Com. v. Sexton, S.
Pa. Super. Ct.
J-A19037-19
2019 PA Super 325
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN SEXTON :
:
Appellant : No. 75 EDA 2018
Appeal from the Judgment of Sentence December 14, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-00007512016
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED OCTOBER 28, 2019
Appellant Sean Sexton appeals from the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County on December 14, 2017,
following his convictions of Intimidation of Witnesses or Victims, Terroristic
Threats with Intent to Terrorize Another and Stalking.1 We affirm.
The trial court aptly set forth the relevant procedural history and facts
herein as follows:
PROCEDURAL HISTORY
Between May of 2015 and May of 2016, [Appellant] was
arrested and charged with various offenses under four separate
Bills of Information. At CP-51-CR-0005229- 2015, [Appellant] was
arrested on May 4, 2015, and charged with, inter-alia, Rape by
Forcible Compulsion1 and numerous other related offenses. At CP-
51-CR-0011605-2015, [Appellant] was arrested on August 5,
2015, and charged with Simple Possession.2 At CP-51-CR-
0000751-2015, [Appellant] was arrested on November 17, 2015,
and charged with 1) Intimidation of Witnesses or Victims,3 2)
____________________________________________
1 18 Pa.C.S.A. §§ 4952; 2706(a)(1) and 2709.1, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A19037-19
Terroristic Threats with Intent to Terrorize Another4, and 3)
Stalking.5 At CP-51-CR-0010608-2016, [Appellant] was arrested
on May 16, 2016, and charged with Forgery.6
On May 18, 2017, by agreement of counsel,7 [Appellant]
proceeded to trial only on the two bills of information relating to
the charges of rape and witness intimidation.8 At the conclusion
of his waiver trial, on May 19, 2017, [Appellant] was found guilty
on the charges of witness intimidation, terroristic threats and
stalking. [Appellant] was found not guilty on all rape related
charges.
Prior to the commencement of his sentencing hearing on
September 21, 2017, [Appellant] entered into non-negotiated
pleas of guilty on the remaining open charges of simple possession
and forgery.9 At the conclusion of his sentencing hearing,
[Appellant] was sentenced to a period of confinement in a state
correctional facility of 7 to 15 years on the charge of witness
intimidation followed by five years[’] probation. On charges of
terroristic threats, stalking, simple possession and forgery
[Appellant] was sentenced to concurrent periods of probation of 5
years each, to be served consecutively to his period of
confinement, for an aggregate period of confinement of 7 to 15
years followed by 5 years[’] probation.
On September 25, 2017, [Appellant] timely filed a Motion
for Post Sentence Relief pursuant to the Pennsylvania Rules of
Criminal Procedure, Pa.R.Crim.P. 720(A)(1), seeking an arrest of
judgement, [sic] a new trial, or, in the alternative, a
reconsideration of his sentence pursuant to Pa.R.Crim.P.
720(B)(1)(a)(ii), (iv) and (v). The [c]ourt, after a hearing held on
December 14, 2017, denied [Appellant’s] motions seeking a new
trial. However, on considering [Appellant’s] argument, the [c]ourt
modified [Appellant’s] sentence, imposing an aggregate sentence
of 6 ½ to 13 years[’] incarceration followed by 5 years[’]
probation.
On January 2, 2018, [Appellant] timely filed the instant
appeal to the Superior Court of Pennsylvania.10 On January 8,
2018, this [c]ourt filed and served on [Appellant] an Order
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, directing [Appellant] to file and serve a Statement of
Errors Complained of on Appeal, within twenty-one days of the
[c]ourt's Order. On January 15, 2018, [Appellant] timely filed his
statement of "Matters Complained of on Appeal."
***
EVIDENCE AT TRIAL
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The complaining witness, [A.Y.],2 testified that she had been
best friends with [A.L.] since 2013, when they were both in the
ninth grade. Eventually, beginning in April of 2015, they drifted
apart when [A.L.] went to live with her aunt. During their
friendship, she frequently visited [A.L.] at her home on Reed
Street in the City of Philadelphia, which she shared with
[Appellant]. (N.T., 5/19/17, pgs. 13-17, 25)
[A.Y.] testified that, during their friendship, [A.L.] confided
in her stories of being sexually molested by [Appellant]. (N.T.,
5/19/17, pgs. 14-18) After [A.L.] eventually reported the assaults,
[A.Y.] became a witness involving charges of rape and sexual
assault against [Appellant].11 On April 28, 2015, as part of their
investigation into the sexual assault charges, she gave a formal
statement to the Special Victims Unit of the Philadelphia Police
Department, with regard to their conversations. (N.T., 5/19/17,
pgs. 13, 14, 18, 40)
Subsequently, in October of 2015, [A.Y.] testified that, as
she approached her normal bus stop on her way to school, she
encountered "Graffiti" reading; "[A.L.] is lying about rape." (N.T.,
5/19/17, pgs. 21, 24, 46) After this incident, a school friend texted
her a picture of "Graffiti" written on the bench at her bus stop,
again reading: "[A.L.] is lying about rape." In addition to these
two pieces of "Graffiti," she encountered a third piece, written on
a trashcan at the bus stop, reading; "Kill Squill." She testified that
"Squill" is a "nickname me and [A.L.] had that we called each
other. It's in SpongeBob" and that [Appellant] was aware of this.
