Com. v. Parks, D.

J-A04043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK PARKS :
:
Appellant : No. 963 EDA 2021
Appeal from the Judgment of Sentence Entered March 31, 2021
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-XX-XXXXXXX-2019
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 14, 2022
Derrick Parks appeals the judgment of sentence entered following his
conviction for Persons Not to Possess Firearms.1 He challenges the weight of
the evidence and discretionary aspects of his sentence. We affirm.
On November 9, 2019, around 12:30 am, while on patrol, Officers Kevin
Van Horn and Quentin Cornelius heard one gunshot. N.T., Trial, 3/2/21, at 40,
68-69. The officers separated in their vehicles. Officer Cornelius saw a male
and asked if he heard anything, and the male said that it came from the alley.
Id. at 69-70, 93-94. Officer Cornelius went in that direction and saw Parks,
whom he told to stop. Id. at 70-71, 80-81. Parks ran in the opposite direction.
Id. Officer Cornelius pursued Parks and radioed to Officer Van Horn that Parks
was running with his hands in his pocket. Id. at 71. Officer Cornelius
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1 18 Pa.C.S.A. § 6105(a)(1).
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eventually lost sight of Parks. Officer Van Horn met Parks on another street.
Officer Van Horn exited his vehicle and ran after Parks. Id. at 42-43. Parks
continued to run, apologizing to the officer. Id. at 43. Officer Van Horn shoved
Parks to the ground and arrested him. Id. at 43-44. Officer Van Horn
recovered a .22-caliber revolver in the area where Parks fell after encountered
Officer Van Horn. Id. at 45-46. The revolver had four live rounds in it and one
spent casing. Id. at 45. After arresting Parks, Officer Cornelius informed
Officer Van Horn that Parks had his hands in his pockets when he initially
encountered him. Id. at 45, 71-72.
Officers tested Parks for gunshot residue and obtained a warrant to
collect his DNA. Id. at 75-77, 92-93. A forensic DNA scientist testified that
there was an insufficient amount of DNA taken from Parks to swab the gun.
Id. at 116, 125-26.
Parks proceeded by way of a jury trial. The Commonwealth presented
the bodycam footage of Officer Van Horn, still photographs from the bodycam
footage, the testimony of the officers, and the testimony of an expert in
gunshot residue analysis. The expert in gun residue testified that there were
particles characteristic of gunshot residue on Parks’ left and right palms and
the back of his right hand. Id. at 135-36. The expert concluded that Parks
had recently handled or discharged a firearm, was close to a firearm being
discharged, or encountered an item that contained gunshot residue. Id. at
137. The parties stipulated Parks had a conviction for possession with intent
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to deliver a controlled substance and that it was a charge punishable for more
than two years. Id. at 8-9, 63-66.
The jury found Parks guilty of persons not to possess a firearm. The trial
court held a sentencing hearing and imposed a standard-range sentence of
seven to 16 years’ incarceration. The court imposed the sentence based on
the Pre-Sentence Investigation Report (“PSI”), Parks’ prior record score of five
and offense gravity score of 11, and “the fact that [Parks] was on state parole
for a prior conviction of Persons Not to Possess at the time he committed this
offense.” Order and Reasons, filed 4/19/21, at ¶ 5. The court also noted that
it “weighed the necessary factors and imposed a standard range sentence
after appropriate consideration of the seriousness of the offense[.]” Id. at ¶
6. Parks filed a post-sentence motion challenging the weight of the evidence
and argued that the trial court failed to consider his rehabilitative needs and
imposed an excessive sentence. The court denied the motion and this appeal
followed.2
Parks raises the following issues:
1. Did the trial court err in denying [Parks’] post-sentence
motion for a new trial because the verdict is against the
weight of the evidence?
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2 Counsel filed an “Amended Notice of Appeal” in the trial court stating that
the appeal was from the denial of the post-sentence motion. However, in a
criminal case, the “appeal properly lies from the judgment of sentence made
final by the denial of post-sentence motions.” Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa.Super. 2001) (en banc).
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2. Did the trial court abuse its discretion during sentencing
when it failed to consider [Parks’] rehabilitative needs?
3. Is [Parks’] sentence unduly harsh and excessive and
contrary to the fundamental norms of the sentencing
process?
Parks’ Br. at 2 (suggested answers omitted).
For his first issue, Parks challenges the weight of the evidence. He
argues that “the physical evidence contradicts the [o]fficers’ testimonies and
resulted in a verdict based on pure conjecture that shocks one’s sense of
justice.” Id. at 13. He alleges that the testimony of the officers was
contradictory and that the gun residue evidence was confusing and
speculative.
The weight of the evidence is for the finder of fact, which can believe
all, some, or none of the evidence and determine the credibility of witnesses.
See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). A trial
court should grant a motion challenging a verdict as against the weight of the
evidence “only when the verdict is so contrary to the evidence as to shock
one’s sense of justice.” Commonwealth v. Chamberlain, 30 A.3d 381, 396
(Pa. 2011). An appellate court reviews a challenge to the trial court’s denial
of a weight challenge for an abuse of discretion. See Commonwealth v.
Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017).
