J-S09004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
v. :
:
MICHAEL SCOTT FILAROSKI, :
:
Appellant : No. 818 MDA 2017
:
Appeal from the Judgment of Sentence February 14, 2017
in the Court of Common Pleas of Cumberland County
Criminal Division at No.: CP-21-CR-0002364-2016
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED MAY 09, 2018
Appellant, Michael Scott Filaroski, appeals from the judgment of
sentence imposed on February 14, 2017, following his jury conviction of one
count of carrying a firearm without a license.1 On appeal, Appellant challenges
the sufficiency and weight of the evidence, as well as the discretionary aspects
of sentence. For the reasons discussed below, we affirm the judgment of
sentence.
We take the underlying facts and procedural history in this matter from
our review of the certified record. On July 9, 2016, Patrolman Andrew Wolfe
was part of a group of Middlesex Township police officers investigating drug
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1 18 Pa.C.S.A. § 6106(a)(1).
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* Retired Senior Judge assigned to the Superior Court.
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activity at the Pike Motel. (See N.T. Trial, 12/13/16, at 36, 38). Appellant
and his family were living in a bungalow behind the motel. (See id. at 40).
During their investigation, the police observed Appellant’s son engage in a
drug transaction with some individuals in an automobile. (See id.).
Subsequently, the police stopped the car and began to investigate the
incident; while the police were continuing to investigate, Appellant approached
them and began speaking in an angry and agitated manner, making threats
to kill all drug dealers. (See id. at 42-45, 119). Appellant then pulled up his
shirt and revealed what Patrolman Wolfe, a firearms expert, recognized as a
semi-automatic gun in his waistband. (See id. 45-46, 79). The police did not
know if Appellant had a license to carry the gun and decided not to undertake
any further investigation of Appellant at that time. (See id. at 46-47, 96).
The next day, Patrolman Wolfe responded to a call at the Budget Motel,
located next door to the Pike Motel, because Appellant’s son’s girlfriend had
overdosed on heroin. (See id. at 47). The girlfriend ultimately told police
that Appellant’s son supplied the heroin. (See id. at 48). The police obtained
a warrant and arrested Appellant’s son. (See id. at 49-51). During the arrest,
Appellant was extremely angry and agitated with the police, making specific
threats against them and their families. (See id. at 52-53, 103-04). The
police decided to let the situation de-escalate and consider filing charges
against Appellant at a later juncture. (See id. at 114-15).
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Because of these incidents, the police began an investigation of
Appellant and ascertained that he did not have a license to carry a concealed
weapon and, in fact, was not eligible to obtain such a license. (See id. at 56-
57). On July 25, 2016, the police, pursuant to a warrant, arrested Appellant.
(See id. at 59-65). When they searched his home, they found a box of bullets
and a loaded weapon in his bedroom; it was in the same holster that Appellant
was wearing on July 9. (See id. 59-65, 82, 99).
On September 28, 2016, the Commonwealth filed a criminal information
charging Appellant with one count of firearms not to be carried without a
license and two counts of terroristic threats.2 A jury trial took place on
December 13 and 14, 2016. On December 14, 2016, the jury convicted
Appellant of firearms not to be carried without a license but was unable to
reach a verdict on the charge of terroristic threats. (See N.T. Trial, 12/14/16,
at 189-90). On February 14, 2017, following receipt of a Pre-Sentence
Investigation Report (PSI), the trial court sentenced Appellant to a standard
range sentence of not less than not less than twenty-four nor more than thirty-
six months of incarceration. (See N.T. Sentencing, 2/14/17, at 17). On
February 24, 2017, Appellant filed a post-sentence motion challenging the
sufficiency of the evidence and asking the trial court to reconsider the
sentence. (See Defendant’s Post-Sentence Motion, 2/24/17, at unnumbered
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2 18 Pa.C.S.A. § 2706(a)(1).
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pages 1-3). On April 17, 2017, the trial court denied Appellant’s post-
sentence motion. The instant, timely appeal followed.3
On appeal, Appellant raises the following questions for our review.
