J-S76038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
STEVEN SHERMAN FELTON Appellant No. 3306 EDA 2015
Appeal from the Judgment of Sentence September 21, 2015 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000857-2013
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.* MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 21, 2016 Appellant Steven Sherman Felton appeals from the judgment of sentence entered by the Honorable Kelly L. Banach of the Court of Common Pleas of Lehigh County after a jury convicted Appellant of ten counts of robbery (all graded as first degree felonies) and two counts of theft by unlawful taking (both graded as first degree misdemeanors).1 Appellant claims his convictions are against the weight of the evidence and that the trial court abused its discretion in imposing several consecutive sentences which resulted in an aggregate sentence of 62 to 124 years imprisonment. After careful review, we affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3701(a)(1)(ii), and 3921(a), respectively.
J-S76038-16
Appellant was charged in connection with eleven robberies of convenient stores, beverage stores, and cigarette retailers in the Lehigh Valley between September 2, 2012 and November 20, 2012. The trial court’s February 5, 2016 opinion describes the investigations of each robbery in specific detail. We adopt the trial court’s thorough discussion of the factual background of the eleven robberies in its Rule 1925(a) opinion, which is attached to this decision. See Trial Court Opinion, 2/5/16, at 3-12.
Appellant proceeded to a jury trial where the eleven robbery cases were consolidated. Appellant chose to represent himself at trial with Alexandra French, Esq. acting as standby counsel. On August 7, 2015, the jury convicted Appellant of ten counts of robbery and two counts of theft by unlawful taking, but acquitted him of one count of robbery. On September 21, 2015, the trial court sentenced Appellant to six to twelve years’ imprisonment on each robbery conviction and one to two years’ incarceration on each theft conviction. As all sentences were set to run consecutively, Appellant received an aggregate sentence of 62 to 124 years’ imprisonment.
On September 30, 2015, Atty. French filed a post-sentence motion on
Appellant’s behalf, which the trial court denied on October 1, 2015.2
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2 Before Atty. French could file a post-sentence motion, Appellant filed a pro se notice of appeal on September 29, 2015. While Appellant’s notice of appeal was premature when it was filed, Appellant’s appeal was perfected by the subsequent action of his standby counsel in filing a timely post-sentence (Footnote Continued Next Page)
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Appellant filed this timely appeal on October 30, 2015 and complied with the trial court’s directions to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
A. Was the verdict against the weight of all the evidence in regards to the proof of whether or not [Appellant] was guilty of the charges?
B. Whether or not the trial court abused its discretion by imposing an excessive aggregate sentence through the entering of multiple consecutive sentences upon [Appellant]?
Appellant’s Brief, at 7.
When reviewing a challenge to the weight of the evidence, our standard of review is as follows:
The essence of appellate review for a weight claim appears to lie in ensuring that the trial court's decision has record support.
Where the record adequately supports the trial court, the trial court has acted within the limits of its discretion.
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore
_______________________
(Footnote Continued)
motion which the trial court reviewed and denied on the merits. See Commonwealth v. Cooper, 611 Pa. 437, 27 A.3d 994 (2011) (concluding the trial court appropriately treated the appellant’s pro se notice of appeal as a premature filing that was perfected upon the trial court’s proper consideration and denial of the subsequent counseled post-sentence motion).
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them or to give them equal weight with all the facts is to deny justice.
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court. 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.
Commonwealth v. Mucci, 43 A.3d 399, 410–11 (Pa.Super. 2016), (quoting Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054–55 (2013). To successfully challenge the weight of the evidence, the defendant must prove that the evidence is “so tenuous, vague and uncertain that the verdict shocks the conscience of the court.” Mucci, 43 A.3d at 411 (quoting Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa.Super. 2003)).
In this case, the Commonwealth presented evidence of numerous robberies that occurred over a three-month period (September to November 2012) in the Lehigh Valley. The robberies were committed by a suspect wearing dark clothing, who would select an item to purchase, attempt to purchase the item, and brandish a firearm when the clerks opened the cash register. The suspect would demand cash or the entire register and then flee on a bicycle or in a blue GMC Envoy SUV. The majority of the clerks were able to give detailed descriptions of the suspect that matched Appellant’s appearance or were able to identify Appellant from a photo array or lineup. Appellant was also recorded on video surveillance at several of the robberies. Officers discovered clothing described by the victims at Appellant’s home.
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Appellant does not specifically challenge any of the prosecution witnesses’ testimony but generally claims that their identifications were inconsistent and points out that none of the witnesses noticed his tattoos. We reject this assertion as the majority of the victims were able to give detailed descriptions of the suspect’s appearance or firmly identified Appellant as the robber despite being under the pressure of a gunman threatening to shoot them. We find meritless Appellant’s attempt to discount the victims’ testimony that did not mention his tattoos as the victims noted the robber wore long-sleeved sweatshirts with hoods which would have concealed all of his upper body except his face. When confronted with video surveillance of the robberies, Appellant placed himself at the scene, smirking and asserting that “[t[hese photos don’t show me doing anything.” N.T. Trial, 8/5/15, at 207. Accordingly, we find the trial court properly exercised its discretion in denying Appellant’s weight of the evidence claim.
Appellant also claims the trial court abused its discretion in imposing multiple consecutive sentences which totaled 64 to 128 years’ imprisonment. Appellant characterizes his aggregate sentence as “in essence, a life sentence with no legitimate hope for any parole.” Appellant’s Brief, at 10. Appellant’s argument challenges the discretionary aspects of his sentence.
