Com. v. Dalfonse, V.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

VICTOR DALFONSE

Appellant No. 2191 EDA 2015

Appeal from the Judgment of Sentence May 8, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004419-2014

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED MAY 05, 2017

Victor Dalfonse appeals from his judgment of sentence, imposed in the

Court of Common Pleas of Philadelphia County. Upon careful review, we

affirm.'
The trial court set forth the facts of this case as follows:

On January 2, 2014, at approximately 8:30 in the evening,
complainant and a friend were in the Tacony section of
Philadelphia, PA, seeking to purchase marijuana. During the
course of their search, [they] proceeded to a corner store where
they encountered an individual standing outside. Complainant
and his friend asked the individual whether he had any
marijuana; the individual responded that he was waiting for
some marijuana to arrive. Complainant requested that the

* Former Justice specially assigned to the Superior Court.

'We note that, despite several requests for extensions granted by this
Court, the Commonwealth did not file a brief in this matter.
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individual notify him once the marijuana had arrived because
complainant wanted to make a purchase. Complainant and his
friend then continued inside the corner store. While still in the
store, complainant observed [Dalfonse] engage in what
appeared to be a hand-to-hand exchange with the
aforementioned individual [with whom he had just spoken].
Complainant then approached [Dalfonse] to attempt to purchase
marijuana, whereupon [Dalfonse] responded that he did not
have any marijuana, but that he would return to the store with
marijuana within ten (10) to fifteen (15) minutes. As a result,
complainant and his friend waited for [Dalfonse's] return inside
of the corner store.
Upon returning to the corner store, [Dalfonse] directed
complainant to follow him outside to the corner in order to avoid
surveillance cameras. [Dalfonse] and complainant then
proceeded outside to the corner[,] at which time [Dalfonse]
asked complainant if he had money to purchase marijuana.
Complainant produced twenty-five dollars ($25) in United States
currency and gave it to [Dalfonse,] who then placed the money
inside his jacket pocket. [Dalfonse] then retrieved a silver
revolver with a shortened barrel from behind his back, and
pressed the firearm against complainant's stomach[,] whereupon
[Dalfonse] stated "get the f--- out of here, you little pussy."
Complainant distinctly described feeling as if [Dalfonse] was
jabbing the firearm into his stomach.
Following the incident, complainant waited for [Dalfonse] to walk
away from him down the block, then complainant re-entered the
corner store. Complainant notified his friend and the store
manager of what had just transpired[,] whereupon all three (3)
individuals unsuccessfully attempted to locate [Dalfonse].
Complainant and his friend then returned to complainant's home.
Complainant did not contact the police because [he] feared that
[Dalfonse] would retaliate; complainant's fear was grounded in
[Dalfonse's] use of a firearm during the incident in question.

Trial Court Opinion, 5/13/16, at 3-4. The complainant subsequently went to

the home of Dalfonse's mother, who gave him $25 after he explained to her

what had happened. The complainant eventually reported the incident to

police. He positively identified Dalfonse from a photograph and police

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obtained a warrant to search Dalfonse's mother's home. Upon conducting

the search, police found neither contraband nor a firearm.

On November 17, 2014, after a nonjury trial before the Honorable

Edward C. Wright, Dalfonse was convicted of robbery2 and related offenses.3

Sentencing was deferred pending a presentence investigation and mental

health evaluation and, on May 8, 2015, Dalfonse was sentenced to an

aggregate term of 10 to 20 years' incarceration, followed by five years of

probation. Dalfonse filed a motion to modify sentence, which was denied.

On July 22, 2015, he filed a timely appeal to this Court, followed by a court -

ordered statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). On appeal, Dalfonse challenges the sufficiency and weight of the

evidence supporting his conviction for robbery, as well as the discretionary

aspects of his sentence.

"A claim challenging the sufficiency of the evidence is a question of

law." Commonwealth v. Weston, 749 A.2d 458, 460 n.8 (Pa. 2000). "For

2 18 Pa.C.S.A. § 3701.

