Com. v. Salata, G. ( 2019 )

J-S12034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE JOSEPH SALATA, :
:
Appellant : No. 1447 MDA 2018
Appeal from the Judgment of Sentence Entered August 9, 2018
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001148-2017
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: APRIL 29, 2019
George Joseph Salata (“Salata”) appeals from the judgment of sentence
entered following his conviction of two counts of aggravated assault, and one
count of criminal attempt (homicide). Counsel for Salata has filed a Petition
to Withdraw from representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We grant counsel’s Petition to Withdraw and affirm
Salata’s judgment of sentence.
During the evening of January 23, 2017, Salata and Michael Gontz
(“Gontz”) exchanged hostile text messages, while Gontz was in a bar in
Hazelton, Pennsylvania. Salata threatened Gontz and Gontz’s son in the text
messages. Salata indicated that he was on his way to the bar. However,
Gontz subsequently left the bar to look for Salata. According to Gontz,
J-S12034-19
I got as far as the corner of where [Salata’s] house is and stood
out in the street, and I realized [that] he wasn’t coming out[,] so
I had decided, I remember making a decision to turn around and
just go home. But I heard something from behind me and turned
my head to look and that’s when I got shot.
N.T., 2/12/18, at 66. As a result of being shot in the head, Gontz suffered
serious and permanent injuries, including the loss of hearing in one ear.
Dominick Fornato (“Fornato”), a code and safety enforcement officer for
the City of Hazelton, heard the gunshot while he was working on Locust Street.
Upon Fornato’s arrival at the scene, he observed Gontz in the middle of 20th
Street, on his hands and knees, bleeding from the right side of his face.
Fornato observed a large pool of blood on the ground near Gontz, with some
footprints “around the victim.” Id. at 29. Karen Cundro (“Cundro”), a nearby
resident, awakened after hearing a loud bang. She looked outside and
observed a man lying on the street, face down, and another man standing
nearby. According to Cundro, the man who was standing turned and walked
away from the scene. Another nearby resident, Yamira Feliz, heard a loud
boom that same evening, after which she observed Salata in his back yard,
carrying a shotgun.
Following a jury trial, Salata was convicted of the above-described
charges. For his conviction of criminal attempt, the trial court sentenced
Salata to a standard-range prison term of 240-480 months in prison. For his
conviction of aggravated assault, the trial court sentenced Salata to a
-2-
J-S12034-19
concurrent, standard-range prison term of 48-96 months.1 Salata filed post-
sentence Motions, which the trial court denied. Thereafter, Salata filed the
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
We may not address the merits of issues raised on appeal without first
reviewing the request to withdraw. Commonwealth v. Rojas, 874 A.2d 638,
639 (Pa. Super. 2005). Therefore, we review counsel’s Petition to Withdraw
at the outset. Our Supreme Court’s decision in Santiago did not alter the
procedural requirements counsel must satisfy in requesting to withdraw from
representation. Counsel must (1) petition the court for leave to withdraw
stating that, after making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous; (2) furnish a copy of the
brief to the defendant; and (3) advise the defendant that he or she has the
right to retain private counsel or raise additional arguments that the defendant
deems worthy of the court’s attention. Commonwealth v. Lilley, 978 A.2d
995, 997 (Pa. Super. 2009).
Here, counsel’s Petition to Withdraw states that he has reviewed the
record and concluded that the appeal is frivolous. Additionally, counsel
notified Salata that he was seeking permission to withdraw, furnished Salata
with copies of the Petition to Withdraw and Anders brief, and advised Salata
____________________________________________
1 Salata’s remaining aggravated assault conviction merged at sentencing.
-3-
J-S12034-19
of his right to retain new counsel or proceed pro se to raise any points he
believes worthy of this Court’s attention.2 Accordingly, counsel has satisfied
the procedural requirements of Anders.
Having concluded that counsel has complied with the procedural
mandates of Anders, we next determine whether counsel’s Anders brief
meets the substantive dictates of Santiago. According to Santiago, in the
Anders brief that accompanies the 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.
Santiago, 978 A.2d at 361.
Here, counsel’s Anders brief sets forth the factual and procedural
history of the case. Additionally, counsel refers to issues that could arguably
support the appeal, and concludes that the issues are wholly frivolous.
Accordingly, counsel has complied with the minimum requirements of
Anders/Santiago.
In the Anders brief, counsel identifies the following issues for our
review:
1. Whether the Commonwealth proved by sufficient evidence that
[Salata] committed the crimes of [a]ggravated [a]ssault and
[c]riminal [attempt]-[c]riminal [h]omicide[?]
