Com. v. Mingo, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MICHAEL MINGO :
:
Appellant : No. 2992 EDA 2019
Appeal from the Judgment of Sentence Entered July 31, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008131-2017
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED JANUARY 14, 2021
Appellant, Michael Mingo, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his bench trial convictions for criminal mischief, criminal conspiracy,
possessing instruments of crime (“PIC”), terroristic threats, and recklessly
endangering another person (“REAP”).1 We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
On August 21, 2017, at approximately 11:00 a.m., George
Brooks took his car for a test drive around the 4700 block
of Mulberry and Foulkrod Streets in Philadelphia,
Pennsylvania, where he resided. While returning home from
the test drive, Mr. Brooks observed both [Appellant] and Mr.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3304(a)(5), 903, 907, 2706(a)(1), and 2705, respectively.
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Brooks’ neighbor living across the street, Co-Defendant Jose
Ortiz-DeJesus. Co-Defendant shouted for Mr. Brooks to
move his “motherfucking truck,” which was parked
approximately “fifty feet” from Co-Defendant’s home. Then,
[Appellant] and Co-Defendant ran up to the driver-side door
of Mr. Brooks’ car and Mr. Brooks exited his vehicle.
Mr. Brooks testified that [Appellant] subsequently pointed a
firearm towards Mr. Brooks and stated: “I’m from Brooklyn,”
and “Motherfucker, don’t move.” Mr. Brooks described the
firearm as a “black,” “handgun,” “pistol” that “looked like an
automatic.” Next, Mr. Brooks removed “a samurai set of
knives” from the trunk of his car. [Appellant] then told Mr.
Brooks that he and Co-Defendant were going to “fuck [Mr.
Brooks] up.”
Shortly thereafter, scuffling occurred between Mr. Brooks,
Co-Defendant and Mariana DeJesus, Co-Defendant’s mother
and [Appellant’s] godmother. Subsequently, Mr. Brooks
attempted to enter his home. However, [Appellant] broke
the windows and mirrors of Mr. Brooks’ car with a golf club,
pulled off Mr. Brooks’ car mirror, and attempted to hit Mr.
Brooks with the golf club. Mr. Brooks testified that he tried
to “fend off” [Appellant], but that [Appellant] started
swinging the doors of Mr. Brooks’ car in order to bend the
doors out of shape and break the doors’ hinges. Next,
[Appellant] removed a container from the trunk of Mr.
Brooks’ car and threw its contents onto the porch of Mr.
Brooks’ home. At that point, Mr. Brooks was able to safely
enter his home and lock his security door. However,
[Appellant] subsequently broke Mr. Brooks’ security door
with the golf club. Mr. Brooks told his wife to call the police.
Katrina Ethridge testified that she observed, from the porch
of her home, [Appellant]: “beating [Mr. Brooks’] car up”
with a golf club; “throwing up hand signs”; and verbally
threatening to “F [Mr. Brooks] up.” In addition, Ms. Ethridge
testified that she observed [Appellant] move his shirt to
reveal that he had a firearm tucked in his waistband, and
later pass that firearm to Co-Defendant. Ms. Ethridge
testified that she knew the object she observed was a
firearm because she saw the firearm’s “black handle.”
According to Ms. Ethridge, Co-Defendant was no longer at
the scene of the subject altercation when police arrived.
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Police Officer Stephen Burgoon testified that he and his
partner received a radio call for “a person with a gun on the
4700 block of Mulberry and Foulkrod.” Upon arriving at the
scene, Officer Burgoon observed a “green Chevrolet Malibu”
with all of its windows broken out, a large crowd, and
[Appellant] and Mr. Brooks arguing. Officer Burgoon and
his partner separated [Appellant] and Mr. Brooks.
Thereafter, Officer Burgoon learned from Mr. Brooks that
[Appellant] had a “black handgun” and “broke the windows
out of [Mr. Brooks’] car and [] house.” Officer Burgoon
subsequently arrested [Appellant]. No firearm was
recovered from [Appellant].
