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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NORM SCOTT :
:
Appellant : No. 3005 EDA 2016
Appeal from the Judgment of Sentence June 8, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013785-2013
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
MEMORANDUM BY BOWES, J.: FILED JUNE 26, 2018
Norm Scott appeals from the aggregate judgment of sentence of
eighteen to thirty-six months imprisonment following his non-jury
convictions for simple assault and recklessly endangering another person
(“REAP”). We affirm.
The trial court offered the following summary of the history of the
case.
On the night of March 14, 2013, Roxanne Little and her
twelve-year-old son were at home in their Philadelphia
apartment. At approximately 9:00 P.M., [Appellant]—who was
dating Ms. Little—came to the apartment and let himself in using
a key. He asked Ms. Little why she had not opened “the f**king
door for him.” She did not answer him. [Appellant] walked over
to a pile of his folded clothes and saw a single match sitting on
top. He asked Ms. Little who had put the match on his clothes.
When Ms. Little said that she did not know, [Appellant] grew
very aggressive and accused her of having another man in the
apartment. He grabbed her by the throat and punched her in
the face multiple times. Ms. Little started screaming. Her son,
watching as his mother was beaten, also began to scream and
____________________________________
* Former Justice specially assigned to the Superior Court.
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used one of his toys to hit [Appellant]. Ms. Little ran out of the
apartment and down the stairs to the building’s front door, but
she could not open it. [Appellant] followed her downstairs and
continued to punch her in the face. When Ms. Little fell to the
floor, [Appellant] tried to pull her back up the stairs but was
unable to do so. Instead, he stomped down on her left leg,
breaking it. [Appellant] walked back upstairs, got his jacket,
and left the apartment building. In the meantime, Ms. Little was
able to get outside and call the police from a neighbor’s phone.
Police Officer Joseph Gallagher was the first to respond to
the scene of the assault. He found Ms. Little crying and visibly
distressed. Her face[] was bruised and swollen, her neck was
red, and she was complaining of leg pain. Ms. Little told Officer
Gallagher that she and [Appellant] had been in a heated
argument, that he had struck her repeatedly in the face, and
that as she lay on the floor at the bottom of the steps, he
jumped on her leg. Ms. Little was taken to Mercy Hospital where
she was diagnosed with a fractured left tibia and received
emergency surgery. On March 15, 2013, Ms. Little gave a
statement to Detective Anderson, consistent with what she had
told Officer Gallagher. A warrant was issued for [Appellant’s]
arrest; however, police were unable to find [him]. On
September 20, 2013, they learned he had been taken into
custody in New York. On October 17, 2013, [Appellant] was
extradited to Philadelphia to face charges arising from the March
14th assault.
Th[e trial] court found [Appellant] guilty of [simple assault
and REAP] and deferred sentencing until June 8, 2015 for
completion of a presentence investigation and mental health
evaluation. On the date of sentencing, however, [Appellant]
failed to appear, and the court issued a bench warrant. Nine
months later, in March, 2016, [Appellant] was arrested by New
York City Police and extradited for sentencing on the instant
case. At the June 8, 2016 sentencing hearing, this court
sentenced [Appellant] to a guideline sentence of one to two
years of incarceration on the simple assault conviction and a
consecutive six to twelve months of incarceration on the REAP
conviction. [Appellant] filed a post-sentence motion that same
day, which the court denied on September 12, 2016.
Trial Court Opinion, 4/5/17, at 1-3 (citations omitted).
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Thereafter, Appellant filed a timely notice of appeal, and both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions on appeal, which we have
re-ordered for ease of disposition.
I. Whether the evidence was insufficient to convict
[Appellant] of simple assault and recklessly endangering
another person when the complaining witness gave two
different stories and even testified for the defense at
sentencing.
II. Whether the court’s guilty verdict was against the weight
of the evidence to convict [Appellant] of simple assault and
recklessly endangering another person when the
complaining witness gave two different stories and even
testified for the defense at sentencing.
III. Whether the trial court abused its discretion with
[Appellant’s] manifestly excessive sentence of 18-36
months based on the statutory maximum of 1-2 years on
simple assault followed by 6-12 months consecutive on
recklessly endangering another person was an abuse of
discretion.
Appellant’s brief at 7.
We begin with Appellant’s sufficiency claim, for which our standard and
scope of review are de novo and plenary, respectively. Commonwealth v.
Williams, 176 A.3d 298, 305 (Pa.Super. 2017). A conviction is based upon
sufficient evidence if “the evidence admitted at trial and all reasonable
inferences drawn therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, were sufficient to prove every element of
the offense beyond a reasonable doubt.” Id. at 305-06. The
Commonwealth may sustain its burden through wholly circumstantial
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evidence, and need not preclude all possibility of innocence. Id. at 306. “It
is within the province of the fact-finder to determine the weight to be
accorded to each witness’s testimony and to believe all, part, or none of the
evidence.” Id. “Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.” Id.
