Com. v. Pettis, A.

J-S22042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEX MARTIN PETTIS,
Appellant No. 914 MDA 2016
Appeal from the Judgment of Sentence February 24, 2016
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0003851-2014
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 24, 2017
Appellant, Alex Martin Pettis, appeals nunc pro tunc from the judgment
of sentence imposed following his jury conviction of robbery, simple assault,
recklessly endangering another person, and possessing an instrument of a
crime.1 We affirm.
We take the relevant facts and procedural history of this case from our
independent review of the record. On the night of May 25, 2014, the victim,
Andrew Webber, went to a bar with friends for approximately four hours,
until the bar closed at 2:00 a.m. the following morning. While at the bar, he
consumed alcohol and became intoxicated. Webber went home, drank two
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2701(a)(3), 2705, and 907(a),
respectively.
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beers, and decided to look up prostitutes on the website Back Page. Webber
came across an advertisement for a woman he found attractive, texted the
listed phone number, and received a response directing him to go to a local
hotel, advising that the cost of her time was $80.00.
Webber arrived at the hotel at 4:00 a.m., and Taryn Bridges, who did
not resemble the woman in the advertisement, opened the hotel room door.
Webber had second thoughts about the encounter, and indicated that he had
the wrong room. Appellant then stepped out of the hotel room bathroom
and stated “no, you are in the right room[.]” (N.T. Trial, 12/09/15, at 15).
Appellant was holding a silver revolver with a black handle in his right hand
down at his side. Webber turned around, walked to his car, and turned it
on. Appellant approached the car, opened the door with his left hand,
pointed the gun at Webber’s head, and stated: “I need that $80.” (Id. at
19) (quotation marks omitted). Webber threw the car into reverse, with
Appellant hanging onto the side of the car, and then drove forward in an
attempt to remove Appellant from the car. Webber’s vehicle crashed into
the wall of the hotel, and Appellant was thrown from the car, dropping his
gun. Webber picked up the gun, ran to a nearby hotel, and asked the
receptionist to call the police. Appellant and Bridges fled from the scene.
Two days later, Webber quickly identified Appellant as his assailant from a
police photo array. Videotape surveillance cameras at the original hotel
captured footage of the incident.
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Appellant proceeded to a jury trial on December 8, 2015. Following a
colloquy by the trial court, Appellant chose to testify in his defense, and he
disputed Webber’s version of events. Appellant explained that he: politely
intervened in the encounter between Webber and Bridges because a dispute
arose regarding the amount of the fee; approached Webber in a “calm and
collected” manner to “salvage the service” and Webber unexpectedly
accelerated the car; and was carrying a silver water bottle with a black top,
not a gun. (N.T. Trial, 12/10/15 at 45; see id. at 44-47; 58-60). On
December 11, 2015, the jury found Appellant guilty of the above-stated
offenses.
On February 24, 2016, after consideration of a pre-sentence
investigation report (PSI), the trial court sentenced Appellant to an
aggregate term of not less than seven nor more than twenty years’
incarceration. Following the court’s denial of his untimely post-sentence
motions, Appellant filed a successful petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and the PCRA court
reinstated his direct appeal rights nunc pro tunc on May 11, 2016. Appellant
filed timely post-sentence motions on May 18, 2016, which the trial court
denied the following day. This timely appeal followed.2
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2
Appellant filed a timely court-ordered concise statement of errors
complained of on appeal on June 28, 2016. The trial court entered an
opinion on October 12, 2016. See Pa.R.A.P. 1925.
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Appellant raises the following issues for our review:
A. Did the trial court abuse its discretion in sentencing
[Appellant] to an aggregate sentence of [seven] years to
[twenty] years [of] imprisonment because said sentence violates
the Pennsylvania Sentencing Code and is excessive and
unreasonable in light of the factors particular to this case?
B. Did the trial court err in denying [Appellant’s] post-sentence
motion by failing to arrest judgment because the testimony and
evidence introduced at trial was insufficient to prove [him] guilty
beyond a reasonable doubt of the criminal offenses charged?
C. Did the trial court abuse its discretion in denying [Appellant’s]
post-sentence motion for a new trial because the jury’s guilty
verdict was against the weight of the evidence such that it
shocks one’s sense of justice?
D. Did the trial court fail to properly instruct [Appellant] of his
right not to testify during its colloquy of [him] at the close of the
Commonwealth’s case?