(N.T., 5/19/17, pgs. 21-23, 43, 44, 47, 48)
She also testified that this stop was known to [Appellant],
as he "did see me at the 25 bus stop before. He was walking past.
He said some of his friends lived near there." (N.T., 5/19/17, pg.
42) She also testified that, being scared by the "Graffiti," she told
her mother, who then called the police to report it. (N.T., 5/19/17,
pgs. 46, 49, 50)
[A.L.], testified that, after her father's death in 2010,
[Appellant] was appointed as a co-guardian and moved into the
family home to care for her and her brother. (N.T., 5/18/17, pgs.
49-52, 96) She continued to live in the home with [Appellant] until
April of 2015, when she eventually told her aunt that she had been
sexually abused by [Appellant]. (N.T., 5/18/17, pgs. 62, 65)
____________________________________________
2 To protect the identity of the victim who was a minor at the time, we have
replaced her name and that of her friends and relatives with initials or other
generic labels throughout this Opinion.
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[A.L.] testified that, commencing in 2013, she began
confiding the details of this abuse, in [A.Y.]. (N.T., 5/18/17, pgs.
61, 62) She also testified that [A.Y.] had been to her house
multiple times and was well known to [Appellant] (N.T., 5/18/17,
pg. 77)
Although she did not personally see the "Graffiti," she
testified that [Appellant] "was big into graffiti," they had "spray
painted my walls" and that she was familiar with and knew
[Appellant’s] handwriting. Comparing the photographs of the
"graffiti" to a note previously written to her by [Appellant], she
identified the writing in the "Graffiti" as that of [Appellant]. (N.T.,
5/18/17, pg. 72, 73, 75, 78, 135-137, 139)
She also testified that she did not use the bus stop where
the "Graffiti" was found, stating that it is used by [A.Y.] every day
to go to school. She also identified "Squill" as "a term of
endearment. It's a nickname me and my friend had come up
[with] for each other. It's actually silly. We were really young, it
was freshman year. It's from SpongeBob, Squilliam." It was a
nickname she used frequently in her home, in referring to [A.Y.].
(N.T., 5/18/17, pg. 72, 73, 75, 78)
____
1 18 Pa.C.S.A. §3121(a)(1)
2 35 Pa.C.S.A. §780-113(a)(16)
3 18 Pa.C.S.A. § 4952
4 18 Pa C.S.A. §2706(a)(1)
5 18 Pa.C.S.A. § 2709.1
6 18 Pa.C.S.A. §4101
7 (N.T., 5/18/17, pgs. 9-12)
8 CP-51-CR-0005229-2015 and CP-51-CR-0000751-2015
9 CP-51-CR-0011605-2015 and CP-51-CR-0010608-2016
10 [Appellant] is only appealing his conviction at 51-CR-0000751-
2015 on the charges of witness intimidation, terroristic threats
and stalking.
11 The [c]ourt found [Appellant] not guilty of these charges at CP-
51-CR-0005229-2015
Trial Court Opinion, filed 1/23/18, at 1-6.
In his appellate brief, Appellant raises the following Statement of the
Questions Presented:
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1. Were the verdicts for Intimidation of a Witness [18 Pa.C.S.A.
4952], Terroristic Threats [18 Pa.C.S.A. 2706] and Stalking [18
Pa.C.S.A. 2709.1] against the weight of the evidence? Did the
evidence not support the conclusion that [Appellant] wrote the
supposed threats? Was the verdict based on highly speculative
and contradictory evidence and not supported by the evidence?
Did the verdict violate fundamental due process because the
evidence was highly speculative and contradictory and did not
support the verdict, thus violating the Due Process Clause of the
Fourteenth Amendment of the United States Constitution? - - -
Judge Cunningham affirmed his judgment of sentence.
