Com. v. Salata, G.

• Court: Superior Court of Pennsylvania
• Decided: April 29, 2019
• Docket: 1447 MDA 2018
• Status: Unpublished

Opinion

J-S12034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GEORGE JOSEPH SALATA, : : Appellant : No. 1447 MDA 2018

Appeal from the Judgment of Sentence Entered August 9, 2018 in the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001148-2017

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: APRIL 29, 2019

George Joseph Salata (“Salata”) appeals from the judgment of sentence

entered following his conviction of two counts of aggravated assault, and one

count of criminal attempt (homicide). Counsel for Salata has filed a Petition

to Withdraw from representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We grant counsel’s Petition to Withdraw and affirm

Salata’s judgment of sentence.

During the evening of January 23, 2017, Salata and Michael Gontz

(“Gontz”) exchanged hostile text messages, while Gontz was in a bar in

Hazelton, Pennsylvania. Salata threatened Gontz and Gontz’s son in the text

messages. Salata indicated that he was on his way to the bar. However,

Gontz subsequently left the bar to look for Salata. According to Gontz, J-S12034-19

I got as far as the corner of where [Salata’s] house is and stood out in the street, and I realized [that] he wasn’t coming out[,] so I had decided, I remember making a decision to turn around and just go home. But I heard something from behind me and turned my head to look and that’s when I got shot.

N.T., 2/12/18, at 66. As a result of being shot in the head, Gontz suffered

serious and permanent injuries, including the loss of hearing in one ear.

Dominick Fornato (“Fornato”), a code and safety enforcement officer for

the City of Hazelton, heard the gunshot while he was working on Locust Street.

Upon Fornato’s arrival at the scene, he observed Gontz in the middle of 20th

Street, on his hands and knees, bleeding from the right side of his face.

Fornato observed a large pool of blood on the ground near Gontz, with some

footprints “around the victim.” Id. at 29. Karen Cundro (“Cundro”), a nearby

resident, awakened after hearing a loud bang. She looked outside and

observed a man lying on the street, face down, and another man standing

nearby. According to Cundro, the man who was standing turned and walked

away from the scene. Another nearby resident, Yamira Feliz, heard a loud

boom that same evening, after which she observed Salata in his back yard,

carrying a shotgun.

Following a jury trial, Salata was convicted of the above-described

charges. For his conviction of criminal attempt, the trial court sentenced

Salata to a standard-range prison term of 240-480 months in prison. For his

conviction of aggravated assault, the trial court sentenced Salata to a

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concurrent, standard-range prison term of 48-96 months.1 Salata filed post-

sentence Motions, which the trial court denied. Thereafter, Salata filed the

instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

We may not address the merits of issues raised on appeal without first

reviewing the request to withdraw. Commonwealth v. Rojas, 874 A.2d 638,

639 (Pa. Super. 2005). Therefore, we review counsel’s Petition to Withdraw

at the outset. Our Supreme Court’s decision in Santiago did not alter the

procedural requirements counsel must satisfy in requesting to withdraw from

representation. Counsel must (1) petition the court for leave to withdraw

stating that, after making a conscientious examination of the record, counsel

has determined that the appeal would be frivolous; (2) furnish a copy of the

brief to the defendant; and (3) advise the defendant that he or she has the

right to retain private counsel or raise additional arguments that the defendant

deems worthy of the court’s attention. Commonwealth v. Lilley, 978 A.2d

995, 997 (Pa. Super. 2009).

Here, counsel’s Petition to Withdraw states that he has reviewed the

record and concluded that the appeal is frivolous. Additionally, counsel

notified Salata that he was seeking permission to withdraw, furnished Salata

with copies of the Petition to Withdraw and Anders brief, and advised Salata

____________________________________________

1 Salata’s remaining aggravated assault conviction merged at sentencing.

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of his right to retain new counsel or proceed pro se to raise any points he

believes worthy of this Court’s attention.2 Accordingly, counsel has satisfied

the procedural requirements of Anders.

