J-S54009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
BERNARD SALMOND,
Appellant No. 3151 EDA 2014
Appeal from the Judgment of Sentence June 20, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009618-2012
BEFORE: BOWES, PANELLA, AND FITZGERALD, *JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 16, 2015
Bernard Salmond appeals from the judgment of sentence of eighteen
to thirty-six years incarceration that the trial court imposed after a jury
convicted him of third-degree murder and conspiracy to commit murder. We
affirm.
The certified record supports the trial court’s summary of facts.
On April 10, 2008, Kenneth Wiggins and [Appellant’s] brother, Quentin Salmond [(“Quentin”)], were betting on a game of dice. N.T. 3/18/14 at 220-221. During the betting, there was an altercation over a bet which prompted Wiggins to take money from Quentin. N.T. 3/18/14 at 221-222, 251; 3/19/14 at 141.
Two days later, on April 12, 2008, at approximately 12:30 p.m., Wiggins went into the Skyline Restaurant, which he was known to frequent. N.T. 3/18/14 at 161, 238. As Wiggins entered the restaurant, a car driven by [Appellant], with Quentin and Jamil Banks as passengers, pulled up and parked on Woodlawn Road, near the intersection with Chew Road. N.T.
* Former Justice specially assigned to the Superior Court. J-S54009-15
3/18/14 at 95-96, 162. [Appellant] was driving a blue Lincoln Continental, with PA license plate GXW5380. N.T. 3/18/14 at 106. Quentin, dressed in an Islamic khimar[1] and sunglasses to hide his identity, and Banks exited the vehicle and walked up the street towards the Skyline Restaurant. N.T. 3/18/14 at 97, 162, 168, 259; 3/19/14 at 182. [Appellant] remained in the car, parked, with the engine running. N.T. 3/18/14 at 99-100. Joan Hill witnessed [Appellant] park the car and also noticed Quentin, who appeared to Hill to be a male wearing female headwear. Believing that a robbery was about to happen, Hill called 911. N.T. 3/18/14 at 100.
Quentin remained outside the restaurant while Banks went inside and purchased a soda, presumably scouting for Wiggins. N.T. 3/18/14 at 1620163. Banks then exited the restaurant and returned to where Quentin was standing outside. N.T. 3/18/14 at 163-164. Shortly thereafter, Wiggins left the restaurant and began walking up the street when he was confronted by Quentin and Banks. N.T. 3/18/14 at 130, 164; 3/19/14 at 182-183. After being shot, Wiggins attempted to flee the scene but collapsed on the far side of the street. N.T. 3/18/14 at 164, 255. Quentin and Banks ran back to the car in which [Appellant] was waiting, and the three fled the scene. N.T. 3/19/14 at 183. Medical personnel arrived on scene and transported Wiggins to the hospital, where he was later pronounced dead. N.T. 3/18/14 at 129, 257-258.
Police recovered two fired cartridge casings and a Mountain Dew soda bottle from the scene of the shooting. N.T. 3/18/14 at 81, 166. Police also recovered the surveillance cameras from the Skyline Restaurant, which had recorded the entire encounter. N.T. 3/18/14 at 155-156. A .32 caliber bullet was recovered from Wiggins’ body. N.T. 3/19/14 at 12-13. As the casings found at the scene were not .32 caliber, police determined that two guns had been fired outside of the restaurant, one .22 caliber semi-automatic and one .32 caliber revolver. N.T. 3/19/14 at 12-14, 18-19. ____________________________________________
1 A khimar is a two-piece garment consisting of a long cape covering the entire body and a head covering that also can be pulled up to hide the mouth.
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[Appellant] had obtained the car that he used in the murder from Charles Hayward, who sold the vehicle to [Appellant] but never transferred the title. N.T. 3/19/14 at 26- 28, 42, 183-84. Because [Appellant] feared that police would trace the car to [him through] Hayward, . . . [Appellant] instructed two associates, Shawn Pina and Tyree Fisher, to burn the vehicle. N.T. 3/19/14 at 184. The vehicle was found on April 14, 2008, two days after the shooting, when fire department personnel responded to a report of a vehicle . . . fire near Chew Street and 10th Street in Philadelphia. N.T. 3/20/14 at 21-22.
Trial Court Opinion, 1/22/15, at 2-4 (footnotes omitted).
