Opinion
J-S67028-17 No. 3652 EDA 2016
12-19-2017
COMMONWEALTH OF PENNSYLVANIA v. GEORGE R. BLACKWELL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 24, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000481-2016, CP-09-CR-0001086-2016, CP-09-CR-0004428-2015 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY MUSMANNO, J.:
Former Justice specially assigned to the Superior Court.
In these consolidated cases, George R. Blackwell ("Blackwell") appeals from the judgment of sentence imposed following his conviction of two counts of retail theft, and one count each of robbery, simple assault, theft by unlawful taking, receiving stolen property, and possessing an instrument of crime. We affirm.
See 18 Pa.C.S.A. §§ 3929(a)(1); 3701(a)(1)(ii); 2701(a)(1); 3921(a); 3925(a); 907(a).
The trial court set forth the relevant factual and procedural history underlying this appeal in its Opinion, which we incorporate herein by reference. See Trial Court Opinion, 4/10/17, at 1-7.
We will hereinafter collectively refer to the retail theft cases, docketed at 0481-2016 and 4428-2015, as "the retail theft cases." We will refer to the case docketed at 1086-2016 as "the robbery case."
Following the denial of his post-sentence Motions, Blackwell timely filed a Notice of Appeal. In response, the trial court ordered Blackwell to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Blackwell timely filed a Concise Statement.
On appeal, Blackwell presents the following questions for our review:
A. Whether the trial court abused its discretion when it sentenced [Blackwell] to a manifestly excessive sentence of consecutive sentences[,] in [the] retail theft cases[,] to a period of sixty-three months to one hundred and twenty-six months of incarceration?Brief for Appellant at 5 (capitalization omitted).
B. Whether the trial court abused its discretion by imposing a life sentence without the possibility of parole pursuant to 42 Pa.C.S.A. § 9714(a)(2) upon [Blackwell,] whose last felony conviction occurred in 1983?
C. Is [Blackwell's] conviction for robbery [-] threat of serious bodily injury against the weight of the evidence presented by the prosecution witnesses at trial[,] as to [Blackwell's] physical actions on the day in question?
We will address Blackwell's first two issues together, both of which challenge the discretionary aspects of his sentence. There is no absolute right to appeal when challenging the discretionary aspects of a sentence. See Commonwealth v. Hill , 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has preserved the sentencing challenge for appellate review, by raising it in a timely post-sentence motion, he must (1) include in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Hill , 66 A.3d at 363-64.
The "open" guilty pleas that Blackwell entered on the retail theft cases allow him to challenge the discretionary aspects of those sentences. See Commonwealth v. Tirado , 870 A.2d 362, 365 n.5 (Pa. Super. 2005) (citing Commonwealth v. Dalberto , 648 A.2d 16, 20 (Pa. Super. 1994) (explaining that, when the plea agreement is open, containing no bargain for a specific or stated term of sentence, the defendant will not be precluded from appealing the discretionary aspects of his/her sentence)).
Here, Blackwell included a Rule 2119(f) Statement in his brief. See Brief for Appellant at 14-16, 20-21. Accordingly, we will examine the Rule 2119(f) Statement to determine whether a substantial question exists. See Hill , supra. Blackwell asserts that the trial court abused its discretion in excessively sentencing him above the aggravated range of the sentencing guidelines on the retail theft cases, and in imposing a sentence of life in prison regarding the robbery case, where (1) these sentences were "exclusively" based on Blackwell's prior criminal record; and (2) the trial court failed to consider mitigating factors and Blackwell's rehabilitative needs. See Brief for Appellant at 14-16, 20-21. These claims present a substantial question. Commonwealth v. Johnson , 873 A.2d 704, 708 (Pa. Super. 2005) (stating that a claim that the trial court "impos[ed] a sentence based on solely one's criminal history raises a substantial question."); see also Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (noting that a substantial question is raised where an appellant alleges that the sentencing court imposed sentence in the aggravated range without adequately considering mitigating circumstances).
"A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Disalvo , 70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted); see also 42 Pa.C.S.A. § 9781(b).
