Com. v. Gardner, V. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
VICTOR A. GARDNER,
Appellant No. 201 WDA 2015
Appeal from the Judgment of Sentence Entered December 10, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004865-2014
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 05, 2016
Appellant, Victor A. Gardner, appeals from the judgment of sentence
of 5-10 years’ incarceration, imposed following his conviction for witness
intimidation. Appellant challenges the sufficiency of the evidence, the trial
court’s restricting the scope of defense counsel’s cross-examination of the
victim, the court’s refusal to give a ‘false in one, false in all’ jury instruction,
and the court’s discretion at sentencing. After careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
At trial, Pittsburgh Police Officer Brandon Flicker testified
that on October 16, 2013, he was dispatched on an unknown
trouble call to 5622 Jackson Street. He arrived at the address
simultaneously with Officer Snider. The downstairs neighbor let
in the officers and directed them upstairs to an entry door.
While en route, Officer Flicker received additional information
that the 911 [d]ispatcher could hear someone tell the female to
take her clothes off and the female saying no. After knocking for
approximately one minute, Carla Taylor opened the door. She
was crying, visibly distraught, and completely nude. The officers
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walked past Taylor toward the area to which Taylor pointed and
saw Appellant, also nude, coming out of a bedroom into a living
room area. Taylor and Appellant put on clothes and Officer
Flicker took Taylor to the front porch to interview her. Officer
Flicker testified that he could smell alcohol on Taylor’s breath,
but she was lucid in her statement and was able to speak fairly
normally with him. According to the [o]fficer, Taylor told him
that Appellant was preventing her from leaving the building, and
that she was afraid of him due to previous physical encounters.
She further told the officer that Appellant said he would kill her if
she tried to leave, and that Appellant then made her take off her
clothes. Once Appellant was arrested and [taken] off of the
property, Taylor gave a written statement of the incident.
Next, Carla Taylor testified under a grant of immunity and
with counsel appointed to represent her. She testified that on
October 15, 2013, she was home with her twelve[-]year[-]old
autistic son. Appellant returned to their shared residence from
attempting to purchase minutes on his cell phone. Appellant
was in an agitated state because he had bought the wrong type
of minutes and could not load them onto his phone. She
testified that they each drank a beer and she told him that she
was leaving to buy gasoline for her car, because she planned on
jitneying the next morning. Immediately thereafter, Appellant
said to Taylor, “Bitch, you’re not going nowhere [sic]. As a
matter of fact, take your fucking clothes off.” She did as she
was told because she was afraid he would become physically
violent with her, as he had in the past. Taylor tried to convince
Appellant to let her go to the bathroom, where she could
attempt to escape from him. Instead[,] Appellant forcefully
grabbed her neck and the back of her pants and escorted her
into the bathroom, thus making escape impossible. Taylor
testified that … she and Appellant returned to the bedroom
where they had sexual intercourse without her permission. The
assault ended when the police, whom Taylor had managed to
summon without Appellant’s knowledge, arrived at her door.
Taylor pushed Appellant off her and ran, naked[,] to the front
door. Taylor gave a verbal description to police of what had
happened and wrote a statement shortly thereafter. Taylor
wrote a second statement in January[,] 2014[,] taking blame for
the incident and absolving Appellant of any responsibility. Taylor
said she spoke with Appellant about what to put in the second
letter. Taylor testified that the letter was not truthful and that
she had lied to the [c]ourt to get Appellant out of jail.
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Taylor further testified that after Appellant was arrested
and taken to [the] Allegheny County Jail, he called [her] on “well
over twenty” [occasions]. Appellant told her that she needed to
change her statement to say she made it all up because she was
drunk and off her medication. Taylor testified that on October
30, 2013, she gave false testimony at the preliminary hearing at
Appellant’s instruction. Despite Taylor’s modified testimony, the
charges were held for court. After the hearing, Appellant called
Taylor again and said he was “going to have something done” to
her. He continued to threaten her, even after Taylor mentioned
telling the police about the t[h]reats.
Despite the conflict in their relationship and the assault in
question, Taylor bailed Appellant out of jail and permitted him to
return to her residence. Appellant continued to pressure Taylor
to change her story to keep him from going to jail.
Taylor testified that on February 19, 2014, she and
Appellant travelled together to Pittsburgh for a hearing, where
she would be called as a Commonwealth witness, and during the
walk from the parking lot to the courtroom, Appellant repeatedly
told Taylor to say that she had made the entire thing up.
