Com. v. Winters, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TIMOTHY WINTERS
Appellant : No. 756 WDA 2018
Appeal from the Judgment of Sentence April 9, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002730-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY PANELLA, P.J.: FILED JULY 19, 2019
Timothy Winters appeals from the judgment of sentence entered in the
Erie County Court of Common Pleas following his conviction of simple assault,
unlawful dissemination of an intimate image, obscene materials, and criminal
mischief. Appellant challenges the sufficiency of the evidence, the weight of
the evidence, and the discretionary aspects of his sentence. We affirm.
The trial court summarized the facts of this case as follows.
Appellant's charges arose on the afternoon of August 8, 2017, in
the City of Erie, when Appellant broke into the home of his
estranged wife, ["the Victim"], damaging the back door in the
process. The Victim was in an upstairs bedroom having sex with
[A.H.]. Appellant made his way to the bedroom while using his
phone to record the Victim, who was wearing only a black tank
top. She was naked from the waist down. Appellant streamed her
* Retired Senior Judge assigned to the Superior Court.
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partially nude images on Facebook Live for public viewing on his
Facebook page.
Appellant assaulted A.H. and the Victim. He punched A.H. several
times around the head and neck with a closed fist. He grabbed the
Victim and threw her on the bed. The Victim called 911 and gave
a description of Appellant carrying a silver cigarette rolling
machine and his clothing, a blue striped shirt and white sneakers,
to emergency operators. Appellant made his way out the back
door with the video recorder still running. The video depicts
Appellant's distinctive sneakers and silver cigarette rolling
machine. The video shows Appellant jumping fences through back
yards as he fled the scene.
Appellant was apprehended a block and [a] half from the
residence, within two minutes of the 911 dispatch. City of Erie
Police Officer Ronald Pilarski ("Pilarski") had been patrolling the
neighborhood about three blocks from the [] residence. Pilarski
heard the 911 call come through as a disturbance. Pilarski saw
Appellant jogging about a block and [a] half from the residence,
carrying a silver cigarette rolling machine. Pilarski was able to
match Appellant and his clothing to the description given by the
Victim. Pilarski detained Appellant and placed him in handcuffs in
the back seat of his patrol car.
Pilarski proceeded to the [] home where he interviewed the Victim
and A.H. Another patrol car arrived and the officers watched over
Appellant while Pilarski was inside the [] home. Pilarski observed
[A.H.'s] injuries and the damage to the rear door. Pilarski was told
at the scene that there may have been some videos taken of the
victims.
Appellant was then transported to the police station where his cell
phone and clothing were removed from his person. Appellant's
shirt and shoes were tagged into evidence. As Pilarski was
interviewing Appellant at the station, the Victim phoned the police
station to report Appellant's recordings of her partially nude
images were appearing on the internet for public viewing.
Pilarski received consent from Appellant to search his phone. The
video depicting inappropriate images of the Victim did not appear
on Appellant's phone but did appear on Appellant's Facebook page
after the police logged on to Appellant's account. Thereafter, the
police obtained a search warrant for Appellant's phone and
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Facebook account which was served on Facebook. Inappropriate
images of the Victim wearing only a black tank top were posted
on Facebook Live at 2:03 p.m. Screenshots from Appellant's video
depict his distinctive sneakers and cigarette rolling machine as he
is fleeing the residence.
The Victim placed the 911 call at 2:04 p.m. and the call was
dispatched at 2:07 p.m. Appellant was apprehended by Pilarski
within two minutes of the dispatch, at 2:09 p.m. No one other
than Appellant had touched or taken possession of his cell phone
before it was taken from Appellant at the police station.
Trial Court Opinion, 7/12/18, at 1-3.
Following a jury trial, Appellant was convicted of simple assault,
unlawful dissemination of intimate image and obscene materials. The trial
court convicted Appellant of one summary count of criminal mischief.