One is guilty of simple assault if he or she “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another.” 18
Pa.C.S. § 2701(a)(1). A person commits REAP if he or she “recklessly
engages in conduct which places or may place another person in danger of
death or serious bodily injury.” 18 Pa.C.S. § 2705.
At trial, the Commonwealth offered the signed statement and
preliminary hearing testimony of Ms. Little. Both consistently iterated the
facts found by the trial court quoted supra. Specifically, Ms. Little indicated
that, on the night in question, Appellant became angry, grabbed her by the
throat, punched her in the face repeatedly, followed her downstairs when
she attempted to flee, tried to drag her back up the stairs, and, when he
could not, jumped on her leg, breaking it. See N.T. Trial, 3/16/15, at 28-30
(statement); id. at 40-42 (preliminary hearing testimony). This evidence is
more than sufficient to sustain Appellant’s convictions. See, e.g.,
Commonwealth v. Rahman, 75 A.3d 497, 502-03 (Pa.Super. 2013)
(finding evidence sufficient to sustain simple assault and REAP convictions
where the defendant shoved and punched the victim several times in a
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stairwell, which could have caused the victim to fall down the stairs, and
which resulted in the victim’s sustaining a sprained shoulder and a bruised
rib).
Appellant’s argument that the Commonwealth failed to prove
Appellant’s guilt of these crimes is as follows.
The inconsistencies in this case are what make the
evidence so weak. [Appellant] came home around 9:00PM and
began to have a verbal argument with Ms. Little. The argument
escalated as [Appellant] thought someone else was at their
house. Ms. Little then gave conflicting testimony whether she
fell down her stairs or whether [Appellant] punched and
assaulted her. At some point [Appellant] walked away from the
situation and left the apartment building. Ms. Little received
medical care and gave a statement that said [Appellant]
assaulted her. Inconsistency was the only thing consistent about
her statements and testimony.
Appellant’s brief at 20.1
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1 The trial court did not address Appellant’s sufficiency claim, finding that it
had been waived based upon Appellant’s failure to state with specificity in
his Rule 1925(b) statement which elements of the crimes were not
established by sufficient evidence. Trial Court Opinion, 4/5/17, at 4.
Appellant’s statement contended that the evidence was insufficient because
“There was conflicting testimony about what happened that evening. The
complaining witness herself gave a completely different story of events at
trial[.]” Concise Statement, 9/20/16, at ¶ 2. This Court has recognized
such a claim as a viable attack on the sufficiency of the evidence. See, e.g.,
Commonwealth v. Bennett, 303 A.2d 220, 220 (Pa.Super. 1973) (en
banc) (holding evidence was insufficient to support conviction where the
testimony of the Commonwealth’s witness “was so inconsistent and
contradictory as to be insufficient to support a finding of [the defendant’s]
guilt”). Accordingly, we conclude that Appellant preserved this issue for our
review.
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Ms. Little did testify at trial that Appellant merely verbally attacked her
on the night in question, that she had a panic attack and went outside for
air, and fell down the steps, hitting her leg off of a heater. N.T., 3/16/15, at
16-17. She claimed that her signed statement contains incorrect
information, and she only signed it because she was under a lot of stress.
Id. at 23-27. Further, Ms. Little indicated that her testimony at the
preliminary hearing was the product of “the power of suggestion” based
upon being harassed by the assistant district attorney, and that Appellant
and she “never had a physical altercation. Never.” Id. at 41, 37-38.
However, whether Ms. Little was telling the truth out of court or in
court was a credibility determination solely within the province of the fact-
finder. The fact that she recanted her earlier testimony does not render
Appellant’s convictions invalid. See, e.g., Commonwealth v. Brown, 52
A.3d 1139, 1171 (Pa. 2012) (holding out-of-court statements of witnesses
“furnished legally sufficient evidence to sustain [the defendant’s]
convictions” because they “were not so patently unreliable so as to render a
jury verdict based upon them one of pure conjecture” and the fact-finder
“had the opportunity to observe these witnesses as they repudiated their
out-of-court statements, and to assess the credibility of their explanations
for the repudiations”); Commonwealth v. Jones, 644 A.2d 177, 181
(Pa.Super. 1994) (“Although both witnesses made statements prior to trial
which were inconsistent with their in-court testimony, they were questioned
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extensively regarding their prior statements, and the trier of fact could
properly determine on which occasions the witnesses had been truthful.”)
(footnote omitted). Therefore, Appellant’s sufficiency challenge merits no
relief.
Appellant next argues that his convictions are against the weight of
the evidence. Accordingly, the following principles apply.
Appellate review of a weight claim is a review of the [trial
court’s] 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
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, 1054–55 (Pa. 2013). This
standard applies even when the trial judge also sat as the finder of fact.
See, e.g., Commonwealth v. Konias, 136 A.3d 1014, 1023 (Pa.Super.
