Com. v. Verticelli, C.

J-S07043-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER VERTICELLI :
:
Appellant : No. 1827 EDA 2021
Appeal from the Judgment of Sentence Entered November 16, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005468-2016
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 26, 2023
Appellant, Christopher Verticelli, appeals nunc pro tunc from the
judgment of sentence entered in the Philadelphia County Court of Common
Pleas, following his jury trial convictions for aggravated assault and possessing
instruments of crime (“PIC”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows:
On May 21, 2016, the Complainant, Lycurgus Hurdle, heard
his fiancée, Heather Schwegel, arguing with Appellant and
his co-Defendant, Stephanie McKnight, outside his home….
When the Complainant went outside, Appellant told him he
was going to “crack [his] fucking head open.” Later that
day, the Complainant was walking his dog when his fiancée
called telling him to come to the house in a “hurry.” When
he returned home, he saw Appellant holding a metal pole
like “a baseball bat.” Appellant said: “I’m going to crack
your fucking head open, nigger.” Appellant swung the pole,
knocking down a rental sign for the house. He also struck
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1 18 Pa.C.S.A. §§ 2702(a) and 907(a), respectively.
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the Complainant’s mailbox and door multiple times. Ms.
Schwegel called the police. Two officers subsequently
arrived, took a report, and advised Schwegel and the
Complainant to obtain a restraining order.
Later that evening, around 10:00 p.m., Schwegel and the
Complainant were watching television when they heard
scratching at the door. The Complainant, believing it was
his cat, went outside to retrieve it. He then looked to his
right, towards his basement door, and saw Appellant
crouching down holding a hammer. Appellant said, “I’m
cracking your head open now, nigger,” and then hit the
Complainant between the eyes with the hammer. The
Complainant tried to grab the hammer, but Appellant struck
him again above his left eyebrow. Appellant then said, “I’m
going to kill you.” The Complainant grabbed the hammer
and tussled with Appellant towards the street. The
Complainant heard McKnight say, “Get the fuck off of him,”
as she approached from the house next door. McKnight
subsequently hit the Complainant twice in the back of the
head with another hammer. Appellant then yelled, “Get off
me, man. The sirens are coming,” and ran towards Mildred
Street.
Bleeding from the back of his head and forehead, the
Complainant was taken to the hospital in an ambulance.
After he received stitches and staples, the Complainant had
a five-inch scar above his left eyebrow. He also had a three-
inch scar across his nose. At trial, the Complainant testified
that his injuries included migraine headaches, light
sensitivity, left ear hearing loss, PTSD, and anxiety.
(Trial Court Opinion, filed 6/10/22, at 4-6) (internal footnotes and record
citations omitted).
Appellant proceeded to trial, and a jury found him guilty of aggravated
assault and PIC. On November 16, 2017, the court sentenced Appellant to
ten (10) to twenty (20) years’ incarceration for the aggravated assault
conviction. The sentence included a mandatory minimum term, pursuant to
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42 Pa.C.S.A. § 9714, because this was Appellant’s second conviction for a
crime of violence. The court imposed no further penalty for the PIC conviction.
On November 21, 2017, Appellant timely filed a post-sentence motion. In it,
Appellant raised various assertions of error to justify the award of a new trial.
The court denied the post-sentence motion on January 18, 2018.
Although Appellant timely filed a notice of appeal, this Court dismissed
the appeal for failure to file a brief on April 17, 2019. On April 17, 2020,
Appellant requested the reinstatement of his direct appeal rights nunc pro
tunc. The court granted relief on March 24, 2021. Nevertheless, prior counsel
took no further action because he mistakenly believed that the court was going
to appoint new appellate counsel. On June 15, 2021, Appellant again
requested the reinstatement of his appellate rights nunc pro tunc. The court
granted relief on August 10, 2021. Thereafter, the court appointed current
counsel to assist Appellant with the appeal.
Appellant timely filed a notice of appeal nunc pro tunc on September 8,
2021. On September 16, 2021, the court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Following an
extension, Appellant filed his Rule 1925(b) statement on December 6, 2021.
