Com. v. Brown, B. ( 2019 )

J-S56040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BOBBY BROWN :
:
Appellant : No. 3469 EDA 2018
Appeal from the Judgment of Sentence Entered August 13, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000043-2017
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 27, 2019
Appellant Bobby Brown appeals from the judgment of sentence imposed
after a jury convicted him of attempted murder–causing serious bodily injury,
aggravated assault–causing serious bodily injury, aggravated assault with a
deadly weapon, firearms not to be carried without a license (VUFA), simple
assault, simple assault with a deadly weapon, and recklessly endangering
another person (REAP).1 On appeal, Appellant challenges the trial court’s
denial of his suppression motion, the sufficiency of the identification evidence
supporting his convictions, and the discretionary aspects of his sentence. We
affirm.
The trial court summarized the underlying facts of this matter as follows:
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1 18 Pa.C.S. §§ 901(a), 2502(a), 2702(a)(1), 2702(a)(4), 6106(a)(1),
2701(a)(1), 2701(a)(2), and 2705, respectively.
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On November 1, 2016, Robert Pfanders [(the complainant)] was
working in a garage at 47 King Street in Pottstown with Terry
Presgrave [(Presgrave)] when [Appellant] arrived looking for his
motorcycle between 2:00 p.m. and 2:15 p.m. [Appellant] was a
friend of [the complainant] and had asked [the complainant] to
do some repair work on one of his motorcycles. [Appellant]
believed that one of the motorcycles he saw in the garage that
day belonged to him. [The complainant] told [Appellant] he was
mistaken and that his motorcycle was not in the garage.
[Appellant] began arguing with [the complainant] and the
argument culminated in [Appellant] shooting [the complainant] in
his back. The first bullet entered [the complainant] below his left
shoulder blade. [The complainant] turned around and starting
cursing at [Appellant]. [Appellant] then shot him again. [The
complainant] fell to the ground and [Appellant] shot him a third
time while he was on the floor. [Appellant] fired one or two errant
shots in the direction of Presgrave before fleeing the garage.
Presgrave testified he was working at the mechanic’s garage at 47
King Street with [the complainant] on November 1, 2016 when
[Appellant] came into the garage looking for someone named
“J.R.” [Appellant] was informed no one named J.R. was at this
garage and that he might check a nearby garage on the same
block. [Appellant] left and then returned to the garage at 47 King
Street a short time later. [Appellant] and [the complainant] then
began talking. [Appellant] believed a motorcycle in the garage
belonged to him. [The complainant] and [Appellant] began to
argue about the motorcycle. At some point during the argument,
Presgrave observed [Appellant] in possession of a firearm.
Presgrave heard a bang as he turned to get a cigarette. He turned
and saw [the complainant] falling to the ground.
Presgrave dialed 9-1-1 and reported the shooting. Presgrave
initially fled, but quickly returned to aid [the complainant]. [The
complainant], believing he was about to die, told Presgrave the
shooter’s name was Bobby Brown [(later identified as Appellant)].
He further stated that Bobby Brown was from Norristown and was
between thirty-eight and forty years old. While in the ambulance,
[the complainant] told Detective [Mark] Wickersham that it was
[Appellant] who shot him. Both Presgrave and [the complainant]
later selected [Appellant] from separate photo array line-ups as
the person who shot [the complainant].
Timothy Santiago [(Santiago)] was in a nearby mechanic’s shop
having his car worked on when the shooting occurred. Santiago
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heard gunshots and then saw two men running out of the alley
behind the 47 King Street garage. The two men jumped in an
older looking green vehicle that appeared to be a Jeep, which
quickly drove away.
On November 1, 2016, at approximately 2:40 p.m., Officer Corey
Pfister of the Pottstown Police Department was dispatched to the
scene of a shooting at 47 King Street in the Borough of Pottstown.