As a result of Appellant’s conduct, Mr. Brooks testified that:
the driver side door of his car was broken; his car’s rear
window was broken; his car mirrors were broken; the
security door of his home was broken; and the porch of his
home was covered in contents from a container. Mr. Brooks
further testified that it cost him approximately “six or seven
hundred” dollars to repair the damage to his car, and that
his security door still had not been replaced.
(Trial Court Opinion, filed January 14, 2020, at 2-4) (internal record citations
omitted).
Following a bench trial, the court convicted Appellant of criminal
mischief, conspiracy, PIC, terroristic threats, and REAP. On July 31, 2018, the
court sentenced Appellant to an aggregate term of eleven and one-half (11½)
to twenty-three (23) months’ incarceration, followed by three (3) years of
probation. The court also ordered restitution in the amount of $2,000.00.
Appellant timely filed a post-sentence motion on August 9, 2018. In it,
Appellant claimed “the Commonwealth presented no evidence to substantiate
its claim for restitution beyond $1000.” (Post-Sentence Motion, filed 8/9/18,
at ¶4). The court denied the motion on August 14, 2018, and Appellant did
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not seek further review with this Court.
On December 13, 2018, Appellant timely filed a pro se petition under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The
court appointed current counsel, who filed an amended petition on July 12,
2019. On October 4, 2019, the court granted PCRA relief, reinstating
Appellant’s direct appeal rights nunc pro tunc.
Appellant timely filed a notice of appeal nunc pro tunc on October 16,
2019. On October 22, 2019, the court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Appellant
timely complied on November 8, 2018.
Appellant now raises two issues for this Court’s review:
Whether the verdict was contrary to law as based on
insufficient evidence.
Whether the [trial] court erred in awarding restitution.
(Appellant’s Brief at 8).
In his first issue, Appellant contends the guilty verdicts are based upon
the testimony from Mr. Brooks and Ms. Ethridge. Appellant emphasizes that
Mr. Brooks is “a man convicted of making false statements,” and Ms. Ethridge
is “an elderly woman who allegedly saw the incident from a significant distance
away.” (Id. at 17-18). Appellant also claims that Mr. Brooks “had a complex
and tense prior relationship” with the parties involved in the dispute, which
gave him a “motive to escalate that conflict into the legal matter at hand.”
(Id. at 18). Appellant relies on Commonwealth v. Bennett, 303 A.2d 220-4-
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(Pa.Super. 1973), for the proposition that such weak and inconsistent
testimony was not sufficient to sustain the guilty verdicts.
Further, regarding the conviction for PIC, Appellant argues the
Commonwealth failed to recover a firearm. Appellant acknowledges Ms.
Ethridge’s testimony that she saw Appellant pass a gun to Mr. DeJesus, but
cites other portions of testimony where Ms. Etheridge merely referred to a
“black item” in Appellant’s pants. Appellant posits that a “black item” could
have been “a wallet or any number of objects, not necessarily a gun.” (Id. at
20). Based upon the foregoing, Appellant concludes the Commonwealth
presented insufficient evidence to support his convictions.2 We disagree.
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2 Appellant raises additional, discrete arguments related to the sufficiency of
the evidence for each of his convictions. (See Appellant’s Brief at 18-22).
Appellant’s Rule 1925(b) statement, however, only preserved the following
arguments:
The Commonwealth failed to recover or present as evidence,
a firearm. Additionally, the testimony of the
Commonwealth’s witnesses [was] not worthy of belief. The
complaining witness … was not credible due to a previous
conviction for making false statements. Moreover, Mr.
Brooks testified that [Appellant] threatened him with a
firearm, despite there being no physical evidence of one.
Additionally, there was a history of animosity between Mr.
Ortiz-DeJesus (co-defendant) and Mr. Brooks providing Mr.