3 Dalfonse was also convicted of persons not to possess firearms ("VUFA"),
18 Pa.C.S.A. § 6105; firearms not to be carried without a license, 18
Pa.C.S.A. § 6106; carrying firearms on public streets in Philadelphia, 18
Pa.C.S.A. § 6108; theft by unlawful taking or disposition, 18 Pa.C.S.A. §
3921; receiving stolen property, 18 Pa.C.S.A. § 3925; possessing
instruments of crime, 18 Pa.C.S.A. § 907; terroristic threats, 18 Pa.C.S.A. §
2706; simple assault, 18 Pa.C.S.A. § 2701; and recklessly endangering
another person, 18 Pa.C.S.A. § 2705. Dalfonse does not challenge his
convictions as to these offenses.

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questions of law, our scope of review is plenary." Commonwealth v.
Jackson, 924 A.2d 618, 620 (Pa. 2007). "In reviewing a sufficiency

challenge, a court determines whether the evidence, viewed in the light

most favorable to the verdict winner, is sufficient to enable the fact -finder to

find every element of the crime beyond a reasonable doubt." Id.
A person is guilty of robbery if, "in the course of committing a theft,
he: . . . threatens another with or intentionally puts him in fear of immediate

serious bodily injury[.]" 18 Pa.C.S.A. § 3701(a)(1)(ii). "Serious bodily

injury" is defined as "[b]odily 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. An act is deemed "in the course of committing a theft" if it occurs in

an attempt to commit theft or in flight after the attempt or commission. 18
Pa.C.S.A. § 3701(a)(2).

For the purposes of subsection 3701(a)(1)(ii), the proper focus is on

the nature of the threat posed by an assailant and whether he reasonably

placed a victim in fear of "immediate serious bodily injury."
Commonwealth v. Ross, 570 A.2d 86, 87 (Pa. Super. 1990). The threat

posed by the appearance of a firearm is calculated to inflict fear of deadly

injury, not merely fear of "serious bodily injury." Commonwealth v.
Hopkins, 747 A.2d 910, 914 (Pa. Super. 2000), citing Commonwealth v.
Thomas, 546 A.2d 116, 119 (Pa. Super. 1988). A factfinder is entitled to

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infer that a victim was in mortal fear when a defendant visibly brandished a

firearm. Id.

Here, Dalfonse argues that, because the complainant testified that

Dalfonse did not threaten him prior to turning over the money, "there simply

was no robbery." Brief of Appellant, at 8. Dalfonse claims that his use of a

firearm "had nothing to do with the taking of the money as the money had

already been taken." Id. He further argues that he did not produce the
weapon "in the course of" fleeing from the robbery, as it was Dalfonse who

instructed the complainant to leave. This argument is unavailing.

While the complainant did, in fact, voluntarily hand over $25 to

Dalfonse, he did so in the belief that Dalfonse would, in exchange, give him

$25 worth of marijuana. Instead, Dalfonse accepted the money,

immediately brandished a firearm, and instructed the complainant to leave.

Based on the complainant's testimony, it is clear that the production of the

firearm was part and parcel of Dalfonse's effort to deprive the complainant

of both his $25 and the marijuana he expected in return. Thus, the

Commonwealth established that Dalfonse placed the complainant "in fear of

immediate serious bodily injury in the course of committing a theft." See
Hopkins, supra (factfinder entitled to infer victim in mortal fear when

defendant visibly brandished firearm); 18 Pa.C.S.A. § 3701(a)(1)(ii).
Moreover, as this Court has previously held, the Commonwealth need not

prove a verbal utterance or threat to sustain a conviction under subsection

3701(a)(1)(ii). Hopkins, 747 A.2d at 914, citing Commonwealth v.

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Scott, 369 A.2d 809, 813 (Pa. Super. 1976). Based upon the foregoing

facts, the finder of fact could reasonably have found beyond a reasonable

doubt that Dalfonse committed the offense of robbery.

Dalfonse also asserts that his conviction for robbery was against the

weight of the evidence.

