Opinion
J-S11004-14 No. 2272 EDA 2012
04-09-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DAVID WILLOUGHBY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered February 29, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014671-2010
BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, David Willoughby, appeals from the judgment of sentence of 15 to 30 years' incarceration, imposed after a jury convicted him of rape, involuntary deviate sexual intercourse (IDSI), aggravated assault, and sexual assault. We affirm.
The trial court set forth the facts adduced at Appellant's jury trial as follows:
[Appellant] and the complainant, [K.C.], were previously in a relationship. Shortly after 5:00 am on Friday, October 8, 2010, [Appellant] repeatedly called [K.C.] on both her house and cell phones. He went to her house, implored her to open the door, and said that he "just wanted to talk to [K.C.]. Frightened,Trial Court Opinion (TCO), 7/1/13, at 2-4 (citations to the record omitted).
[K.C.] called her friend Kevin who then contacted the police after listening to some of the conversation between [Appellant] and [K.C.] via a three-way call.
Police Officer Alexander DeJesus arrived at [K.C.'s] house at 6:18 am and observed [Appellant] coming out of [K.C.'s] backyard. Officer DeJesus took down [Appellant's] information and then spoke with [K.C.], who requested that [Appellant] leave the residence. Officer DeJesus instructed [Appellant] to leave [K.C.'s] property.
Later that morning, [K.C.] was with her two children at a bus stop when [Appellant] unexpectedly showed up in his car. He told [K.C.], "I didn't want you on the bus. I just want to talk to you." [K.C.] entered [Appellant's] car because her children were already inside the car. [Appellant] dropped off [K.C.'s] son at Cassidy Elementary School and then went to Little Shepherds Christian Learning Center to drop off [K.C.'s] daughter. At the learning center, [Appellant] again implored [K.C.] to "give [him] a small conversation" and said that he just wanted to talk to her. [K.C.] agreed to get back into the car after [Appellant] threatened to tase her and told her, "I would drag you" and "you know it would cause a scene." [Appellant] drove [K.C.] to his house and told her that[,] "you're coming in with me." After initially refusing, [K.C.] entered [Appellant's] home at around 9:00 am.
Once inside his house, [Appellant], who has a boxing background, told [K.C.], "look, you're playing with me" and smacked [K.C.] across her face. [Appellant] then took [K.C.'s] phone and said, "you're not going anywhere." After being struck in the face, [K.C.] tried to leave the house but [Appellant] pushed her. He told her to "get comfortable" and that she was not going anywhere. [Appellant] began to question [K.C.] about her current boyfriend Joseph Grant; [K.C.] refused to answer [Appellant's] questions. Her refusal led [Appellant] to punch, push, sit on, choke, and attempt to burn [K.C.]. [K.C.] tried to fight back, but [Appellant's] repeated punches up and down the side of [ K.C.'s] body and in her ribs forced [her] to accept that the only thing she could do was "ball up" in an effort to protect herself. In addition to hitting [K.C.], [Appellant] threw water on her, banged her head against the wall, and verbally demeaned her. At one point, [Appellant] went to the kitchen and got a knife.
[Appellant] then forced [K.C.] to go up the steps and told her, "you know I'm gonna fuck you, right?" [K.C.] responded that she did not want to have sex with [Appellant]. [Appellant] then told [K.C.], "take off your clothes or I'm gonna rip your clothes off." After being instructed to "get the dick," [K.C.] performed oral sex on [Appellant], but did so because she was beaten to the point of "submission." [K.C.] was not able to open her mouth to perform oral sex sufficiently enough for [Appellant] to climax. [Appellant] then began having vaginal intercourse with [K.C.], despite her pushing and hitting him to get off. [Appellant] became more aroused as [K.C.'s] resistance increased.
