Com. v. Filaroski, M.

• Court: Superior Court of Pennsylvania
• Decided: May 9, 2018
• Docket: 818 MDA 2017
• Status: Unpublished

Opinion

J-S09004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA, : PENNSYLVANIA : Appellee : v. : : MICHAEL SCOTT FILAROSKI, : : Appellant : No. 818 MDA 2017 :

Appeal from the Judgment of Sentence February 14, 2017 in the Court of Common Pleas of Cumberland County Criminal Division at No.: CP-21-CR-0002364-2016

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED MAY 09, 2018

Appellant, Michael Scott Filaroski, appeals from the judgment of

sentence imposed on February 14, 2017, following his jury conviction of one

count of carrying a firearm without a license.1 On appeal, Appellant challenges

the sufficiency and weight of the evidence, as well as the discretionary aspects

of sentence. For the reasons discussed below, we affirm the judgment of

sentence.

We take the underlying facts and procedural history in this matter from

our review of the certified record. On July 9, 2016, Patrolman Andrew Wolfe

was part of a group of Middlesex Township police officers investigating drug

____________________________________________

1 18 Pa.C.S.A. § 6106(a)(1).

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S09004-18

activity at the Pike Motel. (See N.T. Trial, 12/13/16, at 36, 38). Appellant

and his family were living in a bungalow behind the motel. (See id. at 40).

During their investigation, the police observed Appellant’s son engage in a

drug transaction with some individuals in an automobile. (See id.).

Subsequently, the police stopped the car and began to investigate the

incident; while the police were continuing to investigate, Appellant approached

them and began speaking in an angry and agitated manner, making threats

to kill all drug dealers. (See id. at 42-45, 119). Appellant then pulled up his

shirt and revealed what Patrolman Wolfe, a firearms expert, recognized as a

semi-automatic gun in his waistband. (See id. 45-46, 79). The police did not

know if Appellant had a license to carry the gun and decided not to undertake

any further investigation of Appellant at that time. (See id. at 46-47, 96).

The next day, Patrolman Wolfe responded to a call at the Budget Motel,

located next door to the Pike Motel, because Appellant’s son’s girlfriend had

overdosed on heroin. (See id. at 47). The girlfriend ultimately told police

that Appellant’s son supplied the heroin. (See id. at 48). The police obtained

a warrant and arrested Appellant’s son. (See id. at 49-51). During the arrest,

Appellant was extremely angry and agitated with the police, making specific

threats against them and their families. (See id. at 52-53, 103-04). The

police decided to let the situation de-escalate and consider filing charges

against Appellant at a later juncture. (See id. at 114-15).

-2- J-S09004-18

Because of these incidents, the police began an investigation of

Appellant and ascertained that he did not have a license to carry a concealed

weapon and, in fact, was not eligible to obtain such a license. (See id. at 56-

57). On July 25, 2016, the police, pursuant to a warrant, arrested Appellant.

(See id. at 59-65). When they searched his home, they found a box of bullets

and a loaded weapon in his bedroom; it was in the same holster that Appellant

was wearing on July 9. (See id. 59-65, 82, 99).

On September 28, 2016, the Commonwealth filed a criminal information

charging Appellant with one count of firearms not to be carried without a

license and two counts of terroristic threats.2 A jury trial took place on

December 13 and 14, 2016. On December 14, 2016, the jury convicted

Appellant of firearms not to be carried without a license but was unable to

reach a verdict on the charge of terroristic threats. (See N.T. Trial, 12/14/16,

at 189-90). On February 14, 2017, following receipt of a Pre-Sentence

Investigation Report (PSI), the trial court sentenced Appellant to a standard

range sentence of not less than not less than twenty-four nor more than thirty-

six months of incarceration. (See N.T. Sentencing, 2/14/17, at 17). On

February 24, 2017, Appellant filed a post-sentence motion challenging the

sufficiency of the evidence and asking the trial court to reconsider the

sentence. (See Defendant’s Post-Sentence Motion, 2/24/17, at unnumbered

2 18 Pa.C.S.A. § 2706(a)(1).

