Opinion
J-S36022-18 No. 1202 EDA 2017
11-27-2018
COMMONWEALTH OF PENNSYLVANIA v. TEVIN THOMAS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 11, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014120-2014, CP-51-CR-0014121-2014 BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY DUBOW, J.:
Appellant, Tevin Thomas, appeals from the Judgment of Sentence of 20 to 40 years' incarceration imposed after a jury convicted him of two counts each of Attempted Murder and Aggravated Assault, and one count each of Carrying a Firearm Without a License and Carrying a Firearm in Public in Philadelphia. Appellant challenges the sufficiency and weight of the evidence in support of his convictions, and the discretionary aspects of his sentence. After careful review, we affirm on the basis of the trial court's September 12, 2017 Pa.R.A.P. 1925(a) Opinion.
18 Pa.C.S. §§ 901(a); 2502(a); 2702(a); 6106(a)(1); and 6108, respectively. The Commonwealth also charged Appellant with two counts of each of Simple Assault and Recklessly Endangering Another Person, but nolle prossed those charges before trial. 18 Pa.C.S. §§ 2701 and 2705, respectively.
The relevant facts, as gleaned from the certified record, are as follows. On March 25, 2014, at around 5:30 PM, Philadelphia Police Officers Christopher Daukaus, Michael Inemer, George Lane, and Stephen Murray were responding to an incident on the 4800 block of Palethorp Street in Philadelphia when they heard gunshots nearby, coming from the direction of the intersection of Louden and Mascher Streets. The officers ran towards the gunshots, and, at the intersection of Palethrop and Louden Streets, met two armed men, later identified as Paris Nicholson and Demetrius Dickens.
Dickens complied with police orders to drop his weapon, and Officers Murray and Inemer placed him under arrest. Dickens told police that he and Nicholson had been fleeing a shooting at the corner. Officers Daukus and Lane followed Nicholson as he attempted to escape. While in flight, Nicholson turned and shot at the officers. Officer Lane returned fire, exchanging approximately 15 to 20 shots with Nicholson. The officers then apprehended Nicholson and placed him under arrest. Police recovered firearms from both Nicholson and Dickens.
The Commonwealth prosecuted Nicholson and Dickens both of whom pleaded guilty to multiple offenses arising from this incident.
A witness reported to Officers Daukus and Lane that a man had been shot around the corner, on Mascher Street. Officer Lane proceeded there, and he and additional officers began looking for the unidentified injured male.
Officer Lane discovered an injured man, later identified as Appellant, sitting on a wall at 4761 Mascher Street. Officer Lane also recovered a Glock .9 millimeter semi-automatic pistol with an extended, 33-shot magazine from the real wheel well of a nearby minivan. Police arrested Appellant at the scene and an ambulance transported him to the hospital to obtain treatment for a gunshot wound on his leg.
Appellant's jury trial on the above charges commenced on January 5, 2016. At trial, the Commonwealth presented the testimony of eye witnesses Carlos Cruz, Adalia Carlton, Robert Fuentes, and Luis Miranda; Officers Lane, Daukaus, and Inemer; Officer Peter Brendlmaier, one of the patrol officers dispatched to the incident; Officer Raymond Andrejczak, a member of the Firearms Identification Unit; Officer Robert Flade, a member of the Crime Scene Unit; Detectives James Perfidio, Francis Green, and Glenn MacClain; Sergeant Mark Hiller; Gamal Emira, a certified forensic science and gunshot residue expert; and Bryne Strother, a certified DNA analysis and forensic expert. The court also admitted into evidence surveillance video from the area near the intersection of Louden and Mascher Streets that captured the shootout between Appellant, Nicholson, and Dickens.
Luis Miranda is also a Philadelphia police officer, but was off-duty at the time of the crime and testified as a civilian.
Appellant did not testify on his own behalf. His counsel did, however, argue in both his opening and closing arguments that Appellant had been acting in self-defense when he fired 15 shots from his extended magazine weapon.