It is well-established that “[a] challenge to the discretionary aspects of sentencing does not entitle an appellant to review as of right.” Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super.
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2016). In order to invoke this Court’s jurisdiction to address such a challenge, the appellant must satisfy the following four-part test: the appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing or in a timely post-sentence motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set forth a substantial question that the sentence appealed from is not appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b). Id. An appellant can raise a substantial question for our review by showing 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.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005) (citation omitted).
Appellant filed a timely notice of appeal, preserved his sentencing claim in a post-sentence motion, and submitted an appellate brief containing the requisite Rule 2119(f) concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence. As noted above, Appellant asserts that his sentence is manifestly unreasonable based on the trial court’s decision to run all of his sentences consecutively.
Although a sentencing court must conduct an individualized assessment of the circumstances of each case, the court is not required to impose the most lenient term of confinement available under the law.
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J-S76038-16
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010). The sentencing court “has discretion to impose sentences consecutively or concurrently and, ordinarily, a challenge to this exercise of discretion does not raise a substantial question.” Id. (citation omitted); see also 42 Pa.C.S. § 9721(a); Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995) (stating that an appellant is not entitled to a “volume discount” for his crimes by having all sentences run concurrently). However, “[t]he imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.” Moury, 992 A.2d 171-72 (citation omitted).
This Court has held that “the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case.” Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010). In Mastromarino, this Court found the appellant had not raised a substantial question that his aggregate sentence of 25 to 58 years imprisonment was excessive when the trial court found it appropriate to impose consecutive sentences for his numerous convictions which included inter alia, abuse of corpse and 244 counts of theft by unlawful taking. Appellant was convicted of these offenses for his role in a criminal conspiracy where the defendants
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J-S76038-16
used their licenses as funeral directors to harvest body parts from 244 corpses without the consent of the deceased or their kin, sell them to tissue banks, and disguise the tissue as healthy transplant donations. See also Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa.Super. 2010) (finding the appellant’s challenge did not raise a substantial question that his 20 to 40 year aggregate sentence was excessive when he was involved in the robbery and kidnapping of two individuals).
In this case, Appellant was convicted of eleven counts of armed robbery for his extensive crime spree in which he terrorized store clerks of gas stations, convenient stores, and alcohol and cigarette retailers throughout the Lehigh Valley. In each crime, Appellant threatened to shoot the victims with his firearm if they did not comply with his demand for cash or the entire register. Appellant’s bare assertion of excessiveness and request for a volume discount for his numerous violent crimes does not present a substantial question that the trial court’s decision to run his sentences consecutively was inappropriate or contrary to a fundamental norm underlying the Sentencing Code. As a result, we decline Appellant’s request for allowance of appeal as to the discretionary aspects of his sentence.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Affirmed.
9
J-S76038-16
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/21/2016
Circulated 09/29/2016 02:37 PM
IN THE COURT OF COMMON PLgAs OF LEHIGH COUNTY, PENNSYLVANIA CRJMI-NAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
VS. No. 857/2013 3306 EDA 2015
STEVEN S. FELTON, Appellant
OPINIO.N
KELLY L. BANACH; .J.:
A Jury Trial was held in the above-captioned matter from August 3 through August 7, 2015. The Appellant represented himself at Trial, with Alexandra French, Esquire, of the Lehigh County Office of the Public Defender, acting as standby counsel. On August 7, 2015, the Appellant was convicted of ten counts of Robbery, graded as Felonies of the First Degree, and two counts of Theft by Unlawful Taking, graded as Misdemeanors of the First Degree.
During the Jury Trial, various items were admitted into evidence, including surveillance videos from many of the crime scene locations, police photograph arrays, items and articles of clothing recovered during a search warrant performed on the Appellant's home, and photographs of the scenes of the ro bberies and the Appellant's
wife's automobile, .
···"'.•
\
On September 21, 2015, the Appellant was sentenced to an aggregate sentence ··-~
·.,-,
. '
of not Jess than 62 years nor more than 124 years in a State Correctional Irrstitution.
.
r ;
On September 30, 20151 Attorney French filed a Post-Sentence Motionon the:... , Appellant's behalf. The Motion was denied on October 1, 2015. On October 30, 2015, the Appellant filed the .instant Notice ofAppeal. He then filed .a Statement of Matters Complained of on Appeal.with this Courton December 9., 201q.l This. Opinion follows.
SUMMARY- OF ·THE .FACTS ·On September 2, 2·012, Mano] Tailor was workingat the Cigar & Cigarette
Outlet located at 2l58'.S.tefko BoulevardvBethlehern, Northampton County, Pennsylvania. Betweeri-S:30 a.m. and 9 a.rri., a man camein ·the store and bought a-. Philly Blunt [small cigar] .. He· brought the .item to Mr'. Tailor at the front register.and gave. him money to pay for the item. When. Mr. Tailor opened the register drawer to give the manchange, therrran showed him a gun and toldhim to hand over the cash register. Mr. Tailorcomplied and handed him the entire register, which contained; .approximately $400. Mr. Tailornoted that theman fled-on a bicycle, Mr. Tailor called the police -~J:>ou;t 'one, minute, later.
On. October
. 6,, . 2012,
. Edna.