Upon arriving on the scene, Officer Pfister observed an open
garage and a shooting victim lying on the ground. Officer Pfister
interviewed Presgrave while another officer began rendering aid
to the victim. Presgrave told [O]fficer Pfister that [the
complainant] had been shot multiple times and that the shooter,
Bobby Brown, was no longer at the scene. Presgrave was then
transported back to the police station to be further interviewed.
Officer Jacob Ritter, the officer rendering aid to [the complainant],
discovered a nine-millimeter shell casing while conducting a
search of the garage.
The testimony of Dr. Ian Hood, a forensic pathologist, confirmed
that [the complainant] was shot three times. [The complainant]
was shot in the back two or three inches below the bottom of his
left shoulder blade. That bullet pierced his lung and colon,
lacerated his spleen and remained in his body. That bullet
traveled through the diaphragm and the descending colon causing
contamination of the “normally sterile peritoneum.” [The
complainant] suffered a hemopneumothorax. [The
complainant’s] spleen and a portion of his colon had to be
surgically removed. He required a specialized [vacuum assisted
closure] (V.A.C.) dressing to keep his abdomen closed to avoid
sepsis. Another bullet went through his left forearm. A third bullet
went through his left thigh and shattered his femur. [The
complainant] lost approximately twenty percent of his blood
volume and was at high risk of death from blood loss, sepsis, and
other complications. [The complainant] was taken to Lehigh
Valley Hospital and intubated for six days. [The complainant] was
discharged to a rehabilitation facility after twelve days in the
hospital.
Detective Brook Fisher of the Pottstown Police Department
participated in the investigation of the crime scene. Detective
Fisher recovered two nine-millimeter shell casings on the floor of
the 47 King Street garage. Detective Fisher also obtained a latent
fingerprint from the exterior of a vehicle in the garage on the day
of the shooting, which was sent to the Pennsylvania State Police
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for testing. Trooper Jeffrey Custer, working for the Pennsylvania
State Police at the Bethlehem Regional Laboratory, performed an
analysis of the latent fingerprint and concluded that it matched
[Appellant].
On November 4, 2016, Detective Heather Long encountered
[Appellant’s] girlfriend driving a green Jeep Grand Cherokee near
the 47 King Street garage. Detective Long identified this vehicle
as the same one seen speeding away from the 47 King Street
garage the day of the shooting in a surveillance video obtained
from Yohn’s Grocery store. It also matched the description of the
vehicle seen speeding away from the garage on that day provided
by witness Santiago.
Dan Drumheller, a manager at Bridgeport Auto near the 47 King
Street garage, testified that [Appellant] sometimes drove a green
Jeep. Drumheller knew [the complainant] and stated that
[Appellant] told him shortly before the day of the shooting that he
was looking for [the complainant] because he “ripped him off for
a motorcycle and some money” and that he was going to “F him
up.”
Detective Corporal Thomas Leahan of the Pottstown Police
Department testified that state police records confirmed
[Appellant] did not have a license to carry a firearm on November
1, 2016.
On November 25, 2016, Officer Kevin Gorman of the Philadelphia
Police Department pulled [Appellant] over to make a routine traffic
stop. [Appellant] initially provided a false name, identifying
himself as Maurice Brown. When Officer Gorman eventually
determined that the driver’s actual name was Bobby Brown, he
took him into custody under an active warrant out of Pottstown
for attempted homicide.
Trial Ct. Op., 3/8/19, at 2-6.
Thereafter, the Commonwealth filed an information charging Appellant
with offenses related to the shooting. On August 3, 2017, Appellant filed a
motion to suppress the identification evidence. Appellant argued that the
“photo array lineup was prejudicial and unduly suggestive” because none of
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the other photographs resembled Appellant. See Omnibus Pre-Trial Mot.,
8/3/17, at 2. Following a suppression hearing on April 2, 2018, the trial court
denied Appellant’s motion.