2. Were the verdicts for Intimidation of a Witness [18 Pa.C.S.A.
4952], Terroristic Threats [18 Pa.C.S.A. 2706] and Stalking [18
Pa.C.S.A. 2709.1] not supported by sufficient evidence? Was the
evidence too speculative? Did the evidence fail to show who wrote
the signs? Did the evidence fail to show who was referred to by
"Squill"? Did the verdict violate fundamental due process because
the evidence was highly speculative and contradictory and did not
support the verdict, thus violating the Due Process Clause of the
Fourteenth Amendment of the United States Constitution? - - -
Judge Cunningham affirmed the judgment of sentence.
3. Was the sentence of Judge Cunningham of 6 ½ to 13 years of
incarceration, plus 5 years of probation excessive and an abuse of
discretion? Did this excessive sentence present a substantial issue
since it far exceeded the Sentencing Guidelines? Was the sentence
extremely harsh under the circumstances and an abuse of the
Sentencing Guidelines when there was an offense gravity score of
11 and a prior record score of 0 with a guideline sentencing range
of 36 to 54 months of incarceration, plus or minus 12? Was this
an abuse of discretion since the sentence of 6 ½ years [to] 23
months was far above the outer limits of the Sentencing
Guidelines? Was the sentence abusive since the Assistant District
Attorney only asked for 4 to 8 years of incarceration, followed by
5 years of probation, and Judge Cunningham's sentence was 2
years beyond the Assistant District Attorney's suggested
sentence? Did Judge Cunningham fail to state adequate reasons
in support of his sentence pursuant to 42 Pa.C.S.A. 9721(b)? - - -
Judge Cunningham, in the first Petition to Modify and Reconsider,
reduced the sentence from 7 to 15 years to 6 ½ to 13 years, and
then affirmed the new judgment of sentence and denied the oral
Motion to Reconsider the Sentence (see Exhibit "G").
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Brief for Appellant at 13.3
____________________________________________
3 We remind Appellant that where a Pa.R.A.P. 1925(b) concise statement
presents an issue broadly and non-specifically by citing generally to the
record, this Court has found the issue to be waived in that such vagueness
leaves the trial court in a position to guess what specific issues the appellant
intended to raise and, thus, impairs its ability to identify those claims. In
doing so, we observed that:
issues not raised in a Rule 1925(b) statement will be deemed
waived for review. An appellant's concise statement must properly
specify the error to be addressed on appeal. In other words, the
Rule 1925(b) statement must be “specific enough for the trial
court to identify and address the issue [an appellant] wishe[s] to
raise on appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
(Pa.Super. 2006), appeal denied, 591 Pa. 712,919 A.2d 956
(2007). “[A] [c]oncise [s]tatement which is too vague to allow the
court to identify the issues raised on appeal is the functional
equivalent of no [c]oncise [s]tatement at all.” Id. The court's
review and legal analysis can be fatally impaired when the court
has to guess at the issues raised. Thus, if a concise statement is
too vague, the court may find waiver.
Commonwealth v. Scott, 212 A.3d 1094, 1112(Pa.Super. 2019) (citation omitted). “In addition, our Supreme Court has categorically rejected incorporation by reference as a means of presenting an issue [in the argument portion of an appellant’s brief”]. See Commonwealth v. Briggs,12 A.3d 291
, 342–43 (Pa. 2011) (citations omitted) (stating that, where an appellant incorporates prior arguments by reference in contravention of Pa.R.A.P. 2119(a) and (b), he or she waives such claims on appeal).” see also Pines v. Farrell,848 A.2d 94
, 97 n. 3 (Pa. 2004) (holding that reliance on briefs
and pleadings already filed in a case was not a recommended form of advocacy
and further noting that “this Court is not obliged to root through the record
and determine what arguments, if any, respondent forwarded below, nor are
we obliged to fashion an argument on his behalf. This is not a recommended
form of advocacy”).
Herein, Appellant’s concise statement raises general challenges to the
weight and sufficiency of the evidence along with a challenge to the
discretionary aspects of his sentence. In support of these claims, Appellant
attaches an exhibit to his concise statement and incorporates by reference
numerous prior filings. In doing so, Appellant arguably failed to provide the
trial court with a concise statement that is specific enough for the trial court
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In his initial claim, Appellant challenges the weight of the evidence to
sustain his convictions of Intimidation of a Witness, Terroristic Threats and
Stalking.4
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. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. 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.
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations
and footnote omitted).
In addition, an appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard of review applied
by the trial court:
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
____________________________________________
to identify and consider the issues he intends to raise on appeal. However,
because this has not fatally impaired the trial court’s legal analysis, in that
Appellant has directed the court to filings in the record which specify the
arguments he develops on appeal, we will not deem his issues to be waived.
