Com. v. Scott, T. ( 2020 )

J-S16045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY SCOTT, :
:
Appellant : No. 797 EDA 2019
Appeal from the Judgment of Sentence Entered January 31, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005240-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 26, 2020
Terry Scott (“Scott”) appeals from the judgment of sentence imposed
following his conviction of aggravated assault, simple assault, recklessly
endangering another person (“REAP”), and possession of an instrument of
crime (“PIC”).1 We affirm.
In its Opinion, the trial court set forth the relevant factual history as
follows:
On June 30, 2018, at about 11:30 p.m., [] Don Doyle
[(“Doyle”)] … was inside a park situated on the 900 block of North
8th Street in Philadelphia drinking beer. [Scott], who[m Doyle]
had known for three or four months by the name “T”, was also
present at the time. At some point, [Scott], who had smoked
crack cocaine just prior to the incident herein, asked [Doyle] for
three or four dollars[,] and he told [Scott] that he had no money.
After [Doyle] told [Scott] that he had no money, [Scott] ordered
[Doyle] to leave the park, a directive with which he immediately
complied.
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, 907(a).
J-S16045-20
As [Doyle] was exiting the park, [Scott] ran up to him and
began threatening and cursing [at] him. [Scott] also punched
[Doyle] in the face with his left hand and asked [Doyle] why he
was running away. [Doyle] attempted to hit [Scott] back[,] and
as the two men struggled, [Scott] stabbed [Doyle] three or four
times with a knife he was holding in his left hand. [Doyle], who
suffered on stab wound to his abdomen and others to his back,
again tried to leave the area and, as he did so[, Scott] began
chasing him and attempted to stab him another time. While
fleeing, [Doyle] told [Scott] that he had stabbed him and that he
would get his.
Philadelphia Police Officer James Crusemire [(“Officer
Crusemire”)] and his partner responded to a radio call concerning
the incident herein. [Officer Crusemire] encountered [Doyle,] and
because of the seriousness of his injuries, [Officer Crusemire]
immediately transported him to the hospital. At the hospital,
[Doyle] stated that “T” stabbed him and also gave a description
of “T.”[2]
On July 2, 2018, Officer Crusemire saw [Scott] in a park
located at 8th Street and Girard Avenue in Philadelphia and
apprehended him on an absconder warrant and a bench warrant.
Incident to the arrest, [Officer Crusemire] took a black school bag
from [Scott] that contained tan pants with red stains on them and
a four-inch knife. [Officer Crusemire] placed these items and a
cell phone on property receipts.
Subsequent DNA testing was negative for the presence of
[Doyle’s] DNA on the pants and the knife found in [Scott’s]
possession.
[Scott] testified that he did not argue with or stab [Doyle],
who[m] he knew, and that he was not present at the park when
the incident occurred. [Scott] indicated that he carried the knife
for self-defense and that the red stains from his pants came from
berries he sat on. [Scott] admitted that he had been at the park
where the incident occurred earlier in the day[,] and that when he
left the park he believed that [sic] went to [a] friend’s house who
lived nearby, something he did every day.
____________________________________________
2Doyle also identified Scott as his assailant at trial. See N.T., 11/20/18, at
25, 26-31.
-2-
J-S16045-20
Trial Court Opinion, 7/10/19, at 2-4 (citations to record omitted; footnote
added).
Following a bench trial, Scott was convicted of the above-mentioned
crimes. The trial court deferred sentencing, and ordered the preparation of a
pre-sentence investigation report (“PSI”). On January 31, 2019, the trial court
sentenced Scott to a term of 3 to 6 years in prison, with credit for time served,
followed by 4 years of probation for his aggravated assault conviction. For his
PIC conviction, the trial court imposed a concurrent term of 5 years of
probation. The trial court also imposed concurrent terms of 2 years of
probation for his simple assault and REAP convictions. Further, the court
ordered Scott to pay restitution in the amount of $320.