Appellant now raises four issues for this Court’s review:
Whether the trial court erred, when it ruled that the
assistant district attorney could read Commonwealth
witness Heather Schwegel’s written statement to the police,
into the record, on direct examination, as this was a prior
consistent statement, which may only be used for the
purpose of rehabilitation of a witness, which was not the
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case in the above-captioned matter, and this witness had
not yet been subjected to cross-examination?
Whether the trial court erred, when it gave the jury an
instruction on “consciousness of guilt,” specifically stating
that “the testimony of Lycurgus Hurdle, that tended to show
that [Appellant] fled from the police,” as Appellant … did
not, in fact, flee from the police or anyone else, as when he
was first confronted with the police, he immediately gave
them his name, prior to being arrested and taken into
custody?
Whether the trial court erred, when it refused to give the
jury an instruction on the criminal offense of simple assault,
which is a lesser included offense of aggravated assault, as
there was evidence to support a jury verdict of not guilty of
the greater offense (aggravated assault), but guilty of the
lesser offense (simple assault)?
Whether the trial court erred, when it sentenced Appellant
… to the mandatory 10 years to 20 years’ incarceration,
pursuant to 42 Pa.C.S.A. § 9714(a), as the Commonwealth
failed to prove that [Appellant] had previously been
convicted of a “crime of violence.” While the assistant
district attorney presented evidence that [Appellant] had
previously been convicted of the criminal offense of robbery
(F1), no court order substantiating this conviction was
presented at sentencing?
(Appellant’s Brief at 6).
In his first issue, Appellant contends that Commonwealth witness
Heather Schwegel testified about what she saw outside her home on the night
of the altercation. In light of this testimony, Appellant asserts that the
Commonwealth sought permission to introduce Ms. Schwegel’s original
statement to the police. Although the court permitted the Commonwealth to
introduce this statement, Appellant insists that Ms. Schwegel’s prior statement
was consistent with her trial testimony, thereby rendering the statement
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inadmissible. Appellant concludes that the court committed reversible error
by admitting Ms. Schwegel’s prior statement. We disagree.
This Court’s standard of review for issues regarding the admissibility of
evidence is well settled:
Questions concerning the admissibility of evidence are
within the sound discretion of the trial court ... [and] we will
not reverse a trial court’s decision concerning admissibility
of evidence absent an abuse of the trial court’s discretion.
An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or
the exercise of judgment that is manifestly unreasonable, or
the result of bias, prejudice, ill-will or partiality, as shown
by the evidence of record. [I]f in reaching a conclusion the
trial court [overrides] or misapplies the law, discretion is
then abused and it is the duty of the appellate court to
correct the error.
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal
denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation
marks omitted).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc),
appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more
or less probable, or tends to support a reasonable inference
or proposition regarding a material fact. Relevant evidence
may nevertheless be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal
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denied, 656 Pa. 9, 219 A.3d 597 (2019) (internal quotation marks omitted).
Hearsay is an out-of-court statement made by a declarant, which a party
seeks to offer into evidence to prove the truth of the matter asserted in the
statement. Pa.R.E. 801(c). Generally, hearsay is not admissible except as
provided by the Pennsylvania Rules of Evidence, by other rules prescribed by
the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. “The rationale
for the hearsay rule is that hearsay is too untrustworthy to be considered by
the trier of fact.” Commonwealth v. Charlton, 902 A.2d 554, 559
(Pa.Super. 2006), appeal denied, 590 Pa. 655, 911 A.2d 933 (2006).
“Exceptions have been fashioned to accommodate certain classes of
hearsay that are substantially more trustworthy than hearsay in general, and
thus merit exception to the hearsay rule.” Id.It is long settled that a prior inconsistent statement may be
used to impeach a witness. Further, a prior inconsistent
statement may be offered not only to impeach a witness,
but also as substantive evidence if it meets additional
requirements of reliability.
Commonwealth v. Watley, 153 A.3d 1034, 1040 (Pa.Super. 2016), appeal
denied, 641 Pa. 750, 169 A.3d 574 (2017) (internal citations and quotation
marks omitted).