4 Although this issue appears first in the Statement of the Questions
Presented, Appellant develops it in the part “B” portion of his appellate brief.
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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. Clay, 64 A.3d 1049, 1055(Pa. 2013) (quotingWidmer, supra at 753
(emphasis in original)) (citation omitted).
Prior to considering the merits of this claim, we first must determine
whether Appellant properly has preserved it for our review. The entirety of
Appellant’s argument in support of this claim reads as follows:
The standard for review of weight of the evidence is found
in Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa. Super.,
2004).
"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 give
them equal weight with all the other facts is to deny
justice." Id 1028.
"Furthermore, in reviewing a weight of the
evidence claim we look to see if the verdict was so
contrary to the evidence as to shock one's sense of
justice and make the award of a new trial imperative."
[Commonwealth v. Strutt, 624 A.2d 162, 164 (Pa.
Super., 1993)].
[Appellant] incorporates his summary of the trial
testimony with reference to the trial record in the Statement of
the Case section of this Brief by reference into this argument.
Further, [Appellant] also incorporates the argument made as to
sufficiency of evidence in the previous argument into this weight
of evidence argument where he quoted the elements of the crimes
and summarized the evidence.
The bottom line is there is no evidence that would suggest
or support these convictions. As a result, these convictions should
shock one’s conscience. This is a conviction where the evidence
does not support the conviction.
As noted above, there is nothing that places [Appellant]
in the area where this occurred. No one saw him write the
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threatening statements. No one saw him present in the area. No
contraband or anything was found in his possession that would
suggest he wrote these threatening statements. [Appellant] does
not live in that particular area. A.L., the alleged victim in the
sexual case, did not use the bus stop or subway. A.Y. apparently
picked up Bus 25 in that vicinity, but there was no indication that
[Appellant] would have known that. More importantly, no one saw
him write the statements and there was no handwriting expert to
link the block letters to him. A good artist could easily take the
block letters that [Appellant] used in his earlier note to A.L. years
ago, and recreated the alleged threatening notice. This is not the
same as handwriting analysis or looking at handwriting. This was
not handwriting, but block letters. This could easily be copied by
a good artist. In other words, this was highly speculative
testimony to link [Appellant] to these notes. Further, there was
pure speculation that the name Squill referred to A.Y., the alleged
victim in these charges. That conclusion would be a pure guess.
Further, the verdicts violated (as noted above) fundamental
due process due to the conjecture and speculation.
In conclusion, [Appellant] respectfully requests this
Honorable Court reverse his convictions under the weight of
evidence argument since the verdict was against the weight of the
evidence, and this verdict should shock the conscience of the fact-
finder.
Brief for Appellant at 62-64.
In an Opinion Announcing the Judgment of the Court, the Pennsylvania
Supreme Court refused to consider claims not argued in an appellant’s brief
but rather incorporated by reference from motions he had made at trial. In
doing so, the Court observed that “[t]o permit appellant to incorporate by
reference his previous motions would effectively allow him to more than
double the original briefing limit.”). Commonwealth v. (James) Lambert,
797 A.2d 232, 237 n. 4 (Pa. 2001). As our Supreme Court later observed:
The briefing requirements scrupulously delineated in our
appellate rules are not mere trifling matters of stylistic preference;
rather, they represent a studied determination by our Court and
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its rules committee of the most efficacious manner by which
appellate review may be conducted so that a litigant's right to
judicial review as guaranteed by Article V, Section 9 of our
Commonwealth's Constitution may be properly exercised. Thus,
we reiterate that compliance with these rules by appellate
advocates who have any business before our Court is mandatory.
Consequently, since Appellant has failed to develop or present a
proper argument with respect to these constitutional claims, we
find them waived in this direct appeal.
Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011).
The same logic applies herein, where, aside from bald allegations which
do not pertain to any specific crime of which Appellant was convicted,
Appellant attempts to support his challenge to the weight of the evidence by
incorporating the arguments he had set forth in the portion of his brief
pertaining to sufficiency of the evidence.
Moreover, in relying upon his argument in support of his sufficiency
challenge, Appellant conflates weight and sufficiency claims and has
essentially failed to develop a challenge to the weight of the evidence. “It is
Appellant's obligation to sufficiently develop arguments in his brief by applying
the relevant law to the facts of the case, persuade this Court that there were
errors below, and convince us relief is due because of those errors. If an
appellant does not do so, we may find the argument waived.”
Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa.Super. 2009). For all of
the foregoing reasons, this issue is waived.