On February 26, 2014, while Taylor was on the phone with
her in-home service caseworker, Appellant burst into the
apartment, ran up to her and angrily yelled at her. Taylor told
the caseworker to call the police because she was afraid that
Appellant would become physically violent with her.
Both the Commonwealth and counsel for Appellant played
numerous recordings of telephone conversations between
Appellant and Taylor while the former was incarcerated. In his
closing argument, the prosecutor argued that the numerous
times Appellant said that he controlled his women indicated that
Appellant’s ego would not permit sexual rejection by a woman.
The prosecutor also played tapes where Appellant told Taylor to
lie—to say that she was drunk, that she was off her meds,
anything to prevent Appellant from going to jail. Also, the
prosecutor played a tape where Appellant said to Taylor[:]
“You’re going to get yours,” to establish that Appellant
threatened her. In his defense, Appellant used portions of the
tapes to argue that Taylor was drunk, that she was off her meds,
and that Appellant merely encouraged her to speak truthfully.
While the portions of the tapes played at trial were not
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transcribed, this [c]ourt recalls the substance and nature of
these calls.
Trial Court Opinion (TCO), 10/28/15, at 3-6.
At CP-02-CR-0004865-2014, Appellant was charged with witness
intimidation, 18 Pa.C.S. § 4952, and terroristic threats, 18 Pa.C.S. § 2706.
By motion of the Commonwealth, that case was joined with various sexual
offenses charged at CP-02-CR-0015084-2013. A jury trial began on
September 8, 2014. Appellant was found guilty of witness intimidation, but
not guilty of all other counts in both cases. On December 10, 2014,
Appellant was sentenced to 5-10 years’ incarceration.
Appellant filed a timely post-sentence motion on December 19, 2014,
which was denied by the trial court on January 6, 2015. Appellant filed a
timely notice of appeal on February 4, 2015. He then filed a timely, court-
ordered Pa.R.A.P. 1925(b) statement on May 1, 2015. The trial court issued
its Rule 1925(a) opinion on October 28, 2015.
Appellant now presents the following questions for our review:
I. Was the evidence insufficient to sustain the conviction for
witness intimidation?
II. Did the trial court err in limiting [defense counsel]’s cross-
examination of … Taylor on her probation status at the
time of the preliminary hearing and her involvement with
CYF[1] when it should have been admissible for
impeachment purposes?
III. Did the trial court err in refusing to give the … “false in
one, false in all” jury [instruction]?
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1
Allegheny County Office of Children, Youth and Families.
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IV. Was the sentence imposed manifestly excessive,
unreasonable, and an abuse of discretion when the court
focused on an alleged comment that was never said by
[Appellant] (“Bitch, if you don’t make this go away, I’ll
fuck you up, I’ll kill you.”)[?]
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Appellant’s first claim challenges the sufficiency of the evidence. Our
standard of review of sufficiency claims is well-settled:
A claim challenging the sufficiency of the evidence is a question
of law. 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. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence 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) (internal
citations omitted).
The offense of witness intimidation is defined as follows:
(a) Offense defined.--A person commits an offense if, with the
intent to or with the knowledge that his conduct will obstruct,
impede, impair, prevent or interfere with the administration of
criminal justice, he intimidates or attempts to intimidate any
witness or victim to:
(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge
concerning any information, document or thing relating to
the commission of a crime.
(2) Give any false or misleading information or testimony
relating to the commission of any crime to any law
enforcement officer, prosecuting official or judge.
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(3) Withhold any testimony, information, document or
thing relating to the commission of a crime from any law
enforcement officer, prosecuting official or judge.
(4) Give any false or misleading information or testimony
or refrain from giving any testimony, information,
document or thing, relating to the commission of a crime,
to an attorney representing a criminal defendant.
(5) Elude, evade or ignore any request to appear or legal
process summoning him to appear to testify or supply
evidence.
(6) Absent himself from any proceeding or investigation to
which he has been legally summoned.
18 Pa.C.S. § 4952(a).
Appellant asserts that none of the recorded conversations played by
the Commonwealth demonstrated intimidation or an attempt to intimidate.