Prior inconsistent statements also can be admitted as
substantive evidence provided the declarant testifies at trial
and is subject to cross-examination concerning the
statement and one of the following is true: 1) the prior
inconsistent statement was given under oath subject to the
penalty of perjury at a trial, hearing, deposition, or other
proceeding; 2) the prior inconsistent statement is contained
within a signed writing adopted by the declarant; and/or, 3)
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the rendition of the statement offered is a verbatim
contemporaneous recording of an oral statement.
Commonwealth v. Henkel, 938 A.2d 433, 442-43 (Pa.Super. 2007), appeal
denied, 598 Pa. 756, 955 A.2d 356 (2008). See also Pa.R.E. 803.1 (stating
same).
Instantly, Ms. Schwegel’s direct examination testimony included what
she witnessed outside her house on the night of the altercation. (See N.T.
Trial, 5/2/17, at 91-100). Initially, Ms. Schwegel claimed that she saw
Appellant’s co-defendant, Ms. McKnight, with a hammer in her hands after the
altercation. (Id. at 92). Ms. Schwegel made no mention of Appellant
possessing the hammer during the altercation.2 The prosecutor then asked
the court for permission to show Ms. Schwegel her prior statement to police,
which the prosecutor marked as exhibit “CW-3”. (Id. at 101). The court
allowed the prosecutor to proceed, and Ms. Schwegel confirmed that the
Commonwealth’s exhibit was her signed statement to the police. (Id.)
As the prosecutor asked whether the statement had refreshed Ms.
Schwegel’s recollection of the altercation, defense counsel objected. (Id. at
102). Ultimately, the court conducted a sidebar to receive argument
regarding the objection. (Id. at 104). At that time, defense counsel claimed
that the prosecutor could not rely on Ms. Schwegel’s prior statement to the
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2 Specifically, the prosecutor asked, “At that point [during the scuffle], did you
see anything in anybody’s hands?” (N.T. Trial, 5/2/17, at 95). Ms. Schwegel
responded, “In the scuffle? … No.” (Id.)
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police, because the statement was consistent with her trial testimony. (Id. at
106-07). The prosecutor countered that Ms. Schwegel “testified today
inconsistently as it relates to … [Appellant] having something in his hands,
specifically a hammer when she went outside and began to witness this fight.”
(Id. at 108). The court overruled the objection and permitted the prosecutor
to continue with her line of questioning. Thereafter, Ms. Schwegel confirmed
that she told police that she had seen Appellant carrying a hammer on the
night of the altercation. (Id. at 112).
In its opinion, the trial court reiterated that Ms. Schwegel’s statement
to police and trial testimony were “materially inconsistent.” (Trial Court
Opinion at 7). We agree with this determination. Here, Ms. Schwegel’s prior
statement was contained within a signed writing adopted by the declarant.
See Henkel, supra. Before the prosecutor refreshed Ms. Schwegel’s
recollection with the prior statement, the witness denied seeing anything in
Appellant’s hands. On this basis, the court did not abuse its discretion in
admitting the prior inconsistent statement. See Belknap, supra. Therefore,
Appellant is not entitled to relief on his first claim.
In his second issue, Appellant acknowledges that the court provided a
“consciousness of guilt” instruction, based upon the Commonwealth’s
argument that it presented evidence of Appellant’s flight from police.
Appellant insists that this instruction was unwarranted because he did not
actually flee. Rather, Appellant emphasizes that police arrived at his home as
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part of their investigation, and he “immediately gave them his name, prior to
being taken into custody.” (Appellant’s Brief at 28). Appellant concludes that
the court committed reversible error by providing the jury with the
consciousness of guilt instruction. We disagree.
“The trial court has considerable discretion in fashioning a jury charge.”
Commonwealth v. Gomez, 224 A.3d 1095, 1102 (Pa.Super. 2019), appeal
denied, 661 Pa. 484, 236 A.3d 1053 (2020). “The court is free to use its own
expressions, provided it clearly and accurately conveys the applicable legal
concepts at issue.” Id. “The trial court is not required to give every charge
that is requested by the parties and its refusal to give a requested charge does
not require reversal unless the appellant was prejudiced by that refusal.’”
Commonwealth v. Scott, 73 A.3d 599, 602 (Pa.Super. 2013) (quoting
Commonwealth v. Brown, 911 A.2d 576, 583 (Pa.Super. 2006)).
