Opinion
589 EDA 2021 J-S02014-22
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. MARK BENDER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 16, 2019 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003817-2018
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM
OLSON, J.
Appellant, Mark Bender, appeals from the judgment of sentence entered on August 16, 2019 in the Criminal Division of the Court of Common Pleas of Northampton County. We affirm.
On January 23, 2019, the Commonwealth filed a criminal information charging Appellant with the following offenses: one count of aggravated assault (18 Pa.C.S.A. § 2702(a)(1)); two counts of aggravated assault (18 Pa.C.S.A. § 2702(a)(2)); one count of strangulation (18 Pa.C.S.A. § 2718(a)(1)); one count of unlawful restraint (18 Pa.C.S.A. § 2902(a)(1)), one count of simple assault (18 Pa.C.S.A. § 2702(a)(1)); one count of resisting arrest (18 Pa.C.S.A. § 5104); and, one count of institutional vandalism (18 Pa.C.S.A. § 3307(a)(3)). The charges proceeded to a jury trial which commenced on July 8, 2019.
The trial court summarized the evidence introduced at trial as follows.
Trial in this matter commenced on July 8, 2019. The testimony established that on October 28, 2018, [Appellant] was at home with his paramour when they began arguing about [Appellant's] obligation to report to his parole or probation officer, as well as [Appellant's] request for the paramour to provide transportation. At the time of the incident, the parties' infant child was present in the apartment. The testimony also indicated that the parties [] consumed alcohol that day.
[Appellant's] paramour testified that [the parties'] argument eventually became physical and that [Appellant] assaulted her. [Appellant's] paramour testified that she was punched, kicked, and strangled by [Appellant] such that she could not breathe.
The record also established that while [Appellant's] paramour was in the kitchen and [Appellant] in the living room, she was [] able to make a [secret] call to 911. The 911 call captured some audio of the incident while it was in progress.
The police responded to the 911 call. The police testified that after they arrived at the paramour's apartment, [Appellant] charged the officers, making contact with [them], which required them to deploy a Taser and to wrestle with [Appellant] in order to detain, handcuff, and arrest him. The police reported no injuries [received during the struggle with Appellant, ] other than one of the officers [who sustained a cut on his face caused by his eyeglasses]. The officers testified that [Appellant] continued to be unruly and attempted to spit on them, so at one point they employed the use of a spit hood. The police also testified that [Appellant] was transported to their station and placed in a cell. [Officers then checked on Appellant at five to 10 minute intervals]. [Appellant] never asked to use the rest facilities; however, at one point he [stood] in the corner of [his] cell and urinated. The police heard [Appellant] urinating and went to the cell to observe [Appellant] urinating in the corner.
On July 9, 2019, [the jury found Appellant guilty of three of eight charges lodged against him]. The jury found [Appellant] guilty of the simple assault and strangulation of his paramour. In addition, [Appellant] was found guilty of institutional vandalism related to [Appellant] urinating inside the police holding cell. [Appellant] was found not guilty of [three counts of aggravated assault, unlawful arrest, and resisting arrest.]
[On August 16, 2019, Appellant received standard range sentences for his conviction: nine to 24 months for simple assault, nine to 24 months for strangulation, and six to 12 months for institutional vandalism. The court directed that Appellant's sentences should run consecutive to each other].Trial Court Opinion, 2/19/21, at 1-3.
On August 21, 2019, defense counsel filed a motion for reconsideration of sentence, which the court denied on August 27, 2019. Counsel filed a timely notice of appeal on September 13, 2019. We subsequently dismissed this appeal on procedural grounds.
On September 4, 2019, Appellant filed a pro se submission alleging ineffective assistance of counsel. Ultimately, the court treated Appellant's filing as a petition for collateral relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and appointed counsel. By order entered on June 26, 2020, Appellant's direct appeal rights were reinstated. No new notice of appeal followed, however.