On May 21, 2018, following three days of testimony, the jury returned
a guilty verdict on each of the foregoing crimes. See N.T. Jury Trial, 5/21/18
at 103-04. After finding Appellant guilty of attempted murder, the jury also
answered “yes” to the verdict interrogatory on serious bodily injury related to
the attempted murder. Id. at 103. Sentencing was deferred for preparation
of a pre-sentence investigation (PSI) report.
On August 13, 2018, the trial court held a sentencing hearing. The trial
court noted that the Commonwealth proved, and the jury found, that
Appellant inflicted serious bodily injury on the complainant. See N.T.
Sentencing Hr’g, 8/13/18, at 39. The trial court heard testimony from
Appellant, Appellant’s family, and the complainant. Id. at 5-39. Ultimately,
the trial court sentenced Appellant to a term of twenty to forty years’
incarceration for attempted murder2 and a consecutive term of two-and-a-half
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2 Briefly, we note that the statutory maximum sentence for attempted murder
resulting in serious bodily injury is forty years’ incarceration. See 18 Pa.C.S.
§ 1102(c). However, “[s]erious bodily injury is a fact that must be proven”
before the trial court can impose the maximum sentence. Commonwealth
v. Barnes, 167 A.3d 110, 117 (Pa. Super. 2017) (en banc). The
Commonwealth must also provide notice to the defendant that it seeks to
prove serious bodily injury prior to trial. See id. Here, the Commonwealth
included the element of serious bodily injury in the criminal information, and
the trial court reiterated Appellant’s sentencing exposure during a pre-trial
colloquy. See N.T. Jury Trial, 5/17/18 at 4-7. The trial court also instructed
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to five years’ incarceration for VUFA. Id. at 40-42. The court imposed no
further penalty for the remaining convictions.
On August 15, 2018 and August 21, 2018, the trial court docketed
several pro se filings by Appellant, which included a motion to modify his
sentence, a motion for judgment of acquittal, a motion to vacate his sentence,
and a motion for a new trial. On August 23, 2018, Appellant’s trial counsel
filed a motion to withdraw from representation along with a timely post-
sentence motion preserving Appellant’s pro se claims.3
On October 19, 2018, the trial court held a motions hearing. First, the
trial court addressed trial counsel’s motion to withdraw. See N.T. Mot. Hr’g,
10/19/18, at 3-4. Appellant claimed that trial counsel was ineffective, and
requested that the trial court appoint new counsel for purposes of his appeal.
Id. The trial court indicated that it would grant counsel’s motion to withdraw
and appoint new counsel after trial counsel filed a notice of appeal and
Pa.R.A.P. 1925(b) statement to preserve Appellant’s rights. Id. at 5. Trial
____________________________________________
the jury on the element of serious bodily injury relating to attempted murder,
and the jury made a factual finding. See N.T. Jury Trial, 5/21/18, at 75.
Therefore, the trial court was authorized to impose the maximum sentence of
forty years’ incarceration. See 18 Pa.C.S. § 1102(c); see also Barnes, 167
A.3d at 117.
3 In pertinent part, the counseled post-sentence motion argued that (1) the
court abused its discretion by imposing a sentence that was unreasonable and
excessive under the circumstances of the case; and (2) the court did not
adequately consider Appellant’s age, family history, education, employment
history, and mental health. See Post-Sentence Mot., 8/23/18, at 2.
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counsel also argued in support of Appellant’s pro se post-sentence motions,
which the trial court ultimately denied on November 5, 2018.
Appellant, through trial counsel, filed a timely notice of appeal on
November 30, 2018, and subsequently complied with the trial court’s order
for a Pa.R.A.P. 1925(b) statement.4 On December 17, 2018, trial counsel filed
a motion to appoint private conflict counsel on appeal. The trial court
appointed new counsel to represent Appellant5 and issued a Rule 1925(a)
opinion disposing of Appellant’s claims.
Appellant now raises three issues, which we have reordered as follows:
1. Whether the trial court erred and committed an abuse of
discretion by denying Appellant’s motion to suppress the photo
array lineup as unduly suggestive.
