Com. v. Woodard, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL WOODARD :
:
Appellant : No. 2121 EDA 2020
Appeal from the Judgment of Sentence Entered September 23, 2020,
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0005204-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 4, 2022
Darryl Woodard appeals from the aggregate judgment of sentence
imposed following his conviction of two counts of terroristic threats, and one
count each of simple assault, persons not to possess a firearm, firearms not
to be carried without a license, and possession of an instrument of crime
(“PIC”).1 We affirm Woodard’s convictions and all aspects of his judgment of
sentence except for the order of restitution in the amount of $134.00, which
we vacate.
The trial court summarized the relevant factual and procedural history
as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2706(a)(1), 2701, 6105(a)(1), 6106(a)(2), 907(b).
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On June 7, 2018, members of the Upper Darby Township
Police Department were dispatched to 245 Copley Road, Upper
Darby, Delaware County, Pennsylvania following the report of a
road rage incident involving an armed subject. A female caller[,
Waltina White,] reported a black male operating a white Volvo
SUV with possible Pennsylvania registration plate KMP-1333 had
brandished a firearm at members of her family. The female caller
reported the male left the scene in a white Volvo SUV in pursuit
of her son[, Brendan Brown]. Marked Upper Darby Police units
arrived on location and four victims stated the subject became
irate because a car was blocking Copley Road making it impossible
for his white Volvo SUV to pass. The subject in the white Volvo
exited his vehicle and was reported to have made a threat[en]ing
statement while brandishing a handgun. [Specifically, Woodard,
while pointing a firearm at White from an arm’s length distance
while she was standing in front of Brown, asked White if Brown
was her son, and then stated, “I got something for this little
mother fucker.”]
Victim #2, later identified as Brendan Brown, indicated that
he briefly double-parked his mother’s vehicle in front of her home
while he ran inside her house. [Brown, who was visiting from
Louisiana to attend his younger sister’s graduation, had been
bowling with the sister, Brenee Brown, and her friend, Kayla
Stepteau. As Brown ran in the house, Brenee and Kayla were
exiting the vehicle. Woodard began yelling obscenities at the girls
and simulated ramming into them with his SUV.] When Brown
came back out of the house, he heard Woodard yelling obscenities
at White. Brown indicated that there was no need for Woodard’s
aggression and that he would move the vehicle. Woodard then
stated, “this is Philadelphia.” Brown replied that he was visiting
from out of town. In response, Woodard went back to his vehicle
and reached in the passenger door. Fearing for his safety,
[Brown] drove his [mother’s] vehicle from the scene followed by
[Woodard] at a high rate of speed. [Woodard pulled his vehicle
alongside the vehicle that Brown was driving. Brown then made
a series of turns to evade Woodard.] Upper Darby Police Officer
Louis P. Garay, Jr. together with Officer Michael Taylor were
searching the area for the identified white Volvo SUV. While in
the area of Walnut Street and Copley Road, Upper Darby
Township, these officers observed a white Volvo XC90 SUV
bearing Pennsylvania registration KNP-1333. Officer Garay
activated his marked police vehicle’s emergency lights and audible
siren to conduct a vehicle stop. The male operator, later identified
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as [Woodard], stopped and exited the vehicle. A pat down was
conducted for officer safety. Officer Garay observed in plain view
the handle and magazine of a firearm protruding from beneath
the passenger seat of the white Volvo SUV. The firearm was
secured and [Woodard] was detained for investigation. The
firearm recovered was a 9mm Taurus model PT92AVL, bearing
serial # TXF84464. It was loaded with twenty-seven rounds of
ammunition in an extended magazine.
***
In this case, a DNA swab to procure DNA evidence from the
gun was also conducted. The DNA swabs are sent to the
Pennsylvania State Police Lab for analysis. . . . The Pennsylvania
State Police lab matched [Woodard’s] DNA with the DNA located
on the handgun recovered from the white Volvo X90 SUV[.]
Trial Court Opinion, 2/10/21, at 2-4, 13-14 (footnotes, citations to the record,
and unnecessary capitalization omitted).
Woodard was arrested and charged with numerous offenses. The
matter proceeded to a jury trial in February 2020. Brown traveled from his
home in Louisiana to testify at Woodard’s trial. At the conclusion of trial, the
jury convicted Woodard of the above-mentioned offenses. On September 23,
2020, the trial court imposed an aggregate sentence of nine and one-half to
nineteen years in prison.2 The trial court additionally ordered Woodard to pay
restitution in the amount of $134.00 to Brown for his travel costs to attend
trial. The trial court also ordered Woodard to pay the costs of prosecution and
a DNA crime lab fee of $1,340.00. Woodard filed a post-sentence motion
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2 The trial court ordered that all of Woodard’s sentences would run
concurrently except for persons not to possess and firearms not to be carried
without a license, which would run consecutively.
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which the trial court denied. Woodard thereafter filed a timely notice of
appeal, and both he and the trial court complied with Pa.R.A.P. 1925.
