Opinion
J-S62039-16 No. 63 MDA 2016
11-15-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. IVAN T. HOLLOWAY, SR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 16, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005408-2014 BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Ivan T. Holloway, Sr., appeals from the judgment of sentence entered in the Dauphin County Court of Common Pleas, following his jury trial convictions of three counts of burglary and one count each of flight to avoid apprehension and attempted burglary. We reverse Appellant's conviction for flight to avoid apprehension and affirm the remaining convictions. Because reversal of the conviction for flight to avoid apprehension will not upset the overall sentencing scheme, however, we decline to remand for resentencing; and, we affirm the judgment of sentence.
18 Pa.C.S.A. §§ 3502, 5126, and 901, respectively.
The trial court opinion fully sets forth the relevant facts of this case. Therefore, we will only briefly summarize them. On September 20, 2014, a neighbor observed Appellant removing items from the garage of 1614 Herr Street, in a cart, and reported Appellant's behavior to police. While responding to the burglary complaint, police encountered and attempted to initiate contact with Appellant, who matched the complaint description and was walking with a cart containing various items. When police directed him to stop, Appellant abandoned the cart and ran from police. Police pursued Appellant to the rear of the residence at 236 North 15th Street, where an officer drew his firearm and commanded Appellant to stop. Appellant continued to run from police and unsuccessfully attempted to enter 236 North 15th Street by throwing his body into the back door, which Appellant dented. Appellant then entered two residences, 238 and 240 North 15th Street, before police detained him. While inside 238 North 15th Street, Appellant removed a clothes washer and dryer from the wall to barricade a door. Appellant also damaged a window in 240 North 15th Street. Appellant did not have permission to enter the garage or the North 15th Street homes. The owner of 1614 Herr Street identified as hers the items police recovered from the cart Appellant had abandoned.
On September 20, 2014, the Commonwealth charged Appellant with several counts of burglary and related offenses. Following a three-day trial, on October 28, 2015, a jury found Appellant guilty of three counts of burglary and one count each of flight to avoid apprehension and attempted burglary. With the benefit of a pre-sentence investigation ("PSI") report, the court held a sentencing hearing on December 16, 2015. At the conclusion of the hearing, the court sentenced Appellant to twelve (12) to sixty (60) months' imprisonment for the burglary of the 1614 Herr Street garage; six (6) to twenty (20) years' imprisonment for the burglary of 240 North 15th Street consecutive to the term for the garage burglary; and two concurrent terms of eighteen (18) to thirty-six (36) months' imprisonment each for the attempted burglary of 236 North 15th Street and the burglary of 238 North 15th Street, concurrent with the sentence for the 240 North 15th Street burglary. The court imposed no sentence on the flight to avoid apprehension count. In total, the court sentenced Appellant to an aggregate term of seven (7) to twenty-five (25) years' incarceration.
Appellant timely filed an amended post-sentence motion on December 22, 2015, which the court denied on December 31, 2015. Appellant timely filed a notice of appeal on January 8, 2016. On January 19, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on January 28, 2016.
The certified record does not indicate when Appellant filed his original post-sentence motion.
Appellant raises three issues for our review:
WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT'S POST-SENTENCE MOTION WHERE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE SO AS TO SHOCK ONE'S SENSE OF JUSTICE WHERE THE COMMONWEALTH NEVER SHOWED THAT...APPELLANT ENTERED THE GARAGE OF 1614 HERR STREET AND THEREFORE COMMITTED THE CRIME OF BURGLARY?(Appellant's Brief at 8).
WHETHER THE COMMONWEALTH FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN APPELLANT'S CONVICTIONS WHERE THE COMMONWEALTH DID NOT PROVE THAT APPELLANT FLED TO AVOID APPREHENSION ON A PREVIOUS CHARGE OR CONVICTION, NOR DID [IT] PROVE THAT APPELLANT INTENDED TO COMMIT A CRIME IN ANY OF THE HOUSES ON NORTH 15TH STREET, PRIOR TO ENTERING?
WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S POST-SENTENCE MOTION WHERE HIS SENTENCE IS EXCESSIVE AND UNREASONABLE AND CONSTITUTES TOO SEVERE A PUNISHMENT IN LIGHT OF APPELLANT'S REHABILITATIVE NEEDS, THE GRAVITY OF THE OFFENSE, AND WHAT IS NEEDED TO PROTECT THE PUBLIC?
For the purposes of our disposition, we have reordered Appellant's issues.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable William T. Tully, we conclude Appellant's weight issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed March 7, 2016, at 3-6, 11) (finding: owner of 1614 Herr Street testified she did not give Appellant permission to enter garage, and items in Appellant's cart were hers; neighbor of 1614 Herr Street testified he had observed Appellant removing items from garage and called police; responding officer encountered Appellant, who matched complaint description, with cart containing various items; trying to evade police, Appellant unsuccessfully attempted to enter one home and successfully entered two other homes on North 15th Street; weight of evidence supports jury's findings). The record supports the court's reasoning; therefore, we have no reason to disturb it. Accordingly, we affirm as to Appellant's weight claim on the basis of the trial court opinion.
In his second issue, Appellant argues the Commonwealth failed to present evidence at trial to demonstrate Appellant had previously been charged with or convicted of an offense, from which Appellant fled on September 20, 2014. Appellant submits the evidence at trial was insufficient to support his conviction for flight to avoid apprehension. Appellant contends the Commonwealth failed to present evidence that Appellant had intended to commit a crime inside the North 15th Street homes, other than to run from the police. Because the evidence was insufficient to support his conviction for flight to avoid apprehension, Appellant asserts the evidence was also insufficient to support his convictions for the three North 15th Street burglaries. Appellant concludes this Court should vacate his convictions for flight to avoid apprehension, attempted burglary of 236 North 15th Street, and burglary of 238 North 15th Street and 240 North 15th Street, respectively. We agree in part.
With respect to a sufficiency claim:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, 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. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).
The Crimes Code defines the offense of flight to avoid apprehension, trial or punishment, as follows:
§ 5126. Flight to avoid apprehension, trial or punishment
(a) Offense defined.—A person who willfully conceals himself or moves or travels within or outside this Commonwealth with the intent to avoid apprehension, trial or punishment commits a felony of the third degree when the crime which he has been charged with or has been convicted of is a felony and commits a misdemeanor of the
second degree when the crime which he has been charged with or has been convicted of is a misdemeanor.18 Pa.C.S.A. § 5126. This Court has stated:
(b) Exception.—Subsection (a) shall not apply to a person set at liberty by court order who fails to appear at the time or place specified in the order.
[T]he plain language of the statute requires that the defendant intend to avoid apprehension, trial or punishment. ... [N]othing in the statutory language requires that police have knowledge of the underlying charge or conviction. It is sufficient for the defendant to intentionally elude law enforcement to avoid apprehension, trial or punishment on a charge or conviction.Commonwealth v. Steffy , 36 A.3d 1109, 1111-12 (Pa.Super. 2012). The statute requires the defendant to have been previously charged with or convicted of a crime at the time the defendant fled. Commonwealth v. Phillips , 129 A.3d 513, 518-19 (Pa.Super. 2015).
The burglary statute provides, in relevant part, as follows:
§ 3502. Burglary
(a) Offense defined.—A person commits the offense of burglary if, with the intent to commit a crime therein, the person:
(1) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present;
(2) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense no person is present;
* * *
18 Pa.C.S.A. § 3502(a)(1), (2), (4). "The Commonwealth is not required to allege or prove what particular crime a defendant intended to commit after his forcible entry into the private residence." Commonwealth v. Lambert , 795 A.2d 1010, 1022 (Pa.Super. 2002) (en banc), appeal denied, 569 Pa. 701, 805 A.2d 521 (2002) (citing Commonwealth v. Alston , 539 Pa. 202, 651 A.2d 1092, 1095 (1994)). "The intent to commit a crime after entry may be inferred from the circumstances surrounding the incident." Id.(4) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present.
As a preliminary matter, issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived for appellate review. Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775 (2005). A Rule 1925(b) statement that is not specific enough for the trial court to identify and address the issues the defendant wishes to raise on appeal may also result in waiver. Commonwealth v. Reeves , 907 A.2d 1 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007).