2. Whether there was insufficient evidence to prove beyond a
reasonable doubt that Appellant was guilty of attempted
murder, aggravated assault, and [VUFA].
3. Whether an aggregate sentence of twenty-two and a half (22
½) to forty-five (45) years’ incarceration was manifestly
excessive and clearly unreasonable.
Appellant’s Brief at 6 (some formatting altered).
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4Appellant’s Rule 1925(b) statement contained the same issues that Appellant
now raises in his brief.
5 The docket reflects that the trial court originally appointed new counsel on
March 12, 2019. However, on March 25, 2019, the trial court vacated its
previous order and appointed current counsel, Attorney Erin C. Lentz-
McMahon, Esq.
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In his first issue, Appellant argues that the trial court erred by denying
his motion to suppress. Id. at 35. By way of background, the trial court
summarized the testimony presented at the suppression hearing as follows:
Detective Wickersham testified he interviewed Presgrave, a
potential witness in the case, as part of the investigation.
Presgrave had provided a description of the shooter. Presgrave
stated that he did not know the shooter prior to the shooting.
Using demographic information from Presgrave’s description,
Detective Wickersham’s administrative assistant used the
Commonwealth Photo Imaging Network (CPIN) and the Justice
Network (JNET) to generate a photo array line-up of individuals
whose appearances were similar to Appellant’s. Generally, these
databases create an array of approximately thirty images similar
in appearance to a defendant, which are then further narrowed to
the eight most similar images. The photo array is intentionally
presented by someone other than the person who generated it.
Presgrave read and signed instructions explaining how the line-up
is administered, including the possibility that the suspect may not
be in the line-up,[6] and how he would be shown all eight
photographs no matter when or if he made an identification. On
November 1, 2016, the day of the shooting, a photo array was
shown to Presgrave and he identified the seventh of eight images
as the photograph of the shooter. The seventh image was a
photograph of [Appellant].
Detective Corporal Leahan [testified that on November 7, 2016,
he] administered the same photo array line-up using the same
methodology to [the complainant]. The only difference between
the line-up shown to [the complainant] and the one shown to
Presgrave was that Presgrave’s was in color and [the
complainant’s] was in black and white. [The complainant]
identified the seventh image as being a photograph of the shooter
and stated that the name of the person in the photograph was
Bobby Brown. [The complainant] knew [Appellant] prior to the
____________________________________________
6The instructions also indicate that “the person in the photograph may or may
not appear as they did at the time of the crime.” N.T. Suppression Hr’g,
4/2/18, at 11.
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shooting. Although [the complainant] was in the hospital
recovering from his wounds[7] when the photo array line-up was
administered, he appeared “very alert and sharp.”
Trial Ct. Op. at 9-10.
On appeal, Appellant raises the same arguments that he raised at the
suppression hearing. First, Appellant argues that his photo stood out from the
others in the line-up because he was the only person smiling, his photo had a
blue background, and the word “JNET” was printed at the bottom of his photo.
Appellant’s Brief at 36. Second, he claims that because both witnesses
selected the seventh photo from the same photo array approximately one
week apart, there is a possibility that the two witnesses coordinated with one
another before the complainant identified Appellant. Id. Third, he asserts
that although Presgrave described the shooter as having a “goatee,” none of
the individuals in the photo array had this type of facial hair. Id. Therefore,
Appellant contends that the police created the array “based upon the notion
that the shooter was [Appellant].” Id. at 37.
We apply the following standard when reviewing the denial of a
suppression motion:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
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7 Detective Leahan explained that he wanted to speak with the complainant
at the hospital prior to November 7, 2016, but the complainant was unable to
speak “because of the tube down his throat.” See N.T. Suppression Hr’g,
4/2/18, at 22, 29. After the complainant’s tube was removed on November
6, 2016, he asked to speak with detectives. Id. at 29. The following day, on
November 7, 2016, Detective Leahan visited the complainant in the hospital
to show him the photo array. Id.