. Lanierwas working atthe Top Star Oas Station, ,.
located m Whitehall, LehighCounty, Pennsylvania. At approximatelyBrSf) a.m. while
alone in the store; Ms. Lanier noticed a short.black man select two' juices/ iced. tea bottles from the refrigerated. section and proceed to the register .. Ms. Lanier rang up the· purchases and theman handed. her two dollars. Whenshe opened the cash drawer, he demanded. the money from the register. Ms. Lanier was extremely nervous and put the.drawer on the counter. -Sh~. stood-with herhandsup in the air as the .man demandedS'Ifn) bills. Ms: Lanier toldhim that she did not .haveany and due to 'her fright, 'urinated oh ·herself." The man told her to put her hands ·doW11 .and took the 'money from. the register. :Af~~r he 'had taken the money, another' customer came in.
The rnariIeftandMs. Lanienimmediatelylocked the store door, telling-the customer . ·.
what had.just happened. Approximately $89 was taken from the register. Ms, Larrier
1 For purposes of this Appeal; the Office of the Public.Defenderrepreserrts the ippellant.
stated that during the-robbery she concentrated on the marr's face and the gun pointed at her .. They madeeye contact duringthe robbery a,nd.Ms. Lanier was able to Identify the ..Appellant.in court as the.man who robbed· her at the Top Star' that day .
Dn October Tl , .20.12,. Tera, Sweatwasworkingat the.Hess Gas Stations located at.1043 Lehigh Street, Allentown, .Lehigh County·, Pennsylvania. At approximately 10:30 'p.m., asMs. Sweatwas cleaning up the store, an individual entered the store.
Ms .. Sweat began to feel uneasyand kept her· distance from tti¢ individual .. ·The individual approached the counter area. and knocked the.screen off of the top of the
register and grabbed th..e entire register, which.contained approximately .$100·. Ms. Sweat was approximately20 feet away from the individual at the time andwas able.to ·look at the.rnari when he initially entered the store. The· Individual was wearing·a long-sleeved, zipped, hoodie sweatshirt. Ms. Sweat provided a description· to the police
and was able to identify the Appellant as the individual who tookthe register at trial.
At the tirneof the incident, Stephen Riveralived right 'behind the Hess Gas
Station. On that .evenirrg, .M·r. .Rivera was .eitting .
on his porch smoking'
.
a cigarette.
He'sattention was drown to the sound of change r:attlin~- Mr.Rivera then saw a-man on a bike with a black box. HeIooked ayer" hisbalconyand saw the· sameman throw the bike.into an SU".7 and drive away without.the lights .on, He notedthat the .man was. wearing a gray hoodie sweatshirt and blue jeans, but he, was-unable to see the individual's face because thehood. was tied down.
On October iz, 2012f at-approximately 1 p.m., Asif.Afzal wasworkingat -,the US Gas Station, located at _3.60 North 3Td Street, Coopersburg, Lehigh County; Pennsylvania. ·At that ti-me, an .individual.wearinglong sleeves came into the store and selected a soda Can. As. Mt: Afzal was ringing -i;ip the transaction, the individual asked
2· The'. Hess Station has changed its 'name to: SJ:ieedway since the. time of the incident.
. him for .money and. showed.him a.gun. Mr . .Afz!:il .gave theman the 'money from the. register and the man fled, Mr. Afzal pushed the s_ilentalarm.and the- police responded . in 3 to 6 minutes. Approximately $1.,100.was stolen, Mr .. Afa;a.1 was .able to get a good look at the.individual and identified the Appellarit-a~·th~·.perpetlfatqr·during the trial On October 16, 201-2, ·woo Choi was workingat Liberty Bell Beverage, located
at )438 Chestnut Street, Emmaus, Lehigh County, Pennsylvania, That evening, as Mt. Choiwas m.akip.ghis·wayfior,n_the.e.oqling room,to.the front of the store bythe
register, .he noticed an individual- leaving the store, .Mr. Choi then discovered that all
of the .money [approximately . . .$400). 'previously in the -register was misaing. Mr.
. Choi
called the police and. showed them the video. surveillance from the store's camera. .system. The surveillance video was .~hown. at the-time of trial and depicts art ·actor., wearinga hockey-type white mask, takingcash from the register drawer.
On the. sarn_e-day, at approximately8:15:p.m. Humphrey Ancusaya, owner of"
Jordan ParkBeverage. located at 1208. iviacArthut Road, "whitehall, Lehigh County;
-Pennsylvania, noticed ~ man come into the-store, Mr. Anousaya was .se11ted m· his office, _on the right-hand. side of the. store, ·sur.i·ounded by a thfck.Plexiglas window.
There is a side. door through whioh.Mr. Anousaya could .errter and exit the office. The register.was located inside of the· office area with Mr. Anousaya, The man asked for a carton of Newport cigarettesand gave Mr.-Anoueaya a $20 bill, Mr. Anousaya opened the cash register to .give the man chan~~· The man then demanded the cash. and whenMr ...Anousaya looked \lp, 'he .sawa gun pointed at.him, The man again. demanded the cash. Mr. Ariousaya.tapped the register drawer closedand. the man attemptedto grab the entire register. Mr. Anousaya "wasable to· slapthe register back into" the officeand to sfide the Plexiglas window shu t and lock it. The .man attempted to come into the office via theside door, but found itlocked. Mr. Anousaya noticed
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that the man was wearing a. gray hoodie sweatshirt. The· man then- left out of the.front door, got on a.bicycle andfled. Mt .. Anousaya was 70%·$1;!.re.tha:t the-Appellant was the same individual ..who .attempted to take the· cash register from his store.
