Com. v. Maneri, C. (memorandum)

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J. S20030/13 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA v. CHARLES A. MANERI, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1237 MDA 2012 Appeal from the Judgment of Sentence, January 18 2012, in the Court of Common Pleas of Lebanon County Criminal Division at No. CP-38-CR-0001769-2010 BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 13, 2013 Charles A. Maneri appeals the judgment of sentence entered January 26, 2012. We affirm. The facts, as stated by the trial court, are as follows. Prior to July 13, 2010, [appellant] and the victim, twenty-one-year-old Linette Colon, had been involved in a romantic relationship for approximately nine months, but had recently stopped seeing each other. On that date, Colon was at home at 816 Mifflin Street in the City of Lebanon with her young son and a friend, German Rivera. Although [appellant] had visited Colon s home on prior occasions, she had told him that he was not welcome to visit at that time. Throughout the day of July 12, 2010, [appellant] repeatedly called and texted Colon s phone and Colon repeatedly told him that she did not want him to come over. Colon eventually turned off her phone as she was tired of [appellant s] calls. J. S20030/13 At 12:45 a.m. on July 13, 2010, Colon and Rivera were sitting on her couch watching a movie. Colon s son was asleep in the bedroom. At that time, [appellant] started to bang on the door. Colon and Rivera remained quiet as Colon thought that it might be [appellant] at the door. [Appellant] kicked the door down and came in, holding something in his left hand, and directing Rivera to [g]et the fuck out or I am going to slice and dice you. Rivera ran out of the apartment and called for the police, informing the dispatcher of the situation and voicing his concern for Colon s safety as she was still in the apartment with [appellant]. Colon testified that once Rivera left, [appellant] grabbed her, started to hit her and pull her hair. He ripped off Colon s bra and top and told her he was going to humiliate her by dragging her down the street naked because she was in the apartment with Rivera. She sustained cuts on both arms. She also sustained bruises. She did not know what [appellant] used to cause the lacerations as she did not actually see [appellant] with a knife or know whether he had one. Colon explained that during the attack, [appellant] was going back and forth between the living room and the kitchen. Officer Margut and Officer Betancourt of the City Police Department were dispatched to Colon s apartment due to Rivera s call about a person with a knife. They confronted [appellant] outside the apartment building when they arrived. At that point, the officers were unaware of what had transpired, and asked [appellant] whether he had been threatened by someone with a knife. [Appellant] explained that he had an argument with his girlfriend and that nothing else occurred. Officer Betancourt patted him down to check for weapons. Officer Margut went upstairs to Colon s apartment and found her partially undressed and bloody with two lacerations on her arms which she was covering with a rag. Colon advised Officer -2- J. S20030/13 Margut that [appellant] had inflicted her injuries. Officer Margut immediately directed Officer Betancourt to take appellant into custody via his radio. [Appellant] overheard the conversation, became nervous and ran from Officer Betancourt. As he ran through the streets, he was pursued by Officer Betancourt, who told him that he was under arrest and commanded him to stop. [Appellant] ultimately made it to a van and drove away. Officer Margut located a wet knife in a strainer in the kitchen which appeared to have been washed off recently. There was also water in the sink. Colon testified that she had done the dishes earlier that evening and that the knife was not there when she did the dishes. Within two weeks, [appellant] was apprehended. At trial, Colon testified that she did not know what [appellant] had used to cause her lacerations. Rivera testified that he had seen that [appellant] had something in his hand when he entered the apartment, that he thought the object was a knife but that he did not know that for certain. Rivera also testified about [appellant s] threats to cut him up. The Commonwealth also provided the testimony of Mary Stark, a physician s assistant at Good Samaritan Hospital who had treated Colon s injuries. Stark testified that the lacerations on Colon s arms were clean and linear and consistent with injuries being inflicted with a bladed or sharp instrument, but that she could not specifically identify the weapon which had been used in the attack.