 2014). Moreover, "bald claims of excessiveness due to

the consecutive nature of sentences imposed will not raise a substantial question."

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). Rather, "[t]he

imposition of consecutive, rather than concurrent, sentences may raise a substantial

question in only the most extreme circumstances, such as where the aggregate

sentence is unduly harsh, considering the nature of the crimes and the length of

imprisonment." Mourv, supra, at 171-72.

Respectfully, the reviewing court should find that the Defendant has failed to

raise a substantial question for review of his sentence. The Defendant's standard range

sentences were consistent with the sentencing provisions of the Sentencing Code, and

they did not conflict with the fundamental norms that underlie the sentencing process.

However, should the Superior Court conclude that there exists a substantial question as

to the appropriateness of the sentence, the aggregate sentence imposed was justified

by the totality of the circumstances in this case.

22
 First, the court notes that it had the benefit of a presentence report to aid in its

sentencing determination, and, pursuant to its consistent practice, the court carefully

reviewed this report prior to sentencing. (Sentencing Hearing Transcript ("ST"), 7/14/16,

pp. 2-3); See Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005) (noting

that "the sentencing court had the benefit of reviewing the presentence investigation

report prior to sentencing and, as such, it is presumed that the sentencing court

'was aware of the relevant information regarding defendants character and weighed

those considerations along with mitigating statutory factors.") (internal citations

omitted). The court specifically noted at sentencing that it had reviewed the

presentence report three (3) separate times in preparation for sentencing. (ST, p. 3).

This court, therefore, was well -familiar with the Defendant's personal background,

criminal history, and substance abuse issues, and it took each one of those factors into

account in determining what sentence would be appropriate in this case. (ST, p. 35).

Second, the court considered a number of different factors beyond the heinous

and serious nature of the Defendant's crimes. In addition to giving meaningful

consideration to the Defendant's background, history, and need for rehabilitation, the

court considered the arguments of counsel at sentencing, the victim impact testimony

from Mr. Matthews and his mother, and the Defendant's allocution to the court. (ST, pp.

10-29).

23
 This court would note that the victim's testimony at sentencing was particularly

impactful. Having closely studied the victim as he testified at trial, and again during

sentencing, the court found Mr. Matthews to be extremely credible and sincere in his

description, not only of the events that transpired on the day of the incident, but also in

his description of the physical and emotional pain that he continues to struggle with as a

result of his brutal attack that almost took his life. The effects of the stabbing have

completely derailed Mr. Matthews from the management track that he was on before the

incident, and, at the time of trial, he still had not been able to return to work. Mr.

Matthews does not know whether he will ever be able to work a full work day in the

future. He continues to have difficulties and challenges with even the most basic of

bodily functions, such as grip strength. His mother's testimony also noted that his

relationship with his child has changed fundamentally, as he cannot interact and play

with his child in the manner that he was able to prior to the attack. His basic ability to be

a father has been compromised.

The Defendant and his co-conspirators robbed the victim of much more than his

electronic possessions. They robbed him of his sense of security inside of his own

apartment and broke his trust in society as a whole. The stabbing has caused Mr.

Matthews to suffer from anxiety and post -traumatic stress. Mr. Matthews has been

robbed of one of the most precious commodities - sleep. He is unable to sleep

because the attack occurred while he was in his bed, the place where one should

always feel most safe.

24
 While counsel attempted to re -litigate the facts of the case at sentencing, and

while the Defendant maintained his innocence in the matter, the jury rejected his alibi

defense at trial, likely because it was entirely unworthy of belief and unable to be

corroborated by any objective and unbiased evidence. As noted above, the alibi

witnesses had close ties to the Defendant and, thus, had every incentive to testify

favorably for the Defendant.

As the Defendant acknowledges in his Concise Statement, the sentences

imposed were standard range sentences, and courts have recognized 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. Lamonda, 52

A.3d 365, 372 (Pa. Super. 2012); See also Commonwealth v. Cruz -Centeno, 668 A.2d

536 (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996) (stating combination

of PSI and standard range sentence, absent more, cannot be considered excessive or

unreasonable).

In any event, a defendant is not entitled to a concurrent sentencing scheme, and

the Defendant in this case certainly was not deserving of a "volume discount" for

committing serious crimes that involved breaking into the victim's apartment, brutally

stabbing him and almost taking his life, then robbing him of his belongings. See

Commonwealth v. Hoaq, 665 A.2d 1212, 1214 (Pa. Super. 1995) ("The general rule in

Pennsylvania is that in imposing a sentence the court has discretion to determine

25
whether to make it concurrent with or consecutive to other sentences then being

imposed or other sentences previously imposed."); Commonwealth v. Anderson, 650

A.2d 20, 22 (Pa. 1994) (raising a concern that defendants not be given "volume

discounts" for multiple criminal acts that arose out of one larger criminal transaction).

Accordingly, after considering all of the evidence presented at trial and

sentencing, as well as all of the statutory factors set forth in 42 Pa. C.S.A. §9721(b), this

court's decision to employ a consecutive sentencing scheme so as to impose an

aggregate sentence 26 to 52 years of imprisonment was justified by the totality of the

circumstances in this case. While the court considered the mitigating aspects of the

Defendant's circumstances, it found that the mitigating factors did not outweigh other

relevant considerations outlined above. The Defendant's conduct demonstrates a

disregard for the law and an indifference to the value of human life, and this, in turn,

creates a substantial need to protect the public from his behavior. Accordingly, this

court did not abuse its discretion in imposing sentence, and this allegation of error

should be rejected on appeal.

26
III. CONCLUSION

The Defendant's contentions on appeal are without merit, Based on the

foregoing, the verdict was not against the weight of the evidence, and the sentence

imposed was not an abuse of discretion. Accordingly, this court respectfully requests

that the verdict and sentence in this case be upheld.

BY THE COURT:

BE

February 15, 2017

27