Com. v. Medina, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MOISES MEDINA
Appellant No. 2419 EDA 2013
Appeal from the Judgment of Sentence August 2, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004290-2012
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED JANUARY 30, 2015
Appellant, Moises Medina, appeals from the August 2, 2013 aggregate
judgment of sentence of ten to 20 years’ incarceration, imposed after a jury
convicted him of aggravated assault and criminal conspiracy.1 In addition,
Appellant’s counsel has filed with this Court a petition to withdraw, together
with an Anders2 brief, averring the appeal is frivolous. After careful review,
we grant counsel’s petition to withdraw and affirm the judgment of
sentence.
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1
18 Pa.C.S.A. §§ 2702(a) and 903(a), respectively.
2
Anders v. California, 386 U.S. 738 (1967).
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The certified record reveals the following relevant facts and procedural
history. On June 1, 2011, Appellant and Emmanuel Flores got in a dispute
with Francis Aponte after Aponte asked Appellant and Flores to move from
the front steps of his residence. N.T., 6/5/13, at 58-59. Appellant and
Flores eventually left, only to return to the neighborhood 20 minutes later in
a gray Mazda. Id. at 69. Appellant and Flores then got out of the car,
approached Aponte and his two-year-old daughter on foot, and shot at
them. Id. at 83-84. Aponte retreated with his daughter inside the garage
of the car wash Aponte owned, which was across the street from his
residence. Id. at 84. After the gunfire ceased, Aponte called his mother,
Mayra Guzman, and she arrived approximately ten to 20 minutes later at the
car wash. Id. at 91-92. Officers from the Philadelphia police department
responded and Aponte told them about the shooting, pointing out the
Mazda, which was parked, unoccupied, on the block. Id. at 94.
Shortly after the police left, Appellant and Flores returned with three
other men. Id. at 98. The group of five men went to the Mazda and then
approached Aponte, his daughter, and Guzman, who were at the car wash,
and three men in the group opened fire. Id. at 104, 107. Aponte again
took his daughter inside the garage. Id. at 109. Guzman covered her face
with her hands and crouched down. N.T., 6/7/13, at 65-67.
Guzman, through a translator, provided the police with a written
statement identifying Appellant, Flores, and a third man as the gunmen who
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shot at her and Aponte. N.T., 6/10/13, at 21. She also identified Appellant
and Flores in photographs as the men who had attacked her and Aponte.
Id. at 25-27. Later, Aponte supplied a written statement to detectives
naming Appellant and Flores as the shooters. Id. at 67-68. Aponte also
picked Appellant out of an eight-person photo array. Id. at 70-71.
Detectives obtained a search warrant and searched the gray Mazda, finding
an identification card with Appellant’s name, date of birth, and address. Id.
at 51-52.
Appellant was arrested on December 7, 2011. On June 5, 2013, he
proceeded to a six-day jury trial on the charges of aggravated assault of
Aponte, aggravated assault of Guzman, and criminal conspiracy. On June
12, 2013, a jury found Appellant guilty of the aforementioned charges with
respect to Guzman, but found Appellant not guilty of the charge of
aggravated assault against Aponte. N.T., 6/12/13, at 54-55. On August 2,
2013, the trial court sentenced Appellant to an aggregate term of ten to 20
years’ incarceration. Appellant did not file post-sentence motions. On
August 12, 2013, Appellant filed a timely notice of appeal. Thereafter, on
August 14, 2013, the trial court appointed new counsel to represent
Appellant in this appeal.3 On May 20, 2014, Appellant’s counsel filed, with
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3
On September 4, 2013, the trial court directed Appellant to file a Rule
1925(b) statement within 21 days of the trial transcripts becoming available.
On December 9, the trial court sent a letter to this Court explaining that it
(Footnote Continued Next Page)
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this Court, a motion to withdraw as counsel together with an Anders brief.
In response, Appellant filed a pro se Reply to Counsel’s No Merit Brief on
July 10, 2014.
On appeal, counsel raises the following issues on Appellant’s behalf.
