Com. v. Hoffman, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOHN A. HOFFMAN, :
:
APPELLANT : No. 308 MDA 2016
Appeal from the Judgment of Sentence September 30, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000924-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 01, 2016
Appellant, John A. Hoffman, appeals from the Judgment of Sentence
entered by the Lebanon County Court of Common Pleas following his
conviction by a jury of Simple Assault. After careful review, we conclude
that (i) there was sufficient evidence to support the jury’s verdict; (ii) the
jury’s verdict was not against the weight of the evidence; and (iii) the trial
court did not rely on inaccurate information while sentencing Appellant or
otherwise abuse its discretion. Accordingly, we affirm.
We summarize the relevant factual history as follows. On the
afternoon of Monday, March 30, 2015, Beth Smith was driving Appellant
home from the hospital. Earlier that day, Smith had discovered text
messages from Appellant’s ex-wife on his phone, and they began arguing
about the messages. Upset at Smith, Appellant began punching her in the
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arm, and later grabbed the steering wheel and directed the moving vehicle
into oncoming traffic.
Smith pulled over and brought the car to a stop. Appellant then took
the keys from the ignition, and began walking away from the vehicle with
them.1 Smith caught up to Appellant, who “grabbed [her] by the hair and
threw [her] to the ground.” N.T., 8/13/15, at 13. Bystanders then
intervened, telling Appellant to stop.
Smith agreed to drive Appellant home. After dropping him off, she
drove to the Lebanon County Municipal Building to file a Protection from
Abuse Petition (“PFA”) against Appellant. She also made contact with
Patrolman Scott Firestone of the South Londonerry Township Police
Department. Before Smith was able to complete the PFA paperwork,
however, her hand began to swell and she left to obtain medical treatment.
After leaving the hospital, Smith provided a written statement to
Officer Firestone. Officer Firestone took six photographs of her injuries.
Those injuries included a sprained wrist, a tear in the tendon of her right
arm, and bruising and swelling in her right arm and knee. Her right hand
was so swollen that emergency room personnel had to cut her rings off of
her fingers.
1
Although Appellant testified at trial that he was on crutches that day, Smith
testified that he did not have crutches and was not impaired in his
movement.
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Appellant was arrested and charged with Simple Assault. Appellant
proceeded to a jury trial, where Smith and Officer Firestone testified. The
photographs of Smith’s injuries were admitted into evidence. Appellant also
testified, denying Smith’s allegations. He denied punching her at all, and
claimed that she was injured when she slipped and fell on some gravel.
The jury found Appellant guilty of one count of Simple Assault. The
trial court aptly summarized the proceedings that followed:
On September 30, 2015, [Appellant] appeared before [Judge
Charles] for sentencing. In the Sentencing Order, [Judge
Charles] noted that Smith wrote [the trial court] a letter asking
that [it] incarcerate [Appellant] because he is a serial abuser.
The letter indicated that Smith is “like the fifth person to get a
PFA [against Appellant]. When will he learn?”
At first, [Judge Charles] took the letter at face value. However,
when [Appellant] denied that he had such a history, [Judge
Charles] delayed sentencing in order to check the veracity of the
letter. As it turned out, [Judge Charles] found that the victim
was not correct and [that] the Pennsylvania PFA database shows
only one prior PFA Petition filed against [Appellant] in 1992.
That Petition involved a threat and not physical violence.
[Judge Charles] stated on the record that, in imposing sentence,
[he was] not considering Smith’s allegation that [Appellant] had
a history of PFA violence. [Judge Charles] did, however, note
the seriousness of [Appellant’s] conduct and sentenced him to
20 days to 23 months of incarceration at the Lebanon County
Correctional Facility, followed by 3 months of house arrest with
electronic monitoring.
On October 9[, 2015], Defense Counsel timely filed Post-
Sentence Motions, challenging the weight and sufficiency of the
evidence and requesting resentencing. [The trial court denied
the Motions on January 19, 2016.]
Trial Court Opinion, filed 1/19/16, at 2-4 (footnote and some citations to the
record omitted).
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Appellant timely appealed. In response to an order from the trial
court, Appellant filed a Pa.R.A.P. 1925(b) Statement. In lieu of a Pa.R.A.P.
1925(a) Opinion, the trial court directed us to its January 19, 2015 Opinion
and Order denying Appellant’s Post-Sentence Motions.
Appellant raises the following issues on appeal:
1. Did the [trial c]ourt err in denying Appellant's Post-Sentence
Motions because the Commonwealth failed to provide sufficient
evidence that Appellant caused or attempted to cause bodily
injury to Beth Smith?