Woodard raises the following issues for our review:
1. Whether the evidence was insufficient as a matter of law to
establish the elements of terroristic threats beyond a
reasonable doubt, in violation of [Woodard’s] federal and state
constitutional rights?
2. Whether the trial court erred as a matter of law and violated
the discretionary aspects of sentencing when it imposed a
manifestly excessive and unreasonable aggregate sentence of
9½ to 19 years of incarceration, inasmuch as the trial court
failed to state any reasons for imposition of the sentence; the
court failed to give individualized consideration to [Woodard’s]
personal history, rehabilitative needs and background; and the
sentence was in excess of what was necessary to address the
gravity of the offense, the protection of the community and
[Woodard’s] rehabilitative needs?
3. Whether the orders of restitution in the amounts of $1,340.00
payable to the . . . police department and $134.00 payable to
. . . Brown constitute an illegal sentence under 18 Pa.C.S.[A.]
§ 1106?
4. Whether the trial court erred in denying [Woodard’s] motion
for a new trial, as the verdict was against the weight of the
evidence where the evidence of record was so inherently
unreliable such that the determination of [Woodard’s] guilt was
based purely on speculation and conjecture, in violation of
[Woodard’s] constitutional rights under the state and federal
constitutions?
Woodard’s Brief at 5-6 (some capitalization omitted).
In his first issue, Woodard challenges the sufficiency of the evidence
supporting his convictions for terroristic threats. Because a determination of
evidentiary sufficiency presents a question of law, our standard of review is
de novo and our scope of review is plenary. See Commonwealth v.
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Sanchez, 36 A.3d 24, 37 (Pa. 2011). In reviewing a challenge to the
sufficiency of the evidence, our standard of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most favorable
to the Commonwealth, demonstrates the respective elements of
a defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted). Importantly, the fact finder,
“which passes upon the weight and credibility of each witness’s testimony, is
free to believe all, part, or none of the evidence.” Commonwealth v.
Ramtahal, 33 A.3d 602, 607 (Pa. 2011).
A person commits the crime of terroristic threats if he “communicates,
either directly or indirectly, a threat to . . . commit any crime of violence with
intent to terrorize another[.]” 18 Pa.C.S.A. § 2706(a)(1). The elements
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necessary to establish terroristic threats are: (1) a threat to commit a crime
of violence; and (2) that the threat was communicated with the intent to
terrorize. Commonwealth v. Walls, 144 A.3d 926, 936 (Pa. Super. 2016).
The purpose of § 2706 is to impose criminal liability on persons who make
threats which seriously impair personal security; it is not intended to penalize
mere spur-of-the-moment threats which result from anger. Id. The offense
does not require that the actor intended to carry out the threat, only that he
intended to terrorize. Commonwealth v. Anneski, 525 A.2d 373, 375 (Pa.
Super. 1985). We consider the totality of the circumstances to determine if
the actor had the necessary mens rea. Commonwealth v. Reynolds, 835
A.2d 720, 730 (Pa. Super. 2003).
Woodard argues that the Commonwealth failed to establish the
elements of terroristic threats as to either Brown or White. Woodard
maintains that no threat was communicated to, or heard by, Brown. Woodard
claims that he and Brown exchanged words, and Brown only heard Woodard
say “this is Philadelphia.” Woodard’s Brief at 23. According to Woodard,
Brown saw Woodard go back to his car, but Brown did not see what Woodard
was doing and never saw a gun. Woodard argues that there was no evidence
that Woodard communicated a threat to commit any crime of violence with
intent to terrorize Brown.
Woodard further claims that his statements to White, “is that your son?
. . . I got something for that mother fucker” while holding a firearm was not
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sufficient to establish that a threat was communicated to or received by either
Brown or White. Woodard’s Brief at 23 (citing N.T., 2/12/20, at 96). Woodard
claims that because Brown did not hear the statement made to White, he did
not receive it and therefore his personal security could not have been seriously
impaired. Woodard points out that White testified that when Brown and
Woodard were arguing, she heard Woodard say, “well I’m going to show you
how we get down around here.” Woodard’s Brief at 24 (citing N.T., 2/12/20,
at 113-14). Woodard argues that because Brown, only heard Woodard say,
“this is Philadelphia,” the statements made to and heard by White were
insufficient to constitute a terroristic threat against Brown, as he did not hear
or receive them.
Woodard similarly argues that the same statements were not a
terroristic threat against White because they were not directed to her. While
Woodard acknowledges that White testified that Woodard pointed the firearm
in her direction, Woodard nevertheless claims that his conduct and statements
were insufficient to establish a terroristic threat against White.
Finally, Woodard asserts that his conduct and statements were the
product of transitory anger resulting from a heated verbal exchange with
Brown and White. He argues that because his conduct and statements were
spur-of-the moment, the evidence was insufficient to establish the requisite
intent required by the terroristic threats statute.
