Com. v. Baxter, J.

J-S56024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JUSTIN TYRONE BAXTER
Appellant No. 1752 MDA 2015
Appeal from the Judgment of Sentence March 24, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000913-2014
CP-22-CR-0005089-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED AUGUST 26, 2016
Appellant, Justin Baxter, appeals from the judgment of sentence
entered in the Court of Common Pleas of Dauphin County after a jury
convicted him of aggravated assault,1 carrying a firearm without a license,2
persons not to possess a firearm,3 and simple assault by physical menace.4
We affirm.
The trial court summarized the factual history as follows.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 2702(a)(1).
2
18 Pa.C.S.A. § 6106(a)(1).
3
18 Pa.C.S.A. § 6105(a)(1).
4
18 Pa.C.S.A. § 2701(a)(3).
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Dion Dickens testified that he was inside 1611 Thompson Street
when he heard loud voices outside arguing. He went outside and
saw his daughters, Monique and Tiana, as well as Joseph Payne-
Casiano, Baxter and Michael Gelsinger near a parked car. After
telling Payne-Casiano and Baxter to stop arguing, Dion saw
Baxter go behind a vehicle and heard the “cocking” of a gun.
Dion then saw Baxter return from behind the car with his hand
on a gun tucked into his pants. After Baxter returned
brandishing the gun, Gelsinger told him that “we can light this
street up” while displaying a gun tucked into his pants. The
initial altercation subsided with Payne-Casiano and Gelsinger
returning to their car, and Baxter walking away down toward his
house on the right side of the roadway. Dion witnessed the car
driven by Payne-Casiano slowly drive toward Baxter, saw
Gelsinger reach out of the passenger window and fire multiple
shots toward Baxter, who at the time was adjacent to the vehicle
on Gelsinger’s side. Dion then saw Baxter fire shots back toward
Payne-Casiano and Gelsinger.
Monique Dockens also testified that an initial altercation between
Payne-Casiano, Gelsinger and Baxter occurred outside of her
house. She testified that at some point she heard Baxter cock
something and then saw him display a gun.
***
Trial Court Memorandum, 7/28/15, at 1-2.
The trial court sentenced Baxter to an aggregate term of 9½ to 19
years’ imprisonment. Baxter’s post-trial motion for reconsideration was
denied. This timely appeal followed.
On appeal, Baxter raises two issues for our review. In his first issue,
Baxter contends that his aggravated assault conviction is against the weight
of the evidence. In his second issue, Baxter challenges discretionary aspects
of his sentence. Specifically, Baxter argues that the trial court erred in
imposing consecutive sentences for his aggravated assault and carrying a
firearm without a license convictions.
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We will first address Baxter’s weight of the evidence claim.
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.
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. Orie, 88 A.3d 983, 1015-1016 (Pa. Super. 2014)
(citation omitted).
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After reviewing the record, we discern no abuse of discretion in the
court’s assessment of the credibility of the witnesses or weight of the
evidence at trial. Thus, we conclude that Baxter’s first issue merits no relief.
We now turn to Baxter’s second issue, in which he challenges the
discretionary aspects of his sentence. We note that an appellant’s right to
appeal the discretionary aspects of his sentence is not absolute. See
Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006).
Rather, an appellant must first file a “petition for allowance of appeal.” 42
Pa.C.S.A. § 9781(b). An appellate court may grant allowance of the appeal
“where it appears that there is a substantial question that the sentence
imposed is not appropriate under … [the sentencing guidelines].” Id. The
procedure for filing this petition is set forth in Pa.R.A.P. 2119(f), which
provides as follows.
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate section
of the brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence. The statement shall immediately precede the
argument on the merits with respect to the discretionary aspects
of the sentence.
Here, Baxter failed to include a separate Rule 2119(f) statement in his
brief. The Commonwealth objected to Baxter’s omission. Because Baxter
failed to comply with Rule 2119(f) and the Commonwealth objected to the
omission, this Court may not review the merits of Baxter’s claim. See
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Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).5
Accordingly, we deny allowance of appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2016
____________________________________________
5
Even if Baxter had included a Rule 2119(f) statement in his brief, we would
not have reached the merits of his appeal because the issue he raised failed
to present a substantial question. See Commonwealth v. Austin, 66 A.3d
798, 808 (Pa. Super. 2013) (“[T]he imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances….”) (emphasis added). That is simply not the case
here.
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