2. Did the [trial c]ourt err in denying Appellant's Post-Sentence
Motions because the jury's verdict of guilty was against the
weight of the evidence presented at trial?
3. Did the Lower Court err in denying Appellant's Motion for
Reconsideration of Sentence because (a) portions of the victim's
letter to The Honorable Bradford H. Charles were later found to
be inaccurate, and therefore the remainder of the letter should
not have been considered in fashioning the Defendant's
sentence; and (b) aside from a felony drug conviction in 1986,
the Defendant has an otherwise clean record?
Appellant’s Brief at 3-4.
Sufficiency of the Evidence
Appellant first avers that the evidence was insufficient to support his
conviction. Evidentiary sufficiency is a question of law; thus, our standard of
review is de novo and our scope of review is plenary. Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
In determining whether the evidence was sufficient to support a
verdict, we view the evidence and all reasonable inferences to be drawn
therefrom in the light most favorable to the verdict winner, the
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Commonwealth herein. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.
Super. 2013) (en banc). Furthermore,
Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, we may not
substitute our judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)
(citations and internal quotations omitted).
Simple Assault is defined, in relevant part, as follows:
(a) Offense defined. --A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
****
18 Pa.C.S. § 2701(a)(1). “Bodily injury” is defined as “[i]mpairment of
physical condition or substantial pain.” 18 Pa.C.S. § 2301. This Court has
stated that “[t]he existence of substantial pain may be inferred from the
circumstances surrounding the use of physical force even in the absence of a
significant injury.” Commonwealth v. Ogin, 540 A.2d 549, 552 (Pa.
Super. 1988).
Although Appellant raises a challenge to the sufficiency of the
evidence, he makes no claim that the Commonwealth has failed to prove
any specific element of Simple Assault. Rather, Appellant argues that the
testimony of Smith cannot provide proof beyond a reasonable doubt that he
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is guilty because her testimony was not corroborated by other witnesses.
Appellant’s Brief at 10. The law is to the contrary, however, and the
uncorroborated testimony of a single witness is sufficient to establish the
elements of a crime, if believed by the trier of fact. See Commonwealth v.
Faulcon, 301 A.2d 375, 376 (Pa. 1973) (concluding that the testimony of an
alleged accomplice was sufficient evidence to sustain murder and conspiracy
convictions); Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa. Super.
2014) (concluding that the testimony of a single witness was sufficient to
sustain persons not to possess firearms conviction).
In the instant case, Smith testified that Appellant repeatedly punched
her in the arm while she was operating a moving vehicle. N.T., 8/13/15, at
10-11. After she stopped the vehicle, Appellant took the keys from the
ignition and began walking away from the vehicle with them. Id. at 12.
When Smith attempted to retrieve her keys from Appellant, he “reached with
his left [hand] around and just [grabbed] a full handful of hair and just flung
[Smith] onto the—into the ground.” Id. at 13. As a result, Smith sustained
a sprained wrist, a tear in the tendon of her right arm, cuts to her left hand,
and bruising on her left knee. Id. at 15. Viewing these facts and all
reasonable inferences to be drawn therefrom in the light most favorable to
the verdict winner, we conclude that there was a sufficient basis to support
the jury’s finding that Appellant committed Simple Assault.
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Weight of the Evidence
Appellant next avers that the jury’s verdict was against the weight of
the evidence because “the jury placed too great a weight on the testimony
of the Commonwealth’s witnesses, and did not place enough weight on the
testimony of Appellant.” Appellant’s Brief at 11.
When considering challenges to the weight of the evidence, we apply
the following precepts:
The weight of the evidence is exclusively for the finder of
fact, who is free to believe all, none or some of the
evidence and to determine the credibility of witnesses.
Appellate review of a weight claim is a review of the
exercise of discretion, not 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. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)
(internal quotation marks and citations omitted).
Resolving contradictory testimony and questions of credibility are
matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,
917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a
challenge to the weight of the evidence, the evidence must be so tenuous,
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vague and uncertain that the verdict shocks the conscience of the court.”
Talbert, supra at 546 (internal quotation marks and citation omitted). It is
well-settled that we cannot substitute our judgment for that of the trier of
fact. Id. at 545.
Appellant essentially asks us to reassess the credibility of the
witnesses and reweigh the testimony and evidence presented at trial.