When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues. In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all.Id. at 2.
Instantly, Appellant did not specifically challenge the flight to avoid apprehension conviction in his Rule 1925(b) statement. Thus, Appellant's flight to avoid apprehension claim is arguably waived. See Reeves , supra. Nevertheless, in an abundance of caution, in the interest of judicial economy, and to the extent we can elicit the flight to avoid apprehension challenge from Appellant's Rule 1925(b) statement, we choose to address it on appeal. The record demonstrates, and the Commonwealth concedes, the Commonwealth presented no evidence at trial to establish that Appellant had been charged with or convicted of an offense prior to September 20, 2014, to support a flight to avoid apprehension charge. See Phillips , supra. Accordingly, we reverse Appellant's flight to avoid apprehension conviction. We observe the court did not sentence Appellant on the flight to avoid apprehension count. Accordingly, our disposition does not affect the overall sentence, and we decline to remand for resentencing on this basis.
Appellant's convictions for attempted burglary and burglary of the North 15th Street residences, however, are sound. Although the record does not establish Appellant intended to flee from apprehension when he entered the residences, the Commonwealth's failure to plead or prove what offense Appellant did intend to commit does not affect Appellant's convictions for attempted burglary and burglary of the North 15th Street residences. See Lambert , supra. Accordingly, we affirm Appellant's North 15th Street attempted burglary and burglary convictions.
In his third issue, Appellant argues his sentence is excessive because the court did not properly consider mitigating factors under 42 Pa.C.S.A. § 9721, including the gravity of the offense, Appellant's rehabilitative needs, and his history and character. Appellant submits he did not injure anyone and did not steal anything during the events in question. Appellant claims he has eight children and five grandchildren, and suffers from sarcoidosis of the lungs. Appellant submits he did not deny his actions on the day in question and evaded police out of fear. Appellant concludes the court abused its discretion by imposing an excessive sentence. Appellant's challenge is to the discretionary aspects of his sentence. See Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing). See also Commonwealth v. Dodge , 77 A.3d 1263, 1268 (Pa.Super. 2013), appeal denied, 625 Pa. 648, 91 A.3d 161 (2014) (stating argument that court disregarded factors, such as rehabilitation and nature and circumstances of offenses, implicates discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:
[W]e 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).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal 'furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.'" Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003). 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." Sierra , supra at 912-13 (quoting Commonwealth v. Brown , 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).
A claim that a sentence is manifestly excessive might raise a substantial question if the appellant's Rule 2119(f) statement sufficiently articulates the manner in which the sentence imposed violates a specific provision of the Sentencing Code or the norms underlying the sentencing process. Mouzon , supra at 435, 812 A.2d at 627. Nevertheless, as a general rule, "[a]n allegation that a sentencing court 'failed to consider' or 'did not adequately consider' certain factors does not raise a substantial question that the sentence was inappropriate." Commonwealth v. Cruz-Centeno , 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia , 653 A.2d 706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also Commonwealth v. Kane , 10 A.3d 327, 335-36 (Pa.Super. 2010), appeal denied, 612 Pa. 689, 29 A.3d 796 (2011) (stating bald claim that sentencing court "failed to consider" factors set forth in 42 Pa.C.S.A. 9721(b) does not raise substantial question). Moreover, where the sentencing court had the benefit of a PSI, the law presumes the court was aware of and weighed relevant information regarding a defendant's character along with mitigating statutory factors. Commonwealth v. Tirado , 870 A.2d 362, 366 n.6 (Pa.Super. 2005).
Instantly, Appellant's bald assertion that the court improperly weighed the mitigating factors does not raise a substantial question. See Cruz-Centeno , supra. The court had the benefit of a PSI report. ( See N.T. Sentencing Hearing, 12/16/15, at 2.) Therefore, we can presume the court considered the relevant information and mitigating factors. See Tirado , supra. Accordingly, Appellant is not entitled to relief on his challenge to the discretionary aspects of sentencing; and we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/15/2016
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