Brooks with an ulterior motive.
(Rule 1925(b) Statement, filed 11/8/19, at ¶2) (internal record citations
omitted). Consequently, we limit our review to those arguments preserved in
the Rule 1925(b) statement. See Commonwealth v. Hill, 609 Pa. 410, 417,
16 A.3d 484, 488 (2011) (reiterating that any appellate issues not raised in
Rule 1925(b) statement will be deemed waived); Commonwealth v.
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Our standard of review for sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).
“As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record 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. Rahman, 75 A.3d 497, 500
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Garland, 63 A.3d 339, 344 (Pa.Super. 2013) (explaining Rule 1925(b)
statement must state with specificity element or elements upon which
appellant alleges that evidence was insufficient).
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(Pa.Super. 2013) (quoting Commonwealth v. Pettyjohn, 64 A.3d 1072,
1074 (Pa.Super. 2013)).
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such
volume and quality as to overcome the presumption of
innocence and satisfy the [factfinder] of an accused’s guilt
beyond a reasonable doubt. The trier of fact cannot base a
conviction on conjecture and speculation and a verdict which
is premised on suspicion will fail even under the limited
scrutiny of appellate review.
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.Super. 2014) (quoting
Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)).
Section 3304 of the Crimes Code defines criminal mischief, in relevant
part, as follows:
§ 3304. Criminal mischief
(a) Offense defined.—A person is guilty of criminal
mischief if he:
* * *
(5) intentionally damages real or personal
property of another[.]
18 Pa.C.S.A. § 3304(a)(5).
Section 903 of the Crimes Code defines criminal conspiracy as follows:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.—A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that
they or one or more of them will engage in conduct which
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constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in
the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
18 Pa.C.S.A. § 903(a)(1), (2). “To sustain a conviction for criminal conspiracy,
the Commonwealth must establish that the defendant (1) entered into an
agreement to commit or aid in an unlawful act with another person or persons,
(2) with a shared criminal intent and (3) an overt act was done in furtherance
of the conspiracy.” Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa.Super.
2014).
Section 907 of the Crimes Code defines PIC as follows:
§ 907. Possessing instruments of crime
(a) Criminal instruments generally.—A person
commits a misdemeanor of the first degree if he possesses
any instrument of crime with intent to employ it criminally.
18 Pa.C.S.A. § 907(a). Further, a witness’s testimony alone can establish a
defendant’s possession of a firearm. See Commonwealth v. Antidormi, 84
A.3d 736, 757 (Pa.Super. 2014), appeal denied, 626 Pa. 681, 95 A.3d 275(2014).
Section 2706 of the Crimes Code defines terroristic threats, in relevant
part, as follows:
§ 2706. Terroristic threats
(a) Offense defined.—A person commits the crime of
terroristic threats if the person communicates, either
directly or indirectly, a threat to:
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(1) commit any crime of violence with intent to
terrorize another[.]
* * *
18 Pa.C.S.A. § 2706(a)(1). “[N]either the ability to carry out the threat nor
a belief by the person threatened that it will be carried out is an essential
element of the crime.” Commonwealth v. Fenton, 750 A.2d 863, 865
(Pa.Super. 2000) (internal citation and quotation marks omitted).
Section 2705 of the Crimes Code defines REAP as follows:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if
he recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury.
18 Pa.C.S.A. § 2705.
Thus, the crime requires (1) a mens rea of recklessness, (2)
an actus reus [of] some “conduct,” (3) causation “which
places,” and (4) the achievement of a particular result
“danger,” to another person, of death or serious bodily
injury.
Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.Super. 2003) (quoting
Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa.Super. 1978)).
Instantly, the trial court found the Commonwealth’s witnesses were
credible.
[The trial c]ourt found the Commonwealth’s witnesses to be
credible and the Defense witnesses to not be credible.
Mariana DeJesus was [found not] credible because of her
close relationship with [Appellant], as his godmother; and
because of her own involvement in the subject altercation.8
In contrast to Mariana DeJesus, [the trial c]ourt found Mr.