Subsequently, the trial court imposed an aggregate sentence of 28 to 56
months' imprisonment, followed by 90 days' probation, broken down as
follows: 12 to 24 months' imprisonment for simple assault, 16 to 32 months'
imprisonment for obscene materials, and 90 days' probation for criminal
mischief.' All of these sentences were set to run consecutively. This appeal
follows the denial of Appellant's post -sentence motions.
Appellant presents three questions for our review:
1. Did the Commonwealth present insufficient evidence to sustain
each of Appellant's convictions as the testimony was so
contradictory on the essential issues that the jury's findings
were based on mere conjecture and speculation?
2. Did the trial court erred [sic] when it denied Appellant's post -
sentence request for relief on weight of the evidence grounds?
' Appellant's unlawful dissemination of an intimate image conviction merged
with his obscene materials conviction for sentencing purposes.
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3. Did the trial court commit an abuse of discretion by imposing
an aggregate sentence that was manifestly excessive, clearly
unreasonable, and inconsistent with the objectives of the
Pennsylvania Sentencing Code?
Appellant's Brief, at 8.
In his first issue on appeal, Appellant contends that the evidence was
insufficient to support his convictions. Specifically, Appellant asserts the
Commonwealth failed to meet its burden of proof because "the testimony was
so contradictory on the essential issues that the jury's findings were based on
mere conjecture and speculation[.]" Appellant's Brief, at 8 ¶ 1. However,
because Appellant failed to properly preserve this issue in his Rule 1925(b)
statement, we find this issue waived for our review.
To preserve a sufficiency challenge, an appellant's Rule 1925(b)
statement must state with specificity the element or elements of the crime
upon which the appellant alleged the Commonwealth's evidence was
insufficient; the failure to specify the particular element or elements in
question will result in waiver of the sufficiency challenge on appeal. See e.g.,
Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017);
Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015);
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013);
Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008);
Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa. Super. 2007).
Waiver of a sufficiency challenge in this context occurs even where the trial
court addresses the issue in its Rule 1925(a) opinion and where the
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Commonwealth does not object to the defective Rule 1925(b) statement. See,
e.g., Roche, 153 A.3d at 1072.
Here, in his Rule 1925(b) statement, Appellant alleged that his simple
assault, criminal mischief, unlawful dissemination, and obscene material
convictions were based on insufficient evidence because "the victim and law
enforcement officers[] contradicted themselves [on] multiple occasions on
factual matters and that those factual matters were a substantial deviation
from what the Commonwealth alleged happened...." Appellant's 1925(B)
Statement of Matters Complained of on Appeal, 6/6/18, at ¶ 1. Appellant's
claim does not specify which element or elements of these multi -element
crimes Appellant contends the Commonwealth failed to prove. Therefore, we
are constrained to find Appellant has waived his sufficiency challenges on
appeal.
We further note that, even if this issue had been preserved, Appellant's
arguments are all more properly classified as challenges to the weight of the
evidence. For example, Appellant argues "the conviction of criminal mischief
rested entirely on the incredibly inconsistent testimony of a number of
witnesses." Appellant's Brief, at 29-30. He proceeds to highlight
inconsistencies regarding the state of the outside door to the residence, the
number of times Appellant punched A.H., and whether A.H. was in flagrante
delicto when the assault started. None of these inconsistencies are sufficient
to render the testimony mere conjecture. See Commonwealth v. Deiesus,
860 A.2d 102, 107 (Pa. 2004). The jury was free to weigh the consistency of
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the Commonwealth's evidence in reaching its verdict, and we will not disturb
its credibility determinations on appeal. See id.
Moving to his second issue on appeal, Appellant challenges the weight
of the evidence underlying his convictions.
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
on appellate review. 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. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal
citations and quotation marks omitted). "[I]t is for the fact -finder to make
credibility determinations, and the finder of fact may believe all, part, or none
of a witness's testimony." Id. (citation omitted; brackets in original).