On October 18.1 ~012,·.oetective 'Stephen Milkovits, of the Allentown Police· Department, responded 'to the Shell Gas Station located at. 1-3~2"3. North-Nineteenth Street, Allentown. Lehigh County; Pennsylvania for a report of.an armedrobbery. When he arrived, he spoke with ~atrol officers .already on scene · and the clerk involved .inthe .robbery, He also-reviewed surveillance 'video; Which was· shown to the .Jury at the-time of trial. The video depicted the· suspect wearing dark.clothirig and a. Chicago .Blackhawkswool cap.
Qn October 23, 2012,Jhderje·ed Kauer was working at the KingMart-store, located in Easton, Northampton. County, Pennsylvania. Between 9 and 1 O p.m. that evening, Ms, Kaur was taking her break nearthe cashregister area: while her fellow employeeattended the register; An individual came info the· store and asked for cigarettes. When the other. employeeopened the register to complete the transaction, the individual asked the.ernployee for the rnorrey in the.cash registerarid displayed a ·gun. The employee asked Ms. Kaurwhat he should do and, once the. suspect .showed her the gun, Ms. 'Kaur instructed the employee to hand overthe money. Surveillance video from. thetransaction showed that.the suspeetreached over the· register and helped himself tocash in the register. drawer first, and then demanded additional' cash. Ms .. Kaur was 'unable to identify the suspect .
. A~ the aame time, Toni Byers was outside of the King Mart, in her vehicle, She observed abicycle parked outside of.the King.Mart, -She: exited her vehicle to enter the . l<;;i.n~ Matt and.saw an· individual exit the Kirig Mart wearing a hooded sweatshirt and dark clothing. The individual got on the bike and rode it to the alleyway 011 the right
7
.side of.the' building Although I14s, ayers WqS initially afraid to cooperate as- .a witness, she· eventually spoke to the police. about the incident.and.was .able· to pick the Appellant out of a photo array. as the individual she-saw exiting the.King Mart and .getting on the- bicycle.
01J the sameevening, atapproximately 10:45.p.m.). LuisGuillermo was working
at the.Lukoil Gas Station, located at. 2450 Catasauqua Road, Bethlehem, Lehigh. County, Penrisylvania, as a station attendant, Mr. Guillermo noticed a truck parked
in.front of the-station and saw .a customer enter the store. The· two made eye contact. The-individual selecteda Snapple from the cold case and brought it to the counter, The individual seemed friendly. As:Mr. Guillermo openedthe drawer of the register, theindividualaskedhim for the -money .in the, drawer. Mr. Guillermo' asked .the ·inclividual if he was-joking and the individual .again asked for the money, this tune .showing Mi-._GU:illermo a gun in his waistband. Mr. Guillermo asked if the individual was really robbing him and .everitu ally handed over thecash in the drawer. The individual was wearing a greenhoodie, tied tightly around the face, jeans and a wool cap. when Mr. Guillermo was- shown a police photo array.che' identified the Appellant ·as· the rnanwho hadtaken the cash.from the register. 'Ml'. Guillermo was 100% sure 'of his identification.
Lieutenent.Michael Marks of the Whitehall Township· Police Department was .a~sign.ed 'toinvestigate the .two robberies which hadoecurredin Whitehall Township.a He became awarethat 'similar robberies with-a similar suspect.had been occurringin multiplejurisdictions throughout the Lehigh Valley. On October 26, .2012, Lieutenant Marks and other investigators from-Ooopersburg, Allentown, Easton. and Bethlehem· met at theLehigh OountyDistrict Attomey'e Office tcdiscuss the. robberies.
Specifically, the-robberies at.theTop StarGas-Stationon October 6, 2012 and at .Jordan Park ·3 Beverage on October 16, 201:2";
On November 13, 201-2, SajjadHaider was. working at the. Suncco MiciMa:rt and GasStating in Whiteha.11,-Lehig~ County, Pennsylvania a.s·-·a cashier. At approximately
.9 p.m. a man camernto the store and selected a Snapple· iced tea. When he paid for .the Snapple, and Mr. Haider -opened the cash register drawer to give him change, 'the man stated that he had '8.: gun .and -showed it to Mr. Haider. He demandedall of the
money in the.register and leaned over thecounter to take- themoney himself There·
was approximately .
$400 in the drawer at the 'time, Mr. Haider was scared. 'The '
.Iottery money is 'kept in .a serarate drawer. atthe .Sunoco. T.he individual demanded the Iottery money -as- well, which was.approximately $20()'. The -rnan next demanded the money that.Mr. Haider had in his own pockets. Mr. Haider surrendered the $40b to $500 inhis own.pocket, Theman- was wearing trousers, _ljl black hoodie_ sweatshirt, a long coat, ·and sneakers. Mr. Haider was able toidentify theindividual in a photo array, but .could .not make an in-court identification at the time of trial.