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determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because
the Commonwealth prevailed before the suppression court,
we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court’s factual findings are
supported by the record, [the appellate court is] bound by
[those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where . . . the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below
are subject to [ ] plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation
omitted).
“In reviewing the propriety of identification evidence, the central inquiry
is whether, under the totality of the circumstances, the identification was
reliable.” Commonwealth v. Milburn, 191 A.3d 891, 899 (Pa. Super. 2018)
(citation omitted). “A photographic identification is unduly suggestive when
the procedure creates a substantial likelihood of misidentification.”
Commonwealth v. Crork, 966 A.2d 585, 589 (Pa. Super. 2009) (citations
and quotation marks omitted). “To establish reliability in the wake of a
suggestive identification, the Commonwealth must prove, through clear and
convincing evidence, the existence of an independent basis for the
identification.” Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super.
2011).
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In deciding whether to admit contested identification evidence,
the trial court must consider: (1) the opportunity of the witness
to view the perpetrator at the time of the crime; (2) the witness’
degree of attention; (3) the accuracy of his prior description of the
perpetrator at the confrontation; (4) the level of certainty
demonstrated at the confrontation; and (5) the time between the
crime and confrontation. Suggestiveness in the identification
process is but one factor to be considered in determining the
admissibility of such evidence and will not warrant exclusion
absent other factors.
Milburn, 191 A.3d at 899-900 (citations and quotation marks omitted).
Here, at the suppression hearing, the trial court explained that it
reviewed the photographs “very carefully,” but it did not believe the photo
array was “impermissibly suggestive” or gave rise to a “substantial likelihood
of irreparable misidentification.” N.T. Suppression Hr’g, 4/2/18, at 43. The
trial court also noted that there was no evidence that “the two witnesses even
spoke about the lineup array photographs or, if so, whether one [of the
witnesses] communicated which [photo] was selected.” Id.
Thereafter, in its Rule 1925(a) opinion, the trial court reiterated its
analysis as follows:
An evaluation of the pertinent criteria in the instant case
demonstrates that the identification procedure did not create a
substantial likelihood of misidentification. Both [the complainant],
who was previously familiar with [Appellant], and Presgrave had
ample opportunity to view [Appellant] at the time of the shooting.
Their degree of attention, prior description of [Appellant] before
the photo array line-up and level of certainty were consistent.
Presgrave identified [Appellant] the same day as the crime. The
other people in the photos depicted exhibited similar facial
features to those of [Appellant] and [Appellant’s] photo did not
stand out in any obvious way. There was no evidence that the
witnesses’ attention faltered, that the prior description by
Presgrave was inaccurate or that either witness was uncertain in
their identification of [Appellant]. The line-up was administered
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by someone who had not created it and the witnesses were
unaware if [Appellant] or any suspect was included among the
eight images. There was no evidence of suggestivity in the
administration of the photo array. Accordingly, the [trial] court’s
denial of [Appellant’s] motion to suppress the identifications
should be affirmed.
Trial Ct. Op. at 11.
Although Appellant argues that the photo array was unduly suggestive,
he failed to ensure that the certified record contained a copy of the photo
array in question. Therefore, we could find his claim waived. See
Commonwealth v. Manley, 985 A.2d 256, 263-64 (Pa. Super. 2009)
(stating that “[b]ecause we have not been furnished with a copy of the photo
array in question in the record, the issue challenging suppression of the photo
array is deemed waived). However, we affirm on the trial court’s conclusion
that there was independent support for the identification. See Davis, 17 A.3d
at 394. Specifically, the trial court referred to the witnesses’ opportunity to
view the perpetrator, the level of certainty demonstrated at the time of the
confrontation, the time between the crime and confrontation, and the fact that
the complainant was familiar with Appellant prior to the shooting. See
Milburn, 191 A.3d at 899. We discern no error in the trial court’s factual
determinations or legal conclusions in this regard. See Smith, 164 A.3d at
1257. Therefore, the trial court properly denied Appellant’s suppression
motion.