____________________________________________
2 Salata has not filed any supplemental materials with this Court.
-4-
J-S12034-19
2. Whether the trial court abused its discretion in sentencing
[Salata?]
Anders Brief at 1.
Salata first challenges the sufficiency of the evidence underlying his
convictions. See Anders Brief at 6. Specifically, Salata asserts that the
Commonwealth failed to establish that he, in fact, was the assailant. Id.Salata further asserts that circumstantial evidence is not sufficient to sustain
his convictions. Id. at 6-7.
In its Opinion, the trial court deemed the issue waived based upon the
lack of specificity in Salata’s Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal. See Trial Court Opinion, 10/16/18, at 2
(unnumbered). The trial court further reviewed the applicable law and the
evidence presented at trial, and concluded that the evidence was sufficient to
sustain Salata’s convictions. See id. at 2-5. We agree with the sound
reasoning of the trial court, and affirm on this basis with regard to Salata’s
first claim. See id.
In his second claim, Salata challenges his sentences as excessive. See
Brief for Appellant at 5. However, as the trial court observed in its Opinion,
Salata’s Pa.R.A.P. 1925(b) Concise Statement failed to specify “how, why or
in what manner [the trial court] abused its discretion in sentencing [Salata].”
Trial Court Opinion, 10/16/18, at 5. The trial court further addressed the
merits of Salata’s claim of an excessive sentence, and concluded that the claim
-5-
J-S12034-19
lacks merit. See id. at 5-8. We agree with the sound reasoning of the trial
court, as expressed in its Opinion, and affirm on this basis with regard to
Salata’s sentencing claim. See id.
We further agree with counsel’s assessment that the claims lack merit,
and our independent review confirms that the appeal is wholly frivolous. We
therefore grant counsel’s Petition to Withdraw, and affirm Salata’s judgment
of sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2019
-6-
Circulated 03/27/2019 04:54 PM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
VS. CRIMINAL DIVISION
GEORGE JOSEPH SALATA NO: 1148 OF 2017
OPINION PURSUANT TO RULE 1925(a)(l)
BY THE HONORABLE MICHAEL T. VOUGH
This matter arises from an information filed by the Luzerne County District Attorney
against Defendant, George Salata, on May 25, 2017. Defendant was charged with one count of
criminal attempt to commit criminal homicide and two counts of aggravated assault. These
charges resulted from an incident which occurred in the City of Hazleton during the early
morning hours of January 24, 2017, when the Defendant approached the victim from behind as
he was standing in the street and shot him in the face.
Defendant entered a plea of not guilty and proceeded to a jury trial. On February 14,
2018, Defendant was found guilty of criminal attempt to commit criminal homicide and two
counts of aggravated assault. Based upon his prior record score of two, a standard range
sentence of two hundred forty to four hundred eighty months was imposed on the attempted
homicide charge. A concurrent sentence of forty-eight to ninety-six months was imposed on the
first count of aggravated assault and the second count of aggravated assault merged with the first.
On April 13, 2018, a post-sentence motion was filed on behalf of Defendant. This
motion requested a judgment of acquittal, a new trial and a reconsideration of sentence.
Defendant's post-sentence motion was denied by Order dated August 9, 2018.
A notice of appeal was filed on August 29, 2018. An order was then issued by this Court
on the same date which required that Defendant file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. A concise statement was filed
on behalf of Defendant on September 18, 2018. The concise statement raised two issues:
"Whether the Commonwealth proved by sufficient evidence that the Defendant committed the
crime of Aggravated Assault and Criminal Attempt-Criminal Homicide" and "Whether the trial
court abused its discretion in sentencing the Defendant".
When challenging the sufficiency of the evidence on appeal, the appellant's "1925(b)
statement needs to specify the element or elements upon which the evidence was insufficient" to
preserve the issue for appeal. Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super.
2008). If appellant's 1925(b) statement fails to identify the unproven elements, the sufficiency
issue is waived for purposes of appeal. Id. Nowhere in Defendant's 1925(b) statement does he
specify any element of criminal attempt to commit homicide or aggravated assault allegedly
unproven by the Commonwealth. Therefore, this issue is waived.
Even if Defendant's sufficiency argument was not waived, it would still fail. The
standard of review for challenges to the sufficiency of the evidence requires that the record be
evaluated 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). "Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt." Commonwealth v. Brewer, 876 A.2d 1029, 1032
(Pa.Super. 2005). There is no requirement that the Commonwealth establish guilt to a
mathematical certainty. Id. "The facts and circumstances established by the Commonwealth
need not be absolutely incompatible with the defendant's innocence." Commonwealth v.
Aguado, 760 A.2d 1181, 1185 (Pa.Super. 2000). Any doubt about the defendant's guilt is to be
resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined circumstances. Commonwealth v.
DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001). "The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence." Id. "The fact that the evidence establishing a
defendant's participation in a crime is circumstantial does not preclude a conviction
where the evidence coupled with the reasonable inferences drawn therefrom overcomes
the presumption of innocence." Commonwealth v. Murphy, 795 A.2d 1025, 1038-39
(Pa.Super. 2002). We may not substitute our judgment for that of the fact finder. Brewer, 876
A.2d at ·1032. As long as the evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a
reasonable doubt, the appellant's convictions will be upheld. Id. "A claim challenging the
sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy
provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of
the Pennsylvania Constitution." Widmer, 744 A.2d at 751.
To obtain a conviction for criminal attempt to commit criminal homicide, the
Commonwealth must prove beyond a reasonable doubt that the Defendant did a certain act with
the specific intent to kill and that the act constituted a substantial step toward the commission of
the killing the Defendant intended to bring about. 18 Pa.C.S.A. Section 901(a). To obtain a
conviction for aggravated assault, causing serious bodily injury, the Commonwealth must prove
beyond a reasonable doubt that the Defendant caused serious bodily injury to the victim
intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to
the value of human life. 18 Pa.C.S.A. Section 2702(a)(l). A conviction for aggravated assault,
causing bodily injury with a deadly weapon, requires that the Commonwealth prove beyond a
reasonable doubt that the Defendant caused bodily injury to the victim intentionally or
knowingly with a deadly weapon. 18 Pa.C.S.A. Section 2702(a)(4). This Court has no
hesitation in finding that the elements of all three offenses were proven beyond a reasonable
doubt.
Testimony was presented by the Commonwealth which established that numerous threats
were made by the Defendant against the victim by text messages immediately proceeding the
shooting. N.T. 2/13/18 at 163-168. These text messages included numerous threats to kill. The
victim also testified regarding the text messages he received from the Defendant threatening to
kill him. Id. at 65. A witness residing near the Defendant testified that the Defendant was her
neighbor and the shooting occurred near her residence. Id. at 52, 55. She also stated that she
looked out her window after hearing a "big boom" and saw the Defendant walking towards his
backyard carrying a shotgun. Id. at 52, 54, 57. Footprints leading from the scene of the shooting
to the rear door of Defendant's residence were observed by a Hazleton City Police Officer. Id. at
76. The victim also testified to standing in the street outside the Defendant's residence
immediately prior to being shot. Id. at 66. Finally, the Defendant indicated that he shot someone
in the face during the intake process at the Luzerne County Correctional Facility. Id. at 94. He
also testified that he had used a shotgun. Id. at 88.
The victim suffered serious and permanent injuries as a result of the shooting which
included the loss of hearing on one ear. Id. at 68. He was treated at the Lehigh Valley Hazleton
Hospital emergency room for various head and facial injuries including an avulsion to the right
side of his face extending from the right mastoid and cheek through the ear and into the occiput
of the scalp. N.T. 2/14/18 at 190. He also had a subarachnoid bleed inside his brain and other
significant injures requiring plastic surgery. Id. at 194. Multiple spherical rounds which would
be indicative of a shotgun were observed in the victim's face by the emergency room physician.
Id. at 196. A Remington 12 gauge shotgun was located in the Defendant's bedroom closet. N.T.
2/13/18 at 111. Due to the nature of his injuries, the victim had to be transported to the Lehigh
Valley Cedar Crest Hospital in Allentown. Id. N.T. 2/14/18 at 194.
Upon review of the testimony presented, it is clear that the Commonwealth established
beyond a reasonable doubt that the Defendant shot the victim in the face with specific intent to
kill and the shooting constituted a substantial step toward the commission of the killing intended
by Defendant. The Commonwealth also established beyond a reasonable doubt that Defendant
intentionally caused serious bodily injury to the victim under circumstances manifesting extreme
indifference to the value of human life and he used a deadly weapon to do so. More than
sufficient evidence was introduced by the Commonwealth to establish Defendant's guilt on the
aggravated assault and criminal attempt to commit homicide charges.
Defendant also raised an abuse of discretion issue with regard to sentencing. Nowhere
does Defendant indicate how, why or in what manner this Court abused its discretion in
sentencing Defendant.
Issues not stated with sufficient specificity in a concise statement of matters complained
of on appeal are waived. Commonwealth v. Eichinger, 108 A.3d 821, 850 (Pa. 2014). A Rule
1925(b) statement must be "specific enough for the trial court to identify and address the issue
[an appellant] wishe[s] to raise on appeal." Commonwealth v. Hansley, 24 A.3d 410, 415
(Pa.Super. 2011) citing, Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006) appeal
denied, 919 A.2d 956 (Pa. 2007). "A concise statement which is too vague to allow the court to
identify the issues raised on appeal is the functional equivalent of no concise statement at all."