Next, Appellant maintains the evidence was insufficient to sustain his
convictions. Specifically, Appellant argues his convictions of Intimidation of a
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Witness and Terroristic Threats relied heavily upon handwriting attributed to
him without proper authentication by an expert witness. He asserts the same
argument applies to his Stalking conviction and posits that the conviction
cannot stand as Appellant neither spoke to nor touched anyone on October 9,
2015. Brief for Appellant at 48-50; 53-58.
Evidence is sufficient to sustain a conviction when, viewed in the light
most favorable to the Commonwealth as verdict winner, the evidence and all
reasonable inferences drawn therefrom support the jury's finding of all the
elements of an offense beyond a reasonable doubt. Commonwealth v.
Mattison, 82 A.3d 386, 392(Pa. 2013) (citing Commonwealth v. Montalvo,956 A.2d 926, 932
(Pa. 2008)). In applying this standard, Pennsylvania courts acknowledge that “the Commonwealth may sustain its burden by means of wholly circumstantial evidence.” Montalvo,956 A.2d at 932
(citing Commonwealth v. Diggs,949 A.2d 873, 877
(Pa. 2008)). The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence, as any doubts regarding a defendant's guilt may be resolved by the fact finder unless the evidence is so inconclusive that, as a matter of law, no probability of guilt may be drawn. Commonwealth v. Devine,26 A.3d 1139, 1145
(Pa.Super. 2011) (quoting Commonwealth v. Jones,874 A.2d 108
, 120–121 (Pa.Super. 2005)). The fact finder is free to believe all, part, or none of the evidence.Id.
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In finding Appellant was not entitled to relief on this issue, the trial court
cited the relevant law and reasoned as follows:
The admission of evidence is a matter committed to the
sound discretion of the trial court, and the decision to admit
certain evidence will not be overturned absent an abuse of that
discretion. Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008);
Commonwealth v. Zook, 532 Pa. 79,615 A.2d 1
(Pa. 1992) The
Pennsylvania Rules of Evidence (Pa.R.E.) at Rule 901(a) provides
that "The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims." Rule 901(b)(10) provides evidence may be
authenticated by "Any method of authentication or identification
provided by statute or by other rules prescribed by the Supreme
Court." It is clear from the official comments and Collins, 957
A.2d at 265, the adoption of this rule incorporated prior
Pennsylvania decisional law.
Furthermore; "A document may be authenticated by
circumstantial evidence." Commonwealth v. Brooks, 532 Pa.
Super. 394, 398,508 A.2d 316, 318
(Pa. Super. 1986)
Pennsylvania jurisprudence has long held that "Comparisons of
handwriting may by made by a jury. Expert testimony to
authenticity is not necessary and the jury may, by comparison of
writings, decide whether the authenticated writing was made by
the same person as the writing in dispute. (Citation omitted)
Commonwealth v. Gipe, 169 Pa. Super. 623, 626,84 A.2d 366, 368
(Pa. Super., 1951)
[Appellant] essentially argues that the Commonwealth
failed to establish that he was the author of the "Graffiti" found at
[A.L.’s] bus stop; no one saw him do it and the Commonwealth
failed to present an expert at trial to authenticate the writing.