Following trial, on January 12, 2016, the jury convicted Appellant of the above offenses. The trial court ordered Appellant to undergo a psychological evaluation and the preparation of a Presentence Investigation ("PSI") Report prior to sentencing.
On April 11, 2016, after hearing testimony and argument from counsel, and reviewing the PSI Report, the court sentenced Appellant to an aggregate term of 20 to 40 years' incarceration, including two consecutive terms in the aggravated range of 10 to 20 years' incarceration on each Attempted Murder conviction. Appellant filed a Post-Sentence Motion on April 19, 2016, in which he challenged the weight of the evidence, as well as the discretionary aspects of his sentence. On May 10, 2016, the court denied Appellant's Motion.
In addition, the court sentenced Appellant to a term of 2 to 4 years' and 1 to 2 years' for his Carrying a Firearm Without a License and Carrying a Firearm in Public in Philadelphia convictions, respectively. The court ordered Appellant's firearms sentences to run concurrently. Appellant's Aggravated Assault convictions merged with his Attempted Murder convictions for purposes of sentencing.
The court concluded that the deadly weapons enhancement, 204 Pa. Code § 303.17(b), applied and calculated Appellant's sentence accordingly.
Appellant initially failed to file a timely Notice of Appeal. Following the reinstatement of his direct appeal rights, however, Appellant filed the instant appeal from his Judgment of Sentence. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following three issues on appeal:
1. Is the evidence sufficient as a matter of law to support the convictions for [A]ttempted [M]urder and [A]ggravated
[A]ssault where the evidence of record did not establish beyond a reasonable doubt that [Appellant] was not justified (under 18 Pa.C.S.[] § 505?Appellant's Brief at 8-9. Sufficiency of the Evidence
2. Is the verdict of guilty with respect to the charges of [A]ttempted [M]urder and [A]ggravated [A]ssault against the weight of the evidence and so contrary to the evidence that it shocks one's sense of justice based upon the evidence of record in these matters?
3. Is the sentence imposed unduly harsh and greater than that which would be consistent with protection of the public, the gravity of [Appellant's] conduct as it relates to the impact on the life of others in the community, and the rehabilitative needs of [Appellant], and did the trial court take into account all mitigating and relevant and necessary factors to be considered by a sentencing court, as set forth in the [P]ost-[S]entence [M]otion filed by [Appellant] (including [Appellant's] age[,] rehabilitative needs, and defensive actions taken in response to the complainants' unlawful acts)?
In his first issue, Appellant challenges the sufficiency of the evidence supporting his Attempted Murder and Aggravated Assault convictions. He claims that he was acting in self-defense when he discharged his weapon. He asserts that the testimonial, video, and forensic evidence overwhelmingly establish that his actions were justifiable in response to Nicholson's and Dickens's attempts to kill him. Id. at 29. He avers that "simply distancing himself from Dickens and Nicholson was, in fact, insufficient to protect [himself] from the serious bodily injury which that pair was actively trying to inflict upon him with their handguns." Id. at 31. He infers from the fact that Nicholson emptied his gun and Dickens fired 22 of 23 rounds that the men "were determined to continue their assault until completely prevented from doing so[,]" and that, therefore, the force he used was necessary to protect himself against death or serious bodily injury. Id.
Appellant relies on the justification statute set forth in our Crimes Code that permits the "use of force upon or toward another person . . . when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force[.]" 18 Pa.C.S. § 505(a). In Commonwealth v. Torres , 766 A.2d 342 (Pa. 2001), our Supreme Court explained:
The use of force against a person is justified when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person. See 18 Pa.C.S. § 505(a). When a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove such a defense beyond a reasonable doubt. While there is no burden on a defendant to prove the claim, before the defense is properly at issue at trial, there must be some evidence, from whatever source, to justify a finding of self-defense. If there is any evidence that will support the claim, then the issue is properly before the fact finder.Id. at 345 (some citations omitted).
