Com. v. Banks, J.

J-S66004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES BANKS,
Appellant No. 1286 WDA 2016
Appeal from the Judgment of Sentence Entered July 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015867-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 18, 2017
Appellant, James Banks, appeals from the judgment of sentence of
and aggregate term of 26-52 years’ incarceration, followed by 5 years’
probation, imposed after his conviction for attempted homicide, robbery, and
related offenses. Appellant challenges the weight of the Commonwealth’s
evidence supporting his identity as the perpetrator of the crimes at issue in
this case, the discretionary aspects of his sentence, as well as its legality.
We reject Appellant’s weight challenge. However, we are compelled to
vacate Appellant’s sentence and to remand for resentencing due the
imposition of an illegal sentence. Consequently, we decline to address
Appellant’s discretionary-aspects-of-sentencing claim at this time.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S66004-17
A full recitation of the facts adduced at trial is provided in the trial
court’s opinion. See Trial Court Opinion (TCO), 2/15/17, at 3-8. Briefly
stated, the victim, Anthony Matthews, was sleeping in his City of Pittsburgh
apartment at approximately 8:30 a.m. on October 10, 2014, when he awoke
to find three knife-wielding men standing at his bedside. Id. at 3. Appellant
immediately recognized two of the unmasked men, Appellant and Jerome
Banks, as the younger brothers of his former girlfriend, London Banks. Id.
The third man demanded money. Id. at 4. As Matthews attempted to get
out of his bed, one of the intruders stabbed him in the abdomen. Id. When
Matthews began to struggle with his assailants, Appellant stabbed him in the
back. Id. The melee continued for some time, until Matthews heard
Appellant tell his brother, Jerome, “[h]it him, hit him, hit him.” Id. Jerome
then struck Mathews in the head six or seven times with a brick. Id. After
this, Appellant and his cohorts fled, but not before stealing a game system
and a laptop from the Matthew’s apartment. Id. at 5.
Matthews managed to call 911 while he crawled into the hallway of his
apartment building, where a neighbor assisted him. Id. In the ambulance
on the way to the hospital, and believing he was going to die, Matthews told
the attending paramedic that he was stabbed by his ex-girlfriend’s brothers.
Id. at 6. Although he survived, Matthews was placed in a medically induced
coma for two days before police could speak with him. Id. When the police
were finally able to communicate with Matthews, he identified Appellant and
Jerome Banks as his assailants. Id. Matthews’ injuries required multiple
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surgeries, resulted in extensive nerve damage in his hands and back, and
left him struggling with post-traumatic stress, including severe anxiety and
sleeplessness. Id. at 7.
The Commonwealth charged Appellant with attempted homicide, 18
Pa.C.S. § 901; robbery, 18 Pa.C.S. § 3701(a)(1); burglary, 18 Pa.C.S. §
3502(a)(1); aggravated assault, 18 Pa.C.S. § 2702(a)(1); as well as
conspiracy to commit each of those offenses, 18 Pa.C.S. § 903. Following a
trial held on December 2-3, 2015, the jury found Appellant not guilty of
conspiracy to commit homicide, but guilty of all the remaining charges. On
July 14, 2016, the trial court sentenced Appellant to 15-30 years’
incarceration for attempted homicide, with consecutive terms of 7-14 years’
and 4-8 years’ incarceration for conspiracy to commit robbery and burglary,
respectively, and a concurrent term of 8-16 years’ incarceration for robbery.
The trial court also ordered Appellant to serve a consecutive term of 5 years’
probation for robbery. Thus, Appellant received an aggregate sentence of
26-52 years’ incarceration and 5 years’ probation.
Appellant timely filed post-sentence motions challenging the weight of
the evidence supporting his convictions and the discretionary aspects of his
sentence. The trial court denied Appellant’s post-sentence motions on
August 5, 2016, from which he filed a timely notice of appeal. Appellant
filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on December 5,
2016, and the trial court issued its Rule 1925(a) opinion on February 15,
2017.
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Appellant now presents the following questions for our review:
I. Did the trial court abuse its discretion in denying the post-
sentence motion that the verdict was contrary to the weight of
the evidence presented in that no physical or scientific evidence,
including fingerprints, DNA, weapons, or inculpatory statements
were presented implicating [Appellant] in the commission of the
crimes, the victim gave three different versions of the facts,
named persons other than [Appellant] as his attackers, and
[Appellant] presented an alibi?
II. Did the trial court abuse its discretion in sentencing
[Appellant] to an aggregate term of 26 to 52 years of
imprisonment, to be followed by 5 years of probation, in that the
sentence is manifestly unjust, unreasonable, and excessive, is
contrary to the Sentencing Code, and the fundamental norms
underlying the sentencing process in that the court failed to
apply, as it must, all required sentencing factors including the
gravity of the offense in relation to the impact on the victim, the
history, character and condition of the defendant, and his
rehabilitative needs?
III. Did the trial court err in imposing an illegal sentence on
Count 3 (Robbery), as the sentence imposed is greater than the
lawful maximum?
Appellant’s Brief at 9.
Appellant’s first claim asserts that the trial court abused its discretion
in denying his post-sentence motion claim that the verdict was against the
weight of the evidence with respect to Appellant’s identity as one of the
three assailants. We apply the following standard of review to a challenge
that a verdict is against the weight of the evidence:
An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate 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.
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J-S66004-17
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 and that a new trial should be granted in the
interest of justice.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted).
After reviewing the certified record, the parties’ briefs and arguments
contained therein, as well as the trial court’s thorough and well-reasoned
Rule 1925(a) opinion, authored in this case by the Honorable Beth A.