On November 19, 2020, new counsel filed another PCRA petition, again seeking reinstatement of Appellant's rights to file a post-sentence motion and direct appeal. The Commonwealth did not oppose Appellant's request and,
Since the November 19, 2020 petition was filed within one year of July 26, 2020 (or 30 days after the order reinstating Appellant's direct appeal rights), we shall view the November 19, 2020 petition as a timely first petition for collateral relief. See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013) (time period for filing petition under PCRA restarts, upon grant of first PCRA petition, 30 days after order reinstating petitioner's direct appeal rights, and petition filed within one-year statutory period following order of reinstatement constitutes timely-filed first petition).
by order entered on December 3, 2020, the PCRA court reinstated Appellant's post-sentence rights, his direct appeal rights, and granted leave to file a post-sentence motion within 10 days. A timely post-sentence motion, which included a request to modify sentence, was filed on December 10, 2020. The trial court denied Appellant's post-sentence motion on February 21, 2021. This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant's brief raises the following claims for our review.
Whether the evidence was insufficient to support [Appellant's] convictions on the charges of simple assault, strangulation, and institutional vandalism in that the evidence failed to establish all of the material elements of the charges?
Whether the trial court erred in failing to grant a mistrial following repeated references at trial to [Appellant] being incarcerated, on probation and/or on parole?
Whether the verdicts on the charges of simple assault, strangulation, and institutional vandalism were against the weight of the evidence?
Appellant's Brief at 6 (gratuitous capitalization omitted).Whether the trial court committed an abuse of discretion in imposing an aggregate sentence which was clearly unreasonable in light of the nature and circumstances of the offense?
In his initial claim, Appellant asserts that the evidence introduced at trial was insufficient to sustain his convictions for simple assault, strangulation, and institutional vandalism. Appellant's sufficiency claim consists exclusively of the following assertions.
A person is guilty of simple assault when he attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another. 18 Pa.C.S.A. § 2701(a)(1). The term "bodily injury" means impairment of physical condition or substantial pain. 18 Pa.C.S.A. § 2301. It is submitted that the evidence at trial was not sufficient to establish all elements of the offense of simple assault. The evidence failed to establish intentional, knowing or reckless conduct on the part of [Appellant]. The evidence further failed to establish the requisite bodily injury. N.T., 7/9/19, at 128-130.
A person commits the offense of strangulation if the person knowingly or intentionally impedes the breathing or circulation of the blood of another person by applying pressure to the throat or neck. 18 Pa.C.S.A. § 2718(a)(1). It is submitted that the evidence at trial was insufficient to establish that [Appellant] committed the offense of strangulation by knowingly or intentionally impeding the breathing or circulation of the blood of the complainant by applying pressure to the throat or neck. N.T., 7/9/19, at 128-130.
Appellant's Brief at 15-16 (gratuitous capitalization omitted).A person commits the offense of institutional vandalism if he knowingly desecrates, vandalizes, defaces, otherwise damages any school, educational facility, community center, municipal building, courthouse facility, state or local government building or vehicle or juvenile detention center. 18 Pa.C.S.A. § 3307(a)(3). It is submitted that the evidence at trial failed to sufficiently establish that [Appellant] committed the offense of institutional vandalism in that there was insufficient evidence that [Appellant] knowingly vandalized, defaced, or otherwise caused any damage to any building or facility. N.T., 7/9/19, at 106-107.
Our standard of review for such a challenge is as follows:
[O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical
Commonwealth v. Lynch, 242 A.3d 339, 352 (Pa. 2020), quoting Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations, quotation marks, and parentheses omitted).certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
We have carefully reviewed the certified record, the submissions of the parties, and the opinion of the trial court. Based upon our review, we concur in the trial court's conclusion that each of Appellant's bald and underdeveloped sufficiency claims are meritless in view of the overwhelming evidence presented at trial. Because the trial court has adequately and accurately addressed Appellant's challenges to the sufficiency of the evidence, we affirm on the basis of the trial court opinion that the evidence was sufficient to satisfy each conviction. See Trial Court Opinion at 8-10.
Appellant maintains that the trial court erred in refusing his request for a mistrial after the victim testified that Appellant was incarcerated before he moved into the couple's shared residence and that he was under the supervision of a parole or probation officer. This claim merits no relief.
We apply the following principles in reviewing an order that denies an application for a mistrial.
A mistrial is an extreme remedy that is appropriate "only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial
Commonwealth v. Leap, 222 A.3d 386, 392 (Pa. Super. 2019). "When dealing with a motion for mistrial due to a reference to past criminal behavior, the nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required." Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007) (quotation omitted).by preventing the jury from weighing [the evidence] and rendering a true verdict." Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). "It is within the trial court's discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial." Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015) (en banc) (citations omitted). When a trial court gives adequate cautionary instructions to the jury, it is not necessary for the court to declare a mistrial. Bryant, 67 A.3d at 728. "The law presumes that the jury will follow the instructions of the court." Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001).
