Com. v. Banks, E.

J-S47009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

ERIC THEADY BANKS

Appellant No. 200 MDA 2020

Appeal from the Judgment of Sentence January 30, 2019
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0001361-2018

BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.: FILED DECEMBER 29, 2020

Appellant, Eric Theady Banks, appeals from his judgment of sentence of

12½—25 years’ imprisonment for simple assault, persons not to carry firearms

and carrying a firearm without a license.1 We affirm.

The trial court accurately summarized the evidence as follows:

The events occurred at a private residence [address omitted] at
approximately 10:30 p.m. on November 18, 2017. A sizable
group of family and friends had gathered at the residence due to
the family receiving news that an aunt had been diagnosed with
terminal cancer. Between 10:30 p.m. and 11:00 p.m., Appellant
arrived at the residence and began to argue with his then girlfriend
[name omitted]. At this point the victim, [L.T.], told Appellant to
leave because there were several children present. In response,
Appellant opened his coat and flashed [L.T.] a gun under the coat.
He did this three or four times. [L.T.] testified that she was not
initially afraid because Appellant was known to her from a

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2701, 6105 and 6106, respectively.
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previous relationship years earlier. However, when the children
ran toward the scene, she realized the potential danger of the
situation and immediately began to fear an imminent threat
Appellant posed to her and her family. At that point the women
of the household, including [the then girlfriend and L.T.], managed
to get him to leave the house. Shortly thereafter, multiple people
reported hearing gunshots immediately after Appellant left the
house and before he drove away. Three shell casings were found
on the ground approximately one block away from the residence.

Trial Court Opinion, 4/21/20, at 1-2 (record citations omitted).

On November 7, 2018, the case proceeded to a jury trial. At the close

of evidence, the parties stipulated that Appellant did not have a concealed

carry permit and was not permitted to carry a firearm. On November 8, 2018,

the jury found Appellant guilty of simple assault, persons not to possess

firearms and carrying a firearm without a license. The jury acquitted Appellant

of reckless endangerment.

On January 30, 2019, the court imposed the following consecutive

sentences: 8—16 years’ imprisonment for persons not to possess firearms,

3½—7 years’ imprisonment for carrying firearms without a license, and 1—2

years’ imprisonment for simple assault. Appellant filed timely post-sentence

motions, which the court denied, and a timely notice of appeal. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues in this appeal, which we reorder for

purposes of convenience:

I. Whether the Commonwealth failed to present sufficient
evidence at trial to sustain the verdict of guilty on the charge [of]
simple assault as the Commonwealth failed to produce any

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evidence that [Appellant] attempted or intended to place the
complainant in fear of imminent serious bodily injury?

II. Whether the court erred as a matter of law in imposing
consecutive sentences on the convictions for persons not to
possess a firearm and carrying a firearm without a license as the
offenses merge for sentencing purposes as each statute protects
a substantially similar harm to the Commonwealth?

III. Whether the sentencing court abused its discretion by
imposing an aggregate sentence of 12½ to 25 years with each
count running consecutive to one another which was clearly
unreasonable and committed an error of law by failing to state
sufficient reasons on the record and double counted factors in
imposing sentences in the aggravated range and consecutively[?]

Appellant’s Brief at 6.

In his first argument, Appellant challenges the sufficiency of the

evidence underlying his conviction for simple assault by claiming that the

Commonwealth failed to adduce evidence that he placed the complainant in

fear of imminent serious bodily injury. This argument is devoid of merit.

When addressing a challenge to the sufficiency of the evidence, this

Court must “view the evidence in the light most favorable to the verdict winner

giving the prosecution the benefit of all reasonable inferences to be drawn

from the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000). The Commonwealth may sustain its burden by circumstantial evidence

alone. Commonwealth v. Hopkins, 747 A.2d 910, 913 (Pa. Super. 2000).

To sustain a conviction for simple assault, the Commonwealth must

prove that Appellant “attempted by physical menace to put another in fear of

imminent serious bodily injury.” 18 Pa.C.S.A. § 2701(a)(3). The Crimes Code

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defines “serious bodily injury” as “bodily injury which creates a substantial risk

of death or which causes serious, permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A.

