Com. v. Smith, N.

J-S79041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASEEM SMITH, :
:
Appellant : No. 669 MDA 2018
Appeal from the Judgment of Sentence September 13, 2017
in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000200-2016
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 28, 2019
Naseem Smith (“Smith”) appeals from the judgment of sentence
imposed after a jury convicted him of aggravated assault – attempted serious
bodily injury, firearms not to be carried without a license, terroristic threats,
simple assault, recklessly endangering another person, and possession of a
firearm by a minor.1 We affirm.
The trial court thoroughly set forth the relevant facts and procedural
history in its Memorandum accompanying the Order denying Smith’s Post-trial
Motions, which we incorporate herein by reference. See Trial Court
Memorandum and Order, 3/16/18, at 2-8.2 In sum, in July 2015, when Smith
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1See 18 Pa.C.S.A. §§ 2702(a)(1), 6106(a)(1), 2706(a)(1), 2701(a)(1), 2705,
6110.1(a).
2 We note that the trial court conducted a hearing on Smith’s Motion to
decertify the case from the criminal division to the juvenile system on April 2,
2016 (hereinafter, the “Decertification Hearing”), which the trial court denied.
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was a 17-year-old high school student, following an altercation with the victim,
Saddiq Fields (“Fields”), Smith and Jamil Harding (“Harding”) pursued Fields
in a car driven by Harding, whereupon Smith fired a handgun at Fields,
narrowly missing him.
Following the entry of the Order denying Smith’s Post-trial Motions,
Smith filed a timely Notice of Appeal. In response, the trial court ordered him
to file a Pa.R.A.P. 1925(b) Concise Statement of errors complained of on
appeal, and Smith timely complied. The trial court then issued a Pa.R.A.P.
1925(a) Opinion.
On appeal, Smith presents the following questions for our review:
A. Whether the decertification court incorrectly found that [Smith]
was not amenable to treatment, supervision, or rehabilitation
in the juvenile court system and, thus, erroneously denied his
Motion for decertification?
B. Whether there was sufficient evidence to sustain the verdicts
of aggravated assault – attempted serious bodily injury, simple
assault, recklessly endangering another person, terroristic
threats, possession of a firearm without a license, and
possession of a firearm by a minor?
C. Whether the verdicts of aggravated assault – attempted
serious bodily injury, simple assault, recklessly endangering
another person, terroristic threats, possession of a firearm
without a license, and possession of a firearm by a minor were
against the weight of the evidence?
D. Whether the sentencing court impose[d] harsh and
unreasonable sentences?
Brief for Appellant at 5 (capitalization omitted).
In his first issue, Smith argues that the trial court abused its discretion
in denying his Motion for decertification, where he was a minor at the time of
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the commission of the offenses, and the evidence showed that he was
amenable to treatment and rehabilitation in the juvenile court system. See
Brief for Appellant at 33-40.
In its Rule 1925(a) Opinion, the trial court summarized the relevant
evidence adduced at the Decertification Hearing, which we incorporate as
though fully set forth herein. See Supplemental Trial Court Opinion, 7/19/18,
at 3-6.
Smith dedicates the majority of his Argument on this issue to his claim
that the decertification court erred in the weight it afforded the respective
psychological expert testimony presented at the Decertification Hearing by the
defense and the Commonwealth. See Brief for Appellant at 36-40.
Specifically, Smith asserts that the Commonwealth’s expert, Steven Samuel,
Ph.D. (“Dr. Samuel”), failed to acknowledge the significance of prevailing
scientific research on the development of the human brain in adolescents and
how it affects impulse control, which was testified to by the defense’s expert,
forensic psychiatrist Richard Fischbein, M.D. (“Dr. Fischbein”). Id. at 36-37.
According to Smith, “the decertification court should have accepted Dr.
Fischbein’[s] opinion that[,] within a degree of medical certainty[, Smith] was
amenable to treatment in the juvenile system.” Id. at 37-38. Additionally,
Smith emphasizes that
[a]t the time of the [D]ecertification [H]earing, [Smith] had been
incarcerated for several months. He has had no misconducts. He
was also taking high school classes with good grades. He
contends that these facts demonstrated that he would do well in
the structure of the juvenile system. He asserts that both
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psychiatrists and psychologists would have had extensive time to
treat his mental issues behind his impulsivity which gave rise to
his behavior.
Id. at 38; see also id. (asserting that “while in the juvenile system until age
21, [Smith] would undergo important brain development” and “would be able
to continue the educational strides made in … prison.”).
In its Opinion, the trial court addressed Smith’s claim, adeptly set forth
the applicable law, and determined that it properly exercised its discretion in
denying Smith’s Motion to decertify. See Supplemental Trial Court Opinion,
7/19/18, at 6-10. We decline Smith’s invitation to reweigh the credibility of
the respective experts’ testimony, and the proper weight to be assigned to it,
both of which were in the sole purview of the decertification court. See
Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007)
(emphasizing that the trier of fact is free to believe all, part or none of the
evidence, and this Court may not reweigh the evidence and substitute its
judgment for that of the fact finder). As the trial court’s cogent analysis is
supported by the law and the record, and we discern no abuse of its discretion,
we affirm on this basis concerning Smith’s first issue. See Supplemental Trial
Court Opinion, 7/19/18, at 6-10.
In his second issue, Smith asserts that the Commonwealth failed to
present sufficient evidence for the jury to convict him, beyond a reasonable
doubt, of the above-mentioned crimes. See Brief for Appellant at 40-44.
Smith urges that there was no conclusive evidence that he was the person
who fired the gun at Fields. Id. at 41-42. Specifically, Smith alleges that
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when Fields had selected a photo of Smith as the shooter from a police photo
array, “Fields stated that he could not be one hundred percent sure as to the
perpetrator’s identity.” Id. at 41. Smith also emphasizes that the police never
recovered the gun. Id. Smith asserts that the only eyewitness who had
testified to seeing Smith fire the gun, Harding, “had reason to implicate
[Smith] as the shooter, [since Harding] did not want to have any exposure as
being the shooter.” Id. at 42. Finally, Smith contends that his convictions of
aggravated assault and simple assault cannot stand, since there was no
evidence that Fields suffered any bodily injury. Id. at 42-43 (pointing out that
Fields “walked away from the entire incident[, and] never received medical
treatment.”).
We apply the following standard of review when considering a challenge
to the sufficiency of the evidence:
[W]hether[,] viewing all 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 weigh
the evidence and substitute our judgment for 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 of the crime
beyond a reasonable doubt by means of 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 finder 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.
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Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
The Crimes Code provides that a person is guilty of aggravated assault
if he or she “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.A. § 2702(a)(1).
The statute concerning firearms not to be carried without a license
provides, in relevant part, that “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.” Id. § 6106(a)(1).
A person commits the crime of terroristic threats if the person, inter alia,
“communicates, either directly or indirectly, a threat to … commit any crime
of violence with intent to terrorize another[.]” Id. § 2706(a)(1).
A person is guilty of simple assault if he or she, inter alia, “attempts to
cause or intentionally, knowingly or recklessly causes bodily injury to
another[.]” Id. § 2701(a)(1).
Concerning recklessly endangering another person, the Crimes Code
provides as follows: “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.” Id. § 2705.
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Finally, the statute governing possession of a firearm by a minor
provides that, generally, “a person under 18 years of age shall not possess or
transport a firearm anywhere in this Commonwealth.” Id. § 6110.1(a).
In its Opinion, the trial court cogently addressed Smith’s sufficiency
challenge, set forth the applicable law, and determined that there was ample
evidence for the jury to convict Smith of the crimes. See Trial Court
Memorandum and Order, 3/16/18, at 9-12. We agree with the trial court’s
analysis and determination, which is supported by the record and the law, and
therefore affirm on this basis in rejecting Smith’s sufficiency challenge, see
id., with the following addendum.
