Opinion
J-A29035-16 No. 419 WDA 2016
01-20-2017
COMMONWEALTH OF PENNSYLVANIA v. CARL FISHER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 20, 2015 in the Court of Common Pleas of Somerset County, Criminal Division, No(s): CP-56-CR-0000800-2012 BEFORE: DUBOW, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Carl Fisher ("Fisher") appeals from the judgment of sentence imposed after a jury convicted him of two counts each of criminal solicitation (involuntary deviate sexual intercourse ("IDSI") and indecent assault, respectively) and criminal attempt (IDSI and indecent assault, respectively), and one count of corruption of minors. We affirm.
The trial court exhaustively set forth in its Opinion the factual and procedural history underlying this appeal, which we adopt as though fully set forth herein. See Trial Court Opinion, 5/26/16, at 1-16.
In this timely appeal, Fisher presents the following issues for our review:
I. Whether the lower court committed an error when it allowed the case to proceed on the Amended Information filed by the District Attorney[,] without prior leave of court[,] in
violation of Pennsylvania Rule[s] of Criminal Procedure 560 and 564, despite [Fisher's] objections[?]Brief for Appellant at 4-5 (capitalization omitted, issues renumbered for ease of disposition).
II. Whether the lower court committed an error by allowing the case to proceed despite [Fisher's] objections and arguments that he was denied his right[] to a speedy trial[,] in violation of Pennsylvania Rule of Criminal Procedure 600[?]
III. Whether the lower court committed an error by refusing to allow [Fisher] to cross-examine regarding the victim's reluctance to testify[?]
IV. Whether the lower court committed an error in allowing the victim's written statement to be presented to the jury[?]
V. Whether the lower court committed an error by denying [Fisher's] Motion in limine, and by denying objections at trial [concerning the introduction] and admission of an e-mail exchange between [Fisher] and a co-worker[?]
VI. Whether the lower court committed an abuse of discretion when it considered the Sexual Offender Assessment Board (["]SOAB["]) report as a factor in imposing sentence, especially when there had been no hearing to determine whether [Fisher] was found to be a sexually violent predator[,] and whe[re] the report contained almost nothing but hearsay[?]
VII. Whether the verdict is against the sufficiency of the evidence[?]
VIII. Whether the verdict is against the weight of the evidence[?]
Fisher first argues that the trial court erred when it denied his two pretrial Motions to Quash the Commonwealth's Amended Information. See id. at 21-28. According to Fisher, the Amended Information was "technically defective," and the four additional charges raised against Fisher therein should have therefore been dismissed, for two reasons:
1) the District Attorney's Office did not specifically obtain court approval prior to the amendment[,] in violation of Pa.R.Crim.P. 564; and, 2) even if the Amended Information were not void on its face, the Information and Amended Information do not contain specific factual allegations[,] nor does the Amended Information cite specific statute sections, thus rendering it in violation of Pa.R.Crim.P. 560.Brief for Appellant at 21, 23 (footnotes added). Concerning Rule 564, Fisher argues as follows:
The language of Rule 564 specifically requires, as a prerequisite to amending an information, court approval by the language "the court may allow[.]" [Pa.R.Crim.P. 564.] Thus, the trial court becomes the gatekeeper, and prior to any amendment of an information, the Commonwealth must ask the court for the requisite permission. Failure to do so is fatal to that amended information.Brief for Appellant at 22; but see id. at 23 (wherein Fisher concedes that "there is no case law regarding an explanation of the Rule's explicit language that the court must approve the amendment."). Concerning Rule 560, Fisher avers that the Amended Information violated subsections (B)(5) and (C), and is void as being "substantively defective," because "[i]n all four counts [charged therein (i.e., two counts each of criminal attempt and solicitation,], there is only a description of the inchoate offense and the statutory name to the substantive offense. There are also no references to any specific subsection of the substantive crime." Id. at 28.
Rule 564 provides, in relevant part, as follows: "The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense." Pa.R.Crim.P. 564.
Rule 560, which governs the filing and contents of a criminal information, provides that an information should contain, inter alia, "a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint[.]" Pa.R.Crim.P. 560(B)(5); see also Commonwealth v. Sims , 919 A.2d 931, 939 (Pa. 2007) (stating that "[t]o comport with due process, the notice provided must be sufficiently specific so as to allow the defendant to prepare any available defenses should he exercise his right to a trial."). Rule 560 further provides that "[t]he information shall contain the official or customary citation of the statute and section thereof, or other provision of law that the defendant is alleged therein to have violated; but the omission of or error in such citation shall not affect the validity or sufficiency of the information." Pa.R.Crim.P. 560(C).