E. Did the Commonwealth improperly reference [Appellant’s]
incarceration during cross-examination?
(Appellant’s Brief, at 6) (unnecessary capitalization omitted).
In his first issue, Appellant challenges the discretionary aspects of his
sentence, arguing the trial court abused its discretion in imposing a sentence
in the aggravated range on the robbery conviction. (See Appellant’s Brief,
at 35-40). Appellant contends that the sentence is clearly unreasonable in
light of the facts of this case and his background, and that the court failed to
provide adequate reasons on the record for the sentence. (See id. at 35-
39). This issue does not merit relief.
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It is well-settled that “[t]he right to appeal the discretionary aspects of
a sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215,
1220 (Pa. Super. 2011) (citation omitted).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence [, see Pa.R.A.P. 2119(f)]; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code. . . .
[I]f the appeal satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),
appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
In the instant case, Appellant timely appealed, preserved his claim in
the trial court, and included a Rule 2119(f) statement in his brief. With
respect to the fourth requirement, this Court has held that a claim the trial
court imposed an excessive sentence in the aggravated range without
placing adequate reasons on the record raises a substantial question. See
Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004), appeal
denied, 881 A.2d 818 (Pa. 2005), cert. denied, 546 U.S. 1095 (2006).
Therefore, we will review Appellant’s claim on the merits.
Our standard of review is as follows:
Sentencing 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. An abuse of
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion
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unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal
denied, 85 A.3d 481 (Pa. 2014) (citation omitted).
Additionally, “where the sentencing judge had the benefit of a [PSI]
report, 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.” Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009), appeal denied, 987 A.2d
161 (Pa. 2009) (citation omitted). “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] report; thus
properly considering and weighing all relevant factors.” Id. (citation
omitted).
Here, at the sentencing hearing, defense counsel requested a sentence
at the low end of the guideline range, and Appellant apologized to the court
for “making [its] courtroom into a circus.” (N.T. Sentencing, 2/24/16, at
3).3 The Commonwealth requested that the court impose an aggravated-
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3
The trial notes of testimony reflect that, after the jury announced its
verdict and exited the courtroom, a disturbance took place during which
Appellant stated: “This is fucking bullshit. This is fucking bullshit. I didn’t
do it.” (N.T. Trial, 12/11/15, at 10). The court reporter then ceased
transcribing and moved location due to the deputy sheriffs addressing the
disturbance. (See id. at 11). The Commonwealth avers that Appellant had
(Footnote Continued Next Page)
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range sentence, noting Appellant’s refusal to accept responsibility for the
robbery and its assessment that he is not amenable to rehabilitation. (See
id. at 4). Before imposing its sentence, the trial court stated:
Well, we take a number of factors into consideration. His
prior record, not just for his prior record statistically, but what
does that prior record show. Prior record shows a degree of
violence, of acting out, using a firearm. Those things obviously
being quite concerning. The actions taken in the courtroom, not
only are they offensive to the [c]ourt but the action—and I
understand [Appellant] apologizes now, indicates to me he
blacked out, but even the mere fact that [it] occurred, as his
excuse was, that the officer said, you know, he ought to be
given the max. Even if that is the officer’s opinion, [Appellant’s]
actions are not warranted. It’s just indicative of the violent
nature of [Appellant]. I weigh that in consideration with all the
other aspects of his presentence investigation. I temper it with
also weighing the facts of the case, which I don’t want to
overstate or understate the seriousness of the actions. The
actions were serious, and the guidelines reflect that.
The other side of the coin is there [were] aspects of the
offense that did not show other types of aggravating factors such
as discharging the firearm, striking afterwards. So I’ve got to
try to weigh and balance all aspects, including the rehabilitative
nature of [Appellant], which is quite concerning. So in doing so,
I have taken all those aspects into my calculations.
(Id. at 4-5).
Thus, the record demonstrates that the court had the benefit of a PSI,
was well aware of Appellant’s background and the circumstances of this
case, and that it adequately stated its reasons for the sentence on the
_______________________
(Footnote Continued)
jumped across tables and attacked a detective who had testified as a witness
before deputy sheriffs intervened. (See Commonwealth’s Brief, at 23).
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record. See Ventura, supra at 1135. Upon review, we discern no abuse of
discretion in the court’s imposition of Appellant’s sentence. See Clarke,
supra at 1287. Appellant’s first issue lacks merit.