I. Did the Commonwealth provide sufficient evidence to prove
beyond a reasonable doubt that [Appellant] possessed a
firearm not to be carried without a license?
II. Was the verdict by the jury against the weight of the
evidence that [Appellant] possessed a firearm not to be
carried without a license?
III. Did the trial court’s failure to state on the record reasons for
the sentence imposed at time of sentencing subsequent to
which the court summarily denied post-sentence motions by
[Appellant] to reconsider (and) modify sentence and for
judgment of acquittal (and) new trial, constitute an abuse
of discretion?
(Appellant’s Brief, at 6) (unnecessary capitalization omitted).
In his first issue, Appellant challenges the sufficiency of the evidence.
(See Appellant’s Brief, at 23-27). Our standard of review for sufficiency of
the evidence claims is well settled:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in
a light most favorable to the Commonwealth as verdict
winner, support the conviction beyond a reasonable doubt.
Where there is sufficient evidence to enable the trier of fact to find
every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
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3 In compliance with the trial court’s order, Appellant filed a statement of
errors complained of on appeal on June 8, 2017. See Pa.R.A.P. 1925(b). On
August 2, 2017, the trial court issued an opinion. See Pa.R.A.P. 1925(a).
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part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s burden
may be met by wholly circumstantial evidence and any doubt
about the defendant’s guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation
omitted) (emphasis added).
Appellant’s argument is underdeveloped. Appellant’s argument on this
issue is all but devoid of legal citation. Appellant does not fully cite to our
standard of review, does not list the elements of the crime, and does not
explain why the evidence was insufficient to meet those elements. (See
Appellant’s Brief, at 23-27). Instead, his entire argument is devoted to his
contention that the initial failure of the police to arrest him on July 9, somehow
made the evidence insufficient. (See id.). Appellant points to nothing to
support his claim that an approximate two-week period of investigation prior
to arrest somehow renders the evidence at trial insufficient. (See id.).
Accordingly, Appellant has waived his sufficiency of the evidence claim. See
Commonwealth v. Liston, 941 A.2d 1279, 1285 (Pa. Super. 2008) (en
banc), affirmed in part and vacated in part, 977 A.2d 1089 (Pa. 2009);
Pa.R.A.P. 2101. In any event, his claim lacks merit.
An individual is guilty of carrying firearms without a license if he or she
“carries a firearm in any vehicle concealed on or about his person, except in
his place of abode or fixed place of business, without a valid and lawfully
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issued license.” 18 Pa.C.S.A. § 6106(a)(1). In the instant matter, Appellant
conceded that he did not have a license to carry a concealed weapon. (See
N.T. Trial, 12/13/16, at 134). At trial, Patrolman Wolfe testified that he
observed Appellant lift up his shirt and then saw a gun in Appellant’s
waistband. (See id. at 45-46). Patrolman Wolfe further stated that the gun
recovered from Appellant’s bedroom was in the same holster that Appellant
wore on July 9. (See id. at 59-65). This was more than sufficient to sustain
Appellant’s conviction. See Commonwealth v. Dever, 364 A.2d 463, 465
(Pa. Super. 1976) (holding evidence sufficient to sustain conviction for
carrying firearm without license where police officers found gun in hotel room
after arresting defendant and one police officer testified to observing gun in
defendant’s waistband). Appellant’s first claim is without merit.
In his second issue, Appellant challenges the weight of evidence. (See
Appellant’s Brief, at 28-30). However, Appellant has not preserved this claim
for our review.
We have long held that this Court cannot consider, in the first instance,
a claim that the verdict is against the weight of the evidence. See
Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here,
while Appellant did file a post-sentence motion, he challenged the sufficiency
of the evidence, not the weight. (See Defendant’s Post-Sentence Motion, at
unnumbered page 2-3). Thus, the issue is not preserved for our review. See
Commonwealth v. Burkett, 830 A.2d 1034, 1036 (Pa. Super. 2003).
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Moreover, even if we were to address the merits of the weight of the
evidence claim, it would fail.