We will first address Fisher's claim as it pertains to Rule 564. This Court has explained that
[t]he purpose of [] [R]ule [564] is to ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. When a challenge is raised to an amended information, the salient inquiry is
Commonwealth v. Samuel , 102 A.3d 1001, 1008-09 (Pa. Super. 2014) (citation, quotation marks, and ellipses omitted); see also Commonwealth v. Sinclair , 897 A.2d 1218, 1220-21 (Pa. Super. 2006) (same).[w]hether the crimes specified in the original information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.
To the extent that Fisher's issue requires us to interpret the language of Rule 564, we are mindful of the following: "When construing a Rule of Criminal Procedure, we utilize the Statutory Construction Act when possible. Pa.R.Crim.P. 101(C). The object of any rule interpretation 'is to ascertain and effectuate the intention of' this Court. 1 Pa.C.S.A. § 1921(a)." Commonwealth v. Sepulveda , 144 A.3d 1270, 1279 n.18 (Pa. 2016). "The object of all interpretation is to ascertain and effectuate the intent of the drafters, a task that is best accomplished by considering the plain language of the provision(s) at issue." Commonwealth v. Far , 46 A.3d 709, 711 (Pa. 2012).
Further, in interpreting a particular statute [or Rule], we must remain always mindful of the principle that, although one is admonished to listen attentively to what a statute [or Rule] says[,] one must also listen attentively to what it does not say. Accordingly, it is not for the courts to add, by interpretation, to a statute [or Rule], a requirement which the [drafters] did not see fit to include.Commonwealth v. Gehris , 54 A.3d 862, 864-65 (Pa. 2012) (citations and quotation marks omitted).
Contrary to Fisher's claim, the Commonwealth was not mandated by Rule 564 to seek and obtain court approval before filing the Amended Information; the plain language of Rule 564 imposes no such mandatory duty. Though the Rule provides that a "court may allow an information to be amended ...," Pa.R.Crim.P. 564 (emphasis added), we disagree with Fisher's interpretation that this language means that the Commonwealth must receive express permission from a trial court to amend a criminal information. We are precluded from adding into the Rule a requirement that the drafters did not see fit to include. See Gehris , supra. Moreover, the Commonwealth's filing of the Amended Information did not constitute an improper "last-minute" addition of charges, violative of the purpose of Rule 564. See Samuel , supra. Rather, the Commonwealth filed the Amended Information in April 2013, and the case did not proceed to trial until over two years later, thus giving Fisher ample notice and time to mount a defense against the charges. Finally, we agree with the trial court that
Additionally, Fisher points us to no case law in support of his argument in this regard, nor does our independent research disclose any.
[t]he crimes specified in the original [I]nformation involve the same basic elements[,] and evolved out of the same factual situation[,] as the crimes specified in the [A]mended [I]nformation. [Fisher] is [thus] deemed to have been placed on notice regarding his alleged criminal conduct and therefore[, Fisher] is not prejudiced by this change.Trial Court Opinion, 5/26/16, at 17 (citing Sinclair , supra ); see also Samuel , supra.
We also discern no violation of Rule 560. Importantly, Fisher concedes that the Rule explicitly provides that "the omission of or error in such citation[, i.e., to the statute it is alleged that the defendant violated,] shall not affect the validity or sufficiency of the information." Pa.R.Crim.P. 560(C) (emphasis added); see also Commonwealth v. Morales , 669 A.2d 1003, 1006 (Pa. Super. 1996) (stating that "pursuant to Pennsylvania law, an information is not to be read in an overly technical form. Thus, we will arrest judgment only when an error misleads a defendant as to the charges against him, precludes him from anticipating the Commonwealth's proof, or impairs a substantial right."). Additionally, the content of the Amended Information was sufficiently "specific so as to allow [Fisher] to prepare any available defenses should he exercise his right to a trial." Sims , 919 A.2d at 939; see also Pa.R.Crim.P. 560(B)(5). Accordingly, Fisher's first issue does not entitle him to relief.