Applying these standards, several factors support the trial court's decision to reject Appellant's request for a mistrial. First, the testimony of the victim, the police officers, and the partial recording of the assault on the 911 call established overwhelming evidence supporting Appellant's convictions for simple assault, strangulation, and institutional vandalism. Second, the victim made only passing references to Appellant's supervised status and past incarceration when describing the context of the dispute that erupted between her and Appellant. The victim uttered the comments on her own when the prosecutor asked how long the parties had lived together. The Commonwealth did not solicit information about Appellant's prior incarceration. Finally, the trial court twice cautioned the jury not to infer, based upon the victim's statements, that Appellant was a person of bad character or that he must be guilty of the offenses sub judice because he may have committed other crimes.
Under the circumstances before us, we cannot conclude that the unavoidable effect of the victim's statements was to deprive Appellant of a fair trial by preventing the jury from weighing the evidence and rendering a true verdict. Ultimately, upon deliberation, the jury found Appellant guilty of simple assault, strangulation, and institutional vandalism but acquitted him of one count of aggravated assault against the victim, two counts of aggravated assault against two police officers who responded to the scene, unlawful restraint, and resisting arrest. Any potential prejudice arising from the victim's comments was overcome by the trial court's cautionary instructions. For these reasons, we concur that the trial court did not abuse its discretion in refusing Appellant's request for a mistrial.
Appellant next challenges the weight of the evidence, claiming that the weight of the credible evidence pertaining to assault and strangulation established only that "any conduct on the part of [Appellant] was reactionary [and] in self-defense in disarming the complainant of a knife." Appellant's Brief at 23, citing N.T., 7/9/19, at 128-130. In addition, Appellant claims that the weight of the credible evidence pertaining to institutional vandalism established only that "he was left in a cell without a bathroom or urinal and urinated." Appellant's Brief at 23-24.
We review a challenge to the weight of the evidence for an abuse of discretion. See Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). A defendant must present such a challenge to the trial court in the first instance and, if that court rejects the challenge, we review the rejection of the claim for an abuse of discretion. Id.
After careful review of the certified record, the submissions of the parties, and the opinion of the trial court, we conclude that the court did not abuse its discretion in denying Appellant's weight claim. See Trial Court Opinion at 8-10.
In his final claim, Appellant asserts that the trial court abused its discretion since his sentence "was inconsistent with the [s]entencing [c]ode and contrary to the fundamental norms of the sentencing process in that the trial court imposed an aggregate sentence which was unduly harsh considering the nature of the crime and the length of imprisonment." Appellant's Brief at 13, citing Commonwealth v. Mastromarino, 2 A.3d 581 (Pa. Super. 2010). Appellant explains that his sentence was contrary to the sentencing code because "while [the trial court followed the sentencing guidelines], the aggregate sentence [of two to five years' incarceration] imposed for the misdemeanor offenses was clearly unreasonable because the court failed to take into account the gravity of the offenses and the rehabilitative needs of [Appellant] as mandated by [42 Pa.C.S.A. § 9721(b) of the [s]entencing [c]ode." Appellant's Brief at 13. Appellant also argues that "the trial court improperly considered the fact that [he] maintained his innocence." Appellant's Brief at 29. Finally, Appellant submits "that the imposition of consecutive sentences under the circumstances represent[ed] an abuse of discretion as such sentence was clearly unreasonable in light of the nature and circumstances of the offense." Appellant's Brief at 29-30.
We have previously determined:
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal citations and quotations omitted).We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Appellant complied with the procedural requirements for raising and preserving a challenge to the discretionary aspects of his sentence. He filed a timely notice of appeal and preserved the issue in a post-sentence motion. We are not convinced, however, that Appellant raised a substantial question in his statement submitted pursuant to Pa.R.A.P. 2119(f). Appellant acknowledges that the trial court imposed guidelines-range sentences but asserts, baldly, that his aggregate sentence was unduly harsh because the trial court ordered him to serve his sentences consecutively. We fail to see how a two-to-five-year prison sentence in a case involving a violent assault appears on its face to be an excessive punishment. See Mastromarino, 2 A.3d at 588 (substantial question inquiry focuses initially on "whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case"). We therefore conclude that Appellant has not raised a substantial question that his sentence is inconsistent with the sentencing code or the fundamental norms that underlie the sentencing process. Standing alone, this conclusion bars substantive review of Appellant's claim.