A. Were the verdicts against the weight of the
evidence because the testimony presented by
the Commonwealth was perjurious,
contradictory, inconsistent, and wholly
unworthy of belief so much so that the verdict
shocks the conscience?
B. [Whether] the evidence was insufficient to
support Appellant’s aggravated assault
conviction because the Commonwealth failed
to present sufficient evidence to establish
beyond a reasonable doubt that Appellant or
any accomplice or co-conspirator acted with
the specific intent to cause serious bodily
injury to Ms. Guzman[?]
Anders Brief at 13, 19.4
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, we review counsel’s Anders brief for
_______________________
(Footnote Continued)
had not filed its 1925(a) opinion because the transcripts were not available.
On April 23, 2014, Appellant’s court-appointed appellate attorney filed a
1925(b) statement indicating that the transcripts only recently became
available. The trial judge did not submit a 1925(a) opinion, as he was no
longer on the bench at the time Appellant filed his 1925(b) statement.
4
For purposes of our discussion, we address the issues raised by Appellant’s
counsel in reverse order.
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compliance with the requirements set forth by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in the Anders brief that
accompanies court-appointed counsel’s petition to
withdraw, counsel must: (1) provide a summary of
the procedural history and facts, with citations to the
record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3)
set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for
concluding that the appeal is frivolous. Counsel
should articulate the relevant facts of record,
controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is
frivolous.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005) and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his client. Attending the brief must be a letter that advises the client
of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant deems worthy of the
court[’]s attention in addition to the points raised by counsel in the Anders
brief.” Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). “Once counsel has satisfied
the above requirements, it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
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Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Instantly, we are satisfied that counsel has complied with the technical
requirements of Anders and Santiago. First, counsel has provided a
procedural and factual summary of the case with references to the record.
Anders Brief at 4-10. Second, counsel advances relevant portions of the
record that arguably support Appellant’s claims on appeal. Id. at 13-23.
Third, counsel concluded Appellant’s appeal is frivolous as “his review of the
record failed to reveal anything that would support an issue having some
chance of success on appeal.” Id. at 12. Lastly, counsel has complied with
the requirements set forth in Millisock, supra. As a result, we proceed
with our independent review of the record and the issues presented on
Appellant’s behalf to ascertain if the appeal is wholly frivolous. Additionally,
we will assess the claims raised by Appellant in his pro se reply to counsel’s
Anders brief.
Instantly, Appellant’s counsel next raises the issue of whether the
evidence was sufficient to sustain the conviction for aggravated assault.
Specifically, Appellant asserts that “the evidence failed to show that
[Guzman] was injured and that [A]ppellant[,] either directly or vicariously,
intended to harm her.” Anders Brief at 19-20. “A claim impugning the
sufficiency of the evidence presents us with a question of law.”
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
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(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014). Our standard
and scope of review is as follows.
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of
fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)
(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).
However, the inferences must flow from facts and
circumstances proven in the record, and must be of
such volume and quality as to overcome the
presumption of innocence and satisfy the jury of an
accused’s guilt beyond a reasonable doubt. The trier
of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on
suspicion will fail even under the limited scrutiny of
appellate review.
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Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation
omitted), appeal denied, 101 A.3d 102 (Pa. 2014).
A person commits aggravated assault if he “attempts to cause serious
bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the
value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Further, “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.” Id. § 2301.
For aggravated assault, an “attempt” is properly found when an “accused,
with the required specific intent, acts in a manner which constitutes a
substantial step toward perpetrating a serious bodily injury upon another.”
Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005), appeal
denied, 879 A.2d 781 (Pa. 2005). Intent is usually proven by inference
through circumstantial evidence. Commonwealth v. Fortune, 68 A.3d
980, 984 (Pa. Super. 2013) (en banc), appeal denied, 78 A.3d 1089 (Pa.
2013). This Court has held the firing of a gun at a victim is the type of
conduct that is likely to result in serious bodily injury and evidence of such
conduct is sufficient to prove the intent required for aggravated assault.
Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001),
appeal denied, 803 A.2d 733 (Pa. 2002), citing, Commonwealth v.
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Wanamaker, 444 A.2d 1176, 1178 (Pa. Super. 1982); see also
Commonwealth v. Robinson, 817 A.2d 1153, 1160 (Pa. Super. 2003).