Appellant further alleges that Taylor only claimed to have been intimidated,
several months after the fact, when she began to suspect that Appellant had
stolen her money. Appellant’s Brief at 19. Appellant contends that “[t]here
is nothing in the instant case other than a question of [Appellant’s] telling …
Taylor to tell the truth, while … Taylor, an admitted liar, had a motive of
revenge and needed to get out of her own troubles.” Id. at 25. To support
this argument, Appellant cites to the jail telephone recordings between
Appellant and Taylor, played by the Commonwealth and the defense during
Appellant’s trial. Id. at 20-24. Essentially, Appellant argues that these
recordings failed to demonstrate intimidation, and instead showed that
Appellant encouraged Taylor to tell the truth.
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Initially, we note that Appellant’s argument appears to sidestep our
standard of review at times, which requires this Court to view the recordings
in a light most favorable to the Commonwealth. Thus, to some extent, we
agree with the Commonwealth’s observation that Appellant’s claim tends to
“attack the weight, rather than the sufficiency, of the evidence.”
Commonwealth’s Brief at 10.
Nevertheless, regardless of the content of the recordings and the
various interpretations that might be applied to them, Taylor’s testimony
was itself sufficient to establish Appellant’s commission of the offense.
Taylor testified, without objection, to her general fear of Appellant, due to
his prior physical abuse of her and his repeated threats. N.T., 9/10/14-
9/16/14, at 77-78 (hereinafter, “NT”).2 She stated that between October 16
and 31 of 2013, Appellant called her from jail “well over 20 times.” Id. at
91. Summarizing those conversations, Taylor attested to the following:
Q. During those conversations[,] what occurred?
A. Well, when [Appellant] first went in [to jail], [he] pretty
much blamed me, blamed me for him being in jail; and I don’t
know what - - I started blaming myself; but I know what
happened is the truth; and th[at] I have a kind heart. I did
start, you know, feeling bad from the way he was talking to me
and yelling at me, things he was saying.
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2
We are compelled to note our displeasure with the form of the transcript
produced in this case. Contrary to what this Court has come to expect from
court reporters across the Commonwealth, including those from Allegheny
County, the transcript of Appellant’s trial lacks a table of contents, and
index, and/or page headings indicating which witness is testifying.
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He basically told me he has a rap sheet, and he could be
facing a lot of time; and he told me to come to the preliminary
hearing and switch everything up, told me - - told me, tell them
I’m on medication, and that I wasn’t on my meds, and say that I
was drunk, and I made everything up on the statement and [on]
the day he was arrested that I made it up.
I honestly thought at the time, when he told me to do
that, when I went to the preliminary [hearing], at the time I was
really thinking, if I do that for him that things would go away or
things would get better; or I just was mixed with a lot of
emotions at that time. He had me really feeling bad; and I told -
- I told them what he told me to say at the preliminary
[hearing], what to say.
Id. at 91-92 (emphasis added).
Taylor then admitted that she lied at the preliminary hearing. Id. at
93. Nevertheless, the charges were still held over for trial. Subsequently,
Taylor testified that on October 31, 2013, she had another conversation with
Appellant over the phone, regarding which she recalled the following:
He was mad at me. He said I fucked up. I didn’t say nothing
that he told me to say. He said I fucked up, and he was going to
have something done to me; and I said, I did what you told me
to say; and I could have got myself in trouble to protect him,
and lie for him; and he was just talking very mean to me, and
said I fucked up. I didn’t say at all what he wanted me to say;
and he threatened me; and I said, you know I can tell the police
that you called and threatened me; and he didn’t care.
Id. at 94 (emphasis added).
Despite these threats, Taylor hoped Appellant “was going to change,
and [she] believed him.” Id. at 95. With those hopes in hand, she bailed
Appellant out of jail. Id. She even allowed him to return to her home. Id.
Taylor testified that, when he returned to her home, Appellant continued to
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tell her to “change the story” about the events of October 16, 2013. Id. at
96. She said:
[He] would go over and over what I was supposed to say, just to
go over what I’m supposed to say at the court hearing. Then I
cut - - only thing I was concerned about, I knew I was lying for
him. I was afraid I was going to go to jail or lose my son.
Id.
We conclude that Taylor’s testimony, independent of the content of the
jail telephone recordings, was itself sufficient to prove that Appellant
intimidated and/or attempted to intimidate Taylor. This was adequately
established through Taylor’s testimony regarding Appellant’s purported
threat to “have something done” to her, and her testimony that “he
threatened me.” Id. at 94. This is particularly true in the context of
Taylor’s testimony regarding Appellant’s prior threats and physical abuse of
her. See Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015)
(recognizing that Doughty’s prior history of “threatening behavior toward his
wife” helped to inform whether he had threatened her for purposes of the
witness intimidation statute).