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Brooks credible because Mr. Brooks’ testimony was
supported by photos depicting the damage Mr. Brooks
described, multiple 9-1-1 calls from different sources, and
the testimony of Ms. Ethridge and Police Officer Burgoon.9
8 On April 18, 2019, Mariana DeJesus pled guilty to
hitting Mr. Brooks with a rake during the subject
altercation between Mr. Brooks, [Appellant], and
Mariana DeJesus’ son, Co-Defendant Jose Ortiz-
DeJesus.
9 Due to the aforementioned reasons, [the trial c]ourt
found Mr. Brooks’ testimony to be credible even
despite Mr. Brooks’ previous conviction for making
false statements and his history of animosity with the
co-defendant, as raised by [Appellant].
(See Trial Court Opinion at 7-8) (internal record citation omitted). In light of
the applicable standard of review as well as our review of the record,3 we are
not inclined to reweigh the evidence or otherwise substitute our judgment for
that of the trial court. See Tucker, supra.
Moreover, the record confirms that the verdicts were not based upon
conjecture and speculation due to weak or inconsistent testimony. See
Kearney, supra. Mr. Brooks and Ms. Ethridge both described a chaotic scene
where Appellant and his co-defendant threatened Mr. Brooks and destroyed
his property. Additionally, Mr. Brooks and Ms. Ethridge both testified that
Appellant possessed a firearm. (See N.T. Trial, 5/29/18, at 15-16, 51, 58).
Such testimony established Appellant’s possession of the firearm, regardless
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3 The record on appeal included the photos of the crime scene, which depict
the damage to Mr. Brooks’ automobile and security door. (See
Commonwealth’s Trial Exhibits 2-9).
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of whether police recovered the weapon from his person. See Antidormi,
supra. Because the witnesses’ testimony was unequivocal and consistent,
Appellant is not entitled to relief on his first issue. See Tucker, supra;
Kearney, supra.In his second issue, Appellant argues “[t]he sentencing court erred in
ordering Appellant to pay $2,000.00 in restitution because there was no
factual basis in the record to support the ordered number.” (Appellant’s Brief
at 23). Appellant concludes his “sentence is excessive and speculative for
providing no evidentiary basis for the actions, and therefore illegal.” 4 (Id. at
24). As presented, Appellant’s challenge implicates the discretionary aspects
of sentencing. See Commonwealth v. Weir, ___ Pa. ___, 239 A.3d 25(2020) (explaining that argument that restitution was not supported by record
implicates discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct a four part analysis to determine: (1) whether
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4 Appellant also baldly asserts “no record was ever made regarding [his]
financial situation and ability to pay.” (Appellant’s Brief at 24). Nevertheless,
“restitution in a criminal case is mandatory and the defendant’s ability to pay
is irrelevant unless and until he defaults on the restitution order.”
Commonwealth v. Leber, 802 A.2d 648, 652 (Pa.Super. 2002).
Consequently, the court was not obligated to inquire into Appellant’s ability to
pay when it entered the sentencing order.
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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).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by, inter alia, including a
separate concise statement demonstrating that there is a substantial question
as to the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617, 621-22
(2002); Pa.R.A.P. 2119(f). “If the Commonwealth objects to the appellant’s
failure to comply with Pa.R.A.P. 2119(f), the sentencing claim is waived for
purposes of review.” Commonwealth v. Griffin, 149 A.3d 349, 353
(Pa.Super. 2016), affirmed, ___ Pa. ___, 207 A.3d 827 (2019).
Instantly, Appellant’s brief fails to set forth a separate concise statement
demonstrating that there is a substantial question, pursuant to Rule 2119(f).
The Commonwealth has objected to this deficiency. (See Commonwealth’s
Brief at 10). Thus, Appellant’s second issue is waived. See Griffin, supra.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2021
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