Viewing the evidence in the light most favorable to the
Commonwealth, as the verdict-winner, we conclude the evidence supports
Appellant’s conviction for aggravated assault. Specifically, the evidence
established that Appellant discharged a firearm at Guzman. We note that
there is no question that Appellant’s actions did not inflict actual, serious
bodily injury on Guzman. Therefore, Appellant’s conviction for aggravated
assault hinges on whether he attempted to inflict serious bodily injury on
Guzman. For the following reasons, we conclude there is sufficient evidence
Appellant attempted to do so.
The evidence adduced at trial established that on the morning of the
day in question, Appellant was involved in an altercation with Aponte that
ended with Appellant firing a gun at Aponte. N.T., 6/5/13, at 83-84.
Guzman went to Aponte’s house in response to this incident. Id. at 91-92.
Later in the day, Appellant returned with a group of four other men. Id. at
98. The group went to a gray Mazda, containing an identification card
belonging to Appellant, retrieved firearms, and opened fire at Guzman. Id.
at 98, 104, 107. Appellant was one of the shooters. N.T., 6/10/13, at 21.
Guzman stated that she felt the shots coming towards her and they were
very close to her. N.T., 6/6/13, at 87; N.T., 6/7/13, at 69. These facts are
sufficient to enable the jury to conclude that Appellant intended to inflict
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serious bodily injury on Guzman and attempted to do so. Therefore,
Appellant’s challenge to the sufficiency of the evidence to sustain his
conviction for aggravated assault is frivolous. See Galindes, supra.Appellant next argues the verdict was against the weight of the
evidence because the testimony of the witnesses contained internal
inconsistencies and, more specifically, the testimony of the victims at trial
conflicted with both their statements to police and testimony at the
preliminary hearing. Anders Brief at 13-16. However, before we may
review this issue, we must determine whether it has been properly
preserved for our review.
Pennsylvania Rule of Criminal Procedure 607 governs claims
challenging the weight of the evidence and states in relevant part as follows.
Rule 607. Challenges to the Weight of the
Evidence
(A) A claim that the verdict was against the weight
of the evidence shall be raised with the trial judge in
a motion for a new trial:
(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before
sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A). “The purpose of this rule is to make it clear that a
challenge to the weight of the evidence must be raised with the trial judge or
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it will be waived.” Commonwealth v. McCall, 911 A.2d 992, 997 (Pa.
Super. 2006).
Here, Appellant failed to preserve a weight of the evidence claim.
Appellant did not file a post-sentence motion. Further, we have reviewed
the certified record and transcripts, and at no point prior to, or at
sentencing, was a challenge to the weight of the evidence raised. As a
result, we agree with Appellant’s counsel and the Commonwealth that
Appellant has waived his claim that the jury’s verdict was against the weight
of the evidence.5 See McCall, supra. Therefore, this claim is wholly
frivolous.
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5
Even if we reached the merits of Appellant’s claim, no relief would be due
to Appellant. In reviewing a weight of the evidence claim, we defer to the
jury’s findings on credibility and we cannot substitute our judgment for that
of the jury on credibility issues. Commonwealth v. Palo, 24 A.3d 1050,
1055 (Pa. Super. 2011), appeal denied, 34 A.3d 828 (Pa. 2011). Here,
Appellant claims that the witnesses’ testimony at trial was inconsistent.
Anders Brief at 13-16. Additionally, Appellant argues that the trial
testimony of Aponte and Guzman, abandoning their earlier statements to
police and at the preliminary hearing that Appellant was one of the gunmen,
was entitled to greater weight than those earlier statements. Id. We note
that it is the province of the jury to resolve inconsistencies in testimony and
determine credibility. The jury was free to assign more credibility to the
earlier statements of Aponte and Guzman and discredit their testimony at
trial. We will not disturb the jury’s findings on appeal. See Palo, supra.Therefore, the verdict was not against the weight of the evidence.
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We turn next to the issues Appellant raises in his pro se reply to
counsel’s Anders Brief.6 Appellant articulates the following 12 issues.