Taylor’s testimony was also sufficient to show that Appellant’s
intimidation was directed at coercing Taylor to provide false or misleading
testimony. Specifically, we find the evidence sufficient to show Sections
4952(a)(1)-(4) were satisfied through the following portions of Taylor’s
testimony: that she “started blaming [her]self; but [she] kn[e]w what
happened [was] the truth[,]” NT at 91; that she “did what [Appellant] told
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[her] to say; and [she] could have got [her]self in trouble to protect him,
and lie for him[,]” id. at 94; and that she “knew [she] was lying for him[,]”
id. at 96.
To the extent that the jail telephone recordings tended to cast doubt
on Taylor’s testimony, that is an issue of credibility reserved for the
factfinder. Viewed in a light most favorable to the Commonwealth, we must
assume that the jury believed Taylor’s testimony, and that the recordings
did not undermine the fundamental assertion she made regarding
Appellant’s repeated (and sometimes successful) attempts to intimidate her
into lying on his behalf. The jury could have also believed, to the extent that
Taylor’s conduct or words on certain occasions contradicted that
fundamental assertion, that her behavior was the product of her misguided
attempt to salvage her relationship with Appellant.
Finally, Appellant cites to several cases wherein the charge of witness
intimidation was sustained upon arguably stronger evidence. See
Commonwealth v. Colington, 615 A.2d 769 (Pa. Super. 1992);
Commonwealth v. Ritter, 615 A.2d 442 (Pa. Super. 1992); and
Commonwealth v. Young, 468 A.2d 1127 (Pa. Super. 1983). However,
those cases do not establish, nor do they purport to establish, a minimum
level of evidence necessary to sustain a conviction. Indeed, in Doughty,
our Supreme Court sustained a witness intimidation conviction under a
sufficiency challenge with evidence of arguably less strength than that
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involved in the instant case. Accordingly, we conclude that Appellant’s first
claim lacks merit.
Next, Appellant claims that he was denied the opportunity to cross-
examine Taylor on her probation status, which “should have been admissible
for impeachment purposes to show that she had an interest or bias in favor
of the Commonwealth” by testifying against Appellant. Appellant’s Brief at
26 (unnecessary capitalization omitted). The Commonwealth claims this
issue is waived.
Addressing waiver, we note that Appellant directs our attention to the
Commonwealth’s objection on page 140 of the transcript. In context,
defense counsel was cross-examining Taylor regarding her level or degree of
intoxication on October 16, 2013. Defense counsel first solicited from Taylor
that she had been drinking that evening. NT at 139. Defense counsel then
asked if she had been on probation at the time of her preliminary hearing,
referencing something Taylor had said on one of the recorded phone calls.
Id. No objection was made by the Commonwealth to this question. Id. at
139-140. Taylor responded, “[a]t the preliminary hearing I was on
probation. I don’t remember talking about it on the phone. I might have.”
Id. at 140. She then stated, regarding that phone call, that she “was talking
about CYF … and my son.” Id. Then the following exchange occurred:
[Defense Counsel]. And CYF was involved in because police
showed up at your house in January of that year, before this?
[Prosecutor]: Objection, Your Honor, relevancy.
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[Defense Counsel]: Your Honor, [it] goes to her drinking
and what the police observed at the scene.
THE COURT: Her drinking on any other occasion other
than the night in question is not relevant.
Id. Defense counsel offered no further argument regarding the
Commonwealth’s objection.
There is no indication in the record that, at the time of Appellant’s
objection, the line of questioning being pursued was directed at impeaching
Taylor based on her probation status, as Appellant now claims on appeal.
Instead, defense counsel indicated that he intended to explore Taylor’s
“drinking” and “what the police observed at the scene.” Id. Indeed, the
Commonwealth did not object, just moments earlier, when defense counsel
asked Taylor directly if she had been on probation. Accordingly, we
conclude that this claim has been waived, as Appellant did not raise it in
opposition to the Commonwealth’s objection at trial. “Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a).
Next, Appellant claims that the trial court erred when it refused to give
a ‘false in one, false in all’ jury instruction. Although the Commonwealth
concedes that Appellant requested such an instruction, it argues that
Appellant has waived this claim. The Commonwealth asserts that Appellant
waived this claim by failing to object to the standard instructions being given
to the jury. We disagree.
