Com. v. Powell, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ABDUL POWELL :
:
Appellant : No. 3780 EDA 2017
Appeal from the Judgment of Sentence November 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011854-2013
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED APRIL 23, 2019
Abdul Powell appeals, nunc pro tunc, from the judgment of sentence
imposed on November 14, 2014, in the Court of Common Pleas of Philadelphia
County, following his non-jury conviction of one count each of aggravated
assault, possession of an instrument of crime with intent, simple assault, and
reckless endangerment.1 On November 14, 2014, the trial court sentenced
him to 74 to 200 months’ imprisonment. On appeal, Powell challenges: (1)
the discretionary aspects of his sentence; (2) the trial court’s denial of his
motion in limine; (3) the weight of the evidence; and (4) the sufficiency of the
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 Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(1), 907(a), 2701(a)(1), and 2705, respectively.
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evidence underlying his aggravated assault conviction. Based upon the
following, we affirm.
The trial court set out the relevant facts and procedural history as
follows:
On June 30, 2013, Niquan Blackson (hereinafter “[Blackson]”) was
in the area of 1747 Aberdeen Street, Philadelphia, PA, attending
a neighborhood block party. [Blackson] had known [Powell] for
many years, as they were both from the same neighborhood and
had grown up together around that area. [Blackson] arrived at
the block party at 2:30 pm and departed, along with [Powell], at
12:30 am to go to a neighborhood bar, Cafe Breezes. After one
drink, [Blackson] and [Powell] decided to return to the block
party, driving separate cars.
While [Blackson] was driving back from the bar and was stopped
at a red light, [Powell] drove around [Blackson’s] vehicle and
struck [his] passenger side rearview mirror with his vehicle. As a
result, [Blackson’s] mirror was damaged and hung off the side of
[his] vehicle.
Subsequently, [Powell] and [Blackson] got into a heated
argument regarding damages to [Blackson’s] vehicle. The verbal
argument escalated into a physical altercation, during which
[Blackson] struck [Powell] first. The fight took place on the
sidewalk in front of [Powell’s] parked car, and [Powell] had access
to both the car and his car keys. However, instead of retreating
into his car, [Powell] pulled out a knife and stabbed [Blackson]
once in the left-hand side, puncturing [his] spleen and lung.
[Blackson] was rushed by his wife to Lankenau Hospital, where he
underwent eight (8) hours of surgery. Although the doctor was
unsure if [Blackson’s] spleen could be saved, the doctor was more
concerned about [his] overall condition as [he] had lost a profuse
amount of blood. Fortunately, [Blackson] was able to survive the
surgery, whereby [he] spent two (2) weeks recovering in the
Intensive Care Unit. Upon leaving the Intensive Care Unit and
returning home, [Blackson] returned to the hospital for another
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week after complications arose with his bowel movements due to
internal bleeding.
Though [Blackson’s] physical condition was too critical to make a
statement on the day of the incident, Philadelphia Police Detective
Mary K[u]chinsky (hereinafter “Detective K[u]chinsky”) was able
to interview [Blackson] on July 1, 2013. Detective K[u]chinsky
presented a photo array to [Blackson], whereby [he] identified
[Powell] by circling [his] photograph.
***
On February 28, 2014, [Powell] waived his right to a jury trial and
elected to have a bench trial before the Honorable Christopher
Wogan. The trial was bifurcated, whereby on March 26, 2014,
[Powell’s] motion in limine was heard before the Honorable Steven
R. Geroff. Judge Geroff denied the motion in limine, whereby
[Powell’s] trial resumed before Judge Wogan.
On March 26, 2014, [Powell] was found guilty by Judge Wogan of
[the aforementioned charges]. Sentencing was deferred until
August 18, 2014, whereby [Powell] was sentenced to an
aggregate sentence of 76 [to] 198 months of incarceration at a
State Correctional Institution, followed by a period of three (3)
years of probation.
On August 27, 2014, [Powell] filed a motion for reconsideration of
sentence, whereby on November 14, 2014, Judge Wogan granted
the motion and altered [Powell’s] sentence to 74 [to] 200 months
of incarceration at a State Correctional Institution.
On February 3, 2015, [Powell] filed a timely, pro se petition under
the Post-Conviction Relief Act (hereinafter “PCRA petition”).[2]
Subsequently, [Powell] filed an amended PCRA petition on March
31, 2016. On October 17, 2017, [the PCRA court] granted
[Powell’s] nunc pro tunc rights, whereby on November 3, 2017,
[Powell] filed the instant notice of appeal, which appeal the
Superior Court of Pennsylvania (hereinafter “Superior Court”)
docketed at 3780 EDA 2017.
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2 42 Pa.C.S.A. §§ 9541-9546.
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On April 12, 2018, after a short delay in obtaining transcripts, [the
trial court] issued an order directing [Powell] to file a Statement
of [Errors] Complained of on Appeal (hereinafter “1925(b)
statement”). On April 30, 2018, [Powell] filed said 1925(b)
statement. [On May 17, 2018, the trial court issued an opinion.]