§ 2301. Verbal threats are not necessary to prove the element of physical

menace. See, e.g., Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.

Super. 2003) (pointing gun at another person can constitute simple assault

by physical menace to put another in fear of imminent serious bodily injury).

Here, Appellant entered L.T.’s home and immediately began arguing

with his girlfriend and others in the residence. N.T., Trial, 11/08/18, at 104,

173-74. L.T. testified that when the arguing continued and she told Appellant

he needed to leave, he responded by “flipping his coat open.” Id. at 105. It

was at that point that she “saw a gun and freaked out.” Id. at 106. She

immediately jumped to her feet and continued to tell Appellant he had to

leave; others then began yelling at him to get out. Id. Appellant flipped his

coat open “three or four times” while telling her and the others present that

they could call whomever they wanted to call; it was her belief this was in

reference to people involved in the previous dispute that initiated the

argument between Appellant and his girlfriend. Id. at 107-08. While L.T.

stated that she did not feel threatened at first, she felt threatened enough

when he “kept doing it” that she made all the children retreat upstairs. Id. at

108-09. Although Appellant did not explicitly threaten to shoot or injure

anyone, his argumentative and angry demeanor, combined with his repeated

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displays of his firearm, clearly constituted an attempt by menace to place

another in fear of imminent serious bodily injury. Accordingly, we conclude

the evidence was sufficient to support Appellant’s conviction for simple

assault.

Next, Appellant argues that the trial court erred by imposing consecutive

sentences for persons not to possess a firearm and carrying a firearm without

a license because these offenses merged for sentencing purposes. We

disagree.

Whether Appellant's convictions merge for sentencing is a question

implicating the legality of his sentence. Consequently, our standard of review

is de novo and the scope of our review is plenary. Commonwealth v.

Bernard, 218 A.3d 935, 942 (Pa. Super. 2019). The Judiciary Code provides

with regard to merger of sentences:

No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. Merger of offenses is appropriate where “(1) the crimes

arise from a single criminal act; and (2) all of the statutory elements of one

of the offenses are included in the statutory elements of the other offense.”

Commonwealth v. Roane, 204 A.3d 998, 1002 (Pa. Super. 2019). If both

crimes require proof of at least one element that the other does not, then the

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sentences do not merge.” Commonwealth v. Johnson, 874 A.2d 66, 70

(Pa. Super. 2005).

The crime of carrying firearms without a license requires proof that

Appellant carried a firearm in a vehicle or “concealed on or about his person,

except in his place of abode or fixed place of business, without a valid lawfully

issued license.” 18 Pa.C.S.A. § 6106(a)(1). The crime of persons not to carry

firearms requires proof that Appellant is a person convicted of an enumerated

offense, or whose conduct meets enumerated criteria, and that he possessed

a firearm. 18 Pa.C.S.A. § 6105(a)(1). Neither offense subsumes all of the

elements of the other offense. Thus, they do not merge for purposes of

sentencing. Commonwealth v. Williams, 980 A.2d 667, 673-74 (Pa. Super.

2009) (sentences for persons not to carry firearms and carrying a firearm

without a license did not merge under Section 9765, because person could

violate persons not to carry firearms statute without violating statute

prohibiting carrying firearm without license).

Finally, Appellant argues that the trial court abused its discretion by

imposing an aggregate sentence of 12½—25 years’ imprisonment because it

double-counted various factors in the course of imposing sentence.

It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa. Super. 2011). Instead, where, as here, an appellant challenges the

discretionary aspects of sentence, this Court treats his appeal as a petition for

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allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.

Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (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.A. § 9781(b).

Id. at 170. We evaluate on a case-by-case basis whether a particular issue

constitutes a substantial question about the appropriateness of sentence.

Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

Appellant satisfies the first three requirements of this test, because he

filed a timely appeal to this Court, preserved the issue on appeal through post-

sentence motions, and included a Pa.R.A.P. 2119(f) statement in his brief.

Furthermore, his claim that the court double-counted various factors in

imposing sentence raises a substantial question concerning the propriety of

his sentence. Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super.

