Com. v. Parker, E. ( 2023 )

J-S36045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC PARKER :
:
Appellant : No. 2444 EDA 2022
Appeal from the Judgment of Sentence Entered May 18, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001426-2020
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY KING, J.: FILED OCTOBER 26, 2023
Appellant, Eric Parker, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his bench trial convictions for endangering the welfare of a child (“EWOC”),
possessing an instrument of crime (“PIC”), terroristic threats, simple assault,
and recklessly endangering another person (“REAP”).1 We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
In 2017[,] the minor complainant [J.J. (“Victim”)] was
residing with his mother Sharita Jones, his two sisters, and
[Appellant]…. Victim detailed the first two incidents
involving Appellant that caused him to leave the home. On
one occasion, he poured his sister’s juice in the wrong cup
and Appellant threw him into a baby stroller and punched
him several times. The second incident occurred when
____________________________________________
1 18 Pa.C.S.A. §§ 4304(a), 907(a), 2706(a), 2701(a), and 2705, respectively.
J-S36045-23
[Victim]’s mother gave him permission to take a hoagie to
school for lunch, but Appellant came home that evening
upset about it and stomped on [Victim] in his shoulder and
torso area several times for eating the hoagie. [Victim] left
the home in December of 2019 at age fourteen (14) to stay
with other family members because he “felt unsafe” and
“just wanted to get away from the place.” [N.T. Trial,
10/23/20, at 19.]
[Victim’s] mother was at that time involved in a custody
case over his brother…. In January 2020 [Victim] was
approached by Appellant and his mother after school at the
transportation center when they forced him to make a video
stating he “felt safe in the home” and “the only reason why
(he) did this was because ... (his) Play Station and iPhone
(were taken).” [Id. at 30-32.] Appellant and [Victim’s]
mother provided the script for his videotaped statement and
the voices of both adults can be heard in the actual video.
Afterward Appellant and [Victim’s] mother took [Victim] to
reside with them. The video was shown to family who then
believed [Victim] to be a liar. [Victim] subsequently posted
a Facebook status indicating the video was untrue and his
mother was “manipulating them ... (to) turn them against
(him).”
* * *
[T]he third incident occurred when Appellant became upset
over [Victim]’s Facebook post. When [Victim] had gone to
bed, sleeping on the living room floor, Appellant came out
of his bedroom yelling and shouting [and] then started
stomping [on Victim’s] left side, head, and neck area.
Appellant stomped [on Victim] 15-20 times and was wearing
Nike boots that were dark grey with blue stripes. Then
Appellant took a “thick glass ...alcohol bottle” and threw it,
hitting the wall—just missing [Victim]’s head. The bottle
didn’t break.
Appellant ordered fourteen-year-old [Victim] to leave the
home that night, barely allowing him to dress and without a
coat. [Victim] testified Appellant “told me if I go to my
cousin’s house... he will kill me, and he’ll damn sure kill
them.” Id. at 60-61. [Victim] left and went to his cousin’s
home anyway where his family took pictures of him, called
-2-
J-S36045-23
the police, and an ambulance. The photographs depicted
[Victim]’s bruises from the incident. [Victim] was
transported to the hospital for treatment and then the Police
Special Victims Unit.
* * *
The parties…stipulated to [Victim]’s certified medical
records from St. Christopher’s Hospital. The medical
documentation indicated [Victim] presented with the
following injuries: facial injury, bruising and swelling and
two-centimeter linear contusion to right side of face;
superficial abrasion to his right upper back; and contusion
to right earlobe.
[Victim]’s mother…testified [that] Appellant is her husband
and she has five children. [Victim’s mother] testified [that]
DHS was involved in her home because of [Victim]’s
behavioral issues. She discussed prior incidents of
[Victim]’s disobedience but indicated [that] he was never
physically disciplined by Appellant…. On the night of the
incident, she recalled [that] Appellant was upset over the
Facebook post and [an altercation that had occurred at
Victim’s cousin’s house when they went to pick Victim up].…
[Victim’s mother] further testified that she felt it was
appropriate to use “a slight kick to wake a child up…like if
you see a homeless person or something, and…slightly kick
the homeless person to wake up so they can move.” Id. at
148.