[1] After [appellant] was arrested on these charges, he was incarcerated and remained incarcerated during the time of trial. Colon testified that during the period between his arrest and trial, she and [appellant] remained in contact and their 1 The lacerations on Colon s right forearm required seven stitches. The other lacerations were described as superficial but deep enough to see and leave a mark. (Notes of testimony, 7/15/11 at 6.) Colon also had red marks on her chest. (Id.) -3- J. S20030/13 phone conversations were recorded by prison authorities. During trial, some of the recorded communications between the two were referenced by both the Commonwealth and [the defense]. Trial court opinion, 6/6/12 at 3-7. On July 19, 2010, appellant was charged with aggravated assault, 18 Pa.C.S.A. § 2701(a)(4), recklessly endangering another person ( REAP ), 18 Pa.C.S.A. §2705, burglary, 18 Pa.C.S.A. § 3502(A), criminal trespass, 18 Pa.C.S.A. § 2503(A)(1)(ii), escape, 18 Pa.C.S.A. § 5121(A), and possession of an instrument of crime 18 Pa.C.S.A. § 907. He was also charged with various summary offenses. Represented by Elizabeth Judd, Esq., appellant proceeded to a jury trial on July 15, 2011. Subsequently, appellant was convicted of the aforementioned crimes with the exception of possession of an instrument of crime. On January 18, 2012, appellant was sentenced to 7 to 23 years incarceration. Appellant filed a post-sentence motion on January 30, 2012. The motion was denied June 6, 2012. A timely notice of appeal was filed July 3, 2012.2 A. Was the evidence adduced at Appellant s trial sufficient to find Appellant guilty of Aggravated Assault with a Deadly Weapon, Recklessly Endangering Another Person and Burglary? 2 We note that appellant failed to serve the trial court with a copy of the notice of appeal, as required by Rule of Appellate Procedure, Rule 906(a)(2), 42 Pa.C.S.A. However, Rule 902 provides that the [f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate. Pa.R.A.P., Rule 902. Appellant s failure of service does not affect our disposition of this case. See id. -4- J. S20030/13 B. Did the trial court err in failing to appoint new counsel for Appellant, as a conflict of interest existed between Appellant and trial counsel? C. Did the trial court err in sentencing Appellant without consideration of Appellant s rehabilitative needs and background? D. Did the trial court err and commit an abuse of discretion in allowing Mary Stark, who was not properly qualified as an expert witness, to testify regarding the cause of Ms. Colon s injuries? Appellant s brief at 7. Appellant first claims that the evidence was insufficient to support his convictions. (Id. at 13.) In determining sufficiency of the evidence, the Court must review the evidence admitted at trial, along with any reasonable inferences that may be drawn from that evidence, in the light most favorable to the verdict winner. Commonwealth v. Kimbrough, 872 A.2d 1244, 1248 (Pa.Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005). A conviction will be upheld if after review we find that the jury could have found every element of the crime beyond a reasonable doubt. Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003). The court may not weigh the evidence or substitute its judgment for that of the fact-finder. Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001), appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). Any doubts regarding a defendant s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Commonwealth v. Sheppard, 837 A.2d 555, 557 (Pa.Super. 2003). -5- J. S20030/13 Commonwealth v. Judd, 897 A.2d 1224, 1233-1234 (Pa.Super. 2006), appeal denied, 590 Pa. 675, 912 A.2d 1291 (2006). In support of his claim regarding the sufficiency of evidence, appellant first contends the Commonwealth did not establish his guilt of aggravated assault with a deadly weapon as it did not demonstrate he had a deadly weapon or that he attempted to cause, or intentionally or knowingly caused bodily injury to Colon. No relief is due. The statute for aggravated assault sets forth that: (a) A person is guilty of aggravated assault if he: ... (4) Attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon. 18 Pa.C.S.A. § 2702(a)(4). As referred to in this section, serious bodily injury is defined as bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. 18 Pa.C.S.A. § 2301. Section 2301 further provides a definition for deadly weapon : Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used is calculated or likely to produce death or serious bodily injury. 18 Pa.C.S.A. § 2301. -6- J. S20030/13 Viewing the evidence in the light most favorable to the Commonwealth, we find the evidence sufficient to support appellant s conviction. Colon testified that appellant attacked her and inflicted cuts on her arms. While she was not able to state what appellant used to cut her with, the wounds she suffered were consistent with being caused by a sharp bladed object. The police discovered a recently washed knife in the kitchen where appellant had been during the attack. Colon testified that the knife had not been there earlier when she had washed the dishes. Additionally, Rivera testified that he noticed appellant had something in his hand when he entered the apartment and he had threatened to slice and dice Rivera if he did not leave the apartment. The jury could fairly infer that appellant did in fact use a knife. Additionally, in a footnote, appellant suggests that the jury could not convict him of aggravated assault and acquit him of the possession of an instrument of crime charge. Long standing precedent in this Commonwealth provides that consistency is not required in criminal verdict. See, e.g., Commonwealth v. Parrotto, 150 A.2d 396, 397-398 (Pa.Super. 1959). See also United States v. Powell, 469 U.S. 57 (1984). It has long been the rule that "[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence. . . . [T]he court looks upon this acquittal as no more than the jury's assumption of a power which they had no right to exercise, but to which they were disposed through lenity." -7- Parrotto, 150 J. S20030/13 A.2d at 399, cited with approval in Commonwealth v. Cassidy, 620 A.2d 9, 12-13 (Pa.Super. 