To the extent that Smith challenges his convictions of aggravated
assault and simple assault based upon the fact that Fields did not sustain any
bodily injury (or serious bodily injury), this claim does not entitle Smith to
relief, where the evidence established that he had attempted to cause such
injury. See 18 Pa.C.S.A. § 2702(a)(1) (providing that a person is guilty of
aggravated assault if he or she “attempts to cause serious bodily injury to
another ….” (emphasis added)); id. § 2701(a)(1) (providing that a person is
guilty of simple assault if he or she “attempts to cause … bodily injury to
another[.]” (emphasis added)).
In his third issue, Smith contends that the jury’s verdicts were against
the weight of the evidence. See Brief for Appellant at 45-46.
Our standard of review of a weight of the evidence claim is as follows:
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The weight of the evidence is a matter 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. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. 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.
On appeal, our purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the jury
verdict did not shock its conscience. Thus, appellate review of a
weight claim consists of a review of the trial court’s exercise of
discretion, not a review of the underlying question of whether the
verdict is against the weight of the evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(quotation marks and citations omitted); see also Commonwealth v.
Rabold, 920 A.2d 857, 860 (Pa. Super. 2007) (stating that “[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.”)
(citation omitted).
Smith argues that his convictions are against the weight of the evidence,
where Fields “testified [that] there were two to three individuals who followed
him [on the] day [of the shooting, and Fields] did not identify [Smith] as the
individual who fired the gun.” Brief for Appellant at 46. Smith also challenges
the credibility of Harding’s trial testimony, asserting that “Harding admitted
that he had used alcohol and controlled substances on the day in question[,]”
and Harding’s “testimony is suspect,” due to the charges against Harding. Id.-8-
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Smith essentially asks us to reassess the credibility of the witnesses and
reweigh the testimony and evidence presented at trial. We cannot, and will
not, do so. It was for the jury to determine the credibility of the witnesses
and the weight to be accorded Harding’s testimony that he saw Smith fire a
handgun. See Gonzalez, supra; see also Commonwealth v. Alicia, 92
A.3d 753, 761 (Pa. 2014) (stating that “[t]he veracity of a particular witness
is a question which must be answered in reliance on the ordinary experiences
of life, common knowledge of the natural tendencies of human nature, and
observations of the character and demeanor of the witness. As the
phenomenon of lying is within the ordinary capacity of jurors to assess, the
question of a witness’s credibility is reserved exclusively for the jury.” (citation
omitted)). Accordingly, we conclude that the trial court did not abuse its
discretion in rejecting Smith’s weight of the evidence contention, and we
likewise determine that the jury’s verdicts do not shock our collective
conscience. See Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa.
Super. 2009) (holding that trial court did not abuse its discretion in denying
weight challenge where appellant asked this Court to reweigh the evidence).
In his final issue, Smith argues that the trial court imposed an unduly
excessive aggregate sentence (i.e., 61 to 122 months in prison), where (a) it
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ordered the respective sentences to run consecutively;3 (b) the sentences
were at the top end of the standard guidelines ranges; (c) the incident did not
result in bodily injury to Fields; and (d) the sentencing court failed to
adequately consider mitigating factors.4 See Brief for Appellant at 32-33.
Smith challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d
359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has
preserved the sentencing challenge for appellate review by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1) include
in his brief a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a sentence, pursuant to
Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code. Hill, 66
A.3d at 363-64.
Here, Smith included a Rule 2119(f) Statement in his brief. See Brief
for Appellant at 32-33. Moreover, his above-mentioned claims present a
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3 Specifically, the trial court ordered the sentences imposed for aggravated
assault and firearms not to be carried without a license to run consecutively.
The court also ordered the sentence imposed for terroristic threats to run
consecutively to the aggravated assault sentence. The remaining offenses
merged for sentencing purposes.
4 Smith states that the mitigating factors include “his prior record score of 0;
that he was 17 years old at the time of the commission of the crimes; that he
suffers from depression[;] and that[,] at the age of 17[,] the areas [of the
brain] which control impulsivity are not fully developed ….” Brief for Appellant
at 33.
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substantial question for our review. See Commonwealth v. Caldwell, 117
A.3d 763, 770 (Pa. Super. 2015) (en banc) (stating that “an excessive
sentence claim—in conjunction with an assertion that the [trial] court failed to
consider mitigating factors—raises a substantial question.”) (citation
omitted); Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super. 2016)
(holding that a claim that appellant’s standard-range consecutive sentence
was excessive, and the trial court failed to consider appellant’s rehabilitative
needs, raised a substantial question); but see also Commonwealth v.
Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012) (en banc) (stating that “the
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.”). Accordingly, we will address the merits of
Smith’s claims.
We review discretionary aspects of sentence claims under the following
standard: “[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. Fullin, 892 A.2d 843, 847
(Pa. Super. 2006). Moreover, the sentencing court has broad discretion in
choosing the range of permissible confinement that best suits a particular
defendant and the circumstances surrounding his crime. Commonwealth v.
Walls, 846 A.2d 152, 154-55 (Pa. Super. 2004). The Sentencing Code sets
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forth the considerations a trial court must take into account when formulating
a sentence, providing that
the court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
Importantly, the sentencing court in the instant case had the benefit of
a pre-sentence investigation report (“PSI”). It is well established that where
a sentencing court is informed by a PSI, “it is presumed that the court is aware
of all appropriate sentencing factors and considerations, and that where the
court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). In discussing
Devers, this Court in Ventura explained as follows:
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a [PSI], it will be presumed that he or she was aware of
the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors. Additionally, the sentencing court must state its reasons
for the sentence on the record. The sentencing judge can satisfy
the requirement that reasons for imposing sentence be placed on
the record by indicating that he or she has been informed by the
[PSI]; thus properly considering and weighing all relevant factors.
Ventura, 975 A.2d at 1135 (citation omitted).
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Because the sentencing court in the instant case confirmed that it had
reviewed Smith’s PSI prior to sentencing him, see N.T., 9/13/17, at 19 & 25,
it is presumed that the court considered all mitigating factors, including
Smith’s age and other relevant matters. See Ventura, supra. Moreover,
the sentencing court stated as follows in support of its denial of Smith’s Motion
for reconsideration of sentence:
As reflected by the sentencing hearing transcript, Smith’s PSI
report, his juvenile and Lackawanna County Prison records, an
evaluation report prepared by Dr. Fischbein in connection with
Smith’s 2015 [D]ecertification [H]earing, and ten letters of
recommendation were reviewed and considered prior to
sentencing. (T.P. 9/13/17 at pp. 2-4, 7-9, 19). Before Smith’s
sentences were imposed, the reasons for those sentences were
stated on the record, and expressly included “the underlying
circumstances of the offenses,” “the nature and gravity of the
offenses,” Smith’s “age at the time” of his offenses and
sentencing, “his background,” “individual circumstances,” and
“potential for rehabilitation.” (Id. at pp. 19-22, 24-25). Based
upon Smith’s prior record score of zero and the offense gravity
scores assigned to each offense, the individual sentences imposed
fell within the standard ranges of the Sentencing Guidelines. (Id.
at pp. 3, 22-24). Additionally, Smith was made “boot camp
eligible” at the request of defense counsel and without objection
by the Commonwealth. (Id. at p. 27).
Trial Court Memorandum and Order, 3/16/18, at 13-14 (footnote omitted).
The trial court’s foregoing analysis is supported by the record.
Additionally, a review of the sentencing hearing transcript reveals that
the court considered in-depth argument by defense counsel concerning, inter
alia, (1) the appropriateness of concurrent sentences because the separate
convictions purportedly arose out of a “single transaction”; (2) the fact that
Smith was a minor when he committed the offenses; (3) that, as a minor,
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Smith’s brain was still developing at the time of the offenses; and (4) Smith’s
good conduct and educational achievements while in prison. See N.T.,
9/13/17, at 10-14. Further, the court considered a statement that Smith’s
mother gave on his behalf. See id. at 5-10. Therefore, the record belies
Smith’s claim that the court failed to consider mitigating factors.