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The record demonstrates that during a sidebar conference at which
jury instructions were discussed, Appellant requested the ‘false in one, false
in all’ instruction. NT at 197. The trial court quickly refused to read it,
stating, “I don’t give that charge[,]” citing this Court’s general disapproval of
the charge, and asserting that the standard jury instructions adequately
address the pertinent instructions of the charge. Id. at 197-98. Appellant
then later renewed his request just as the Court was about to issue its final
instructions to the jury, as required by Pa.R.Crim.P. 647(C) (“No portions of
the charge nor omissions from the charge may be assigned as error, unless
specific objections are made thereto before the jury retires to deliberate.”).
Id. at 245.
Although the Commonwealth attempts to demonstrate that defense
counsel failed to object to the standard jury instructions, NT at 198-99, the
Commonwealth misreads the record. It is clear that defense counsel simply
summarized the ruling of the court with regard to which instructions it
intended to read, without abandoning Appellant’s claim when he stated,
“[w]e’re not going to do false in one, false in all.” NT at 199. There is
nothing in the record which supports the Commonwealth’s claim that
defense counsel “agreed with the trial court’s decision that the instruction
was not appropriate and would not be given.” Commonwealth’s Brief at 17.3
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3
We note our strong disapproval of the following statement made by the
Commonwealth in its brief: “When specifically asked if there was any
(Footnote Continued Next Page)
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Defense counsel only agreed that the court had decided that the instruction
would not be given. According, we do not agree that Appellant has waived
his claim on the basis set forth by the Commonwealth.
In reviewing a challenge to the trial court's refusal to give a
specific jury instruction, it is the function of this Court to
determine whether the record supports the trial court's decision.
In examining the propriety of the instructions a trial court
presents to a jury, our scope of review is to determine whether
the trial court committed a clear abuse of discretion or an error
of law which controlled the outcome of the case. A jury charge
will be deemed erroneous only if the charge as a whole is
inadequate, not clear or has a tendency to mislead or confuse,
rather than clarify, a material issue. A charge is considered
adequate unless the jury was palpably misled by what the trial
judge said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the parties
and its refusal to give a requested charge does not require
reversal unless the Appellant was prejudiced by that refusal.
_______________________
(Footnote Continued)
objection to the court simply using the standard instructions, defense
counsel replied ‘no.’ ([citing to NT at 199])”. Commonwealth’s Brief at 17.
This blatantly misconstrues the record. Nowhere on page 199 of the
transcript, or in close proximity thereto, does the court suggest using the
standard instructions exclusively, nor did defense counsel ever respond in
that manner. The trial court stated, “Okay. So everybody has reviewed the
Charge? There is no objections to the Standard Charges; and then the
additional Charges that [defense counsel] proposed will, also, be given.” NT
at 198. Defense counsel then summarized the court’s ruling as follows:
“Yes, which is just conflicting testimony, impeachment, and that’s it. We’re
not going to do false in one, false in all.” NT at 199. The Commonwealth’s
attempt to construe defense counsel’s truthful summary of the Court’s ruling
as an abandonment of Appellant’s jury charge claim, particularly by falsely
attributing to defense counsel something that he clearly did not say, is
entirely improper.
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Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)
(quoting Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super.
2006)).
“False in one, false in all” is a concept for assessing the
weight of evidence. The maxim is simply a translation of the
Latin phrase “falsus in uno, falsus in omnibus.” It currently
means that a jury may disregard the testimony of a witness if
the jury believes that witness deliberately, or willfully and
corruptly, testified falsely about a material issue. The standard
jury charge reads:
If you decide that a witness deliberately testified falsely
about a material point [that is, about a matter that could
affect the outcome of this trial,] you may for that reason
alone choose to disbelieve the rest of his or her testimony.
But you are not required to do so. You should consider not
only the deliberate falsehood but also all other factors
bearing on the witness's credibility in deciding whether to
believe other parts of [his][her] testimony.
Pennsylvania Suggested Standard Jury Instruction (Crim) 4.15.
Commonwealth v. Vicens-Rodriguez, 911 A.2d 116, 117–18 (Pa. Super.
2006) (italics added, footnote omitted).
In Vicens-Rodriguez, this Court further stated:
It is true that the “false in one, false in all” charge is a proper
statement of the law, and there is no harm if that charge is
given. However, we do hold that when a full and complete
charge is given on credibility, … there is no error in failing to give
the specific charge.
Id. at 120.