Concerning the retail theft cases, Blackwell points out that the respective sentences imposed were in or above the aggravated range, and the trial court ordered the sentences to run consecutively. Brief for Appellant at 17-18. According to Blackwell, "[t]he sentence[s] that [were] imposed focused only upon the [criminal] record of [Blackwell] and the impact upon the community. The trial court did not consider the positive characteristics of [Blackwell], including his work history, reuniting with his family, his age (sixty), and his rehabilitative needs." Id. at 18; see also id. at 17 (asserting that "[t]he crimes, at worst, are typical retail theft cases"). Concerning the robbery case, Blackwell contends that the sentence imposed of life in prison is manifestly excessive, where the court (1) placed too much emphasis on his prior felony convictions (the last of which was in 1983) and the need to protect the community from Blackwell; (2) ignored Blackwell's apology to the victim at sentencing; and (3) failed to consider mitigating factors and Blackwell's rehabilitative needs. Id. at 22-23.
In its Opinion, the trial court thoroughly addressed Blackwell's challenge to his sentences, adeptly set forth the relevant law, and determined that the sentences imposed were warranted under the circumstances, and not unreasonable or excessive. See Trial Court Opinion, 4/10/17, at 9-18. We agree with the trial court's sound rationale and determination, and therefore affirm on this basis in rejecting Blackwell's first two issues. See id.
In his third issue, Blackwell contends that the jury's guilty verdict on the robbery charge was against the weight of the evidence. See Brief for Appellant at 24-25. Specifically, Blackwell appears to challenge the element of the crime that he threatened the victim, Stacy Sakalauskas ("Sakalauskas"), or placed her in fear of immediate serious bodily injury. See id. Blackwell points out that although Sakalauskas testified that Blackwell had slashed at her face with a box cutter, she refused any medical treatment at the scene. Id. at 24. He further asserts that two eyewitnesses to the robbery did not testify as to seeing Blackwell brandish any weapon. Id. at 24-25. Finally, Blackwell emphasizes that the box cutter that police seized from his person was never tested for fingerprints. Id. at 25.
Blackwell was convicted of robbery - threat of serious bodily injury, which the Crimes Code defines as follows: "A person is guilty of robbery if, in the course of committing a theft, he ... threatens another with or intentionally puts [her] in fear of immediate serious bodily injury[.]" 18 Pa.C.S.A. § 3701(a)(1)(ii). --------
Our standard in reviewing a weight of the evidence claim is well-settled:
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 and citations omitted); see also Commonwealth v. Cash , 137 A.3d 1262, 1270 (Pa. 2016) (stating that "in reviewing a challenge to the weight of the evidence, a verdict will be overturned only if it is so contrary to the evidence as to shock one's sense of justice.") (citation and internal quotation marks omitted). Additionally, the finder of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Rivera , 983 A.2d 767, 771 (Pa. Super. 2009).
Here, the trial court set forth the relevant evidence and legal authority, weighed the evidence, and determined that the court properly rejected Blackwell's weight challenge. See Trial Court Opinion, 4/10/17, at 8-9. We decline Blackwell's invitation to assume the role of the fact-finder and to reweigh the evidence on appeal. Accordingly, we discern no abuse of the trial court's discretion in denying Blackwell's weight of the evidence challenge. See , e.g., In the Interest of C.S., 63 A.3d 351, 358 (Pa. Super. 2013) (holding that the juvenile court properly exercised its discretion in rejecting the juvenile's weight of the evidence challenge to her adjudication of delinquency for robbery, where (1) the victim, a convenience store clerk, testified that the juvenile stole items from the store after threatening the clerk that a nearby friend of the juvenile possessed a gun; and (2) the juvenile court found the clerk's testimony to be credible); see also Commonwealth v. Brawner , 553 A.2d 458, 462 (Pa. Super. 1989) (stating that the trial court properly rejected the defendant's weight of the evidence challenge to his robbery conviction, where the purported contradictions in the testimony of the victim alleged by defendant were minor and did not undermine the propriety of the jury's guilty verdict).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/19/2017
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