Trial Court Opinion, 5/18/2018, at 1-4 (record citations and footnotes
omitted).
Powell first contends that his sentence “was unduly harsh and excessive
and failed to consider mitigating factors[.]” Powell’s Brief, at 8. However,
Powell waived this claim.
A challenge to the discretionary aspects of a sentence is not absolute,
but rather, “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and
internal citation omitted). To reach the merits of such a claim, this Court must
determine:
(1) whether the appeal is timely; (2) whether [the defendant]
preserved [the] issue; (3) whether [the defendant’s] brief includes
a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa. Super. 2013)
(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013). “[I]ssues
challenging the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
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sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Commonwealth v. Cartrette, 83 A.3d 1030,
1042 (Pa. Super. 2013) (en banc).
In the present case, Powell did file a post-sentence motion challenging
his original sentence. However, on November 14, 2014, the trial court
granted the motion and imposed a new sentence. N.T. Motion Hearing,
11/14/2014, at 10. Powell did not challenge the discretionary aspects of his
new sentence during the sentencing hearing or in a post-sentence motion filed
within ten days after the imposition of sentence. See Pa.R.Crim.P. 720(A)(1).
Thus, Powell waived any challenge to the discretionary aspects of his
sentence.3
In his second contention, Powell claims that the trial court erred in
denying his motion in limine to preclude admission at trial of the audio tapes
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3 Even if we were to construe the original post-sentence motion as covering
the new sentence, Powell would still have waived his claim. The only issues
he raised in his post-sentence motion were that the court should reduce his
sentence because he had full-time employment and serious health issues.
Post-Sentence Motion, 8/27/2014, at 1. He did not raise the claims of harsh
and excessive sentence and failure to consider mitigating factors raised
herein. An appellant waives any discretionary aspects of his sentence issue
not raised in a post-sentence motion; also, an appellant cannot raise an issue
for the first time on appeal. See Commonwealth v. Mann, 820 A.2d 788,
794 (Pa. Super. 2003) (finding claim sentencing court did not put sufficient
reasons to justify sentence on record waived where issue was not raised in
post-sentence motion), appeal denied, 831 A.2d 599 (Pa. 2003); see also
Pa.R.A.P. 302(a).
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of two telephone calls. Powell’s Brief, at 18. However, again, Powell waived
this claim.
Our review of a trial court’s ruling on a motion in limine is well
established:
When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard of
review. A trial court has broad discretion to determine whether
evidence is admissible, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014)
(quotation marks and citations omitted).
Here, Powell sought to preclude admission of the audio tapes of two
telephone calls. However, the certified record does not contain either the
audio tapes themselves or a transcription of the content of the tapes. While
the transcript of the hearing on the motion in limine does contain counsels’
summarizations of the contents of the tapes that is insufficient, we have no
means to test the accuracy of their statements.
Our courts have long held that it is an appellant’s responsibility to ensure
that the certified record contains all items necessary to ensure that this Court
is able to review his claims. See Commonwealth v. B.D.G., 959 A.2d 362,
372 (Pa. Super. 2008) (en banc) (holding that claim that victim’s execution of
general release barred imposition of restitution was waived where appellant
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failed to include release in certified record); see also Commonwealth v.
Brown, 161 A.3d 960, 968 (Pa. Super. 2017) (“Our law is unequivocal that
an appellant bears the responsibility to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.”), appeal denied, 176 A.3d 850
(Pa. 2017). Without either the tapes themselves or a transcription, it is
impossible for this Court to address the merits of Powell’s claim that the trial
court erred in admitting them. Thus, Powell’s second claim fails.
In his third issue, Powell contends that the verdict was against the
weight of the evidence. Powell’s Brief, at 8. A weight of the evidence claim
concedes the sufficiency of the evidence. Commonwealth v. Widmer, 744
A.2d 745, 751 (Pa. 2000). A weight claim addresses the discretion of the trial
court. Id. at 752 (citation omitted). On review, the appellate court decides
whether the trial court abused its discretion when ruling on the weight claim;
it does not consider the underlying question of whether the verdict was against
the weight of the evidence. Id. at 753. We will only find an abuse of discretion
where the verdict is so contrary to the evidence as to shock one’s sense of
justice. Our review of a challenge to the weight of the evidence supporting
the verdict is well-settled:
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
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must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. On appeal, our purview
is extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
of a review of the trial court’s exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence. An appellate court may not reverse a
verdict unless it is so contrary to the evidence as to shock one’s
sense of justice.
Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en
banc) (citation omitted), appeal denied, 168 A.3d 1237 (Pa. 2017).