Having concluded that counsel has complied with the procedural

mandates of Anders, we next determine whether counsel’s Anders brief

meets the substantive dictates of Santiago. According to Santiago, in the

Anders brief that accompanies the petition to withdraw, counsel must

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

Here, counsel’s Anders brief sets forth the factual and procedural

history of the case. Additionally, counsel refers to issues that could arguably

support the appeal, and concludes that the issues are wholly frivolous.

Accordingly, counsel has complied with the minimum requirements of

Anders/Santiago.

In the Anders brief, counsel identifies the following issues for our

review:

1. Whether the Commonwealth proved by sufficient evidence that [Salata] committed the crimes of [a]ggravated [a]ssault and [c]riminal [attempt]-[c]riminal [h]omicide[?] ____________________________________________

2 Salata has not filed any supplemental materials with this Court.

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2. Whether the trial court abused its discretion in sentencing [Salata?]

Anders Brief at 1.

Salata first challenges the sufficiency of the evidence underlying his

convictions. See Anders Brief at 6. Specifically, Salata asserts that the

Commonwealth failed to establish that he, in fact, was the assailant. Id.

Salata further asserts that circumstantial evidence is not sufficient to sustain

his convictions. Id. at 6-7.

In its Opinion, the trial court deemed the issue waived based upon the

lack of specificity in Salata’s Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal. See Trial Court Opinion, 10/16/18, at 2

(unnumbered). The trial court further reviewed the applicable law and the

evidence presented at trial, and concluded that the evidence was sufficient to

sustain Salata’s convictions. See id. at 2-5. We agree with the sound

reasoning of the trial court, and affirm on this basis with regard to Salata’s

first claim. See id.

In his second claim, Salata challenges his sentences as excessive. See

Brief for Appellant at 5. However, as the trial court observed in its Opinion,

Salata’s Pa.R.A.P. 1925(b) Concise Statement failed to specify “how, why or

in what manner [the trial court] abused its discretion in sentencing [Salata].”

Trial Court Opinion, 10/16/18, at 5. The trial court further addressed the

merits of Salata’s claim of an excessive sentence, and concluded that the claim

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lacks merit. See id. at 5-8. We agree with the sound reasoning of the trial

court, as expressed in its Opinion, and affirm on this basis with regard to

Salata’s sentencing claim. See id.

We further agree with counsel’s assessment that the claims lack merit,

and our independent review confirms that the appeal is wholly frivolous. We

therefore grant counsel’s Petition to Withdraw, and affirm Salata’s judgment

of sentence.

Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/2019

-6- Circulated 03/27/2019 04:54 PM

COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY

VS. CRIMINAL DIVISION

GEORGE JOSEPH SALATA NO: 1148 OF 2017

OPINION PURSUANT TO RULE 1925(a)(l)

BY THE HONORABLE MICHAEL T. VOUGH

This matter arises from an information filed by the Luzerne County District Attorney

against Defendant, George Salata, on May 25, 2017. Defendant was charged with one count of

criminal attempt to commit criminal homicide and two counts of aggravated assault. These

charges resulted from an incident which occurred in the City of Hazleton during the early

morning hours of January 24, 2017, when the Defendant approached the victim from behind as

he was standing in the street and shot him in the face.

Defendant entered a plea of not guilty and proceeded to a jury trial. On February 14,

2018, Defendant was found guilty of criminal attempt to commit criminal homicide and two

counts of aggravated assault. Based upon his prior record score of two, a standard range

sentence of two hundred forty to four hundred eighty months was imposed on the attempted

homicide charge. A concurrent sentence of forty-eight to ninety-six months was imposed on the

first count of aggravated assault and the second count of aggravated assault merged with the first.

