Opinion
J-S71044-16 No. 3513 EDA 2015
10-19-2016
COMMONWEALTH OF PENNSYLVANIA v. PATRICK SCOTT MONGEAU Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 20, 2015 in the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006068-2014 BEFORE: BOWES, PANELLA, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Patrick Scott Mongeau, appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas. Appellant challenges the sufficiency of the evidence and the discretionary aspects of his sentence. We affirm.
On December 21, 2015, this Court issued a rule to show cause as to why this appeal should not be quashed as untimely filed based upon the Court of Common Pleas of Bucks County Docket, which indicated that post-sentence motions were untimely filed on August 10, 2015. The docket in the certified record on appeal indicates that the sentence was imposed on April 20, 2015, and post sentence motions were filed on April 30, 2015. Therefore, the post sentence motion was timely filed. See Pa.R.Crim.P. 720(A)(1).
We adopt the facts as set forth by the trial court's opinion. See Trial Ct. Op., 4/8/16, at 2-5. Following a jury trial, Appellant was convicted of arson endangering inhabited property, reckless burning endangering personal property, criminal mischief, stalking, simple assault, harassment, and recklessly endangering another person. He was sentenced to consecutive terms of five to ten years' imprisonment for arson, three-and-a-half to seven years for reckless burning, two-and-a-half to five years for stalking, one to two years for simple assault, and one to two years each for recklessly endangering another person.
18 Pa.C.S. § 2705. Appellant was charged with four counts of reckless endangerment.
We note the trial court opinion indicates that Appellant was sentenced to "two-and-a-half to seven years for the crime of Stalking." Trial Ct. Op. at 1. However, Appellant was sentenced to two-and-a-half to five years for stalking. N.T. Sentencing Hr'g, 4/20/15, at 36. The trial court concludes in its opinion that Appellant's aggregate sentence was sixteen to thirty-two years' imprisonment, which reflects a maximum five years' imprisonment for stalking. Trial Ct. Op. at 1. Therefore, when the case returns to the trial court, the court is ordered to correct the record to reflect a two-and-one half to five year sentence for stalking. Cf. Commonwealth v. Holmes , 933 A.2d 57, 66 (Pa. 2007) (holding courts have inherent power to correct patent errors in sentencing order when case is not pending on appeal).
On April 30, 2015, Appellant filed a post-sentence motion for reconsideration of his sentence and for a new trial. On July 14, 2015, the trial court denied the motion to reconsider Appellant's sentence. On October 26, 2015, the court denied the motion for a new trial. On November 23, 2015, Appellant filed an appeal from the October 26th order. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion.
Appellant raises the following issues for our review:
A. Whether [A]ppellant filed timely post-sentencing motions, warranting a consideration of his appeal on the merits?
B. Whether the trial court abused its discretion in imposing the maximum penalty provided by law in that said sentence is manifestly excessive, only takes into consideration the serious nature of the crimes and the protection of the victim, fails to adequately take into consideration the rehabilitative needs of [A]ppellant, as well as his history and character, and exceeds the top of the aggravated range of the sentencing guidelines by double without stating sufficient reasons on the record?
C. Whether the evidence was insufficient to sustain the verdict of guilty as to all counts?
1. Whether the evidence was insufficient to sustain the verdict of simple assault where there was no evidence [A]ppellant intended to inflict bodily injury or attempted to inflict bodily injury or recklessly caused bodily injury by his actions of grabbing Kimberly Harvey Kelly [("Victim")] by the back of the neck and chin and flipping her to the ground and where all of her injuries were caused by the gravel on the ground?
2. Whether the evidence was insufficient to sustain the arson, reckless burning, criminal mischief and recklessly
Appellant's Brief at 6-7.endangering another person charges where there was no confession and no physical evidence linking [A]ppellant to the arson?
As a prefatory matter, we consider whether the notice of appeal was timely filed.
Rule of Criminal Procedure 720 sets forth the procedure to be followed when a post-sentence motion is filed. Under this rule, the trial court must decide the post-sentence motion within 120 days of the filing of the motion. Pa.R.Crim.P. 720(B)(3)(a). The trial court may grant one 30-day extension for a maximum of 150 days. Pa.R.Crim.P. 720(B)(3)(b). If the trial court fails to decide the motion within this time period, it is deemed denied by operation of law. Id. Where a post-sentence motion is denied by operation of law, the clerk of courts is directed to enter an order on behalf of the court and "forthwith furnish a copy of the order . . . to . . . the defendant(s) and defense counsel. . . ." Pa.R.Crim.P. 720(B)(3)(d).Commonwealth v. Perry , 820 A.2d 734, 735 (Pa. Super. 2003) (some citations omitted). Analogously, in the case sub judice, the clerk of courts did not enter an order indicating that Appellant's post-sentence motion was denied by operation of law. Therefore, we will not find the appeal untimely. See id.
Ordinarily, the time for filing an appeal begins to run on the date the post-sentence motion is denied, either by the court or by operation of law. . . . [O]ur review of the record clearly shows that the clerk of courts did not enter an order reflecting that [the a]ppellant's post-sentence motion was denied by operation of law. This Court has previously held that, where the clerk of courts does not enter an order indicating that the post-sentence motion is denied by operation of law and notify the defendant of same, a breakdown in the court system has occurred and we will not find an appeal untimely under these circumstances. Therefore, we decline to quash the appeal . . . .
Given our resolution of the timeliness of the appeal, we need not address the first issue raised on appeal.
Appellant challenges the discretionary aspects of his sentence. In his Pa.R.A.P. 2119(f) statement, he claims that
when the trial court imposed the sentence, the court only considered two factors: the protection of the community and the protection of the victims. The trial court failed to consider the mitigating evidence presented by [A]ppellant, his history and characteristics, and his rehabilitative needs.Appellant's Brief at 26, 28.
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Other than focusing on the serious nature of the offense and the protection of the victims, the trial court failed to state reasons on the record for imposing such a manifestly excessive sentence.
Appellant argues that the trial court abused its discretion in imposing the sentence, considering only the aforementioned two factors. Id. at 29. He avers that "a sentence at the top of the aggravated range of the guidelines would also address the nature of the charges and the protection of the victim." Id. at 32. He claims "the sentence was manifestly excessive because the trial court failed to put sufficient reasons on the record for exceeding the top of the aggravated range of the guidelines . . . ." Id. at 34.
This Court has stated,
discretionary aspects of [an appellant's] sentence [ ] are not appealable as of right. Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by satisfying a four-part test.
Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015) (some citations omitted).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).
Instantly, Appellant timely filed his appeal, preserved the issue of an excessive sentence in his post-sentence motion for reconsideration of sentence, and included a statement in his brief which conforms with Pa.R.A.P. 2119(f). See Appellant's Brief at 26-28. Accordingly, we ascertain whether Appellant has raised a substantial question. See Leatherby , 116 A.3d at 83.
"We conduct a case-by-case analysis to determine what allegations constitute a substantial question." Commonwealth v. Malovich , 903 A.2d 1247, 1252 (Pa. Super. 2006) (citation omitted); see also 42 Pa.C.S. § 9781(b). "A claim that a sentence is manifestly excessive such that it constitutes too severe a punishment raises a substantial question." Commonwealth v. Kelly , 33 A.3d 638, 640 (Pa. Super. 2011); Commonwealth v. Perry , 883 A.2d 599, 602 (Pa. Super. 2005) (concluding appellant raised a substantial question when he claimed that a sentencing court imposed an excessive sentence and failed to consider substantial mitigating factors). "[A]n averment that the court sentenced based solely on the seriousness of the offense and failed to consider all relevant factors raises a substantial question." Commonwealth v. Bricker , 41 A.3d 872, 875 (Pa. Super. 2012) (citation omitted).
We find that Appellant's Rule 2119(f) statement presents a substantial question. See id.; Kelly , 33 A.3d at 640; Perry , 883 A.2d at 602. Our standard of review is as follows:
Sentencing 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. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance to the trial court's sentencing determination:
[T]he sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
Furthermore,
Bricker , 41 A.3d at 875-76 (alterations and some citations omitted).Section 9781(c) specifically defines three instances in which the appellate courts should vacate a sentence and remand: (1) the sentencing court applied the guidelines erroneously; (2) the sentence falls within the guidelines, but is "clearly unreasonable" based on the circumstances of the case; and (3) the sentence falls outside of the guidelines and is "unreasonable." 42 Pa.C.S. § 9781(c). Under 42 Pa.C.S. § 9781(d), the appellate courts must review the record and consider the nature and circumstances of the offense, the sentencing court's observations of the defendant, the findings that formed the basis of the sentence, and the sentencing guidelines. The weighing of factors under 42 Pa.C.S. § 9721(b) is exclusively for the sentencing court, and an appellate court could not substitute its own weighing of those factors. The primary consideration, therefore, is whether the court imposed an individualized sentence, and whether the sentence was nonetheless unreasonable for sentences falling outside the guidelines, or clearly unreasonable for sentences falling within the guidelines, pursuant to 42 Pa.C.S. § 9781(c).
When 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 for rehabilitation. Where pre-sentence reports exist, we shall . . . presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself.Commonwealth v. Antidormi , 84 A.3d 736, 761 (Pa. Super. 2014) (quotation marks and citations omitted).
At the sentencing hearing, Appellant's counsel stated:
As a child, his parents divorced when he was very young. . . . He ended up with his mother, who was very physically and mentally abusive to him.N.T., 4/20/15, at 12-14. The trial court indicated that prior to sentencing, he read the Commonwealth's sentencing memorandum. Id. at 25. The Commonwealth's Pre-Trial Domestic Violence Investigation Report was attached to the Commonwealth's Sentencing Memorandum. Id. at 2; see also Commonwealth's Sentencing Mem., 2/23/15, at 1-9. Appellant initially objected, but ultimately withdrew his objection, to the introduction of the report into evidence. N.T. at 8.
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You can see from the information the Commonwealth has submitted that he has no convictions at 51 years old and for any violent crimes until this. He has no convictions from any of the other states he lived in for violent crimes. . . .
When he got here, he started having the mental health issues. He was diagnosed with PTSD as a result of his childhood, bipolar disorder, and severe depression. He was in and out of mental health facilities either as an inpatient or outpatient.
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He attempted suicide two times, once by cutting his wrists and once by od'ing on pills.
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When he got to the Bucks County Prison, they were treating him there for mental health problems. They gave him medication. Since basically his conviction on this, he has worked with the psychiatrist to wean him off the medication because they said it was mostly for having severe depression and they don't think at this point he is severely depressed.
After a careful consideration of the record, we find no abuse of discretion. See Bricker , 41 A.3d at 875-76. The trial court considered the Domestic Violence Investigation Report. See Antidormi , 84 A.3d at 761. We find the trial court adequately addressed this issue and affirm on that basis. See Trial Ct. Op. at 11-14 (holding Appellant's history, character and rehabilitative needs were pivotal factors in sentencing; protection of the public, gravity of offense in relation to the impact on five victims and the community, and rehabilitative needs of Appellant justified the sentence imposed).
Next, Appellant argues the evidence was insufficient to sustain the verdict of guilty as to the charge of simple assault. He avers that Victim
testified that [A]ppellant grabbed her by the back of her neck and her chin and flipped her to the ground. The injuries she sustained were a result of landing on gravel and dirt and were limited to scratches and bruises that did not require medical attention. Not the type of injuries that rise to the level of "substantial pain" or "physical impairment" that meet the definition of "bodily injury".Appellant's Brief at 37.
Our review is governed by the following principles: "A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000).
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict.Commonwealth v. Ratsamy , 934 A.2d 1233, 1235-37 (Pa. 2007) (citations and quotation marks omitted).
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When reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt. . . .
Simple assault is defined as follows:
(a) Offense defined.—Except as provided under Section 2702 (relating to aggravated assault), a person is guilty of assault if he:
18 Pa.C.S. § 2701(a)(1). Bodily injury is defined as "Impairment of physical condition or substantial pain." 18 Pa.C.S. § 2301.(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.]
The Commonwealth need not establish that the victim actually suffered bodily injury; rather, it is sufficient to support a conviction if the Commonwealth establishes an attempt to inflict bodily injury. This intent may be shown by circumstances which reasonably suggest that a defendant intended to cause injury.Commonwealth v. Richardson , 636 A.2d 1195, 1196 (Pa. Super. 1994) (citation omitted). In Richardson , this Court found the evidence sufficient to support a conviction for simple assault where the defendant punched the police officer in the face which caused the officer "to suffer a sore jaw for a couple of days but did not require him to go to a hospital or to miss work." Id.
At trial, Victim testified to the following. Appellant and Victim had an "on and off again" intimate relationship. N.T., 2/5/15, at 45. In September or October of 2013, Victim told Appellant she "wanted no more contact" with him. Id.
See Trial Ct. Op. at 2-3.
[The Commonwealth]: Did there come a time when you realized that your requests to not have contact were going ignored?
A: Yes.
Q: And so what did you then do for help?
A: It was just all about keeping him calm, but away from my children.
Q: Well, at some point did you receive a voice mail that alarmed you?
A: Yeah.
Q: And can you tell us about that?
A: When—when it was obvious that he wasn't going to get his way, he threatened me.
Q: What did he say?
A: He said he was going to kill me.
Q: Did you keep that voice mail?
A: Yeah.Id. at 49-50. The voice mail recording was played in open court. Id. at 51.
Victim testified regarding the incident at the Penn Warner Club campsite. Id. at 59. Appellant was outside of the camper and she was trying to calm him down but was unsuccessful. Id. at 65. Appellant "forcibly kissed" Victim and "it hurt." Id.
See Trial Ct. Op. at 3-4. --------
[The Commonwealth]: Did he say anything to you?
A: He said, you have a week to fix this.
Q: Fix what?
A: I guess me seeing Joe.
Q: And then what did he say after that?
A: I said, why? You know, like I am not understanding why he has to act like this and what he is thinking.
Q: And did he respond?
A: He said, you have a week to fix this or we are dead.
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I said, why do I have to die? And he said, because we are soul mates, and that's when he grabbed for me.