Our scope and standard of review of a weight of the evidence claim is
as follows:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so contrary
to the evidence as to shock one’s sense of justice. A verdict is
said to be contrary to the evidence such that it shocks one’s sense
of justice when the figure of Justice totters on her pedestal, or
when the jury’s verdict, at the time of its rendition, causes the
trial judge to lose his breath, temporarily, and causes him to
almost fall from the bench, then it is truly shocking to the judicial
conscience.
Furthermore, 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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and quotation marks omitted). “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, 879-80
(Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation omitted).
In its Rule 1925(a) opinion, the trial court explained that the jury chose
to credit the Commonwealth and not Appellant’s defense. (See Trial Court
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Opinion, 8/02/17, at unnumbered page 7); Commonwealth v. Griscavage,
517 A.2d 1256, 1259 (Pa. 1986). “[I]t is for the fact-finder to make
credibility determinations, and the finder of fact may believe all, part, or none
of a witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024, 1029
(Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted).
This Court cannot substitute our judgment for that of the finder of fact. See
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 134
S.Ct. 1792 (2014). This issue would not merit relief.
In his third issue, Appellant challenges the discretionary aspects of his
sentence.4 (See Appellant’s Brief, at 31-41). Specifically, he maintains that
the trial court failed to place reasons on the record to justify a sentence of
total confinement. (See id. at 31). However, Appellant has waived this claim.
The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
challenges the discretionary aspects of the sentence imposed, he must present
“a substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
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4We note that Appellant preserved his discretionary aspects of sentence claim
by filing a timely post-sentence motion for reconsideration of sentence. (See
Defendant’s Post-Sentence Motion, at unnumbered page 1-2); see also
Commonwealth v. McAfee, infra at 275.
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(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”5
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005) (en
banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted); see
Pa.R.A.P. 2119(f). If an appellant’s Rule 2119(f) statement meets these
prerequisites, we have found that a substantial question exists. See
Commonwealth v. Goggins, 748 A.2d 721, 727-28 (Pa. Super. 2000) (en
banc), appeal denied, 759 A.2d 920 (Pa. 2000). “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts underlying
the appeal, which are necessary only to decide the appeal on the merits.” Id.
at 727 (emphases in original).
Here, while Appellant did file a post-sentence motion for
reconsideration, as discussed above, the only issues raised were that the trial
court did not give adequate weight to the letters sent in support of a mitigated
sentence and that the evidence at trial was weak. (See Defendant’s Post-
Sentence Motion, at unnumbered pages 1-2). Appellant did not raise the claim
that the trial court failed to place sufficient reasons on the record. (See id.).
It is settled that an appellant waives any discretionary aspects of sentence
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5 Appellant has included a Rule 2119(f) statement in his brief. (See
Appellant’s Brief, at 20-22).
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issue not raised in a post-sentence motion; also, an appellant cannot raise an
issue for the first time on appeal. See Commonwealth v. Mann, 820 A.2d
788, 794 (Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa. 2003) (finding
claim sentencing court did not put sufficient reasons to justify sentence on
record waived where issue was not raised in post-sentence motion); see also
Pa.R.A.P. 302(a). Thus, Appellant waived his discretionary aspects of
sentence claim.
Moreover, the claim is without merit. Our standard of review is 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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015), appeal
denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).
Here, Appellant acknowledges that the trial court sentenced him in the
standard range. (See Defendant’s Post-Sentence Motion, at unnumbered
page 1). The record demonstrates that the trial court had the benefit of a
PSI. (See N.T. Sentencing, at 17). We have stated that:
[w]hen imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. . . . Where the sentencing court had the benefit of
a [PSI], we can assume the sentencing court was aware of
relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors. Further, where a sentence is within the standard range
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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) (internal
quotation marks and citations omitted). Here, the sentencing court stated
that it had reviewed the PSI and imposed a sentence that was within the
standard range of the guidelines. (See N.T. Sentencing, at 17). Thus, any
challenge to the discretionary aspects of sentence would lack merit. See
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (holding
sentence not manifestly unreasonable where sentencing court considered PSI,
details of crime, and explained reasons for sentence); see also Moury, supra
at 171.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2018
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