In his second issue, Fisher contends that the trial court erred by denying his Motion to dismiss, asserting that the Commonwealth violated his speedy trial rights under Pa.R.Crim.P. 600. See Brief for Appellant at 29-41. Fisher summarizes his claim as follows:
Essentially, ... the delay [in bringing his case to trial] began after several of Fisher's [M]otions were not promptly scheduled for a hearing as a result of the Commonwealth's lack of due diligence. [] [A]s a result, the time should be attributed to the Commonwealth, which [results in a] violation of Pa.R.Crim.P. 600 ....Id. at 33; see also id. (listing Fisher's five pretrial Motions that allegedly "were not decided or scheduled in a timely fashion"); id. at 34-35 (asserting that there were delays in scheduling a hearing on Fisher's discovery requests, which should be attributable to the Commonwealth); id. at 40 (asserting that "the Commonwealth did not demonstrate that it 'exercised due diligence by opposing or responding to the pretrial motion[s].'" (quoting Commonwealth v. Hill , 736 A.2d 578, 587 (Pa. 1999))).
We review such claims according to the following principles:
In evaluating Rule 600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion.Commonwealth v. Thompson , 93 A.3d 478, 486-87 (Pa. Super. 2014) (citations, brackets and ellipses omitted).
. . .
The proper scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party.
Additionally, when considering the trial court's ruling, this Court is not permitted to ignore the dual purpose behind Rule 600. Rule 600 serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society. In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
In its Opinion, the trial court summarized and addressed Fisher's claims concerning his Rule 600 challenge, discussed the relevant law, and determined that the Commonwealth had exercised due diligence in bringing Fisher's case to trial. See Trial Court Opinion, 5/26/16, at 18-21. We affirm based on the trial court's rationale with regard to this issue. See id.
In his third issue, Fisher argues that the trial court committed an error of law, which caused him unfair prejudice at trial, by precluding defense counsel from cross-examining the victim's mother (and, likewise, the victim) regarding the victim's having allegedly expressed to the prosecutor prior to trial a reluctance to testify (hereinafter referred to as "the purported reluctance comments"). See Brief for Appellant at 42-51. Fisher urges that the trial court erred as a matter of law in determining that the purported reluctance comments were privileged communications protected from inquiry. Id. at 45-46. According to Fisher, this topic was relevant and material, and defense counsel should have been permitted to cross-examine the victim and his mother on this matter to impeach the victim's credibility. See id. at 46-50. Fisher avers that the court's ruling in this regard "allowed the jury not to weigh favorable evidence [to the defense], which certainly would have been useful in the determination of the credibility of [the victim]." Id. at 49 (emphasis omitted); see also id. at 50 (asserting that cross-examination concerning the victim's reluctance to testify was particularly necessary "especially in light of the alleged discrepancy of the [June 30, 2012] conversation where words were allegedly uttered by Fisher to [the victim].").
"[T]he scope of cross examination is a matter within the trial court's discretion and will not be disturbed absent an abuse of that discretion." Commonwealth v. Kouma , 53 A.3d 760, 768 (Pa. Super. 2012) (citation omitted); see also Commonwealth v. Lopez , 57 A.3d 74, 81 (Pa. Super. 2012) (stating that "in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. ... To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." (citation omitted)).
In its Opinion, the trial court addressed Fisher's claim and determined that the court did not err in precluding cross-examination into the purported reluctance comments. See Trial Court Opinion, 5/26/16, at 37-41. We agree with the trial court's rationale and determination, and affirm on this basis as to Fisher's third issue, see id., with the following addendum.
We observe that wherein the trial court sets forth the relevant portions of the transcript, "Mr. Policicchio" is Fisher's counsel, and "Mr. Carbonara" is the prosecutor.
Initially, our research has disclosed no on-point case law guidance on this particular matter. Reluctance by minor victims to testify against their assailants in a criminal trial is not uncommon, particularly in cases involving alleged sexual crimes. See , e.g., Commonwealth v. Baldwin , 502 A.2d 253, 258 (Pa. Super. 1985) (observing that "child sexual abuse victims often ... are reluctant witnesses, sometimes refusing to testify or recanting prior allegations out of fear or coercion.") (collecting cases and persuasive authority). We are persuaded by the rationale advanced in the trial court's Opinion that it would be against public policy to permit inquiry into the purported reluctance comments where the victim made these comments to the prosecutor prior to trial. See id. at 41.
Nevertheless, even assuming, arguendo, that the trial court erred by prohibiting defense cross-examination concerning the purported reluctance comments, an error at trial does not automatically entitle an appellant to a new trial. Commonwealth v. Reese , 31 A.3d 708, 719 (Pa. Super. 2011) (en banc). "The harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial. ... Harmless error exists[, in relevant part,] if the record demonstrates [that] ... the error did not prejudice the defendant or the prejudice was de minimis ...." Commonwealth v. Hairston , 84 A.3d 657, 671 (Pa. 2014) (citations and quotation marks omitted).