Even if we were to reach the merits of Appellant's discretionary sentencing challenge, we would hold that Appellant's claim is unavailing. "[S]entencing is vested in the discretion of the trial court, and will not be disturbed absent a manifest abuse of that discretion. An abuse of discretion involves a sentence which was manifestly unreasonable, or which resulted from partiality, prejudice, bias or ill will. It is more than just an error in judgment." Commonwealth v. Brown, 249 A.3d 1206, 1211 (Pa. Super. 2021). When imposing a sentence of total confinement, a court should follow "the general principle that the sentence should be consistent with the need to protect the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b).
In reviewing the record an appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
42 Pa.C.S.A. § 9781(d).(3) The findings upon which the sentence was based. (4)The guidelines promulgated by the commission.
An appellate court shall vacate a sentence and remand the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
42 Pa.C.S.A. § 9781(b).(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
We are unable to agree with Appellant's claims that the trial court abused its discretion and that application of the guidelines in this case was clearly unreasonable. At Appellant's sentencing hearing, the court reviewed the information set forth in the presentence investigation report (PSI), Appellant's statements of remorse, the arguments of counsel, and the sentencing guidelines pertaining to simple assault, strangulation, and institutional vandalism. Appellant's PSI report discussed Appellant's personal characteristics and circumstances, prior record score, and amenability to supervision, noting that Appellant had a history of assaultive behavior and difficulty with supervision. The court also considered Appellant's rehabilitative needs such as his mental health issues and use of drugs and alcohol. Lastly, the court specifically noted that it did not consider Appellant's assertion of innocence and election to proceed to trial in fixing sentence.
Pennsylvania law is clear. A sentencing court acts well within its discretion in imposing consecutive sentences as punishment for separate and distinct criminal acts. See Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa. Super. 2018). Moreover, a presumption arises that a court is aware of and weighs all relevant information contained within a presentence investigation report. Commonwealth v. Marts, 889 A.2d 608, 615 (Pa. Super. 2005). Where a sentence falls within the standard range of the guidelines, Pennsylvania law views the punishment as consistent with the sentencing code. Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa. Super. 2019). Because the consecutive sentences imposed in this case were a rational and reasonable way for the court to redress the serious offenses committed by Appellant and to avoid a volume discount on multiple violent crimes, we perceive no merit in Appellant's discretionary sentencing claims.
As we affirm, in part, on the basis of the trial court's opinion, a copy of said opinion shall be attached to any filings regarding this appeal.
Judgment of sentence affirmed.
ORDEROF COURT
And now this 19th day of February, 2021, the Post-Sentence Motions filed by Defendant, Mark Ervin Bender, are DENIED AND DISMISSED.
STATEMENT OF REASONS
After a reinstatement of the Defendant's direct appeal rights, Defendant filed a timely Post-Sentence Motion on December 10, 2020. The Post-Sentenced Motion attacks (1) both the weight and sufficiency of the evidence, (2) a request for a mistrial, and (3) a challenge to the discretionary aspect of his sentence.
On January 18j 2021, Defendant filed his brief in support of his Post-Sentence Motions, The Commonwealth filed its brief on February 15, 2021.
Trial in this matter commenced on July 8, 2019. The testimony established that on October 28, 2018, the Defendant was at home with his paramour when they began arguing about the Defendant's obligation to report to his parole or probation officer, as well as the Defendant's request for the paramour to provide transportation. At the time of the incident, the parties' infant child was present in the apartment. The testimony also indicated that the parties had consumed alcohol that day,
The paramour testified that their argument eventually became physical and that Defendant assaulted her. The paramour testified that she was punched, kicked, and strangled by the Defendant such that she could not breathe.
The record also established that while the paramour was in the kitchen and the Defendant in the living room, she was able to make a secretive call to 911. The 911 call captured some audio of the incident while it was in progress, The police responded to the 911 call. The police testified that after they arrived at the paramour's apartment, the Defendant charged the officers, making contact with the officers, which required them to deploy a Taser and to wrestle with the Defendant in order to detain, handcuff, and arrest him. The police reported no injuries other than one of the officers had a cut on his face caused by his own eye glasses and apparently received during the struggle with Defendant, The officers testified that the Defendant continued to be unruly and attempted to spit on them, so at one point they employed the use of a spit hood. The police also testified that the Defendant was transported to their station and placed in a cell. He was then periodically checked on at 5 to 10 minute increments. The Defendant never asked to use the rest facilities; however, at one point he did stand in a comer of the cell and urinated. The police heard the Defendant urinating and went to the cell to observe him urinating in the comer.