2016) (applying the above standard to a weight challenge following a bench
trial).
Appellant’s argument in support of his weight claim is the same as the
sufficiency argument. Appellant highlights Ms. Little’s trial testimony that
her injuries were not Appellant’s fault, that the police fabricated her
statement, and that her preliminary hearing testimony was the result of
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threats by the ADA, and contends her trial testimony was weightier than her
prior inconsistent statements. Appellant’s brief at 14-16.
The trial court offered the following discussion of Appellant’s claim.
Acting within its province as fact-finder, th[e trial] court
found Ms. Little’s prior statement and testimony at the
preliminary hearing credible and her testimony at trial incredible.
This determination was amply supported by corroborating
evidence, including Officer Gallagher’s personal observation of
the victim’s bruised face and Ms. Little’s excited utterance
describing the assault when the officer first arrived on scene.
Because the verdict did not shock one’s sense of justice, the
court did not abuse its discretion in denying defendant’s weight
of the evidence claim.
Trial Court Opinion, 4/5/17, at 6.
As discussed above, Ms. Little offered two entirely-consistent accounts
of Appellant’s brutal attack upon her. It was well within the province of the
fact-finder to determine that those accounts were credible and her in-court
recantation was not. Thus, we find no abuse of discretion on the part of the
trial court in holding that the verdict did not shock its conscience, and
Appellant is entitled to no relief from this Court on his weight-of-the-
evidence claim.
Appellant’s final issue is a challenge to the discretionary aspects of his
sentence. The following principles apply to our review.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
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(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)
(some citations omitted).
Appellant filed a notice of appeal after preserving his issues by
including them in a motion to modify sentence and his Pa.R.A.P. 1925(b)
statement. Further, Appellant’s brief contains a statement pursuant to
Pa.R.A.P. 2119(f), in which he claims that the trial court’s imposition of the
statutory maximum sentence was “more punitive than rehabilitative” and,
therefore, manifestly excessive. Appellant’s brief at 12. This Court has
found that a substantial question was presented by an excessiveness claim
combined with allegations that the trial court consider mitigating factors.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014).
As such, we shall consider the merits of Appellant’s sentencing claim.
We begin by noting that, “[w]hen imposing sentence, a court is required to
consider the particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to the
defendant’s prior criminal record, age, personal characteristics and potential
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for rehabilitation.” Commonwealth v. Antidormi, 84 A.3d 736, 761
(Pa.Super. 2014) (citations and quotation marks omitted).
“When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in best position to view the defendant’s
character, displays of remorse, defiance or indifference, and the overall
effect and nature of the crime.” Commonwealth v. Ventura, 975 A.2d
1128, 1134 (Pa.Super. 2009). We review the trial court’s determination for
an 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.
Antidormi, supra at 760. Moreover, where, as here, the defendant “was
sentenced within the guidelines, we may reverse only if application of the
guidelines is clearly unreasonable.” Commonwealth v. Macias, 968 A.2d
773, 777 (Pa.Super. 2009).
Appellant notes that, based upon prior-record and offense-gravity
scores of three, the sentencing guidelines provided a standard range
sentence of restorative sanctions to twelve months for his simple assault
conviction. Appellant’s brief at 23-24. Appellant contends that imposition of
the sentence at the top end of the standard range is too severe because, as
simple assault is a second-degree misdemeanor, the statutory maximum
sentence is also twelve to twenty-four months. Id. at 25-26.
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The trial court responded to Appellant’s contention as follows.
Here, the court considered each of the[ statutory] factors,
in addition to defendant’s disrespect for the court’s authority
(i.e., his failure to appear at his originally scheduled sentencing
hearing because “so many things [were on his] shoulders,”
defendant’s allocution, his lack of remorse, arguments by
counsel for both defendant and the Commonwealth, Ms. Little’s
testimony at the sentencing hearing, and the presentence report
and mental health evaluation. The court imposed a guideline
sentence of one to two years of incarceration on the simple
assault conviction and a guideline sentence of six months to one
year of incarceration on the REAP conviction. The court further
ordered that the sentences run consecutive to one another so as
not to depreciate the gravity of the offenses and to ensure that
defendant would receive the treatment recommended in his
presentence report and mental health evaluation.
Trial Court Opinion, 4/5/17, at 3-4 (citations and footnote omitted).
The trial court’s reasons are supported by the record and, given the
conduct at issue and Appellant’s utter lack of remorse, we have no hesitation
in concluding that the trial court was not clearly unreasonable in imposing
consecutive, standard-range sentences, despite the fact that one constituted
a statutory maximum. See, e.g., Commonwealth v. Lawrence, 960 A.2d
473, 480 (Pa.Super. 2008) (finding no merit to claim that trial court’s
imposition of statutory maximum sentences was unreasonable where
defendant brutally beat victim, fabricated “ludicrous” story that the victim
hurt herself falling out of bed, and showed no remorse).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/18
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