Finally, it was within the sound discretion of the sentencing court to
impose consecutive, as opposed to concurrent, sentences. See
Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008). We
discern no abuse of the sentencing court’s discretion, nor do we find the
standard-range sentences inappropriately excessive, particularly in light of the
seriousness of Smith’s actions.5 See Commonwealth v. Moury, 992 A.2d
162, 171 (Pa. Super. 2010) (stating that “where a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.”). Accordingly, Smith’s final issue
fails.
Judgment of sentence affirmed.
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5 The sentencing court also emphasized that less than a month after the
shooting that gave rise to the instant case, Smith committed an attempted
armed robbery with a gun (for which he received an aggregate term of
probation of five years, to be served consecutively to the sentence in the
instant case). See N.T., 9/13/17, at 20; see also Supplemental Trial Court
Opinion, 7/19/18, at 2.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/28/2019
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· ---------.... --------------· ···-·-· ..... _ 01/28/2019 04:39 PM
Circulated
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• !
I·
;� COMMONWEALTH OF PENNSYLVAN1A : IN THE COlJRT OF COMMON PLEAS
'' ;
I
OF LACK.AW AN"NA COUNTY
•!
CRIMINAL DIVISION
vs.
NASEEM SMITH,
Defendant
1,
i:
; : MEMORANDUM AND ORDER
..
,f
'.
1t
}l'EALON, J.
Following his convictions for aggravated assault, carrying a firearm without a
license, and terroristic threats and his subsequent sentence of 61 months to 122 months
incarceration at a state correctional facility, defendant filed post-trial motions seeking a
judgment of acquittal based upon the insufficiency of the evidence, a new trial on the
'!
ground that the verdict was against the weight of the evidence, and reconsideration of his
aggregate sentence. Defendant's motion for judgment of acquittal and motion for a new
ii
I,
j: trial challenge the prosecution's evidence establishing the operability of his firearm and
,·
the identification of him as the perpetrator. His motion for reconsideration of sentence
contends that his individual circumstances, including his age (17 years) at the time of the
l·
attempted shooting and his actions while incarcerated, were not properly considered in
imposing consecutive, as opposed to concurrent, sentences for his three convictions.
!:
.
l,
Although the firearm in question was never discovered, the prosecution introduced
.i:.
; I
eyewitness testimony of two individuals who observed defendant fire the 9 millimeter
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�l handgun, with one of those witnesses describing the make, model, and appearance of that
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li firearm. In addition, a 9--millimeter bullet casing was found within feet of the site of the
. i
I shooting, and a firearm and tool mark examiner opined that the casing had been
;,
·'
l1 discharged from a Hi-Point 9-mitlimet.er handgun. The prosecution also presented
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testimony from two witnesses who identified defendant as the shooter. Consequently,
i
I;
defendant's challenges to the sufficiency and weight of the evidence relative to the
.;
li operability of the firearm and the identification of defendant are both without merit.
'I
.''' ' The individual sentences ti-tat were. imposed for each conviction fell within the
standard ranges of the sentencing guidelines, and the decision to have those sentences run
consecutively, rather then concurrently, is within the: discretion of the sentencing judge
•.
!· and will not be disturbed unless the aggregate sentences are unduly harsh or clearly
excessive considering the nature of the crimes and the length of imprisonment. Based
upon the gravity of the offenses and defendant's character, age, prior criminal record,
'r • personal characteristics, and potential for rehabilitation, the aggregate sentences imposed
I!
!!
were not excessive or unduly harsh, and defendant's motion for reconsideration of his
I,
: 1 sentence will be denied.
: I
J.. FACTUAL :BACKGROUND
: . On July 1 2015, the 17-year-old defendant, Naseem Smith ("Smith"), was
1
attending summer school classes at Scranton High School that concluded at 12:45 p.m.
• > (Transcript of Proceedings (T.P.) on 6/5il7 at pp. 146, 153-154). Scranton High School
:;
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surveillance footage reflects that on that date, Smith was wearing jeans and a dark
sweatshirt with the words "Just Do It" depicted on the front. (Id. at pp. 151-152). At
approximately I :00 p.m. on July l, 20:.5:, Mr. Saddiq Fields ("Fields") was selling
marijuana in front of the Turkey Hill mini mart located across the street from Scranton
�l
;·,.: High School. (T.P. 6/6/17 at pp. 23-24, 42).
Upon completing his summer school session, a confrontation between Smith and
Fields unfolded at Turkey Hill since Smith was angry at Fields for selling ''bad weed" to a
friend. (Id. at pp. 25-26, 86-&7). As Smith began to remove his jacket, presumably to
assault Fields, Fields brandished a box cutter and Sm:ith retreated and left the store
premises. (Id. at pp. 26, 90). Once Smith departed the Turkey HiJJ property, Fields
boarded a County of Lackawanna. Transit System ("COLTS") bus that was destined for
the Valley View Terrace housing complex. (Id. at pp. 27, 87).
! l Immediately following the Turkey Hill encounter, Smith contacted a friend, Jamil
Harding, advised Mr. Harding of his hostile exchange: with Fields, and asked Mr. Harding
to retrieve him in Mr. Harding 's vehicle so that they could follow the COL TS bus to
Valley View Terrace. (T.P. 6/5/17' at pp. 63-65). Mr. Harding and his front seat
passenger, Jenoshua Curry, collected Smith at the Turkey Hill, drove to Valley View
Terrace, and parked at an intersection situated near the entrance to the housing complex.
(Id. at pp. 66-68, 71, 89-90). As they were seated in Mr. Harding's vehicle, they observed
Fields alight the COLTS bus and Smith exclaimed "that's that nigger right there." (If!:. at
pp. 72, 78). Smith, Mr. Harding, and Mr. Cuny approached Fields who fled once he
observed Smith. (Id. at p. 73; LP. 6/6/17 at pp. 28-29). Smith pursued Fields on foot as
he ran toward the Valley View Terrace housing complex. ilil, 6/5/17 at pp. 74, 92-93).
-3�
While Smith chased Fields, he repeatedly shouted that he was "going to shoot
[Fields] in [his] back." (T.P. 6/6/17 at pp. 29-30, 87--88). Fields ran onto the porch of a
Valley View Terrace resident, Donna Parfrey, and began pounding on her front door and
window. (T.P. 6/5/17 at pp. 115-117, 126; T.P. 6/6/J 7 at p. 31). At that point, Smith
pointed a firearm at Fields and shouted that he was "going to shoot [Fields]" and "going to
. '
' air [him) out." (T.P. 6/6/17 at pp. 3 J-J.3, 89). Mr. Harding and Mr. Curry arrived at the
·i scene in Mr. Harding's vehicle, and Mr. Harding observed Smith pointing a Hi-Point 9-
millimeter handgun at Fields while Fields was positioned on the porch and ye.ling for
someone's attention. (T.:P. 6/5117 at pp. 76-77, 89, 94, 106}. Mr. Harding witnessed
Smith shriek "I'll shoot him right here," while Ms. Parfrey heard Fields screaming "back
off me." (Id. at pp. 77, 117-119).
Mr. Harding shouted at Smith to "get back in the car," and Smith entered the rear
seat as the vehicle drove away. (M:. at pp. 77-78, 119, 126; T .P. 6/6/17 at p. 35). Mr.
Harding made au-tum, and as he drove, his vehicle past Ms. Parfrey's residence, Smith
fired his handgun at Fields. (T.P. 6/5/17 at pp. 78-80, 95, 120-12 l, 124; T.P. 6/6/17 at pp.
35-38, 88). Although the bullet projectile did not strike Fields, he felt the heat of the
bullet as it brushed his pant leg. (T.P. 6/6/17 at :?P· 38, 40-41). 'When Mr. Harding, Mr.