On July 9, 2019, after atrial by jury the Defendant was convicted on three of eight charges brought against him. The jury found the Defendant guilty of the simple assault and strangulation of his paramour. In addition, the Defendant was found guilty of institutional vandalism related to the Defendant urinating inside the police holding cell. The Defendant was found not guilty of three (3) counts of aggravated assault (2 counts against arresting police officers and 1 count against paramour), unlawful restraint (paramour), and resisting arrest.
By way of background, the Defendant was on parole for our sentence imposed on February 8, 2018, eight months prior to this incident, In docket number CP-48-CR-0004034-2017, Defendant was charged with Aggravated Assault by a Prisoner (F2), Aggravated Harassment by a Prisoner, (18 P.S. 2703.1 - F3), Simple Assault, Disorderly Conduct and Public Drunkenness. The Defendant was alleged to have fought with law enforcement and during his struggle:he spit on the officers and EMS personnel. A negotiated plea was entered to Aggravated Harassment after Defendant admitted to having spit on the First responders. Defendant received a 10 - 22 month sentence, followed by 12 months of county probation, On August 16, 2019, the Defendant received standard range sentences for his convictions - 9 to 24 months for simple assault, 9 to 24 months for strangulation, and 6 to 12 months for institutional vandalism. Those sentences were run consecutive to each other, In addition, a Parole Violation petition had been filed against Defendant under docket number 4034-2017. We terminated .his parole sentence: and revoked his probationary tail, imposing a new sentence of 6- 12 months, consecutive to the sentence under this docket number. The Defendant's aggregate sentence was 30 - 72 months.
The Defendant filed a pro se Notice of Appeal on August 20, 2019. On August 21, 2019, we requested a Concise Statement of Matters Complained of on Appeal. On August 21, 2019, Defendant's counsel filed a Motion for Reconsideration of Sentence. On August 27, 2019, we entered our Order denying the Motion for Reconsideration of Sentence. On September 4, 2019, Defendant filed a new pro se motion in the nature of a PCRA alleging ineffective assistance of counsel. On September 13, 2019, Defendant's counsel filed a second Notice of Appeal. We then served a second Pa.R.A.P. 1925(b) request for a Concise Statement of Matters Complained of on Appeal, Apparently, the Defendant's appeal was abandoned,
This matter was returned after a PCRA petition was filed. Eventually, with the agreement of me District Attorney, the Defendant's direct appeal rights were re-instated.
I. Failure to Grant a Mistrial
At the beginning of the trial the paramour testified that the incident started as a result of an argument that "he was supposed to go see his parole officer or probation officer." The argument included a dispute as to how Defendant was going to get to his appointment. See Notes of Testimony (N.T.) p. 20. An objection was raised and a motion made for a mistrial. We discussed the matter with counsel and directed that the Commonwealth have no further discussion about Defendants parole/probation status. We then denied the request for a mistrial. instead, we cautioned the jury that the testimony that the Defendant may have been scheduled to see a parole officer had nothing to do with the alleged crimes that were before the jury. We further instructed the jury -that the mere fact that he had a parole officer was not any indication of his bad character or propensity to commit a crime, Finally, we informed the jury that the information about a probation or parole officer was only background information regarding the cause of the argument and had no other relevance to these charges. (See N.T. p. 23.). There were no other references about parole. However, later in the trial, during cross-examination by defense counsel as to the Defendant and paramour's past relationship, we learned that they had been in a relationship for 6- 7 years, Then defense counsel further inquired of the paramour:
Q: When did he move in?
A: When he got out of jail the last time. I'm not.
Q: Let's not talk about him being in jail anymore, okay?
A: Well, I don't know the date that he got out.See N.T. p. 50.
After hearing the paramour's response, defense counsel quickly moved on with no further discussion. No objection was raised by defense counsel to this exchange. The Commonwealth did not make any inquiries or solicit any information. Frankly, we thought that the best course of action was to ignore the reference rather than highlighting the paramour's testimony by interrupting the cross-examination to again tell the jury that his alleged incarceration was irrelevant.