"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." Commonwealth v. Champney,
832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is said to be
contrary to the evidence such that it shocks one's sense of justice when "the
figure of Justice totters on her pedestal," or when "the jury's verdict, at the
time of its rendition, causes the trial judge to lose his breath, temporarily, and
causes him to almost fall from the bench, then it is truly shocking to the
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judicial conscience." Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.
Super. 2004) (citations omitted).
Appellant contends that the Victim's and A.H.'s testimony was
inconsistent with other evidence, and that those inconsistencies raised
questions as to whether: 1) Appellant was able to break into the house without
anyone hearing him; 2) the attack on A.H. happened as Victim and A.H.
claimed; and 3) Appellant was able to post the video of Victim and A.H. to
Facebook. See Appellant's Brief, at 30-32; 34-35. Appellant claims that, due
to these inconsistencies, it was impossible for the jury to conclude beyond a
reasonable doubt that he was guilty of the crimes of which he was convicted.
As such, Appellant claims his guilty verdicts shock the conscience and
warrants a new trial. See id.
The trial court disagreed, finding that "[i]n this case, the jury was able
to reasonably find all the necessary elements of the crimes were established."
Trial Court Opinion, 7/12/18, at 16. Therefore, it concluded the verdicts "were
not so contrary to the evidence as to shock one's sense of justice." Id.
Upon review, we conclude that the trial court did not abuse its discretion
in denying Appellant's weight claim. Appellant's weight claim centered on his
belief that the inconsistencies between the victims' testimony and additional
evidence defeated the jury's ability to find guilt beyond a reasonable doubt.
However, at Appellant's trial, "the jury was the ultimate fact -finder and the
sole arbiter of the credibility of each of the witnesses." Commonwealth v.
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Jacoby, 170 A.3d 1065, 1080 (Pa. 2017). "Issues of witness credibility include
questions of inconsistent testimony..." Id., at 1081 (citation omitted). "A jury
is entitled to resolve any inconsistencies in the Commonwealth's evidence in
the manner that it sees fit." Id. (citation omitted). Further, "inconsistencies
in eyewitness testimony are not sufficient to warrant a new trial on grounds
that the verdict was against the weight of the evidence." Id. (citation
omitted). Here, the jury properly acted as the fact -finder and resolved the
inconsistences between the evidence in favor of the Commonwealth. The trial
court did not abuse its discretion in respecting the jury's credibility
determinations. Appellant's weight claims merit no relief.
Finally, Appellant argues that the trial court abused its discretion by
imposing a manifestly excessive sentence. See Appellant's Brief, at 8 ¶ 3, 24-
26, 35-37. "A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court's jurisdiction by satisfying a four-part test:
[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).
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Appellant preserved this issue through a timely post -sentence
motion, and filed a timely appeal. Counsel has included the required Rule
2119(f) statement. We therefore review the Rule 2119(f) statement to
determine if Appellant has raised a substantial question.
We examine an appellant's Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). "Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits." Id. (citation
omitted); see also Pa.R.A.P. 2119(f).
Appellant "must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code." McAfee,
849 A.2d at 274 (citation omitted). That is, "the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process." Tirado,
870 A.2d at 365.
Appellant contends the sentence imposed by the court was excessive,
as the court ran the sentences consecutively, as opposed to concurrently. "The
imposition of consecutive, rather than concurrent, sentences may raise a
substantial question in only the most extreme circumstances, such as where
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the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment." Moury, 992 A.2d at 171-172 (Pa. Super.
2010) (citation omitted).
The sentence imposed here, an aggregate of 28 to 56 months'
imprisonment, followed by 90 days' probation, is not unduly harsh given the
crime at issue. A jury convicted Appellant of four crimes stemming from his
physical attack and violation of the Victim and A.H.'s privacy. This is not an
extreme sentence. Appellant therefore does not raise a substantial question
for our review.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn, Es
Prothonotary
,
/(41611°I. -N
Date: 7/19/2019
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