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The trial court considered Woodard’s first issue and determined that it
lacked merit. The court reasoned:
At trial, Ms. White identified [Woodard] as the driver of the
white SUV. [Woodard] made the remark that “I’m going to show
you how we get down around here.” [Woodard] then entered his
car and grabbed something but Ms. White did not know what that
object was until [Woodard] exited the vehicle. [Woodard] then
asked Ms. White if that (referring to Brendan) was her son and
Ms. White responded in the affirmative. [Woodard] said he “had
something for that mother fucker” and pointed a gun at Ms. White.
At trial, Mr. Brown also identified [Woodard] as the driver
of the white SUV. Mr. Brown testified he told [Woodard] there
was no need for the argument and Mr. Brown would simply move
the vehicle. [Woodard] responded to Mr. Brown advising this is
Philadelphia and Mr. Brown relayed that he lived in Louisiana. At
this point, [Woodard] reache[d] inside the passenger door of his
white SUV and appeared to be grasping for something. Fearing
for his life, Mr. Brown drove away but [Woodard] followed in close
pursuit. [Woodard] pulled alongside Mr. Brown’s vehicle
prompting Mr. Brown to execute a series of turns to evade
[Woodard]. Ultimately, Mr. Brown eluded [Woodard], drove back
to his mother’s home at 245 Copley Road and parked in the rear
alley.
The testimony of both [Ms.] White and Mr. Brown
highlighted above and buttressed by the testimony of witnesses
Brenee Brown and Kayla Stept[e]au, as well as all reasonable
inferences drawn therefrom, when viewed in the light most
favorable to the Commonwealth as the verdict winner, is sufficient
to support the elements of the offense of terroristic threats as to
both [Ms.] White and [Mr.] Brown.
Trial Court Opinion, 2/10/21, at 27-29. (citations to record omitted).3
____________________________________________
3White’s daughter and Brown’s little sister, Brenee Brown, identified Woodard
as the driver of the Volvo SUV. She testified that after she and her friend,
Kayla Stepteau, exited White’s vehicle, Woodard retrieved an object from his
vehicle with a long black handle, which turned out to be a handgun. Brenee
(Footnote Continued Next Page)
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Based on our review, we conclude that the evidence presented at trial
was sufficient to support Woodard’s convictions for terroristic threats as to
both White and Brown. While we recognize that the terroristic threats statute
is not intended to punish spur-of-the-moment threats which may be uttered
in a heated exchange, the fact that threats are made in a heated exchange is
not determinative. As this Court has explained, “the real issue [is] whether
the Commonwealth presented sufficient evidence to establish the required
mens rea, not whether the defendant made the statements in the context of
a heated discussion.” Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa.
Super. 2003). Further, the fact that that Woodard was angry did not prevent
him from forming the mens rea required to sustain a terroristic threats
conviction. See Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa. Super.
2000) (holding that being angry does not render a person incapable of forming
the intent to terrorize). As explained above, we look to the totality of the
circumstances to determine if Woodard had the necessary mens rea.
Reynolds, 835 A.2d at 730.
____________________________________________
then yelled for her brother to run and witnessed Woodard level the firearm at
her mother. See N.T., 2/12/20, at 127-28. Kayla Stepteau testified that, as
she and Brenee were exiting the vehicle, Woodard drove up and began to honk
and yell at them. She additionally testified that he drove his vehicle to
simulate striking them. Kayla witnessed Woodard retrieve a large black gun
from his vehicle. She then saw Woodard pursue Brown as he fled in his
vehicle. See id. at 142-50.
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Here, the totality of the circumstances clearly established that Woodard
acted with either the intent to cause terror or reckless disregard for the risk
of causing terror in White. Woodard, while enraged and yelling obscenities,
simultaneously pointed a gun directly at White while they were standing an
arm’s length distance from one another, asked her if Brown was her son, and
indicated “I got something for this little motherfucker.” N.T., 2/12/20, at 98-
99. Together, this language and conduct implied the threat that Woodard
intended to shoot Brown, whom White had jumped in front of as Brown was
getting back into her vehicle. See id. at 97, 99, 104.
Similarly, the pointing of the gun directly at White conveyed a threat
that she too would be shot if Woodard so desired. Woodard did not need to
specifically advise White that he intended to shoot her in order to
communicate a threat of violence or place her in fear of her personal safety.
See Commonwealth v. McCalman, 795 A.2d 412, 418 (Pa. Super. 2002)
(determining the count of terroristic threats was established by the
defendant’s actions in holding a gun to three people’s heads, even though the
use of offensive language did not rise to the level of a terroristic threat); see
also In re Maloney, 636 A.2d 671, 675 (Pa. Super. 1994) (noting that the
pointing of a gun at occupants of a passing car was sufficient to support a
conviction for terroristic threats, even absent a verbal threat, as conduct
designed to express a threat was sufficient communication under § 2706);
Commonwealth v. Hudgens, 582 A.2d 1352, 1359 (Pa. Super. 1990)
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(holding that where a defendant displays a weapon while threatening a victim,
the victim was “subjected to the precise type of psychological harm and
impairment of personal security which the statute seeks to prevent”). Not
surprisingly, White testified that Woodard’s conduct made her “very
frightened.” N.T., 2/12/20, at 106. Thus, we conclude that the totality of the
evidence when viewed in the light most favorable to the Commonwealth was
sufficient to establish Woodard’s conviction for terroristic threats as to White.