On April 13, 2018, a post-sentence motion was filed on behalf of Defendant. This

motion requested a judgment of acquittal, a new trial and a reconsideration of sentence.

Defendant's post-sentence motion was denied by Order dated August 9, 2018.

A notice of appeal was filed on August 29, 2018. An order was then issued by this Court

on the same date which required that Defendant file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. A concise statement was filed

on behalf of Defendant on September 18, 2018. The concise statement raised two issues: "Whether the Commonwealth proved by sufficient evidence that the Defendant committed the

crime of Aggravated Assault and Criminal Attempt-Criminal Homicide" and "Whether the trial

court abused its discretion in sentencing the Defendant".

When challenging the sufficiency of the evidence on appeal, the appellant's "1925(b)

statement needs to specify the element or elements upon which the evidence was insufficient" to

preserve the issue for appeal. Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super.

2008). If appellant's 1925(b) statement fails to identify the unproven elements, the sufficiency

issue is waived for purposes of appeal. Id. Nowhere in Defendant's 1925(b) statement does he

specify any element of criminal attempt to commit homicide or aggravated assault allegedly

unproven by the Commonwealth. Therefore, this issue is waived.

Even if Defendant's sufficiency argument was not waived, it would still fail. The

standard of review for challenges to the sufficiency of the evidence requires that the record be

evaluated in the light most favorable to the verdict winner giving the prosecution the benefit of

all reasonable inferences to be drawn from the evidence. Commonwealth v. Widmer, 744 A.2d

745, 751 (Pa. 2000). "Evidence will be deemed sufficient to support the verdict when it

establishes each material element of the crime charged and the commission thereof by the

accused, beyond a reasonable doubt." Commonwealth v. Brewer, 876 A.2d 1029, 1032

(Pa.Super. 2005). There is no requirement that the Commonwealth establish guilt to a

mathematical certainty. Id. "The facts and circumstances established by the Commonwealth

need not be absolutely incompatible with the defendant's innocence." Commonwealth v.

Aguado, 760 A.2d 1181, 1185 (Pa.Super. 2000). 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.

DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001). "The Commonwealth may sustain its

burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Id. "The fact that the evidence establishing a

defendant's participation in a crime is circumstantial does not preclude a conviction

where the evidence coupled with the reasonable inferences drawn therefrom overcomes

the presumption of innocence." Commonwealth v. Murphy, 795 A.2d 1025, 1038-39

(Pa.Super. 2002). We may not substitute our judgment for that of the fact finder. Brewer, 876

A.2d at ·1032. As long as the evidence adduced, accepted in the light most favorable to the

Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a

reasonable doubt, the appellant's convictions will be upheld. Id. "A claim challenging the

sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy

provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of

the Pennsylvania Constitution." Widmer, 744 A.2d at 751.

To obtain a conviction for criminal attempt to commit criminal homicide, the

Commonwealth must prove beyond a reasonable doubt that the Defendant did a certain act with

the specific intent to kill and that the act constituted a substantial step toward the commission of

the killing the Defendant intended to bring about. 18 Pa.C.S.A. Section 901(a). To obtain a

conviction for aggravated assault, causing serious bodily injury, the Commonwealth must prove

beyond a reasonable doubt that the Defendant caused serious bodily injury to the victim

intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to

the value of human life. 18 Pa.C.S.A. Section 2702(a)(l). A conviction for aggravated assault,

causing bodily injury with a deadly weapon, requires that the Commonwealth prove beyond a

reasonable doubt that the Defendant caused bodily injury to the victim intentionally or

knowingly with a deadly weapon. 18 Pa.C.S.A. Section 2702(a)(4). This Court has no

hesitation in finding that the elements of all three offenses were proven beyond a reasonable

doubt. Testimony was presented by the Commonwealth which established that numerous threats

were made by the Defendant against the victim by text messages immediately proceeding the

shooting. N.T. 2/13/18 at 163-168. These text messages included numerous threats to kill. The

victim also testified regarding the text messages he received from the Defendant threatening to

kill him. Id. at 65. A witness residing near the Defendant testified that the Defendant was her

neighbor and the shooting occurred near her residence. Id. at 52, 55. She also stated that she

looked out her window after hearing a "big boom" and saw the Defendant walking towards his

backyard carrying a shotgun. Id. at 52, 54, 57. Footprints leading from the scene of the shooting

to the rear door of Defendant's residence were observed by a Hazleton City Police Officer. Id. at