Finally, as part of our final charging instructions prior to releasing the jury for deliberations, we specifically addressed Pennsylvania Suggested Standard Criminal Jury Instruction 3, 08, and we again cautioned the-jury about the limited purpose for which the jury 1 may consider prior bad acts in their deliberations.
Generally, evidence of prior criminal conduct of the Defendant is not admissible to prove a person's character in order to show that on a particular occasion, the person acted in accordance with that character, See Pennsylvania Rules of Evidence 404(b), However, Rule 404(b) is not an absolute, in that evidence of other crimes may be admissible for legitimate purposes.
Here, no specific crime or bad act was ever identified or discussed before the jury. The testimony from the paramour about the argument that precipitated the alleged assault-Defendant's obligation to contact his probation/parole officer - was not purposely disclosed by the Commonwealth. That information was volunteered by the victim as. part of the history of the dispute and the cause of their argument, We entertained the defense attorney's objection and cautioned the jury that the fact that he may have been on probation or parole was not relevant to these crimes, that the information was not presented to paint the Defendant as a person of bad character or that he had a propensity to commit crimes, and that ultimately; the information was irrelevant to the charges before the jury. Thus, we believe that it was appropriate to deny counsel's request for a mistrial, The second reference about Defendant's history - that the Defendant had been in jail prior to the time that he moved into his paramour's home - was elicited by defense counsel's question, No objection was made, thus we were not given an opportunity to immediately address the reference. Therefore, we believe that this objection is waiver for purposes of direct appeal.
As far as our analysis, we first note that this complaint regarding objectionable testimony does not implicate constitutional rights. This issue is solely one of a discretionary application of the rules of evidence, in particular rule 404(b). Specifically, the pertinent provisions of Rule 404(b) provide:
Rule 404. Character Evidence; Grimes or Other Acts
b) Crimes, "Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
We suggest that the alleged offending information regarding his parole was actually part of the events of this crime. The Defendant's anger about his obligation to report to his parole agent was relevant as part of the factual predicate, it was the genesis or subject of the parties' argument that apparently frustrated the Defendant and resulted in Defendant lashing out at his victim. Thus, it was part of the relevant evidence presented to the jury about the motive for this crime. As it suggested motive, the statement was admissible under Rule 404 (b)(2).
Next we note that the Commonwealth did not seek out this information nor did the Commonwealth ask any follow up questions after the paramour volunteered her information. Thus, there does not appear to be any misconduct or improper action by the prosecutor. Also, we note that the Defendant makes no complaint about the prosecutor's performance.
Immediately after the objection was raised, we recognized the concern of defense counsel and therefore, we gave the jury a cautionary instruction to provide appropriate and curative protection to Defendant. The second complaint regarding the comment that the paramour and victim moved in together after he got out of jail, was never raised as an objection. Frankly, it appeared to us that defense counsel did not object because he gave his own cautionary instruction to the witness, However, if no objection was raised and we were hot invited to provide a cautionary instruction at that time, the objection is waived as not properly preserved for direct appeal, Finally, our cautionary instruction immediately after the. testimony and, again, as part of our final charge, properly addressed both comments by paramour.
The concept of harmless error is also applicable to these evidentiary issues. The seminal case regarding harmless error is Commonwealth v, Story, 383 A.2d 155 (Pa. 1978) where the Pennsylvania Supreme Court found that harmless error exists where ".. .uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could hot have contributed to the verdict." In Commonwealth v, Robinson, 721 A.2d 344, (Pa. 1998), the Supreme Court restated the legal standard for analyzing harmless error:
Harmless error exists: where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely
Id. at 350.cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence- or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict, Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995) citing Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536 (1990).
Here, we find that the evidence was overwhelming and the references of undefined bad acts had no impact on Defendant's conviction, especially given our appropriate cautionary instructions to the jury.
Finally this complaint is much ado about nothing. The jury heard..from the victim, the police officers, and the Defendant. It is apparent that .the jury carefully sifted through the testimony and the charges to return a partitioned or bifurcated verdict. The Defendant was found not guilty of the most serious charges, the aggravated assault against police officers and the paramour, as well as resisting arrest and unlawful restraint. Clearly, the fact that the Defendant may have had prior, undisclosed, criminal involvement with the system before the incident in question, had no measurable Impact as he escaped the most serious charges.