Parks argues that the verdict was contrary to the weight of the evidence
because the officers never saw him with a weapon and the evidence was
allegedly contradictory. He also argues that there are several ways his actions
could have been interpreted on the night in question, including that he had
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his hands in his pockets because it was cold outside, and that the gun residue
on his hands could have resulted from him falling to the ground, his contact
with the officers, being placed in handcuffs, or being placed in a police vehicle.
Parks’ Br. at 12. He also alleges that if he had a weapon in his pocket, he
would have been running rather than walking when he initially came in contact
with Officer Cornelius. Id.The trial court rejected Parks’ weight challenge. It explained that “the
jury had sufficient evidence to support its conviction of [Parks] based upon
the video and photographic evidence introduced at trial and the supporting
testimony of the Commonwealth’s witnesses, even if we accept [Parks’]
argument that the gun residue evidence be considered inconclusive.” Order
and Reasons at ¶ 8.
We find no abuse of discretion in this regard. The jury sitting as fact-
finder heard the testimony of both officers who encountered Parks on the night
in question. It also heard testimony from the gun residue expert. While Parks
claims that the testimony of the officers was contradictory, any alleged
contradiction was in the purview of the jury to resolve, in either believing all,
part, or none of the testimony. Additionally, Parks alleges that it is clear that
the evidence presented by the gun residue expert was confusing and
speculative because of the questions submitted by the jury during their
deliberation. Parks’ allegation is speculative. We cannot assume the reasoning
behind the questions presented from the jury during their deliberation.
Nonetheless, the jury as fact finder had the right to accept or reject the
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testimony of the gun residue expert regarding the gun residue found on Parks.
The record reflects that the jury weighed the evidence presented to it and
concluded that Parks possessed a firearm. The trial court did not abuse its
discretion in determining Parks’ weight of the evidence claim lacked merit.
Parks’ remaining issues challenge the discretionary aspects of his
sentence. He argues that the trial court abused its discretion by failing to
consider his rehabilitative needs and by imposing an unduly harsh and
excessive sentence. He maintains that his sentence “serves no purpose but to
punish him for exercising his right to go [to] trial.” Parks’ Br. at 16.
There is no automatic right to appeal discretionary aspects of
sentencing. See Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super.
2013). Instead, we must first determine whether the appellant: 1) timely filed
a notice of appeal; 2) preserved the issue in a post-sentence motion or at
sentencing; 3) included a Pa.R.A.P. 2119(f) statement in the brief; and 4)
raised a substantial question. See id.Parks has met all the above requirements. He filed a timely notice of
appeal, preserved the challenge to his sentence in a post-sentence motion,
and included a Rule 2119(f) statement in his brief. He also raises a substantial
question: that the court failed to consider his rehabilitative needs and imposed
a sentence meant to penalize him for exercising his right to trial. See
Commonwealth v. Derrickson, 242 A.3d 667, 680 (Pa.Super. 2020)
(finding claim that trial court failed to consider relevant sentencing criteria,
including the defendant’s rehabilitative needs, presented a substantial
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question) (citation omitted); Commonwealth v. Moury, 992 A.2d 162, 170
(Pa.Super. 2010) (stating claim that trial court considered decision to proceed
to trial as sentencing factor raised a substantial question). We now address
the merits of Parks’ sentencing claims.
“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.” Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super.
2006) (citation omitted). An abuse of discretion exists where “the sentencing
court ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Id. (citation omitted).
Parks maintains that the trial court failed to consider his rehabilitative
needs. Parks’ argument on this issue contains three sentences. He does not
allege what these needs are and does not cite any portion of the sentencing
hearing transcript that would support such a claim. Though he cites case law,
he does not conduct a legal analysis to explain how these cases support his
argument before this Court. See Parks’ Br. at 15 (citing Commonwealth v.
Coulverson, 34 A.3d 135, 147 (Pa.Super. 2011), and Commonwealth v.
Dodge, 957 A.2d 1198, 1200 (Pa.Super. 2008)). He makes no attempt to
show that the cases he cites, in view of the facts of his case, warrant reversal.
As such, we find that Parks has waived this claim due to his failure to develop
his argument. See Pa.R.A.P. 2119(a) (stating argument should include
“discussion and citation of authorities as are deemed pertinent”);
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Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007) (en
banc) (“We shall not develop an argument for [an appellant], nor shall we
scour the record to find evidence to support an argument; consequently, we
deem [the] issue waived”).
Moreover, even if it were not waived, we would on the present record
reject Parks’ claim. The trial court had a PSI, which it presumptively
considered, and it said at sentencing that it was imposing sentence after it
“weighed the necessary factors,” which would include Parks’ need for
rehabilitation.
Parks also alleges that the trial court considered his decision to proceed
to trial as a sentencing factor and imposed an unduly harsh and excessive
sentence. He cites case law stating that the decision to go to trial “is not a
proper factor for the court to consider in fashioning its sentence.” Parks’ Br.
at 16 (citing Moury, 992 A.2d at 170). However, as with the previous claim,
Parks does not direct this Court to any portion of the record that would support
his claim that the court considered his decision to go to trial. We affirm the
judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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