Curry, and Smith departed the scene, Smith stated "I think [I] hit him" and Mr . Harding
observed Fields limping in the rearview mirror. (T.P. 615117 at pp. 81-82).
Donna Parfrey's granddaughter contacted 911 to report the shooting. (T.P. 6/5/17
at pp. 121-122). The Scranton Police responded and discovered a 9-millimeter bullet
casing located 22 feet from the step of Ms. Parfrey's porch, and based upon the analysis
conducted by the Pennsylvania Stace Police firearm and tool mark examiner, Cpl. Joseph
-4-
: 1
.... --··--··-··------------------- --------···----·--·····
,! Gober, it was determined that the casing had been discharged from a Hi-Point 9-
i;
!
millimeter hand gun. (T.P.6/6/17 al pp. 47-49, 68� 72). The police also obtained
;, videotaped surveillance from the horne security system of Ms. Parfrey's neighbor, and
Detective Sergeant James Pappas recognized Mr. Harding and Smith in that footage, with
Smith wearing the same attire that appeared in the Scranton High School surveillance.
(Id. at pp. 82-84, l 03 ). Upon subsequently interviewing Mr. Harding, Detective Pappas
learned that Smith was the shooter. Ma! pp. 92, 95). Additionally, Fields made a
positive identification of Smith in a photographic lineup arranged by the Scranton Police
Department, although Fields cautioned that he was not "a hundred percent sure." (ld. at
pp. 95�98).
The Commonwealth charged Smith with criminal attempt to commit homicide, 18
Pa.C.S. § 250l(a), aggravated assault- attempted serious bodily injury, 18 Pa_C.S. §
:1i :
. ! 2702(a)(l), aggravated assault - attempted bodily injury with a deadly weapon. 18 Pa.C.S .
.: i § 2702(a)(4), carrying a firearm without a license, i8 Pa.C.S. § 6106(a)(l ), possession of
.. : :
a firearm. by a minor, J 8 PaC.S. § 6110.l(a), terroristic threats, 18 .Pa.C.S. § 2706(a)(l),
simple assault, 18 :Pa.C.S. § 2701 (a)(l), and recklessly endangering another person, 18
Pa.C.S. § 2705.1 (Docket Entry No. 8). Smith filed a Petition for Decertification seeking
to have these charges adjudicated in the juvenile justice system, but that request was later
denied by Judge Vito P. Geroulo on M2:y 4, 2016. (Docket Entry Nos. 6, 9, 19�22).
Smith also filed omnibus pre-trial motions on April 1, 2016, and following a hearing on
July 26, 2016, Judge Geroulo issued an Opinion on January 5, 2017, denying those
'Smith did not possess a permit for any firearm, and inasmuch as he was under the age of21 years, he was
;· ineligible to obtain such a permit in Pennsylvania. (T.P 6/6/J 7 at pp. 13-17).
-5-
'. I
.. -····-----·�"------------ -----·-·�---·-----··-··· ....
motions. (Docket Entry Nos. 17-18: 23-2�t, 28). On May 8, 2017, this case was
reassigned to the undersigned "due to the medical unavailability of Judge Vito P.
Geroulo," and the trial of this matter was scheduled for June 5, 2017. (Docket Entry No.
31 ).
During the trial, Mr. Harding and Fields both positively identified Smith as the
shooter on July l, 2015. (T.P. 6/5/17 at p. 86; T.P. 6/6/17 at pp. 41, 88-89). In fact, Mr.
Harding stated that Smith. texted him on the day following the shooting, and proudly
..
stated "yo, the shooting made the paper." (T.P. 6/5/17 at pp. 82, 96-97). The jury found
! .
Smith not guilty of criminal attempt to commit homicide and aggravated assault -
attempted bodily injury with a deadly weapon, but guilty of aggravated assault -
: . attempted serious bodily injury, carrying a firearm without a license, possession of a
:
·,� firearm by a minor, terroristic threats, simple assault, and recklessly endangering another
person. (T.P. 6/6/17 at pp. 185-186). At the request of the defense, a pre-sentence
investigation ("PSI") was ordered and the date of Smith's sentencing was deferred
pending the completion of the PSI report. 2 (.u!:. at pp. 189-191 ).
On September 13, 2017� Smith was sentenced to 36 months to 72 months
l. !; incarceration for his aggravated assault conviction, 24 months to 48 months imprisonment
!.
for carrying a firearm without a license, and I month to 2 months incarceration for his
terroristic threats offense. By agreement of the parties, his simple assault and recklessly
endangering another person convictions merged with his aggravated assault offense, and
1
0n January 23, 2017, Smith pied nolo contendere in No. 16 CR 207 to possession of a firearm by a minor.
recklessly endangering another person, and resisting arrest in connection with a separate incident that occurred
cm July 26, 2015. See Com. v. Naseem Smith. No. 16 CR 207 (Lacka. Co.). The offenses in No. 16 CR 200 and
No. 16 CR 207 were consolidated for a single PSI report. (T.P. 6/6117 at p. 190).
-6-
... ··-- ··-··- -----·----------------··-·- ·--·---·. ·-· .... . --- - . ·--
his conviction for possession of a firearm by a minor merged with the offense of carrying
a firearm without a license, as a result of which separate sentences were not imposed for
those offenses. (Docket Entry No. 47). The sentences that Smith received for his
aggravated assault, carrying a firearm without a. license, and terroristic threats convictions
fell within the standard ranges of the sentencing guidelines. (Docket Entry No. 46). With
regard to his nolo contendere pleas in No. 16 CR 207, Smith received cumulative periods
, of probation totaling 5 years, which probationary sentences likewise fell within the
standard ranges of the sentencing guidelines. (No. 16 CR 207 at Docket Entry Nos. 38-
40). Consequently, Smith's separate sentences in No. 16 CR 200 and No. 16 CR 207
resulted in aggregate incarceration at a state correctional facility for a minimum period of
61 months to a maximum term of 122 months followed by 5 years of special probation.
Smith filed timely post-trial motions comprised of a motion for a judgment of
acquittal, a motion for a new trial, and a motion for reconsideration of sentence. (Docket
,i
;
Entry No. 52). In seeking a judgment of acquittal, Smith contends that the evidence
identifying him as the shooter and establishing the operability of his firearm was
insufficient as a matter of law. (Id. at 11 5-30). He further asserts that he is entitled to a
new trial on the ground th.at ·:he verdict was against the weight of the evidence. (Id. at 11
32-40). Additionally, Smith requests that his sentence be reconsidered, despite the fact
that his "sentence fell within the standard range of the Pennsylvania Sentencing
Guidelines," inasmuch as "concurrent sentences .. " rather than consecutive sentences, are
"in the interests ofjustice . " (Id. at i,i 42··49).
-7-
After an Order was issued establishing a briefing schedule and a date certain for
oral argument, Smith filed a motion for an extension of time which included a written
waiver of the time deadlines. set forth in if>a.R.Crim.P. 720(8)(3). (Docket Entry Nos. 55,
61). After that request was granted, oral argument on Smith's post-trial motions was
ultimately conducted on January 4, 2018. (Docket Entry No. 63). Smith's post-trial
;] motions are ripe for resolution.
II. DISCUSSION
: �
i:
; ·
(A) MOTION FOR JUDGJlfENTOF ACQUITTAL:
'. SUFFICIENCY OF THE EVIDENCE
!'
Smith first seeks a judgment of acquittal on the basis that the trial evidence was
insufficient as a matter of law to sustain the jury's verdict. "A motion for judgment of
acquitta. challenges the sufficiency of the evidence to sustain a conviction on a particular
charge, and is granted only in cases in which the: Commonwealth has failed to carry its
burden regarding that charge." Com. v:..I>uck, 171 A.3d 830, 835 (Pa. Super.2017). The
standard to be applied in reviewing the sufficiency of the evidence "is whether viewing all
the evidence admitted at tria: in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-fincer to find every element of the crime beyond a
reasonable doubt." Com. v. Sweitzer, 177 A.3d 253, 257 (Pa. Super. 2017). When
"viewing the evidence in the light most favorable to the Commonwealth as the verdict
winner, the court must give the prosecution the benefit of all reasonable inferences to be
drawn from the evidence." rom. v. Gr;�!b 167 A.3d 793, 806 (Pa. Super. 2017), app.
denied, 2018 WL 319345 (Pa. 2018). I::1 applying the sufficiency of the evidence test, the
-8-
...... ,. ... _, _
court "may not weigh the evidence and substitute our judgment for the fact-finder." Com.
