Opinion
J-S67040-17 No. 2650 EDA 2016
11-28-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. OWEN CORTEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 22, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002426-2012 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court. --------
Appellant, Owen Cortez, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions of attempted murder, criminal conspiracy, aggravated assault, burglary, persons not to possess firearms, firearms not to be carried without a license, carrying firearms on public streets or public property in Philadelphia, and possessing instruments of crime ("PIC"). We affirm.
18 Pa.C.S.A. 901(a), 903, 2702(a), 3502(a), 6105(a)(1), 6106(a)(1), 6108, and 907(a), respectively.
The relevant facts and procedural history of this case are as follows. On January 11, 2011, Appellant and two men went to Victim's house. When Victim opened the door, the men pushed their way inside and proceeded to demand money from Victim at gunpoint. Victim was shot in the back during the altercation. Victim's injuries required multiple surgeries and resulted in the removal of part of Victim's lung and Victim's spleen. Based on Victim's statements, police identified Appellant as one of the perpetrators of the crimes.
On March 9, 2012, the Commonwealth charged Appellant with attempted murder, criminal conspiracy, aggravated assault, burglary, persons not to possess firearms, firearms not to be carried without a license, carrying firearms on public streets or public property in Philadelphia, PIC, simple assault, recklessly endangering another person ("REAP"), and criminal trespass. Appellant proceeded to a jury trial in September 2014. On September 22, 2014, the court declared a mistrial after the jury was unable to reach a unanimous verdict. Appellant proceeded to a second jury trial on October 1, 2015. On October 6, 2015, the jury convicted Appellant of attempted murder, criminal conspiracy, aggravated assault, burglary, persons not to possess firearms, firearms not to be carried without a license, carrying firearms on public streets or public property in Philadelphia, and PIC. The court deferred sentencing pending the preparation of a pre-sentence investigation ("PSI") report.
The court sentenced Appellant on February 22, 2016, to a term of sixteen (16) to thirty-two (32) years' imprisonment for the attempted murder conviction, a concurrent term of sixteen (16) to thirty-two (32) years' imprisonment for the criminal conspiracy conviction, a concurrent term of ten (10) to twenty (20) years' imprisonment for the burglary conviction, a consecutive term of two (2) to eight (8) years' imprisonment for the persons not to possess firearms conviction, a concurrent term of two (2) to seven (7) years' imprisonment for the firearms not to be carried without a license conviction, a concurrent term of one (1) to two (2) years' imprisonment for the carrying firearms on public streets or public property in Philadelphia conviction, and a concurrent term of (1) to (2) years' imprisonment for the PIC conviction; thus, Appellant received an aggregate term of eighteen (18) to forty (40) years' imprisonment. Appellant timely filed post-sentence motions on February 29, 2016, which were denied by operation of law on June 30, 2016. Appellant timely filed a notice of appeal on July 29, 2016. On October 13, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on October 20, 2016.
Appellant raises the following issues for our review:
WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE GUILTY VERDICTS?
WERE THE VERDICTS AGAINST THE WEIGHT OF THE EVIDENCE?
DID THE TRIAL COURT ERR IN ALLOWING INTO EVIDENCE IRRELEVANT AND OVERLY PREJUDICIAL EVIDENCE OF ALLEGED INTIMIDATION AND AN ASSAULT ON [VICTIM] THAT WAS NOT COMMITTED BY APPELLANT?
DID THE [TRIAL] COURT ABUSE ITS DISCRETION BY
FASHIONING A SENTENCE THAT EXCEEDED THAT WHICH IS NECESSARY TO PROTECT THE PUBLIC, FAILED TO PROPERLY CONSIDER APPELLANT'S FAMILIAL SUPPORT, YOUTH AND BEING A FATHER OF A YOUNG CHILD, AND WHERE...APPELLANT'S SENTENCE WAS DISPARATELY GREATER THAN A CO-DEFENDANT'S SENTENCE?(Appellant's Brief at 7 and 19).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Diana L. Anhalt, we conclude Appellant's first, second, and third issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed May 23, 2017, at 4-17) (finding: (1) with respect to Appellant's conviction of conspiracy to commit murder, Appellant, armed with handgun, went to Victim's home with two co-conspirators; when Victim answered door, Appellant pointed gun at Victim and demanded money; although one of Appellant's co-conspirators actually fired shot that wounded Victim, there was sufficient evidence for jury to infer conspiracy because Appellant and his co-conspirators arrived together, committed crimes together, and left together; thus, evidence was sufficient to sustain conviction of conspiracy to commit murder; with respect to Appellant's conviction of attempted murder, one of Appellant's co-conspirators shot Victim in his back; Victim's injuries required multiple surgeries, removal of Victim's spleen and part of his lung, and placement of stent in Victim's kidney; although Appellant did not fire bullet that hit vital part of Victim's body, shooting was done in furtherance of crimes against Victim; thus, Appellant is liable for shooting, and sufficient evidence existed to sustain Appellant's conviction of attempted murder; with respect to Appellant's aggravated assault conviction, aggravated assault is lesser included offense of attempted murder; thus, sufficient evidence existed to sustain Appellant's conviction of aggravated assault; with respect to Appellant burglary conviction, Appellant and his co-conspirators forced their way into Victim's home while Victim was present; once inside home, Appellant pointed gun at Victim, grabbed Victim by his shirt, and demanded money; Appellant took $300.00 from Victim's person; thus, there was sufficient evidence to sustain Appellant's conviction of burglary; with respect to Appellant's convictions of persons not to possess firearms, firearms not to be carried without a license, and carrying firearms on public streets or public property in Philadelphia, witness testimony established that Appellant possessed firearm in public in Philadelphia; Commonwealth also presented certificate of non-licensure, which demonstrated that Appellant did not have license to carry firearm on date of incident; Commonwealth further presented evidence of Appellant's prior robbery conviction, which prohibited Appellant from possession of firearm; thus, sufficient evidence existed to sustain Appellant's convictions of Sections 6105(a)(1), 6106(a)(1), and 6108; with respect to Appellant's conviction of PIC, trial testimony established that Appellant brandished and pointed firearm at Victim; thus, sufficient evidence existed to sustain Appellant's conviction of PIC; (2) Victim provided consistent statements to detectives, at his lineup identification of Appellant, and during preliminary hearing; jury was free to believe these consistent statements and discredit Victim's trial testimony in which Victim stated he did not remember giving any of his prior statements; thus, verdict was not against weight of evidence; (3) evidence of alleged intimidation and assault against Victim while Victim was incarcerated was relevant to explain Victim's behavior at trial; court admitted this evidence for specific purpose and issued limiting jury instruction; instruction informed jury to consider this evidence solely for its effect on Victim and not for truth of matter asserted; thus, court properly admitted evidence of alleged intimidation and assault of Victim). With respect to Appellant's first, second, and third issues on appeal, we affirm based on the trial court's opinion.