Even if Fisher was prejudiced by being prohibited from questioning the victim's mother as to whether the victim had previously expressed hesitation to testify against his neighbor in a criminal trial, such prejudice was de minimis. See id . This is particularly true where the victim, in fact, chose to testify at trial (which calls into question the relevance of the victim's prior alleged reluctance). Moreover, we determine that even if the trial court had permitted cross-examination into the purported reluctance comments, there is no reasonable possibility that this would have resulted in a different verdict. See Commonwealth v. Mitchell , 839 A.2d 202, 214-15 (Pa. 2003) (stating that "[a]n error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable possibility that the error may have contributed to the verdict, it is not harmless."). Accordingly, we conclude that Fisher's third issue lacks merit.
In his fourth issue, Fisher avers that the trial court erred when it permitted the jury to take into deliberations a handwritten police statement given by the victim on July 3, 2012 (hereinafter "the police statement"). See Brief for Appellant at 51-56. Fisher argues that
We note that Fisher does not challenge the admissibility of the victim's written police statement. See , e.g., Brief for Appellant at 52 (asserting that "[t]he problem becomes allowing the jury to actually have a written statement of the witness."); see also Trial Court Opinion, 5/26/16, at 42 (stating that "[Fisher] did not object at trial, nor in his Motion for New Trial, to [the police] statement being marked [as an exhibit] and used at trial ...[; r]ather, [Fisher] takes issue with the statement having been provided to the jury.").
the entire case against [him] was based on the testimony of [the victim]. And, the exact words which Fisher is alleged to have used to "solicit" [the victim] are the key to demonstrate the elements of the offenses with which Fisher was charged. ... [U]nder the circumstances where there is vigorous debate as to a discrepancy in the testimony, ... it is unduly suggestive to the jury to readily accept the version of the testimony offered by a victim when the jury is allowed to read the victim's actual statement.Id. at 53. Fisher concedes that "the publication to the jury of the [police] statement ... is not specifically prohibited by Pa.R.Crim.[P.] 646(C), allowing the publication of the statement to the jury to fall within the discretion of the trial judge." Brief for Appellant at 64 (footnote added). Notwithstanding, Fisher argues that the trial court's ruling was an abuse of discretion. Id.
Rule 646 provides, in relevant part, that "[u]pon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph (C)." Pa.R.Crim.P. 646(A).
"Whether an exhibit should be allowed to go out with the jury during its deliberation is within the sound discretion of the trial judge." Commonwealth v. Barnett , 50 A.3d 176, 194 (Pa. Super. 2012); see also Pa.R.Crim.P. 646(A). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill will or partiality, as shown by the evidence of record." Commonwealth v. Melvin , 103 A.3d 1, 35 (Pa. Super. 2014). "The underlying reason for excluding certain items from the jury's deliberations is to prevent placing undue emphasis or credibility on the material, and de-emphasizing or discrediting other items not in the room with the jury." Barnett , 50 A.3d at 194 (citation omitted). "Our courts have rarely found that materials given to juries during deliberations constitute reversible error. In the cases that have found reversible error, however, the prejudicial effect of the evidence in question was severe and readily apparent." Id. (collecting cases).
In the instant case, we do not deem the prejudicial effect (if any) of the police statement to be severe. As defense counsel and the prosecutor pointed out during trial, the police statement contained certain accounts made by the victim of the events on June 30, 2012, which were both consistent and inconsistent with the victim's testimony at the preliminary hearing and trial. See Trial Court Opinion, 5/26/16, at 44-46 (setting forth the relevant portions of the trial transcript); see also id. at 47 (wherein the trial court found that defense counsel had attempted to impeach the victim through cross-examination concerning "small inconsistent statements" between the victim's testimony and the police statement). Accordingly, the jury's having possessed the police statement did not give it access to information favorable only to the Commonwealth. Moreover, we cannot agree with Fisher that publication of the police statement placed undue emphasis or credibility on the material contained therein. See Barnett , 50 A.3d at 194. Therefore, we conclude that the trial court acted within its discretion, pursuant to Rule 646(A), when it denied Fisher's challenge to the jury possessing the police statement during deliberations. See id.; see also Commonwealth v. Causey , 833 A.2d 165, 178 (Pa. Super. 2003) (stating that under Rule 646 "a prosecution witness's statement entered into trial evidence as an exhibit may be sent out to the jury.").