“In reviewing instructions to a jury, we consider the entire charge, ‘not
merely discrete portions thereof.’” Gomez, supra at 1102 (quoting
Commonwealth v. Johnson, 630 Pa. 493, 552, 107 A.3d 52, 88-89 (2014)).
“We examine the entire instruction ‘against the background of all evidence
presented, to determine whether error was committed.’” Commonwealth v.
Rush, 162 A.3d 530, 540 (Pa.Super. 2017) (quoting Commonwealth v.
Grimes, 982 A.2d 559, 564 (Pa.Super. 2009)). “A jury charge is erroneous
if the charge as a whole is inadequate, unclear, or has a tendency to mislead
or confuse the jury rather than clarify a material issue.” Id. (quoting Grimes,
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supra at 564).
Instantly, Complainant testified about the ending of his altercation with
Appellant. Complainant heard sirens, which prompted Appellant to say, “Get
off me, man. The sirens are coming.” (N.T. Jury Trial, 5/3/17, at 39).
Complainant then watched as Appellant “sprinted off.” (Id.) Based upon this
testimony, the court provided the jury with the following instruction on
consciousness of guilt:
There was evidence, including the testimony of
[Complainant], that tended to show that [Appellant] fled
from the police. The credibility, weight and effect of this
evidence is for you to decide. Generally speaking, when a
crime is being committed and a person thinks he or she is
or may be accused of committing it and he or she flees or
conceals himself or herself, such flight or concealment is a
circumstance tending to prove the person is conscious of
guilt; however, such flight or concealment does not
necessarily show consciousness of guilt in every case. A
person may flee or hide for some other motive and may do
so even though innocent. Whether the evidence of flight or
concealment in this case should be looked at as tending to
prove guilt depends on the facts and circumstances of this
case and especially upon motives that might have prompted
the flight or concealment. … In other words, your decision
would have to be based on all the evidence.
(N.T. Trial, 5/4/17, at 141-42).
Regarding Appellant’s challenge to the propriety of this instruction, the
court concluded that the instruction and reference to Complainant’s testimony
were not misleading or inaccurate. To the extent Appellant now relies on other
testimony from police witnesses regarding his interactions with officers later
that evening, the court correctly noted that such testimony “did not negate
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[Complainant’s] testimony that the Appellant did flee from the police.” (Trial
Court Opinion at 9). Therefore, examining the entire instruction against the
background of all evidence presented, we cannot say that the court erred in
providing the jury instruction at issue. See Gomez, supra; Rush, supra.Therefore, Appellant is not entitled to relief on his second claim.
In his third issue, Appellant contends that simple assault is a lesser
included offense of aggravated assault. Appellant insists that the record
contained evidence to support a jury verdict of not guilty for aggravated
assault, but guilty of simple assault. Because a rational jury could have found
Appellant guilty of the lesser included offense of simple assault, and counsel
requested a simple assault instruction, Appellant argues that the court should
have provided this instruction to the jury. Appellant concludes that the court
erred in refusing to instruct the jury on simple assault. We disagree.
The Crimes Code defines simple assault, in relevant part, as follows:
§ 2701. Simple assault
(a) Offense defined.—Except as provided under
section 2702 (relating to aggravated assault), a person is
guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a
deadly weapon; or
(3) attempts by physical menace to put another in fear
of imminent serious bodily injury[.]
18 Pa.C.S.A. § 2701(a)(1)-(3). Additionally, the Crimes Code defines
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aggravated assault, in relevant part, as follows:
§ 2702. Aggravated assault
(a) Offense defined.—A person is guilty of
aggravated assault if he:
(1) Attempts to cause serious bodily injury to another,
or causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life[.]
18 Pa.C.S.A. § 2702(a)(1). “Serious bodily injury” is defined as “[b]odily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S.A. § 2301.
“A crime is considered a lesser-included offense when the elements of
that crime are a necessary subcomponent of the elements of another crime
(referred to as the greater-included offense).” Commonwealth v.
Pellecchia, 925 A.2d 848, 851 (Pa.Super. 2007). “‘Simple assault’ as an
attempt to cause mere bodily injury is, therefore, a lesser included offense of
aggravated assault which is an attempt to cause serious bodily injury.”