-3-
J-S16045-20
Scott filed a post-sentence Motion,3 challenging the sufficiency and
weight of the evidence presented, and a Motion for Reconsideration of his
sentence. The trial court denied Scott’s Motions. Scott thereafter filed a
timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal.
Scott now raises the following issues for our review:
1) Was not the 3 to 6[-]year sentence imposed for aggravated
assault (F2) manifestly excessive and unreasonable, where the
____________________________________________
3 The tenth day following the imposition of sentence was Sunday, February
10, 2019. See Pa.R.Crim.P. 720(a)(1). Thus, Scott had until Monday,
February 11, 2019, to file a timely post-sentence Motion. See 1 Pa.C.S.A.
§ 1908 (explaining that, for computation of time purposes, when the last day
of a time period falls on a Saturday or Sunday, “such day shall be omitted
from the computation.”). Because Scott’s post-sentence Motion was docketed
on February 12, 2019, this Court issued a Rule to Show Cause why this appeal,
filed March 14, 2019, should not be quashed as untimely. Rule to Show Cause,
4/23/19 (citing Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa. Super.
2003) (en banc) (stating that the filing of an untimely post-sentence motion
does not toll the 30-day appeal period)). Scott filed an Answer, explaining
that he filed the post-sentence Motion at 5:31 p.m. on Monday, February 11,
2019, but that the Motion was not docketed until the following day,
“presumably because the electronic filing occurred after 5:00 p[.]m[.]”
Answer, 5/2/19. This Court subsequently discharged the Rule to Show Cause.
Our review reflects that the post-sentence Motion contains a time-stamped
filing date of February 11, 2019. See generally Pa.R.Crim.P. 114(c)(2)
(requiring docket entries to contain, inter alia, “the date of receipt in the
clerk’s office of the order or court notice”); Pa.R.Crim.P. 576 (stating that
when a document for which filing is required “is received by the clerk of courts,
the clerk shall time stamp it with the date of receipt and make a docket
entry reflecting the date of receipt, and promptly shall place the document
in the criminal case file.” (emphasis added)); Pa.R.Crim.P. 113 (providing that
docket entries in criminal case files must contain, inter alia, all information
required by Rules 114 and 576). Under these circumstances, where the time
stamp on Scott’s post-sentence Motion reflects a filing date of February 11,
2019, we will consider his post-sentence Motion, and the resulting appeal, to
be timely filed.
-4-
J-S16045-20
trial court improperly relied on conduct for which it found [Scott]
not guilty?
2) Did not the trial court abuse its discretion and impinge on
[Scott’s] Sixth Amendment right to counsel when it denied
defense counsel’s [M]otion for continuance to allow counsel time
to adequately review the medical records, a toxicology report, and
a DNA report, which the Commonwealth turned over to the
defense on the eve and morning of trial[?]
3) Did not the trial court abuse its discretion in denying [Scott’s]
post-sentence [M]otion for a new trial, as the verdict was contrary
to the weight of the evidence, where the sole identifying witness
was drunk and high at the time of the attack?
Brief for Appellant at 4.
In his first claim, Scott argues that the trial court abused its discretion
by imposing an aggravated-range sentence for his aggravated assault
conviction. Id. at 15. According to Scott, the trial court imposed a sentence
in the aggravated range because it had already given him a “break” by grading
the aggravated assault conviction as a second-degree felony, as opposed to a
first-degree felony. Id. at 15-16. Scott claims that by referring to the
potential for a conviction under a higher grade, the trial court relied on conduct
of which he was found not guilty. Id. at 16, 17. Scott also asserts that the
trial court failed to appropriately consider his rehabilitative needs. Id. at 17-
18.