In his fifth issue, Fisher argues that "the trial court erred in denying his Motion in Limine to preclude the admission of an email exchange between [Fisher] and his co-worker[,] because the[] [emails] were irrelevant and highly and unfairly prejudicial." Brief for Appellant at 56. The email exchange, admitted into evidence at trial, provided, in relevant part, as follows:
[Fisher's male co-worker]: Did you mow your lawn, the cheerleader, or the redhead that you said you were going to get pics for me to make john jealous?Commonwealth's Trial Exhibit A (hereinafter referred to as "the email"); see also N.T., 8/26/15, at 1.176-77. Fisher asserts that the email was inadmissible under Pennsylvania Rule of Evidence 403, which provides that "[t]he [trial] court may exclude relevant evidence if its probative value is outweighed by a danger of ... unfair prejudice ...." Pa.R.E. 403; see also Brief for Appellant at 58-59 (arguing that the email was unfairly prejudicial because "1) it implies that [Fisher] was photographing [the victim]; 2) it implies that [Fisher] found [the victim's] red hair attractive; 3) it implies [that Fisher] looked at [the victim] to evaluate his attractiveness ...; [and] 4) it implies that [Fisher] has improper voyeuristic tendencies by noting that he (Fisher) may video[]tape [the victim].").
[Fisher]: Yeah. I no longer discuss the down-hill neighbors. Mother's insanity appears to have been passed along in the genes. Taking pictures of [the victim in the instant case] would probably result in police cars swarming my place. Besides, the red hair is the only good feature, he's rather odd looking. I'm seriously considering a fence and video surveillance, so screen shots in the future might be possible.
"A trial court's decision to ... deny a motion in limine is generally subject to an evidentiary abuse of discretion standard of review." Commonwealth v. Williams , 91 A.3d 240, 248 (Pa. Super. 2014) (en banc). "Relevance is the threshold for admissibility of evidence." Commonwealth v. Tyson , 119 A.3d 353, 358 (Pa. Super. 2015); see also Pa.R.E. 402. "Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence[,] and the fact is of consequence in determining the action." Pa.R.E. 401; see also Tyson , 119 A.3d at 358 (stating that "[e]vidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact."). Although a trial court may exclude relevant evidence if its probative value is outweighed by a danger of unfair prejudice,
[e]vidence will not be prohibited merely because it is harmful to the defendant. [E]xclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based on something other than the legal propositions relevant to the case .... This Court has stated that it is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand[.]Kouma , 53 A.3d at 770 (citation omitted); see also Pa.R.E. 403, cmt. (defining "unfair prejudice" as "a tendency to suggest a decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially.").
Here, the trial court opined that the email is "clearly relevant" and probative of whether Fisher had propositioned the victim for unlawful sexual contact. See Trial Court Opinion, 5/26/16, at 34. In particular, the trial court stated that
[t]he issue in this case was whether [Fisher] propositioned [the victim] for oral sex and made comments to the effect that he found [the victim's] red hair attractive. The email established that [Fisher] had made statements about photographing [the victim], and that he found [the victim's] red hair to be a 'good feature.' [Fisher's] statements make it more probable that [Fisher] found [the victim] attractive, and therefore more likely to have propositioned [the victim].Id. The trial court further found that "the email's relevance was not outweighed by unfair prejudice." Id. Moreover, the trial court stated that it "found the jury was capable of determining the extent to which the email corroborated [the victim's] claims, and that the jury was competent to ascertain whether [Fisher's] statements [in the email] were jokes, in earnest, or somewhere in between." Id. We agree with the trial court's determinations concerning the admissibility of the email and, discerning no abuse of discretion, conclude that the trial court did not abuse its discretion by denying Fisher's Motion in limine. See Williams , supra.
In his sixth issue, Fisher contends that the trial court abused its discretion by considering improper information in imposing his sentence, including hearsay evidence. Brief for Appellant at 60.
Fisher challenges the discretionary aspects of his sentence, from which there is no automatic right to appeal. See Commonwealth v. Mastromarino , 2 A.3d 581, 585 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether the 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 the 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. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (quotation marks and some citations omitted).
Here, Fisher filed a timely Notice of Appeal and preserved the challenge to his sentence in a post-sentence Motion. Fisher also included the requisite Rule 2119(f) Statement in his brief. Accordingly, we will review Fisher's Rule 2119(f) Statement to determine whether he has raised a substantial question.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.Commonwealth v. Disalvo , 70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted); see also 42 Pa.C.S.A. § 9781(b).