On March 21, 2014, a jury convicted Appellant of third-degree murder
and criminal conspiracy to commit murder. The trial court imposed two
concurrent terms of eighteen to thirty-six years imprisonment. Appellant
filed a post-sentence motion that challenged the weight of the evidence and
the discretionary aspects of his sentence. This timely appeal followed the
denial of post-trial motions. Appellant’s ensuing Rule 1925(b) statement
included, inter alia, the foregoing challenges to the weight of the evidence
and the discretionary aspects of sentencing.
Appellant presents the following questions for our review:
I. Is the appellant entitled to an arrest of judgment with regard to his convictions for murder of the third degree and criminal conspiracy since the evidence is insufficient to sustain the verdict as the Commonwealth failed to prove the appellant’s guilt of these crimes beyond a reasonable doubt?
II. Is the appellant entitled to a new trial with regard to his convictions for murder of the third degree and criminal conspiracy since the verdicts of guilt are against the weight of the evidence?
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III. Is the appellant entitled to a new trial as a result of the trial court’s denial of a motion for a mistrial based upon juror misconduct?
IV. Is the appellant entitled to be resentenced since the trial court’s aggregate sentence of 18 to 36 years for murder [in] the third degree and criminal conspiracy is contrary to the appellant’s character, history and condition and is therefore, excessive and unreasonable?
Appellant’s brief at 5.
Appellant’s first issue challenges the sufficiency of the evidence that
the Commonwealth adduced at trial. Generally, “[o]ur standard when
reviewing the sufficiency of the evidence is whether the evidence at trial,
and reasonable inferences derived therefrom, when viewed in the light most
favorable to the Commonwealth as verdict winner, are sufficient to establish
all elements of the offense beyond a reasonable doubt.” Commonwealth
v. Love, 896 A.2d 1276, 1283 (Pa.Super. 2006). The Commonwealth may
sustain its burden of proof based entirely on circumstantial evidence.
Commonwealth v. Laird, 988 A.2d 618, 624 (Pa. 2010). “[A]ny 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. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).
The Pennsylvania Crimes Code defines the varying degrees of murder
as follows:
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(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
18 Pa.C.S. § 2502.
As developed by case law, the elements of third-degree murder are (1)
a killing (2) with legal malice (3) but without the specific intent to kill
required in first-degree murder. Commonwealth v. Thompson, 106 A.3d
742, 657 (Pa.Super. 2014). Additionally,
Malice is defined as: wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured[.] Malice may be found where the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause serious bodily injury. Malice may be inferred by considering the totality of the circumstances.
Id. (quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super.
2011)).
As it relates to criminal conspiracy conviction,
A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
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(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
....
(e) Overt act.--No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
18 Pa.C.S. § 903 (a) and (c). Thus, the elements of criminal conspiracy are
(1) an agreement to commit or aid others in committing a crime; (2) shared
criminal intent; and (3) an overt act in furtherance of the agreement. See
Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa.Super. 2005).
As a practical matter, conspiracies are commonly established through
circumstantial evidence. We previously stated, “Proof of a conspiracy is
almost always extracted from circumstantial evidence. The Commonwealth
may present a ‘web of evidence’ linking the defendant to the conspiracy
beyond a reasonable doubt. The evidence must, however, rise above mere
suspicion or possibility of guilty collusion.” Commonwealth v. Vargas, 108
A.3d 858, 873 (Pa.Super 2014) (en banc) (quoting Commonwealth v.
Hennigan, 753 A.2d 245, 253 (Pa.Super. 2000)). Additionally, “The
conduct of the parties and the circumstances surrounding such conduct may
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create a web of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt.” Bricker, supra at 1017.
Herein, Appellant asserts generally that the Commonwealth failed to
adduce sufficient evidence to establish his identity as the driver of the
vehicle that transported the shooters to Chew Avenue or his participation in
the incident that resulted in the victim’s death. Appellant’s brief at 21. As it
relates to the murder conviction, he contends that the evidence does not
demonstrate that he “engaged in any conduct that exhibited his intent to kill
the victim or cause the victim serious bodily injury that resulted in death.”
Id. Finally, in reference to the conspiracy conviction, he maintains that the
evidence does not sustain the finding that he entered into an agreement to
kill the victim. Id. We address these components seriatim.
During the jury trial, the Commonwealth presented the testimony of
Joan Hill, a local business owner who observed Appellant and his
codefendants stop in a blue Lincoln Continental with license tag No.