A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the [fact finder] is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses, and a
new trial based on a weight of the evidence claim is only
warranted where the [fact finder's] verdict is so contrary to the
evidence that it shocks one's sense of justice. In determining
whether this standard has been met, appellate review is limited
to whether the trial judge's discretion was properly exercised,
and relief will only be granted where the facts and inferences of
record disclose a palpable abuse of discretion.
Commonwealth v. Tejada, 107 A.3d 788, 795-96 (Pa. Super. 2015),

quoting Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012)

(citation omitted).

Here, Dalfonse argues that "the greater weight of the evidence does

not establish that there was any force used at any relevant time in this

event." Brief of Appellant, at 11. Thus, he asserts, "this was a theft and
while other offenses were involved . . ., the greater weight of the evidence

would not establish that this was a robbery." Id. at 11-12. This argument

is misplaced.

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Dalfonse appears to conflate his purported challenge to the weight of

the evidence with a challenge to its sufficiency, arguing that the

Commonwealth did not demonstrate "that there was any force used at any

relevant time in this event." Id. at 11. A claim that the Commonwealth

failed to prove an element of an offense goes to sufficiency, not weight. In

any event, Dalfonse is entitled to no relief.

Here, Dalfonse was convicted under subsection 3701(a)(1)(ii), which

requires that the actor "threatens another with or intentionally puts him in

fear of immediate serious bodily injury[.]" 18 Pa.C.S.A. § 3701(a)(1)(ii).

Dalfonse's argument, however, addresses the elements of subsection

3701(a)(1)(v), pursuant to which an individual commits robbery when he

"physically takes or removes property from the person of another by force

however slight." 18 Pa.C.S.A. § 3701(a)(1)(v). Because Dalfonse was

charged under subsection 3701(a)(1)(ii), the Commonwealth was not

required to prove that he used force in the course of committing the theft.

Accordingly, this claim is meritless.4

Lastly, Dalfonse challenges the discretionary aspects of his sentence.

Such a claim does not entitle an appellant to review as a matter of right.

4 To the extent that Dalfonse attempts to raise a challenge to the weight of
the evidence, his claim is meritless. Our review of the trial court's exercise
of discretion in concluding that its verdict was not against the weight of the
evidence reveals no palpable abuse of that discretion in light of the record in
this matter. Tejada, supra.

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Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,

before this Court can address such a discretionary challenge, an appellant

must comply with the following requirements:

An appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction by satisfying a
four-part test: (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.
Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

Here, Dalfonse filed a timely notice of appeal and preserved his
sentencing claim by filing a motion to modify sentence. He also includes in

his brief a concise statement of reasons relied upon for allowance of appeal

with respect to the discretionary aspects of his sentence pursuant to Rule

2119(f). Accordingly, we must determine whether Dalfonse raises a

substantial question that his sentence is not appropriate under the

sentencing code.

In his Rule 2119(f) statement, Dalfonse argues that: (1) his sentence

was manifestly excessive because the court imposed a consecutive sentence

on the VUFA conviction under section 6105 when the use of the weapon had

already been determined and incorporated under the robbery bill; (2) the

court primarily considered the seriousness of the offense and not Dalfonse's

individual characteristics or mitigating factors; and (3) the court was

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prejudiced against Dalfonse because Dalfonse "acted out in court" after the

verdict was announced.

To the extent that Dalfonse complains that his sentence on the section

6105 VUFA conviction was imposed consecutively rather than concurrently,

he fails to raise a substantial question. Long-standing precedent of this

Court recognizes that section 9721 of the Sentencing Code affords the

sentencing court discretion to impose its sentence concurrently or

consecutively to other sentences being imposed at the same time, or to

sentences already imposed. Commonwealth v. Marts, 889 A.2d 608, 612
(Pa. Super. 2005). Any challenge to the exercise of this discretion ordinarily

does not raise a substantial question. Id.
Dalfonse also asserts that the sentencing court failed to consider

mitigating factors when imposing sentence. "This Court has held on

numerous occasions that a claim of inadequate consideration of mitigating

factors does not raise a substantial question for our review."