In his next claim, Appellant challenges the sufficiency of the
identification evidence supporting his convictions for attempted murder,
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aggravated assault, and VUFA.8 Appellant’s Brief at 35. Appellant asserts
that there was no DNA or fingerprint evidence “collected from the gun shells,
and no firearm was ever recovered by law enforcement.” Id. at 34. He also
contends that there was no “license plate and/or positive identification” to
establish that Appellant was the individual who fled from the scene of the
crime. Id. Although Appellant acknowledges that the police found his
fingerprint on a car that was in the complainant’s garage, he claims that there
was no evidence to establish that the fingerprint was from the day of the
shooting. Id. Appellant also asserts that “the Commonwealth’s case relied
upon the identification made by [the complainant and Presgrave], both of
whom were under the influence of methamphetamine” at the time of the
shooting. Id. at 33.
We apply the following standard when reviewing a sufficiency claim:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
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8 The Commonwealth asserts that Appellant waived his sufficiency challenge
because he failed to identify the precise element or elements at issue in his
Rule 1925(b) statement. Commonwealth’s Brief at 11. Appellant
acknowledges that his Rule 1925(b) statement was deficient, but notes that
he used an identification defense at trial, and the trial court identified and
addressed his claim. Appellant’s Brief at 30. It is well settled that a vague
challenge to the sufficiency of the evidence may result in waiver. See
Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017). Here,
however, the trial court addressed Appellant’s sufficiency claim in its Rule
1925(a) opinion. Further, Appellant’s theory of the case is ascertainable from
the record. Therefore, we decline to find waiver. See Commonwealth v.
Laboy, 936 A.2d 1058, 1060 (Pa. 2007).
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reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the
factfinder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
“Criminal attempt to murder is defined by reading the attempt statute,
18 Pa.C.S. § 901(a), in conjunction with the [first-degree] murder statute, 18
Pa.C.S. § 2502(a).” Commonwealth v. Predmore, 199 A.3d 925, 929 (Pa.
Super. 2018) (en banc). Therefore, to sustain a conviction for attempted
murder, the Commonwealth must prove that “the defendant had the specific
intent to kill and took a substantial step towards that goal.” Id.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;
* * *
(4) attempts to cause or intentionally or knowingly causes bodily
injury to another with a deadly weapon[.]
18 Pa.C.S. § 2702(a)(1), (4).
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As to VUFA, “any person who carries a firearm in any vehicle or any
person who carries a firearm concealed on or about his person, except in his
place of abode or fixed place of business, without a valid and lawfully issued
license under this chapter commits a felony of the third degree.” 18 Pa.C.S.
§ 6106(a)(1).
“In addition to proving the statutory elements of the crimes charged
beyond a reasonable doubt, the Commonwealth must also establish the
identity of the defendant as the perpetrator of the crimes.” Commonwealth
v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (citation omitted).
[E]vidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(citations and quotation marks omitted).
Here, Appellant’s claim relates solely to the sufficiency of the
Commonwealth’s identification evidence. Accordingly, we limit our discussion
to the evidence for that element. See Commonwealth v. Cain, 906 A.2d
1242, 1244 (Pa. Super. 2006) (declining to address the sufficiency of the
evidence supporting every element of an offense where the appellant raises a
claim relating to one specific element).
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In its Rule 1925(a) opinion, the trial court noted that “[b]oth [the
complainant] and Presgrave, eyewitnesses to the event, testified that the
shooter was [Appellant].” Trial Ct. Op. at 7. Additionally, Santiago testified
that he “heard gunshots before he saw a green Jeep fleeing the 47 King Street
garage.” Id. at 8. The trial court explained that
[t]his Jeep was later identified as one that was regularly driven by
[Appellant] and seen in the possession of [Appellant]’s girlfriend.