In his Rule 2119(f) Statement, Fisher argues, in relevant part, as follows:
[T]he trial court committed an abuse of discretion when it considered the [SOAB] Report as a factor in imposing sentence despite the fact that Fisher had never been declared by the court to be a sexually violent predator and, [where] Fisher [had] not participat[ed] in the interview leading to the report[,] the [SOAB
R]eport contained almost nothing but hearsay concerning his background.Brief for Appellant at 60.
Fisher's claim presents a substantial question. See Commonwealth v. Shugars , 895 A.2d 1270, 1274 (Pa. Super. 2006) (stating that a substantial question is presented where the appellant alleges that the sentencing court relied upon impermissible factors in fashioning a sentence).
We review discretionary aspects of sentence claims under the following standard: "[S]entencing 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." Commonwealth v. Fullin , 892 A.2d 843, 847 (Pa. Super. 2006).
In its Opinion, the trial court addressed Fisher's challenge to his sentence, adeptly summarized the applicable law, and determined that the sentencing court did not abuse its discretion by considering the information contained in the SOAB Report. See Trial Court Opinion, 5/26/16, at 51-55. The trial court's cogent analysis is supported by the law and the record, and we discern no abuse of discretion by the court in sentencing Fisher within the standard range of the sentencing guidelines. We, therefore, affirm on this basis in rejecting Fisher's sixth issue. See id.
In his seventh issue, Fisher challenges the sufficiency of the evidence supporting his convictions. See Brief for Appellant at 11-18.
As a prefatory matter, we consider whether Fisher has waived his sufficiency of the evidence claim. Fisher presented this issue in his court-ordered Rule 1925(b) Concise Statement as follows: "[Fisher] asserts as error that the verdict is against both the weight and sufficiency of the evidence." Concise Statement, 4/15/16, at ¶ 10. In its Opinion, the trial court determined that Fisher had waived the sufficiency claim for his lack of specificity in the Concise Statement. See Trial Court Opinion, 5/26/16, at 56-57.
This Court has observed that
when challenging the sufficiency of the evidence on appeal, the [a]ppellant's 1925 statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal. Such specificity is of particular importance in cases where, as here, the [a]ppellant was convicted of multiple crimes[,] each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009) (internal citations and quotation marks omitted).
In the instant case, Fisher's Concise Statement fails to specify the element or elements upon which the evidence was insufficient, and failed to specify which convictions he was challenging. Accordingly, Fisher waived this issue. See id.; Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013) (ruling that the appellant had waived his sufficiency challenge where he "not only failed to specify which elements he was challenging in his Rule 1925(b) statement, [but] also failed to specify which conviction he was challenging."); see also Commonwealth v. Veon , 109 A.3d 754, 775 (Pa. Super. 2015) (vacated on other grounds) (citing Garland , supra , and finding the appellant's sufficiency challenge waived where he raised this claim as follows in his "sweeping and generalized" Rule 1925(b) statement: "[t]he evidence was insufficient to prove beyond a reasonable doubt that Mr. Veon committed any crime whatsoever.").
In his final issue, Fisher argues that the jury's verdict was against the weight of the evidence, asserting that "the evidence which was heard by the jury shows that the version testified to by Fisher was so clearly of much greater weight than was that presented by [the victim]." Brief for Appellant at 19. Fisher urges that the verdict "shocks the conscience, as there is absolutely no evidence ... of any specific conduct or action by Fisher against [the victim], other than idle talk and random conversation." Id.
In reviewing Fisher's claim, we are cognizant that
[t]he weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. A new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. 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. Gonzalez , 109 A.3d 711, 723 (Pa. Super. 2015) (quotation marks and citations omitted); see also Commonwealth v. Sanchez , 36 A.3d 24, 27 (Pa. 2011) (stating that "[o]n appeal, [an appellate] Court cannot substitute its judgment for that of the jury on issues of credibility, or that of the trial judge respecting weight.").
On appeal, our purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence.
In its Opinion, the trial court addressed Fisher's claim and determined that the verdict was not against the weight of the evidence. See Trial Court Opinion, 5/26/16, at 55-56. We discern no abuse of discretion in the trial court's determination, nor does the jury's verdict shock our collective conscience. Accordingly, we affirm with regard to Fisher's final issue based on the rationale in the trial court's Opinion. See id.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/20/2017
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