Opinion
J-S05023-19 No. 1031 WDA 2018
02-21-2019
COMMONWEALTH OF PENNSYLVANIA v. TERRANCE DUPREE LYONS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered May 24, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002082-2017 BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J. MEMORANDUM BY NICHOLS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Terrance Dupree Lyons appeals from the judgment of sentence following a bench trial and his convictions for simple assault and theft by unlawful taking. On appeal, he challenges the weight of the evidence and the discretionary aspects of his sentence. We affirm.
We adopt the trial court's facts and procedural history, which we set forth below:
On Sunday, April 9, 2017, at 7:11 a.m., Erie Police were dispatched to 2915 Pine Avenue. They were met with the victim, Ahmyish Canady, and a witness, Tashara Brewton. Canady had a bruised left eye, abrasions on her left hand and neck, and a clump of hair that had been pulled out. Canady told the officers that [Appellant], the father of her children, had just left. He came to her house at five in the morning and began arguing with her. Both Canady and Brewton told [Appellant] to leave the residence, but he refused. He punched the victim in the face and throat. He
kicked her in the eye th[e]n began dragging her through the house. He then took her cell phone before he left. [Appellant] was charged with simple assault, a second degree misdemeanor, 18 [Pa.C.S.] § 2701(a)(1), and theft by unlawful taking, a misdemeanor, 18 [Pa.C.S. §] 3921(a).Trial Ct. Op., 9/12/18, at 1-2. Appellant opted for a bench trial at which he testified, and the court found him guilty.
Following the preparation of a pre-sentence investigation report, the trial court sentenced Appellant on May 24, 2018, to one to two years' imprisonment followed by five years' probation. Appellant filed a timely post-sentence motion challenging the excessiveness of his sentence and the weight of the evidence. The court denied Appellant's motion on June 18, 2018. Appellant timely appealed and also filed a non-court-ordered Pa.R.A.P. 1925(b) statement incorporating his post-sentence motion.
Appellant raises only the following issues on appeal:
[1.] Whether the interests of justice entitle . . . Appellant to a new trial as the trial court's verdict was against the weight of the evidence such that it effectively shocked the conscience.Appellant's Brief at 4.
[2.] Whether . . . Appellant's sentence is manifestly excessive, clearly unreasonable and inconsistent with the objectives of the Sentencing Code.
We summarize Appellant's arguments for both of his issues together. Appellant contends the trial court failed to adequately weigh his credibility. Id. at 12. Appellant also highlights purported contradictions between the testimony of the victim and a Commonwealth witness. Id. He contends that the victim was the aggressor. Id. at 13. Appellant also claims that his sentence was excessive because the court failed to consider or properly consider the mitigating factors, including that his prior record score was based largely on offenses committed when he was a juvenile and the fact that Appellant and the victim were involved in a custody dispute. Id. at 15.
It 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. Soto , ___ A.3d ___, ___, 2018 WL 6816969, *11 (Pa. Super. 2018) (citation omitted).
With respect to challenges to the discretionary aspects of sentence, we state the following as guidance:
[c]hallenges 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:
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.[ ] § 9781(b).Commonwealth v. Peck , ___ A.3d ___, ___, 2019 WL 124379, *5 (Pa. Super. 2019) (quotation marks and some citations omitted). Instantly, Appellant has preserved his sentencing challenge and has raised a substantial question for our review. See id.
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.
The Peck Court explained as follows:
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 in 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.Id. at *5 (citation omitted). Furthermore:
Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A presentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed.Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988). Therefore, "[w]here the sentencing judge had the benefit of a pre-sentence report, it will be presumed that he was aware of relevant information regarding appellant's character and weighed those considerations along with the mitigating statutory factors." Commonwealth v. Fullin , 892 A.2d 843, 849-50 (Pa. Super. 2006).
Here, after careful review of the record, the parties' briefs, and the well-reasoned decision of the trial court, we affirm on the basis of the trial court's opinion. See Trial Ct. Op., 9/12/18, at 2-7. We perceive no abuse of discretion by the trial court in its disposition of Appellant's sentencing claim given its review of, among other items, the pre-sentence investigation report, see Peck , 2019 WL 124379, *5, and weight claim. See Soto , 2018 WL 6816969 at *11. For these reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/21/2019
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