Under this authority, it is effectively the rule of this Commonwealth
that the failure to give a ‘false in one, false in all’ jury instruction can only
provide a basis for relief on appeal if the jury charge actually given is
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inadequate to instruct the jury on pertinent credibility issues. In his brief,
Appellant adequately sets forth the factual basis for giving the ‘false in one,
false in all’ charge, namely, Taylor’s demonstrated inconsistency in veracity
during the course of Appellant’s prosecution for the events of October 16,
2013 and their aftermath. From these inconsistencies, Appellant concludes
that
had the jury been given this special instruction, it might well
have concluded that … Taylor’s testimony was mostly, if not
completely, false. As such, the [trial c]ourt should have
instructed the jury that they were allowed to wholly disbelieve
her. But since this instruction was not given, the jury may have
misunderstood what it may or may not have been allowed to do.
Appellant’s Brief at 32.
However, as the holding in Vicens-Rodriguez makes clear, to be
entitled to relief, Appellant must demonstrate more than just the
applicability of the ‘false in one, false in all’ instruction to the facts of the
case. Under that authority, Appellant must also establish the inadequacy of
the jury instructions actually given on matters addressed by the ‘false in
one, false in all’ instruction. In this regard, Appellant’s brief contains no
discussion whatsoever of the jury instructions actually given, and/or their
inadequacy in relation to the proposed instruction. As such, we are
compelled to conclude that Appellant cannot demonstrate reversible error
and, therefore, that his third claim lacks merit.
Finally, Appellant presents a challenge to his sentence of 5-10 years’
incarceration for his single conviction for witness intimidation. Appellant
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argues that this sentence was manifestly unreasonable, excessive, and an
abuse of the court’s discretion.
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 judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)
(citation omitted).
However,
[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to review as of right. Commonwealth
v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). Objections to the discretionary
aspects of a sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
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Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
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.” Sierra, supra at 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Thus, we must first assess whether Appellant presents a substantial
question for our review. We note that Appellant filed a timely notice of
appeal, and he has complied with Pa.R.A.P. 2119(f). We have also reviewed
Appellant’s post-sentence motion, which we conclude adequately preserved
the sentencing claim(s) he now presents on appeal.
As to whether he presents a substantial question for our review, we
note that Appellant’s claim is two-fold. First, he asserts that the sentencing
court improperly considered a specific statement attributed to Appellant.
“[A] claim that the sentence is excessive because the trial court relied on
impermissible factors raises a substantial question.” Commonwealth v.
Simpson, 829 A.2d 334, 338 (Pa. Super. 2003). Second, he argues that
the court did not state sufficient reason on the record for his sentence,
because the court relied “almost exclusively” on the severity of the offense,
rather than on the other statutorily required factors set forth in 42 Pa.C.S. §
9721(b). This also presents a substantial question for our review. See
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Simpson, 829 A.2d at 338. (holding that the appellant’s claim that “the
trial court failed to sufficiently state its reasons for the sentence imposed”
raised a substantial question); Commonwealth v. Fullin, 892 A.2d 843,
847 (Pa. Super. 2006) (holding the argument that “the trial court failed to
consider the factors set forth in 42 Pa.C.S.[] § 9721(b)” presented a
substantial question for our review).
First, Appellant claims it was improper for the sentencing court to
consider a statement attributed to him in the pre-sentence report.
Specifically, the court stated: “The statements that we all heard you make,
including the one in the presentence report, ‘Bitch, if you don’t make this go
away, I’ll fuck you up, I’ll kill you,’ [are] disturbing at a minimum.” N.T.,
12/10/14, at 10. Appellant argues that “[g]iven that this statement was the
crux of their case, and no such recording was played at trial, nor did the
[Commonwealth] elicit that statement from … Taylor,” circumstances
suggest that “this statement was never made by [Appellant].” Appellant’s
Brief at 37.
“Our Supreme Court has determined that where the trial court is
informed by a pre-sentence report, it is presumed that the court is aware of
all appropriate sentencing factors and considerations, and that where the
court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009).
Moreover, this Court has held that when a defendant fails to dispute the
contents of a pre-sentence report at sentencing, he “waive[s]
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his right to put the Commonwealth to further proof.” Commonwealth v.
Smith, 378 A.2d 1278, 1281 (Pa. Super. 1977).