2000), (“double-counting” sentencing factor to justify the imposition of

sentence where that factor is already accounted for by sentencing guidelines

is abuse of discretion). Accordingly, we proceed to the substance of his

argument.

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The trial court comprehensively explained its reasons for sentencing

Appellant as follows:

Sentencing above the aggravated range requires the trial court to
place its reasoning on the record to show that the court did not
ignore or misapply the law, exercise its judgment for reasons of
partiality, prejudice, bias or ill will, or arrive at a manifestly
unreasonable decision. See Commonwealth v. Matthews, 196
A.3d 242, 251 (Pa. Super. 2018). The Pennsylvania Supreme
Court made this clear when they stated that an abuse of discretion
will only take place when the sentence is the “result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.” Commonwealth
v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (Pa. 2007) (referencing
Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893, 895 (Pa.
1996)). The Superior Court stated that when imposing a
sentence, “the sentencing court must consider the factors set out
in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public,
gravity of offense in relation to impact on victim and community,
and rehabilitative needs of the defendant. And, of course, the
court must consider the sentencing guidelines.” Commonwealth
v. Fullin, 892 A.2d 843, 847-48 (Pa. Super. 2006) (internal
citations omitted). The applicable law in sentencing is found in 42
Pa.C.S.A. § 9721(b), which requires that “[i]n every case where
the court imposes a sentence or resentence outside the guidelines
adopted by the Pennsylvania Commission on Sentencing . . . the
court shall provide a contemporaneous written statement of the
reason or reasons for the deviation from the guidelines to the
commission.”

Furthermore, appellate courts accord the lower court’s reasoning
great deference as the sentencing court is in the best position to
view the defendant’s character, displays of remorse, defiance,
indifference, and the overall effect and nature of the crime.
Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).
A sentencing court’s ruling should be upheld unless the record
reflects that the judgment exercised was manifestly unreasonable,
or the result of partiality, prejudice, or ill will. Commonwealth
v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010).

The record in this case reflects that the sentencing court
incorporated the recommendation of the sentencing guidelines, as
well the protection of the public, the gravity of the offense, and

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the rehabilitative potential of Appellant. At Appellant’s
sentencing, this Court stated that it had “considered the PSI,
considered the arguments of counsel, presided over the trial, so I
considered all the evidence that was presented at the trial,
considered [Appellant’s] record.” N.T. Sentencing, 01/30/19, at
6. The sentencing court listed the PSI guidelines for the standard
and aggravated range sentences on the record. [Id.] at 5-6.

After taking account of the sentencing guidelines applied in
Appellant’s case, this Court explained why Appellant lacks
rehabilitative potential. Appellant was convicted of Person Not to
Possess a Firearm, Carrying a Firearm without a License, and
Simple Assault. [H]is PSI indicated he also had an extensive prior
record involving a pattern of similar crimes. These crimes were
factored into Appellant’s prior record score, and were only used
by this Court in weighing Appellant’s rehabilitative potential.
Appellant has two prior counts of recklessly endangering another,
two prior counts of aggravated assault, a prior simple assault, as
well as a prior firearms not to be carried and person not to possess
conviction, which places his prior record score at RFEL.
Additionally, Appellant was sentenced outside the guidelines
because sentencing guidelines do not capture the fact that
Appellant continued to commit the same firearm and assaultive
offenses again, a fact specifically probative of lack of remorse and
rehabilitative potential in regard to being a man prone to
committing violence.

His history reveals Appellant will continue to engage in a pattern
of violent acts and the use of firearms and is unlikely to reform his
behavior. After Appellant was arrested on the charges in the
present matter, he received write-ups for threatening prison staff
and a separate fighting offense, both in June of 2018, while in
prison.

Additionally, Appellant received a write-up in July of 2018 for
refusing an order of staff. Appellant’s history of violence, coupled
with Appellant’s willful continuation of violence once incarcerated
on these charges, demonstrates that Appellant is an ongoing
threat to community safety by committing violent and threatening
acts, and shunning all rehabilitative efforts to stop such conduct.
Considering all of the above information the court found Appellant
not to have rehabilitative potential from his violent and criminal
disposition, as well as to be lacking any remorse for his violent

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history. These reasons were placed on the record. N.T.
Sentencing, 01/30/2019 at 5-8.