On November 20, 2012, RebeccaMiller was working at the Hess Gas Station in
Coopersburg; Lehigh.Courrty;. Pennsylvania as anaseistant manager. At .
approximately9::4p p.mr ,- a man ..walked into the· $tore and· asked for cigarettes. He was wearing a bulky jacket, with a hood.pulledup and dark pants. Heput bis· money on· the counter·and said s.orriethirt& .but Ms. Miller didn't understand him. When she looked up, she 'saw a-gun pointed.at her face. She handedapproximatelySIt'O from the register to the man, The manasked-formore money and the lottery· money. 'Ms. Mille:r told him there was no other money. The man left.
On Novemberz l , 2012, Dhaivat Vyaswas working-at-his store, Smokes to Go, located at q50 Washington Street, Eastonv.Northampton County, Pennsylvania .. At -approximately 8:30 a.m., M'L Vyas was just exiting the bathroomareaofhis store when he noticed a mart, .holding 'a gun, approaching the. employee at the- register, The employee handed the man between ·$30Q and $4.QO from the. register, and an additional $40 'from the- employee's pocket. Mr: Vyaawas approximately 40 .feet .away · from the event and was able to" see the suspect. Mr: Vyas reviewed the ·surveillance.
video from his store after 'the.incident and noted that the man left the store. in a blue -SUV .
.Policewere able to. obtainsurveillance video from.the Wawa and.Mclxmald's Restaurant locatedin close proximity to-the· Smokes-to Go, The videos depict a-blue
.SW -in the .area at the. approximate time of the robbery, .Lieutenant Michael Marks, of the Whitehall Townahip Police, was able to review the still 'photos taken from the
videos and. determined that the sµv in question was a GM C.: "$nvoy and that it had. two distinguishingmarks: a black dot and horizontal stripeon therear cargo window
:(iater·deter-mined-to: be art. outdated cellular telephone antenna) and left rear bumper damage.
On oraboutNovember ·23:, 2012,. at the monthlycrime meeting attended by various-law enforcement agencies in the.area, Lieutenant Marks learned of the robbery
that had occurred . at LibertyBell Beverage in Emmaus. Although the incident and the actor .shownon the video surveillance appeared similar to the other robberies that 'we're occurring throughout theLehigh Valley, itstruck-Lieutenant Marks as· strange fhatthesuspect in that robberywore. a hcckey-etyle mask, appearing to only ,be concerned with hiding-his identity during this .particular robbery in Emmaus. Based .
on the reviewed surveillance videos obtained In 'connection 'with th:e.' robbery at the Smokes.to do, Lieutenant Marks focused his attention on investigatingGlvl C Envoys
'in the Emmaus area .. He. discevered only 7 blue ·GMC . ·Envoys in the ..area . . When he:
researched the registration on these vehicles, one; cameback .as .registered .to -Josephine.Felton, the Appellant's· wife, with an address in Emmaus.
On November 29,._ 2012., Lieutenant Marks contacted Detective Andrew Artim of the Lehigh County Drug Task Force· to request that he conduct surveillance 'on the blue. GMC Envoy registered to .Mrs. Felton. At approximately 3· p.m . , Detective Artim found; the vehicle at Cigars International, Mrs-.. Feltori.'s place of employment. He watched as Mrs. Felton gotinto the vehicleand.followed her as she picked up.some children in. Allentown, Detective Artim lost track of the vehicle .in Allentown, but proceeded to the Feiton residencein Emmaus, At approxiJn~tefy.'J:5.0 p.m., tile blue GM(;.Envoy·arrived. DetectiveArtim was.unable to.identify the.individual who exited the vehicle, However, onthe porch area ofthehouse, DetectiveArtimobserved a·
person.with a blackjacketanda.younger female, He watched as the two entered the residence..
At approximately 8:20 p.m., amale came.out of the residence wearing a black hoodie with whrte strings hanging down, a black knit cap, and black pants. The male got Into the "GMC'Erivoy and drove away, Detective Artim followed the vehicle. as It left Emmaus and 1'.>roceeded to Rou:te:.663 .arrd Route 29; 'inMarlborough Township, Montgomery County, Pennsylvania; Because Detective Artimwas outof his jurisdiction, had no.radio contact with the local 'police department; and was wearing
plain clothes, Detective Artim broke off. surveillance at.approximately .9:50 p.m. and alerted Lieutenant Marks that the vehicle was no longer under surveillance,
On the .same day; at approximately 10.:4-p p.m .. , .Gurpreet Kaur was working at the BP gas .station on Valley Forge.Road; Lansdale, Montgomery Oourrty, Pennsylvania, A male customer came-intothe store and asked.for Newport cigarettes. He paid for the cigarettes .arid then showed Ms. Kaur a gun. He asked Ms. Kaur to open the .register arid ·she asked him· to· put the ·gun away. Thernan . . complied and asked her- for money. Ms. Kaurtold himhe GOUid have the money. Theman took the 'money.and
to
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said "sorry" as he· leftthe store. Ms. Kaur .imrriediately C"~ecl.'9.-1-l. Approximately
$.500 was stolen.
