J-S26029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
NORM SCOTT                                  :
                                            :
                      Appellant             :   No. 3005 EDA 2016

           Appeal from the Judgment of Sentence June 8, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0013785-2013

BEFORE:      BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                                 FILED JUNE 26, 2018

        Norm Scott appeals from the aggregate judgment of sentence of

eighteen    to     thirty-six   months   imprisonment   following   his   non-jury

convictions for simple assault and recklessly endangering another person

(“REAP”). We affirm.

        The trial court offered the following summary of the history of the

case.

              On the night of March 14, 2013, Roxanne Little and her
        twelve-year-old son were at home in their Philadelphia
        apartment. At approximately 9:00 P.M., [Appellant]—who was
        dating Ms. Little—came to the apartment and let himself in using
        a key. He asked Ms. Little why she had not opened “the f**king
        door for him.” She did not answer him. [Appellant] walked over
        to a pile of his folded clothes and saw a single match sitting on
        top. He asked Ms. Little who had put the match on his clothes.
        When Ms. Little said that she did not know, [Appellant] grew
        very aggressive and accused her of having another man in the
        apartment. He grabbed her by the throat and punched her in
        the face multiple times. Ms. Little started screaming. Her son,
        watching as his mother was beaten, also began to scream and
____________________________________
* Former Justice specially assigned to the Superior Court.
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      used one of his toys to hit [Appellant]. Ms. Little ran out of the
      apartment and down the stairs to the building’s front door, but
      she could not open it. [Appellant] followed her downstairs and
      continued to punch her in the face. When Ms. Little fell to the
      floor, [Appellant] tried to pull her back up the stairs but was
      unable to do so. Instead, he stomped down on her left leg,
      breaking it. [Appellant] walked back upstairs, got his jacket,
      and left the apartment building. In the meantime, Ms. Little was
      able to get outside and call the police from a neighbor’s phone.

            Police Officer Joseph Gallagher was the first to respond to
      the scene of the assault. He found Ms. Little crying and visibly
      distressed. Her face[] was bruised and swollen, her neck was
      red, and she was complaining of leg pain. Ms. Little told Officer
      Gallagher that she and [Appellant] had been in a heated
      argument, that he had struck her repeatedly in the face, and
      that as she lay on the floor at the bottom of the steps, he
      jumped on her leg. Ms. Little was taken to Mercy Hospital where
      she was diagnosed with a fractured left tibia and received
      emergency surgery. On March 15, 2013, Ms. Little gave a
      statement to Detective Anderson, consistent with what she had
      told Officer Gallagher. A warrant was issued for [Appellant’s]
      arrest; however, police were unable to find [him].            On
      September 20, 2013, they learned he had been taken into
      custody in New York. On October 17, 2013, [Appellant] was
      extradited to Philadelphia to face charges arising from the March
      14th assault.

             Th[e trial] court found [Appellant] guilty of [simple assault
      and REAP] and deferred sentencing until June 8, 2015 for
      completion of a presentence investigation and mental health
      evaluation. On the date of sentencing, however, [Appellant]
      failed to appear, and the court issued a bench warrant. Nine
      months later, in March, 2016, [Appellant] was arrested by New
      York City Police and extradited for sentencing on the instant
      case.    At the June 8, 2016 sentencing hearing, this court
      sentenced [Appellant] to a guideline sentence of one to two
      years of incarceration on the simple assault conviction and a
      consecutive six to twelve months of incarceration on the REAP
      conviction. [Appellant] filed a post-sentence motion that same
      day, which the court denied on September 12, 2016.

Trial Court Opinion, 4/5/17, at 1-3 (citations omitted).


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      Thereafter, Appellant filed a timely notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following questions on appeal, which we have

re-ordered for ease of disposition.

      I.     Whether the evidence was insufficient to convict
             [Appellant] of simple assault and recklessly endangering
             another person when the complaining witness gave two
             different stories and even testified for the defense at
             sentencing.

      II.    Whether the court’s guilty verdict was against the weight
             of the evidence to convict [Appellant] of simple assault and
             recklessly endangering another person when the
             complaining witness gave two different stories and even
             testified for the defense at sentencing.

      III.   Whether the trial court abused its discretion with
             [Appellant’s] manifestly excessive sentence of 18-36
             months based on the statutory maximum of 1-2 years on
             simple assault followed by 6-12 months consecutive on
             recklessly endangering another person was an abuse of
             discretion.

Appellant’s brief at 7.

      We begin with Appellant’s sufficiency claim, for which our standard and

scope of review are de novo and plenary, respectively. Commonwealth v.

Williams, 176 A.3d 298, 305 (Pa.Super. 2017). A conviction is based upon

sufficient evidence if “the evidence admitted at trial and all reasonable

inferences drawn therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner, were sufficient to prove every element of

the   offense   beyond    a   reasonable   doubt.”   Id.   at   305-06.     The

Commonwealth may sustain its burden through wholly circumstantial

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evidence, and need not preclude all possibility of innocence. Id. at 306. “It

is within the province of the fact-finder to determine the weight to be

accorded to each witness’s testimony and to believe all, part, or none of the

evidence.” Id.    “Moreover, as an appellate court, we may not re-weigh the

evidence and substitute our judgment for that of the fact-finder.” Id.

