Com. v. Moyer, D.

J-A22027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DERRICK WAYNE MOYER
Appellant No. 161 MDA 2016
Appeal from the Judgment of Sentence September 24, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000244-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 10, 2016
Appellant, Derrick Wayne Moyer, appeals from the judgment of
sentence entered following a jury trial in the Lycoming County Court of
Common Pleas. Moyer argues that the evidence adduced at trial was
insufficient to support his convictions, that the verdict was against the
weight of the evidence, and that the sentence imposed was manifestly
excessive. We affirm.
In January 2015, Moyer was arrested and charged with intimidation of
a witness,1 criminal use of a communication facility,2 and possessing an
instrument of crime.3 At trial, the Commonwealth presented the following
____________________________________________
1
18 Pa.C.S.A. § 4952(a)(1).
2
18 Pa.C.S.A. § 7512.
3
18 Pa.C.S.A. § 907(a).
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evidence. The victim, Gage Wood, testified that he knew Moyer prior to the
alleged offenses because the two had been previously housed together at
Lycoming County Prison. In the winter of 2014, Wood was a witness for the
Commonwealth in a murder case against Da’Ran Sears. Wood planned to
present testimony at the murder trial concerning “incriminating evidence of
what [Sears] told [Wood] at the prison regarding the murder case.” Notes of
Testimony, 9/15/15, at 12 (“N.T.”). Wood indicated that Moyer was friends
with Sears.
On January 18, 2015, Moyer placed a message on Wood’s public
Facebook page referring to Wood as a rat. Wood deleted the message and
privately messaged Moyer. The ensuing conversation, unedited, was as
follows.
Wood: You can be next
Moyer: What I will get Yuh fucked up
Wood: Ya we will ser
Wood: See
Wood: You got me Fucked up apparently
Moyer: Nigga yu a bitch cuz
Wood: But since You insist, y’all both can enjoy the witness
intimidation and tampering charges.
Wood: I’m saying you can slide through
Moyer: Bitch I’m on house arrest but where u stay at
Moyer: Aye yo bitch where you live
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Wood: Port
Moyer: Yu rat
Moyer: What street rat
Wood: Nice I’ll let Harry know how you are
Moyer: Shut up bitch
Wood: Sixth
Wood: Ave
Moyer: Address
Wood: 911 sixth
Wood: Corner of park
Wood: Way
Moyer: Grier nigga
Wood: Perfect slide, I’m white though
Moyer: IMA leave yu alone before Yuh hop on my case yu fukcin
rat yu told on my may but slide thru Grier whenever
Moyer: Yeah nigga just let me kno when yu gonna slide
Wood: That sucks, wasn’t my man’s that’s all that matters to me
Wood: don’t worry I won’t hop on your case, you just caught a
new case dumbass
Wood: They on the way. Second or third house?
Trial Court Opinion, 1/8/16, at 4-5.
Wood testified that he sent the message “[Y]ou can be next” to let
Moyer know that he would report Moyer for harassing and intimidating him.
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Further, Wood’s reference to “Harry” was known to both parties as the
intensive supervised bail officer on Moyer’s case. Wood ultimately told law
enforcement officers about Moyer’s messages on January 23, 2015, once he
“processed the severity of what could happen.” N.T., 9/15/15, at 22.
Once Wood reported the messages, Agent Stephen Sorage spoke to
Moyer. Agent Sorage testified that Moyer indicated that he knew Wood had
provided statements against Sears, but that he did not know if Wood “was
still telling.” Id. at 34. Agent Sorage asked Moyer, “if you knew that [Wood]
was telling, but didn’t know that [Wood] was still telling, why would you post
what you posted . . . if it wasn’t to keep [Wood] from telling?” Id. Agent
Sorage responded to Moyer’s subsequent silence by asking, “am I right or
wrong?” Id. Moyer responded, “right.” Id. Following this conversation,
Agent Trent Peacock, asked Moyer about the messages Moyer sent to Wood.
Moyer admitted to Agent Peacock that he initiated the messages by calling
Wood a rat, and that he used his cellular telephone to send the messages to
Wood through Facebook.
Moyer did not present any witnesses or offer any testimony on his
behalf. The jury convicted Moyer of all three charges. On September 24,
2015, the trial court sentenced Moyer to 60 to 120 months’ incarceration for
intimidation of a witness, and a consecutive term of 12 to 24 months’
incarceration for criminal use of a communication facility. Both sentences fell
within the aggravated range of the sentencing guidelines. The trial court did
not impose further penalty for Moyer’s possessing an instrument of crime
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conviction. Following the denial of post-sentence motions, this timely appeal
followed.
Moyer presents the following issues for our review, renumbered for
ease of disposition.
