Opinion
J-S44011-19 No. 1511 WDA 2018
09-10-2019
COMMONWEALTH OF PENNSYLVANIA v. RICHARD WILLIAM GNIEWKOWSKI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered May 23, 2018
In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0001610-2017 BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY SHOGAN, J.:
Richard William Gniewkowski ("Appellant") appeals from the judgment of sentence entered after a jury convicted him of aggravated assault, simple assault, and recklessly endangering another person. We affirm.
18 Pa.C.S. §§ 2702(a)(6), 2701(a)(3), and 2705, respectively.
The trial court set forth the factual evidence of this matter in a memorandum opinion denying Appellant's post-sentence motions. Memorandum Opinion and Order, 9/21/18, at 5-9. In short, this case stems from an incident that occurred late at night on April 9, 2017, during which Appellant pointed a loaded rifle at two Pennsylvania State Troopers. The troopers were responding to Appellant's home based on a call from an alarm company and announced themselves to Appellant as state police. N.T., 12/12/17, at 47-69, 106-119. Once in custody, Appellant claimed that he thought the troopers were intruders. Id. at 124, 209, 212. At trial, Appellant raised a defense of justification based on the Castle Doctrine, and the trial court instructed the jury on justification. Id. at 314-318.
Formalized into statute by the Pennsylvania Legislature in 2011, "the castle doctrine is an evidentiary means by which a defendant may attempt to prove justification by self-defense." Commonwealth v. Cannavo , 199 A.3d 1282, 1287 (Pa. Super. 2018); 18 Pa.C.S. § 505(b)(2.1), (2.2).
Following his conviction on December 13, 2017, the trial court sentenced Appellant on May 23, 2018, to incarceration for an aggregate term of twenty-one to forty-two months. Immediately after sentencing, defense counsel made an oral motion to continue Appellant's bond. With the Commonwealth's consent, the trial court promptly conducted a hearing on the motion; it then denied the request for bond pending appeal. N.T., 5/23/18, at 29; Order, 5/24/18.
Appellant filed a post-sentence motion and a motion for reinstatement of bond pending appeal on June 4, 2018, and the Commonwealth filed a response on June 6, 2018. After modifying Appellant's sentence to reflect that the penalty for simple assault merged with the penalty for aggravated assault, the trial court denied Appellant's post-sentence motion. Memorandum Opinion and Order, 9/21/18, at 1, 3. This appeal followed. Appellant and the trial court complied with Pa.R.A.P. 1925.
"[A] written post-sentence motion shall be filed no later than 10 days after imposition of sentence." Pa.R.Crim.P. 720(A)(1). Because the ten-day period for filing post-sentence motions fell on Saturday, June 2, 2018, Appellant had until Monday, June 4, 2018, to file his post-sentence motion. See 1 Pa.C.S. § 1908 (excluding weekend and holidays from the computation of time when the last day of the time period falls on a weekend or holiday).
In its Pa.R.A.P. 1925(a) opinion to this Court, the trial court incorporated by reference its September 21, 2018 Memorandum Opinion and Order. Trial Court Opinion, 11/26/18, at 1.
On appeal, Appellant presents the following questions for our consideration:
1. Whether the trial court erred as a matter of law as to the weight of the evidence not dismissing the charges because no reasonable jury could have concluded that [Appellant] was guilty of the crimes charged given the Castle Doctrine applies and there was no evidence to the contrary?Appellant's Brief at 6.
2. Whether the trial court erred or abused its discretion in denying Appellant's motion for judgment of acquittal as the facts presented to the jury were not sufficient for a reasonable jury to find Appellant guilty beyond a reasonable doubt?
3. Whether the trial court abused its discretion in denying Appellant's motion for bond pending appeal?
4. Whether the trial court abused its discretion in sentencing Appellant to an aggregate sentence of twenty-one (21) to forty-two (42) months [of] incarceration where there was evidence of mitigation?
We first address Appellant's second issue because a successful sufficiency-of-the-evidence claim requires discharge. Commonwealth v. Mikitiuk , ___ A.3d ___, ___, 2019 PA Super 195, *7 (Pa. Super. filed June 20, 2019). As a preliminary matter, we must consider whether Appellant has preserved this issue for appellate review.
This Court has stated, "In order to preserve a challenge to the sufficiency of the evidence on appeal, an appellant's [Pa.R.A.P.] 1925(b) statement must state with specificity the element or elements upon which the appellant alleges that the evidence was insufficient." Commonwealth v. Stiles , 143 A.3d 968, 982 (Pa. Super. 2016) (quoting Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013)) (internal quotation marks omitted; emphasis added); see also Pa.R.A.P. 1925(b)(4)(ii) ("[T]he Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge."). "Such specificity is of particular importance in cases where, as here, [A]ppellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Garland , 63 A.3d at 344. Failure to identify what specific elements the Commonwealth did not prove at trial in a Rule 1925(b) statement renders an appellant's sufficiency-of-the-evidence claim waived for appellate review. See Commonwealth v. Tyack , 128 A.3d 254, 261 (Pa. Super. 2015) (finding appellant's issues waived where "1925(b) statement simply declared, in boilerplate fashion, that the evidence was insufficient to support his conviction").
Here, Appellant generically states the following in his Pa.R.A.P. 1925(b) statement:
3. That the [c]ourt erred in denying [Appellant's] timely motion for judgment of acquittal as the facts presented to the jury were not a sufficient basis for a reasonable jury to find [Appellant] guilty beyond a reasonable doubt as [Appellant] was in his own home, had a reasonable belief that his life or family were in danger by a potential intruder, when he realized that the individuals outside were police (once they activated lights and sirens) he put the gun down and came outside of his home peaceably.Pa.R.A.P. 1925(b) Statement, 11/26/18, at ¶ 3. Appellant does not specify any element of any of the convictions that the Commonwealth failed to prove beyond a reasonable doubt. Additionally, Appellant's "Statement of Questions Involved" fails to specify what element(s) of the convictions he is challenging on appeal. Appellant's Brief at 6.
However, in the argument section of his appellate brief, Appellant complains, "[T]he Commonwealth failed to prove beyond a reasonable doubt that Appellant was not justified in his self-defense." Appellant's Brief at 26. According to Appellant, he "was presumed to have a reasonable belief that deadly force was necessary; there was no testimony to rebut Appellant's contention that he was in fact fearful for his and his family's lives, and Appellant willingly abandoned his weapon and did not provoke the encounter." Id. at 27-28. To the extent that Appellant attempts to challenge the sufficiency of the evidence disproving his justification defense, we conclude that his claim does not merit relief.
In reaching this conclusion, we rely on—and adopt as our own—the well-reasoned analysis of the trial court in its response to Appellant's post-sentence motions. Memorandum Opinion and Order, 9/21/18, at 3-10. After stating the applicable law, explaining Appellant's argument, and reiterating the facts of record, the trial court disposed of Appellant's sufficiency challenge as follows:
The evidence presented at trial, viewed in the light most favorable to the Commonwealth's case, was sufficient to prove beyond a reasonable doubt that [Appellant] attempted by physical menace to put a police officer, while in the performance of his duty, in fear of imminent serious bodily injury. Troopers Thompson and Gambone announced that they were law enforcement officers and [Appellant] responded with an expletive. [Appellant] pointed an AR-15 at Trooper Thompson and then at Trooper Gambone and kept it pointing at him as he retreated and remained behind a shed. [Appellant] aimed the weapon at Trooper Gambone for a period of approximately one minute. The weapon was later discovered to contain a chambered round and the selector switch was in the fire position. The evidence presented at trial was sufficient to support the jury's finding that the elements of aggravated assault, simple assault, and recklessly endangering another person had been proven by the Commonwealth beyond a reasonable doubt. Likewise, the evidence, viewed in the light most favorable to the Commonwealth's case, was sufficient to find that the Commonwealth met its burden of demonstrating that [Appellant's] actions were not justified.Id. at 9. In sum, the Commonwealth proved beyond a reasonable doubt that Appellant did not act in self-defense. Appellant's contrary claim lacks merit.
Next, we address Appellant's challenge to the weight of the evidence. Appellant contends, "[N]o reasonable juror could have come to a determination of guilt because Appellant was wholly justified by the 'Castle Doctrine' codified in 18 Pa.C.S. § 505." Appellant's Brief at 18. According to Appellant, his unrefuted testimony about his state of mind, his awareness of the scenario as it was unfolding, what he could not see from inside of his home, and his concern for his safety and his wife's safety established that "Appellant was justified in his action and it shocks one's conscience of justice to find Appellant guilty." Id. at 21.
In response, the Commonwealth submits multiple reasons why Appellant waived his weight claim. According to the Commonwealth: Appellant's post-sentence motion contains boilerplate language regarding weight; he did not include a weight claim in the brief supporting his post-sentence motion; he did not raise the weight claim at argument on his post-sentence motion; and the first time he provided any support for a weight claim was in his Rule 1925(b) statement. Commonwealth's Brief at 4-5.
We must determine whether Appellant has preserved his weight issue. Pennsylvania Rule of Criminal Procedure 607 governs challenges to the weight of the evidence and provides, in relevant part, as follows:
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
Pa.R.Crim.P. 607(A). It has long been the law in Pennsylvania that a boilerplate post-sentence motion merely stating that the verdict was against the weight of the evidence preserves no issue for appellate review unless the motion specifies in what way the verdict was against the weight of the evidence. Commonwealth v. Holmes , 461 A.2d 1268, 1270 (Pa. Super. 1983). "The purpose of [Rule 607] is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived." Comment to Pa.R.Crim.P. 607. "If an appellant never gives the trial court the opportunity to provide relief, then there is no discretionary act that this Court can review." Commonwealth v. Jones , 191 A.3d 830, 835 (Pa. Super. 2018) (footnote and citation omitted).(1) Orally, on the record, at any time before sentencing;
(2) By written motion at any time before sentencing; or
(3) In a post-sentence motion.
In his brief on appeal, Appellant purports to challenge the weight of the evidence establishing his defense of justification. In his post-sentence motion, however, Appellant presented only a boilerplate challenge to the weight of the evidence: "The verdicts at Counts 2, 4, 5 and 6 were against the weight of the evidence." Post-Sentence Motion/Motion for Reinstatement of Bond Pending Appeal, 6/4/18, at ¶ 10. Additionally, the record reflects that Appellant did not present a weight claim orally on the record or in writing at any time before sentencing or in his post-sentence motion brief. Brief in Support of Post-sentence Motion, 6/25/18. At the hearing on his post-sentence motion, Appellant argued a sufficiency-of-the-evidence issue, not a weight-of-the-evidence issue. See N.T., 7/30/18, at 3, 15; Memorandum Opinion and Order, 9/21/18, at 3. Based on the foregoing, we deem Appellant's weight-of-the-evidence challenge waived on appeal. Jones , 191 A.3d at 835.
Even if this claim were not waived, we would deny Appellant relief. Sitting as the finder of fact, the jury was free to believe all, part, or none of the evidence against Appellant. Commonwealth v. Tejada , 107 A.3d 788, 792-793 (Pa. Super. 2015). The jury weighed the evidence and concluded that Appellant participated in the crimes in question, thus discrediting Appellant's version of events and proffered justification for his actions. We would agree with the trial court that this determination is not so contrary to the evidence as to shock one's sense of justice. Memorandum Opinion and Order, 9/21/18, at 5. We would decline to assume the role of fact-finder and to reweigh the evidence. Accordingly, we would conclude the trial court did not abuse its discretion in refusing to grant relief on Appellant's challenge to the weight of the evidence.
Appellant's third issue challenges the trial court's denial of bond pending appeal. According to Appellant:
[he] raised serious health issues for purposes of bond pending his appeal. He believes that both his issues raised on appeal have merit, which have a likelihood of success to dismiss the charges and/or vacate his sentence and his medical conditions warranted release on bond pending his appeal. . . .Appellant's Brief at 30-31 (citing N.T., 7/30/18, at 4, 17).
Additionally, Appellant should have been released on bond pending his appeal because he was on bond for the duration of his trial process and acted in accordance with all bail conditions. Furthermore, his family relationships and family health issues are very serious. His is very nearly the sole income between [him] and his wife, and his imprisonment (while appealing issues with strong merit) was and continues to be a significant hardship on his family.
We have explained that, following a verdict of guilt, a defendant has no state or federal constitutional right to bail. Commonwealth v. McDermott , 547 A.2d 1236, 1242 (Pa. Super. 1988) (citations omitted). "After conviction and pending final disposition of all direct appeal proceedings, allowance of bail in non-capital cases is left to the discretion of the trial court." Id. (citing, inter alia, Commonwealth v. Myers , 21 A. 245, 247 (Pa. 1891)). Specifically, after sentencing, "when the sentence imposed includes imprisonment of [two] years or more, the defendant shall not have the same right to bail as before verdict, but bail may be allowed in the discretion of the judge." Pa.R.Crim.P. 521(B)(2). Rule 521 does not give a defendant the right to bail. Rather, "[t]he provisions of [Rule 521] set forth the procedural rules adopted by our Supreme Court to govern the exercise of this discretion." McDermott , 547 A.2d at 1242 (citation omitted). This Court knows of no statutory or rule-based factors that govern such discretion, including consideration of Appellant's likelihood of success and medical condition, which are the bases of Appellant's claim. Accordingly, we ascertain no abuse of discretion in this instance.
Formerly Pa.R.Crim.P. 4009
Finally, Appellant challenges the low-end, standard-range sentence of twenty-one to forty-two months, where there was evidence of mitigation. Appellant's Brief at 33. Such a claim challenges the discretionary aspects of his sentence. See Commonwealth v. Cruz-Centeno , 668 A.2d 536, 545 (Pa. Super. 1995) (stating allegation that court ignored mitigating factors challenges discretionary aspects of sentencing).
We note that "[t]he right to appellate review of the discretionary aspects of a sentence is not absolute." Commonwealth v. Zirkle , 107 A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the discretionary aspects of a sentence, the appeal should be considered a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury , 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
Id. at 170 (citing Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006)).[W]e 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. [708]; (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).
Herein, Appellant brought a timely appeal and included in his appellate brief the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Notice of Appeal, 10/22/18; Appellant's Brief at 3. However, as the Commonwealth and trial court point out—and our review of the record confirms—Appellant did not raise a sentencing challenge in his post-sentence motion. Commonwealth's Brief at 21; Trial Court Opinion, 11/26/18, at 1; Post-Sentence Motion/Motion for Reinstatement of Bond Pending Appeal, 6/4/18. Thus, we deny Appellant's petition for allowance to appeal the discretionary aspects of his sentence.
Even if we considered Appellant's sentencing challenge, we would deny relief for two reasons. First, Appellant failed to raise a substantial question. See Commonwealth v. Matroni , 923 A.2d 444, 455 (Pa. Super. 2007) ("This Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review."). Second, the trial court properly considered:
1) the facts of the case; 2) the pre-sentence investigation report; 3) the sentencing guidelines, including the deadly weapon used matrix; 4) [Appellant's] prior record score, which the [c]ourt considered to be a two; 5) statements made at the time of sentencing, including the statement of [Appellant's] wife; and 6) the statements of counsel.Trial Court Opinion, 11/26/18, at unnumbered 2; N.T., 5/23/18, at 27-29; accord Moury , 992 A.2d at 171 (where sentencing court had benefit of presentence investigation report, we can assume sentencing court "was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors"). Accordingly, we would conclude that the trial court did not abuse its discretion in sentencing Appellant in the low-end of the guidelines' standard range.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/10/2019
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