Commonwealth v. Sirianni, 428 A.2d 629, 632-33 (Pa.Super. 1981)
(internal footnote omitted). “It is not error, however, for a judge to refuse to
instruct the jury on the lesser-included offense unless the evidence could
support a conviction on the lesser offense.” Commonwealth v. Wood, 475
A.2d 834, 835 (Pa.Super. 1984).
Instantly, Appellant threatened to injure Complainant before attacking
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him with a hammer. As a result of the assault, Complainant suffered
permanent scarring, light sensitivity, headaches, hearing loss, and mental
health issues. (See N.T. Trial, 5/3/17, at 46-49). The court concluded that
no reasonable jury could find that “Appellant merely attempted or intentionally
caused bodily injury without trying to cause or intentionally causing serious
bodily injury.” (See Trial Court Opinion at 12) (emphasis in original). We
agree with the court’s determination. See 18 Pa.C.S.A. § 2301. Because the
evidence did not support a conviction on the lesser offense of simple assault,
the court did not err in refusing to instruct the jury on that offense. See
Wood, supra. See also Sirianni, supra (holding court properly refused
defendant’s request for simple assault charge in prosecution for aggravated
assault arising from incident where defendant followed and confronted victim,
brandished firearm, and shot victim at point-blank range). Thus, Appellant is
not entitled to relief on his third claim.
In his final issue, Appellant acknowledges that the court imposed a
mandatory minimum sentence for his aggravated assault conviction, pursuant
to 42 Pa.C.S.A. § 9714(a)(1). Appellant insists, however, that the
Commonwealth did not produce sufficient evidence at sentencing to prove that
Appellant had previously been convicted of another “crime of violence.”
Although the Commonwealth presented certain court records from Appellant’s
prior conviction for robbery, which was graded as a first-degree felony,
Appellant complains that the Commonwealth did not present the sentencing
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order for the robbery conviction. In the absence of the sentencing order,
Appellant argues that the Commonwealth failed to prove that his robbery
conviction qualified as a crime of violence under Section 9714(g). Appellant
concludes that the court imposed an illegal sentence. We disagree.
“[B]ecause a sentencing court loses its authority to exercise discretion
when a mandatory minimum sentence applies, the question of the propriety
of applying a mandatory minimum sentencing provision implicates [the]
legality” of the sentence. Commonwealth v. Prinkey, ___ Pa. ___, ___,
277 A.3d 554, 564 (2022) (quoting Commonwealth v. Wolfe, 636 Pa. 37,
57, 140 A.3d 651, 663-64 (2016) (Baer, J., concurring)). Section 9714
provides the following mandatory minimum sentencing provision:
§ 9714. Sentences for second and subsequent
offenses
(a) Mandatory sentence.—
(1) Any person who is convicted in any court of
this Commonwealth of a crime of violence shall, if at the
time of the commission of the current offense the person
had previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary. Upon a second
conviction for a crime of violence, the court shall give the
person oral and written notice of the penalties under this
section for a third conviction for a crime of violence. Failure
to provide such notice shall not render the offender ineligible
to be sentenced under paragraph (2).
* * *
(d) Proof at sentencing.−Provisions of this section
shall not be an element of the crime and notice thereof to
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the defendant shall not be required prior to conviction, but
reasonable notice of the Commonwealth’s intention to
proceed under this section shall be provided after conviction
and before sentencing. The applicability of this section shall
be determined at sentencing. The sentencing court, prior to
imposing sentence on an offender under subsection (a),
shall have a complete record of the previous convictions of
the offender, copies of which shall be furnished to the
offender. If the offender or the attorney for the
Commonwealth contests the accuracy of the record, the
court shall schedule a hearing and direct the offender and
the attorney for the Commonwealth to submit evidence
regarding the previous convictions of the offender. The
court shall then determine, by a preponderance of the
evidence, the previous convictions of the offender and, if
this section is applicable, shall impose sentence in
accordance with this section….
42 Pa.C.S.A. § 9714(a)(1), (d) (emphasis added).
The statutory definition for “crime of violence” includes “robbery as
defined in 18 Pa.C.S.A. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery)[.]”