Instantly, Powell’s weight of the evidence claim is merely a restatement
of his sufficiency challenge, which we discuss infra. He fails to explain how
the verdict was against the weight of the evidence, or in what way the trial
court abused its discretion in denying his weight claim. Rather, his argument
consists only of his bald allegation that the Commonwealth’s testimony
negating self-defense was “contradictory and speculative.”4 Powell’s Brief, at
22. Conversely, the trial court, in its opinion, discusses, in detail, why it did
not find that the Commonwealth’s evidence was contradictory. Trial Court
Opinion, 5/18/2018, at 7-8. Powell provides us with no basis upon which to
disagree. Accordingly, his weight claim fails.
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4 At no point in his argument on this issue does Powell ever cite to the record
in support of his characterization of the Commonwealth’s testimony.
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In his final issue, Powell argues that the evidence is insufficient to
sustain his conviction for aggravated assault. Powell’s Brief, at 23-25. Our
standard of review for a claim of insufficient evidence is as follows:
The determination of whether sufficient evidence exists to support
the verdict is a question of law; accordingly, our standard of
review is de novo and our scope of review is plenary. In assessing
[a] sufficiency challenge, we must determine whether viewing all
the evidence admitted at trial in the light most favorable to the
[Commonwealth], there is sufficient evidence to enable the
factfinder to find every element of the crime beyond a reasonable
doubt. [T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
. . . [T]he 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. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)
(quotation marks and citations omitted).
The Commonwealth charged Powell with violating 18 Pa.C.S.A. §
2702(a)(1). Specifically, Section 2702 states, in relevant part:
a) Offense defined.--A person is guilty of aggravated assault if
he:
(1) 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).
Here, Powell conceded at trial that he caused serious bodily injury to
Blackson. N.T. Trial, 2/28/2014, at 75-76. Thus, the Commonwealth did not
need to prove specific intent, only that the defendant acted recklessly.
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Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (en
banc) (citation omitted), appeal denied, 940 A.2d 364 (Pa. 2007).
Where malice is based on a reckless disregard of consequences, it
is not sufficient to show mere recklessness; rather, it must be
shown the defendant consciously disregarded an unjustified and
extremely high risk that his actions might cause death or serious
bodily injury. A defendant must display a conscious disregard for
almost certain death or injury such that it is tantamount to an
actual desire to injure or kill; at the very least, the conduct must
be such that one could reasonably anticipate death or serious
bodily injury would likely and logically result.
Commonwealth v. Packer, 146 A.3d 1281, 1285 (Pa. Super. 2016),
affirmed, 168 A.3d 161 (Pa. 2017).
In this matter, Powell contends that he acted in self-defense, not
recklessly. Powell’s Brief, at 24-25. With respect to self-defense, “[t]he use
of force upon or toward another person is justifiable when the actor believes
that such force is immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the present
occasion.” 18 Pa.C.S.A. § 505(a).
When a defendant raises the issue of self-defense, the
Commonwealth bears the burden to disprove such a defense
beyond a reasonable doubt. While there is no burden on a
defendant to prove the claim, before the defense is properly at
issue at trial, there must be some evidence, from whatever
source, to justify a finding of self-defense.
Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa. Super. 2006) (citation
omitted).
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Powell, in maintaining that he used a knife in a fistfight in self-defense,
ignores our standard of review, which requires that we view the evidence in
the light most favorable to the Commonwealth as verdict winner, along with
all reasonable inferences. Furthermore, the trial judge, as fact finder, passes
on the credibility of witnesses and is free to believe all, part or none of their
testimony. See Commonwealth v. Feese, 79 A.3d 1101, 1119 (Pa. Super.
2013).
Here, the trial judge, as fact finder, specifically rejected Powell’s self-
defense testimony. Trial Court Opinion, 5/18/2018, at 7-9. Viewing the
evidence in the light most favorable to the Commonwealth, the evidence
demonstrates that, even though the Commonwealth conceded that Blackson
was the aggressor, Powell did not dispute that he was the only person with a
weapon or that he responded to fists by stabbing Blackson, puncturing his
lung and rupturing his spleen.
Our Supreme Court has held that deadly force is not a justified response
to fisticuffs. Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012)
(holding evidence was insufficient to raise jury question about self-defense
where victim punched defendant multiple times and defendant shot at him);
Commonwealth v. Jones, 332 A.2d 464, 466 (Pa. Super. 1974) (holding
using knife in response to fistfight is not justified use of deadly force).
Moreover, the record demonstrates that Powell, who was on a public sidewalk,
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had many opportunities to retreat. See Commonwealth v. Gillespie, 434
A.2d 781, 784 (Pa. Super. 1981) (holding opportunity to retreat existed
because, “the fight occurred on a public sidewalk, with several avenues of
retreat available.”). Thus, our review of the record supports the trial court’s
finding that the Commonwealth presented sufficient evidence to support the
verdict of aggravated assault. The evidence presented by the Commonwealth,
particularly that the victim was unarmed and that Powell had the opportunity
to retreat, was sufficient to disprove his claim of self-defense beyond a
reasonable doubt.
For all the foregoing reasons, we affirm Powell’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/19
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