On November ·3.0.r-20)2, thefollowing day, Lieutenant Marks learned o! the·
.robbery at the BP gas station in Montgomery County. He obtained surveillance video
and showed-the· surveillance video to Detective Artim. Detective. Artirn believed-that the- suspect.in the. video was the same person.he observed driving the GMS-.Envoy the
previous evening. Detective Artim resumed 'surveillance and the Appellant was taken
into custody th at. evening at approximately 5 p.m, $432 'irr US currency and miscellaneous -items were recovered from the Appellant's.person, A search warrant was prepared for the.Appellant's residence .andwas executed
on November 30-, ·201-2, A birth certificate.and voter's.Identification belonging to the Appellant, jeans, a knit cap, a baseball cap, .a gray hcodie, a gfay h'oodie with white· strings, a black hoodie with white strings, a gray pullover sweatshirt, aBlackhawks 'knit cap, and black Nike ..sweatpants-were foundwithin 'the residence. Sergeant Timothy Hoats of the Emmaus Police Department assisted in serving the warrant and
searched the master . bedroom,
. There,
. . . he found a. white. hockey mask in the closet and
a p~ck of Newport cigarettes on a nearby desk. In the basement, a television with holes in the screen. was found. in one of the side bedrooms, 'a, Walther 99P replica: BB/Pel)et gun. was-recovered from a shelving unit, Lieutenant 'Marks interviewed the Appellant at. the Emmaus PoliceDepartment.
During ·the interview, Lieutenant Marks .showed 'the Appellant still photographs taken from the surveillance videos of the robberies -tha,t occurred at. the Allentown Shell Station .and .the Top Star .in Whitehall. H~ also showed the Appellant a side-by-side comparison of the Appellant's photograph and a. still photo 'taken from· the surveillance videoofthe robbery that tookplaceat the Hess Station 'in Coopersburg. Upon viewing
12
the photographs; the Appellant's mouth dropped .open and heattempted-to suppress a smile. After he looked through the photographs, the-Appellant stated. "These photos don't -$POW me doing anything. i)
Chailyn Janae: Humphrey; ·the:stepdaugh.ter of the.Appellant, testified that the .Nike wind pants.recovered from the Felton -residence were, Infact, -hers. She further stated that the Appellant had never worn those pants, She- also testified that the. Appellant is employed as. -a tattoo artist and has had. many tattoos for several years .. $he identified two·of the hoodie sweatshirts 'recovered from the Appellant's residence
· as· belonging to the Appellant. .However, she did not recognize the hockey mask o_r the Blackhawks hat,
Although some items..recovered from .someofthe robberies were sent out for fingerprint -testing, the· results 'were inconclusive;
DISCUSSION AND -CONCLUSIONS OF LAW Inhis Statement:of:Matte~s,Complair)..ed [.of] on Appeal, theAppellant argues (a)
that the verdict was against the weight of the evidence because there were ·1'su bstantial inconsistencies, contradictions and conjecture ... regarding the.i:dentification of the 'perpetrator" and {b) that the Cqurt erred in sentencing the Appellantto consecutive individual sentences, whichresultedin a sentence that "manifestly excessiveand harehand far .exceeded any reasonableperiod of incarceratierineceasary forthe [Appellant]" and because the Court-failed to set fortappropriatereasons-for such a .grose deviation.from the- sentencing rrorms for such a case." App. Stmt, .of Matters Compl, ,r:1-2. ·weight ofthe·E71idence The AP1;1ellant first argues that the verdictrendered by the .Iury was-agai11:,;1t the weight of the evidence. Specifically.ihe suggests that therewere "substantial inconsistencies, contradictions ..and conjecture in the· Commonwealth's witnesses]'] testimony regarding the.identity of the perpetrator.". Id. at 11.
·l1 .'i'h.e, . 'finder of.fact.is theexclusive judge.of the weight . of the. evidence as the fact
finderis free to believe all, part, .or none of the evidence presented Md determines.the 'credibilityof the· witnesses." Comnvmweaith. u_. Boy~, 7~ A:.3d 1269·, 1274 (Pa.Super . ~2:013){in.ternal citationomitted]. "An allegation that the verdict is against the weight of the evidence. is addressed to the discretion of tire trial-court.'! Commoruoealih-u.
Wiltmer,. 744 A:2d.745, 1.51-7~2 (Pa. 200.0}(oiting Commonuieaith;v. Brown_,.538 Pa.. 410, 648 A:2d 1177 (1994)).
Anew trial should not begranted because of a.mere conflict in. the testimony orbecause the judge op. the -same facts · would have arrived at a different conclusion .. A trial judge must dormore than reassess the credibility of the witnesses and allege that he would. not have.-a.~s·e_nted to the verdictif he were a juror. Triai judges, in reviewing a claim that the ·verdict is again.at the weightof the evidence do not sit a~ the thirteenth juror. Rather, the role of. the trial judge is to determine that notwithstanding. ail the facts; certain facts are so clearly of greater weight 'thatto ignore them or to give them equal weight with all the facts is to deny justice.
Id.-·(mtemal citations omitted).
Additionally, "evidence of identification need .not, be positive. and certain to sustain a coriviction. Although common items· of clothing-and general physical characteristics are usually insufficient.to support a conviction, such evidence can be used.as other ciroumstances to establish the identity of a perpetrator," Commonwealth v. Orr, 38 A:3d. 868,: a·7~ (Pa:S1,1per. :2p 1.l){int_emal -citations omitted).
In order for .ari appellate court to reverse the jury's. verdict, it must determine "that, the. verdict.is so contrary to.. the evidenceas totshock one's .sense ofjustice." Dom.mQntuealth v. Braum, 2$ A.·3.d S44, .557 (Pa-,Super; ·2011). "However, the determinations of the fact finder will not be disturbed on. appeal if they are 'su pported
14
by the record." Commotuueolth u: Ro~gers, 605 A.2d 1;22_8, 1_236. [Pa.Super. 199l)(citing Commotuuealih: v, Zapata,.290-A.2d _114 (Pa. 1972))·.