Frankly, based on the quality of the testimony with regard to the Defendant's actions, we believe that the jury's verdict was reasonable and that the fleeting references to having a-parole. officer arid having been incarcerated prior to moving into the paramour's apartment, were wholly irrelevant to the jury's deliberation.
II. Weight of the Evidence/ Sufficiency of the Evidence
Even though the two claims - the weight of the evidence verses the sufficiency of the evidence - may sound similar, they 'are significantly different legal arguments. The discussion by our Supreme Court in Commonwealth v. Widmer, 744 A.2d745 (Pa. 2000) is instructive on this issue:
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993). Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. Commonwealth v. Santana, 460 Pa. 482, 333 A, 2d 876 (1975). When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Chambers, 528 Pa, 558, 599 A.2d 630 (1991).
Id. at 752.A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Commonwealth v. Whiteman, 336 Pa. Super. 120, 4S5 A.2d 459 (1984). Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner, Tibbs, 457 U.S. at 38 n. 11, 102 S.Ct. 2211.3 An allegation that the verdict is against the weight of tie evidence is addressed to the-discretion of the trial court, Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Thompson, supra. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that "notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice."Id. (footnotes omitted).
The Defendant's Post-trial Motion and his Brief provides little clarity as to the nature or factual support for this appellate churn.
Regarding the sufficiency argument, Defendant merely complains that the evidence failed to establish "intentional, knowing, or reckless conduct." The evidence proffered by the Commonwealth (the testimony of the witnesses) clearly established each and every element for the three crimes the Defendant was convicted. The victim/paramour gave explicit - blow by blow history - of the domestic violence suffered at the hands of the Defendant, The police saw the Defendant urinating in his cell. Defendant's bald claim that the evidence was insufficient because it was inconclusive as far as establishing the elements of the crimes is not worthy of discussion.
With regard to a challenge to the weight of the evidence, out duty is both to weigh the credibility of the testimony and then weigh the competing evidence to determine if a miscarriage of justice has occurred, and if so* we must grant a new trial.
Our review of the trial record indicated that the jury got this one right. The paramour's testimony established that she was punched, kicked, and strangled by the Defendant. The paramour testified as to her injuries. The police reported that they observed the injuries to the paramour, and the jury had the benefit of the 911 tape which also captured audio of the Defendant and paramour's interaction before the police arrived. The police also testified that the Defendant urinated on the floor of his cell. We find that the Commonwealth's witnesses were credible.
That testimony overwhelmingly supported the jury's verdict
III. Sentencing
See Commonwealth v. Robinson, 931 A, 2d 15, 26 (Pa.Super.2007)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. In this context, an abuse of discretion is not shown merely by an error hi judgment. Rather, the appellant must establish, by reference to the record, that 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.
"In every case in which the court imposes a sentence for a felony or a misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed." Commonwealth v. Mouzon, 812 A.2d 617, 620-21 (Pa. 2002); 42 Pa.C.S.A. § 9721 (b).