In his second issue, Appellant challenges the sufficiency of the
evidence supporting his convictions. (See Appellant’s Brief, at 40-45). This
issue is waived.
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as here,
the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt. . . .
Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016), appeal
denied, 2016 WL 7106404 (Pa. filed Dec. 6, 2016) (citation and quotation
marks omitted) (finding sufficiency claim waived because appellant failed to
identify which elements he was challenging in his Rule 1925(b) statement).
Here, in his concise statement, Appellant stated his sufficiency claim
as follows: “[The trial] [c]ourt erred in denying [Appellant’s] [p]ost-
[s]entence [m]otion by failing to arrest judgment because the testimony and
evidence introduced at trial was insufficient to establish that [Appellant]
engaged in the criminal offenses charged and was insufficient to support the
jury’s conclusion that [Appellant] was guilty beyond a reasonable doubt.”
(Rule 1925(b) Statement, 6/28/16, at 1). As discussed above, the jury
convicted Appellant of four different crimes, each of which contained multiple
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elements. Thus, we conclude Appellant’s generic concise statement failed
clearly to state any element upon which he alleged the evidence was
insufficient. Therefore, Appellant has waived his second issue. See Stiles,
supra at 982.4
In his third issue, Appellant challenges the weight of the evidence
supporting his convictions, claiming that the jury’s verdict is shocking to the
judicial conscience. (See Appellant’s Brief, at 45-50).5 Appellant takes
issue with Webber’s testimony and credibility, and claims that Webber’s
intoxication affected his ability to perceive events during the incident and to
remember them accurately. (See id. at 49-50). This issue does not merit
relief.
Our standard of review is as follows:
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4
Moreover, the bulk of Appellant’s sufficiency argument challenges the
veracity and credibility of Webber’s testimony, asserting Webber’s version of
events is unreliable, “defies logic[,]” and was tainted by his intoxication
during the incident. (Appellant’s Brief, at 42; see id. at 41-44). We find
this argument assailing the credibility of the victim is actually a challenge to
the weight, rather than to the sufficiency, of the evidence. See
Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013), appeal
denied, 76 A.3d 538 (Pa. 2013) (“This argument [challenging the
‘unbelievable’ testimony of the victim] goes to the credibility of the witness’s
testimony, and is, therefore, not an attack on the sufficiency of the
evidence, but an allegation regarding the weight it should have been
afforded.”) (citation omitted). Therefore, Appellant’s sufficiency argument
would fail for this reason as well. We note that we will address Appellant’s
properly preserved weight claim as a separate issue, infra.
5
Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).
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The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and quotation marks omitted). “[T]he trial court’s denial of a
motion for a new trial based on a weight of the evidence claim is the least
assailable of its rulings.” Commonwealth v. Weathers, 95 A.3d 908, 911
(Pa. Super. 2014), appeal denied, 106 A.3d 726 (Pa. 2015) (citation
omitted).
Here, a review of the record shows that, on direct examination, the
Commonwealth asked Webber whether his intoxication on the early morning
of the incident “[w]as [] affecting [his] ability to remember the events [he
was] testifying to[?]” and Webber responded “No.” (N.T. Trial, 12/09/15, at
9-10; see id. at 15). Defense counsel cross-examined Webber regarding
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the amount of alcohol he imbibed at the bar and at home before the
incident, and Webber readily admitted that he was intoxicated. (See id. at
35-37). In its Rule 1925(a) opinion, the trial court stated that the jury, as
factfinder, was free to resolve any credibility issues and conflicts in the
testimony, and to credit the testimony of Webber instead of that of
Appellant. (See Trial Court Opinion, 10/12/16, at 7). The court concluded
that the evidence clearly supported the jury’s verdict, and that the verdict
did not shock its conscience. (See id.). After review of the record, we
agree with the trial court’s assessment, and conclude that it did not palpably
abuse its discretion in ruling on Appellant’s weight claim. See Boyd, supra
at 1274-75. Therefore, Appellant’s third issue does not merit relief.
In his fourth issue, Appellant contends the trial court failed to instruct
him properly regarding his right not to testify at trial, and that the court’s
colloquy, after which he elected to testify, was confusing and misleading.
(See Appellant’s Brief, at 51-54). This issue is waived.