76. The victim also testified to standing in the street outside the Defendant's residence

immediately prior to being shot. Id. at 66. Finally, the Defendant indicated that he shot someone

in the face during the intake process at the Luzerne County Correctional Facility. Id. at 94. He

also testified that he had used a shotgun. Id. at 88.

The victim suffered serious and permanent injuries as a result of the shooting which

included the loss of hearing on one ear. Id. at 68. He was treated at the Lehigh Valley Hazleton

Hospital emergency room for various head and facial injuries including an avulsion to the right

side of his face extending from the right mastoid and cheek through the ear and into the occiput

of the scalp. N.T. 2/14/18 at 190. He also had a subarachnoid bleed inside his brain and other

significant injures requiring plastic surgery. Id. at 194. Multiple spherical rounds which would

be indicative of a shotgun were observed in the victim's face by the emergency room physician.

Id. at 196. A Remington 12 gauge shotgun was located in the Defendant's bedroom closet. N.T.

2/13/18 at 111. Due to the nature of his injuries, the victim had to be transported to the Lehigh

Valley Cedar Crest Hospital in Allentown. Id. N.T. 2/14/18 at 194.

Upon review of the testimony presented, it is clear that the Commonwealth established

beyond a reasonable doubt that the Defendant shot the victim in the face with specific intent to kill and the shooting constituted a substantial step toward the commission of the killing intended

by Defendant. The Commonwealth also established beyond a reasonable doubt that Defendant

intentionally caused serious bodily injury to the victim under circumstances manifesting extreme

indifference to the value of human life and he used a deadly weapon to do so. More than

sufficient evidence was introduced by the Commonwealth to establish Defendant's guilt on the

aggravated assault and criminal attempt to commit homicide charges.

Defendant also raised an abuse of discretion issue with regard to sentencing. Nowhere

does Defendant indicate how, why or in what manner this Court abused its discretion in

sentencing Defendant.

Issues not stated with sufficient specificity in a concise statement of matters complained

of on appeal are waived. Commonwealth v. Eichinger, 108 A.3d 821, 850 (Pa. 2014). A Rule

1925(b) statement must be "specific enough for the trial court to identify and address the issue

[an appellant] wishe[s] to raise on appeal." Commonwealth v. Hansley, 24 A.3d 410, 415

(Pa.Super. 2011) citing, Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006) appeal

denied, 919 A.2d 956 (Pa. 2007). "A concise statement which is too vague to allow the court to

identify the issues raised on appeal is the functional equivalent of no concise statement at all."

Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001). If the court has to guess at

the issues raised, our review and legal analysis can be fatally impaired. Hansley, 24 A.3d at 415;

Dowling, 778 A.2d at 686. Because Defendant's concise statement fails to identify the issue he

wishes to raise with sufficient specificity, we find that it has impaired meaningful review and is

waived.

Even if Defendant's abuse of discretion claim regarding his sentence were to be

considered, it would be without merit. When considering whether to affirm a sentencing court's

determination, the proper standard ofreview is an abuse of discretion. Commonwealth v. Smith,

673 A.2d 893, 895 (Pa. 1996). "Imposition of a sentence is vested in the discretion of the sentencing court and will not be disturbed absent a manifest abuse of discretion". Id. An abuse

of discretion is more than a mere error of judgment. Id. A sentencing court will not have abused

its discretion unless the record discloses that the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will. Id. "An abuse of discretion

may not be found merely because an appellate court might have reached a different conclusion,

but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or

such lack of support so as to be clearly erroneous." Commonwealth v. Moury, 992 A.2d 162,

170 (Pa.Super. 2010). "The rationale behind such broad discretion and the concomitantly

deferential standard of appellate review is that the sentencing court is in the best position to

determine the proper penalty for a particular offense based upon an evaluation of the individual

circumstances before it." Id.