(N.T., 12/14/17, pg. 11, 12, 14) There was no need for the
Commonwealth to call an expert to authenticate [Appellant’s]
handwriting. At trial, [A.Y.] testified that her bus stop was known
to [Appellant], as he had seen her there before and that he had
friends who lived in the area. This was supported by [A.L.’s]
producing a note from [Appellant] in his hand writing. Comparing
the hand writing on the note with the writing in the "Graffiti," she
unequivocally identified the writing as that of [Appellant]. The
[c]ourt found the testimony of both [A.Y.] and [A.L.], regarding
the "Graffiti," compelling. Considering the circumstances of the
content, timing and placement of the "Graffiti" led the [c]ourt to
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conclude: "There is no question in my mind that the design was
done by him." (N.T., 12/14/17, pg. 15)
Intimidation of a witness, is defined at 18 Pa.C.S.A. 4952
which provides in part; "(a) A person commits an offense if, with
the intent to or with the knowledge that his conduct will obstruct,
impede, impair, prevent or interfere with the administration of
criminal justice, he intimidates or attempts to intimidate any
witness or victim to:...(3) Withhold any testimony,... relating to
the commission of a crime from any law enforcement officer,
prosecuting official or judge." "[A]ctual intimidation of a witness
is not an essential element of the crime. The crime is committed
if one, with the necessary mens rea, "attempts " to intimidate a
witness or victim....The trier of the facts, therefore, could find that
appellant attempted to intimidate his accuser and that he did so
intending or, at least, having knowledge that his conduct was
likely to, impede, impair or interfere with the administration of
criminal justice.... The Commonwealth is not required to prove
mens rea by direct evidence. Frequently such evidence is not
available. In such cases, the Commonwealth may rely on
circumstantial evidence." Commonwealth v. Beasley, 138 A.3d
39, 48 (Pa. Super. 2016)
Terroristic threats, is defined at 18 Pa.C.S.A. 6301 [sic][5]
which provides in part; "(a) ...A person commits the crime of
terroristic threats if the person communicates, either directly or
indirectly, a threat to: (1) commit any crime of violence with intent
to terrorize another...(e)...As used in this section, the term
"communicates" means, conveys in person or by written or
electronic means, including telephone, electronic mail, Internet,
facsimile, telex and similar transmissions." To establish the
elements of this crime, the
"Commonwealth must prove that 1) the defendant made a threat
to commit a crime of violence, and 2) the threat was
communicated with the intent to terrorize another or with reckless
disregard for the risk of causing terror. Neither the ability to carry
out the threat, nor a belief by the person threatened that the
threat will be carried out, is an element of the offense. Rather, the
harm sought to be prevented by the statute is the psychological
distress that follows from an invasion of another's sense of
personal security." Commonwealth v. Reynolds, 835 A.2d
720,730 (Pa. Super. Ct. 2003) (Internal citations and quotations
____________________________________________
5 18 Pa.C.S.A. § 6301 is the statute for corruption of minors. The correct
statute citation for terroristic threats is 18 Pa.C.S.A. § 2706.
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omitted) Furthermore, the statute "is not meant to penalize mere
spur-of-the-moment threats which result from anger." Id.
"However, "being angry does not render a person incapable of
forming the intent to terrorize." Id. The Court "must consider the
totality of circumstances to determine whether the threat was a
result of a heated verbal exchange or confrontation." Id.
Stalking, is defined at 18 Pa.C.S.A. 2709.1 which provides
in part; "a)...A person commits the crime of stalking when the
person either:...(2) engages in a course of conduct or repeatedly
communicates to another person under circumstances which
demonstrate or communicate either an intent to place such other
person in reasonable fear of bodily injury or to cause substantial
emotional distress to such other person." Communicates is
defined as conveying "a message without intent of legitimate
communication or address by oral, nonverbal, written or electronic
means, including telephone, electronic mail, Internet, facsimile,
telex, wireless communication or similar transmission." 18
Pa.C.S.A. 2709.1(1) Course of conduct is defined as a "pattern of
actions composed of more than one act over a period of time,
however short, evidencing a continuity of conduct. The term
includes lewd, lascivious, threatening or obscene words,
language, drawings, caricatures or actions, either in person or
anonymously."
In considering the totality of the circumstances, it is clear
from the record that the "Graffiti", "[A.L.] is lying about rape," and
"Kill Squill" written on the benches and trashcan near [A.Y.’s] bus
stop, referenced the pending criminal charges brought against
[Appellant] by [A.L.]. Although [A.Y.] did not testify at
[Appellant’s] preliminary hearing, she had been listed as a
witness. (N.T., 5/19/17, pg. 199) The plain meaning of these
inscriptions was an attempt to intimidate [A.Y.] to prevent her
from testifying against [Appellant], as contemplated by 18
Pa.C.S.A. 4952.
It is also clear from the record that the legend, "Kill Squill,"
inscribed on a trashcan located at this bus stop, constitutes a
terroristic threat to commit a crime of violence as contemplated
by 18 Pa.C.S.A. 6301(a) [sic]. This threat was undoubtedly
directed at [A.Y], as this was her regular bus stop and not [A.L.’s].
Lastly, the multiple inscriptions constituted a course of
conduct or repeated communications demonstrating an intent to
place such other person in reasonable fear of bodily injury or to
cause substantial emotional distress to such other person as
contemplated by 18 Pa.C.S.A. 2709.1. As noted, [Appellant]
succeeded in causing [A.Y.] such severe emotional stress[.]
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Trial Court Opinion, filed 10/23/18, at 8-12.
Following our review of the record, the parties’ briefs, and the relevant
law, we discern no error with the trial court's findings regarding the sufficiency
of the evidence and find that the foregoing portion of the trial court’s Rule
1925(a) Opinion correctly disposes of this issue. Accordingly, we affirm on
that basis.