GXW5380 in front of her office at the intersection of Woodlawn Road and
Chew Avenue. N.T., 3/18/14, at 96, 106. Two males exited the vehicle.
Id. 95-96. One of the males was dressed like a woman in an Islamic khimar
and sunglasses. Id. at 96, 97. The driver remained in the vehicle with its
engine idling. Id. at 99. As one of the men’s attire and his obvious attempt
to conceal his identity alarmed her, she called 911 to report the suspicious
activity that she observed. Id. at 100, 102. Several minutes later, Ms. Hill
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heard gunshots discharged on Chew Avenue and called 911 a second time.
Id. at 104, 105. Following the murder, she spoke with police at her office
and described the vehicle and the men that she observed earlier that day.
Id. at 107.
The exterior surveillance video recovered from the Skyline Restaurant
confirms much of Ms. Hill’s testimony. See Commonwealth’s Exhibit C-64.
The video depicted the blue Lincoln traveling down Chew Avenue and turning
left onto Woodlawn Road out of the camera’s perspective. Id. Ninety
seconds after the car traveled out of frame, Appellant’s two codefendants,
one of whom wore a khimar, re-emerged into frame. Id. The pair walked
toward the Skyline Restaurant, and stepped into a vestibule near the
entrance of the restaurant. Id. A different segment of video recorded
several minutes later showed the victim exiting the restaurant at
approximately 11:39 a.m. and walking down Chew Avenue toward
Woodlawn Road. Id. After the victim passed the vestibule, the assailants
emerged individually, followed the victim a short distance, and shot him.
Id. Both assailants fled toward Woodlawn Road and disappeared around the
corner where the Lincoln had passed several minutes earlier. Id.
The Commonwealth also presented the testimony of Charles Hayward,
the registered owner of the blue Lincoln Continental. Mr. Hayward stated
that he grew up with Appellant, whom he identified in the courtroom, in the
Germantown section of Philadelphia and had remained friends with him.
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N.T., 3/19/14, at 24-25. Mr. Hayward explained that he sold the blue
Lincoln to Appellant during February 2008, but he neglected to transfer the
title or registration into Appellant’s name. Id. 26-28, 29. Appellant
stipulated that the vehicle’s tag number was GXW5380. Id. at 28. The
Commonwealth presented Mr. Hayward with the verbatim signed statement
that he provided to police during their investigation of the murder. Id at.
33. Exhibit C-39. Although Mr. Hayward’s trial testimony challenged the
accuracy of certain portions of the prior verbatim statement, the
Commonwealth used the statement as evidence that Quentin had informed
Mr. Hayward of an incident where he had been robbed at gun point while
gambling with the victim, Kenny Wiggins, on Chew Avenue. N.T., 3/19/14,
at 45-48. Mr. Hayward further explained that it was Appellant’s inquiry
about the gambling incident that led to the revelation that the victim had
been involved in the robbery. Id. at 48. Mr. Hayward stated, “[Appellant]
asked him, Quentin[,] who was up there and he, Quentin, said[,] Kenny and
them.” Id. at 48. Following the interview, Mr. Hayward identified Appellant
and Quentin from photographs supplied by police and he identified Quentin
as one of the assailants in a still frame taken from surveillance video. Id. at
57-58.
Next, the Commonwealth presented the testimony and the signed
verbatim statement Robert Bluefort gave to police. Appellant confided to
Bluefort his role in the murder, and Bluefort assisted Appellant in selecting a
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location to set the Lincoln Continental ablaze to avoid its discovery by police.
N.T., 3/18/14, at 286, 290. Mr. Bluefort’s verified statement, which Bluefort
challenged at trial, outlined Appellant’s confession to his involvement in the
murder committed by Quentin and Banks. Id. at 286. Appellant confided
that, after the trio observed the victim near the Skyline Restaurant, he
pulled the Lincoln over so the two assailants could exit. Quentin and Banks
waited for the victim to remerge from the restaurant, and, following a brief
exchange, Quentin shot the victim in the stomach. Id. at 286-287. The
assailants ran back to the Lincoln, and Appellant sped away. Id. at 287.
As it relates to Appellant’s attempt to destroy the automobile, Mr.