[Appellant] later drove [K.C.] to her son's football practice at around 6:00 pm, where she was able to get in contact with [her boyfriend,] Joseph Grant[,] and tell him what had happened. [K.C.'s] daughter had to be picked up by [K.C.'s] grandfather at day care, due to [K.C.] not being able to leave [Appellant's] house. Grant testified that [K.C.] "looked like crap" when he arrived at football practice. Grant had been concerned throughout the day because he had not been able to contact [K.C.]. [K.C.] did not initially want to go to the hospital, but because she was in so much pain she went to Lankenau Hospital on October 12, 2010, where she was found to have bruising. [K.C.] talked to police at the hospital and was later interviewed by Detective Sweeney.
Due to the sexual nature of the offenses in this case, we have used initials for the victim's name to protect her confidentiality.
Based on these facts, the jury convicted Appellant of the above-stated offenses. On February 29, 2012, the court sentenced Appellant to concurrent, mandatory terms of 10 to 20 years' incarceration for his rape and IDSI convictions, as well as a consecutive term of 5 to 10 years' imprisonment for his aggravated assault conviction. Appellant's sexual assault conviction merged for sentencing purposes.
Appellant filed a timely post-sentence motion which was denied by operation of law on July 18, 2012. He then filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he presents the following six issues for our review:
I. Is [] Appellant entitled to a new trial with respect to all charges because the judge's prejudicial and biased comments deprived him of a fair and impartial trial?Appellant's Brief at 5.
II. Is [] Appellant entitled to a new trial for the charge of aggravated assault, 18 Pa.C.S.A. §[]2702(a)(1), when the judge's prejudicial jury charge deprived him of his right to a fair and impartial jury?
III. Is [] Appellant entitled to a new trial when he was deprived of due process of law and the right to present witnesses on his behalf?
IV. Was the evidence at trial insufficient as a[]matter of law to support a conviction of aggravated assault, 18 Pa.C.S.A.[]§ 2702(a)(1)?
V. Was the conviction of aggravated assault, 18 Pa.C.S.A.[]§ 2702(a)(1), against the weight of the evidence?
VI. Was the sentence of incarceration for 15-30 years unreasonable, irrational, not guided by sound judgment and/or overly excessive?
In Appellant's first issue, he argues that during the course of his trial, the judge made numerous comments that "placed the court in the role of advocate," and demonstrated "extreme favoritism towards the prosecution while exhibiting palpable disdain and inappropriate condemnation of Appellant's trial counsel." Appellant's Brief at 15, 16. Appellant points to approximately thirteen places in the record where the court made these allegedly improper statements.
The challenged comments by the trial court can be found in the following portions of the trial transcript: N.T. Trial, 10/4/11, at 71, 123-24, 165-66, 168-69, 183, 218-19; N.T. Trial, 10/5/11, at 220-21, 225, 265, 272-73, 296-97.
The Commonwealth contends, however, that Appellant has waived his challenge to the court's statements by failing to lodge timely objections during trial. In support, the Commonwealth cites, inter alia, this Court's decision in Commonwealth v. Colon, 31 A.3d 309 (Pa. Super. 2011). In that case, Colon argued "that the trial judge made improper, sarcastic remarks towards [Colon] and improperly questioned the sole defense witness in a prejudicial, bias manner such that reversal [was] warranted." Id. at 316. While the Commonwealth contended that Colon had "waived his claims by failing to object to any of the trial judge's challenged remarks or questions," Colon averred that our Court should overlook the waiver based on our Supreme Court's decision in Commonwealth v. Hammer, 494 A.2d 1054 (Pa. 1985). Colon, 31 A.3d at 316.
In assessing the parties' arguments regarding waiver, this Court explained:
We agree with [Colon] that, in Hammer, our Supreme Court concluded that justice would not be served by strictly enforcing the waiver doctrine where the record revealed that objection by counsel would be meaningless and, in fact, intensify judicial animosity. Therefore, in Hammer, our Supreme CourtColon, 31 A.3d at 316-317.
overlooked defense counsel's failure to object to the trial judge's questioning of witnesses and addressed the substantive issue of whether such questioning constituted reversible error.