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001). If the court has to guess at
the issues raised, our review and legal analysis can be fatally impaired. Hansley, 24 A.3d at 415;
Dowling, 778 A.2d at 686. Because Defendant's concise statement fails to identify the issue he
wishes to raise with sufficient specificity, we find that it has impaired meaningful review and is
waived.
Even if Defendant's abuse of discretion claim regarding his sentence were to be
considered, it would be without merit. When considering whether to affirm a sentencing court's
determination, the proper standard ofreview is an abuse of discretion. Commonwealth v. Smith,
673 A.2d 893, 895 (Pa. 1996). "Imposition of a sentence is vested in the discretion of the
sentencing court and will not be disturbed absent a manifest abuse of discretion". Id. An abuse
of discretion is more than a mere error of judgment. Id. A sentencing court will not have abused
its discretion unless the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will. Id. "An abuse of discretion
may not be found merely because an appellate court might have reached a different conclusion,
but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous." Commonwealth v. Moury, 992 A.2d 162,
170 (Pa.Super. 2010). "The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing court is in the best position to
determine the proper penalty for a particular offense based upon an evaluation of the individual
circumstances before it." Id.There is no absolute right to appeal the discretionary aspects of a sentence.
Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). An appellant must
demonstrate that there is a substantial question that the sentence is not appropriate under
the sentencing code. Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa. Super. 2004). "A
substantial question exists where appellant sets forth a plausible argument that the
sentence violates a particular provision of the sentencing code or is contrary to the
fundamental norms underlying the sentencing scheme." Commonwealth v. McNabb, 819
A.2d 54, 56 (Pa.Super. 2003). The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa.Super. 2007).
Defendant's Rule 1925(b) statement sets forth no such claim and no evidence
exists of record to support such a claim. "An 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. Cruz-Centeno, 668
A.2d 536, 545 (Pa.Super. 1995) quoting, Commonwealth v. Urrutia, 653 A.2d 706, 710
(Pa.Super. 1995). An allegation that a sentence is manifestly excessive fails to raise a
substantial question when the sentence imposed falls within the statutory limits.
Commonwealth v. Coss, 695 A.2d 831, 833 (Pa.Super. 1997). A claim that the trial court
failed to consider the defendant's rehabilitative needs, age and educational background
does not present a substantial question. Commonwealth v. Cannon, 954 A.2d 1222, 1228-
29 (Pa.Super. 2008).
Even if it were determined that Defendant raised a substantial question regarding
the sentence we imposed, his appeal must fail. "When imposing a sentence, a court is
required to consider the particular circumstances of the offense and the character of the
defendant." Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002) appeal denied,
868 A.2d 1198 (Pa. 2005) cert. denied, 545 US. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902(2005). "In particular, the court should refer to the defendant's prior criminal record, his
age, personal characteristics and his potential for rehabilitation." Id. Where a pre-
sentence report exists, there shall be a presumption that the sentencing judge was aware
of relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors. Commonwealth v. Devers, 546
A.2d 12, 18 (Pa. 1998). In addition, Pennsylvania law views a sentence as appropriate
under the Sentencing Code when it is within the standard range of the guidelines.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010). A sentence imposed
within the guidelines may be reversed only if application of the guidelines is clearly
unreasonable. Commonwealth v. Macias, 968 A.2d 773, 777 (Pa.Super. 2009); 42
Pa.C.S.A. Section 9781(c). Unreasonable means a decision that is either irrational or not
guided by sound judgment. Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).
The standard range of the guidelines for criminal attempt to commit criminal
homicide is ninety-six to two hundred forty months. Defendant's sentence of two hundred forty
to four hundred eighty months is within the standard range. Defendant's concurrent sentence of
forty-eight to ninety-six months on the aggravated assault, causing serious bodily injury charge is
also within the standard range. Defendant intended to kill the victim by shooting him in the back
of the head. The victim most likely escaped death by turning his head slightly immediately prior
to the shotgun blast. N.T. 2/13/18 at 66. Application of the guidelines based on the facts of this
case was clearly appropriate. A sentence of twenty to forty years is neither unreasonable nor
excessive. No abuse of discretion occurred. Defendant's convictions and judgment of sentence
imposed by this Court on April 10, 2018 should be affirmed.
BY THE COURT:
DATE:October 16, 2018
�1VJ:
MICHAEL T. VOUGH, J.
Copies:
Luzerne County District Attorney's Office
Matthew P. Kelly, Esquire