I. Whether the lower court abused its discretion by imposing
a manifestly excessive sentence of 6-12 years.
II. Whether the Commonwealth presented sufficient evidence
with respect to all the charges.
a. Whether the Commonwealth failed to produce sufficient
evidence that [Moyer’s] comment on Facebook, calling
the victim a “rat” was [intended] to keep the victim
from refraining or informing or reporting any
information, document or thing relating to the
commission of the crime with respect to Da’Ran
Sears’[s] homicide case.
b. Whether there was sufficient evidence to sustain a
conviction for criminal use of a communication facility
and possession of an instrument of a crime, as no crime
was committed.
III. Whether the verdict was against the weight of the
evidence with respect to all counts, as the verdict was so
contrary to the evidence, so as to shock one’s sense of
justice.
a. Whether the verdict was against the weight of the
evidence with respect to intimidation of a witness.
b. Whether the verdict was against the weight of the
evidence with respect to criminal use of a
communication facility and possessing an instrument of
crime.
Appellant’s Brief, at 4.
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First, Moyer challenges the discretionary aspects of his sentence.
Moyer preserved his argument concerning the discretionary aspects of his
sentence through a post-sentence motion.
“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). “Two requirements must be met before we
will review this challenge on its merits.” Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Id. (citation omitted). “Second, the
appellant must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” Id. (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.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “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). In the present
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case, Moyer’s appellate brief contains the requisite Rule 2119(f) concise
statement.
First, Moyer contends in his Rule 2119(f) statement that the trial court
abused its discretion by sentencing him in the aggravated statutory range,
thereby creating a manifestly excessive and unreasonable sentence. While
the fact that a sentence is within the statutory limits does not preclude
appellate review, a “bald assertion that a sentence is excessive does not by
itself raise a substantial question justifying this Court’s review of the merits
of the underlying claim.” Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.
Super. 2012) (citation omitted). Here, like in Fisher, Moyer does not cite a
specific provision of the sentencing code or a fundamental norm of
sentencing that he alleges the trial court violated. Without either, Moyer’s
assertion of excessiveness does not raise a substantial question. See id.Accordingly, Moyer’s first challenge to the discretionary aspects of his
sentence is without merit.
Additionally, Moyer argues in his Rule 2119(f) statement that the trial
court abused its discretion by fashioning a sentence without fully considering
his lack of criminal history, age, and circumstances. However, this Court has
repeatedly held that the mere assertion that the sentencing court failed to
give adequate weight to sentencing factors of record, without more, does
not raise a substantial question for appellate review. See, e.g.,
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
(en banc), appeal denied, 104 A.3d 1 (Pa. 2014). Because Moyer fails to
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allege anything other than the trial court’s failure to adequately consider
factors of record, he has failed to raise a substantial question for review.
Thus, his second challenge to the discretionary aspects of his sentence also
fails.
In his second issue on appeal, Moyer argues that the Commonwealth
failed to present sufficient evidence to prove that he committed the crimes
of intimidation of a witness, criminal use of a communication facility, and
possession of instrument of crime. See Appellant’s Brief, at 6, 9-12. Moyer
contends that the Commonwealth only established that he wrote the word
“rat” on Wood’s Facebook wall. Moyer avers that, without additional
evidence that he intended to intimidate Wood, he cannot be found to have
intimidated a witness. Further, without his conviction for intimidation of a
witness, Moyer contends that the Commonwealth would be unable to prove
the crimes of criminal use of a communication facility or possession of an
instrument of crime.
The standard we apply in reviewing the sufficiency of the
evidence is whether, viewing all of the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact[-]finder to find every
element of the crime beyond a reasonable doubt. In applying the
above test, we may not weight the evidence and substitute our
judgment for that of the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element beyond a reasonable doubt by means of
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wholly circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and the weight of
the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012)
(citation omitted; brackets in original).
The crime of intimidation of a witness is defined in relevant part as
follows.
Intimidation of Witnesses or Victims
(a) Offense defined.- A person commits an offense if, with
the intent to or with the knowledge that his conduct will
obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, he intimidates or
attempts to intimidate any witness or victim to:
(3) Withhold any testimony, information, document or
thing relating to the commission of a crime from any law
enforcement officer, prosecuting official or judge.
18 Pa.C.S.A. § 4952(a)(3). Further,
[A]ctual intimidation of a witness is not an essential element of
the crime. The crime is committed if one, with the necessary
mens rea, “attempts” to intimidate a witness or victim …. The
trier of facts, therefore, could find that appellant attempted to
intimidate his accuser and that he did so intending or, at least,
having knowledge that his conduct was likely to, impede, impair
or interfere with the administration of criminal justice …. The
Commonwealth is not required to prove mens rea by direct
evidence. Frequently such evidence is not available. In such
cases, the Commonwealth may rely on circumstantial evidence.
Commonwealth v. Collington, 615 A.2d 769, 770 (Pa. Super. 1992).
Based upon our review of the record, we agree with the trial court that
the evidence is sufficient to find the offense of intimidation of a witness.
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Here, Wood testified that he was planning to provide testimony against
Sears in Sears’s murder trial. Wood knew that Moyer was friends with Sears.
Moyer knew that Wood was planning to testify against Sears and called
Wood a “rat” twice in reference to Wood’s planned testimony. Moyer
repeatedly asked Wood where he lived. Further, when interviewed by police,
Moyer admitted that he posted “rat” to Wood’s Facebook wall in order to
keep Wood from testifying against Sears.
The jury, as the trier of fact, was free to believe all, part, or none of
the testimony presented by the witnesses. It is clear from the verdict that
the jury found Wood’s testimony credible. The contents and timing of
Moyer’s messages, together with the circumstances surrounding them and
Wood’s testimony, were sufficient for the jury to infer that Moyer intended to
intimidate Wood in order to prevent him from testifying against Sears. Thus,
Moyer’s claim that there was insufficient evidence to support the charge of
intimidation of witnesses or victims fails.
The offense of criminal use of a communication facility is defined as
follows.
A person commits a felony of the third degree if that person uses
a communication facility to commit, cause of facilitate the
commission or the attempt thereof of any crime which
constitutes a felony under this title or under the act of April 14,
1972 (P.L. 233, No. 64), known as The Controlled Substance,
Drug, Device and Cosmetic Act. Every instance where the
communication facility is utilized constitutes a separate offense
under this section.
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18 Pa.C.S.A. § 7512. Thus, to support a conviction under Section 7512, the
Commonwealth must establish beyond a reasonable doubt that
(1) Appellant[] knowingly and intentionally used a
communication facility; (2) Appellant[] knowingly, intentionally
or recklessly facilitated an underlying felony; and (3) the
underlying felony occurred … Facilitation has been defined as
“any use of a communication facility that makes easier the
commission of the underlying felony.”
Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (internal
citations omitted).
In order to prove possession of an instrument of crime, the
Commonwealth must show that the defendant “possesses any instrument of
crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907. An instrument
of crime is defined as “[a]nything specially made or specially adapted for
criminal use” or “[a]nything used for criminal purposes and possessed by the
actor under circumstances not manifestly appropriate for lawful uses it may
have.” 18 Pa.C.S.A. § 907(d).
The Commonwealth proved, beyond a reasonable doubt, that Moyer
knowingly and intentionally used a cellular telephone to post the message
“rat” on Wood’s Facebook wall and used his phone to privately message
Wood. Further, Moyer was in possession of this cellular telephone at the time
of his arrest. Because we found that Moyer’s challenge to the sufficiency of
the evidence in relation to his intimidation of a witness conviction fails, the
Commonwealth has met its burden of showing that Moyer committed the
underlying felony necessary for a conviction for criminal use of a
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communication facility and possessing an instrument of crime. Thus, like his
challenge to the sufficiency of the evidence for his intimidation of a witness
conviction Moyer’s challenges to his criminal use of a communication device
and possessing an instrument of crime convictions also fail.
Finally, Moyer argues that his convictions were against the weight of
the evidence. A challenge to the weight of the evidence “concedes that the
evidence is sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one’s sense of justice.”
Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal
denied, 99 A.3d 925 (Pa. 2014) (citation omitted).
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
quotes and citations omitted).
To support his weight of the evidence claim, Moyer essentially
reiterates his sufficiency of the evidence argument. See Appellant’s Brief, at
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7, 15-18. Moyer argues that the verdict “shocks one’s sense of justice” and
should not be allowed to stand. See id., at 7.
At trial, the Commonwealth presented evidence in the form of the
testimony of Wood, Agent Sorage, and Agent Peacock, as well as the
Facebook messages between Wood and Moyer. Moyer did not testify or call
any witnesses on his behalf. Therefore, Moyer’s guilt hinged on the jury’s
determination of the Commonwealth’s witnesses’ credibility and its
interpretation of the Facebook messages. It is clear that the jury found the
testimony of Wood, Agent Sorage and Agent Peacock credible, and
concluded that Moyer’s intention through the Facebook messages was to
intimidate Wood and prevent him from testifying against Sears. We discern
no abuse of discretion in the court’s assessment of the jury’s determinations
related to the credibility of witnesses or the weight of evidence at trial. We
cannot agree with Moyer that the trial court’s guilty verdict “shocks one’s
sense of justice.” Thus, we conclude that Moyer’s final issue merits no relief.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2016
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