,1
v. Davison, 2018 WL 466228, at *l (Pa. 'Super. 2018); Duck, supra.
Moreover, under this standard of review, "the Commonwealth need not preclude
every possibility of innocence." Com.2'.,.rrosl,�. 2018 \\'L I 082365, at * 4 (Pa. Super.
2018); Sweitzer, �upra. "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 oflaw no
probability of fact may be drawn from the combined circumstances." Davison, supra;
'' Duck, supra. In addition, the prosecution "may sustain its burden of proving every
'l
i:
element of the crime beyond a reasonable doubt by means of wholly circumstantial
evidence." Crosley., supra; Puck, supr•! (quoting Com. v. Graham, 81 A.3d l37, 142 (Pa.
Super. 2013)). Finally, the jury "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."
Davisor., suprg, Sweitzer, supg; Grays, .�upra.
··;, Smith contends that he is entitled. to a judgment of acquittal since the
. : Commonwealth allegedly did not prove that the firearm used by Smith was operational,"
·i and "[o]ther than [Scranton High School Principal John] Coyle, the only people who
:i'
'! provided in-court identifications of Smith were police: officers." (Docket Entry No. 60 at
p. 6). ln response, the Commonwealth submits chat Harding "described the firearm in
terms of size, color, and distinctive appearance," and further testified "as to the firearm 's
operability, including an actual shot and the collection of shell casings." (Docket Entry
No. 65 at p. 3). With regard to the identificatior. challenge, the Commonwealth notes that
! .
Smith was identified as the shooter by Harding, and argues that "there is no requirement
-9-
that the victim [Fields] ider.:tify the defendant [Smith] in this case or any case." (ML at p.
4).
:
'\.j '.
Consistent with Pennsylvania law, the jury was instructed that to convict Smith of
·. i
]i
' the firearm offenses, the evidence had to establish beyond a reasonable doubt that the
'1
specific firearm at issue "must be operable, that is, capable of firing a projectile." (T.P.
6/6/17 at pp. 143-144). It is well settled in this Commonwealth that a firearm need not be
physically produced in order to prove its operability. See Com. v. Bond, 362 Pa. Super.
48, 52, 523 A.2d 768, 770 ( 19&7), app. denied, 516 Pa. 612, 531 A.2d 779 ( 1987); .Com.
v. Yap!�, 238 Pa. Super. 336, 338, 357 A.2d 617, 618 (1976). Accord Com. v. Godwin,
fi
!i 2016 WL 2653308, at *3 n.6 (Pa. Super. 20]6). Rather, "[a] reasonable fact-finder may,
I'
, I
'!.'
!
of course, infer operability from an object which looks like, feels like, sounds like, or is
like, a firearm ... without direct proof of operability. Com. v. Layton, 452 Pa. 495, 4 98,
: i
307 A.2d 843, 844 (1.973); f;.om. v.£it2;m!,gh, 360 Pa. Super. 217, 233, 520 A.2d 424, 432
!:
..
; I
( 1987), app. denied, 515 Pa 598, 528 A.2:d 955 ( 1987).
Although the subject firearm was. never produced, the Commonwealth presented
eyewitness testimony from Harding and Fields that they observed Smith discharge the
· 1
';
: . firearm. Harding also described the make, model, and appearance of the firearm
possessed and discharged by Smith. Fields informed the jury how he felt the heat of the
bullet projectile as i.t brushed his pant leg. The police discovered a 9-millimeter bullet
. '
; I
casing 22 feet from the step of Ms. Parfrey's porch, and the prosecution presented expert
testimony from a firearm and tool mark examiner who concluded that the casing had been
! .
discharged from a Hi-Point 9-·millimeter handgun such as the firearm that was possessed
by Smith. The testimonial and photographic evidence introduced at trial was more than
.
; .
;
- lO •
•'
sufficient to prove the operability of the firearm in question. See Bond, supra; Fitzhugh,
. '
supra.
: :
As for the defense attack on the: identification evidence, the reliability of an
identification must be assessed by examining the totality of the circumstances. Com. v.
Johnson, 635 Pa. 665, 139 A.3d 1257, 12.78 (2C 16). The factors to be considered when
determining the reliability of identification evidence include "the opportunity of the
witness to view the perpetrator at the time of the crime, the witness' degree of attention,
the accuracy of his prior description of the perpetrator, the level of certainty demonstrated '
at the confrontation, and the time between the crime and confrontation." Corn. v.
Kearney, 92 A3d 51, 65 (Pa. Super. 2014) (quoting Com. v. Moye, 836 A.2d 973, 976
(Pa. Super. 2003), app. denied, 578 Pa. 694, 851 A.2d 142 (2004)). An identification of
,· the defendant by someone other than the victim is sufficient to support a conviction. See,
e.g., Johnson, 139 A.3d at 1265 (victim's aunt identified defendant in a murder case);
Kearney, 92 A.3d at 66 (previous acquaintance of defendant identified him in a carjacking
case); Com. v. Armstrong, 74 A.3d 228, 238-239 (Pa. Super. 2013) (defendant identified
by resident of house next door to property that was subject to an attempted burglary).
The Commonwealth introduced the testimony of Smith's friend, Harding, who
knew Smith well and specifically identified him as the shooter. Harding had considerable
opportunity to observe Smith's appearance upon meeting him at the Turkey Hill Mini
Mart, transporting him to Val.ley View Terrace, witnessing Smith fire the handgun at
Fields, and transporting him from the crime scene. During the trial, Fields likewise made
an in-court identification of Smith as the shooter. Based upon the totality of the
- 11 -
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. ;
'.
circumstances, the evidence adduced at trial was sufficiently reliable to identify Smith as
the perpetrator.
'I
· I
I
'
:l..
(B) Jv!OTION FOR J\'EW TRJAL: WEIGHT OF THE EVIDENCE
:{
Smith next requests a new trial on the ground that the verdict was against the
l !
weight of the evidence. "The weight c,f the evidence is exclusively for the finder of fact,
. I
which is free to believe all, part, or none of the evidence, and to assess the credibility of
:
1
.
'
!
the witnesses." Corn. v. Kinney, 157 A.3d 968, 972 n.3 (Pa. Super. 2017), app. denied,
170 A.3d 971 (Pa. 2017). ''A true weight of the evidence challenge concedes that
sufficient evidence: exists to sustain the verdict, but questions which evidence is to be
believed." Com. v. Miller, 172 A.3d 632, 643 (?a. Super.2017) (quoting Com. v.
; I
: I Thompson, 106 A.3d 742, 758 (Pa. Super. 2014)).
'
In conducting a weight of the evidence assessment, the role of the trial court is to
.• '
1
l determine that notwithstanding all the evidence, "certain facts are so clearly of greater
: i
: i.
weight that to ignore them, or to give them equal weight will all the facts, is to deny
justice." Com. v. Williams, 176 A.3d 298, 312 (Pa. Super.2017); Com. v. Pal, 43 Pa. D.
& C. 5th 454, 494 (Lacka, Cc>. 2015), aff'd, 134 A3d496 (Pa. Super. 2015), app. denied,
., 635 Pa. 772, 138 A.3d 3 (2016). "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." Com."· Rodriguq��' 174 A.3d 1130, 1140 (Pa. Super. 2017).
. ..