In his fourth issue, Appellant argues the court failed to consider certain mitigating factors when it imposed Appellant's sentence. Appellant specifically contends the court failed to consider Appellant's potential for rehabilitation, Appellant's rehabilitative needs, the fact that Appellant is a young man with substantial family support, and the fact that Appellant is a father to a young child. Appellant further avers the court did not provide sufficient reasons to justify the imposition of a sentence, which is disparately greater than the sentence of one of Appellant's co-conspirators. Appellant concludes his sentence of eighteen to forty years' imprisonment is excessive, and this Court should vacate and remand for resentencing. As presented, Appellant challenges the discretionary aspects of his sentence. See Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary aspect of sentencing issue:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of a sentence are waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant must also invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 425-26, 812 A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal 'furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.'" Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)). "The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Anderson , 830 A.2d 1013, 1018 (Pa.Super. 2003). 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." Sierra , supra at 913 (quoting Commonwealth v. Brown , 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). Significantly, an allegation that the sentencing court failed to consider certain mitigating factors, absent more, does not raise a substantial question for our review. Commonwealth v. Rhoades , 8 A.3d 912, 918-19 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328 (2011), cert. denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012).
Here, Appellant failed to raise his disparate sentencing claim in his post-sentence motion. As such, Appellant waived it for purposes of our review. See Mann , supra. With respect to Appellant's claim that the court failed to consider certain mitigating factors, Appellant properly preserved this claim in his post-sentence motion, Rule 1925(b) statement, and appellate brief. Nevertheless, Appellant's bald assertion does not raise a substantial question warranting our review. See Rhoades , supra.
In any event, the court had the benefit of a PSI report at sentencing. Therefore, we can presume it considered the relevant factors when it sentenced Appellant. See Commonwealth v. Tirado , 870 A.2d 362, 368 (Pa.Super. 2005) (holding where sentencing court had benefit of PSI, law presumes court was aware of and weighed relevant information regarding defendant's character and mitigating factors). Additionally, the court explained its reasons for Appellant's sentence as follows:
Here, this [c]ourt sentenced...Appellant to 18 to 40 years['] incarceration. Appellant has a prior record score ("PRS") of 4. Appellant's attempted murder conviction carries an offense gravity score ("OGS") of 14. The deadly weapon enhancement sentence matrix guideline is 117-240 months of incarceration plus or minus 12 months. This
[c]ourt sentenced Appellant to 192-384 months of incarceration on his attempted murder conviction. This sentence was within the guideline range and therefore not excessive. Appellant's conviction for aggravated assault merged with his attempted murder conviction for sentencing purposes. Additionally, Appellant's convictions for conspiracy, burglary, [firearms not to be carried without a license], [carrying firearms on public streets or public property in Philadelphia], and PIC all ran concurrent to his attempted murder sentence. This [c]ourt ran Appellant's 24-96 month sentence for [persons not to possess firearms] consecutive to the attempted murder conviction to come to a total of 18-40 years of incarceration. This [c]ourt sentenced Appellant within the guidelines.( See Trial Court Opinion, filed May 23, 2017, at 19-20) (internal citations omitted). Thus, even if Appellant had properly preserved all of his sentencing claims and they had raised substantial questions, we would rely on the court's analysis. Based on the foregoing, Appellant is not entitled to relief on his challenge to the discretionary aspects of his sentence. Accordingly, we affirm the judgment of sentence.
Here, this [c]ourt took into consideration Appellant's age, potential for rehabilitation, familial support and that he is the father of a young child as all of that information was included in the [PSI report] and told to this [c]ourt during sentencing. The PSI [report] mentions his age, Appellant is 30 years old, and this [c]ourt knew that during sentencing. Even the [Commonwealth] recognized that [Appellant] has a wonderful mother who has been to court every day for Appellant. The PSI [report] mentioned that Appellant would be able to live with his mother if and when he is out of prison. The presence of the PSI [report] was noted on the record, and is, by default, considered by this [c]ourt. This [c]ourt also allowed Appellant to speak on his behalf, who mentioned his daughter. This [c]ourt was just as obligated to consider aggravating factors in its sentencing[, l]ike that Appellant has been a very violent person and has been on a downward trend. This [c]ourt ultimately used its discretion in constructing [Appellant's] sentence.... Therefore, this sentence was not excessive, this [c]ourt properly applied partially consecutive sentences and took into consideration all sentencing factors in constructing the sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/28/2017
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