-3- J-S09004-18

pages 1-3). On April 17, 2017, the trial court denied Appellant’s post-

sentence motion. The instant, timely appeal followed.3

On appeal, Appellant raises the following questions for our review.

I. Did the Commonwealth provide sufficient evidence to prove beyond a reasonable doubt that [Appellant] possessed a firearm not to be carried without a license?

II. Was the verdict by the jury against the weight of the evidence that [Appellant] possessed a firearm not to be carried without a license?

III. Did the trial court’s failure to state on the record reasons for the sentence imposed at time of sentencing subsequent to which the court summarily denied post-sentence motions by [Appellant] to reconsider (and) modify sentence and for judgment of acquittal (and) new trial, constitute an abuse of discretion?

(Appellant’s Brief, at 6) (unnecessary capitalization omitted).

In his first issue, Appellant challenges the sufficiency of the evidence.

(See Appellant’s Brief, at 23-27). Our standard of review for sufficiency of

the evidence claims is well settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, ____________________________________________

3 In compliance with the trial court’s order, Appellant filed a statement of errors complained of on appeal on June 8, 2017. See Pa.R.A.P. 1925(b). On August 2, 2017, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

-4- J-S09004-18

part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth’s burden may be met by wholly circumstantial evidence and any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).

Appellant’s argument is underdeveloped. Appellant’s argument on this

issue is all but devoid of legal citation. Appellant does not fully cite to our

standard of review, does not list the elements of the crime, and does not

explain why the evidence was insufficient to meet those elements. (See

Appellant’s Brief, at 23-27). Instead, his entire argument is devoted to his

contention that the initial failure of the police to arrest him on July 9, somehow

made the evidence insufficient. (See id.). Appellant points to nothing to

support his claim that an approximate two-week period of investigation prior

to arrest somehow renders the evidence at trial insufficient. (See id.).

Accordingly, Appellant has waived his sufficiency of the evidence claim. See

Commonwealth v. Liston, 941 A.2d 1279, 1285 (Pa. Super. 2008) (en

banc), affirmed in part and vacated in part, 977 A.2d 1089 (Pa. 2009);

Pa.R.A.P. 2101. In any event, his claim lacks merit.

An individual is guilty of carrying firearms without a license if he or she

“carries a firearm in any vehicle concealed on or about his person, except in

his place of abode or fixed place of business, without a valid and lawfully

-5- J-S09004-18

issued license.” 18 Pa.C.S.A. § 6106(a)(1). In the instant matter, Appellant

conceded that he did not have a license to carry a concealed weapon. (See

N.T. Trial, 12/13/16, at 134). At trial, Patrolman Wolfe testified that he

observed Appellant lift up his shirt and then saw a gun in Appellant’s

waistband. (See id. at 45-46). Patrolman Wolfe further stated that the gun

recovered from Appellant’s bedroom was in the same holster that Appellant

wore on July 9. (See id. at 59-65). This was more than sufficient to sustain

Appellant’s conviction. See Commonwealth v. Dever, 364 A.2d 463, 465

(Pa. Super. 1976) (holding evidence sufficient to sustain conviction for

carrying firearm without license where police officers found gun in hotel room

after arresting defendant and one police officer testified to observing gun in

defendant’s waistband). Appellant’s first claim is without merit.

In his second issue, Appellant challenges the weight of evidence. (See

Appellant’s Brief, at 28-30). However, Appellant has not preserved this claim

for our review.

We have long held that this Court cannot consider, in the first instance,

a claim that the verdict is against the weight of the evidence. See

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here,

while Appellant did file a post-sentence motion, he challenged the sufficiency

of the evidence, not the weight. (See Defendant’s Post-Sentence Motion, at

unnumbered page 2-3). Thus, the issue is not preserved for our review. See

Commonwealth v. Burkett, 830 A.2d 1034, 1036 (Pa. Super. 2003).

-6- J-S09004-18

Moreover, even if we were to address the merits of the weight of the

evidence claim, it would fail.