'
Rather, for a defendant to prevail on a weight of the evidence challenge, "the evidence
must be so tenuous, vague and uncertain that the verdict shocks the conscience of the
..
,·
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l:
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! i
., - 12 -
t :
'
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court." Com. v. Miller, 172 A.3d 632, 643 (Pa. Super. 2017); Com. v. Killianv, 2015 WL
5060795, at *6 (Lacka. Co. 2015), aff'd, 154 A.3d 864 (Pa. Super. 2016).
Smith baldy argues that "the jury's verdict went against the weight of the evidence
presented at trial." (Docket Entry No. 60 at p. 7). Smith has not identified any facts that
are allegedly of greater weight than the facts established by the Commonwealth's
evidence. The direct and circumstantial evider.ce discussed in Section Il(A) above was
not so ambiguous and uncertain that the jury verdict somehow shocked the conscience of
the court. Since Smith has not demonstrated that the guilty verdicts were against the
weight of the evidence, his motion for a new trial on that basis will be denied.
(CJ RECOlvSJDER.ATION OF SEJ\lTENCE
In his final request for relief Smith seeks to have his sentence reconsidered on the
i!
basis that he has been incarcerated since his arrest, that he "earned his high school
diploma" while in prison, and that be purportedly has "been a model prisoner." (Docket
Entry No. 60 at pp. 7-8). The Commonwealth "opposes this request in that there are no
new or different circumstances that were not known at the time of sentencing which
f;
; I
warrant reconsideration of the sentence." (Docket Entry No. 65 at p. 4).
As reflected by the sentencing hearing transcript, Smith's PSI report, his juvenile
and Lackawanna County Prison records, an evaluation report prepared by Dr. Richard
Fischbein in connection with Smith's 2015 decertification hearing, and ten letters of
recommendation were reviewed and considered prior to sentencing. (T.P. 9113117 at pp.
2-4, 7-9, 19). Before Smith's. sentences were imposed, the reasons for those sentences
were stated on the record, and expressly included "the underlying circumstances of the
- 13 -
'
..
offenses," "the nature and gravity of the offenses," Smith's "age at the time" of his
,i offenses and sentencing, "his background," "individual circumstances," and "potential for
rehabilitation.'? (Id. at pp. 19-22, 24-25). Based upon Smith's prior record score of zero
and the offense gravity scores assigned to each offense, the individual sentences imposed
. 1 fell within the standard ranges of the Sentencing Guidelines. M. at pp. 3, 22-24).
Additionally, Smith was made "boot camp eligible" at the request of defense counsel and
without objection by the Commonwealth. (Id. at p. 27).
• 1
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed absent a manifest abuse of that discretion. Com. v.
McCarthy, 2018 WL 731615, at ".IO (Pa. Super. 2018). To challenge the discretionary
aspects of sentencing, a defendanr. must demonstrate that, inter alia, there is a substantial
question that the sentence is not appropriate under the Sentencing Code, 42 Pa.C.S. §
978l(b). Com. v. Radecki, 2018 WL 989152, at *21 (Pa. Super. 2018); Com. v. Rush,
162 A.3d 530, 543 (Pa. Super. 20 i: 7), app. denied, 170 A.3d l 049 (Pa. 2017). "The
determination of what constitutes a substantial questi on must be evaluated on a case- by-
case basis," but "exists only when the [defendant] advances a colorable argument that the
sentencing judge's actions were either: ,:i) inconsistent with a specific provision of the
..
'' Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing
:i �
�.
':;
:; The sentencing judge "is required to consider the particular circumstances of the offense and the character of
the defendant" and "should refer to the defendant's prior criminal record, his age, personal characteristics and his
potential for rehabilitation" in fashioning a sentence, and if the sentencing judge had the benefit of a PSI report.
i1. is "assurneld] th<: sentencing court 'was aware of relevant information regarding the defendant's character and
weighed those considerations along with micigatiiig statutory factors.?' Com, v. Griffin, 65 A.3d 932. 937 (Pa.
Super. 2013) (quoting Com. v. Mourv, 992 A.2d 162, 171 (Pa. Super. 2010)), app. denied, 621 Pa. 6S2, 76 A.3d
538 (20 I 3 ).
,:
''
..
i I
·i
J I
process." Corn. v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008), app. denied, 600 Pa.
ii745, 964 A.2d 895 (2009), cert. denied, 556 u.s. 1264 (2009)
"[W]here a sentence is within the standard range of the guidelines, Pennsylvania
law views the sentence as appropriate under the Sentencing Code," Grtffin, supra (quoting
Moul)', supra), and for that reason, challenges to sentences that fall within the standard
range of the sentencing guidelines generally do not raise the requisite "substantial
question" warranting review. See Com. v. Coss, 695 A.2d 831, 833-&34 (Pa. Super. 1997)
:
( defencant's claim that the trial court abused its discretion by sentencing him to the
:
highest sentence possible under the standard range of the sentencing guidelines did not
raise a substantial question); Com. v. Postell, 693 A.2d 612, 617 (Pa. Super. 1997) (since
�; :
defendant's sentence was "well within the standard range of the Sentencing Guidelines,"
,.
i!
l'
defendant "'has not raised a substantial question."), app. denied, 550 Pa 718, 706 A.2d
: . 1212 ( 1998). Similarly, the decision to impose concurrent or consecutive sentences "does
not ordinarily raise a substantial question." and "will present 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.?' .Com. v. Caldwell.
117 A.3d 763, 769 (Pa. Super. 2015) (quoting Com. v. Lamonda, 52 A.3d 365, 372 (Pa.
Super. 2012), app. denied, 621 Pa. 677, 75 A.3d 1281 (2013)), app. denied, 633 Pa. 774,
: I
!' 126 A.3d 1282(2015). However, "a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question." � v. Dodge. 77 A.3d 1263,
1270 (Pa.. Super. 2013), app. denied, 625 Pa. 648, 91 A.3d 161 (2014).
Smith requests "that the Court reconsider its decision to nm matters
consecutively," since "'(g)iven the length of time Smith (has] spent in prison and his
,!'.•
- 15 -
-··- ·-·-----------·-·-··---- ..... - .. ..__..... --·-- ....... _ - -· .... ·- ·····-···- ·-
,
: ;
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achievements while in prison, allowing him to serve concurrent sentences is in the
interests of justice." (Docket Entry No. 52. at,-� 47-49). The sentencing transcript
documents that Smith's history of incarceration at the Lackawanna County Prison, as well
as the ether materials and information contained in the PSI report, were weighed and
considered in conjunction with his sentencing. Smith was sentenced within the standard
range of the sentencing guidelines, and he has not established that the imposition of
consecutive sentences resulted in an aggregate sentence that is unduly harsh or clearly
unreasonable under the circumstances. Accordingly, his motion for reconsideration of his
sentence will be denied. An appropriate Order follows.
l ,
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t·
!·
COMMONWEALTH OF PENNSYLVANIA : IN THE COCR.T OF COMM OJ\: PLEAS
OF LACK.A WAJ,i�A COUNTY
CRJMJNAL DNISION
NO. 16 CR 200
. vs .
:�
NASEEM SMITH,
Defendant
.QRDER
MTI NOW, this 16th day of March, 2018, upon consideration of rDefendant's
Post-Trial Motions," the memoranda of .aw submitted by the parties, and the oral
argument of counsel, and based upon the reasoning set forth in the foregoing
Memorandum, it is hereby ORDERED and DECREED that:
i. Defendant's Post-Trial Morions are DENIED; and
2. Pursuant to Pa.R.Crim.P. 7.20(B)(4), defendant is advised in writing of his
rights (a) to appeal the denial of his post-sentence motions to the Superior Court of
Pennsylvania within thirty (30) days of the filing of this Order, (b) to the assistance of
counsel i::1 the preparation of his appeal, and (c) to appeal in forma pauperis and to
proceed with assigned counsel as provided in Pa.R.Crim.P. 122.