This Court also found that Appellant demonstrated a lack of
remorse and rehabilitative potential through his incredible story
of having himself been the victim of the shooting on the night in
question. N.T. Sentencing, 01/30/2019 at 8-9; N.T. Trial,
11/08/2018, at 180-86. In his quasi-alibi, Appellant tried to pass
the blame for his actions on to some other, unknown, bystander
thereby attempting to mislead the police and the jury. This Court
is not using these facts as evidence of another crime to increase
Appellant’s punishment, [since] he was never convicted for
putting forth those falsehoods, but as a further demonstration of
his lack of rehabilitative potential through his lack of remorse for
his violent crimes.

Beyond Appellant’s rehabilitative potential and the sentencing
guidelines, this Court was required to address public protection
and the impact of Appellant’s behavior on the victim and the
community. Appellant’s reckless firing of the weapon while
illegally possessing it was also considered, and found to be of
great concern. N.T. Sentencing, 01/30/2019 at 9. By randomly
firing it in the air as he left, he endangered everyone in the range
of those randomly fired bullets in a highly populated urban area
where children were present. This type of senseless conduct is
the very reason the legislature does not want unstable felons with
poor judgment to possess firearms.

The case law supports sentencing above the aggravated range
based on Appellant’s history. In Commonwealth v. Darden, the
Superior Court explained that crimes not incorporated into a prior
record score could be considered in sentencing, but stated,
“Nevertheless, `[p]rior connections of whatever nature, with law
enforcement authorities are unquestionably among the
circumstances to be scrutinized’ in determining the appropriate
sentence.” Commonwealth v. Darden, 531 A.2d 1144, 1149
(Pa. Super. 1987) (quoting Commonwealth v. Lupatsky, 491
A.2d 845, 847 (Pa. Super. 1985)).

Our Supreme Court has stated that while incorporation of the
sentencing guidelines is mandatory, they remain as guidelines and
nothing more:

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It is well-established that the Sentencing Guidelines
are purely advisory in nature. As this Court explained
in Commonwealth v. Sessoms, 516 Pa. 365, 532
A.2d 775, 780-81 (Pa. 1987), the Guidelines do not
alter the legal rights or duties of the defendant, the
prosecutor or the sentencing court. The guidelines
are merely one factor among many that the court
must consider in imposing a sentence.

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007)
(emphasis added). While there is an inherently fine line between
the PSI’s incorporation of a defendant’s prior record and a
sentencing court’s consideration of this prior record to judge a
defendant’s rehabilitative potential, this Court believes the statute
is clear that both must be considered separately, and that
collapsing the concepts together ignores its duty to sentence
based on all of the information and evidence available. Prior
record scores are an important objective numerical consideration,
but not a replacement for the subjective nuances of sentencing
inherent in evaluating remorse and rehabilitative potential, which
look forward, not backward, in assessing the likelihood of
continued criminality.

In light of Appellant’s threat to his community, his violent
character, lack of remorse, and lack of rehabilitative potential,
Appellant’s sentence was not manifestly unreasonable. Appellant
refused all efforts at rehabilitation presented to him in his past
convictions. Appellant has a history of violence dating back to the
late 1990s. Instead of looking to reform his behavior, he
maintained his well-worn path to keep causing harm to society.
Appellant has a violent mindset, and wishes to continue his ways
of interacting with others through violence. For these reasons he
needs to be separated from society for a lengthy period of time,
in excess of standard ranges where a defendant does have
rehabilitative potential, or even the aggravated range. His
sentence is appropriate in light of the factors cited by the court.

Trial Court Opinion, 4/21/20, at 6-11 (minor stylistic revisions). We agree

with the trial court’s thorough and thoughtful consideration of Appellant’s

sentence and reject Appellant’s claim of double-counting. Appellant’s

sentence is a proper exercise of the trial court’s discretion.

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For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judge Strassburger joins the memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/2020

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