Com. v. Travers, Jr., L. (memorandum)
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J-S25042-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. LARRY DARNELL TRAVERS, JR., Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1392 MDA 2013 Appeal from the Judgment of Sentence entered on March 7, 2013 in the Court of Common Pleas of Lycoming County, Criminal Division, No. CP-41-CR-0001069-2011 BEFORE: OTT, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 13, 2014 ls from the judgment of sentence imposed following his convictions of attempted homicide, aggravated assault, robbery, robbery of a motor vehicle, possession of an instrument of crime, and tampering with physical evidence. See 18 Pa.C.S.A. §§ 901, 2702(a)(1), 3701(a)(1)(i), 3702(a), 907(a), 4910(1). We affirm. The trial court set forth a recitation of the factual and procedural history as follows: On June 17, 2011, [Kevin Houseknecht], the victim[,] pulled up inquired about purchasing [Travers] he was willing to buy a half-ounce of cocaine for $500 or less. [Travers] said he would make a couple of phone calls. [Travers] returned, got into the vict needed to take a ride. [Travers] directed the victim to an area J-S25042-14 near the intersection of Sixth and Isabella Streets [in vehicle and entered a blue minivan. [Travers] came back to the victim pulled an envelope out of the glove box and flashed nearly $2,500 in cash, consisting mostly of $100 bills. [Travers] then had the victim take him back to his residence to get some shoes, because he was barefoot. The victim [and Travers then] went back to Sixth and Isabella Streets. [Travers] directed the victim to follow the blue minivan. They drove to an area near Glynn Avenue and Arnold Street. A tall black male got out of the blue minivan and got into the back seat and asked the black male if he had what he wanted. The black male asked the victim how much money he had. The victim had the envelope of money out and told the black male he had $500. The black male said it looks like you have more than $500 in there. When the victim began to explain that he only intended to spend $500 for the drugs, he felt a prick in his neck. The victim looked o hand and his left hand was on the envelope of money. [Travers] When the victim realized he had been stabbed, he panicked. He [did not] care about the money, he just struggled to free himself of his seatbelt and get out of the car. During the process, he got stabbed a second time. The victim eventually freed himself from the vehicle and began running across a grassy field yelling Merle W mother to pick him up, [] Wilcox saw the victim and [Travers] running across the field. [] Wilcox initially thought they were horsing ar break it up. When [] Wilcox was about 20 yards away from them, the victim fell down and [Travers] pounced on him. He grabbed the victim by the chin, pulled his head to the side and stabbed the victim twice in the neck. Then [Travers] looked up, saw [] Wilcox with -2- J-S25042-14 le and drove away. When he reached the end of a dead end street, he was running through backyards in the neighborhood, garbage can. [] Wilcox called 911. Before the victim was transported to the male, approximately six foot two inches tall and about 230 pounds. One of the officers knew [Travers] went by the nickname completed a traffic stop on the highway near this neighborhood, heard the dispatch regarding the stabbing and responded. He saw [Travers], who matched the description of the perpetrator broadcast over the dispatch, walking on Linn Street. Trooper Vilello approached [Travers] and asked him if his name was Larry Travers. When [Travers] answered in the affirmative, Trooper Vilello immediately took him into custody. The police then took [] Wilcox to Linn Street and he identified [Travers] as the individual who stabbed the victim. [Travers] was charged with attempted homicide, two counts of aggravated assault, three counts of robbery, robbery of a motor vehicle, theft by unlawful taking, receiving stolen property, possession of an instrument of crime, two counts of simple assault, and tampering with physical evidence. A jury trial was held January 24-25, 2013. [Travers] was convicted of attempted homicide, aggravated assault (causing serious bodily injury), robbery (inflicting serious bodily injury), robbery of a motor vehicle, possession of an instrument of crime and tampering with physical evidence. On March 7, 2013, the [trial c]ourt sentenced [Travers] to an aggregate term of 32 to 64 years of incarceration in a state correctional institution, consisting of 20 to 40 years for attempted homicide, [a consecutive] 6 to 12 years for robbery, and [a consecutive] 6 to 12 years for robbery of a motor vehicle. Trial Court Opinion, 7/15/13, at 1-4 (footnote omitted). -3- J-S25042-14 Travers filed a Post-Sentence Motion, which the trial court denied. Travers filed a timely Notice of Appeal. On appeal, Travers raises the following questions for our review: 1. Whether the evidence presented at trial was insufficient to carry a conviction for robbery and robbery of a motor vehicle[?] 2. Whether the verdict of guilty for criminal attempt of homicide was against the weight of the evidence since testimony was presented in regards to self[-]defense on the part of [Travers?] 3. Whether the court issued a sentence that was manifestly excessive and contrary to the fundamental norms underlying the sentencing process[?] Brief for Appellant at 4 (capitalization omitted). In his first claim, Travers contends that the evidence was insufficient to support his robbery and robbery of a motor vehicle convictions. Id. at 8. Travers argues that the evidence does not demonstrate that he acted with the requisite intent required to prove the crimes. Id. at 9. With regard to the robbery of a motor vehicle conviction, Travers asserts that no one saw from the vehicle. Id. at 9-10. Travers further asserts that another person in the vehicle could have driven the vehicle. Id. at 10. Travers also claims that the fact that he did not run or attempt to escape the police after they -4- J-S25042-14 approached him demonstrates that he was not involved in the robberies. Id.1 Our standard of review is as follows: [W]e consider the evidence in the light most favorable to the Commonwealth as verdict winner. In that light, we decide if the evidence and all reasonable inferences from that evidence are sufficient to establish the elements of the offense beyond a reasonable doubt. We keep in mind that it was for the trier of fact to determine the weight of the evidence and the credibility of witnesses. The jury was free to believe all, part or none of the evidence. This Court may not weigh the evidence or substitute its judgment [f]or that of the factfinder. Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007) (citation omitted). Relevant to this case, robbery if, in the course of committing a theft, he . . . inflicts serious bodi is Id. causes serious, permanent disfigurement, or protracted loss or impairment Id. § 2301. To establish a robbery of a motor vehicle, the stealing, taking, or exercise of unlawful control over a motor vehicle; (2) from another person in the presence of that person or any other person in lawful possession of the vehicle; and (3) 1 Travers does not raise a sufficiency challenge to his other convictions. -5- J-S25042-14 the taking must be accomplished by the use intimidation, or the inducement of fear in the victim. of force, Commonwealth v. Bonner, 27 A.3d 255, 258 (Pa. Super. 2011); see also 18 Pa.C.S.A. § 3702(a). Here, the evidence, viewed in a light most favorable to the Commonwealth as the verdict winner, established that (1) the victim, while in his vehicle, attempted to purchase cocaine from Travers; (2) Travers up his money; (3) Travers stabbed the victim multiple times before the victim escaped from his vehicle; (4) Travers then chased the victim and stabbed him twice in the neck; and (5) upon seeing Wilcox, Travers ran to See N.T., 1/24/13, at 31, 35, 3941, 50-51, 57-61, 64-66, 67-68, 76, 78. From this evidence, the jury could reasonably infer that, in the course of committing a theft, Travers inflicted serious bodily injury upon the victim. See Commonwealth v. Walls, 950 A.2d 1028, 1032 (Pa. Super. 2008) (concluding that the evidence was sufficient to support a robbery conviction under section 3701(a)(1)(i) where the appellant stabbed the victim multiple times and stole a cigarette case).2 2 vehicle. N.T., 1/24/13, at 95, 97. While Travers failed to take the money when he subsequently fled the vehicle, proof of an attempted theft is sufficient to meet the theft element of the offense. See 18 Pa.C.S.A. § 3701(a)(2). -6- J-S25042-14 Moreover, the evidence was sufficient to support See Bonner, 27 A.3d at 258 (concluding that the evidence was sufficient to support a robbery of a motor vehicle conviction where appellant deprived the victim of her vehicle in her presence after holding a knife to her throat and claims fail. In his second claim, Travers contends that the guilty verdict for attempted homicide was against the weight of the evidence. Brief for Appellant at 10. Travers refers to his own testimony that he acted in selfdefense and did not act with the requisite intent to commit the crime. Id. at 10, 11-12. Our standard of review with regard to a weight of the evidence claim is as follows: Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing of the evidence. Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014) (citations omitted). -7- J-S25042-14 -defense claim was not believable and that the verdict did not shock its conscience. See Trial Court Opinion, 7/15/13, at 4-8. We agree with the sound reasoning of the trial court and adopt its reasoning for the purpose of this appeal. See id. Thus, we conclude that the trial court did not abuse its discretion in denying 3 In his third claim, Travers challenges the discretionary aspects of his sentence. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue, [this Court conducts] 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 has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from 3 Travers also asserts that the verdict is against the weight of the evidence because he blacked out during the incident, and did not act with an intent to commit the crime. Brief for Appellant at 11-12. However, Travers did not properly preserve this specific assertion in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. See Pa.R.Crim.P. 607(A). However, even if Travers properly preserved this claim, we would conclude that it is without merit. Here, Travers cites to a single line in the transcript where he told the police that he blacks out when he is threatened. N.T., 1/24/13, at 125. It is well-settled that the finder of fact is free to believe all, part, or none of the evidence presented and to determine the credibility of the witnesses. Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011). Based upon the above evidence, the attempted homicide does not shock the conscience. -8- J-S25042-14 is not appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. § 9781(b). Moury, 992 A.2d at 170 (citation omitted). Here, Travers filed a timely Notice of Appeal, raised discretionary aspects of sentencing claims in his Post-Sentence Motion, and included a Rule 2119(f) Concise Statement in his appellate brief. Travers baldly contends that he has raised a substantial question because the trial court see also Commonwealth v. Provenzano, 50 A.3d 14 look beyond the statement of questions presented and the prefatory 2119(f) contention does not raise a substantial question. See Commonwealth v. Wagner, 702 A.2d 1084, 1085 (Pa. Super. 1996) (concluding that adequately consider certain factors, including a prior record score of zero, does not raise a substantial question); see also Commonwealth v. Griffin failure to consider particular circumstances or sentencing factors in an rs and does not raise a substantial question); Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013) (stating that a bald assertion that a sentence is excessive does not by itself raise a substantial question). -9- J-S25042-14 Even if Travers had presented a substantial question, thus permitting our review, we would conclude that the trial court did not abuse its discretion. See Commonwealth v. Downing, 990 A.2d 788, 792 93 (Pa. trial court and will not be disturbed absent a manifest abuse of that prior record score; the sentencing guidelines; the victim impact statement; took place the same day that Travers was sentenced to probation; the need for the protection of society; statements by the attorneys for the Commonweal while in county jail, including numerous write-ups and the fact that he served 150 days in disciplinary lockup. N.T., 3/7/13, at 3-15; see also Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (stating report, we presume that the court properly considered and weighed all hus, even if we reached the merits of the issue, we would conclude that the sentence imposed was neither excessive nor so manifestly unreasonable as to constitute an abuse of discretion. Judgment of sentence affirmed. - 10 - J-S25042-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/13/2014 - 11 -
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