BY THE COURT:
;·
'
Terrence R. Nealon
- 17 -
p
! j
Circulated 01/28/2019 04:39 PM
I!
p
COMMONWEALTH OF PENNSYLVANIA :
vs.
NASEEM SMITH,
Defendant
SUPPLEMENTAL OPINION PURSUANT TO Pa. R.A.P. 1925(a)
The fifth issue identified in «Defendant's Concise Statement of Matters
I Complained of on Appeal," which was filed on June I, 2018, concerns a pre-trial rul ing
that was made by another judgeon May 4., 2016. (Docket Entry No. 74} Since the
I
J
reasons for that pre-trial ruling "do not already appear of record," this Supplemental
Opinion in Support of Order is submitted pursuant to·Pa.R.AP. l925(a)(l).
I l. PROCEDUR�L HISTORY
On.August 12, 2015, the.Commonwealth charged defendant, Naseem Smith
I ("Smith"), with criminal attempt to commit homicide, 18 Pa.C.S. § 2501 (a), aggravated
I assault - attempced serious bodily injury, 18. Pa.C.S. § 7702(a)(l ), aggravated assault -
attempted bodily injury with a deadly weapon, 18 Pa.C.S. § 2702(a)(4), carrying a firearm
without a license, 18 Pa.C.�L § 6106(a)(J), possession of a firearm by a minor, 18 Pa.C.S.
§.6110.J (a), terroristic threats, 18 Pa.C.S. § 2706(a)(I), simple assault, 18 Pa.C.S. §
. ,t--··---····' .., ,.,,_. . .
t
'
j
I
i
i
270l(a)(l), and recklessly endangering another person, 18 Pa.C.S. § 2705. (Docket Entry
No. l at pp. 6-13). On February 24, 2016, Smith filed a Petition for Decertification
seeking to have these charges adjudicated in the juvenile system, and following a hearing
on April 12,2.016, that request was denied by Judge Vito P. Gerouio on May 4, 2016.
(Docket Entry Nos. 6, 9, 19-22). Although.Judge Geroulo's Order of May 4, 2016, states
that an "Opinion consistent with this Order will hereby follow," no such Opinion was ever
filed. (Docket Entry No. 22).
On May 8, 2017, this case was reassigned to the undersigned, and the trial of this
matter was scheduled for June 5, 2017. (Docket Entry No. 31 ). On June 6, 2017, the jury
found Smith not guilty of criminal attempt to commit homicide and aggravated assault -
attempted bodily injury with a deadly weapon, but guilty of aggravated assault -
attempted bodily injury, carrying a firearm without a license, possession of a firearm by a
minor, terroristic threats, sirnpfe assault, and.recklessly endangering another person. (T.P.
6/6117 at pp. 185 .. 186). following the completion of a pre-sentence investigation report,
Smith was sentenced on September 13, 2017, to an aggregate period of incarceration at a
state correctional facility for a minimum period of 61 months to a maximum term of 122
months based upon his convictions for aggravated. assault, carrying a firearm without a
license, and terroristic threats, with his other convictions merging with those offenses for
sentencing purposes. (Docket Entry Nos. 46-47). With respect to his nolo contendere
pleas in No. 16 CR 207t Smith received cumulative periods of probation totaling 5 years
that were ordered to be served consecutively to his sentences in No. 16 CR 200. (No. 16
CR207 at Docket Entry Nos. 38-40).
.. 2 -
Smith filed timely post-trial motions comprised of a motion for a judgment of
acquittal, a.motion for a new trial, and a motion for reconsideration of-sentence. (No.' 16
CR 200 at Docket Entry No. 52). By Memorandum and Order. dated March 1 (>, 2018,
Smith's post-trial motions were denied. See Com. v. Smith, 20 I 8 WL 1364299 (Lacka,
Co. 20 r 8). On April I'3, 2018, Smith filed a timely notice of appeal to the Superior Court
of Pennsylvania. (Docket Entry No. 69).
Smith was directed to file a statement of errors complained of on- appeal under
Pa.R.A.P. l 92�(b), and thereafter filed his statement of issues on June 1, 2018. (Docket
Entry Nos. 73�74). The first four issues raised. in "Defendant's Concise Statement of
Matters Complained of on Appeal" were addressed in the Memorandum and Order filed
on March 16, 2018. (Docket Entry Nos .. 66, 74). However, Smith's fifth issue reads:
Whether the trial court erred when it denied the Defendant's Petition for
Decertification especially in light of Defendant's expert, Dr. Fischbein's report and
testimony ther th.e Defendant can be rehabilitated prior t:o the expiration of the
juvenile court's jurisdiction?
(Docket Entry No. 74 at pp. l-2), Since the current record does not reflect Judge
Geroulos reasons for denying Smith's Petition for Decertification, this Supplemental
Opinion is submitted in accordance with Pa.R.A.P. 1925(a).
II. FACTUALBACKGROUND
During the decertification hearing on April 12, 2016, Smith presented the
testimony of a Lackawanna County prison counselor, Kate Grebb, the Deacon at Shil.oh
Baptist Church, Charles Coe, and a forensic psychiatrist, Dr. Richard Fischbein.
(Transcript of Proceedings of Decertificatjon Hearing ("T.P .") on 4/l 2116 at pp. 9- 74).
The Commonwealth introduced into evidence the preliminary hearing transcript dated
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!II 1 January 27, 2016, and Smith 's records and trans.cripts from the Scranton Scheel District.
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11! (Id. at pp. 3-5). In addition, the Commonwealth offered the testimony of a licensed I
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!:·1 psychologist, Dr. Steven Samuel. (Id. at pp. 74-113).
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Ms. Grebb testified that from the date that Smith was admitted to the Lackawanna l !
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!I County Prison on Jufy 28, 2015: until the time of the decertification hearing on April 12, .I
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2016; Smith had no reported "rnisconducts," (1d. at pp. 10-1 l ). She also indicated that
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j\ ' Smith-was participating in high school classes offered at the prison by the Scranton i (
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School District and was attaining academic grades in the 80s. (Id. at p. l l ). Deacon Coe
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stated that Smith had attended the Shiloh Baptist Church with his grandparents-and had
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IiI! even participated in its junior deacon program, but stopped attending church services in
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2013 following the death of his grandfather and the relocation of his grandmother. ilit at
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pp. 15-161, He further testified that the Shiloh BaptistChurch «would try'to guide [Smith]
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Ii' (Id. at pp. 17-18). Dr. Fischbein opined «that taking into consideration Section 6322 [ of !
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the Juvenile Act] and the criteria that needs to be addressed, to look at the appropriateness
ll of decertification, .it was [his] opinion that [Smith] would benefit from being in the
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ii juvenile system." (14: at p. 45).
!;Il Based upon his interview of Smith, the results of his adolescent psychological
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II testing, and his clinical observations of Smith, Dr, Samuel testified that Smith 'did not I
II suffer from any depressive condition or other type of psychological disorder that required i
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treatment Mat pp. 86-92). With respect to the amenability factors set forth in Section
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6�55(a)-(4)(iii) of the Juvenile Act, 42 Pa.C.S., Dr. Samuel agreed with Dr. Fischbein that
I the impact of Smith's offenses on the victim and the community "was significant" and "of
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a concern," that the threat to the safety ofthe public was "high" and "significant" in that it
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involved the discharge of a loaded firearm, and that Smith's degree of culpability was
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reflected by the fact that "Smith was aware of what he was doing," had "calculated his
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IJ actions," and was "clearly responsible-for those actions." Mat pp. 96-9,7). Dr. Samuel
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concluded that Smith was a "high risk" for further "involvement in criminal behavior"
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I! since his testing demonstrated a. lack of remorse, his school records established "an
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p ongoing pattern of misconduct," he had neglected to respond to other available
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iiI: rehabilitative "programs in the past," and his actions indicated "predatorial-like behavior"
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ratherthan "impulsivity." Qd. at pp. 97-101). Consequently, based upon the amenability
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factors in Section 6355 and the results of Dr. Samuel's interview, testing, and analysis o::
l; Smith, Dr. Samuel concluded within a reasonable degree of psychological certainty that
11 Smith was not amenable to treatment, supervision, or rehabilitation within the juvenile
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11 court system. (Id .. at p. 1 04).