Scott’s claim challenges the discretionary aspects of his sentence. “It is
well-settled that, with regard to the discretionary aspects of sentencing, there
is no automatic right to appeal.” Commonwealth v. Mastromarino, 2 A.3d
-5-
J-S16045-20
581, 585 (Pa. Super. 2010). Before we address the merits of a discretionary
sentencing claim,
[w]e conduct a four-part analysis to determine: (1) whether the
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 the 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (some
citations omitted). “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.” Id. (quotation marks and citation omitted). Further,
[i]n determining whether a substantial question exists, this Court
does not examine the merits of whether the sentence is actually
excessive. Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence, when it is
within the guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question determination does not
require the court to decide the merits of whether the sentence is
clearly unreasonable.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
Here, Scott filed a timely Notice of Appeal, preserved his claim in his
Motion to Reconsider, and included a separate Rule 2119(f) Statement in his
appellate brief. Additionally, Scott’s assertions that the trial court improperly
imposed a manifestly excessive sentence, failed to provide adequate reasons
-6-
J-S16045-20
for imposing an aggravated sentence, failed to consider his rehabilitative
needs and mitigating evidence, and imposed a harsher sentence for conduct
for which he was found not guilty, raise a substantial question for our review.
See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)
(concluding that an excessive sentence claim, together with a claim that the
trial court failed to consider a defendant’s rehabilitative needs and other
mitigating factors raises a substantial question); see also Commonwealth
v. Serrano, 150 A.3d 470, 473 (Pa. Super. 2016) (stating that a substantial
question has been presented where an appellant alleged that the sentencing
court failed to consider the defendant’s individualized circumstances and
rehabilitative needs); Commonwealth v. Downing, 990 A.2d 788, 792 (Pa.
Super. 2010) (concluding that a claim that trial court relied on improper
sentencing factors raises a substantial question).
We adhere to the following standard of review:
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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).
“In every case in which the court imposes a sentence for a felony … the
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
-7-
J-S16045-20
imposed.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon,
812 A.2d 617, 620-21 (Pa. 2002) (plurality). The Sentencing Code also
provides that “the [trial] 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.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v.
McClendon, 589 A.2d 706, 713 (Pa. Super. 1991) (stating that “the court
should refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.”). Further, the trial court must
consider the Sentencing Guidelines. Commonwealth v. Sheller, 961 A.2d
187, 190 (Pa. Super. 2008) (stating that “[w]hen imposing a sentence, the
[trial] court is required to consider the sentence ranges set forth in the
Sentencing Guidelines….”).
Our review of the record confirms that the trial court considered the
relevant section 9721(b) sentencing factors. During the sentencing hearing,
Scott’s counsel alerted the trial court to several mitigating factors, including
Scott’s good behavior in prison, his serious health issues, and concern for his
mother and children. See N.T., 1/31/19, at 5-6. Scott also exercised his right
to allocution, reiterating his concern for his mother, as well as his medical
issues, which prevent him from keeping a job. See id. at 11-12.
The trial court stated the following in its Opinion:
-8-
J-S16045-20
[Scott] had a prior record score of five and the offense gravity
score for the aggravated assault conviction was 8, making the
standard range sentence 27-33 months, plus/minus 9 months.
This court decided to go above the standard sentencing range
because the recommended standard range of the guidelines did
not reflect the seriousness of the crime or [Scott’s] egregious
criminal record, which included 24 separate arrests. The law
permits a sentencing court to consider a defendant’s criminal
history….
With regard to the claim that the court did not consider the
factors set forth in section 9721 of the Sentencing Code, this court
certainly did so. The court carefully reviewed the various reports
before imposing [the] sentence[,] and took their contents into
account when deciding on an appropriate sentence. It also took
into account [Scott’s] mitigating factors[,] as well as those factors
that called for an aggravated sentence. …
Finally, while this court did state that [Scott] already
received a break because he was convicted of a less serious
offense[,] and that it represented the only break [Scott] would
receive, no relief is due on that claim. This is so because this court
considered all required factors in fashioning its sentence, which
was based on the crime [Scott] committed, his myriad arrests and
convictions, and his failure to rehabilitate himself.
Trial Court Opinion, 7/10/19, at 11-12 (citations to record and some
capitalization omitted).
Moreover, the trial court had the benefit of a PSI, which it reviewed with
both parties at the start of the sentencing hearing. See N.T., 1/31/19, at 4;
see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (explaining
that where a sentencing judge considered a PSI, it is presumed that they are
“aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”).