      One is guilty of simple assault if he or she “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another.”    18

Pa.C.S. § 2701(a)(1).     A person commits REAP if he or she “recklessly

engages in conduct which places or may place another person in danger of

death or serious bodily injury.” 18 Pa.C.S. § 2705.

      At trial, the Commonwealth offered the signed statement and

preliminary hearing testimony of Ms. Little.   Both consistently iterated the

facts found by the trial court quoted supra. Specifically, Ms. Little indicated

that, on the night in question, Appellant became angry, grabbed her by the

throat, punched her in the face repeatedly, followed her downstairs when

she attempted to flee, tried to drag her back up the stairs, and, when he

could not, jumped on her leg, breaking it. See N.T. Trial, 3/16/15, at 28-30

(statement); id. at 40-42 (preliminary hearing testimony). This evidence is

more than sufficient to sustain Appellant’s convictions.           See, e.g.,

Commonwealth v. Rahman, 75 A.3d 497, 502-03 (Pa.Super. 2013)

(finding evidence sufficient to sustain simple assault and REAP convictions

where the defendant shoved and punched the victim several times in a


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stairwell, which could have caused the victim to fall down the stairs, and

which resulted in the victim’s sustaining a sprained shoulder and a bruised

rib).

        Appellant’s   argument      that   the   Commonwealth   failed   to   prove

Appellant’s guilt of these crimes is as follows.

               The inconsistencies in this case are what make the
        evidence so weak. [Appellant] came home around 9:00PM and
        began to have a verbal argument with Ms. Little. The argument
        escalated as [Appellant] thought someone else was at their
        house. Ms. Little then gave conflicting testimony whether she
        fell down her stairs or whether [Appellant] punched and
        assaulted her. At some point [Appellant] walked away from the
        situation and left the apartment building. Ms. Little received
        medical care and gave a statement that said [Appellant]
        assaulted her. Inconsistency was the only thing consistent about
        her statements and testimony.

Appellant’s brief at 20.1



____________________________________________


1 The trial court did not address Appellant’s sufficiency claim, finding that it
had been waived based upon Appellant’s failure to state with specificity in
his Rule 1925(b) statement which elements of the crimes were not
established by sufficient evidence.     Trial Court Opinion, 4/5/17, at 4.
Appellant’s statement contended that the evidence was insufficient because
“There was conflicting testimony about what happened that evening. The
complaining witness herself gave a completely different story of events at
trial[.]” Concise Statement, 9/20/16, at ¶ 2. This Court has recognized
such a claim as a viable attack on the sufficiency of the evidence. See, e.g.,
Commonwealth v. Bennett, 303 A.2d 220, 220 (Pa.Super. 1973) (en
banc) (holding evidence was insufficient to support conviction where the
testimony of the Commonwealth’s witness “was so inconsistent and
contradictory as to be insufficient to support a finding of [the defendant’s]
guilt”). Accordingly, we conclude that Appellant preserved this issue for our
review.



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      Ms. Little did testify at trial that Appellant merely verbally attacked her

on the night in question, that she had a panic attack and went outside for

air, and fell down the steps, hitting her leg off of a heater. N.T., 3/16/15, at

16-17.       She   claimed   that    her   signed    statement     contains   incorrect

information, and she only signed it because she was under a lot of stress.

Id. at 23-27.       Further, Ms. Little indicated that her testimony at the

preliminary hearing was the product of “the power of suggestion” based

upon being harassed by the assistant district attorney, and that Appellant

and she “never had a physical altercation. Never.” Id. at 41, 37-38.

      However, whether Ms. Little was telling the truth out of court or in

court was a credibility determination solely within the province of the fact-

finder.   The fact that she recanted her earlier testimony does not render

Appellant’s convictions invalid. See, e.g., Commonwealth v. Brown, 52

A.3d 1139, 1171 (Pa. 2012) (holding out-of-court statements of witnesses

“furnished    legally   sufficient   evidence       to   sustain   [the   defendant’s]

convictions” because they “were not so patently unreliable so as to render a

jury verdict based upon them one of pure conjecture” and the fact-finder

“had the opportunity to observe these witnesses as they repudiated their

out-of-court statements, and to assess the credibility of their explanations

for the repudiations”); Commonwealth v. Jones, 644 A.2d 177, 181

(Pa.Super. 1994) (“Although both witnesses made statements prior to trial

which were inconsistent with their in-court testimony, they were questioned


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extensively regarding their prior statements, and the trier of fact could

properly determine on which occasions the witnesses had been truthful.”)

(footnote omitted).       Therefore, Appellant’s sufficiency challenge merits no

relief.

          Appellant next argues that his convictions are against the weight of

the evidence. Accordingly, the following principles apply.

          Appellate review of a weight claim is a review of the [trial
          court’s] 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. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).                        This

standard applies even when the trial judge also sat as the finder of fact.

See, e.g., Commonwealth v. Konias, 136 A.3d 1014, 1023 (Pa.Super.