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citations

omitted). Accordingly, we find that this claim does not raise a substantial

question.5

5
Even if Dalfonse had raised substantial question, he still would not be
a
entitled to relief. The trial court here had the benefit of a presentence
investigation ("PSI") report. Where the sentencing court had the benefit of a
PSI, we may assume the court was aware of relevant information regarding
the defendant's character and weighed those considerations along with
mitigating statutory factors. Commonwealth v. Moury, 992 A.2d 162, 171
(Footnote Continued Next Page)

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Dalfonse lastly claims that the sentencing court was prejudiced against

him. This claim raises a substantial question. Commonwealth v. McNabb,

819 A.2d 54, 56-57 (Pa. Super. 2003) (substantial question raised by

alleging sentencing court relied on impermissible factors). Nevertheless,

Dalfonse is entitled to no relief.

Dalfonse asserts that the trial court harbored bias against him based

upon his outburst at trial. Specifically, after the trial court announced its

verdict in this case, the following transpired in the courtroom:

THE COURT: Is that a good [sentencing] date for the
Commonwealth?
(Defendant turned to the audience.)
MS. BARR [(Complainant's mother)]: He just threatened,
Officer.
MS. REBSTOCK [(Counsel for Commonwealth)]: What did he
say?
(Footnote Continued)

(Pa. Super. 2010); see also Commonwealth v. Fowler, 893 A.2d 758,
766 (Pa. Super. 2005). Here, the sentencing court stated on the record:

In fashioning a sentence, the [c]ourt has considered the gravity
of the offense, the rehabilitative needs of the defendant, the
need to protect the community, the prior record score, pre -
sentence investigation, mental health report, arguments of
Commonwealth, arguments of defense, exhibits offered[,] as
well as defendant's allocution.
N.T. Sentencing, 5/8/15, at 52. The court also noted the fact that Dalfonse
did not have a father to help raise him and that he had suffered brain
trauma. Thus, it is apparent from the record that the court properly
considered Dalfonse's individual characteristics as well as mitigating
circumstances.

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MS. BARR: He said he'll see him.

THE DEFENDANT: I don't care, you know I'm saying [sic].

THE COURT: What?
THE SHERIFF: Don't turn around.
THE COURT: Could you bring [Ms. Barr] up to the bar of the
court, Ms. Rebstock, please.
MS. REBSTOCK: Yes. Ms. Barr, can you please come up. Does
Your Honor want her here?
THE COURT: No; right there at the bar. She's been previously
sworn.
Madam, I'm sorry, what did you just hear?
MS. BARR: [Dalfonse] looked at my son and said, "I'll see you,
cuz."
This is the whole point, Your Honor. My greatest fear is
the retaliation in this factor. This man lives on my block.
THE COURT: there's any retaliation, I want new
Ms. Rebstock, if
charges filed immediately, because this is an open court. If he's
got that much disdain in open court, I can only imagine what
occurs outside the court.
N.T. Trial, 11/17/14, at 152-53.

Subsequently, at sentencing, the court made the following statement:

This [c]ourt is aware of the animus that you displayed in this
courtroom. I'm not going to belabor it. Madam District Attorney
went on the say how you behaved subsequent to the guilty
verdict and what you tried to tell the victim.
N.T. Sentencing, 5/8/15, at 53.
Based on the foregoing, Dalfonse asserts that the court harbored bias

against him. We cannot agree. Not only are his sentences within the

standard ranges of the applicable guidelines, but Judge Wright also provided

a detailed basis for his sentence on the record and in his Rule 1925(a)

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opinion. See id. at 52-55 (noting, inter alia, rehabilitative needs of

defendant, need to protect community, PSI, mental health evaluation,

defendant's statement, defendant's lack of father figure and brain trauma,

defendant's addiction issues, defendant's failure to respond to community

supervision, defendant's courtroom outburst, impact of crime on victim,

defendant's poor employment record, and failure to respond to rehabilitation

efforts). In short, there is nothing in the record to suggest that the trial

court was biased or prejudiced in sentencing Dalfonse.

Judgment of sentence affirmed.

Judgment Entered.

J seph D. Seletyn,
Prothonotary

Date: 5/5/2017

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