Appellant’s Brief at 11-12. We cannot and will not do so. The jury found
credible Smith’s testimony that Appellant struck her and threw her to the
ground. Her description of her injuries was corroborated by the photographs
that the Commonwealth introduced into evidence. Thus, the verdict was not
so contrary to the evidence as to shock the court’s conscience, and the trial
court properly denied Appellant’s weight of the evidence claim.
Discretionary Aspects of Sentencing
In his third issue, Appellant avers that the trial court’s sentence
constituted a manifest abuse of discretion where the trial court considered a
victim impact letter that erroneously stated that Appellant had multiple
Protection from Abuse Orders entered against him, and where Appellant “has
not had any run-ins with the law since 1987.” Appellant’s Brief at 13.
As presented, these claims challenge the discretionary aspects of
sentencing. See, e.g., Commonwealth v. Anderson, 830 A.2d 1013,
1016 (Pa. Super. 2003) (noting that a challenge to the court’s consideration
of improper factors at sentencing refers to the discretionary aspects of
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sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa. Super.
1995) (reflecting that an averment that the sentencing court did not
consider mitigating factors challenges the discretionary aspects of
sentencing).
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Phillips,
946 A.2d 103, 112 (Pa. Super. 2008). Prior to reviewing such a claim on its
merits:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the
issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant’s brief
has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
When appealing the discretionary aspects of a sentence, an
appellant must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement demonstrating
that there is a substantial question as to the appropriateness of
the sentence under the Sentencing Code . . . .
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
Id. (citations and quotations omitted). See also Pa.R.A.P. 2119(f).
Appellant complied with the first two requirements by filing a timely
Notice of Appeal and preserving his sentencing issues by filing a Petition to
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Reconsider Sentence. Although Appellant did not include in his brief a
separate Rule 2119(f) Statement, the Commonwealth has not objected to
this defect and, thus, we decline to find that the defect is fatal.2
With regard to whether Appellant has raised a substantial question, we
note that “[a]n allegation that a sentencing court ‘failed to consider’ or ‘did
not adequately consider’ certain factors does not raise a substantial question
that the sentence was inappropriate.” Commonwealth v. Urrutia, 653
A.2d 706, 710 (Pa. Super. 1995). Accordingly, Appellant’s assertion that the
trial court did not adequately consider his scant criminal record does not
raise a substantial question. Therefore, we will not review the merits of this
claim.
However, an appellant does raise a substantial question when he avers
an excessive sentence due to the court’s reliance on impermissible factors.
See Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super. 2003).
Accordingly, Appellant’s complaint that the court relied on improper factors
presents a substantial question, and we will review that claim on the merits.
Pennsylvania law authorizes the sentencing court to receive and
consider the impact of the defendant’s crime on the victim. Our rules of
criminal procedure mandate that the presentence investigation report
2
This Court may overlook the appellant’s failure to comply with Rule 2119(f)
“where the appellee fails to object to the omission and a substantial question
is evident from the appellant’s brief.” Commonwealth v. Kneller, 999
A.2d 608, 614 (Pa. Super. 2010).
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include a victim impact statement as provided by law. Pa.R.Crim.P.
702(A)(4). Similarly, the Sentencing Code describes some factors a court
should consider when sentencing including “the gravity of the offense as it
relates to the impact on the life of the victim and on the community.” 42
Pa.C.S.A. § 9721(b).
In the instant case, Smith prepared a victim impact statement in which
she characterized Appellant as a “serial abuser” and stated she was “like the
fifth person to get a PFA [against Appellant].” N.T., 9/30/15, at 9.
However, the trial court independently reviewed the Pennsylvania PFA
database and determined that there was only one prior PFA against
Appellant. Id. at 10. The court acknowledged that Smith’s letter incorrectly
characterized the number of PFAs against Appellant, before stating that it
would sentence Appellant based exclusively on the seriousness of Appellant’s
conduct in the instant case, and not based on any prior alleged acts of
domestic violence. Id. at 8. Ultimately, the trial court imposed a sentence
that was within the standard guideline range. Trial Court Opinion, at 9.
It is clear from the record that the trial court did not consider those
portions of the letter that were found to be inaccurate when fashioning
Appellant’s sentence. To the extent that the trial court considered other
portions of the letter and the impact that the offense had on Smith, it was
authorized to do so by law. See Pa.R.Crim.P. 702(A)(4); 42 Pa.C.S. §
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9721(b). Accordingly, we discern no abuse of discretion in the trial court’s
imposition of a sentence of 20 days to 23 months of incarceration.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2016
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