Opinion
J-S66004-17 No. 1286 WDA 2016
12-18-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAMES BANKS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015867-2014 BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court. --------
Appellant, James Banks, appeals from the judgment of sentence of and aggregate term of 26-52 years' incarceration, followed by 5 years' probation, imposed after his conviction for attempted homicide, robbery, and related offenses. Appellant challenges the weight of the Commonwealth's evidence supporting his identity as the perpetrator of the crimes at issue in this case, the discretionary aspects of his sentence, as well as its legality. We reject Appellant's weight challenge. However, we are compelled to vacate Appellant's sentence and to remand for resentencing due the imposition of an illegal sentence. Consequently, we decline to address Appellant's discretionary-aspects-of-sentencing claim at this time.
A full recitation of the facts adduced at trial is provided in the trial court's opinion. See Trial Court Opinion (TCO), 2/15/17, at 3-8. Briefly stated, the victim, Anthony Matthews, was sleeping in his City of Pittsburgh apartment at approximately 8:30 a.m. on October 10, 2014, when he awoke to find three knife-wielding men standing at his bedside. Id. at 3. Appellant immediately recognized two of the unmasked men, Appellant and Jerome Banks, as the younger brothers of his former girlfriend, London Banks. Id. The third man demanded money. Id. at 4. As Matthews attempted to get out of his bed, one of the intruders stabbed him in the abdomen. Id. When Matthews began to struggle with his assailants, Appellant stabbed him in the back. Id. The melee continued for some time, until Matthews heard Appellant tell his brother, Jerome, "[h]it him, hit him, hit him." Id. Jerome then struck Mathews in the head six or seven times with a brick. Id. After this, Appellant and his cohorts fled, but not before stealing a game system and a laptop from the Matthew's apartment. Id. at 5.
Matthews managed to call 911 while he crawled into the hallway of his apartment building, where a neighbor assisted him. Id. In the ambulance on the way to the hospital, and believing he was going to die, Matthews told the attending paramedic that he was stabbed by his ex-girlfriend's brothers. Id. at 6. Although he survived, Matthews was placed in a medically induced coma for two days before police could speak with him. Id. When the police were finally able to communicate with Matthews, he identified Appellant and Jerome Banks as his assailants. Id. Matthews' injuries required multiple surgeries, resulted in extensive nerve damage in his hands and back, and left him struggling with post-traumatic stress, including severe anxiety and sleeplessness. Id. at 7.
The Commonwealth charged Appellant with attempted homicide, 18 Pa.C.S. § 901; robbery, 18 Pa.C.S. § 3701(a)(1); burglary, 18 Pa.C.S. § 3502(a)(1); aggravated assault, 18 Pa.C.S. § 2702(a)(1); as well as conspiracy to commit each of those offenses, 18 Pa.C.S. § 903. Following a trial held on December 2-3, 2015, the jury found Appellant not guilty of conspiracy to commit homicide, but guilty of all the remaining charges. On July 14, 2016, the trial court sentenced Appellant to 15-30 years' incarceration for attempted homicide, with consecutive terms of 7-14 years' and 4-8 years' incarceration for conspiracy to commit robbery and burglary, respectively, and a concurrent term of 8-16 years' incarceration for robbery. The trial court also ordered Appellant to serve a consecutive term of 5 years' probation for robbery. Thus, Appellant received an aggregate sentence of 26-52 years' incarceration and 5 years' probation.
Appellant timely filed post-sentence motions challenging the weight of the evidence supporting his convictions and the discretionary aspects of his sentence. The trial court denied Appellant's post-sentence motions on August 5, 2016, from which he filed a timely notice of appeal. Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on December 5, 2016, and the trial court issued its Rule 1925(a) opinion on February 15, 2017. Appellant now presents the following questions for our review:
I. Did the trial court abuse its discretion in denying the post-sentence motion that the verdict was contrary to the weight of the evidence presented in that no physical or scientific evidence, including fingerprints, DNA, weapons, or inculpatory statements were presented implicating [Appellant] in the commission of the crimes, the victim gave three different versions of the facts, named persons other than [Appellant] as his attackers, and [Appellant] presented an alibi?Appellant's Brief at 9.