Q: He grabbed for you. How did he grab for you?
A: He went for my neck.
Q: Okay. Can you show us using your hands how it happened?
A: He goes for my neck like he is going to snap my neck. That's how he is going to, quote, unquote, kill me. And so he does this gesture where he grabs the back of my neck and my chin (demonstrating).N.T. at 66-69.
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One hand—whatever hand it is—is on my chin twisting me one way and the other hand twists me the opposite way.
Q: Of your head?
A: Yeah, to break my neck.
Q: And you had, unfortunately, been in this position before?
A: Yeah. Last time I had like nerve damage. It took four, almost five months for the pain to go away. I thought it was permanent, actually.
A: And so the last time, how did you react when you were in that position?
A: I fought it.
Q: And so this time what did you do?
A: I just went with it . . . .
Q: And so you were flipped. And where did you end up?
A: On my back on the road in the gravel.
* * *
Q: Were you hurting after this?
A: Yeah. I mean, I landed on a bunch of gravel, big stone gravel and dirt. My arms and my back were bruised and scratched up.
The trial court opined:
In the instant case, [Appellant] applied force to a vital and vulnerable part of Victim's body. He used sufficient force to cause her to be thrown to the ground. Given . . . his threats to kill her, the jury could reasonably infer that [Appellant] intended to cause bodily injury and could find that he took a substantial step towards accomplishing that goal.Trial Ct. Op. at 7.
Instantly, the record, viewed in the light most favorable to the Commonwealth, reveals that Appellant attempted to cause, or intentionally, knowingly or recklessly caused, bodily injury to Victim. See 18 Pa.C.S. § 2701(a)(1); 18 Pa.C.S. § 2301; Richardson , 636 A.2d at 1196. After careful consideration of the entire record, we hold the evidence believed by the jury was sufficient to sustain a simple assault conviction. See Ratsamy , 934 A.2d at 1235-36.
Lastly, Appellant contends the evidence was insufficient to sustain the arson, reckless burning, criminal mischief, and recklessly endangering another person charges where there was no confession and no physical evidence linking Appellant to the arson. Appellant's Brief at 40.
As a prefatory matter, we consider whether Appellant has waived this issue. In Commonwealth v. Williams , 959 A.2d 1252 (Pa. Super. 2008), the appellant raised the following issue in the Rule 1925(b) statement and brief: "There was insufficient evidence to sustain the charges of Murder, Robbery, VUFA no license, and VUFA on the streets. Thus [Appellant] was denied due process of law." Id. at 1256. This Court found the issue waived.
If [an a]ppellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. The instant 1925(b) statement simply does not specify the allegedly unproven elements. Therefore, the sufficiency issue is waived.Id. at 1257 (some citations omitted).
Before leaving this issue, we note that the Commonwealth failed to object to the aforementioned defect in the 1925(b) statement. We also see that the trial court's opinion addressed the topic of sufficiency. The Commonwealth's failure and the presence of a trial court opinion are of no moment to our analysis because we apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not in a selective manner dependent on an appellee's argument or a trial court's choice to address an unpreserved claim. Thus, we find 1925(b) waiver where appropriate despite the lack of objection by an appellee and despite the presence of a trial court opinion.
Appellant raised the following issues in his Rule 1925(b) statement: "Whether the evidence was insufficient to sustain the arson, reckless burning, criminal mischief, and recklessly endangering another person charges where there was no confession and no physical evidence linking [A]ppellant to the arson." Statement of Matters Complained of on Appeal, 12/11/15, at 2 (unpaginated).
Appellant did not "specify the element or elements upon which the evidence was insufficient." See Williams , 959 A.2d at 1257. The fact that the Commonwealth did not object to the defect and that the trial court addressed the issue is of no moment. See id. Therefore, we find the issue waived. See id.
Additionally, Appellant cites no legal authority in support of this insufficiency claim. It is well established that the
failure to properly develop [a] claim and to set forth applicable case law to advance it renders [the] issue also waived. See Commonwealth v. Hunzer , 868 A.2d 498, 516 (Pa. Super. 2005) (holding that an appellant waived a claim where he failed to cite any legal authority in support of an argument in his appellate brief); Commonwealth v. Ellis , 700 A.2d 948, 957 (Pa. Super. 1997) (holding waiver results if an appellant fails to properly develop an issue or cite to legal authority to support his contention in his appellate brief).Id. at 1258. Therefore, even assuming arguendo that the issue was not waived based upon the deficient Rule 1925(b) statement, it is waived for failure to develop the claim with citation to legal authority. See id. Accordingly, we affirm the judgment of sentence and order the trial court to correct the record to reflect a two-and-a-half to five-year sentence for stalking.
Judgment of sentence affirmed.
Judge Panella Joins the Memorandum.
Judge Bowes Concurs in the Result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/19/2016
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