Subsequently, however, in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), our Supreme Court specifically overruled Hammer, indicating that, generally, the appellate courts will not overlook defense counsel's failure to object and, with regard thereto, an appellant may present claims of ineffective assistance of counsel in a [Post Conviction Relief Act (PCRA)] petition. [ See 42 Pa.C.S. §§ 9541-9546]. Indeed, recently, in Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. 2011) (en banc), an en banc panel of this Court reaffirmed Grant's limitation on overlooking the waiver doctrine and held that, unless an appellant makes an express, knowing, and voluntary waiver of review pursuant to the PCRA, this Court will not engage in review of ineffective assistance of counsel claims on direct appeal.
In light of our discussion in Colon, we cannot overlook defense counsel's failure to object to the statements of the trial judge that Appellant seeks to challenge herein. See also Commonwealth v. Montalvo, 956 A.2d 926, 936 (Pa. 2008) (noting "the general rule that, in order to preserve a claim on appeal, a party must lodge a timely objection at trial) (citing, inter alia, Commonwealth v. May, 887 A.2d 750, 758 (Pa. 2005) ("To the extent the claims would sound in trial court error, they are waived due to the absence of contemporaneous objections."); Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.")). Accordingly, we are compelled to conclude that Appellant's first issue is waived, without prejudice to his ability to raise an ineffective assistance of counsel argument in a timely-filed PCRA petition.
Appellant does not acknowledge his trial counsel's failure to object to the challenged comments by the trial court, or aver that counsel was ineffective in this regard. Thus, we need not assess whether we could review such an ineffectiveness claim under our Supreme Court's recent decision in Commonwealth v. Holmes, 79 A.3d 562, 577-78 (Pa. 2013) (reaffirming Grant 's rule that, absent certain circumstances, claims of ineffective assistance of counsel should be deferred until collateral review under the PCRA, but holding that such claims may be addressed on direct appeal where the trial court has determined the claim(s) are "both meritorious and apparent from the record so that immediate consideration and relief is warranted," or where the appellant's request for review of "prolix" ineffectiveness claims is "accompanied by a knowing, voluntary, and express waiver of PCRA review").
In Appellant's second claim, he avers that the trial court provided an incomplete and misleading jury instruction regarding the offense of aggravated assault. Namely, Appellant takes issue with the court's response to a jury question regarding the element of serious bodily injury for that offense. Appellant contends that the court improperly re-read "solely the prosecution-select portion of the charge," rather than "re-read[ing] the entire aggravated assault charge, so that the fragmented portion could be placed in its proper context." Appellant's Brief at 26.
Again, the Commonwealth argues that Appellant has waived this argument by failing to object to the challenged instruction. Because our review of the record confirms that defense counsel did not lodge an objection, we agree that Appellant's second issue is also waived. See N.T. Trial, 10/6/11, at 364-371; Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (finding appellant waived challenge to court's curative jury instruction by failing to object) (citing Commonwealth v. Hodge, 411 A.2d 503, 506 n.8 (Pa. Super. 1979) ("[F]ailure to object to the [jury] instruction at trial constituted a waiver of that claim.")).
Appellant next asserts that the trial court denied him his constitutional right to present witnesses on his behalf by excluding the testimony of Ali Bey. At trial, when asked to describe Bey's proposed testimony, defense counsel stated:
[Defense Counsel]: The witness is going to testify, if permitted, that on the evening of the preliminary hearing, [K.C.] called him and said that everything was blown out of proportion; she didn't tell the police it was a rape - they were her words - that she admits that she said things that she shouldn't have, so it shows her own admission that she's lying here in court today, and it's something the jury should hear.N.T. Trial, 10/5/11, at 325. In response, the Commonwealth argued that Bey's testimony was "absolute hearsay" and that, because K.C.'s alleged statement to Bey wa s not "written down," Bey's testimony regarding that statement met no exception to the rule prohibiting hearsay. Id. at 325-26; see also Pa.R.E. 802 ("Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute."). The Commonwealth alternatively argued that Bey's testimony was inadmissible because Appellant had not confronted K.C. with that statement on cross-examination. Id. 326-27. Defense counsel explained her reason for not confronting K.C. with her statement to Bey, stating, "the reason why I didn't ask her on cross-examination is because, well, I knew she would deny it, and I thought we'd get it from the horse's mouth." Id. at 327.