To disprove a self-defense claim, the Commonwealth is required to prove at least one of the following: "1) the accused did not reasonably believe that he was in danger of death or serious bodily injury; or 2) the accused provoked or continued the use of force; or 3) the accused had a duty to retreat and the retreat was possible with complete safety." Commonwealth v. Hammond , 953 A.2d 544, 559 (Pa. Super. 2008).
In connection with his sufficiency challenge, Appellant avers that, since he acted for the permitted purpose of self-defense, the Commonwealth failed to offer sufficient evidence supporting his Attempted Murder and Aggravated Assault convictions. Appellant's Brief at 26.
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). "We review claims regarding the sufficiency of the evidence by considering 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." Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and citations omitted). "Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence." Id. "In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder." Id.
Appellant challenges his convictions of Attempted Murder and Aggravated Assault. Under the Crimes Code, a defendant "commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S. § 901(a).
"A person may be convicted of attempted murder 'if he takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such an act.'" Commonwealth v. Dale , 836 A.2d 150, 153 (Pa. Super. 2003) (citations omitted). See 18 Pa.C.S. §§ 901, 2502. "The substantial step test broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before the actual commission of the crime." Commonwealth v. Gilliam , 417 A.2d 1203, 1205 (Pa. Super. 1980). "The mens rea required for first-degree murder, specific intent to kill, may be established solely from circumstantial evidence." Commonwealth v. Schoff , 911 A.2d 147, 160 (Pa. Super. 2006). "[T]he law permits the factfinder to infer that one intends the natural and probable consequences of his acts[.]" Commonwealth v. Gease , 696 A.2d 130, 133 (Pa. 1997). "The offense of attempt with intent to kill is completed by the discharging of a firearm at a person with intent to kill, despite the fortuitous circumstances that no injury is suffered." Commonwealth v. Mapp , 335 A.2d 779, 781 (Pa. Super. 1975).
Under Pennsylvania law, "a person is guilty of aggravated assault if he . . . attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly[,] or recklessly under circumstances manifesting extreme indifference to the value of human life[.]" 18 Pa.C.S. § 2702(a)(1). Intent to cause serious bodily injury can be proven by wholly circumstantial evidence, and may be inferred from acts or conduct, or from attendant circumstances. Commonwealth v. Holley , 945 A.2d 241, 247 (Pa. Super. 2008).
The Honorable Charles A. Ehrlich, who presided over the proceedings in this case, has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record, including the Notes of Testimony, as well as the relevant case law, in addressing Appellant's challenge to the sufficiency of the evidence and his unsuccessful self-defense claim. After a careful review of the parties' arguments and the record, we adopt the trial court's Opinion as to this issue as our own, and conclude that Appellant's first issue warrants no relief. See Trial Ct. Op., 9/12/17, at 3-11 (concluding, based on the extensive evidence, that: (1) the Commonwealth presented sufficient evidence to support Appellant's convictions of Attempted Murder and Aggravated Assault; and (2) the jury reasonably inferred from the evidence, evaluated in the light most favorable to the Commonwealth, that Appellant "provoked or continued the use of force, when he continued firing at" Nicholson and Dickens, and that Appellant could have safely retreated but failed to do so). Weight of the Evidence
In his second issue, Appellant challenges the weight of the evidence supporting his Attempted Murder and Aggravated Assault convictions.
A trial court will not grant relief on a weight of the evidence claim unless the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. West , 937 A.2d 516, 521 (Pa. Super. 2007). An appellate court will not substitute its assessment of credibility for that of the finder of fact. Commonwealth v. Manley , 985 A.2d 256, 262 (Pa. Super. 2009).