Viewing the evidence presented at trial; the: Court has determined 'that, the jury's verdictis .nor so contrary to the. evidence presented thata new trial-is necessary. The, jury was free to evaluate the evidence presented by the- Commonwealth and .give what importance it wished to· each fact presented, Despite the fact that. many ofthe witnesses couldnotgivea specificdescription ofthe.person who robbed them, they· were able to Identify whatthe person.waa wearing and distinctive features· such as eyes.and/ orhia voice, After viewing and/or heating the Appellant .speak at trial,
several victims were. able to identify the Appellant as the perpetrator. In addition. to the in-court identification, the jury. was abie fo view surveillance video from .many of
the crime scenes and.was· able to determine for themselves if the perpetrator was the Appellant, Further evidence demonstrated that; specific items :of_ clo_thing seen -on the · video surveillance:orsevetal of the t·obberiea, .such as the dark hoodies with white strings, the hockeymask, ·and theBlackhawks knit hat, were .recovered from the Appellant's residence. T4e Court believes thatthe additional evidence which was ·:p.ro_vided at.trial through testimony, coupled with the in-court identifications, allows this Court to find that the-Jury's. verdict did-not so- ''Shock one's sense of justice'<that
a -new trial.is · .neceasary. Manifestly Excessiueorid: Harsh. _Sente.rwes
The Apvellant further argues that the. lengthy individual sentences.imposed and the Court's decision to run. those. sentences ·conse.cutiv_ely rendered. the sentence· fnanifestlyexcessive and harsh. We disagree.
"Serrtencing :i's a matter vested ih. the sound discretion of the sentencingjudge, and a sentence will.not he disturbed on appeal absent.a manifest abuse ·of that .discretion." Commomuealtn.», Mfrmtt1 577 A.2d 928, Sl.~9 (Pa.Super, l-990),.citi!):g .Commonwealth v; Fries, 523 .P,.;2d. 1134 (PaSu.p.er. 1987). While sentencing courts do possess broad discretion, that 'discretion is not unfettered and 'remains subject to appellate review. Comm.onwea.lthy. ·lVhitmcm,. 880: A.2.d 12501 1252-1253· (Pa.Super, 2005)., reversed ·oh other grounds, [internal citations. omitted].
To 'constitute an abuse: of discretion, the sentence .imposed must either exceed the statutory limits or be manifestly excessive. Commonuiealih. v. Mouz_oh,,. 812 A.2d
(517, (>21 (Pa. ·2062). In general, the sentence "should call.for confinement that is· consistent with the protection of the public; the gravity of the 'offense as it relates· lo the rmpaet 'on the life·· of the-victim and 'the community, and the. rehabilitative needs of thedefendant.v+z Pa.Cons.Stat. §912l{bJ .. :See.·CommonivE:dlth_·v. Walls, 9.29 A.2d 9_57., 962 (Pa. :2b07l; .see ~so··Whitmarra·t 1253.) 'citing 4.2·.P~.C.S. § 9721(b)): However, these· factors are in 11.0 way ·exclusive, and a sentencing .court is· _entitled to consider the totality of circumstances· when making, its decision.
·''Along with 'these general standards ... the court is· given more specific criteria to consider with respect to each .of the.alternatives. Thµ;s, total confinernerrtshould be imposed if "the court 'i's of the. opinuin. · that it is necessary because of a risk that the defendant will commit another· crime; because 'inetitutionalization would -provide the most effective correctional treatment; o;i: because. anything less would depreciate 'the aeriousness of the crime. Further, the court's opinion. .ia to be guided by considering
'the nature. and circumstances .of the crime and the history, character -and condition of the defendant .. "~4~ . Pa.Cone.Stat. §~7~5. Commonuiealtiiu; Tuladzieeki; 522 A.2d 17.,
.20 ·(Pa. 1987). Giveri the general 'outline of· considerations provided in 42 Pa. Co.ns:Stat. §.9721 and §9725, it is clear that the. Pennsylvania legislature 'has vested
16
'broad discretion- iri the trial court. to fashion a -sentence that. is .appropriate given the particular set of facts and .ciroumstances for the individual case at bar.
Furthermore, "[wjhere. the -sentencing judge had the benefit of a pre-sentence report, it wilrbe presumed that he: [orshe] was aware of.relevant information regarding appellant's 'character and 'Weighed those considerations along with the mitigating. .statutory factors." Commoniuealth: U, L;N, 7.87 A.2d L06.4,. 107'1-12 {Pa. ·supe.1:. ..2.001). Ultimately, "[t]he role of the sentencingjudgeis to ..weigh all mitigating and, aggravating factors and arrive, at an appropriate sentence. ,, Cotritnonwealth u. Cottam.~ 420· Pa. Super. 3J 1, 346., 616 A.-2d 988, 1006 (1992) [citations 'omitted].
Abuse.of discretion i.s not shown merely by an error of judgment; an.appellant.
rnust also showmisapplfcation of the Iaw, 'exercise of.judgment for reasons of
partiality, prejudice, bias, or a manifestly unreasonable decision. Commonwealth v. Perrp, 883'.A.2d S99,_-60Z.(Pa.· Super. 2·095)~ Mol,l.Z'on, ·~.28 A.2d a:t l128 (Pa .. Super.