Our scope and standard of review of a weight of the evidence claim is

as follows:

The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses.

As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury’s verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one’s sense of justice. A verdict is said to be contrary to the evidence such that it shocks one’s sense of justice when the figure of Justice totters on her pedestal, or when the jury’s verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.

Furthermore, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and quotation marks omitted). “Thus, the trial court’s denial

of a motion for a new trial based on a weight of the evidence claim is the least

assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-80

(Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation omitted).

In its Rule 1925(a) opinion, the trial court explained that the jury chose

to credit the Commonwealth and not Appellant’s defense. (See Trial Court

-7- J-S09004-18

Opinion, 8/02/17, at unnumbered page 7); Commonwealth v. Griscavage,

517 A.2d 1256, 1259 (Pa. 1986). “[I]t is for the fact-finder to make

credibility determinations, and the finder of fact may believe all, part, or none

of a witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024, 1029

(Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted).

This Court cannot substitute our judgment for that of the finder of fact. See

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 134

S.Ct. 1792 (2014). This issue would not merit relief.

In his third issue, Appellant challenges the discretionary aspects of his

sentence.4 (See Appellant’s Brief, at 31-41). Specifically, he maintains that

the trial court failed to place reasons on the record to justify a sentence of

total confinement. (See id. at 31). However, Appellant has waived this claim.

The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant

challenges the discretionary aspects of the sentence imposed, he must present

“a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

4We note that Appellant preserved his discretionary aspects of sentence claim by filing a timely post-sentence motion for reconsideration of sentence. (See Defendant’s Post-Sentence Motion, at unnumbered page 1-2); see also Commonwealth v. McAfee, infra at 275.

-8- J-S09004-18

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to the fundamental norms underlying the sentencing scheme.”5

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005) (en

banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted); see

Pa.R.A.P. 2119(f). If an appellant’s Rule 2119(f) statement meets these

prerequisites, we have found that a substantial question exists. See

Commonwealth v. Goggins, 748 A.2d 721, 727-28 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000). “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 727 (emphases in original).

Here, while Appellant did file a post-sentence motion for

reconsideration, as discussed above, the only issues raised were that the trial

court did not give adequate weight to the letters sent in support of a mitigated

sentence and that the evidence at trial was weak. (See Defendant’s Post-

Sentence Motion, at unnumbered pages 1-2). Appellant did not raise the claim

that the trial court failed to place sufficient reasons on the record. (See id.).

It is settled that an appellant waives any discretionary aspects of sentence

5 Appellant has included a Rule 2119(f) statement in his brief. (See Appellant’s Brief, at 20-22).

-9- J-S09004-18

issue not raised in a post-sentence motion; also, an appellant cannot raise an

issue for the first time on appeal. See Commonwealth v. Mann, 820 A.2d

788, 794 (Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa. 2003) (finding

claim sentencing court did not put sufficient reasons to justify sentence on

record waived where issue was not raised in post-sentence motion); see also

Pa.R.A.P. 302(a). Thus, Appellant waived his discretionary aspects of

sentence claim.

Moreover, the claim is without merit. Our standard of review is settled.

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015), appeal

denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).

Here, Appellant acknowledges that the trial court sentenced him in the

standard range. (See Defendant’s Post-Sentence Motion, at unnumbered

page 1). The record demonstrates that the trial court had the benefit of a

PSI. (See N.T. Sentencing, at 17). We have stated that:

[w]hen imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. . . . Where the sentencing court had the benefit of a [PSI], we can assume the sentencing court was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. Further, where a sentence is within the standard range

- 10 - J-S09004-18

of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (internal

quotation marks and citations omitted). Here, the sentencing court stated

that it had reviewed the PSI and imposed a sentence that was within the

standard range of the guidelines. (See N.T. Sentencing, at 17). Thus, any

challenge to the discretionary aspects of sentence would lack merit. See

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (holding

sentence not manifestly unreasonable where sentencing court considered PSI,

details of crime, and explained reasons for sentence); see also Moury, supra

at 171.

Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/9/2018

- 11 -