Com. v. Buckner, S.

J-S72025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SAMUEL BUCKNER, :
:
Appellant : No. 613 WDA 2014
Appeal from the Judgment of Sentence Entered September 18, 2012,
In the Court of Common Pleas of Erie County,
Criminal Division, at Nos. CP-25-CR-0000649-2012
and CP-25-CR-0001260-2012.
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 24, 2014
Samuel Buckner (“Appellant”) appeals from the judgment of sentence
imposed following his July 25, 2012 jury conviction of aggravated assault,
recklessly endangering another person (“REAP”), possession of a weapon,
and firearms not to be carried without a license at docket number 649 of
2012.1 We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
*Retired Senior Judge assigned to the Superior Court.
1
Appellant pled guilty to fleeing or attempting to elude police officer and
driving under suspension on September 5, 2012, at docket number 1260 of
2012. Appellant does not challenge the judgment of sentence imposed for
those two convictions.
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On December 26, 2011, Denairo Price and [his uncle] Dion
Pullium arrived at the Country Fair store in Pullium’s silver Land
Rover. Pullium went into the store and Price left the vehicle to
urinate behind a dumpster. As Price walked back towards the
vehicle, he heard Appellant say ”what’s up” twice. Price and
Appellant disliked each other so Price removed his cellular
telephone and shirt in anticipation of a fight. Price, who was
unarmed, walked toward Appellant and swung at him. Price
heard a shot, turned around and started to run. Price was then
shot in the buttocks and arm. Price did not see Appellant with a
firearm. N.T. Trial (Day 1), 7/24/12, at 25–30, 43.
Following the shooting, police went to the scene and
recovered shell casings and the convenience store’s video
surveillance. The video surveillance reflected that Appellant
pulled a gun from his waistband and shot at Price four times.
Police also obtained a videotaped statement from Appellant.
N.T. Trial (Day 1), 07/24/12, at 58, 64–65, 70–72, 85, 90, 92.
On July 25, 2012, following a two-day jury trial, Appellant
was found guilty of the aforementioned offenses.
* * *
On September 18, 2012, at . . . Docket No. 649 of 2012,
Appellant was sentenced to a term of 21 to 120 months’
incarceration at Count 2 (aggravated assault), consecutive to
Docket No. 1260 of 2012, and a term of 12 to 24 months’
incarceration at Count 4 (firearms not to be carried without a
license), consecutive to Count 2. Counts 3 and 5 merged for
sentencing purposes.
Appellant did not file a post-sentence motion, nor did he
take a direct appeal. . . . On September 6, 2013, Appellant filed
pro se PCRA petitions. . . . Following an evidentiary hearing, this
Court reinstated Appellant’s post-sentence and appellate rights
on March 13, 2014. On March 24, 2014, Appellant filed a Motion
For Post Sentence Relief, which this Court denied on March 26,
2014.
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Trial Court Opinion, 8/1/14, at 1–2. This appeal followed. The trial court
and Appellant complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant presents the following questions:
[Whether t]he evidence in this case was insufficient to
prove that the defendant committed the crimes of aggravated
assault, reckless, [sic] endangerment, possession of a weapon,
and firearms not to be carried without a license[?]
[Whether t]he sentences in this case were manifestly
excessive and clearly unreasonable, especially in their
consecutiveness[?]
Appellant’s Brief at 2 (full capitalization omitted).
Appellant first challenges the evidence as insufficient to support the
convictions because the police did not recover a firearm, the victim did not
identify Appellant at trial as the shooter, and other witnesses failed to
identify Appellant at trial as the shooter. Appellant’s Brief at 5. In response,
the Commonwealth argues that the videotaped surveillance and Appellant’s
videotaped statement were sufficient to sustain the convictions.
Commonwealth’s Brief at 1.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the Commonwealth as
verdict winner, were sufficient to prove every element of the offense beyond
a reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa.
2013). It is within the province of the fact-finder to determine the weight to
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be accorded to each witness’s testimony and to believe all, part, or none of
the evidence. Commonwealth v. James, 46 A.3d 776 (Pa. Super. 2012).
The Commonwealth may sustain its burden of proving every element of the
crime by means of wholly circumstantial evidence. Commonwealth v.
Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). “[I]n applying the above
test, the entire record must be evaluated and all evidence actually received
must be considered.” Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.
Super. 2011). Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007).
Appellant was convicted of aggravated assault, REAP, possession of a
weapon, and firearms not to be carried without a license. “A person is guilty
of aggravated assault if he: (1) attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human
life[.]” 18 Pa.C.S. § 2702(a)(1). As for REAP, “[a] person commits a
misdemeanor of the second degree if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705. Regarding possession of a weapon, “[a] person
commits a misdemeanor of the first degree if he possesses a firearm or
other weapon concealed upon his person with intent to employ it criminally.”
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18 Pa.C.S. § 907(b). Lastly, “any person who carries a firearm in any
vehicle or any person who carries a firearm concealed on or about his
person, except in his place of abode or fixed place of business, without a
valid and lawfully issued license under this chapter commits a felony of the
third degree.” 18 Pa.C.S. § 6106(a)(1). To secure convictions against
Appellant, the Commonwealth had to prove each element of these offenses
beyond a reasonable doubt. Diamond, 83 A.3d 119.
After setting forth the appropriate standard of review, the trial court
concluded that Appellant’s sufficiency challenge lacked merit:
Here, the surveillance videotape and Appellant’s
videotaped statement reflect that Appellant shot at the victim
four times. In fact, the defense theory was that Appellant shot
the victim out of self-defense. Accordingly, the fact that the gun
was not recovered or that the victim and/or eyewitness did not
identify him at trial as the shooter is not dispositive.
The evidence, as well as all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as the verdict winner, was sufficient to sustain
the jury’s verdict on all counts. Accordingly, this claim is
meritless.
Trial Court Opinion, 8/1/14, at 4. Upon review, we agree.
Although the victim did not identify Appellant in the videotaped
surveillance, he identified Appellant at trial as the man (a) who approached
him outside of the Country Fair store; (b) who he swung at before hearing
gunshots; and (c) who was the only person standing in the area. N.T.,
7/24/12, at 27–29, 31. An eyewitness also identified Appellant at trial as
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“the man with the gun” who shot at “the man who raised his fist” (the
victim). Id. at 45–49.
Additionally, Detective Bizzarro informed the jury that he interviewed
Appellant and obtained a videotaped statement in which Appellant admitted
shooting the victim. N.T., 7/24/12, at 65–66; Commonwealth Exhibit C.
The detective also commentated over the videotaped surveillance that
Appellant pulled a gun from his right waistband as the victim threw a punch
and fired four shots at the victim. Id. at 67–72, 85.
Based on the foregoing, we conclude that the evidence admitted at
trial and all reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient to prove
every element of the offenses beyond a reasonable doubt. Diamond, 83
A.3d 119.
In his second issue, Appellant contends that the trial court erred in
imposing a manifestly unreasonable sentence, and thus, he challenges the
discretionary aspects of his sentence. Appellant’s Brief at 5. It is well
settled that there is no absolute right to appeal the discretionary aspects of
a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super.
2006). Rather, an appellant’s appeal should be considered to be a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162
(Pa. Super. 2007).
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As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Whether a particular issue constitutes a substantial question about the
appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. Commonwealth v. Malovich,
903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the
reasons the sentencing court’s actions violated the sentencing code. Id. “A
substantial question will be found where the defendant advances a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
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underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009) (citations omitted).
Herein, the first three requirements of the four-part test are met;
Appellant brought an appropriate appeal, raised the challenge in his post-
sentence motions, and included in his appellate brief the necessary separate
concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether
Appellant has raised a substantial question requiring us to review the
discretionary aspects of the sentence imposed by the trial court.
Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that
“the Court erred in sentencing him to consecutive sentences instead of
concurrent sentences and that the sentence was thus manifestly excessive
and clearly unreasonable, especially since the charges all arose from the
same incident.” Appellant’s Brief at 5–6. This Court has instructed that “the
imposition of consecutive rather than concurrent sentences lies within the
discretion of the sentencing court, and a challenge to the imposition of
consecutive sentences does not raise a substantial question.”
Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005).
Accordingly, to the extent that Appellant asserts an abuse of discretion for
imposing consecutive sentences, such a claim fails to present a challenge
which raises a substantial question to justify this Court’s review. Thus, we
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decline to address this issue. To the extent Appellant asserts an abuse of
the trial court’s discretion in sentencing based on other factors,2 we decline
to address them because Appellant has failed to present argument in a
manner making meaningful appellate review possible. Accord
Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (“Of
particular importance is the provision of [Pa.R.A.P.] 2119(a) that a brief
must contain a developed argument augmented by citation to pertinent
authorities. Arguments not appropriately developed are waived.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
2
In the argument section of his brief, Appellant asserts that the sentencing
court failed to consider mitigating factors and imposed a sentence based on
speculation. Appellant’s Brief at 7–8.
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