Opinion
J-S76038-16 No. 3306 EDA 2015
10-21-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. STEVEN SHERMAN FELTON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 21, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000857-2013 BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant Steven Sherman Felton appeals from the judgment of sentence entered by the Honorable Kelly L. Banach of the Court of Common Pleas of Lehigh County after a jury convicted Appellant of ten counts of robbery (all graded as first degree felonies) and two counts of theft by unlawful taking (both graded as first degree misdemeanors). Appellant claims his convictions are against the weight of the evidence and that the trial court abused its discretion in imposing several consecutive sentences which resulted in an aggregate sentence of 62 to 124 years imprisonment. After careful review, we affirm.
18 Pa.C.S. §§ 3701(a)(1)(ii), and 3921(a), respectively.
Appellant was charged in connection with eleven robberies of convenient stores, beverage stores, and cigarette retailers in the Lehigh Valley between September 2, 2012 and November 20, 2012. The trial court's February 5, 2016 opinion describes the investigations of each robbery in specific detail. We adopt the trial court's thorough discussion of the factual background of the eleven robberies in its Rule 1925(a) opinion, which is attached to this decision. See Trial Court Opinion, 2/5/16, at 3-12.
Appellant proceeded to a jury trial where the eleven robbery cases were consolidated. Appellant chose to represent himself at trial with Alexandra French, Esq. acting as standby counsel. On August 7, 2015, the jury convicted Appellant of ten counts of robbery and two counts of theft by unlawful taking, but acquitted him of one count of robbery. On September 21, 2015, the trial court sentenced Appellant to six to twelve years' imprisonment on each robbery conviction and one to two years' incarceration on each theft conviction. As all sentences were set to run consecutively, Appellant received an aggregate sentence of 62 to 124 years' imprisonment.
On September 30, 2015, Atty. French filed a post-sentence motion on Appellant's behalf, which the trial court denied on October 1, 2015. Appellant filed this timely appeal on October 30, 2015 and complied with the trial court's directions to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Before Atty. French could file a post-sentence motion, Appellant filed a pro se notice of appeal on September 29, 2015. While Appellant's notice of appeal was premature when it was filed, Appellant's appeal was perfected by the subsequent action of his standby counsel in filing a timely post-sentence motion which the trial court reviewed and denied on the merits. See Commonwealth v. Cooper , 611 Pa. 437, 27 A.3d 994 (2011) (concluding the trial court appropriately treated the appellant's pro se notice of appeal as a premature filing that was perfected upon the trial court's proper consideration and denial of the subsequent counseled post-sentence motion).
Appellant raises the following issues for our review on appeal:
A. Was the verdict against the weight of all the evidence in regards to the proof of whether or not [Appellant] was guilty of the charges?Appellant's Brief, at 7.
B. Whether or not the trial court abused its discretion by imposing an excessive aggregate sentence through the entering of multiple consecutive sentences upon [Appellant]?
When reviewing a challenge to the weight of the evidence, our standard of review is as follows:
The essence of appellate review for a weight claim appears to lie in ensuring that the trial court's decision has record support. Where the record adequately supports the trial court, the trial court has acted within the limits of its discretion.
A motion for a new trial based on a claim 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. 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 to give them equal weight with all the facts is to deny justice.Commonwealth v. Mucci , 43 A.3d 399, 410-11 (Pa.Super. 2016), (quoting Commonwealth v. Clay , 619 Pa. 423, 64 A.3d 1049, 1054-55 (2013). To successfully challenge the weight of the evidence, the defendant must prove that the evidence is "so tenuous, vague and uncertain that the verdict shocks the conscience of the court." Mucci , 43 A.3d at 411 (quoting Commonwealth v. Sullivan , 820 A.2d 795, 806 (Pa.Super. 2003)).
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.
In this case, the Commonwealth presented evidence of numerous robberies that occurred over a three-month period (September to November 2012) in the Lehigh Valley. The robberies were committed by a suspect wearing dark clothing, who would select an item to purchase, attempt to purchase the item, and brandish a firearm when the clerks opened the cash register. The suspect would demand cash or the entire register and then flee on a bicycle or in a blue GMC Envoy SUV. The majority of the clerks were able to give detailed descriptions of the suspect that matched Appellant's appearance or were able to identify Appellant from a photo array or lineup. Appellant was also recorded on video surveillance at several of the robberies. Officers discovered clothing described by the victims at Appellant's home.