Further, this Court may not consider the underlying question of whether the verdict is against the weight of the evidence; instead, we are limited to evaluating only the trial court's exercise of discretion in denying that claim. Commonwealth v. Morales , 91 A.3d 80, 91 (Pa. 2014). As our Supreme Court has made clear, reversal is only appropriate "where the facts and inferences disclose a palpable abuse of discretion[.]" Id. (citations omitted, emphasis in original). The trial court's denial of a weight claim is the least assailable of its rulings. Commonwealth v. Diggs , 949 A.2d 873, 879-80 (Pa. 2008). See Commonwealth v. Morgan , 913 A.2d 906, 909 (Pa. Super. 2006) (stating that because the trial court is in best position to view the evidence presented, an appellate court will give that court "the utmost consideration" when reviewing its weight determination).
Judge Ehrlich's Opinion as to Appellant's weight of the evidence claim is comprehensive, thorough, and well-reasoned. Thus, after a careful review of the parties' arguments and the record, we adopt the trial court's Opinion as to this issue as our own, and conclude that Appellant's weight claim warrants no relief. See Trial Ct. Op. at 11-13 (concluding that the jury's decision to credit the testimony of the various civilian and expert witnesses and police officers, and to rely on the physical evidence, does not "shock one's sense of justice"). Discretionary Aspects of Sentencing
In his final issue, Appellant challenges the imposition of an aggregate aggravated range sentence. This claim challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right, and a challenge in this regard is properly viewed as a petition for allowance of appeal. See 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki , 522 A.2d 17, 18 (Pa. 1987); Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging the discretionary aspects of his sentence must satisfy a four-part test. We evaluate: (1) whether Appellant filed a timely notice of appeal; (2) whether Appellant preserved the issue at sentencing or in a motion to reconsider and modify sentence; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the Sentencing Code. Commonwealth v. Carrillo-Diaz , 64 A.3d 722, 725 (Pa. Super. 2013). "An appellant must articulate the reasons the sentencing court's actions violated the [S]entencing [C]ode." Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010).
Here, Appellant timely appealed from his Judgment of Sentence and he preserved his challenge to the discretionary aspects of his sentence in a Post-Sentence Motion and in a Pa.R.A.P. 2119(f) Statement in his Brief to this Court. Thus, we consider whether Appellant has presented this Court with a substantial question for review.
It is well-settled that:
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. 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.Moury , 992 A.2d at 170 (citation and quotation marks omitted).
Appellant concedes that his sentence is within the guideline range but claims that it is excessive because the court sentenced him to aggravated range sentences for his Attempted Murder convictions even though it had already applied the deadly weapons sentencing enhancement. He also challenges the imposition of consecutive, rather than concurrent, sentences for his Attempted Murder convictions. Appellant's Brief at 44, 48. He also asserts that the aggravated range sentence is excessive because the court failed to take into consideration mitigating factors. Id. at 52.
With regard to the imposition of consecutive sentences, this Court has held:
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)[(en banc)].Commonwealth v. Swope , 123 A.3d 333, 338-39 (Pa. Super. 2015) (quotation omitted and emphasis in original).
[An appellant] 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.
In the case sub judice, Appellant's challenge to the imposition of consecutive sentences does not raise a substantial question permitting our review. Mastromarino , 2 A.3d at 587. Thus, we decline to review its merits.
However, "[w]e have held that a substantial question is raised where an appellant alleges the sentencing court erred by imposing an aggravated range sentence without consideration of mitigating circumstances." Commonwealth v. Bowen , 55 A.3d 1254, 1263 (Pa. Super. 2012). Thus, we have reviewed the merits of Appellant's claim that his aggravated range sentence imposed was excessive and an abuse of the trial court's discretion.
After a careful review of the parties' arguments and the record, we conclude that this issue warrants no relief, and we adopt the trial court's comprehensive Opinion as to this issue as our own. See Trial Ct. Op at 15-18 (explaining that the court considered factors including the PSI Report, mental health report, Appellant's age, prior criminal history, rehabilitative needs, and alleged defensive actions when sentencing him, and concluding that Appellant's sentence did not violate the fundamental norms underlying the sentencing process).
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/27/18
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