Our Pennsylvania Rules of Appellate Procedure and our
case law set forth the well-established requirements for
preserving a claim for appellate review. “Issues not raised in the
lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). This requirement bars an appellant
from raising a new and different theory of relief for the first time
on appeal.
Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016), appeal
denied, 2016 WL 6885765 (Pa. filed Nov. 22, 2016) (case citation and some
quotation marks omitted). “[I]t is well established that absent a
contemporaneous objection the issue is not properly preserved on appeal[,]”
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and a party cannot preserve the issue for appellate review by raising it for
the first time in a 1925(b) statement. Commonwealth v. Melendez-
Rodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004).
Here, the record reflects that the trial court fully appraised Appellant of
his right to testify or to choose to remain silent, and it advised that if he did
testify, the Commonwealth could cross-examine him regarding his prior
crimen falsi convictions. (See N.T. Trial, 12/10/15, at 15-16). After the
court concluded its colloquy, defense counsel did not lodge any objection to
the court’s comments, and Appellant unequivocally stated that he wished to
testify. (See id. at 16-17). The court then specifically asked defense
counsel “[i]s there anything else you need[?],” to which counsel responded
“No.” (Id. at 17). Appellant also did not raise his purported objection to the
colloquy in his post-sentence motion. (See Post-Sentence Motion, 5/18/16,
at 2-3). Instead, he raised it for the first time in his Rule 1925(b)
statement. (See Rule 1925(b) Statement, at 2). Because Appellant is
improperly attempting to raise a new theory of relief for the first time on
appeal, we conclude he has waived his fourth claim. See Pa.R.A.P. 302(a);
Phillips, supra at 522; Melendez-Rodriguez, supra at 1287.
In his fifth issue, Appellant contends that a new trial is necessary
because the Commonwealth improperly referred to his prior incarceration
during its cross-examination of him. (See Appellant’s Brief, at 54-60).
Specifically, Appellant takes issue with the Commonwealth’s question: “I
think you testified you spent [eighteen] months in Dauphin County Prison.
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So, it is fair to say you have had a long time to think about this situation?”
(Id. at 56 (quoting N.T. Trial, 12/10/15, at 77)) (emphasis omitted).
Although Appellant acknowledges that the jury could have inferred he was
detained on the instant charges, he argues that it more likely inferred that
the incarceration was for a previous crime. (See id. at 58-59). This issue is
also waived.
We reiterate, “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal[,]” and a party must make a
contemporaneous objection in order to preserve a claim. Pa.R.A.P. 302(a);
see also Melendez-Rodriguez, supra at 1287. A review of the record in
this matter reflects that, after the Commonwealth asked Appellant the
question at issue, defense counsel lodged no objection. (See N.T. Trial,
12/10/15, at 77-78). Instead, Appellant responded to the Commonwealth’s
question without mentioning any prior conviction, referencing only this case.
(See id.). Appellant also did not raise his purported objection to the
Commonwealth’s question in his post-sentence motion, (see Post-Sentence
Motion, at 2-3), and he improperly raised it for the first time in his Rule
1925(b) statement. (See Rule 1925(b) Statement, at 2). Therefore,
Appellant waived his final issue on appeal. See Pa.R.A.P. 302(a); see also
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Melendez-Rodriguez, supra at 1287.6 Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2017
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6
We note that we find Appellant’s challenge to the Commonwealth’s
question disingenuous, given that, immediately before this question,
Appellant testified, in response to a question about where the gun was
found: “ . . . Do I want to [solicit on Back Page] again? Of course not. It
made my life a living hell for the [eighteen] months I was out in Dauphin
County Prison. . . . I want to tell you everything that happened from scripted
detail because I am tired of going in the system. From [thirteen years old]
until now, it has been my life.” (N.T. Trial, 12/10/15, at 77; see id. at 76).
Also, Appellant first brought the issue of his previous crimes to the jury’s
attention by stating, unsolicited, during his initial remarks: “Well, before I
will speak, I will open, ladies and gentlemen present, to please look at me as
a man that is going to tell the truth, not the childish man that had a felony
past.” (Id. at 36; see id. at 47 (bringing up issue of criminal past on direct
examination in response to question on another topic)). Therefore,
Appellant “unnecessarily highlight[ed]” his criminal past, not the
Commonwealth. (Appellant’s Brief, at 56).
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