Based upon the foregoing, we discern no abuse of the trial court’s discretion
-9-
J-S16045-20
in imposing a sentence in the aggravated range of the Sentencing Guidelines.
Thus, Scott is not entitled to relief on this claim.
In his second claim, Scott contends that the trial court abused its
discretion, and “hampered” his Sixth Amendment right to counsel by denying
his request for a continuance. Brief for Appellant at 18. Scott claims that his
trial counsel “received an exculpatory DNA report at 5:00 p[.]m[.] on the
evening before trial[,] and 700 pages of medical records on the morning of
trial.” Id. Scott argues that his continuance request was reasonable, and
that the trial court improperly emphasized its concern for Doyle’s availability
and convenience. Id. at 18-19. According to Scott, his counsel was unable
to fully prepare for trial as a result of the trial court’s refusal to grant a
continuance. Id. at 20. Scott also asserts that he did not provide any
toxicology information, and that “the defense presented no evidence about []
Scott’s many health ailments, referenced in the sentencing documents, that
would have prevented [] Scott from chasing after [] Doyle and using a knife
in one hand while punching with the other.” Id. at 20-21.
We are cognizant of the following standard of review:
The decision to grant or deny a continuance request rests
with the sound discretion of the trial court[,] and we will not
reverse the decision absent a clear abuse of discretion. This Court
will not find an abuse of discretion if the denial of the continuance
request did not prejudice the appellant. In order to demonstrate
prejudice, the appellant must be able to show specifically in what
manner he was unable to prepare his defense or how he would
have prepared differently had he been given more time.
- 10 -
J-S16045-20
Commonwealth v. Broitman, 217 A.3d 297, 299-300 (Pa. Super. 2019)
(internal citations and quotation marks omitted). Further, “[a] bald allegation
of an insufficient amount of time to prepare will not provide a basis for reversal
of the denial of a continuance motion.” Commonwealth v. Ross, 57 A.3d
85, 91 (Pa. Super. 2012).
In his appellate brief, Scott does not specifically explain how he would
have prepared differently with a one-week continuance, nor does he identify
a particular portion of his medical records, which he believes would have been
exculpatory. See Broitman, supra. From his vague argument, it appears
that Scott primarily desired additional time to review the toxicology report.4
Brief for Appellant at 20. At trial, when Scott’s counsel moved for a
continuance, she specifically referenced the toxicology report, and explained
that she believes information contained in the report would be relevant for
cross-examination.5 See N.T., 11/20/19, at 14. Defense counsel asked to
continue the trial to the following week. See id. at 15. The trial court, noting
that the toxicology report is typically a short document, put the case on hold
until 4:00 p.m. that day to allow defense counsel time to review the document.
See id. at 15-17.
____________________________________________
4 Notably, Scott does not identify whether the toxicology report pertained to
him or Doyle.
5 Defense counsel also sought to introduce the contents of the DNA report,
and the Commonwealth agreed to stipulate to the report. See N.T., 11/20/19,
at 13-14.
- 11 -
J-S16045-20
Additionally, in its Opinion, the trial court addressed Scott’s claim as
follows:
First, a week or so before the trial commenced[,] a readiness
hearing was held at which the defense made no mention of
missing medical records. Second, [the trial court] provided the
defense a several hour continuance so that it could review the
various records. When the case was reconvened, the defense did
not renew its request for a continuance[,] leading this [c]ourt to
believe that the defense had had adequate time to review the
records.
Third, a very small part of the records at issue were relevant
to [Scott’s] defense. Those included [Doyle’s] toxicology report,
the scale of [Doyle’s] injuries, and the results of the DNA test.
[Scott] and his attorney had more than enough time to review
them[,] and in fact[,] the defense [] used them during the trial.
Thus, the defense cannot show that it was prejudiced as a result
of the refusal to grant a continuance.
Finally, the Commonwealth was ready to proceed to trial.