After considering these arguments, the trial court ruled that Bey's proposed testimony was not admissible. Id. at 328. In its Pa.R.A.P. 1925(a) opinion, the trial court explains that Bey's proposed hearsay testimony constituted "extrinsic evidence of an alleged prior inconsistent statement," which is admissible under Pa.R.E. 613(b) only when certain prerequisites are satisfied. Namely, Rule 613(b) states:
We note that the judge who presided over Appellant's trial retired prior to Appellant's sentencing hearing. At that point, the case was transferred to a different trial court judge who sentenced Appellant, and who also drafted the Rule 1925(a) opinion. See TCO at 1.
(b) Extrinsic Evidence of a Witness's Prior Inconsistent Statement. Unless the interests of justice otherwise require, extrinsic evidence of a witness's prior inconsistent statement is admissible only if, during the examination of the witness,Pa.R.E. 613(b).
(1) the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness;This paragraph does not apply to an opposing party's statement as defined in Rule 803(25).
(2) the witness is given an opportunity to explain or deny the making of the statement; and
(3) an adverse party is given an opportunity to question the witness.
Here, the trial court concluded that Appellant did not satisfy Rule 613(b), emphasizing that Appellant did not disclose the inconsistent statement to K.C. and provide her the opportunity to explain or deny making that statement. Indeed, "defense counsel made a strategic decision not to confront [K.C.] about these alleged statements during cross-examination of [K.C.]." TCO at 9. The court also reasoned that Bey's proposed testimony was not admissible under any other exception to the rule prohibiting hearsay. Id. at 9-10.
On appeal, Appellant first contends that Bey's testimony "was not subject to the limitations of Rule 613" because K.C.'s statement to Bey constituted a "statement[] by an opposing party." Appellant's Brief at 27-28. This argument is meritless, as K.C. was the victim in this case, not a party-opponent.
Alternatively, Appellant claims that even if K.C.'s statement to Bey was subject to Rule 613(b), the court excluded it for the improper reason that it was not reduced to writing. Appell ant's Brief at 28. Appellant maintains that "[b]ecause the prosecution successfully pressed upon the court the wrong rule of law, ... Appellant's trial counsel was never permitted to confront [K.C.] with her prior inconsistent statement." Id.
While we agree with Appellant that K.C.'s statement did not have to be in writing to be admitted under Rule 613(b), Appellant's argument is nevertheless meritless for several reasons. First, Appellant does not point to where in the record the trial court prevented his attorney from re-calling K.C. to the stand to confront her with her alleged statement to Bey. Moreover, the record convinces us that the court did not exclude Bey's testimony because K.C.'s statement was oral; instead, the court excluded that evidence because defense counsel did not cross-examine K.C. about her statement to Bey. Finally, even if the court did exclude Bey's testimony for the erroneous reason that K.C.'s statement was oral, this Court is permitted to affirm the trial court "on any vali d basis, as long as the court came to the correct result...." Wilson v. Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super. 2005) (citations omitted). Here, the record confirms that Appellant failed to confront K.C. with her alleged statement to Bey, thus failing to satisfy Rule 613(b). Therefore, the court did not abuse its discretion in excluding Bey's testimony. See Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation omitted) ("Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the trial court's decision absent a clear abuse of discretion.").
See Pa.R.E. 613(b)(1)(stating "the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness") (emphasis added).
In Appellant's fourth issue, he challenges the sufficiency of the evidence to support his conviction of aggravated assault. To begin, we note our well-settled standard of review:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as itCommonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.