Appellant does not specifically challenge any of the prosecution witnesses' testimony but generally claims that their identifications were inconsistent and points out that none of the witnesses noticed his tattoos. We reject this assertion as the majority of the victims were able to give detailed descriptions of the suspect's appearance or firmly identified Appellant as the robber despite being under the pressure of a gunman threatening to shoot them. We find meritless Appellant's attempt to discount the victims' testimony that did not mention his tattoos as the victims noted the robber wore long-sleeved sweatshirts with hoods which would have concealed all of his upper body except his face. When confronted with video surveillance of the robberies, Appellant placed himself at the scene, smirking and asserting that "[t[hese photos don't show me doing anything." N.T. Trial, 8/5/15, at 207. Accordingly, we find the trial court properly exercised its discretion in denying Appellant's weight of the evidence claim.
Appellant also claims the trial court abused its discretion in imposing multiple consecutive sentences which totaled 64 to 128 years' imprisonment. Appellant characterizes his aggregate sentence as "in essence, a life sentence with no legitimate hope for any parole." Appellant's Brief, at 10. Appellant's argument challenges the discretionary aspects of his sentence.
It is well-established that "[a] challenge to the discretionary aspects of sentencing does not entitle an appellant to review as of right." Commonwealth v. Bynum-Hamilton , 135 A.3d 179, 184 (Pa.Super. 2016). In order to invoke this Court's jurisdiction to address such a challenge, the appellant must satisfy the following four-part test: the appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing or in a timely post-sentence motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant's brief does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set forth a substantial question that the sentence appealed from is not appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b). Id. An appellant can raise a substantial question for our review by showing that "the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process." Commonwealth v. Tirado , 870 A.2d 362, 365 (Pa.Super. 2005) (citation omitted).
Appellant filed a timely notice of appeal, preserved his sentencing claim in a post-sentence motion, and submitted an appellate brief containing the requisite Rule 2119(f) concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence. As noted above, Appellant asserts that his sentence is manifestly unreasonable based on the trial court's decision to run all of his sentences consecutively.
Although a sentencing court must conduct an individualized assessment of the circumstances of each case, the court is not required to impose the most lenient term of confinement available under the law. Commonwealth v. Moury , 992 A.2d 162, 171 (Pa.Super. 2010). The sentencing court "has discretion to impose sentences consecutively or concurrently and, ordinarily, a challenge to this exercise of discretion does not raise a substantial question." Id. (citation omitted); see also 42 Pa.C.S. § 9721(a); Commonwealth v. Hoag , 665 A.2d 1212, 1214 (Pa.Super. 1995) (stating that an appellant is not entitled to a "volume discount" for his crimes by having all sentences run concurrently). However, "[t]he imposition of consecutive, rather than concurrent, sentences may raise 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." Moury , 992 A.2d 171-72 (citation omitted).
This Court has held that "the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case." Commonwealth v. Mastromarino , 2 A.3d 581, 587 (Pa.Super. 2010). In Mastromarino , this Court found the appellant had not raised a substantial question that his aggregate sentence of 25 to 58 years imprisonment was excessive when the trial court found it appropriate to impose consecutive sentences for his numerous convictions which included inter alia, abuse of corpse and 244 counts of theft by unlawful taking. Appellant was convicted of these offenses for his role in a criminal conspiracy where the defendants used their licenses as funeral directors to harvest body parts from 244 corpses without the consent of the deceased or their kin, sell them to tissue banks, and disguise the tissue as healthy transplant donations. See also Commonwealth v. Gonzalez-Dejusus , 994 A.2d 595, 599 (Pa.Super. 2010) (finding the appellant's challenge did not raise a substantial question that his 20 to 40 year aggregate sentence was excessive when he was involved in the robbery and kidnapping of two individuals).
In this case, Appellant was convicted of eleven counts of armed robbery for his extensive crime spree in which he terrorized store clerks of gas stations, convenient stores, and alcohol and cigarette retailers throughout the Lehigh Valley. In each crime, Appellant threatened to shoot the victims with his firearm if they did not comply with his demand for cash or the entire register. Appellant's bare assertion of excessiveness and request for a volume discount for his numerous violent crimes does not present a substantial question that the trial court's decision to run his sentences consecutively was inappropriate or contrary to a fundamental norm underlying the Sentencing Code. As a result, we decline Appellant's request for allowance of appeal as to the discretionary aspects of his sentence.
For the foregoing reasons, we affirm Appellant's judgment of sentence.
Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/21/2016
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