1993), allocatur denied, 536 Pa. 619, 637 A.2d 279 (1993). Next, appellant asserts the evidence was insufficient to find appellant guilty of REAP. That crime is defined as: A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. 18 Pa.C.S.A. § 2705. Appellant argues that the victim did not know how she sustained the injures or see the weapon and her injuries were not serious. Such proof is entirely unnecessary. See, e.g., Commonwealth v. Lawton, 414 A.2d 658, 662 (Pa.Super. 1979) (holding that the pertinent issue is whether a defendant's reckless conduct may have placed another person in danger of serious injury; the mere fact that the victim only sustained minor injuries and did not sustain serious bodily injury does not ipso facto establish that appellant s actions did not place others in danger of such injury ). Our review of the evidence leads us to conclude that sufficient evidence existed to convict appellant of REAP. Here, a review of the record reveals that appellant broke into Colon s apartment and threatened to slice and dice Rivera. Appellant began hitting Colon and pulling her hair; he ripped off her top and bra. She sustained cuts to both arms and bruises. When the police arrived she was found bleeding from two lacerations on her -8- J. S20030/13 arms. A knife was found in the kitchen that had recently been washed off. The physician s assistant testified that the lacerations on Colon s arm were consistent with injuries inflicted with a blade or sharp instrument. The laceration on her right forearm required seven stiches. That Colon was not more seriously injured is indeed fortunate but does not mean the evidence was so weak or inconclusive that no probability of fact could be drawn from the combined circumstances. Sheppard, supra at 557. Accordingly, appellant's sufficiency claim concerning his conviction of REAP warrants no relief. Appellant also challenges the sufficiency of the evidence to convict him of burglary because he claims that the Commonwealth failed to prove that appellant entered the premises with the intent to commit a crime. He also suggests that there was no evidence that he was not privileged to enter the apartment. (Appellant s brief at 20.) We disagree. Under the Crimes Code of Pennsylvania, a person is guilty of burglary if he enters a building or occupied structure with the intent to commit a crime therein, unless the premises are at the time open to the public or the person who enters is licensed or privileged to do so. 18 Pa.C.S.A. § 3502(a). In order to prevail at trial, the Commonwealth must prove beyond a reasonable doubt the following three elements: (1) entry of a building or occupied structure by the defendant; (2) with the contemporaneous intent on the part of the defendant of committing a crime therein; (3) at a time when the premises are not opened to the public and the defendant was not then licensed or privileged to enter. -9- J. S20030/13 Commonwealth v. Gonzales, 443 A.2d 301, 304 (Pa.Super. 1982) (citations omitted). At trial, the evidence showed that appellant entered the apartment without the permission of Colon as he forced his way inside. Colon and Rivera testified that when they heard appellant banging and kicking the door neither one opened the door for appellant or invited him inside the apartment. In fact, the day before, Colon repeatedly instructed appellant to stay away. Thus, we now focus on whether sufficient evidence was adduced at trial to prove beyond a reasonable doubt that appellant intended to commit a crime at the time appellant entered the apartment. The Commonwealth may prove its case by circumstantial evidence, and the specific intent to commit a crime necessary to establish the second element of burglary may thus be found in the defendant's words or conduct, or from the attendant circumstances together with all reasonable inferences therefrom. Commonwealth v. Madison, 397 A.2d 818 (Pa.Super. 1979); Commonwealth v. Nutter, 389 A.2d 626 (Pa.Super. 1978). The trial court instructed the jury on the crime appellant intended to commit, namely aggravated assault. It can certainly be inferred that appellant broke down the door and entered the apartment with the intent to physically assault Colon. Accordingly, the evidence was sufficient to support appellant s conviction of burglary. The second issue presented argues that the trial court erred in failing - 10 - J. S20030/13 to appoint new counsel for appellant as he states a conflict of interest existed between appellant and his trial counsel. A brief review of the facts relevant to this issue is required. Appellant orally requested that the court terminate Attorney Judd s court-appointed representation and requested new counsel. Appellant explained that during the course of Attorney Judd s representation, he became a witness in a lawsuit filed by Allen Kelly ( Kelly ) against Attorney Judd. (Notes of testimony, 7/11/11 at 2-3.) Kelly was a prior client of Attorney Judd s who, according to appellant, subpoenaed appellant as a hostile witness in the trial against Attorney Judd. Appellant also claimed that Attorney Judd was unprepared to proceed to trial and that she failed to file various pre-trial motions he requested. (Id. at 2.) After questioning Attorney Judd, the trial court denied appellant s request and gave appellant the option of proceeding to trial pro se or with Attorney Judd. We find no error with the trial court s holding. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our determination that there is no merit to this question. The trial court s opinion, filed on June 6, 2012, comprehensively discusses and properly disposes of this issue. adopt it as our own and affirm on that basis. 6/6/12 at 16-21.) - 11 - We will (See trial court opinion, J. S20030/13 Next, appellant presents a challenge to the discretionary aspects of sentencing. A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136 (Pa.Super.2001), appeal denied, 568 Pa. 695, 796 A.2d 979 (2001). When challenging the discretionary aspects of a sentence, an appellant must invoke the appellate court s jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases. Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385, 1387 (1989) (en banc) (emphasis in original). Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004). To demonstrate that a substantial question exists, a party must articulate reasons why a particular sentence raises doubts that the trial court did not properly consider [the] general guidelines provided by the legislature. [Mouzon, 571 Pa. at 426, 812 A.2d at 622], quoting, Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 244 (1999). In Mouzon, our Supreme Court held that allegations of an excessive sentence raise a substantial question where the defendant alleges that the sentence violates the requirements and goals of the Code and of the application of the guidelines . . . . Id. at 627. A bald allegation of excessiveness will not suffice. Id. - 12 - J. S20030/13 Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super. 2005), appeal denied, 587 Pa. 684, 897 A.2d 451 (2006). Instantly, appellant has not complied with Rule 2119(f) by including in his brief the requisite statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. However, the Commonwealth has not objected. Accordingly, we may proceed to determine whether a substantial question exists. See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004) (when the appellant has not included a Rule 2119(f) statement and the appellee has not objected, this court may ignore the omission and determine if there is a substantial question that the sentence imposed was not appropriate). Appellant essentially contends that the trial court s sentence did not give appropriate consideration to his request to be sentenced to Teen Challenge, a rehabilitative program. (Appellant s brief at 24-25.) There is ample precedent to support a determination that appellant s allegation fails to raise a substantial question that his sentence is not appropriate under the Sentencing Code. A claim that the sentencing court failed to consider or accord proper weight to a specific sentencing factor does not raise a substantial question. See Commonwealth v. Cannon, 954 A.2d 1222, 1228 29 (Pa.Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 893 (2009) (claim that the trial court failed to consider the defendant's rehabilitative needs, age, and educational background did not present a - 13 - J. S20030/13 substantial question); Commonwealth v. Coolbaugh, 770 A.2d 788, 793 (Pa.Super. 2001); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa.Super. 1997) (a claim that a trial court failed to appropriately consider an appellant's rehabilitative needs does not present a substantial question); Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa.Super. 1994) (claim of error for failing to consider rehabilitative needs does not present substantial question). Thus, we will not review appellant s claim. The final issue presented is whether the trial court erred in allowing Mary Stark, a non-expert witness, to testify regarding the cause of Colon s injuries. Appellant claims that Stark should not have been permitted to testify as to the cause of the lacerations or the type of object that caused the cuts on Colon s arms. Rather, appellant suggests that this matter required expert testimony. (See notes of testimony, 7/15/11 at 6.) Following this objection by the defense at trial, the Commonwealth responded and argued that this line of questioning did not require an expert opinion but rather an opinion based on Stark s observations of Colon s injuries and personal experience. (Id. at 6-7.) The court held that if the Commonwealth established a proper foundation, such testimony would be appropriate. (Id. at 7.) We find no error. When reviewing a challenge to the admissibility of evidence, we will not reverse the trial court s decision absent a clear abuse of discretion. Commonwealth v. King, 959 A.2d 405, 411 (Pa.Super. 2008). - 14 - An J. S20030/13 [a]buse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Id. Pennsylvania Rule of Evidence 701 provides that the lay opinion of a witness is admissible so long as it is: (1) rationally based on the perception of the witness; (2) helpful to give a clear understanding of the witness testimony or the determination of a fact at issue; and (3) not based on scientific or other specialized knowledge. Pa.R.E. 701. Stark testified as to her observations of Colon s injuries and described the characteristics of the wounds. She explained that the lacerations were clean and linear in appearance, thus they appeared to have been caused by a sharp, bladed object. (Notes of testimony, 7/15/11 at 9.) Such an observation does not requires scientific or specialized knowledge. No relief is due. Judgment of sentence affirmed. Judgment Entered. Interim Deputy Prothonotary Date: May 13, 2013 - 15 -

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