The Crimes Code defines aggravated assault, in pertinent part, as follows:
(a) Offense defined.-- A person is guilty of aggravated assault if he:18 Pa.C.S. § 2702(a)(1). This Court has also stated that to prove the intent element of aggravated assault,
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
[t]he Commonwealth need only prove [the defendant] acted recklessly under circumstances manifesting an extreme indifference to the value of human life. For the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue.Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (quoting Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997)) (citations and emphasis omitted).
Here, Appellant contends that the Commonwealth's evidence was insufficient to prove that K.C. "suffered, or that Appellant attempted to cause, serious bodily injury." Appellant's Brief at 29. Appellant characterizes K.C.'s injuries as "soft-tissue bruising," and maintains that they did not constitute "serious bodily injury." Id. at 30. Appellant also avers that the Commonwealth did not establish that he specifically intended to inflict serious bodily injury upon K.C. Id. (citing Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978) ("Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.")).
We need not expressly determine whether K.C.'s injuries amounted to serious bodily injury, as we agree with the trial court that "there [was] sufficient evidence to establish beyond a reasonable doubt that [Appellant] acted with the specific intent to cause serious bodily injury." TCO at 5. The court explained:
[K.C.] suffered bruising on both her chest and her ribs. While these injuries by themselves are not severe enough to rise to the level of serious bodily injury, they are - in combination with [Appellant's] other actions - sufficient to establish his specific intent to cause serious bodily injury. [Appellant's] actions include slapping, punching, pushing, sitting on, choking, and trying to burn [K.C.]. [K.C.] tried to defend herself but was "floored" by a punch to the rib area that forced her to ball up on the floor to protect herself from [Appellant's] repeated assaults. While raining body blows against the defenseless [K.C.], [Appellant], who has a boxing background, made "a boxer kind of noise." When [Appellant] was not hitting [K.C. with] his fists, he was banging her head against the wall. [Appellant] also obtained a knife from the kitchen during this attack. [K.C.] ultimately submitted to [Appellant's] sexual assault to avoid further injury.Id. (citation to the record omitted).
Viewing these facts in the light most favorable to the Commonwealth, we conclude there was sufficient evidence for the jury to find, beyond a reasonable doubt, that Appellant acted recklessly in his attack on K.C., and that he demonstrated an "extreme indifference to the value of human life." Patrick, 933 A.2d at 1046. While Appellant claims that "[t]he evidence suggest[ed] that if Appellant intended to cause a 'serious bodily injury' ... he would have," Appellant's Brief at 32 (emphasis in original), this argument ignores the fact that K.C. "made significant effort to avoid the full brunt of [Appellant's] attack." TCO at 6 n.2. The fact that K.C. was able to protect herself from actually sustaining serious bodily injury does not diminish the sufficiency of the evidence proving that Appellant intended to inflict such injury on K.C. Accordingly, his aggravated assault conviction must stand.
Next, Appellant argues that his aggravated assault conviction is contrary to the weight of the evidence.
A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the jury's verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations and internal quotation marks omitted).
In support of this issue, Appellant first emphasizes that the Commonwealth's case rested "nearly entirely on" the testimony of K.C., and there was no physical evidence, such as DNA, to confirm her claims of rape, IDSI, and sexual assault. Appellant's Brief at 35. However, as stated supra, the jury was free to believe K.C.'s testimony regardless of the fact that there was no physical evidence to corroborate it. Houser, 18 A.3d at 1136.
Appellant additionally argues that the court erred by denying his challenge to the weight of the evidence because that decision "was based neither on a logical nor a factually accurate foundation." Appellant's Brief at 34. Specifically, Appellant claims that the court improperly emphasized his "boxing background" where there was no evidence introduced at trial to support this assertion. Id. at 35. Instead, Appellant's hi story of boxing was only mentioned in the Commonwealth's opening statement. See N.T. Trial, 10/4/11, at 28.