Bluefort’s statement indicated that “[Appellant] was paranoid about the
police finding the car[,] so he told . . . Tyree Fisher and [Shawn Pina] to
burn it.” Id. at 290. Bluefort continued that he helped Appellant find a
suitable location to set the car ablaze. Id. Thereafter, Appellant gave the
key to Fischer and one or two days after the murder, they received
confirmation that the car had been set on fire. Id. For the next two
months, Appellant remained at Bluefort’s home to “[lay] low . . . from police
and [because] he was worried about retaliation.” Id. at 291.
The preceding evidence is sufficient to prove beyond a reasonable
doubt that Appellant committed third-degree murder and criminal
conspiracy. The surveillance video captured an image of Appellant’s blue
Lincoln Continental driving past the Skyline Restaurant and turning abruptly
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onto Woodlawn Road immediately before the two assailants emerged from
that location and prepared to ambush the victim. Ms. Hill identified
Appellant’s blue Lincoln Continental as the car that the two gunmen alighted
from on Woodlawn Road immediately prior to the murder, and she recorded
the vehicle’s license number.
Two of Appellant’s acquaintances, Hayward and Bluefort, informed
police that Appellant implicated himself in the murder. Hayward explained
that the murder was in retaliation for a prior armed robbery committed
against Quentin. Bluefort detailed the particulars of his role in the murder
and the disposal of the vehicle, and discussed Appellant’s attempt to hide
from police and potential retribution from the victim’s associates. Thus, we
reject Appellant’s claim that the Commonwealth failed to establish his
identity as the person driving the blue Lincoln Continental when the murder
was committed.
Likewise, the evidence sustains the requisite agreement to support
criminal conspiracy and the intent element of third-degree murder. Initially,
we observe that the foregoing evidence adduced at the jury trial
demonstrates that Appellant conspired with Quentin and Banks to shoot the
victim as retribution for his role in an armed robbery against Quentin two
days prior to the murder. The entire episode was accomplished with
Appellant’s aid and assistance. Appellant drove the two assailants to the
murder scene in his automobile, and waited with an idling engine while
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Quentin and Banks ambushed the victim by shooting him in the chest at
close range and returned to the waiting vehicle. Then he drove the trio
away. Thereafter, he engaged in a futile attempt to destroy his car and
remove it from any connection to the crime. Hence, the evidence was
sufficient for the jury to infer that Appellant and his co-conspirators entered
an agreement to kill the victim. Bricker, supra at 1017 (conduct of parties
and circumstances surrounding conduct may create web of evidence linking
accused to alleged conspiracy beyond reasonable doubt).
Having established the conspiracy to shoot the victim in retaliation for
his crimes against Quentin, we next conclude that the jury could infer the
malice element of third-degree murder from the totality of the circumstances
and the assailants’ use of a deadly weapon on the victim’s chest, a vital part
of the victim’s body. See Vargas, supra (quoting Commonwealth v.
Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002) (en banc) (“Once there is
evidence of the presence of a conspiracy, conspirators are liable for acts of
co-conspirators committed in furtherance of the conspiracy. Even if the
conspirator did not act as a principal in committing the underlying crime, he
is still criminally liable for the actions of his co-conspirators taken in
furtherance of the conspiracy.”)); Commonwealth v. Ventura, 975 A.2d
1128 (Pa.Super. 2009) (malice may be inferred from use of deadly weapon
on vital part of victim’s body). As the evidence contained in the certified
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record is sufficient to sustain the jury verdicts for criminal conspiracy and
third-degree murder, no relief is due.
Appellant’s next issue challenges the weight of the evidence. The trial
court’s belief that the verdict is not against to weight of the evidence and
that a new trial is not warranted in the interest of justice is one of the least
assailable reasons for a trial court to deny a new trial. Commonwealth v.
Widmer, 744 A.2d 745, 753 (Pa. 2000). It is well established that appellate
review of a weight claim is limited to determining whether the trial court
abused its discretion rather than review the weight claim itself.
Commonwealth v. Best, 120 A.3d 329 (Pa.Super. 2015). A new trial
should only be awarded if the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice. Thompson v. City of Philadelphia, 493
A.2d 669, 672 (Pa. 1985).
Appellant argues that the testimony of Robert Bluefort, whom he
styles as the sole incriminating witness, “was so unreliable, incredible,
conjectural and contradictory that no probability of fact can reasonably be
drawn from his testimony.” Appellant’s brief at 34. He highlights Mr.