Appellant testified [that] he is married to [Victim’s mother]
and [has] always had trouble with [Victim]. [Appellant]
denied physically assaulting [Victim] in either [the juice or
hoagie] instance…. Appellant discussed the Facebook post
and indicated [that] he was “super pissed” and was “going
to kick him [Victim] out.” Id. at 163…. Appellant testifie[d]
as follows:
He was asleep. I didn’t kick him, kick him in a manner
for him to be hurt, just enough for him to get the
attention. It’s an attention seeker... On his
midsection, as I said in the SVU video. So, but at that
particular point in time, he got jumpy because I just
woke him up. He literally just went to sleep and I just
-3-
J-S36045-23
woke him up. He’s got his hands up and everything.
So then I start yelling. He is sitting there all teary
eyed ... because I hurt his feelings…. I threw the
bottle at the wall. The bottle didn’t break because it
was a vodka Amsterdam bottle.
Id. at 163-164.
Appellant claimed [Victim]’s “only wound he had to his face
was ... the three little scratch marks” which were self-
inflicted because he doesn't cut his nails. [Id. at 165-166.]
[Appellant] confirmed that if he did not kick [Victim] out he
would have killed him. Appellant then denied inflicting
injuries on [Victim] at any time, threatening to hurt or kill
him.
(Trial Court Opinion, filed 1/4/23, at 2-6) (some record citations omitted).
Following a bench trial, the court found Appellant guilty of all charges
on October 23, 2020. The court deferred sentencing and ordered a pre-
sentence investigation report (“PSI”) and a mental health evaluation. On May
18, 2021, the court sentenced Appellant to an aggregate of three to six years
of incarceration and five years of probation. Appellant filed a post-sentence
motion on May 19, 2021, which was denied by operation of law on September
21, 2021. On May 16, 2022, Appellant filed a petition to reinstate his direct
appeal rights nunc pro tunc and the court reinstated Appellant’s direct appeal
rights on August 22, 2022. Appellant filed a timely notice of appeal nunc pro
tunc on September 19, 2022. On September 21, 2022, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal, and Appellant complied on October 21, 2022.
Appellant raises the following issues for our review:
-4-
J-S36045-23
Whether the evidence presented at trial established
sufficient proof beyond a reasonable doubt as a matter of
law for every element of the crimes for which Appellant was
convicted.
Whether the sentencing court abused its discretion by
imposing a sentence that was not based upon the gravity of
the violation, the extent of Appellant’s record, his prospect
of rehabilitation, nor an assessment of the mitigating and
aggravating factors as noted in 42 Pa.C.S. § 9721 of the
Sentencing Code.
(Appellant’s Brief at 7).
In his first issue, Appellant contends that the only evidence supporting
his convictions was Victim’s testimony, which was not credible because the
evidence demonstrated that Victim is “an incorrigible child with history of
deception.” (Id. at 15). Specifically, Appellant asserts that Victim’s testimony
is unreliable because Victim admitted that he lied to his mother about where
he was when he wrote the Facebook post. Appellant argues that Victim’s
testimony about the first two instances of physical violence was not supported
with corroborating evidence such as medical records or police reports.
Appellant contends that only the third instance of violence was substantiated
with corroborating evidence, which “only supports a misdemeanor grading, as
the Commonwealth failed to establish more than one incident of
endangerment beyond a reasonable doubt.” (Id.) Appellant concludes that
the Commonwealth failed to provide sufficient evidence to support any of his
convictions, and this Court should vacate his judgment of sentence. We
disagree.
-5-
J-S36045-23
“In order to preserve a challenge to the sufficiency of the evidence on
appeal, an appellant’s Rule 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa.Super.
2016), appeal denied, 640 Pa. 386, 163 A.3d 403 (2016) (quoting
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013)). “Such
specificity is of particular importance in cases where, as here, [Appellant] was
convicted of multiple crimes each of which contains numerous elements that
the Commonwealth must prove beyond a reasonable doubt.”
Commonwealth v. Ellison, 213 A.3d 312, 321 (Pa.Super. 2019), appeal
denied, 656 Pa. 205, 220 A.3d 531 (2019) (quoting Stiles, supra at 982).
“Therefore, when an appellant’s [Rule] 1925(b) statement fails to specify the
element or elements upon which the evidence was insufficient[,] ... the
sufficiency issue is waived on appeal.” Id. (internal quotation marks omitted).
Instantly, Appellant’s Rule 1925(b) statement presented his sufficiency
challenge as follows:
The evidence presented at trial was insufficient to sustain a
conviction as a matter of law. No corroborating evidence,
including physical evidence was presented at trial to support
the conviction. The trial court erred by failing to grant a
judgment of acquittal.
(Rule 1925(b) Statement, filed 10/21/22, at 1). In response to this boilerplate
challenge, the trial court was left to guess the elements upon which Appellant
based his claim. Because Appellant’s Rule 1925(b) statement failed to specify
-6-
J-S36045-23
the element or elements upon which the evidence was insufficient, the claim
is waived. See Ellison, supra; Stiles, supra.Even if Appellant had properly preserved his claim, Appellant’s issue
would merit no relief. Appellant essentially asks this Court to reassess the
credibility of Victim, and to reweigh the evidence presented in Appellant’s
favor. Nevertheless, the trial court found Victim’s testimony to be credible
and we are bound by the court’s credibility determinations that are supported
by the record. See Commonwealth v. Jones, 874 A.2d 108, 120-21
(Pa.Super. 2005) (explaining that in evaluating challenge to sufficiency of
evidence, this Court may not weigh evidence and substitute our judgment for
the factfinder). See also Commonwealth v. Blackham, 909 A.2d 315, 320
(Pa.Super. 2006) (stating: “It is not for this Court to overturn the credibility
determinations of the fact-finder”).
Additionally, there is no merit to Appellant’s assertion that the evidence
was insufficient based on a lack of corroborating evidence to support Victim’s
testimony. Victim’s credible testimony alone is sufficient to sustain Appellant’s
convictions. See Commonwealth v. Johnson, 180 A.3d 474, 481
(Pa.Super. 2018), appeal denied, 651 Pa. 431, 205 A.3d 315 (2019) (rejecting
claim that victim’s testimony alone was insufficient evidence to sustain
conviction; stating: “[T]he uncorroborated testimony of a single witness is
sufficient to sustain a conviction for a criminal offense, so long as that
testimony can address and, in fact, addresses, every element of the charged
-7-
J-S36045-23
crime”). Accordingly, Appellant’s first issue is waived and affords him no relief
in any event.2
In his second issue, Appellant claims that the court sentenced him to an
aggravated range sentence without justification. Appellant contends the court
failed to consider mitigating factors, “including his consistent and continued
commitment to mental health treatment, his caring and nurturing relationship
with his wife and other family members, and his remorse for the impact to
[Victim] and his extended family.” (Appellant’s Brief at 17). Appellant asserts
that the court only considered the nature of the offense and failed to consider
Appellant’s characteristics and rehabilitative needs. Appellant concludes the
court abused its discretion in imposing an unreasonably excessive sentence,
and this Court should vacate the judgment of sentence and remand for
resentencing. We disagree.
As presented, Appellant’s claim challenges the discretionary aspects of
sentencing. See Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013),
appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention that court
focused solely on serious nature of crime without adequately considering
protection of public or defendant’s rehabilitative needs concerns court’s
____________________________________________
2 To the extent that Appellant’s sufficiency challenge as presented on appeal
is more properly construed as a challenge to the weight of the evidence, that
claim is also waived for failure to preserve it in his Rule 1925(b) statement.
See Commonwealth v. Bonnett, 239 A.3d 1096 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 250 A.3d 468 (2021) (reiterating well-settled law that
issues not preserved in concise statement are waived for appellate review).
-8-
J-S36045-23
sentencing discretion); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.
2002) (stating claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,
668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195(1996) (explaining claim that court did not consider mitigating factors
challenges discretionary aspects of sentencing).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of
sentencing issue:
[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) (quoting Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
-9-
J-S36045-23
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Phillips, supra at 112(emphasis in original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). “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.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)
(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.
2011)).
“[A]n excessive sentence claim—in conjunction with an assertion that
the court failed to consider mitigating factors—raises a substantial question.”
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal
denied, 629 Pa. 636, 105 A.3d 736 (2014). See also Commonwealth v.
Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding defendant’s claim that court
failed to consider factors set forth under Section 9721(b) and focused solely
- 10 -
J-S36045-23
on seriousness of defendant’s offense raised substantial question). A
substantial question also exists where an appellant alleges the court imposed
a sentence outside of the guidelines without sufficient reasons. See
Commonwealth v. Holiday, 954 A.2d 6 (Pa.Super. 2008), appeal denied,
601 Pa. 694, 972 A.2d 520 (2009).
This Court reviews discretionary sentencing challenges based on the
following standard:
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. An abuse of
discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting
Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).
“[A] court is required to consider the particular circumstances of the
offense and the character of the defendant.” Commonwealth v. Griffin, 804
A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984,
162 L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. If the sentencing court has the benefit of a
PSI report, the law presumes the court was aware of the relevant information
regarding the defendant’s character and weighed those considerations along
with any mitigating factors. Commonwealth v. Tirado, 870 A.2d 362- 11 -
J-S36045-23
(Pa.Super. 2005).
When considering the propriety of imposing an aggravated range
sentence, this Court has observed:
[T]he guidelines were implemented to create greater
consistency and rationality in sentencing. The guidelines
accomplish the above purposes by providing a normal for
comparison, i.e., the standard range of punishment, for the
panoply of crimes found in the crimes code and by providing
a scale of progressively greater punishment as the gravity
of the offense increases….
The provision of a “norm” also strongly implies that
deviation from the norm should be correlated with facts
about the crime that also deviate from the norm for the
offense, or facts relating to the offender’s character or
criminal history that deviates from the norm and must be
regarded as not within the guidelines contemplation. Given
this predicate, simply indicating that an offense is a serious,
heinous or grave offense misplaces the proper focus. The
focus should not be upon the seriousness, heinousness or
egregiousness of the offense generally speaking, but, rather
upon how the present case deviates from what might be
regarded as a “typical” or “normal” case of the offense under
consideration.
An aggravated range sentence … will thus be justified to the
extent that the individual circumstances of [an appellant’s]
case are atypical of the crime for which [he] was convicted,
such that a more severe punishment is appropriate.
Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (internal
citation omitted).
Instantly, Appellant raised his sentencing issue in a timely post-
sentence motion, filed a timely notice of appeal nunc pro tunc, and included
in his appellate brief a Rule 2119(f) statement. Further, Appellant’s assertion
that the sentence was manifestly excessive in conjunction with his claim that
- 12 -
J-S36045-23
the court failed to weigh his rehabilitative needs and/or consider mitigating
factors raises a substantial question. See Raven, supra; Trimble, supra.Appellant’s claim that the court failed to set forth adequate reasons for
imposition of the aggravated range sentence also raises a substantial question
for our review. See Holiday, supra. Accordingly, we proceed to address the
merits of Appellant’s sentencing claims.
Here, the court had the benefit of a PSI report, defense counsel’s
arguments, and statements from Appellant and Victim’s mother at sentencing.
Thus, we can presume that the court was fully aware of and considered
mitigating factors such as Appellant’s history of mental health struggles, his
willingness to seek treatment, and his alleged close relationship with his wife
and children. See Tirado, supra. Further, contrary to Appellant’s assertion,
the court provided an on-the-record statement of reasons why it imposed a
sentence in the aggravated range of the sentencing guidelines. The court
noted Appellant’s history of domestic violence and the severe and prolonged
impact Appellant’s actions had on the young victim as reasons justifying
imposition of an aggravated range sentence. Further, the court did not find
Appellant’s expression of remorse to be adequate or sincere where Appellant
continued to blame Victim for his actions. To address Appellant’s rehabilitative
needs, the court ordered Appellant to complete anger management classes,
parenting classes, and a mental health evaluation for dual diagnosis treatment
as recommended in the PSI report. The record demonstrates that the court
- 13 -
J-S36045-23
properly considered Appellant’s history and rehabilitative needs and explained
its rationale for fashioning the sentence it imposed. As such, we discern no
abuse of discretion in court’s determination that a sentence in the aggravated
range was appropriate. See Fullin, supra; McNabb, supra. Accordingly,
Appellant is not entitled to relief, and we affirm the judgment of sentence.
Judgment of sentence affirmed.
Date: 10/26/2023
- 14 -