Its case relied upon a witness who was essentially homeless and
had difficulty getting to the court house. The [c]ourt was well
aware that if the matter was continued[,] it was likely that [Doyle]
would not appear at another listing. …
Trial Court Opinion, 7/10/19, at 5-6 (citations to record omitted).
Upon review, we discern no abuse of the trial court’s discretion in
denying Scott’s Motion for continuance. The trial court provided defense
counsel additional time to review the only document specifically identified
among the 700 pages of medical records, i.e., the toxicology report.
Moreover, Scott has failed to explain how additional time to review the
toxicology report would have aided his defense, or to specifically identify any
other beneficial documents contained in his medical records that counsel was
- 12 -
J-S16045-20
unable to review. See Broitman, supra. Therefore, we cannot grant Scott
relief on this claim.
In his third claim, Scott asserts that the verdict was against the weight
of the evidence. Brief for Appellant at 21. Scott claims that on the night of
the stabbing, Doyle was drunk, and had smoked crack cocaine. Id. at 22;
see also id. at 23 (wherein Scott asserts that Doyle’s testimony was
unreliable). Scott also points to inconsistencies in Doyle’s statements, to the
treating physicians at the hospital and the police, regarding whether he knew
his assailant and what the assailant looked like. Id. at 22-23. Additionally,
Scott points out that the trial judge knows Officer Crusemire’s father, and
- 13 -
J-S16045-20
exhibited bias as a result of this connection.6 Id. at 23. Scott claims that his
“numerous health problems make it difficult to believe he could have chased
after [Doyle], punched, and stabbed him so aggressively.” Id. at 24.
As this Court has recognized,
[a]ppellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence.
Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)
(citation omitted); Commonwealth v. Smith, 146 A.3d 257, 265 (Pa. Super.
2016) (stating that “[i]n order for an appellant to prevail on a challenge to the
____________________________________________
6The following exchange occurred after Officer Crusemire was sworn in as a
witness:
The Court: How you doing? All right? Who is your father?
[Officer Crusemire]: He’s James.
[Q]: Is he a judge?
[A]: Yes, Judge James –
….
[Q]: Yeah, I went to school with him. Tell your dad I said hello.
N.T., 11/20/18, at 45-46.
- 14 -
J-S16045-20
weight of the evidence, the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” (citation omitted)).
Further, “in instances where there is conflicting testimony, it is for the jury to
determine the weight to be given the testimony. The credibility of a witness
is a question for the fact-finder.” Commonwealth v. Hall, 830 A.2d 537,
542 (Pa. 2003) (citation omitted).
To the extent that Scott asks this Court to re-assess Doyle’s credibility,
or the weight to be assigned his testimony, we are unable to do so. See Hall,
supra; see also Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.
Super. 2006) (stating that “[i]t is not for this Court to overturn the credibility
determinations of that fact-finder.”). Further, as the trial court aptly noted,
[a]lthough the victim had ingested intoxicating substances …, this
[c]ourt concluded that [Doyle] testified credibly and had been
assaulted as he claimed. [Doyle] knew [Scott] prior to the
incident, identified [Scott] by name at the hospital as his assailant,
gave a description of [Scott], and [Doyle’s] version of events
coincided with the physical evidence, which included a knife found
in [Scott’s] possession that matched [Doyle’s] description of the
weapon.
Trial Court Opinion, 7/10/19, at 8.
Regarding Scott’s claim that the trial judge knows Officer Crusemire’s
father, our review reveals no obvious bias based on this brief exchange, nor
does the record reflect that the trial court afforded Officer Crusemire’s
testimony any undue weight as a result. Upon review, we cannot conclude
that the evidence presented at trial was “so tenuous, vague and uncertain” as
to shock the conscience of the court. See Smith, supra. We discern no
- 15 -
J-S16045-20
abuse of the trial court’s discretion in determining that the verdict was not
against the weight of the evidence. Thus, Scott is not entitled to relief on this
claim.
Judgment of sentence affirmed.
Judge McLaughlin joins the memorandum.
Judge Dubow files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/20
- 16 -