42 Pa.C.S.A. § 9714(g). Regarding the grading of robbery offenses, “robbery
under subsection (a)(1)(iv) and (vi) is a felony of the second degree; robbery
under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a
felony of the first degree.” 18 Pa.C.S.A. § 3701(b)(1).
Additionally, “[a] ‘preponderance of the evidence’ is only ‘the greater
weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement
for preponderance of the evidence.’” Commonwealth v. Neysmith, 192
A.3d 184, 189 (Pa.Super. 2018), cert. denied, ___ U.S. ___, 139 S.Ct. 2640,
204 L.Ed.2d 287 (2019). “In other words, when weighing the evidence of
record, the trial judge need only find that the fact in question is more-likely-
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than-not true.” Id. at 190. “To determine whether the Commonwealth
offered evidence sufficient to tip the evidentiary scale in its favor, we will
review all of the evidence and testimony offered at the sentencing hearing.”
Id.
Instantly, the court initially conducted Appellant’s sentencing hearing on
October 27, 2017. At that time, the Commonwealth submitted evidence to
prove that Appellant had a prior conviction for a “crime of violence,” thereby
warranting imposition of a Section 9714 mandatory sentence. Specifically,
the Commonwealth presented a written guilty plea colloquy, which Appellant
executed on October 20, 1994. (See Sentencing Exhibit C-3, dated 10/20/94,
at 4). In the colloquy, Appellant indicated that he would be entering a guilty
plea to robbery graded as a first-degree felony. (Id. at 1). The
Commonwealth also introduced a transcript from Appellant’s 1994 plea
hearing. At that time, the court and prosecutor reiterated that Appellant was
pleading guilty for an armed robbery graded as a first-degree felony. (See
Sentencing Exhibit C-4, dated 10/20/94, at 2). Appellant confirmed his
understanding of the grading, and counsel indicated that the plea was “open”
as to sentencing. (Id. at 2, 9-12). Thereafter, the court accepted the plea
and deferred sentencing pending completion of a presentence investigation
report. (Id. at 14).
After the Commonwealth submitted its exhibits regarding Appellant’s
prior crime of violence, the court received additional argument from counsel.
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(See N.T. Sentencing Hearing, 10/27/17, at 20-32). Defense counsel claimed
that the Commonwealth had failed to establish the prior crime of violence by
a preponderance of the evidence, because there was no evidence that
Appellant pled guilty to robbery under Section 3701(a)(1)(i), (ii) or (iii). (Id.
at 31). At the conclusion of the hearing, the court continued the matter to
give the parties additional time to research Appellant’s prior conviction. (Id.
at 35). The hearing resumed on November 16, 2017, and the court received
additional argument from the parties. Again, Appellant maintained that the
Commonwealth did not present sufficient proof of a prior crime of violence.
(See N.T. Sentencing Hearing, 11/16/17, at 18). Despite Appellant’s
arguments, the court imposed the Section 9714 mandatory minimum
sentence. (Id. at 33-34).
In its opinion, the court addressed Appellant’s current argument that
the Commonwealth needed to present the sentencing order for the prior crime
of violence. The court emphasized that it was “entirely unaware of caselaw,
statute, or rule of court requiring the specific production of a Court Order
substantiating a prior conviction[.]” (Trial Court Opinion at 18). Our research
supports the court’s conclusion, and we note that Appellant’s brief fails to cite
any relevant authority to support his claim. (See Appellant’s Brief at 35-36).
Absent more, we cannot say that the court erred in determining that the
Commonwealth satisfied the preponderance of the evidence standard. See
Neysmith, supra (explaining that Commonwealth need only show that prior
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convictions probably belong to offender). See also Commonwealth v.
Smith, 866 A.2d 1138 (Pa.Super. 2005), appeal denied, 583 Pa. 682, 877
A.2d 462 (2005) (holding that Commonwealth met its burden of establishing
defendant’s convictions for prior violent crimes by preponderance of evidence;
at sentencing, Commonwealth offered certified court documents, FBI rap
sheet, and NCIC rap sheet to demonstrate prior convictions). Thus, Appellant
is not entitled to relief on his final claim, and we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2023
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