[Appellant]’s fingerprint was found on a vehicle that was in the 47
King Street garage on the day of the shooting. Both [the
complainant] and Presgrave picked [Appellant] out of separate
photo array line-ups as the perpetrator. There was testimony
from a nearby store manager, Drumheller, that [Appellant] had
been looking for [the complainant] and had made threats against
[the complainant] before the shooting. Finally, [Appellant] gave
a false name to law enforcement when he was first apprehended.
Id. at 7.
Our review of the record confirms that, when viewed in the light most
favorable to the Commonwealth as verdict winner, the evidence was sufficient
to identify Appellant as the shooter. See Palmer, 192 A.3d at 89. Both
Presgrave and the complainant identified Appellant in an out-of-court photo
array and at trial. See Orr, 38 A.3d at 874. Further, the Commonwealth
presented circumstantial evidence sufficient to establish Appellant’s guilt. See
Palmer, 192 A.3d at 89. Therefore, Appellant’s sufficiency claim fails.
To the extent Appellant challenges the reliability of the witnesses’
identifications, this relates to the weight of the evidence. See
Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013) (stating that
an argument as to the “credibility of the Commonwealth’s chief witness” is a
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challenge to the weight, not the sufficiency, of the evidence); see also
Commonwealth v. Davis, 799 A.2d 860, 864 (Pa. Super. 2002) (reiterating
that weight and sufficiency claims “are discrete inquiries”). Because Appellant
did not preserve a weight claim in his Rule 1925(b) statement, it is waived.
See Pa.R.A.P. 1925(b)(4)(ii) (stating that issues not included in the Rule
1925(b) statement are waived).
In his final issue, Appellant challenges the discretionary aspects of his
sentence. Appellant’s Brief at 36. He asserts that the sentence was
“manifestly excessive and clearly unreasonable” because the trial court did
not properly consider mitigating factors. Id. Specifically, Appellant states
that he “suffers from mild retardation” as well as “mental illness that has
required several inpatient hospitalizations.” Id. at 39. Further, Appellant
asserts that he “did not have a reputation in the community for being a violent
person,” “his prior criminal history only consisted of misdemeanors,” and he
“has strong family support.” Id. at 40. Appellant also argues that he “[h]e
clearly expressed anger over [the complainant] never returning his
motorcycle” and “under these circumstances, [Appellant] had a right to be
upset with [the complainant].” Id.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits
of such claims, we must determine: “(1) whether the appeal is timely; (2)
whether [the a]ppellant preserved his issues; (3) whether [the a]ppellant’s
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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.” Commonwealth v.
Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation omitted).
Here, Appellant timely filed a notice of appeal, preserved his claim in a
post-sentence motion, and included a concise statement of reasons relied
upon for allowance of appeal in his brief. See id. Additionally, Appellant’s
claim that the trial court imposed an excessive sentence because it failed to
consider mitigating factors raises a substantial question. See
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (stating
that “an excessiveness claim in conjunction with an assertion that the court
did not adequately consider a mitigating factor may present a substantial
question” (citation omitted)). Therefore, we will review Appellant’s claim.
Our well-settled standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgments for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In particular, the court should refer to the defendant’s
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prior criminal record, his age, personal characteristics and his
potential for rehabilitation. Where the sentencing court had the
benefit of a [PSI], we can assume the sentencing court was aware
of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors. Further, where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citations
and quotation marks omitted).
Here, at sentencing, the trial court heard testimony from Appellant,
Appellant’s family, and the complainant. See N.T. Sentencing Hr’g, 8/13/18,
at 5-39. The trial court also noted that it possessed a PSI report, which it
“very carefully reviewed” prior to the hearing. Id. at 40. Therefore, the
record demonstrates that the trial court was aware of relevant information
regarding Appellant’s character and considered those factors in fashioning
Appellant’s sentence. See Moury, 992 A.2d at 171. Under these
circumstances, Appellant has failed to establish that the trial court ignored or
misapplied the law, and we discern no abuse of discretion. See Raven, 97
A.3d at 1253. Therefore, Appellant is not entitled to relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/19
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