Finally, Appellant argues the trial court abused its discretion in
fashioning his sentence. He claims the sentence was “extremely excessive
and harsh,” “far beyond the guidelines and the district attorney’s
recommendation,” and not supported with adequate reasons on the record.
Brief for Appellant at 64.
“A challenge to the discretionary aspects of sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371(Pa. Super. 2012) (en banc) (citation omitted). Thus, before we may consider the merits of Appellant’s third issue, he “must invoke this Court’s jurisdiction by satisfying a four-part test.” Commonwealth v. Moury,992 A.2d 162
(Pa.
Super. 2010). The test is:
(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).
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Commonwealth v. Evans, 901 A.2d 528, 533(Pa.Super. 2006), appeal denied,909 A.2d 303
(Pa. 2006) (internal citations omitted). “Only if the appeal satisfies these requirements may we proceed to decide the substantive merits of Appellant’s claim.” Commonwealth v. Luketic,162 A.3d 1149, 1159-60
(Pa.Super. 2017).
Herein, Appellant timely filed an appeal with this Court, and he
challenged his modified sentence orally on the record at his December 14,
2017, hearing. See N.T. 12/14/17, at 32.6 Appellant also has included a
Pa.R.A.P. 2119(f) Statement in his brief. He therefore satisfied the first three
prongs of the test.
We now turn to the fourth prong – i.e., whether his Concise Statements
of the Reasons Relied Upon for Allowance of Appeal Pursuant to Pennsylvania
Rules of Appellate Procedure, 2119(f) raises a substantial question. See Brief
for Appellant at 46-47. The existence of a substantial question must be
____________________________________________
6 In his Amended Notice of Appeal, Appellant indicates he is appealing from
his judgment of sentence dated September 21, 2017, the denial of post-trial
motions dated December 14, 2017, and the denial of the motion to modify
and reconsider sentence which occurred on December 14, 2017; however, in
its Order entered on December 14, 2017, which Appellant attached to his
notice of appeal as Exhibit “A,” the trial court, in fact, granted Appellant’s
Motion for Reconsideration. In its “Order of Sentence Modified Sentence,” also
entered on that date, the trial court resentenced Appellant to an aggregate
term of six and one-half (6 ½) years to thirteen (13) years in prison to be
followed by five (5) years of probation. As such, his appeal properly lies from
the judgment of sentence imposed on December 14, 2017.
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determined on a case-by-case basis. See Commonwealth v. Cruz-Centeno,
668 A.2d 536, 545(Pa.Super. 1995). “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.” Commonwealth v. Glass,50 A.3d 720, 727
(Pa.Super. 2012)
(citations and internal quotation marks omitted).
In his Pa.R.A.P. 2119(f) Statement, Appellant states his sentence was
“extremely harsh under the circumstances and an abuse of discretion” in that
it was “far above the Sentencing Guidelines range and even above the
aggravated guideline range.” Appellant’s Brief at 46. Appellant also asserts
his sentence exceeded that recommended by the Commonwealth and that the
trial court did not provide adequate reasons for imposing it on the record, nor
did it consider Appellant’s rehabilitative needs in imposing the same. Id. at
46-47.
We conclude that Appellant has presented a substantial question, and
we will address the merits of the issue. See Commonwealth v. Caldwell,
117 A.3d 763, 769-70(Pa.Super. 2015) (en banc) (excessive sentence claim in conjunction with an assertion that the court failed to consider mitigating factors raises a substantial question); see also Commonwealth v. Hicks,151 A.3d 216, 227
(Pa.Super. 2016) (claim that sentencing court failed to set
forth adequate reasons for the sentence imposed raises a substantial
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question). On the merits, however, applying our deferential standard of
review, we find no abuse of discretion.
Our standard of review concerning challenges to the discretionary
aspects of one’s sentence provides that:
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.
Commonwealth v. Hyland, 875 A.2d 1175, 1184(Pa.Super. 2005) (citation omitted), appeal denied,586 Pa. 723
,890 A.2d 1057
(2005).
In this case, prior to imposing its sentence on September 21, 2017, the
trial court noted for the record that it had reviewed Appellant’s presentence
investigation report (PSI) and also had heard the complaining witnesses’
victim impact statements along with the arguments of counsel. It then stated
its reasons for imposing it sentence on the record:
"But to summarize, this is an extremely serious offense. You
have a teenager whose life is threatened. And even if she doesn't
come to any physical harm, the harm of the crime is the emotional
and psychological effects of having your life threatened. And in
this case, the threats are coming from someone who they are
credible threats. Defense Counsel has described it as a misguided
childhood. Whatever the description, he was arrested in the past
with a gun charge, and the impact on the victim in this case, it's
more serious in part because of her age, her age and the
relationship between [Appellant] and the victim. So it's not even
the run-of-mill intimidation-of-a -witness case. It's more serious
than that. And when we look at his prior record score, the prior
record score is not an adequate reflection of his criminal history,
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because of the two cases today that he's also pleading guilty to.