Appellant also contends that the court misconstrued the testimony proffered at trial. For instance, he takes issue with the court's statement that he tried to burn K.C., contending that K.C. in fact testified that she saw Appellant "grab[] some kind of thing" with a flame and that she "managed to take it from him." N.T. Trial, 10/4/11, at 176. Appellant interprets K.C.'s testimony as evincing only her belief "that if Appellant still had an implement of fire, he would have tried to burn her." Appellant's Brief at 35 (emphasis in original). Appellant avers that "[p]ure speculation of what would have happened under different circumstances is not evidence [of] what actually happened." Id. (emphasis in original; citation omitted).
Finally, Appellant challenges the court's declaration that Appellant "obtained a knife," which implied that Appellant retrieved a knife to harm or threaten K.C. Appellant's Brief at 36 (quoting TCO at 5). Appellant claims that the inference proposed by the court is incorrect in light of the following testimony by K.C.:
[K.C.]: [Appellant] said, "You called the cops on me." And then he said, "Well, I'm" - then he went in his kitchen and got a knife and tried to cut himself and said, "You know what? I'm going to call the cops on you," and I told him, "Please do. They'll see that you're hitting me." And I guess he re-thought that and got rid of the knife, and he just start[ed] hitting me even more to the point where I just was laying there. I just couldn't move.N.T. Trial, 10/4/11, at 98. Appellant maintains that K.C.'s testimony demonstrated that he did not obtain a knife in order to harm K.C., contrary to the court's inference. Thus, Appellant claims that the "court's opinion was not based on accurate information found in the record" and, accordingly, the court abused its discretion in denying his challenge to the weight of the evidence.
We disagree. First, in concluding that the verdict was not shocking, the trial court did not solely rely on Appellant's "boxing background," the fact that he tried to burn K.C., and his acquisition of a knife during the incident. Instead, the court merely mentioned these factors, as well as many others. See TCO at 5.
In any event, we disagree with Appellant that the court mischaracterized the evidence presented at trial. For instance, while K.C. testified that she was able to take the burning "object" away from Appellant, wh en asked immediately thereafter whether Appellant "tried to burn [her] with it[,] K.C. stated, "[y]eah." N.T. 10/4/11, at 177. Additionally, we ascertain no error in the court's pointing out that Appellant "obtained a knife from the kitchen during this attack." TCO at 5. The court did not state that Appellant attempted to use the knife on K.C., or that he threatened her with it. Furthermore, while K.C. testified that Appellant used that knife only on himself, it does not diminish the fact that Appellant had access to a knife during the attack. Therefore, it was not inappropriate for the court to mention this fact in its assessment of the evidence.
In sum, Appellant's arguments have failed to convince us that the court abused its discretion in denying his weight of the evidence claim. The portions of the court's rationale that Appellant attacks on appeal were not significant factors that weighed heavily in the court's overall assessment of the sufficiency and weight of the evidence to sustain Appellant's conviction for aggravated assault. Furthermore, we disagree with Appellant that the court mischaracterized the evidence presented at trial. Accordingly, his fifth claim is meritless.
Finally, Appellant challenges discretionary aspects of his sentence for aggravated assault. In Commonwealth v. Ahmad, 961 A.2d 884 (Pa. Super. 2008), we explained:
A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute. When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, [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. We examine an appellant's [Pa.R.A.P.] 2119(f) statement to determine whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.Id. at 886-87 (citations, quotation marks and footnote omitted; emphasis in original). Additionally, our Court has explained that "[t]he concise statement must indicate "where the sentence falls in relation to the sentencing guidelines and what particular provision of the code it violates." Commonwealth v. Prisk, 13 A.3d 526, 532-533 (Pa. Super. 2011) (citing Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. Super. 2004) (citation omitted)).