With respect to Woodard’s conviction for terroristic threats as to Brown,
Brown testified that when he exited his mother’s house, he heard Woodard
yelling obscenities and honking his horn. N.T., 2/12/20, at 47, 85. Brown
told Woodard that he would move the car and indicated that there was no
need for Woodard’s aggression. Id. at 48, 51. At some point, Woodard exited
his vehicle. Id. at 50. Woodard continued to argue with Brown, and stated
“you know, this is Philadelphia.” Id. at 51. In response, Brown indicated “I’m
not from around here. I’m just in town visiting . . . for my sister’s graduation.”
Id. Woodard, who was still cursing at Brown, then went to his vehicle and
reached inside the passenger side. Id. at 51-52. Upon observing Woodard’s
actions, Brown, who did not know what Woodard was reaching for, became
fearful. Id. Brown got back in his mother’s car and drove off “out of fear for
[his] life.” Id. at 53, 88. Brown then looked in his rearview mirror and noticed
that Woodard was closely following him. Id. at 54. Woodard then caught up
to Brown and pulled the white Volvo SUV up alongside the driver’s side of
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Brown’s vehicle. Id. Brown then made a series of right turns to evade
Woodard. Id. at 55. Brown indicated that Woodard’s conduct made him feel
nervous and scared, and that he continued to fear for his safety. Id.In our view, the totality of the circumstances established that Woodard
acted with either the intent to cause terror or reckless disregard for the risk
of causing terror in Brown and, in fact, communicated such threats to Brown.
The fact that Woodard did not tell Brown that he was retrieving a gun from
his car or make a verbal threat of harm to Brown is not determinative, as the
inference of an intention to harm Brown was sufficient. See Commonwealth
v. Hudgens, 582 A.2d 1352, 1358 (Pa. Super. 1990) (holding that defendant
need not specify the type of violence he intends to commit where the type of
crime may be inferred from the nature of the statement and the context and
circumstances surrounding the utterance of the statement).
In the instant matter, the jury could have inferred that Woodard’s
actions in yelling obscenities at Brown and then, during their heated exchange,
going back to his vehicle to retrieve something, inferred a threat of harm to
Brown. Examining the context of Woodard’s actions, it would be reasonable
for Brown to believe that Woodard was retrieving a weapon. Indeed,
Woodard’s conduct sufficiently communicated a threat of harm to Brown such
that he feared for his life. N.T., 2/12/20, at 53, 88. The jury could have
determined that a further threat of harm was inferred when, after Brown
attempted to flee from Woodard by driving away from the scene, Woodard
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chased Brown at a high rate of speed and pulled up next to him. Brown, who
was already in fear for his life, could have reasonably believed that Woodard
had a weapon and intended to catch up to Brown in order to harm him. These
further actions by Woodard caused Brown to fear for his safety. Id. at 55.
Based on the totality of the circumstances when viewed in the light most
favorable to the Commonwealth, we conclude that the evidence was sufficient
to establish that Woodard either intended to terrorize Brown or acted with
reckless disregard that his actions would cause terror in Brown, and did, in
fact, cause such terror. Having determined that the record supports
Woodard’s convictions for terroristic threats as to White and Brown, Woodard’s
first issue merits no relief.4
In his second issue, Woodard challenges the discretionary aspects of his
sentence. Challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. See Commonwealth v. Moury, 992 A.2d
162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] 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
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4 Woodard’s reliance on Commonwealth v. Vergillo, 103 A.3d 831 (Pa.
Super. 2014) is misplaced. The Vergillo Court addressed the question of
whether the trial court erred by concluding that it did not have jurisdiction
over terroristic threats charges where the defendant in New Jersey
communicated the threats over the phone to the victim in Pennsylvania. The
Vergillo Court did not rule, as Woodard suggests, that a verbal threat cannot
create fear for personal security unless the person actually hears it.
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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, [see] 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, [see] 42 Pa.C.S.A. §
9781(b).
Id. at 170 (citation omitted). When an appellant challenges the discretionary
aspects of his sentence, we must consider his brief on this issue as a petition
for permission to appeal. See Commonwealth v. Yanoff, 690 A.2d 260,
267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d
17, 18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b).
In the instant case, Woodard filed a timely notice of appeal, raised a
discretionary sentencing claim in a timely post-sentence motion, and included
in his appellate brief a separate Rule 2119(f) statement. As such, he is in
technical compliance with the requirements to challenge a discretionary
sentencing claim. See Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa.
Super. 2010). Thus, we will proceed to determine whether he has presented
a substantial question for our review.
In his Rule 2119(f) statement, Woodard raises numerous discretionary
sentencing claims, including: the sentence is manifestly excessive and
unreasonable; the trial court placed no reasons on the record for the sentence
imposed; the sentence was not individualized; the sentence was in excess of
what was necessary to address the gravity of the offense, the protection of
the community, and Woodard’s rehabilitative needs; and the trial court used
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an incorrect prior record score by double-counting his prior conviction for
aggravated assault.
Importantly, Woodard raised only two discretionary claims in his post-
sentence motion. In that filing, Woodard argued that the trial court abused
its discretion by imposing a sentence that was “harsh and excessive under the
circumstances” and “not supported by adequate reasons stated on the
record.” Post-sentence Motion, 10/1/20, at unnumbered 1. As Woodard failed
to raise his other discretionary sentencing claims in his post-sentence motion,
he failed to preserve them for our review. See Commonwealth v. McAfee,
849 A.2d 270, 275 (Pa. Super. 2004) (holding that issues challenging the
discretionary aspects of a sentence must be raised during sentencing
proceedings or in a post-sentence motion and that absent such efforts, an
objection to a discretionary aspect of a sentence is waived).
Turning to the first discretionary sentencing claim that Woodard raised
in his post-sentence motion,
a defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013); see also
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010) (holding
that the imposition of consecutive, rather than concurrent, sentences may
raise a substantial question in only the most extreme circumstances, such as
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where the aggregate sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment).
Here, Woodard does not explicitly challenge the consecutive nature of
his sentences for persons not to possess and firearms not to be carried without
a license. Nevertheless, by claiming that his aggregate sentence is excessive,
he indirectly impugns the consecutive nature those sentences. Additionally,
a claim that “a sentence is manifestly excessive such that it constitutes too
severe a punishment” has been held to raise a substantial question. See
Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016). Thus,
Woodard’s first discretionary sentencing claim raises a substantial question.
Turning to Woodard’s second discretionary sentencing claim, we
observe that in every case in which the trial court imposes a sentence for a
felony or a misdemeanor, the court shall make as a part of the record and
disclose in open court at the time of sentencing, a statement of the reason or
reasons for the sentence imposed. See Commonwealth v. Mouzon, 812
A.2d 617, 620-21 (Pa. 2002); see also 42 Pa.C.S.A. § 9721(b). This Court
has held that claims that the sentencing court imposed a sentence outside the
standard guidelines without stating adequate reasons on the record presents
a substantial question. See Commonwealth v. Antidormi, 84 A.3d 736,
759 (Pa. Super. 2014); see also See Commonwealth v. Rodda, 723 A.2d
212, 214 (Pa. Super. 1999) (en banc). While each of Woodard’s sentences
falls within the standard range of the sentencing guidelines, we are mindful
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that this Court has also held that a claim that a court “did not state on the
record any reasons for sentence” presents a substantial question.
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006).
Accordingly, Woodard’s claim that the trial court failed to state any reasons
for the sentence imposed raises a substantial question. Having determined
that both of Woodard’s preserved discretionary sentencing claims raise a
substantial question, we will consider them in seriatim.
With respect to Woodard’s first discretionary sentencing claim, he
correctly notes that because all of his sentences fall within the standard range
of the sentencing guidelines, our review requires us to determine whether “the
case involves circumstances where the application of the guidelines would be
clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). However, Woodard does
not provide any reasoning, argument, citation to the record, or legal precedent
explaining how the trial court’s application of the standard range guidelines is
“clearly unreasonable” under the particular circumstances of this case.5 Nor
does Woodard explain how his aggregate sentence is unduly harsh considering
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5 In support of his claim, Woodard asserts only that “the trial court failed to
consider any of the relevant factors required under the Sentencing Code in
imposing sentence.” Woodard’s Brief at 32. However, Woodard conflates his
preserved excessiveness challenge with his unpreserved claim that the trial
court failed to consider the factors set forth in 42 Pa.C.S.A. § 9721 (i.e., 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). As noted above, this latter claim was not raised in his post-
sentence motion and, hence, was not preserved for our review.
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the nature of his crimes and the length of imprisonment. See Moury, 992
A.2d at 171-72.
The Rules of Appellate Procedure state unequivocally that each question
an appellant raises is to be supported by discussion and analysis of pertinent
authority. See Pa.R.A.P. 2119(a). Appellate arguments which fail to adhere
to these rules may be considered waived, and arguments which are not
appropriately developed are waived. See Commonwealth v. Murchinson,
899 A.2d 1159, 1160 (Pa. Super 2006) (deeming appellant’s claims waived
under Pa.R.A.P. 2119(a) because he did not develop meaningful argument
with specific references to relevant caselaw and to the record to support his
claims); see also Commonwealth v. Heilman, 867 A.2d 542, 546 (Pa.
Super. 2005) (recognizing that failure to provide “such discussion and citation
of authorities as are deemed pertinent” may result in waiver);
Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa. Super. 2004) (declining
to review appellant’s claim where there was limited explanation and
development of the argument). As Woodard failed to develop his argument,
his first discretionary sentencing claim is waived.
In Woodard’s second discretionary sentencing claim, he contends that
his sentence must be vacated because the trial court did not announce any
reasons for imposition of sentence at the time of sentencing. Woodard
concedes that the Commonwealth articulated the relevant sentencing
guidelines at the sentencing hearing, but nevertheless argues that the trial
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court did not restate them when imposing sentence. Woodard claims that,
after imposing sentence, the trial court merely stated that the sentence is
consistent with the grading of each of the offenses, taking into consideration
“your physical condition” and the “conduct that transpired.” Woodard’s Brief
at 30 (citing N.T., 9/23/20, at 23). Nevertheless, Woodard urges us to vacate
his sentence on the basis that the court offered no reasons for the sentence
at the time of sentencing.
Our review of the record discloses that, at the sentencing hearing, the
trial court explained to Woodard that the sentence imposed “is consistent with
. . . the grading of each of those offenses and falls in, I believe, each of the
cases at the bottom of the standard range, taking into consideration, as I
have, your physical condition.” N.T., 9/23/20, at 23. The court further
explained, “I know, based upon having presided over this trial, the conduct
that transpired and the reason why the verdict was returned by the jury,
unanimously, as it was.” Id.While we recognize that the trial court’s discussion of the reasons for
Woodard’s sentence was brief, we nevertheless conclude that it minimally
complied with the dictates of § 9721(b). This Court has explained:
[A]lthough a sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence, ... the record as
a whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender. A discourse on
the court’s sentencing philosophy, as it applies to the defendant
before it, is not required. But the reasons must reflect the judge’s
consideration of the sentencing code, the circumstances of the
offense[,] and the character of the offender.
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Commonwealth v. Flowers, 149 A.3d 867, 875-76 (Pa. Super. 2016)
(quotations and citations omitted).
Here, the prosecutor stated on the record the standard range guidelines
for each of the crimes of which Woodard was convicted. The prosecutor also
stated on the record Woodard’s extensive criminal history, including the fact
that his prior convictions prevented him from possessing a firearm. Woodard’s
counsel spoke extensively on his behalf, and explained Woodard’s recent
health problems, including two strokes which left him with impaired
functioning on the right side of his body, a machining accident which severely
injured his right hand, and mental health issues, including memory loss and
depression. Finally, Woodard exercised his right to allocution, during which
he repeatedly claimed that he had no prior criminal record, did not commit
the offenses in question, and that the entire proceeding was a “set up.” N.T.,
9/23/20, at 12-19, 25. The trial indicated on the record that she took
Woodard’s physical limitations into consideration when sentencing him at the
bottom of the standard range of the guidelines for each of his convictions. The
court additionally explained that she had presided over Woodard’s trial and
was aware of the conduct and crimes for which Woodard was accused and for
which he was unanimously convicted by the jury. Taken as a whole, we
conclude that the record reflects the sentencing court’s consideration of the
sentencing code, the circumstances of the offenses of which Woodard was
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convicted, and his character. Accordingly, we find no abuse of discretion, and
Woodard is not entitled to relief on this claim.6
Next, while not included in his statement of errors, Woodard claims that
his sentence for persons not to possess a firearm under 42 Pa.C.S.A. §
6105(a) is illegal because the sentence exceeds the statutory maximum for
the grading of that offense. Any claim that a sentence exceeds the lawful
maximum implicates the legality of a sentence. See Commonwealth v.
Foster, 960 A.2d 160, 164 (Pa. Super. 2008). Similarly, a challenge to the
proper grading of an offense implicates the legality of the sentence. See
Commonwealth v. Popow, 844 A.2d 13, 17 (Pa. Super. 2004). When
presented with an illegal sentencing claim, our standard of review is de novo,
and the scope of our review is plenary. See Commonwealth v. Felder, 75
A.3d 513, 515 (Pa. Super. 2013).7
____________________________________________
6 We additionally observe that the sentencing court had the benefit of a
presentence investigation report. Where, as here, the sentencing court
imposed standard-range sentences with the benefit of a presentence report,
we will not consider the sentence excessive. See Commonwealth v. Corley,
31 A.3d 293, 298 (Pa. Super. 2011).
7 Ordinarily, any issue not included in the statement of errors is waived. See
Pa.R.A.P. 2116(a) (providing that “[n]o question will be considered unless it
is stated in the statement of questions involved or is fairly suggested
thereby.”). However, a challenge to the legality of sentence is never waived
and may be the subject of inquiry by the appellate court sua sponte.” See
Commonwealth v. Rossetti, 863 A.2d 1185, 1193 (Pa. Super. 2004). Thus,
Woodard’s illegal sentencing claim is not waived.
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Woodard argues that the bill of information charged him with persons
not to possess a firearm under 42 Pa.C.S.A. § 6105(a), which was graded as
a felony of the second degree. Woodard asserts that, prior to trial, the
Commonwealth indicated that it would amend the information to increase the
grading of that offense to a felony of the first degree if Woodard was found
guilty of that offense. Woodard claims that the Commonwealth never
amended the information, and that his conviction for persons not to possess
a firearm remains a felony of the second degree on the court docket sheet and
the sentencing order. Woodard argues that, pursuant to 18 Pa.C.S.A. §
106(b)(3), the statutory maximum sentence for a felony of the second degree
is ten years. On this basis, he contends that his sentence of six to twelve
years in prison for that conviction is illegal because it exceeds the statutory
maximum for a second-degree felony.
Generally, a violation of § 6105 constitutes a second-degree felony
unless the Commonwealth alleges and proves at trial that a defendant “was
in physical possession or control of a firearm[.]” 18 Pa.C.S.A. §
6105(a.1)(1.1)(i)(B). This additional factor is not an element of the offense,
but it is an additional fact the jury must determine at trial. See
Commonwealth v. Gomez, 224 A.3d 1095, 1103 (Pa. Super. 2019). If the
jury determines that the defendant possessed the firearm, then the grading
of the firearms conviction is altered from a felony of the second degree to a
felony of the first degree pursuant to 18 Pa.C.S.A. § 6105(a.1)(1.1)(i)(B).
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Thus, the grading of a conviction under § 6105 is not dependent upon the
grading indicated in the criminal information; rather, it is dependent upon
whether the jury finds that the defendant possessed a firearm.
Our review of the record indicates that the trial court, after conferring
with the parties, included a question on the verdict slip as to whether Woodard
physically possessed the firearm. N.T., 2/14/20, at 94-95. The jury answered
that question in the affirmative. Id. Thus, at sentencing, the trial court
correctly noted that, pursuant to the jury’s specific finding that Woodard
possessed the firearm, the § 6105(a)(1) conviction was properly graded as a
felony of the first degree. Accordingly, Woodard’s illegal sentencing claim
regarding his conviction under § 6105 merits no relief.
In his next claim, Woodard contends that the trial court lacked authority
to order him to pay for either (1) the cost of Brown’s travel expenses in the
amount of $134.00 to attend Woodard’s trial; or (2) the crime lab fee of
$1,340.00 for the DNA analysis of his gun. Woodard argues that these
payments constitute an illegal sentence because neither payee qualifies as a
victim eligible for restitution under 18 Pa.C.S.A. § 1106. Woodard further
argues that the order of restitution constitutes an illegal sentence because the
court failed to comply with the requirements of subsections (c)(2)(i) and (ii).
Under Pennsylvania law, costs and restitution are treated as distinct and
separate concepts. The authority of the sentencing court to impose restitution
is codified at § 1106, which provides, in relevant part, as follows:
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(a) General rule.--Upon conviction for any crime wherein:
(1) property of a victim has been stolen, converted or otherwise
unlawfully obtained, or its value substantially decreased as a
direct result of the crime; or
(2) the victim, if an individual, suffered personal injury directly
resulting from the crime,
the offender shall be sentenced to make restitution in addition to
the punishment prescribed therefor.
***
(c) Mandatory restitution.-
***
(2) At the time of sentencing the court shall specify the
amount and method of restitution. In determining the amount
and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the victim,
the victim’s request for restitution as presented to the district
attorney in accordance with paragraph (4) and such other matters
as it deems appropriate.
(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it deems just.
18 Pa.C.S.A. § 1106(a)(1), (2), (c)(1), (2).
Section 1106(a) is mandatory in its directive and removes any discretion
from the sentencing court to impose restitution as punishment upon conviction
of a crime under the specified circumstances. See Commonwealth v. Weir,
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239 A.3d 25, 37 (Pa. 2020).8 Thus, if the statutory circumstances are not
established and the sentencing court orders restitution without the statutory
authorization to do so, the challenge to the sentence implicates its legality.
Id. A challenge to the trial court’s authority to impose restitution as part of a
sentence is reviewable as of right on direct appeal, without regard to
preservation of the claim. Id. at 34.
With respect to Brown’s travel costs, Woodard contends that the order
of restitution constitutes an illegal sentence because no evidence was
presented either at trial or sentencing that Brown sustained any injury to
person or property that would entitle him to restitution under § 1106(a).
Woodard concedes that the cost of Brown’s travel was set forth in the
Commonwealth’s sentencing memorandum. However, he insists that because
travel costs do not constitute injury to person or property, they are not subject
to restitution under § 1106(a).
Woodard offers no case law in support of his argument. However, under
the plain terms of § 1106, in order to eligible for restitution, the victim must
have, as a direct result of the crime in question, either (1) had property stolen,
____________________________________________
8 The Weir Court further explained that a claim which does not dispute the
sentencing court’s authority to impose restitution but instead challenges the
amount of restitution ordered implicates the discretionary aspects of the
sentence imposed and must be preserved for appellate review. See Weir,
239 A.3d at 38.
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converted, or decreased in value; or (2) sustained personal injury. 18
Pa.C.S.A. § 1106(a)(1), (2).
Here, there is no dispute that Brown suffered neither personal injury nor
loss of or damage to property as a direct result of Woodard’s crimes.
Moreover, the fact that Brown incurred expenses in traveling to testify at
Woodard’s trial is not a direct result of Woodard’s crimes. Rather, such costs
were incurred due to the fact that Brown resides in Louisiana. Accordingly,
we vacate the portion of Woodard’s judgment of sentence ordering him to pay
$134.00 in restitution to Brown.
Turning to Woodard’s challenge to the crime lab fee of $1,340.00, we
observe that an order requiring a convicted defendant to pay a lab fee related
to the prosecution of his case does not constitute restitution under § 1106.
Instead, such a lab fee is considered a “cost” related to the prosecution of a
criminal case. See 42 Pa.C.S. § 1725.3. Although neither Woodard, the
Commonwealth, nor the sentencing court reference § 1725.3, our own
research indicates that pursuant to § 1725.3, the sentencing court had the
authority to impose on Woodard the cost of laboratory fees incurred in
prosecuting him. Section 1725.3 provides, in relevant part:
A person who . . . is convicted of a crime as defined in 18
Pa.C.S.[A.] § 106 (relating to classes of offenses) shall, in addition
to any fines, penalties or costs, in every case where laboratory
services were required to prosecute the crime or violation, be
sentenced to pay a criminal laboratory . . . fee.
42 Pa.C.S.A. § 1725.3.
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As indicated above, Woodard does not acknowledge or discuss § 1725.3
in his brief. Nevertheless, because the imposition of lab fees is a mandatory
cost rather than restitution, we conclude that this aspect of Woodard’s
judgment of sentence is not illegal, and he is not entitled to relief on this
claim.9
In his final issue, Woodard asserts that the verdict was against the
weight of the evidence. The following legal principles apply when a challenge
to the weight of the evidence supporting a conviction is presented to the trial
court:
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. 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. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is against
the weight of the evidence do not sit as the thirteenth juror.
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.
____________________________________________
9 Given our disposition vacating the restitution award to Brown, which is the
only restitution ordered in this case, we need not address Woodard’s argument
that the trial court failed to specify the method of payment of restitution, as
that issue is moot.
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Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,
footnotes and quotation marks omitted). Thus, to allow an appellant “to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
[trial] court.” Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super.
2016) (internal citation omitted).
An appellate court’s standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the
trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
original, internal citations omitted).
Woodard claims that the trial court’s denial of his post-sentence motion
challenging the verdict based on the weight of the evidence was manifestly
unreasonable. According to Woodard, the testimony and evidence presented
was inherently contradictory and unreliable as to whether he first started
arguing with Brown or White, whether any firearm was visible, and what words
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were uttered. Woodard points out that he explained the presence of the
firearm in his vehicle and why his DNA was on it. Woodard asserts that there
was clear animosity directed at him by Brown and White which rendered their
testimony suspect, as evidenced by the discrepancies between witness
testimony. Based on these arguments, Woodard claims that the jury’s verdict
could only have been based on speculation and conjecture and was against
the weight of the evidence.
The trial court considered Woodard’s weight challenge and determined
that the verdict did not shock one's conscience. It reasoned:
[T]he Commonwealth presented four (4) eyewitnesses who
offered the jury consistent accounts of the June 7, 2018 road rage
incident. The jury, as is its province, apparently choose to credit
the testimony of the four (4) eyewitnesses rather than testimony
offered by [Woodard]. Any conflicts in the evidence or
contradictions in testimony are exclusively for the jury to resolve.
Moreover, having had the opportunity to hear and see the
evidence presented at trial, this jury’s verdict does not “shock
one’s sense of justice.”
Trial Court Opinion, 2/10/21, at 47.
As discussed above, we give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial court’s
determination that the verdict is not against the weight of the evidence. In
this matter, we discern no abuse of discretion by the trial court in arriving at
its determination that the verdict of guilt did not shock the conscience. While
there may have been conflicting testimony as to whether Woodard first
engaged in an argument with White or Brown, there was no dispute that
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Woodard engaged in a heated verbal exchange with both White and Brown.
Nor is there any dispute that, after exiting his vehicle during those verbal
arguments, Woodard returned to his vehicle and retrieved something. While
Brown did not see what Woodard retrieved, the jury was free to believe
White’s testimony that Woodard retrieved a gun, which he pointed directly at
her. Finally, the jury was free to disbelieve the entirety of Woodard’s
testimony in which he claimed that Brown threatened him, and that a
passenger in Woodard’s vehicle was the individual who owned and pointed the
gun at White. Accordingly, Woodard’s weight challenge merits no relief.
Based on the foregoing, we affirm Woodard’s convictions and all aspects
of his judgment of sentence except for the order of restitution to Brown in the
amount of $134.00, which we vacate.
Convictions affirmed, all aspects of judgment of sentence affirmed
except for order of restitution, which is vacated.
President Judge Panella joins the memorandum.
President Judge Emeritus Stevens files a concurring/dissenting
memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
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