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I! At the conclusion ef the decertification hearing, Judge Geroulo afforded the parties
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I11! iO days within which to submit post-hearing briefs. Q:d. at pp. 113-114 ). Relying upon
11 Dr. Fischbeirr's testimony, Smith asserted in his post-hearing brief that he suffered from a
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'II. alleged offenses, and that the juvenile court system would offer better "therapy and if
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lj "overcome his depression." (Docket Entry No. 21 at pp. 6-7, 14). The Commonwealth
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H,1 Samuel, established that Smith was not amenable to treatment or rehabilitation within the
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1.ii juvenile system, and that the dispositional alternatives available in the criminal justice
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system were adequate for Smith. (Docket Entry No. 20 at pp. 13-18). As stated above,
Judge Geroulo denied Smith's petition for decertification by Order dated May 4, 2016.
(Docket Entry No. 22).
III. D ISCUSSIO:�
(A) STANDARD OF REVIEW
Although "most crimes involving juveniles are tried in the juvenile court of the
Court of Common Pleas," certain crimes have been deemed "so heinous that they are
l excluded from the definition of 'a delinquent act'" under Section 6302· of the Juvenile
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Act, 42 Pa.C.S .. § 6302. Com. v. Thomas, 67 A3d 838, 841:-842 (Pa. Super. 2C· 13), app.
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l denied, 625 Pa 636,, 89 A.3d 661 (2014 ). Pursuant to 42 Pa.C.S. § 6322( a) and Section
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l 6355(e), "when a juvenile has been charged with a crime listed. under paragraph 2(ii) or
(iii) of the definition of 'delinquent act' in 42 Pa.C.S. § .6302·, the.criminal division of the
Court of Common Pleas is vested with jurisdiction."! Com. v. L.P.� 137 A.3d 629,. 635
(Pa Super. 2.016) (quoting Com. v. Ruffin. l O A.Jd 336, 3.38 (Pa. Super. 2010)). Under
paragraph 2{ii)(C) and (I), i'f the defendant was 15 years of age or older at the time of the
offense "and a deadly weapon as defined in 18 Pa.C.S. § 2301 (relating to definitions) was
used during the commission: of the offense which, if committed by an adult) 'would be
classified as ... [ ajggravated assault as defined in l S:. Pa.C.S. § 2702(a)(l) or (2)," or an
attempt to 'commit that offense or the crime of murder as provided in l 8 Pa.C.S. § 901, the
'Section 6322(a) of the Juvenile Act provides thp;'� ii criminal proceeding in which the defendant is a child shall
be. assigned to the juvenile-system unless "the child is-charged with ... any of the offenses excluded by paragraph
(2)(ii) or (iii) of the definition of 'delinquent act' in Section 6J02 (relating to definitions) ... .'' 42 Pa.C.S. §
�J22(a). Simi lady, Section 6355(e) states that where the petition alleging delinquency involves conductwhich.
if proven, would constitute "any of the offenses excluded by paragraph 2(ii) or (iii) of the definition of
'delinquent act' in Section 6302 (relating to definitions), the court shall require the offense to be prosecuted
under. the criminal law and procedures .... " 42 Pa.C.S. § 6355(e).
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I! criminal division is vested with jurisdiction, See 42 Pa.C.S. § 6302. Since Smith was 17
1l years of age at the time of the shooting and was charged with criminal attempt to commit
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ll homicide and two counts of aggravated assault involving the use of a deadly weapon, the
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!1 criminal division of the Court of Common Pleas of Lackawanna County was- vested with
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jurisdiction wben Smith was fir-st charged in this case.
.However, when jurisdiction vests with the criminal division under Section 6302,
II� ; the juvenile may seek a transfer to the Juvenile system through the process of
Il "decertification." Thomas, 67 A.3d at 842� Ruffin, 10 A.3d at 338. The ultimate decision
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I of whether to. certify a minor to stand trial as an adult is within the sole discretion of the
IIII decertification court. LP., 137 A.3d at 636; Com. v. Spotti. 94 A.3d 367, 370 (Pa. Super.
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2014) (en bane), app. dismissed, 635 Pa. l5l, 132 A.3d 972 (201.6). "Decisions of
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ll whether to grant decertification will not be overturned. absent a gross abuse of discretion."
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11 L.P., 137 A.3d at 635; Ruffin, 10 A.3d at 33.8. "An abuse of discretion is not merely an
II error of judgment but involves· the misapplication or overriding of the law. or the: exercise
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of a manifestly unreasonable judgment based upon partiality, prejudice, or- ill will."
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'j Thomas� 67 A..3d at 843 (quoting Com. v_ Brown, 26 A,3d 485, 493 (Pa Super.2011)).
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I Moreover, "[tjhe existence of factsin the reeord that would support a contrary result does
I! not demcnstrate.an abuse of discretion." Spotti, 94 A.3d at 370 (quoting Com.. v. In re
llli E.F .• 606 Pa. 73, 995 A.2d 326, 329 (2010)).
(B) DECERTlFICATION CRITERIA
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"To obtain decertification, it is the juvenile's burden to prove, by a preponderance
I of the evidence, that transfer to the juvenile court system best serves the public interest."
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Th.omas, 67 A.3d at 842 (citing 42 ·Pa.C.S. § 6322(a)). "In determining whether the child
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has so established that the transfer will serve the public interest, the court shall consider
I the factors contained in Section. 6355(a)(4)(fri) (relating to transfer to criminal
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proceedings)." 42 Pa_C.S. § 6322(a). Those statutory factors are as follows:
(A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual posed by the child;
(D) the nature and circumstances of the offense allegedly committed by the
child;
(E) the degree of the child's culpability;
(F} the adequacy and duration of dispositional alternatives available under this
chapter and in the adult criminal justice system; and
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(G). whether the child is amenable 1Ci treatment, supervision or rehabilitation. as
a juvenile by considering the following factors:
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(I) age;
il (II) mental capacity;
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(IV)
maturity;
the degree of crirn inal sophistication exhibited by the child;
I (V) previous reeords, ifany;
(VI) the nature and extent of any prior delinquent history, including the
success .or failure, of any previous attempts by the juvenile court to
rehabilitate the child;
(VII) whether the child. can be rehabilitated prior to the expiration of the
juvenile court jurisdiction;
(VIU) probation or institutional reports, if any;
(IX) any other relevant factors.
42 Pa.C.$_ § 6355(a)(4)(iii}.
Although the Juvenile Act requires the decertification court to consider all of the
amenability factors, it is silent as to the: weight that should be assessed to each factor.
Com. v. Jackson, 555 Pa_ 37, 45, 722 A.2d 1030, 1033 (1999); Thomas, 67 A.3d at.842.
Furthermore, the decertification court "need not address, seriatim, the applicability and
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·j is respectfully submitted that the Order of JudgeGeroulo dated May 4; 2016, denying
Smith's petition for decertification should be affirmed on appeal.
BY THE COURT:·
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Terrence R. Nealon
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Date: J-;;Y I 1, #.Of 'g
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ljlr cc: Written notice ofthe entry oftheforegoing Supplemental Opinion Pursuant to
tl Pa.R.A.P. J 925(a) has been provided to each party pursuant to Pa. R. Crim. P.
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U 4(B)(3)(vi) by transmitting time- stamped copies via electronic mail to:
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Ruth Lenahan, Esquire Lenaham�lackawannacountv .org
\I Assistant District Attorney
l I Lackawanna County District Attorney's Office
IflI Counsel for the Commonweahh
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Donna M. Devita, Esquire dde vi ta! aw@.2:mai I .com
Assistant Public Defender
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