Bluefort’s criminal history involving dishonesty as well as the facts that the
witness might have been involved in the case, was motivated to provide
false information, and avoided prosecution as an accessory in this case or
other crimes that he allegedly committed. He also challenges the witness’s
purported inability to remember key facts that were essential to his cross-
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examination. In sum, Appellant opined, “[r]eliance on Bluefort’s testimony
renders the jury’s verdict speculative and conjectural.” Id. at 35.
In rejecting Appellant’s weight claim, the trial court outlined the
relevant evidence that the Commonwealth adduced during the jury trial and
determined that “[t]he evidence . . . plainly established that [Appellant]
committed the crimes for which he was convicted.” Trial Court Opinion,
1/22/15, at 9. Specifically, it found that Bluefort’s statements were
substantially corroborated by testimony presented by Ms. Hill and Mr.
Hayward, video surveillance, and the physical evidence surrounding the
shooting and the location of the burned vehicle. Thus, upon review of the
trial court’s reasoning, we find no basis to disturb the court’s finding that the
verdict was not contrary to the weight of the evidence. Stated plainly, the
jury was the ultimate arbiter of fact and, notwithstanding the potential flaws
in Bluefort’s credibility, the jury’s verdict was not so contrary to the evidence
as to shock one’s sense of justice. Appellant’s claim fails.
Next, we confront Appellant’s argument that the trial court erred in
failing to grant his motion for mistrial based upon alleged juror misconduct.
We review the decision to grant or deny a mistrial for an abuse of discretion.
Commonwealth v. Begley, 780 A.2d 605, 624 (Pa. 2001). As our
Supreme Court explained, “The remedy of a mistrial is an extreme one that
is required only when an incident is of such a nature that its unavoidable
effect is to deprive the defendant of a fair and impartial trial by preventing
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the jury from weighing and rendering a true verdict.” Id. at 624.
Additionally, “a mistrial is not necessary if a court's cautionary instructions
adequately cure any prejudice.” Id. at 624-625.
The following facts are relevant. During a break on the second day of
trial, Juror Two informed the trial court that he believed that he had
observed a spectator, later identified as Appellant’s father, make a throat-
cutting gesture during Hayward’s testimony. He stated, “one of the people
present moved [his] right index finger across his neck.” N.T., 3/19/14, at
81. The juror could not discern to whom the gesture had been directed.
The trial court conducted an extensive colloquy of each juror individually,
advised each that the incident had nothing to do with the trial, and asked
whether he or she could disregard it. All of the jurors except one had heard
about the incident from Juror Two, but none of the other jurors witnessed
the gesture. When asked whether they could disregard the incident, only
Juror Seven said that it would be difficult to disregard. Every other juror
testified unequivocally that he or she would have no problem disregarding it.
The trial court excused Juror Two and Juror Seven and replaced them with
alternates. Satisfied that the remaining jurors would abide by his statement
that the incident had nothing to do with the case and confident that they
could render a fair decision, the trial court denied Appellant’s motion for a
mistrial. Id. at 123.
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Appellant asserts that he is entitled to a new trial because Juror Two’s
conduct in discussing with the other remaining jurors his observation of the
throat-slashing incident was prejudicial. We disagree. The reality is that
none of the empaneled jurors observed the gesture and all of the remaining
jurors avowed that they would not let the incident affect their ability to be
fair to both sides. The trial court removed the juror who observed the
gesture and the single juror who indicated that the incident could affect his
view of the case. The trial court conducted voir dire with the jurors
individually to insure their continuing impartiality and impart to them that
the information that he or she heard regarding the alleged gesture had
nothing whatsoever to do with the trial. As the jury is presumed to have
followed the trial court’s instruction to disregard the incident, which each of
the empaneled jurors personally avowed to do, we cannot find that the trial
court abused its discretion in denying Appellant’s motion for a mistrial. See
Commonwealth v. Miller, 819 A.2d 504, 513 (Pa. 2002) (“The law
presumes that the jury will follow the instructions of the court”); and
Begley, supra at 624-25 (“a mistrial is not necessary if a court's cautionary
instructions adequately cure any prejudice.”). As the trial court’s curative
actions removed any possibility of prejudice, a mistrial was not warranted.