It's not factored into his record score, but it's a factor to be
considered at sentencing. Behavior like [Appellant’s] has to be
discouraged.
The court system depends on witnesses coming in to court.
Every day we hear about witnesses who don't show up. A lot of
times there's a relationship between the defendant and the
witness. The witness isn't showing up voluntarily because they
don't want to pursue the case. Every once in a while we know that
some witnesses don't show up because they're afraid. And people
have to be deterred from trying to win their cases by threatening
witnesses. So deterrence is a factor in [Appellant’s] sentence as
well. (N.T., 9/21/17 pgs. 58, 59)
Following Appellant’s filing of his post-sentence motion and upon
hearing defense counsel’s arguments, the trial court reconsidered and
amended Appellant’s sentence on December 14, 2017. In doing so, it
reiterated its decision to impose a prison sentence on only the most serious
charge (Intimidation of a Witness) with concurrent probationary sentences on
the remaining charges. The trial court also reminded defense counsel that
within the Sentencing Guidelines, it could have sentenced Appellant to five
and one half (5 ½) years on the Witness Intimidation conviction along with a
consecutive sentence of up to five (5) more years each for the Terroristic
Threats and Stalking convictions. The court stressed that the Sentencing
Guidelines are “inadequate when they set a range of sentencing for the
[Intimidation of a Witness] offense because of the lack of nuance” in
recognizing a “death threat is different from other kinds of crimes” because it
“continues for so long as she thinks she is liable to be killed.” N.T. 12/14/17,
at 21-22, 24.
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Notwithstanding, the trial court ultimately reduced Appellant’s prison
sentence by six months and in doing so stated on the record:
"I like the argument that when you add up the guideline
sentences they don't quite make it to 7 to 15. So I am going to
modify the sentence. I am going to modify the sentence on the
charge of intimidation of a witness. That was Count 1 on that
transcript, 751-2016. The sentence I imposed was 7 to 15. I am
going to modify that, make it 6 ½ to 13. The other aspects of the
sentence will all remain the same. So his aggregate sentence is 6
1/2 to 13 plus 5 years' probation on that count. Five years'
probation on each of the other counts running concurrent with
each other and concurrent with the probation on Count 1 makes
his aggregate sentence 6 ½ to 13 followed by 5 years' probation."
(N.T., 12/14/17 pg. 25)
Trial Court Opinion, filed 10/23/18, at 17.
We find that, Appellant’s assertions to the contrary, the trial court
reviewed Appellant’s PSI and set forth proper reasons for sentencing him.
Furthermore, the court acted within the Sentencing Guidelines and, as it
noted, could have imposed additional, consecutive prison terms on the
Terroristic Threats and Stalking convictions while still staying within the
Guidelines. Indeed, Appellant “is not entitled to a volume discount for his
crimes.” Commonwealth v. Swope, 123 A.3d 333, 341 (Pa.Super. 2015).
Considering that Appellant’s actions amounted to a six month campaign of
terror against a sixteen-year-old girl, we do not find the trial court abused its
discretion when crafting its December 14, 2017, sentence.
As to Appellant's complaints that the trial court failed to consider, or
inadequately weighed, mitigating circumstances such as his lack of a
significant prior record, these matters were included in his PSI. “When, as
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here, the trial court has the benefit of a pre-sentence report, we presume that
the court was aware of relevant information regarding the defendant’s
character and weighed those considerations along with any mitigating
factors.” Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super.
2014). With regard to Appellant's assertion that the court erred in imposing
a sentence which exceeded the one recommended by the Commonwealth, the
Commonwealth's recommendations, or lack thereof, are not binding on the
trial court's exercise of discretion at sentencing. Thus, this claim is frivolous.
Given our deferential standard of review when considering a challenge
to the discretionary aspects of sentencing, it would be inappropriate for us to
second-guess the trial court’s weighing of the aforementioned factors, for we
cannot substitute our view of aggravating and mitigating factors with those of
the trial court, nor may we reweigh those mitigating factors which Appellant
thinks the sentencing judge overlooked. See Commonwealth v. Marts, 889
A.2d 608, 612 (Pa.Super. 2005). Accordingly, Appellant has not persuaded
us that an abuse of discretion occurred. We dismiss his final appellate issue
as meritless.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/19
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