2016) (applying the above standard to a weight challenge following a bench

trial).

          Appellant’s argument in support of his weight claim is the same as the

sufficiency argument.       Appellant highlights Ms. Little’s trial testimony that

her injuries were not Appellant’s fault, that the police fabricated her

statement, and that her preliminary hearing testimony was the result of




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threats by the ADA, and contends her trial testimony was weightier than her

prior inconsistent statements. Appellant’s brief at 14-16.

      The trial court offered the following discussion of Appellant’s claim.

            Acting within its province as fact-finder, th[e trial] court
      found Ms. Little’s prior statement and testimony at the
      preliminary hearing credible and her testimony at trial incredible.
      This determination was amply supported by corroborating
      evidence, including Officer Gallagher’s personal observation of
      the victim’s bruised face and Ms. Little’s excited utterance
      describing the assault when the officer first arrived on scene.
      Because the verdict did not shock one’s sense of justice, the
      court did not abuse its discretion in denying defendant’s weight
      of the evidence claim.

Trial Court Opinion, 4/5/17, at 6.

      As discussed above, Ms. Little offered two entirely-consistent accounts

of Appellant’s brutal attack upon her. It was well within the province of the

fact-finder to determine that those accounts were credible and her in-court

recantation was not. Thus, we find no abuse of discretion on the part of the

trial court in holding that the verdict did not shock its conscience, and

Appellant is entitled to no relief from this Court on his weight-of-the-

evidence claim.

      Appellant’s final issue is a challenge to the discretionary aspects of his

sentence. The following principles apply to our review.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:


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             (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. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(some citations omitted).

      Appellant filed a notice of appeal after preserving his issues by

including them in a motion to modify sentence and his Pa.R.A.P. 1925(b)

statement.    Further, Appellant’s brief contains a statement pursuant to

Pa.R.A.P. 2119(f), in which he claims that the trial court’s imposition of the

statutory maximum sentence was “more punitive than rehabilitative” and,

therefore, manifestly excessive.    Appellant’s brief at 12.   This Court has

found that a substantial question was presented by an excessiveness claim

combined with allegations that the trial court consider mitigating factors.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014).

      As such, we shall consider the merits of Appellant’s sentencing claim.

We begin by noting that, “[w]hen imposing sentence, a court is required to

consider the particular circumstances of the offense and the character of the

defendant.    In considering these factors, the court should refer to the

defendant’s prior criminal record, age, personal characteristics and potential




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for rehabilitation.”   Commonwealth v. Antidormi, 84 A.3d 736, 761

(Pa.Super. 2014) (citations and quotation marks omitted).

      “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in best position to view the defendant’s

character, displays of remorse, defiance or indifference, and the overall

effect and nature of the crime.”    Commonwealth v. Ventura, 975 A.2d

1128, 1134 (Pa.Super. 2009). We review the trial court’s determination for

an 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.

Antidormi, supra at 760. Moreover, where, as here, the defendant “was

sentenced within the guidelines, we may reverse only if application of the

guidelines is clearly unreasonable.” Commonwealth v. Macias, 968 A.2d

773, 777 (Pa.Super. 2009).

      Appellant notes that, based upon prior-record and offense-gravity

scores of three, the sentencing guidelines provided a standard range

sentence of restorative sanctions to twelve months for his simple assault

conviction. Appellant’s brief at 23-24. Appellant contends that imposition of

the sentence at the top end of the standard range is too severe because, as

simple assault is a second-degree misdemeanor, the statutory maximum

sentence is also twelve to twenty-four months. Id. at 25-26.

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      The trial court responded to Appellant’s contention as follows.

             Here, the court considered each of the[ statutory] factors,
      in addition to defendant’s disrespect for the court’s authority
      (i.e., his failure to appear at his originally scheduled sentencing
      hearing because “so many things [were on his] shoulders,”
      defendant’s allocution, his lack of remorse, arguments by
      counsel for both defendant and the Commonwealth, Ms. Little’s
      testimony at the sentencing hearing, and the presentence report
      and mental health evaluation. The court imposed a guideline
      sentence of one to two years of incarceration on the simple
      assault conviction and a guideline sentence of six months to one
      year of incarceration on the REAP conviction. The court further
      ordered that the sentences run consecutive to one another so as
      not to depreciate the gravity of the offenses and to ensure that
      defendant would receive the treatment recommended in his
      presentence report and mental health evaluation.

Trial Court Opinion, 4/5/17, at 3-4 (citations and footnote omitted).

      The trial court’s reasons are supported by the record and, given the

conduct at issue and Appellant’s utter lack of remorse, we have no hesitation

in concluding that the trial court was not clearly unreasonable in imposing

consecutive, standard-range sentences, despite the fact that one constituted

a statutory maximum. See, e.g., Commonwealth v. Lawrence, 960 A.2d

473, 480 (Pa.Super. 2008) (finding no merit to claim that trial court’s

imposition of statutory maximum sentences was unreasonable where

defendant brutally beat victim, fabricated “ludicrous” story that the victim

hurt herself falling out of bed, and showed no remorse).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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