Next, we address Appellant’s argument challenging the discretionary
aspects of the judgment of sentence and for the following reasons, we find
that no relief is due. Before we reach the merits of a discretionary
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sentencing issue, we must ascertain whether (1) a timely appeal was filed
from the judgment of sentence; (2) the issue was preserved during the trial
court proceedings; (3) the appellant complied with Pa.R.A.P. 2119(f); and
(4) the Rule 2119(f) statement reveals a substantial question that the
sentence was not appropriate under the sentencing code. Commonwealth
v. Lebarre, 961 A.2d 176, 178 (Pa.Super. 2008).
Herein, Appellant’s notice of appeal was filed timely. Likewise,
Appellant raised his sentencing issue in a post-sentence motion and leveled
the challenge in his Rule 1925(b) statement. Additionally, Appellant
included in his brief a concise statement of reasons for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). Accordingly, we must determine whether
Appellant’s sentencing issue raises a substantial question. “A substantial
question exists only when the appellant advances a colorable argument that
the sentencing judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Buterbaugh,
91 A.3d 1247, 1266 (Pa.Super. 2014) (en banc) (quoting Commonwealth
v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)).
Appellant asserts that the judgment of sentence was manifestly
excessive and unreasonable. In Commonwealth v. Treadway, 104 A.3d
597, 599 (Pa.Super. 2014) (citation omitted), we reiterated, “Generally,
Pennsylvania law affords the sentencing court discretion to impose its
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sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.” We further explained,
“[a]ny challenge to the exercise of this discretion ordinarily does not raise a
substantial question.” Id. (citations omitted).
Instantly, Appellant’s position offers nothing more than the assertion
that, “A review of the record in this case clearly shows that the trial court’s
aggregate sentence of 18 to 36 years . . . [is] manifestly excessive [in that it
does] not [reflect] a proper consideration of the history, character and
condition of the [A]ppellant.” Appellant’s brief at 50. He bolsters this
position with the added assertion, “There is no evidence in this record with
regard to Appellant’s background that would warrant 18 to 36 years
sentences.” Id. at 51.
It is well settled that bald allegations of excessiveness do not raise a
substantial question. See Commonwealth v. Christine, 78 A.3d 1, 10
(Pa.Super. 2013) (en banc) (OISA), aff’d 2015 WL 6498828 (Pa. 2015)
(“generic claim that a sentence is excessive does not raise a substantial
question”). Moreover, we have consistently held that a trial court’s failure to
give greater weight to various purported mitigating factors does not present
a substantial question. Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa.Super. 2013) (“inadequate consideration of mitigating factors does not
raise a substantial question”). We stress that Appellant does not allege that
the trial court failed to consider the noted factors. Indeed, when combined
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with a claim of manifest excessiveness, that assertion, as opposed to a
challenge to the weight the court assessed among the factors it considered,
may raise a substantial question. See Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa.Super. 2014) (“an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.”). Thus, we find Appellant’s bare contention that the
sentence was manifestly excessive because the trial court should have
weighed certain factors more heavily, does not raise a substantial
question that the sentence was not appropriate under the sentencing code.
Accordingly, we do not address the merits of Appellant’s argument.
Moreover, even to the extent that Appellant’s bare assertion could be
deemed to have arguably raised a substantial question, we would reject it.
The trial court fashioned the judgment of sentence in accordance with the
sentencing guidelines. Applying Appellant’s prior record and offense gravity
scores to the basic sentencing matrix, the court accurately determined that
the standard range for minimum terms of confinement for each offense was
between 120 months (ten years) and the statutory limit (forty years). N.T.,
6/20/14, at 9. Therefore, the trial court’s concurrently imposed sentences of
eighteen to thirty-six years incarceration were within the standard range of
the sentencing guidelines.
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In addition to imposing standard range sentences, the trial court
fashioned the sentences with the benefit of the Presentence Investigation
report (“PSI”). Id. at 4. This Court has previously held that, absent more,
the imposition of a standard range sentence in combination with the
existence of a PSI report cannot be considered excessive or unreasonable.
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 546 (Pa.Super. 1995);
see also Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013);
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (same).
Herein, Appellant’s argument that a reconsideration of his “history, character
and condition” would reflect a more appropriate deliberation of the
appropriate sentencing factors is insufficient to overcome the presumption of
reasonableness created by the combination of the trial court’s consideration
of the PSI in conjunction with its imposition of a standard-range sentence.
See Appellant’s brief at 50. Thus, even if Appellant did raise a substantial
question, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/16/2015
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