Here, Appellant did object to certain aspects of his pre-sentence
report. See N.T., 12/10/14, at 2-3. When asked if he had any objections to
the pre-sentence report, defense counsel stated at follows:
There w[ere] some minor discrepancies, but nothing of major
importance. I believe that his date of birth was off by just a
couple days. There was information that he did not relate to the
interviewer concerning his upbringing and abuse that he had
witnesse[d] that occurred to his mother at the hands of several
of her boyfriends at the time. He wasn’t sure how much he had
to get into or what the interviewer wanted from him. But other
than that, everything appears to be correct.
Id. (emphasis added). However, it is clear that Appellant did not object to
the statement at issue. Additionally, Appellant did not object when the
sentencing court recited the at-issue statement from the pre-sentence
report, id. at 10, nor at the close of the court’s comments, id. at 12. Thus,
we conclude that Appellant waived this aspect of his claim.
In any event, had Appellant not waived the claim, we would conclude
that it is meritless. As noted above, Taylor testified at trial that Appellant
made substantially similar comments to her over the phone. For instance,
she testified as follows:
He said I fucked up. I didn’t say nothing that he told me to say.
He said I fucked up, and he was going to have something done
to me; and I said, I did what you told me to say; and I could
have got myself in trouble to protect him, and lie for him; and he
was just talking very mean to me, and said I fucked up. I didn’t
say at all what he wanted me to say; and he threatened me[.]
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NT at 94.
In our view, the statement quoted by the sentencing court from the
pre-sentence report is substantially the same in content as conveyed by
Taylor’s own testimony. Thus, even if it were improperly included in the
pre-sentence report, we do not believe the at-issue statement could have
significantly affected the sentencing court’s discretion in imposing
Appellant’s sentence.
Appellant also contends that the sentencing court impermissibly
focused on the gravity of the crime, at the expense of the other statutorily-
mandated factors set forth in 42 Pa.C.S. § 9721(b) (stating that “the court
shall follow the general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity
of the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant”).
As noted above, the sentencing court’s consideration of the pre-
sentence report creates a presumption that the court considered “all
appropriate sentencing factors and considerations[.]” Ventura, 975 A.2d at
1135; see also Commonwealth v. Fowler, 893 A.2d 758, 766–67 (Pa.
Super. 2006) (“In imposing sentence, the trial court is required to consider
the particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant's prior criminal
record, age, personal characteristics, and potential for rehabilitation.
However, where the sentencing judge had the benefit of a presentence
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investigation report, it will be presumed that he or she was aware of the
relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors. Additionally, the
sentencing court must state its reasons for the sentence on the record. The
sentencing judge can satisfy the requirement that reasons for imposing
sentence be placed on the record by indicating that he or she has been
informed by the pre-sentencing report; thus properly considering and
weighing all relevant factors.”) (citations omitted).
Here, the sentencing court clearly had the benefit of a pre-sentence
report, and must be afforded the attendant presumption. Thus, we must
assume that the sentencing court considered Appellant’s rehabilitative
needs, the impact of his offense on the victim and the community, and the
protection of the public, in addition to the gravity of the offense. Moreover,
the court sentenced Appellant within the standard range of the sentencing
guidelines for his offense. Appellant’s sentence of 5-10 years’ incarceration
is not, therefore, patently excessive or unreasonable, despite also being the
statutory maximum penalty for a second degree felony. It is the minimum
recommended standard range sentence for a defendant with repeat-felon
status under the guidelines. Thus, Appellant’s own lengthy criminal record,
dating back to 1983, is the primary (but not exclusive) cause for his lengthy
sentence, not the gravity of the current offense. That criminal history
included a relatively recent conviction for drug-related offenses in 2012, for
which Appellant was paroled in May of 2013, just five months prior to his
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arrest in this case. That fact alone suggests that consideration of Appellant’s
rehabilitative needs should not overshadow the gravity of his offense, as
past criminal penalties imposed on him have obviously been insufficient to
deter his propensity to commit criminal conduct. And, while Appellant’s
previous offenses were mostly “theft-related charges that he received in the
midst of a drug addiction issue[,]” id. at 5, his current offense struck at a
core function of the judicial system, which must remain a safe harbor for
victims of crimes to come forward in the pursuit of justice. This
demonstrates that Appellant’s crimes are escalating in gravity, giving
necessary context to the otherwise apparent harshness of his sentence in
this case. For all the aforementioned reasons, we conclude that the
sentencing court did not abuse its discretion in imposing Appellant’s 5-10
year sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2016
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