Opinion
J-S30041-17 No. 1197 MDA 2016
06-16-2017
COMMONWEALTH OF PENNSYLVANIA v. LEONARDO J. MOJICA-CARRION, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 22, 2014 in the Court of Common Pleas of Berks County, Criminal Division, No(s): CP-06-CR-0005210-2013 BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Leonardo J. Mojica-Carrion ("Mojica-Carrion") appeals, nunc pro tunc, from the judgment of sentence entered following his conviction of one count each of first-degree murder, aggravated assault, robbery, firearms not to be carried without a license, and three counts of criminal conspiracy. We affirm.
See 18 Pa.C.S.A. §§ 2502(a), 2702, 3701, 6106, 903.
The trial court concisely summarized the testimony underlying Mojica-Carrion's conviction as follows:
Estiben Manso [("Manso")] testified that he ran into [Mojica-Carrion,] at a corner store[,] at approximately 8:15 or 8:20 P.M. on September 20, 2013. [Mojica-Carrion] told [] Manso that he had a gun that he had not used yet[, and] that he wanted to use to get some money to pay his rent. [] Manso agreed to help [Mojica-Carrion], and met [Mojica-Carrion] at [Mojica-Carrion's] house at approximately 9:00 P.M. [Mojica-Carrion] and [] Manso walked toward a bar called La Rienda. Then, according to [] Manso, they saw a man exit the bar[,] who was talking on a phone[,] and decided to follow him. Eventually,
[Mojica-Carrion] approached the victim, and after getting the victim's attention, shot the victim when he attempted to run away.Trial Court Opinion, 11/3/16, at 3-4.
A jury convicted Mojica-Carrion of the above-described charges. Subsequently, the trial court sentenced Mojica-Carrion to life in prison for his conviction of first-degree murder. For his conviction of robbery, the trial court sentenced Mojica-Carrion to a consecutive prison term of 7 to 20 years. For his conviction of conspiracy, the trial court imposed a consecutive prison term of 5½ to 20 years. Finally, for his conviction of firearms not to be carried without a license, the trial court sentenced Mojica-Carrion to a consecutive prison term of 2 to 7 years. Thus, in addition to life in prison, the trial court sentenced Mojica-Carrion to an additional aggregate prison term of 14½ -47 years in prison.
Mojica-Carrion filed untimely Post-Sentence Motions, and thereafter, a Notice of Appeal. This Court quashed Mojica-Carrion's appeal as untimely filed. See Commonwealth v. Mojica-Carrion , 1672 MDA 2014 (Pa. Super. filed March 30, 2015) (Order). Mojica-Carrion filed a Petition for relief pursuant to the Post Conviction Relief Act ("PCRA"). The PCRA court granted Mojica-Carrion's Petition, and reinstated Mojica-Carrion's right to file post-sentence motions and a notice of appeal, nunc pro tunc. Mojica-Carrion subsequently filed Post-Sentence Motions, which the trial court denied. Thereafter, Mojica-Carrion timely filed the instant appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
42 Pa.C.S.A. §§ 9541-9546. --------
Mojica-Carrion presents the following claims for our review:
A. Whether the trial court erred in denying [Mojica-Carrion's] Post[-]Sentence Motion challenging the weight of the evidence where (a) the only eyewitness to the alleged shooting, [] Manso, was an admitted liar[;] and (b) where [] Manso's testimony was purely self-serving and the product of the preferential treatment provided by the prosecution?Brief for Appellant at 5 (some capitalization omitted).
B. Whether the trial court erred in denying [Mojica-Carrion's] Post[-]Sentence Motion seeking to modify the imposition of consecutive sentences?
Mojica-Carrion first claims that the trial court abused its discretion when it denied his Post-Sentence Motion challenging the verdict as against the weight of the evidence. Id. at 12. Mojica-Carrion asserts that "[t]he central issue in this case revolved around the credibility of the Commonwealth witness, co-defendant, and admitted liar—[] Manso." Id. at 14. According to Mojica-Carrion, Manso's testimony was not credible, "because of the motives and machinations behind it." Id. Mojica-Carrion argues that the trial court improperly ignored Manso's repeated trial testimony about lying to police. Id. Further, Mojica-Carrion argues that Manso only changed his story when he became aware that police officers had video surveillance of the co-defendants together. Id. Mojica-Carrion insists that Manso's testimony is "so evasive and so full of lies that nothing he said can be believed." Id. at 15. Mojica-Carrion refers to other alleged lies by Manso. See id. at 15-16. Mojica-Carrion also points out that Manso knew he was facing an adult charge of murder, and testified at trial so that the Commonwealth would prosecute him in juvenile court. Id. at 16.
In its Opinion, the trial court addressed Mojica-Carrion's challenge to the verdict as against the weight of the evidence, and concluded that it lacks merit. See Trial Court Opinion, 11/3/16, at 2-4. We agree with the sound reasoning of the trial court, and discern no abuse of discretion or error of law. See id. Accordingly, we affirm on the basis of the trial court's Opinion with regard to this claim. See id.
In his second claim, Mojica-Carrion challenges the discretionary aspects of his sentence. Brief for Appellant at 18. An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test to determine
(1) whether the 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 the 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. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (quotation marks and some citations omitted).
Here, Mojica-Carrion was permitted to file this appeal nunc pro tunc. Mojica-Carrion preserved his claim by means of his Post-Sentence Motion. Mojica-Carrion has complied with Pa.R.A.P. 2119(f), by including in his appellate brief a Statement of reasons relied upon for allowance of appeal. Accordingly, we proceed to address whether Mojica-Carrion has presented a substantial question.
A court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Commonwealth v. Mastromarino , 2 A.3d 581, 587 (Pa. Super. 2010). Rather, the imposition of consecutive rather than concurrent sentences will present a substantial question in only "the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment." Commonwealth v. Lamonda , 52 A.3d 365, 372 (Pa. Super. 2012).
To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.Commonwealth v. Dodge , 77 A.3d 1263, 1270 (Pa. Super. 2013) (emphasis omitted).
Here, Mojica-Carrion argues that the trial court imposed unduly punitive and "unfairly excessive" sentences, by imposing his sentences for robbery, aggravated assault and conspiracy consecutively to his sentence for first-degree murder. Brief for Appellant at 19. In support, Mojica-Carrion points out that he had no prior record; he was in his early twenties at sentencing; and is facing potentially "three-quarters of a century of incarceration until he passes away in prison." Id. at 18-19. Mojica-Carrion contends that these sentences were "wholly unnecessary and punitive." Id. Basically, Mojica-Carrion argues that by imposing consecutive sentences, where one sentence is for life in prison, the trial court abused its discretion, and imposed a manifestly excessive sentence. Id. at 20. We conclude that Mojica-Carrion has raised a substantial question. See Dodge , 77 A.3d 1270 (recognizing that a "critical distinction [exists] between a bald excessiveness claim based on imposition of consecutive sentences and an argument that articulates reasons why consecutive sentences in a particular case are unreasonable.").
In its Opinion, the trial court addressed Mojica-Carrion's claim and concluded that it lacks merit. See Trial Court Opinion, 11/3/16, at 4-6. We agree with the sound reasoning of the trial court, as expressed in its Opinion, and affirm on this basis with regard to Mojica-Carrion's sentencing challenge. See id. Accordingly, we affirm Mojica-Carrion's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/16/2017
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