·2003). In determining whethera sentence is-unreasonable, an appellate court considers: 1.) The.nature. and circumstances of the offense.and the- history and charaeteriatics of.the defendant; :2) The . .opportunity ofthe sentencing court to observe the defendant! including any pre-sentence-investigation; 3) Th.e findings upon which the sentence was.based; and; 4) The .guidelines promulgated by the· commission, Commonw~ci.lth u. Smith, 543, Pa, ,566', 6-73. A.2d $93 (199.6). An appellant alsocarrtes a burden when making ·.an. excessiveness claim .. To prove exoessivenese, an appellant must show thatthe 'trialcourt's sentence was 'inconsistent with a, specificprovisiori.of the Sentencing Code, or is contrary tothe fundamental norms· that underlie. the sentencing-process, . See Ccmmomuealth.». Hqll, ·$82 Pa. ·sl}.p:~r·. 6, ·_554 A.2d. 919 (19.89).
17
In the instant case, the Appellant argues that the lengthy individual sentences 'imposed consecutively were manifestly excessive .and harsh because they "far exceeded arty reasonable :period of incarceration" and the Court failed to state ·its .reasons for "such a ._gross deviation from the .sentencing norms for such a case." App. -Stmt .. ofMatters Compl. at 'ff2. Prior to-the date ofsentencingin theinstant.matter,
the Courtreceived apresentence investigation report, which included tp.e·sentencin~-
. .
guidelines, affidavits of probable cause from all of the :relevant criminal complairits, -a
co~y of the Inventory collected during .the execution of the search warrant, a _photograph of the weapon used during the commis'sion of the.robberies throughout
the Lehigh Valley, .the victim statement that was written.for the police from Edna Lanier, 'arid a request ~Cir restitution from GurpreetKaur. The.' Court alsoreceived.a memorandum from the Lehigh County Jail outlining the.misconducts suffered by the Appellant while he.was_ incarcerated.
After review of the transcript .of the Sentencing Hearing, it is clear that the Court carefully considered a variety of factors pertinent to the Appellant, including his past criminal history and the danger he- .presents to the community. . Also. weighing significantly on the Court's decision to .imposetheeerrterice-It. did werethe particular facts. and. circumstances surrounding: the twelve re b beries and thefts, the terror
experienced bythe victims' at .the time the Appellant.committed· the crimes, and the· Appellant's lack of remorse .for his actions:
..... it's a scary job to be.a convenience state or a small store. owner, You are reallyat the mercy of the neighborhood that you are in, the public that comes· in andout.imaybe the relationship thatyou .have with thepolice department that-services the area, .But you: couldn'tpay me to be aconvertience store person. . .
And, .aure enough, you are the reason why [workingat a convenience store is dangerous]. People come· in andin the: blink of an eye it'~ a robbery.
Whether it's a fake gun, whether it's a real.gun, .it was dangerous and it was .scary. .
And, surprisingly, statistically speaking, I thinkit's improbable that you could have robbed all of these places. without.oneof thesevietims having.
theirown weapon.
X don't.give discounts.for volume, I think that each and, every victim here was. harmed and 'was seriously harmed, And, again, not because . they were injured -- thank God 'no one· was ,..-: but because -they had tile crap scared out of them .
.I think that we have .heard testimony that somepeople.won't do this Job anymore orwhether their. .family members won't.let them. For other 'people it's their livelihood 'and .so they have to do it.
h's how they support their families, Amt so I don'{ know how. they .go .in and out every day hut they have.
to. It's their store,
So, .nc, there's no volume discount.
Notes. of Testimony;
Sept. 2.1, 2015;_J>.8-_lO·.
It iswell.settled that the Court is.entitled to sentencea defendant on each criminal act -~om.roitted,so long as "the -crimes are riot greater or lesser .included offenses." See Cq1J1mbnweaitf!.. v... Shank; 883,.A.2d 658, 671 [Pa.Super. 2005), citing Commonureaith:», Anderson: 650 A.2d 20, 22 (P.a. 1994J). "[Defendants] are liable for as many- crimes as they are- convicted of and may be sentencedfor each such crime." 'Id. -citing Ariderson, 650 A..2d .at.22. The Appellant, created a crime spree throughout the Lehigh Valley, terrorizing the individual 'clerks 'working at the different businesses .and thecommunity asa whole. He- employed the use ofa gun, albeit a BB-or pellet gu_n, using the weapon tcr-threaten the victims.to comply with his demands for the .money, registers? and/ or .personal property of the. victims. The crimes committed did not merge and were seJ)arate· criminal acts·.
. the sentencing guidelines, albeit at the .top of the -standard range. The. Appellant had a prior record score of 3., demonstratingthat he had prior· contact with the justice
1_8
19
system. To have imposed these counts concurrently would have depreciated the actions by the Appellant and not brought justice to the victims or protected the greater ·community from the Appellant,
CONCLUSION
After review of the evidence presented at trial, the averments made by counsel for the AppelJant in his Concise Statement of Matters Complained [of] on Appeal, and the relevant case law, we believe that the Appellant's argument that the verdict of the jury was against the weight of the evidence is without merit. In addition, the Court did not err by issuing individual sentences in each of the robberies and deciding to run the sentences consecutively. We urge the Superior Court to deny and dismiss the instant Appeal.
By the Court:
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