Lazzara, we conclude that the trial court did not abuse its discretion in
denying Appellant’s post-sentence motion claim that the verdict was against
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the weight of the evidence. We rest our holding on the basis set forth in the
trial court’s opinion. See TCO at 8-19.
For ease of disposition, we now turn to Appellant’s third claim,
whereby he asserts that his sentence for robbery is illegal because it
exceeded the statutory limit for that offense. The Commonwealth concedes
the illegality of the sentence.
“The issue of whether a sentence is illegal is a question of law and our
scope of review is plenary.” Commonwealth v. Crump, 995 A.2d 1280,
1283 (Pa. Super. 2010). If a sentence is illegal, “whether it was properly
preserved below is of no moment, as a challenge to the legality of sentence
cannot be waived.” Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa.
2007). Furthermore, a “sentence that exceeds the statutory maximum is
illegal. If a court imposes a sentence outside of the legal parameters
prescribed by the applicable statute, the sentence is illegal and should be
remanded for correction.” Commonwealth v. Infante, 63 A.3d 358, 363
(Pa. Super. 2013) (internal citations and quotation marks omitted).
Robbery, a first-degree felony, carries a maximum possible sentence
of 20 years’ incarceration. 18 Pa.C.S. § 1103(1). As detailed above, the
trial court imposed a ‘split sentence’ for Appellant’s robbery conviction: 8-16
years’ incarceration, with a consecutive term of 5 years’ probation.
Consequently, Appellant faces the potential of serving up to 21 years’
punishment for his robbery offenses, thereby exceeding the statutory
maximum punishment of 20 years. See, e.g., Crump, 955 A.2d at 1284
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(stating that “where the [statutory] maximum [sentence] is ten years[’
incarceration], a defendant cannot receive a term of incarceration of three to
six years followed by five years[’] probation”). Therefore, we agree with
Appellant and the Commonwealth that Appellant’s sentence for robbery is
illegal. Accordingly, we are compelled to vacate Appellant’s sentence in its
entirety and remand for resentencing, as it is possible that a correction of
Appellant’s illegal sentence will upset the overall sentencing scheme
envisioned by the trial court. Infante, supra; see also Commonwealth
v. Dobbs, 682 A.2d 388, 393 (Pa. Super. 1996) (stating that “[w]here we
determine that a sentence must be corrected, this Court has the option of
amending the sentence directly or remanding it to trial court for re-
sentencing. If a correction by this Court may upset the sentencing scheme
envisioned by the trial court, the better practice is to remand”).
Finally, because we must remand for resentencing, we decline to
address Appellant’s second claim, which concerns the discretionary aspects
of the vacated sentence.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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J-S66004-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
-8-
Circulated 11/20/2017 11:55 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA, CC No. 2014-15867
v.
JAMES BANKS,
ORIGINAL
Criminal (Division
Defendant. t. of Court Records
OPINI gneny County, PA.
BETH A. LAZZARA, JUDGE
Court of Common Pleas
Copies Sent To:
Mike W. Streily, Esq.
Office of the District Attorney
401 Courthouse
Pittsburgh, PA 15219
0 Suzanne Swan, Esq.
310 Grant Street
Suite 823
tt1
Pittsburgh, PA 15219
"' tst
:
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
vs. CC No. 2014-15867
JAMES BANKS,
Defendant.
OPINION
This is a direct appeal from the judgment of sentence entered on July 14, 2016,
following a jury trial that took place between April 6, 2016 and April 8, 2016. The
Defendant was charged in a five (5) count information as follows: Count One (1):
Criminal Attempt - Homicide (18 Pa. C.S.A. §901(a)); Count Two (2): Criminal
Conspiracy to commit Homicide, Robbery, Burglary, and Aggravated Assault (18 Pa.
C.S.A. §903); Count Three (3): Robbery - Serious Bodily Injury (18 Pa. C.S.A.
§3701(a)(1); Count Four (4): Burglary (18 Pa. C.S.A. §3502(a)(1)); and Count Five (5)
Aggravated Assault (Pa. C.S.A. §2702(a)(1)). At the conclusion of trial, the jury found
the Defendant not guilty of Conspiracy to Commit Criminal Homicide, but guilty of all of
the remaining charges. Sentencing was deferred to allow for the preparation of a Pre -
Sentence Report ("PSR").
On July 14, 2016, the Defendant was sentenced to an aggregate sentence of 26
to 52 years of imprisonment with a five (5) year period of probation to follow upon his
release from imprisonment. Specifically, the Defendant was sentenced to a period of
fifteen (15) to thirty (30) years of incarceration at Count One (1), and a period of seven
(7) to fourteen (14) years of incarceration at Count Two (2), which was ordered to run
consecutively to the sentence imposed at Count One (1). At Count Three (3), the court
sentenced the Defendant to a period of eight (8) to sixteen (16) years of incarceration,
which was ordered to run concurrently with the sentences imposed at the previous
counts. A five (5) year term of probation was also imposed at Count Three (3), and the
probation term was ordered to commence upon the Defendant's release from
imprisonment. At Count Four (4), the Defendant was sentenced to a period of four (4)
to eight (8) years of imprisonment, which was ordered to run consecutively to Counts
One (1) and Two (2). No further penalty was imposed for the Aggravated Assault
conviction at Count Five (5) because the conviction merged with the Attempted
Homicide conviction at Count One (1). Court costs were imposed, and the Defendant
received 412 days of credit for time served. The Defendant also was ordered to have
no contact with the victim, Anthony Matthews, or his family. The Defendant filed a
timely post -sentence motion, which was heard and denied on August 5, 2016. This
timely appeal followed.
On December 5, 2016, the Defendant filed a timely Concise Statement of Errors
Complained of on Appeal ("Concise Statement"), raising two (2) issues for review.
(Concise Statement, pp. 2-4). The Defendant argues that this court abused its
2
discretion in denying the post -sentence motion because the verdict was against the
weight of the evidence, and he contends that this court abused its discretion in imposing
sentence. The Defendant's allegations of error on appeal are without merit. The court
respectfully requests that the Defendant's convictions and sentence be upheld for the
reasons that follow.
I. FACTUAL BACKGROUND
On the morning of October 10, 2014, at approximately 8:30 a.m., the victim,
Anthony Matthews, was asleep in his bedroom when he was suddenly awakened by
three (3) African -American men standing at his bedside. (Jury Trial Transcript ("TT")
(Volume I), 4/5/16-4/8/16, pp. 72, 87, 89, 94, 96, 102-03, 127, 136, 142-44). The
intruders had broken into his apartment at 100 Moore Avenue, located in the
Knoxville/Mt. Oliver area of the City of Pittsburgh. (TT, pp. 72, 89-90, 127, 136, 165).
All three (3) men were armed with weapons, and they made no attempt to mask their
identities. (TT, pp. 136-37, 140). Mr. Matthews was immediately able to recognize two
(2) of the intruders as James and Jerome Banks, the younger brothers of his ex -
girlfriend, London Banks. (TT, pp. 129-31, 134, 137, 140). Mr. Matthews was well
familiar with the Banks brothers. (TT, pp. 129-31). He knew exactly what the Banks
brothers looked and sounded like because he had spent time with them on multiple
occasions during the time that he was dating their sister. (TT, pp. 129-31). The
Defendant, James Banks, knew exactly where Mr. Matthews lived because London
Banks had briefly resided with Mr. Matthews during the time that they were dating, and
3
the Defendant had been inside of Mr. Matthews' apartment on at least one (1) prior
occasion. (TT, pp. 131-32, 135-36).
Mr. Matthews woke up to an unidentified man yelling "Where's the money?
Where's the money'?" (TT, pp. 73, 81, 136-37, 144-45). Armed with a knife, the
unidentified man was standing on the side of Mr. Matthews' bed, and he stabbed Mr.
Matthews in the abdomen as Mr. Matthews was attempting to stand up in order to get
out of bed. (TT, pp. 136-37, 145). Mr. Matthews began fighting with the unidentified
man, and, with his right hand, Mr. Matthews grabbed the knife that the man was
holding. (TT, pp. 137, 145). During the struggle, Mr. Matthews felt himself get stabbed
in the back. (TT, pp. 137-38, 145). When he turned around, he realized that the
Defendant was also armed with a knife and that the Defendant had been the one who
had stabbed him in the back. (TT, pp. 137, 145).
As Mr. Matthews tried to push the Defendant away from him, the unidentified
man stabbed him again, this time in the side. (TT, pp. 137, 145-46, 161). Mr. Matthews
turned back around to grab the knife from the unidentified man, and, as he continued to
struggle for the knife, the co -Defendant, Jerome Banks began hitting Mr. Matthews
repeatedly in the head with a brick, delivering between six (6) and seven (7) blows. (TT,
pp. 137-38, 145-46, 162). Mr. Matthews heard the Defendant yell to his brother
Jerome, "[h]it him, hit him, hit him." (TT, pp. 137, 146). Shortly thereafter, the
Defendant and his brother ran out of the bedroom, leaving Mr. Matthews alone with the
4
unidentified male. (TT, pp. 137-38, 146). At that point, Mr. Matthews, who still had a
grip on the unidentified male's knife, released his grip from the knife, which allowed the
man to flee from the apartment. (TT, pp. 138, 146). Before leaving the apartment,
however, the three (3) men stole Mr. Matthews' Playstation 3 gaming system and laptop
from his living room, and they smashed his television with the same brick that Jerome
Banks had used to repeatedly hit him in the head. (TT, pp. 138-39, 153, 161-63, 274).
After the third male ran out of his bedroom, Mr. Matthews stumbled out into his
living room screaming, "I don't have anything, I swear to God don't have any money,
I I
don't have anything for you all to take." (TT, pp. 73, 84, 138). Mr. Matthews collapsed
on the floor of his living room. However, he managed to call 911 on his cell phone. (TT,
pp. 147-48). Mr. Matthews then crawled across his living room floor and out into the
hallway of his apartment building. (TT, pp. 90, 147, 161, 204). His next-door neighbor,
Donald Fuller, heard the struggle take place. Mr. Fuller came outside of his apartment
and tried to assist Mr. Matthews. Mr. Fuller had seen three (3) black men fleeing from
Mr. Matthews apartment when he peered through his peephole after he heard the
commotion outside. (TT, pp. 72-75, 77-80, 82, 147-49).
Law enforcement officials were dispatched to the scene at approximately 8:56
a.m. (TT, pp. 88-89). Officers and medical personnel arrived within minutes and found
Mr. Matthews in the hallway outside of his apartment, laying in a large pool of his own
blood. (TT, pp. 89-92, 104-05,147-48, 204). Mr. Matthews was bleeding profusely, and
5
he was fading in and out of consciousness due to the amount of blood loss he had
sustained. (TT, pp. 90-92, 104). Mr. Matthews was in substantial pain due to the
"multiple severe stab wounds" that he suffered. (TT, pp. 103-04, 148). His intestines
were hanging out of his body, and he was struggling to breathe because of a stab
wound to his lung. (TT, pp. 75, 105-06, 151). Mr. Matthews was transported in an
ambulance to Mercy Hospital. (TT, pp. 93, 107-08, 150). While he was in route to the
hospital, Mr. Matthews began panicking, believing that he was going to die, and he
attempted to provide paramedic Shawn Eigenbrode with information about the attack.
(TT, pp. 107-09, 150-51). Although he was struggling to breathe through an oxygen
mask, Mr. Matthews asked Mr. Eigenbrode to tell his mother, father, and daughter, if he
did not survive, that he loved them. (TT, pp. 105, 107,120-121, 150-51). Mr. Matthews
also relayed to Mr. Eigenbrode that he was stabbed by his ex -girlfriend's brothers and
that there were three (3) men who attacked him. (TT, pp. 109-10, 113-15, 150). When
Mr. Eigenbrode asked the name of his ex -girlfriend, Mr. Matthews replied, "London
Banks." (TT, pp. 110, 150).
Upon his arrival at Mercy Hospital, Mr. Matthews was put into a medically
induced coma for approximately two (2) days. (TT, p. 151). For approximately the next
week, Mr. Matthews remained at the hospital, undergoing various surgeries and
treatment. (TT, pp. 151-53). On October 17, 2014, Mr. Matthews' condition stabilized
sufficiently that he was able to speak with the police about the attack and stabbing. Mr.
Matthews spoke with Detective Judd Emery, identifying his attackers as Jerome and
James Banks, the younger brothers of his ex -girlfriend, London Banks. Mr. Matthews
6
was presented with separate photo arrays for each brother, and he positively identified
both brothers without any hesitation. He circled their pictures, wrote their nicknames
next to their faces, and signed his name. (TT, pp. 167-171; 257-262)
After spending approximately a week in the hospital, Mr. Matthews was
discharged. Unfortunately, he was readmitted less than 48 hours later due to various
complications from his injuries. (TT, pp. 151-52). Mr. Matthews required yet more
surgical procedures,and he developed deep vein thrombosis. (TT, p. 152). He spent
nearly a month in the hospital due to the complications that he developed from his stab
wounds. (TT, p. 152). He was ultimately discharged from the hospital on November 6,
2014. (TT, pp. 152-53). By the time of trial, Mr. Matthews still was experiencing the
symptoms from nerve damage in both of his hands and in his lower back. (TT, p. 153).
He continued to struggle with pain in his abdominal area from the scar tissue that had
developed after his surgeries. (TT, p. 153). He reported some slight short-term
memory loss from the head injury that had been caused by the blows from the brick
wielded by Jerome Banks. (TT, pp. 153-54). In addition to his physical injuries, Mr.
Matthews struggled with anxiety and post -traumatic stress, and he reported difficulty
sleeping since the attack in his bedroom. (TT, p. 153).
Prior to the attack, Mr. Matthews had been working full-time at the Chipotle
Mexican Grill. (TT, pp. 128, 154). He primarily worked on the grill and was also training
for a management position at the restaurant. (TT, p. 128). Since the stabbing,
7
however, Mr. Matthews has not been able to work in any capacity because he is
significantly limited in his ability to use his hands for an extended period of time. (TT,
pp. 154-55). It is also difficult for him to work in any position that requires lifting or
squatting because of the scar tissue in his stomach and the nerve damage in his back.
(TT, p. 154). Mr. Matthews also has difficulty sitting and standing for prolonged periods
of time because he experiences severe, sharp pains in his back that shoot down his leg.
Mr. Matthews is unsure whether he will be able to work a full workday again. (TT, pp.
154-55).
II. DISCUSSION
A. The Defendant's convictions for Attempted Murder, Criminal
Conspiracy, Robbery, Burglary, and Aggravated Assault were not
against the weight of the evidence.
In his first allegation of error, the Defendant contends that this court "abused its
discretion in denying the post -sentence motion [because] the evidence presented was
so contrary to the verdict rendered that it shocks one's sense of justice." (Concise
Statement, pp. 2-3). In support of his assertion, the Defendant cites to: (i) the lack of
physical and scientific evidence implicating the Defendant in the commission of the
crimes, (H) the credibility of the victim and the conditions surrounding his identification of
the Defendant, (Hi) the fact that the Defendant and the unidentified coconspirator
perpetrated the attack using knives from Mr. Matthews' kitchen, (iv) the fact that the
Defendant presented an alibi defense at trial, and (v) the apparent lack of motive for the
attack. (Id.).
8
It is well -established that a challenge to the weight of the evidence "concedes
that there is sufficient evidence to sustain the verdict." Commonwealth v. Widmer, 744
A.2d 745, 751 (Pa. 2000); Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa. Super.
2005), appeal denied, 880 A.2d 1237 (Pa. 2005) ("A true weight of the evidence
challenge concedes that sufficient evidence exists to sustain the verdict but questions
which evidence is to be believed.") (emphasis added). In reviewing claims that the
verdict was against the weight of the evidence, our appellate courts have explained that
Mho weight of the evidence is exclusively for the finder of fact who is
free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may only reverse the lower
court's verdict if it is so contrary to the evidence as to shock one's sense
of justice. Moreover, where the trial court has ruled on the weight claim
below, an appellate court's role is not to consider the underlying question
of whether the verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
Commonwealth v. Lewis, 911 A.2d 558, 565 (Pa. Super. 2006) (emphasis
added); Commonwealth v. Torres, 578 A3d 1323, 1326 (Pa. Super. 1990) ("The
determination whether to grant a new trial on the ground that the verdict is
against the weight of the evidence rests within the discretion of the trial court,
and we will not disturb that decision absent an abuse of discretion.").
Indeed, "appellate review of a trial court's decision on a weight of the
evidence claim is extremely limited." Torres, supra, at 1326. Courts have
reasoned that
9
[b]ecause 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.
Widmer, supra, at 753. Stated differently, "[o]ne 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 and that a new trial should be granted in the
interest of justice." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting
Widmer, supra, at 753).
In determining whether a trial court abused its discretion in denying a
motion for a new trial based on a claim that the verdict was against the weight of
the evidence, our Supreme Court has cautioned that
[a] new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have arrived at a
different conclusion. [Widmer, supra, at 751-52]. Rather, "the role of the
trial judge is to determine that 'notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice."' [Widmer, supra] at 752 (citation
omitted). It has often been stated that "a new trial should be awarded
when the jury's verdict is so contrary to the evidence as to shock one's
sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail." [Commonwealth v. Brown,
648 A.2d 1177, 1189 (Pa. 1994)].
Clay, supra, at 1055.
This court did not abuse its discretion in denying the Defendant's post -sentence
motion because the verdict was not against the weight of the evidence. To the contrary,
10
the weight of the evidence presented at trial was substantially against the Defendant
and his brother, Jerome Banks. Although the Defendant correctly notes that the
Commonwealth was unable to present physical or scientific evidence linking him to the
crime, his "CSI" argument loses substantial force when considered against the evidence
as a whole, and it seeks to distract one's attention away from the fact that the
determination of guilt in this case was centered on credibility determinations and the
resolution of conflicting testimony, matters that are solely within the province of the jury.
Although this court did not sit as the fact -finder, it presided over the trial and
closely studied the victim as he recounted the horrific events that unfolded on October
10, 2014. At all times throughout the proceedings, Mr. Matthews came across as
sincere, genuine, and highly credible. He testified calmly, confidently and consistently,
and his credibility was bolstered by other compelling pieces of evidence that
corroborated his account of what transpired on October 10, 2014.
One of the most salient pieces of evidence in this case was the fact that Mr.
Matthews identified the Banks brothers as his attackers on the way to the hospital, while
believing he was going to die. (TT, pp. 107-09, 150). Mr. Matthews told paramedic
Shawn Eigenbrode, as he was bleeding out and struggling to breathe, that he was
stabbed by his ex-girlfriend's younger brothers. (TT, pp. 107-09,121,150-51). When the
paramedic asked the name of his ex -girlfriend, Mr. Matthews replied, "London Banks."
(TT, pp. 110, 150). Mr. Eigenbrode testified at trial and corroborated Mr. Matthews'
11
testimony. Specifically, Mr. Eigenbrode confirmed that, while they were in the
ambulance, Mr. Matthews asked him, "Am I going to die?" and he also testified that Mr.
Matthews told him he was attacked by "his ex's brothers." (TT, 107-109). Although Mr.
Matthews' injuries were not ultimately fatal, Mr. Matthews essentially made a dying
declaration to Mr. Eigenbrode when he identified his attackers in the ambulance,
because he genuinely believed he was going to die. Our Supreme Court has
recognized the reliability of dying declarations, noting that such reliability "is based on
the premise that no one who is immediately going into the presence of his Maker will do
so with a lie upon his lips." Commonwealth v. Smith, 314 A.2d 224, 225 (Pa. 1973)
(internal quotations omitted). For that reason, our Supreme Court has even stated that
dying declarations "should be considered as the equivalent of testimony given under
oath in open Court" because an individual who believes that death is imminent is "more
likely to tell the truth than is a witness in Court who knows that if he lies he will have a
locus penitentiae, an opportunity to repent, confess and be absolved of his sit]"
Commonwealth v. Brown, 131 A.2d 367, 369-370 (Pa. 1971).
Thus, the fact that Mr. Matthews identified the Banks brothers as his attackers
while he thought he was dying on the way to the hospital makes his identification highly
credible and worthy of belief. It should be noted that at trial, the defense attempted to
undermine the identification made in the ambulance by claiming that Mr. Matthews
identified his ex -girlfriend as "Linda Bey." (TT, pp. 114-16, 121, 222). This argument is
nothing more than an attempt to mislead the jury. When considered against the
evidence in its entirety, it is clear that the "name issue" is a desperate attempt by the
12
defense to attack the credibility of the victim. Considering Mr. Matthews' physical
condition, the noise from the ambulance's sirens, the fact that Mr. Matthews was
"panicking" and that he was trying to speak through an oxygen mask, with a punctured
lung, at the time he made his identification, Mr. Eigenbrode understandably could have
been confused as to the name that he thought that he heard. (TT, pp. 120-21). This is
even more likely given that "London" is a much less common name than "Linda". Given
how similar the names sound even without all of the background noise, Mr. Eigebrode's
confusion as to the name is easily understood. In any event, any discrepancy as to the
identification of the perpetrators was for the jury to consider and resolve. The jurors
obviously resolved this "discrepancy" in Mr. Matthews' favor after weighing the evidence
as a whole. It should also be noted that Mr. Matthews identified his attackers as the
brothers of his ex -girlfriend, no matter what name was heard or mis-heard, and he
testified credibly that he did not even know, let alone date, a Linda Bey.
Any doubt as to whether Mr. Matthews said the name "Linda Bey" or "London
Banks" is further cast away by the fact that Mr. Matthews identified the Banks brothers
as his attackers two (2) more times in the week following his attack. Detectives Emery
and Bolin initially went to the hospital on the day of the stabbing to talk to Mr. Matthews,
but they were unable to speak with him because of his condition. (TT, p. 257). On
October 14, 2014, Detectives Emery and Bolin returned to the hospital, and they were
able to have a brief conversation with Mr. Matthews about the attack. (TT, p. 257). Mr.
Matthews told them that he knew two (2) of his attackers because they were his ex -
girlfriend's brothers, and he identified his ex -girlfriend as London Banks. (TT, p. 257).
13
On October 17, 2014, Detective Emery returned to the hospital and presented Mr.
Matthews with two (2) separate photo arrays for purposes of making an official
identification. (TT, pp. 167-71, 257-262). Mr. Matthews had no trouble positively
identifying the brothers in each array. He circled their pictures, wrote their nicknames
"Jimmy" (James Banks) and "Rome" (Jerome Banks) next to their respective pictures,
and signed his name. (TT, pp. 167-261-62). Thus, from the time of the attack
throughout all the proceedings, Mr. Matthews consistently maintained that the Banks
brothers were responsible for his stabbing, which further demonstrates the reliable and
credible nature of his testimony.
Although the Defendant attempts to undermine the circumstances surrounding
his ability to see his attackers, this argument is unavailing in light of the fact that the
attack happened around 8:30 a.m. in the morning, and the sheer curtains in Mr.
Matthews' bedroom were open when the attack occurred. (TT, pp. 142, 277).
Additionally, the attackers made no efforts to cover or mask themselves. Mr. Matthews
was easily able to identify the familiar faces that he saw in his room. Additionally, he
was able to recognize their voices, as well as their appearances.
The court further notes that, although there were no other eyewitnesses that
could speak to the identity of the attackers, the testimony of Mr. Matthews' next-door
neighbor, Donald Fuller, also lent substantial credibility to Mr. Matthews' account of
what transpired. As noted, Mr. Fuller and Mr. Matthews' apartments shared a common
14
wall. Because the walls were thin, Mr. Fuller was able to hear the attack take place.
(TT, pp. 72-74). He testified that he and his girlfriend were actually awakened by the
sound of a struggle taking place in Mr. Matthews' apartment. Mr. Fuller testified that it
sounded like people were "wrestling" or "playing football" in the apartment. (TT, pp. 72-
73). Significantly, Mr. Fuller heard a man say, "Give me the money, give me the
money," and he heard Mr. Matthews respond by saying "I don't got no money, I don't
got no money," (TT, p. 73). Mr. Fuller then looked out the peephole in his front door
and saw three (3) black men running out of Mr. Matthews' apartment and down the
stairs of the apartment building. (TT, pp. 74, 78, 80). Mr. Fuller credibly corroborated
key details of the victim's account of the incident.
Mr. Fuller's testimony also corroborated another relevant point regarding the
entry into the apartment building. Mr. Matthews testified that, although he lived in a
"secure" building, the security door was anything but secure because it easily could be
opened with the use of a credit card. (TT, pp. 165, 179). Mr. Matthews testified that he
showed London Banks how to open the door with a credit card during the time that she
resided with him. Mr. Fuller testified that "everybody was accessing [the security door]
through a credit card." (TT, pp. 84, 165, 179). Detective Emery further corroborated
the ease with which the building could be accessed, testifying that he used a business
card to gain entry into the building. (TT, p. 281). Given that the Defendant's sister knew
how to access the building, and given that the Defendant had been in Mr. Matthews'
apartment on at least one (1) prior occasion, this was another link in the chain of
evidence that was relevant to the determination of guilt in this matter. (TT, pp. 165-66).
15
With respect to the lack of physical and scientific evidence in this case, the court
notes that Mr. Matthews' own fingerprints could not be lifted from his own apartment
door. (TT, p. 276). Additionally, no testing was conducted on the security door of the
building because of the amount of traffic that flows through that door and because the
officers touched the door when they were conducting their investigation. (TT, p. 280).
No scientific testing could be conducted on the knives that were used in the attack
because they were never located. The brick used by Jerome Banks was tested, but,
because of the nature of its surface, there was no evidence that could be successfully
lifted from it. (TT, pp. 241-42).
The Defendant also suggests that it was illogical that he and his unidentified co-
conspirator armed themselves with knives from Mr. Matthews' own apartment instead of
bringing their own weapons with them. (TT, pp. 140-41, 230). Again, this was an
argument that was for the jury to consider. The jurors evidently rejected this argument,
perhaps because it is well -understood that criminals often do not behave logically and
are opportunistic. Moreover, Mr. Matthews testified that he recognized the knives as his
own, and he never saw them again after the incident. Regardless of when and how the
intruders armed themselves, the fact remains that they were armed with deadly
weapons and used those weapons to inflict serious bodily injury upon the victim.
16
The Defendant also attempts to undermine the victim's credibility by arguing
that it was illogical for him to keep his door unlocked given the neighborhood in which
he lives. To that end, Mr, Matthews testified he had a "bad habit" of leaving his
apartment door unlocked. He further testified credibly that the door was left unlocked
the morning of the incident because his new girlfriend had left his apartment at 2:00
a.m. to go to work, and he forgot to lock the door behind her. (TT, pp. 182-83, 272).
Even if Mr. Matthews could have exercised more care in securing entry into his own
apartment, the reason why his door was unlocked was easily explained by him and is
ultimately irrelevant to the question of who attacked him.
Finally, the Defendant contends that the verdict was against the weight of the
evidence because he presented an "alibi" defense at trial. His alibi defense, however,
was not based on any piece of objective evidence, but rather the testimony of his
child's
mother, Angela Teasley, and her mother, Tiffany Teasley. (Jury Trial Transcript,
Volume II ("TT2"), 4/5/16-4/8/16, pp. 5-47). The Defendant's alibi defense relied solely
on whether the jury found the Teasley women to be credible, and it is not at
all
surprising that the jurors ultimately rejected the alibi defense as not worthy of belief.
First, Angela and Tiffany Teasley were interviewed by a defense investigator on
their
June 29, 2015 at the same time, in the same room, thereby allowing them to align
stories. (TT2, pp. 7, 16, 22, 24). Second, Angela Teasley materially changed the
she
details of her alibi defense between the time of her statement and trial. Specifically,
17
first claimed that she was able to remember exactly where the Defendant was on the
day of the incident because on October 9, 2014, the day before the incident, the
Defendant accompanied her to Magee Women's Hospital to find out the gender of their
baby. (TT2, pp. 8, 22-27). She admitted that she had used that hospital date as the
lynchpin for determining where the Defendant was on October 10, 2014. (TT2, p. 28).
However, after finding out that the Commonwealth would be able to prove through
medical records that she was never at the hospital on October 9, 2014, Angela Teasley
changed her story and said that the Defendant was at her mother's house with her from
October 9, 2014 until October 11, 2014, and that the couple did not leave the house at
all for those three (3) days. (TT2, pp. 13-14, 28-29).
The court notes that it had the opportunity to observe Angela Teasley as she
testified, and her testimony was not credible in the least. Between her demeanor and
tone, her obvious bias and her desire to keep her child's father from going to prison, it is
not surprising that the jury rejected her testimony and found it unworthy of belief. This
court notes that it found, after hearing the same testimony as the jurors, that Ms.
Teasley's alibi testimony was entirely unworthy of any belief.
It is also no mystery why the jury also rejected the testimony of "alibi" witness
Tiffany Teasley. The court notes that Tiffany Teasley cannot even be considered a
proper alibi witness because she could not account for the Defendant's whereabouts
during the specific timeframe of the attack. (TT2, pp. 43-45). Although she testified that
18
the Defendant was at her house between October 9, 2014 and October 11, 2014, she
specifically testified that she was asleep until almost noon on the day of the incident.
(TT2, pp. 39, 42-45), Tiffany Teasley, therefore, was unable to place the Defendant at
her home at the time of the attack, and she had no way of knowing where the
Defendant was at approximately 8:30 a.m., when the attack on Mr. Matthews occurred.
Accordingly, for all of the reasons cited above, there is no merit to the
Defendant's claim that he deserved a new trial because the verdict was against the
weight of the evidence. The Defendant's challenge to the weight of the evidence is, at
its core, an invitation for the appellate court to reweigh the evidence and second-guess
the credibility determinations made by the jury in this case. The reviewing court
respectfully should decline to accept such an invitation because "[i]t was the function of
the jury as the finder of fact to evaluate the evidence and determine the weight it should
be given." Lewis, supra, at 566. All of the purported weaknesses in the
Commonwealth's case as were outlined in the Defendant's Concise Statement were
matters for the jury to resolve. Based on the foregoing discussion of evidence, the
jurors' assessment of the evidence and their credibility determinations did not shock this
court's sense of justice in any way. There were no facts in this case that were "so
clearly of greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice." Clay, supra, at 1055. To the contrary, the weight of the
evidence was squarely against the Defendant, and this court did not abuse its discretion
when it denied his motion for a new trial.
19
B. This court did not abuse Its discretion when it imposed an aggregate
sentence of imprisonment of 26 to 52 years of Imprisonment.
The Defendant contends that his standard range sentences were "manifestly
unjust, unreasonable, and excessive," and he argues that the court abused its discretion
when it imposed consecutive sentences. (Concise Statement, pp. 3-4). In support of
his argument, he claims that the court "failed to appropriately consider" his history,
character, substance abuse problems, and rehabilitative needs. He also cites to the fact
that his criminal background involved only non-violent misdemeanor crimes and that he
expressed remorse at sentencing. (Id. at 3-4).
It is well -settled that "[s]entencing 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." Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.
2003). "To constitute an abuse of discretion, the sentence imposed must either exceed
the statutory limits or be manifestly excessive." Commonwealth v. Gaddis, 639 A.2d
462, 469 (Pa. Super. 1994) (citations omitted). To that end, "an abuse of discretion may
not be found merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice,
bias, or or such lack of support so as to be clearly erroneous." Commonwealth v.
Greer, 951 A.2d 346, 355 (Pa. 2008). "In determining whether a sentence is manifestly
excessive, the appellate court must give great weight to the sentencing court's
discretion." Mouzon, supra, at 1128. This deferential standard of review acknowledges
that the sentencing court is "in the best position to view the defendant's character,
20
displays of remorse, defiance, indifference, and the overall effect and nature of the
crime." Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011) (internal
citations omitted).
The Defendant's sentencing argument seeks to challenge the discretionary
aspects of sentencing. The court notes that "[t]he right to appeal a discretionary aspect
of sentence is not absolute." Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa.
Super. 1999). A defendant "challenging the discretionary aspects of his sentence must
invoke [appellate] jurisdiction by satisfying a four-part test." Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010). In conducting the four-part test, the appellate
court analyzes
(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.
[708]; (3) whether appellant's brief has a fatal defect, Pa. R. A. P. 2119(0;
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).
Id. at 170. "The determination of whether there is a substantial question is made on a
case -by -case basis, and [the appellate court] will grant the appeal 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.
Haynes, 125 A.3d 800, 807 (Pa. Super. 2015).
21
Our courts have "held on numerous occasions that a claim of inadequate
consideration of [mitigating) factors does not raise a substantial question for 0 review."
Haynes, supra, at 807; Commonwealth v. Buterbauoh, 91 A.3d 1247, 1266 (Pa. Super.
2014). Furthermore, "a sentencing court generally has discretion to impose multiple
sentences concurrently or consecutively, and a challenge to the exercise of that
discretion does not ordinarily raise a substantial question." Commonwealth v. Raven, 97
A.3d 1244, 1253 (Pa. Super. 2014). Moreover, "bald claims of excessiveness due to
the consecutive nature of sentences imposed will not raise a substantial question."
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). Rather, "[t]he
imposition of consecutive, rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the crimes and the length of
imprisonment." Mourv, supra, at 171-72.
Respectfully, the reviewing court should find that the Defendant has failed to
raise a substantial question for review of his sentence. The Defendant's standard range
sentences were consistent with the sentencing provisions of the Sentencing Code, and
they did not conflict with the fundamental norms that underlie the sentencing process.
However, should the Superior Court conclude that there exists a substantial question as
to the appropriateness of the sentence, the aggregate sentence imposed was justified
by the totality of the circumstances in this case.
22
First, the court notes that it had the benefit of a presentence report to aid in its
sentencing determination, and, pursuant to its consistent practice, the court carefully
reviewed this report prior to sentencing. (Sentencing Hearing Transcript ("ST"), 7/14/16,
pp. 2-3); See Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005) (noting
that "the sentencing court had the benefit of reviewing the presentence investigation
report prior to sentencing and, as such, it is presumed that the sentencing court
'was aware of the relevant information regarding defendants character and weighed
those considerations along with mitigating statutory factors.") (internal citations
omitted). The court specifically noted at sentencing that it had reviewed the
presentence report three (3) separate times in preparation for sentencing. (ST, p. 3).
This court, therefore, was well -familiar with the Defendant's personal background,
criminal history, and substance abuse issues, and it took each one of those factors into
account in determining what sentence would be appropriate in this case. (ST, p. 35).
Second, the court considered a number of different factors beyond the heinous
and serious nature of the Defendant's crimes. In addition to giving meaningful
consideration to the Defendant's background, history, and need for rehabilitation, the
court considered the arguments of counsel at sentencing, the victim impact testimony
from Mr. Matthews and his mother, and the Defendant's allocution to the court. (ST, pp.
10-29).
23
This court would note that the victim's testimony at sentencing was particularly
impactful. Having closely studied the victim as he testified at trial, and again during
sentencing, the court found Mr. Matthews to be extremely credible and sincere in his
description, not only of the events that transpired on the day of the incident, but also in
his description of the physical and emotional pain that he continues to struggle with as a
result of his brutal attack that almost took his life. The effects of the stabbing have
completely derailed Mr. Matthews from the management track that he was on before the
incident, and, at the time of trial, he still had not been able to return to work. Mr.
Matthews does not know whether he will ever be able to work a full work day in the
future. He continues to have difficulties and challenges with even the most basic of
bodily functions, such as grip strength. His mother's testimony also noted that his
relationship with his child has changed fundamentally, as he cannot interact and play
with his child in the manner that he was able to prior to the attack. His basic ability to be
a father has been compromised.
The Defendant and his co-conspirators robbed the victim of much more than his
electronic possessions. They robbed him of his sense of security inside of his own
apartment and broke his trust in society as a whole. The stabbing has caused Mr.
Matthews to suffer from anxiety and post -traumatic stress. Mr. Matthews has been
robbed of one of the most precious commodities - sleep. He is unable to sleep
because the attack occurred while he was in his bed, the place where one should
always feel most safe.
24
While counsel attempted to re -litigate the facts of the case at sentencing, and
while the Defendant maintained his innocence in the matter, the jury rejected his alibi
defense at trial, likely because it was entirely unworthy of belief and unable to be
corroborated by any objective and unbiased evidence. As noted above, the alibi
witnesses had close ties to the Defendant and, thus, had every incentive to testify
favorably for the Defendant.
As the Defendant acknowledges in his Concise Statement, the sentences
imposed were standard range sentences, and courts have recognized that "where a
sentence is within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code." Commonwealth v. Lamonda, 52
A.3d 365, 372 (Pa. Super. 2012); See also Commonwealth v. Cruz -Centeno, 668 A.2d
536 (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996) (stating combination
of PSI and standard range sentence, absent more, cannot be considered excessive or
unreasonable).
In any event, a defendant is not entitled to a concurrent sentencing scheme, and
the Defendant in this case certainly was not deserving of a "volume discount" for
committing serious crimes that involved breaking into the victim's apartment, brutally
stabbing him and almost taking his life, then robbing him of his belongings. See
Commonwealth v. Hoaq, 665 A.2d 1212, 1214 (Pa. Super. 1995) ("The general rule in
Pennsylvania is that in imposing a sentence the court has discretion to determine
25
whether to make it concurrent with or consecutive to other sentences then being
imposed or other sentences previously imposed."); Commonwealth v. Anderson, 650
A.2d 20, 22 (Pa. 1994) (raising a concern that defendants not be given "volume
discounts" for multiple criminal acts that arose out of one larger criminal transaction).
Accordingly, after considering all of the evidence presented at trial and
sentencing, as well as all of the statutory factors set forth in 42 Pa. C.S.A. §9721(b), this
court's decision to employ a consecutive sentencing scheme so as to impose an
aggregate sentence 26 to 52 years of imprisonment was justified by the totality of the
circumstances in this case. While the court considered the mitigating aspects of the
Defendant's circumstances, it found that the mitigating factors did not outweigh other
relevant considerations outlined above. The Defendant's conduct demonstrates a
disregard for the law and an indifference to the value of human life, and this, in turn,
creates a substantial need to protect the public from his behavior. Accordingly, this
court did not abuse its discretion in imposing sentence, and this allegation of error
should be rejected on appeal.
26
III. CONCLUSION
The Defendant's contentions on appeal are without merit, Based on the
foregoing, the verdict was not against the weight of the evidence, and the sentence
imposed was not an abuse of discretion. Accordingly, this court respectfully requests
that the verdict and sentence in this case be upheld.
BY THE COURT:
BE
February 15, 2017
27