II. Did the trial court abuse its discretion in sentencing [Appellant] to an aggregate term of 26 to 52 years of imprisonment, to be followed by 5 years of probation, in that the sentence is manifestly unjust, unreasonable, and excessive, is contrary to the Sentencing Code, and the fundamental norms underlying the sentencing process in that the court failed to apply, as it must, all required sentencing factors including the gravity of the offense in relation to the impact on the victim, the history, character and condition of the defendant, and his rehabilitative needs?
III. Did the trial court err in imposing an illegal sentence on Count 3 (Robbery), as the sentence imposed is greater than the lawful maximum?
Appellant's first claim asserts that the trial court abused its discretion in denying his post-sentence motion claim that the verdict was against the weight of the evidence with respect to Appellant's identity as one of the three assailants. We apply the following standard of review to a challenge that a verdict is against the weight of the evidence:
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.
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained:
Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013) (internal citations omitted).The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.
After reviewing the certified record, the parties' briefs and arguments contained therein, as well as the trial court's thorough and well-reasoned Rule 1925(a) opinion, authored in this case by the Honorable Beth A. Lazzara, we conclude that the trial court did not abuse its discretion in denying Appellant's post-sentence motion claim that the verdict was against the weight of the evidence. We rest our holding on the basis set forth in the trial court's opinion. See TCO at 8-19.
For ease of disposition, we now turn to Appellant's third claim, whereby he asserts that his sentence for robbery is illegal because it exceeded the statutory limit for that offense. The Commonwealth concedes the illegality of the sentence.
"The issue of whether a sentence is illegal is a question of law and our scope of review is plenary." Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa. Super. 2010). If a sentence is illegal, "whether it was properly preserved below is of no moment, as a challenge to the legality of sentence cannot be waived." Commonwealth v. Dickson , 918 A.2d 95, 99 (Pa. 2007). Furthermore, a "sentence that exceeds the statutory maximum is illegal. If a court imposes a sentence outside of the legal parameters prescribed by the applicable statute, the sentence is illegal and should be remanded for correction." Commonwealth v. Infante , 63 A.3d 358, 363 (Pa. Super. 2013) (internal citations and quotation marks omitted).
Robbery, a first-degree felony, carries a maximum possible sentence of 20 years' incarceration. 18 Pa.C.S. § 1103(1). As detailed above, the trial court imposed a 'split sentence' for Appellant's robbery conviction: 8-16 years' incarceration, with a consecutive term of 5 years' probation. Consequently, Appellant faces the potential of serving up to 21 years' punishment for his robbery offenses, thereby exceeding the statutory maximum punishment of 20 years. See , e.g., Crump , 955 A.2d at 1284 (stating that "where the [statutory] maximum [sentence] is ten years[' incarceration], a defendant cannot receive a term of incarceration of three to six years followed by five years['] probation"). Therefore, we agree with Appellant and the Commonwealth that Appellant's sentence for robbery is illegal. Accordingly, we are compelled to vacate Appellant's sentence in its entirety and remand for resentencing, as it is possible that a correction of Appellant's illegal sentence will upset the overall sentencing scheme envisioned by the trial court. Infante , supra ; see also Commonwealth v. Dobbs , 682 A.2d 388, 393 (Pa. Super. 1996) (stating that "[w]here we determine that a sentence must be corrected, this Court has the option of amending the sentence directly or remanding it to trial court for re-sentencing. If a correction by this Court may upset the sentencing scheme envisioned by the trial court, the better practice is to remand").
Finally, because we must remand for resentencing, we decline to address Appellant's second claim, which concerns the discretionary aspects of the vacated sentence.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/18/2017
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