We submit that the sentencing record explained the reasoning for Defendant's standard range sentence as well as out justification to run the separate and independent crimes consecutive to each other. This Defendant had a history of prior violent behavior, drug and alcohol use, and spiting on law enforcement, The facts in this case indicated that: (1) he violently assaulted and choked his paramour while his infant child was present and in the room; (2) while on parole he fought with police: in which he had to be Tasered to be subdued, (3) after he was detained, police had to utilize a spit hood to protect themselves from his spitting (while he was on parole for previously spitting on first responders), and (4) the record suggests that Defendant apparently ingested alcohol prior to the incident which likely inhibited his ability to control his behavior (and also violated his parole). Because the record established that the police did not receive significant injury, we understood the verdict and gave the Defendant its benefit. However, we also note that the jury's verdict was a gift, as the record credibly established that the Defendant was guilty of aggravated assault for fighting with the police and spitting on the police. In addition, he had a prior record for violence and his history also suggested that he was not amenable for supervision while on the street or while in custody of law enforcement. Specifically, the Defendant's Pre-Sentence Investigation noted that Defendant had 6 convictions: simple assault, Easton Pa. 1998; simple assault and terroristic threats, N.J. 1999; Robbery Easton Pa. 2002; Possession of drugs on school property, N J. 2003; Battery - Domestic Violence, F.la. 2015; Aggravated Harassment, Easton Ba., 2017 - for a PRS of 4. The Defendant was also convicted of parole violations in Pennsylvania in 2000, 2002, 2004, and 2018 and in New Jersey in 2000 and 2005. For the above reasons, we believed 'that consecutive standard range sentences were in order which, would require state prison where his significant treatment needs could be meet, Defendant's only argument is his claim that his sentences should have been run concurrent, As such it is an attack on the discretionary aspects of our sentence. In his Motion, Defendant Bender asserts that the decision to run his sentences consecutive "was clearly unreasonable because the court failed to take into account the gravity of the offenses arid the rehabilitative needs of Bender, as mandated by 42 Pa.C.S.A. §9721(b)" Defendant's Post-Sentence Brief p. 16. We disagree. Our sentencing transcript addresses, with significant detail, the reasoning and support for our sentence, "It is well-settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal." See Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa.Super.2013). It is also well settled that the sentencing judge has the discretion to determine whether to impose concurrent or consecutive sentences to other sentences then imposed. See Commonwealth v. Mastromarino, 2 A.3rd 581, 588-589 (Pa, Super. 2010), appeal denied 14 A.3rd 825 (Pa. 2011). Imposing consecutive sentences, by itself does not present a substantial question concerning the discretionary aspects of sentencing. Id.; Commonwealth v. Zirkle, 107 A.3d 127, 134 (Pa. Super 2014) (defendant is not entitled to a "volume discount because the various crimes occurred in one continuous spree."); See also Commonwealth v. Gonzalez-Dejesus, 994 A.2d. 595, 599 (Pa.Super. 2010). Finally, to pursue an appeal on the discretionary aspects of a sentence, the appellant must satisfy a four-part test; (1) file a timely notice of appeal; (2) properly preserve claim at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there: is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162, 170(Pa.Super.2010).
Defendant's criminal conduct included three separate and distinct .crimes: Strangulation, Simple Assault, and Institutional Vandalism. Thus, separate, consecutive sentences for these crimes is not so manifestly excessive as to raise a substantial question. Zirkle:, supra.
A challenge to concurrent versus consecutive, by itself does not raise a substantial question, Our analysis suggests that the Defendant has failed to raise a substantial question to our sentence, as Defendant's preference for a concurrent sentence does not carry Iris burden.
Finally, we feel compelled to note that we were not required to merge our sentences.
Regarding the concept of the merger of sentences, the General Assembly has directed that:
See 42 Pa.C.S, A, § 9765 (emphasis added).No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense,
Commonwealth v. Baldwin, 985 A.2d 830, (Pa, 2009), also noted:
Id. at 837.A plain language interpretation of Section 9765 reveals the General Assembly's intent to preclude the courts of this Commonwealth from merging sentences for two offenses that are based on a single criminal act unless all of the statutory elements of one of the offenses are included in the statutory elements of the other,
Our Courts have long held that where a defendant commits multiple distinct criminal acts, concepts of merger do not apply, See Commonwealth v. Calhoun, 52 A.3d 281 (Pa. Super 2012) (Simple Assault and Recklessly Endangering Another Person do not merge, even when arising out of the same facts, because the elements are different).
Even this Defendant must admit that the assault on his paramour and his act of urinating in the police cell are separate and distinct crimes regarding not only the elements of the crime, but also as to time and place, With regard to the simple assault and the strangulation, the charges have entirely different elements and each, is supported by different action by Defendant, The relevant element for establishing strangulation in this ease is applying pressure to the throat or neck while the elements for simple assault are attempts to cause or intentionally causes bodily injury to another. It is clear that the legislature was careful to delineate elements, requiring separate facts for each crime. A review of this record, establishes that the convictions for strangulation and simple assault involved both different elements and different action- the pushing, hitting, and beating the victim for simple assault and the separate strangulation of the victim. Further, the act of strangulation exposed the victim to death or fear of death or other more serious injury than, the simple beating.
Also, to point to the illogic of Defendant's argument that we were in error when we: gave separate sentences for simple assault and strangulation we make this comparison: The beating and strangulation are different acts and different crimes, just as during a sex assault, rape and involuntary deviant sexual intercourse are different crimes. The sentences contain both different elements and different actions, as such they are not required to be merged.
STEPHEN G. BARATTA, J.