There is no absolute right to appeal the discretionary aspects of a sentence.

Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). An appellant must

demonstrate that there is a substantial question that the sentence is not appropriate under

the sentencing code. Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa. Super. 2004). "A

substantial question exists where appellant sets forth a plausible argument that the

sentence violates a particular provision of the sentencing code or is contrary to the

fundamental norms underlying the sentencing scheme." Commonwealth v. McNabb, 819

A.2d 54, 56 (Pa.Super. 2003). The determination of what constitutes a substantial

question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d

825, 828 (Pa.Super. 2007).

Defendant's Rule 1925(b) statement sets forth no such claim and no evidence

exists of record to support such a claim. "An allegation that a sentencing court failed to

consider or did not adequately consider certain factors does not raise a substantial

question that the sentence was inappropriate." Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995) quoting, Commonwealth v. Urrutia, 653 A.2d 706, 710

(Pa.Super. 1995). An allegation that a sentence is manifestly excessive fails to raise a

substantial question when the sentence imposed falls within the statutory limits.

Commonwealth v. Coss, 695 A.2d 831, 833 (Pa.Super. 1997). A claim that the trial court

failed to consider the defendant's rehabilitative needs, age and educational background

does not present a substantial question. Commonwealth v. Cannon, 954 A.2d 1222, 1228-

29 (Pa.Super. 2008).

Even if it were determined that Defendant raised a substantial question regarding

the sentence we imposed, his appeal must fail. "When imposing a sentence, a court is

required to consider the particular circumstances of the offense and the character of the

defendant." Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002) appeal denied,

868 A.2d 1198 (Pa. 2005) cert. denied, 545 US. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902

(2005). "In particular, the court should refer to the defendant's prior criminal record, his

age, personal characteristics and his potential for rehabilitation." Id. Where a pre-

sentence report exists, there shall be a presumption that the sentencing judge was aware

of relevant information regarding the defendant's character and weighed those

considerations along with mitigating statutory factors. Commonwealth v. Devers, 546

A.2d 12, 18 (Pa. 1998). In addition, Pennsylvania law views a sentence as appropriate

under the Sentencing Code when it is within the standard range of the guidelines.

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

within the guidelines may be reversed only if application of the guidelines is clearly

unreasonable. Commonwealth v. Macias, 968 A.2d 773, 777 (Pa.Super. 2009); 42

Pa.C.S.A. Section 9781(c). Unreasonable means a decision that is either irrational or not

guided by sound judgment. Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007). The standard range of the guidelines for criminal attempt to commit criminal

homicide is ninety-six to two hundred forty months. Defendant's sentence of two hundred forty

to four hundred eighty months is within the standard range. Defendant's concurrent sentence of

forty-eight to ninety-six months on the aggravated assault, causing serious bodily injury charge is

also within the standard range. Defendant intended to kill the victim by shooting him in the back

of the head. The victim most likely escaped death by turning his head slightly immediately prior

to the shotgun blast. N.T. 2/13/18 at 66. Application of the guidelines based on the facts of this

case was clearly appropriate. A sentence of twenty to forty years is neither unreasonable nor

excessive. No abuse of discretion occurred. Defendant's convictions and judgment of sentence

imposed by this Court on April 10, 2018 should be affirmed.

BY THE COURT:

DATE:October 16, 2018 �1VJ: MICHAEL T. VOUGH, J.

Copies: Luzerne County District Attorney's Office Matthew P. Kelly, Esquire