1. [Whether] [t]he evidence was insufficient to
support Appellant[’]s conviction for aggravated
assault in that evidence presented failed to
prove beyond a reasonable doubt that
Appellant was actually at the scene of the
crime[?]
2. That even if the Court determines that the
Commonwealth proved that Appellant was
present at the scene of the crime, it
nonetheless failed to prove, beyond a
reasonable doubt[,] that Appellant attempted
to cause “seriously bodily injury” to the
complainant [pursuant to] Pa. C.S.A.
§[ ]901(A)[?]
3. [Whether] [t]he evidence was insufficient to
support Appellant[’]s aggravated assault
conviction in that the evidence presented fialed
[sic] to prove, beyond a reasonable doubt, that
Appellant had the requisite “intent” to cause
serious bodily injury to the complainant[?]
4. [Whether] [t]he evidence used to convict
Appellant was so weak[,] contradictory,
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6
“When a pro se … brief [in response to counsel’s Anders brief and petition
to withdraw] has been filed within a reasonable amount of time, however,
the Court should then consider the merits of the issues contained therein
and rule upon them accordingly.” Commonwealth v. Baney, 860 A.2d
127, 129 (Pa. Super. 2004), appeal denied, 877 A.2d 459 (Pa. 2005).
Additionally, the failure to raise the issues in a Rule 1925(b) statement does
not preclude the review of the merits of Appellant’s additional pro se claims
because “to hold otherwise would prevent a defendant from choosing to
proceed pro se” which would “nullify a defendant’s constitutional right to
direct appeal, and eliminate one of the choices available to a defendant
under Anders[.]” Commonwealth v. Bishop, 831 A.2d 656, 659-660 (Pa.
Super. 2003).
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inconsistent, and inconclusive, that as a matter
of law, no probability of fact could have been
drawn from the combined circumstances;
[and] the jury’s verdict cannot be interpreted
as being nothing more than based on
suspicion, conjecture, and surmise[?]
5. [Whether] [t]he Commonwealth, while
knowing that the complainant was not telling
the truth on the stand, made no effort to stop
the complainant; allowing the complainant to
continue to present perjured testimony,
without ever alerting the jury to the fact that
the testimony the complainant was offering
was in total contradiction to her [testimony at]
two earlier preliminary hearing[s][?]
6. [Whether,] [w]ith regards to the “reckless”
element of aggravated assault, the
Commonwealth failed to prove that Appellant
acted under a manifest extreme indifference to
the value of human life, in that evidence failed
to establish, as a matter of law, that the
complainant was actually shot at, and if she
was, that it was the Appellant that shot her[?]
7. [Whether] [t]he evidence presented was
insufficient to support Appellant[’]s conviction
for conspiracy to commit aggravated assault,
in that the Commonwealth failed to prove,
beyond a reasonable doubt[,] that Appellant
was present at the scene of the crime, or
within the group that allegedly shot at the
complainant[?]
…
8. [Whether] [c]ounsel was ineffective in that he
had no reasonable bases [sic] in [sic] which to
justify foregoing a properly, court suggested,
motion for arrest of judgment; [and] counsel
failed to take affirmative action in order to
allow the court to assess the credibility of the
testimony offered by the Commonwealth[?]
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9. [Whether] [c]ounsel was ineffective for failing
to object to the court’s instruction to the jury
that [A]ppellant did not have a license to carry
a weapon [that] was highly prejudicial to
[A]ppellant because (1) mentioning that
[A]ppellent [sic] did not have a license to carry
effectively placed Appellant at the scene of the
crime when his primary defense was that he
was not present at the time the assault was
committed, [and] (2) that earlier, Appellant
stipulated to the [trial] court that he would
forego trial on the weapon charge for another
day[?]
10. [Whether] counsel was ineffective by failing to
object to the [trial] court’s introduction to the
jury of an unsigned certificate of non-
compliance licensure, and stipulating to it’s
[sic] authentication, against his Appellant’s
interest[?]
…
11. [Whether] the [trial] court erred when it
mention[ed] to the jury the certificate of non-
licensure, because in doing so, (1) Appellant’s
primary defense[] that he was not present at
the scene of the crime, and (2) because it was
specifically stipulated by Appellant that he
wanted the unlawful charge tried at another
time[?]
12. [Whether] Appellant’s sentence was excessive
and disproportionate to the circumstances in
the case, thus, illegal and invalid, as a matter
of law[?]
Appellant’s Reply to Counsel’s No Merit Brief at I-III.
Initially, we note that issues 1, 2, 3, 4, and 6 raise claims of
sufficiency of the evidence regarding Appellant’s aggravated assault
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conviction. These sufficiency of the evidence claims are disposed of by our
above discussion of the issues raised in counsel’s Anders brief. We have
detailed the evidence that was sufficient to enable the jury to conclude that
Appellant intended to inflict serious bodily injury on Guzman and attempted
to do so by firing a handgun at her.
Additionally, issue 7 contests the sufficiency of the evidence for
Appellant’s conspiracy conviction by arguing that there is insufficient
evidence that he was present at the crime scene or part of the group who
shot at Guzman. The offense of criminal conspiracy is defined as follows.
§ 903. Criminal conspiracy
(a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to commit
a crime if with the intent of promoting or facilitating
its commission he:
(1) agrees with such other person or persons
that they or one or more of them will engage
in conduct which constitutes such crime or an
attempt or solicitation to commit such crime;
or
(2) agrees to aid such other person or persons
in the planning or commission of such crime or
of an attempt or solicitation to commit such
crime.
18 Pa.C.S.A. § 903(a). As detailed above, there was sufficient evidence to
allow the jury to find that Appellant was present at the crime scene and was
part of the group who shot at Guzman. Therefore, these claims are
frivolous.
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To the extent we can discern Appellant’s issue 5, it appears to raise a
challenge to the weight of the evidence. Without the benefit of a developed
argument, we cannot ascertain Appellant’s specific contention and we will
not advance claims on his behalf. Commonwealth v. Kane, 10 A.3d 327,
331 (Pa. Super. 2010). To the extent Appellant’s claim does raise a
challenge to the weight of the evidence, we have addressed said challenge
above and concluded it is frivolous.
In issues 8, 9, and 10, Appellant seeks to assert trial counsel’s
ineffectiveness. Appellant’s Reply to Counsel’s No Merit Brief at II-III.
However, our precedent makes clear that, with limited exception, this Court
may not review claims of ineffective assistance on direct appeal. See
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding, absent
limited circumstances, “claims of ineffective assistance of counsel are to be
deferred to PCRA review; trial courts should not entertain claims of
ineffectiveness upon post-verdict motions; and such claims should not be
reviewed upon direct appeal[]”). The Holmes Court noted two narrow
exceptions for “extraordinary circumstances” to the broader rule, holding
“where the trial court, in the exercise of its discretion, determines that a
claim (or claims) of ineffectiveness is both meritorious and apparent from
the record so that immediate consideration and relief is warranted,” and
allowing review for “good cause,” such as the shortness of a sentence, of
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“multiple, and indeed comprehensive, ineffectiveness claims if such review is
accompanied by a waiver of PCRA rights….” Id. at 577-578.
Here, neither exception applied to permit post-verdict review of
Appellant’s ineffectiveness claims. The trial court did not determine that
Appellant’s claim of ineffectiveness was meritorious or apparent from the
record such that immediate consideration and relief was warranted. See id.
at 577. Neither did the trial court find good cause to permit post-verdict
review of said claims and Appellant did not waive his PCRA rights. See id.
at 578. Accordingly, we cannot review these ineffectiveness claims raised
on direct appeal, and Appellant is without prejudge to raise them in a PCRA
petition. See id. at 576.
Next, in issue 11, Appellant challenges the trial court’s act of informing
the jury that Appellant was not licensed to carry a firearm. Appellant’s Reply
to Counsel’s No Merit Brief at III. However, before we may review this claim
we must determine whether it has been properly preserved for our review.
See Pa.R.A.P. 302(a) (providing “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”) Our Supreme
Court has emphasized the importance of issue preservation.
Issue preservation is foundational to proper
appellate review. Our rules of appellate procedure
mandate that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). By requiring that an issue
be considered waived if raised for the first time on
appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to
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consider the issue. This jurisprudential mandate is
also grounded upon the principle that a trial court,
like an administrative agency, must be given the
opportunity to correct its errors as early as possible.
Related thereto, we have explained in detail the
importance of this preservation requirement as it
advances the orderly and efficient use of our judicial
resources. Finally, concepts of fairness and expense
to the parties are implicated as well.
In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations
omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.
2013) (citation omitted).
In this case, we note that during the trial, the parties stipulated that
Appellant was not licensed to carry a weapon. N.T., 6/11/2013, at 104-105.
The stipulation was marked as exhibit C-31. Id. Appellant’s trial counsel
stated, “there is no objection to the Commonwealth’s Exhibits C-1 through
C-31.” Id. at 106. Moreover, after informing the jury that Appellant was
not licensed to carry a firearm, the judge cautioned the jury that,
“[u]nderlying [the stipulation,] is whether he, in fact, had a weapon. That is
the question for you, the jury, to decide. That is not for me to decide. The
document just speaks for that, that he did not have a license.” Id. at 105.
In our review of the record, we cannot find a single instance in which
Appellant objected to the contents of the stipulation or the trial court’s
instructions, or requested that the trial court supplement or change its
instruction to the jury. As a result, we deem this issue waived for failure to
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raise the issue in the trial court. See In re F.C. III, supra; Miller, supra;Pa.R.A.P. 302(a).
In issue 12, Appellant contends that his sentence was excessive and
disproportionate to the circumstances in the case. Such a claim implicates
the discretionary aspects of sentencing. A challenge to the discretionary
aspects of a sentence is not appealable as of right. Commonwealth v.
Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).
Before we reach the merits of this issue, we must
engage in a four part analysis to determine: (1)
whether the appeal is timely; (2) whether Appellant
preserved his issue [at sentencing or in a motion to
reconsider and modify sentence]; (3) whether
Appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence [as
required by Rule 2119(f) of the Pennsylvania Rules
of Appellate Procedure]; and (4) whether the concise
statement raises a substantial question that the
sentence is appropriate under the sentencing code.
The third and fourth of these requirements arise
because Appellant’s attack on his sentence is not an
appeal as of right. Rather, he must petition this
Court, in his [Rule 2119(f)] concise statement of
reasons, to grant consideration of his appeal on the
grounds that there is a substantial question. [I]f the
appeal satisfies each of these four requirements, we
will then proceed to decide the substantive merits of
the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Here, Appellant’s discretionary aspect of sentencing challenge was not
preserved below. Our review of the transcript reveals that Appellant did not
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preserve any issues at sentencing. Neither did Appellant file any post-
sentence motion. Therefore, we conclude this claim is waived, and we are
precluded from granting an allowance of appeal. Edwards, supra.
Accordingly, we conclude Appellant’s appeal on this issue is frivolous.7
For the reasons discussed above, our independent review of the record
leads us to conclude that Appellant’s appeal is wholly frivolous. Therefore,
we agree with counsel’s assessment of the appeal, and conclude counsel has
satisfied the requirements for withdrawal. Accordingly, we grant counsel’s
petition to withdraw. Moreover, we affirm Appellant’s August 2, 2013
judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
____________________________________________
7
Even if Appellant had properly preserved and presented this claim, we
agree with the Commonwealth that it is frivolous on its merits. Aggravated
assault is graded as a felony of the first degree, and Appellant received a
sentence in the statutory limits for a felony of the first degree. See 18
Pa.C.S.A. § 1103(1). Before imposing its sentence, the trial court noted
Appellant’s extensive criminal history and involvement in the narcotics trade.
This included 14 arrests as an adult resulting in eight convictions, including
the current offenses. N.T., 8/2/13, at 8. Five of those were felonies of the
third degree. Id. He had also had probation revoked three times. Id.
Thus, the trial court fully stated its reasons for imposing the sentence, and
the sentence was not manifestly excessive or disproportionate given the
circumstances.
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J-S75005-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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