Here, Appellant has set forth a Rule 2119(f) statement. Therein, he claims that his sentence for aggravated assault violates the principle that "sentences should be based on true and accurate information." Appellant's Brief at 11. Appellant then explains:
In this unusual circumstance, the trial Judge...retired prior to sentencing [] Appellant. [A different judge] was administrativelyId. at 12.
assigned [to] this matter for sentencing. Therefore, the sentencing judge, ... in making his decision, relied solely upon the information presented at sentencing. At the hearing, the prosecution presented misleading, false and prejudicial information that served to deprive [] Appellant of a fair and accurate sentencing hearing. This included, inter alia, presenting baseless allegations, implying that [] Appellant had a history of "eerily similar" conduct when no such history exists, and, without any scintilla of evidence, arguing that Appellant violated his parole. [The sentencing judge], who sat only for the sentencing hearing, was not in the best position to decipher what, if any, of the prosecutions argument was based on fact. The prosecution took advantage of this which resulted in an excessively harsh sentence for [] Appellant.
We begin our assessment of whether Appellant has presented a substantial question by noting that Appellant has failed to explain "where the sentence falls in relation to the sentencing guidelines." Prisk, 13 A.3d at 533. According to the trial court, the standard range sentence for Appellant's offense of aggravated assault was 72 to 84 months' incarceration, plus or minus 12 months for the aggravated and mitigated ranges, respectively. Thus, Appellant's sentence of five to ten years' incarceration for his aggravated assault conviction is at the bottom end of the mitigated sentencing range.
Despite Appellant's omission in this regard, we conclude that his overall argument presents a substantial question for our review. We agree with Appellant that a fundamental norm of the sentencing process is that the court should consider accurate information in fashioning a defendant's term of incarceration. Appellant has presented a colorable argument in his Rule 2119(f) statement that this basic sentencing principle was violated in this case. Accordingly, we will review the underlying merits of his claim, mindful of the fact that "[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. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010) (citation omitted).
Appellant contends that during the sentencing proceeding, the Commonwealth presented the court with inaccurate, misleading, and prejudicial information. For instance, he states that "the prosecutor asked questions of defense witnesses about a brick being thrown at a home," implying that Appellant committed criminal conduct for which he was never convicted. Appellant's Brief at 37. Appellant also complains that the Commonwealth incorrectly stated that he violated a term of parole he was serving in an unrelated case. Additionally, Appellant challenges the Commonwealth's informing the court that K.C. "lost her job as a result of Appellant's actions." Id. at 37. Appellant avers that he "is now in possession of information proving that the reason [K.C.] lost her job was in no way related to any of her allegations in this matter." Id. at 37-38. Therefore, Appellant claims that K.C.'s "representations to the sentencing court were false and misleading." Id. at 38.
Initially, Appellant does not cite to where in the record of his sentencing hearing the allegedly inaccurate information was presented to the court, which significantly hampers our review of his arguments. In any event, Appellant's bald assertion that the Commonwealth presented inaccurate and/or misleading information to the sentencing court is not supported by the record. Most notably, Appellant offered no proof at the time of sentencing or in his post-sentence motion to demonstrate that the Commonwealth's information was incorrect. As with all appellate issues, our review of Appellant's sentencing claims is confined to the matters set forth in the certified record. See Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa. Super. 2001) (stating "[i]t is black letter law in this jurisdiction that an appellate court cannot consider anything which is not part of the record in [the] case"). Because the sentencing transcript contains no indication that the information considered by the sentencing court was inaccurate, we conclude that Appellant's sentencing claim is meritless.
Appellant also raised no objection when the Commonwealth presented the at-issue information during the sentencing hearing. However, because Appellant raised the within arguments in his post-sentence motion, we consider them preserved for our review. See Commonwealth v. Duden, 473 A.2d 614, 618-19 (Pa. Super. 1984) (indicating that when the appellant avers the sentencing court considered impermissible factors, such a claim must be raised "either at the sentencing hearing or in the petition to modi fy sentence" to preserve it for appellate review).
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary