J-S23010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES TALBERT : : Appellant : No. 2095 EDA 2022
Appeal from the Judgment of Sentence Entered December 18, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008348-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 6, 2023
Charles Talbert brings this direct appeal from the judgment of sentence
imposed after a jury convicted him of recklessly endangering another person
(“REAP”) and possession of an instrument of crime (“PIC”). We affirm.
In a late afternoon in September 2018, Talbert approached two women,
Alice Conteh and Naima Koroma, on the street in Philadelphia. The women
had stopped their car due to a mechanical problem and opened the hood.
Conteh asked Talbert if he was a mechanic, and he responded by pulling a
knife out of his pocket, pointing the knife at Conteh, and making a slashing
motion toward her torso. The women fled to a nearby building and called the
police.
Talbert was arrested and charged with aggravated assault, PIC, simple
assault, and REAP. At trial, Talbert did not deny his actions; he asserted that J-S23010-23
he was high on PCP at the time and that he pulled out the knife to reposition
it in his pocket. A jury convicted Talbert of PIC and REAP and acquitted him of
aggravated assault and simple assault. The trial court sentenced Talbert to
serve a term of incarceration of 29 to 60 months for the conviction of PIC and
12 to 24 months for the REAP conviction.
Talbert filed a pro se post-sentence motion, which was eventually denied
by operation of law. We now address Talbert’s direct appeal.1
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1 We note that this case is replete with procedural irregularities. Initially, Talbert perfected a direct appeal at 1225 EDA 2020. While that appeal was pending, original counsel was permitted to withdraw, and Attorney William Ciancaglini was appointed. The following month, Attorney Ciancaglini was permitted to withdraw and current counsel was appointed. However, it appears that Attorney Ciancaglini remained as the attorney of record in this Court, such that he continued to erroneously receive notifications about the case. Nevertheless, while 1225 EDA 2020 was pending, Talbert filed a pro se petition under the Post Conviction Relief Act, which was dismissed, and a notice of appeal was filed at 127 EDA 2022. Then, the pending direct appeal at 1225 EDA 2020 was dismissed for failure to file a brief, and Talbert filed a pro se petition for allowance of appeal in our Supreme Court at 27 EM 2022. Thereafter, we remanded the appeal at 127 EDA 2022 for a hearing to determine whether Talbert had been abandoned by counsel. While the petition at 27 EM 2022 was still pending before the Supreme Court, the trial court entered an order stating counsel had not abandoned Talbert and reinstated the appeal rights at both 1225 EDA 2020 and 127 EDA 2022. On August 10, 2022, current counsel filed a praecipe to discontinue the appeal at 127 EDA 2022. Counsel also filed a notice of appeal from the judgment of sentence, which established the instant appeal at 2095 EDA 2022. Meanwhile, our Supreme Court has placed a hold on 27 EM 2022, pending this Court’s disposition of 2095 EDA 2022. As alluded to earlier, Attorney Ciancaglini had been listed as Talbert’s attorney. In a letter dated February 22, 2022, Attorney Ciancaglini alerted this Court to the fact that he had been erroneously receiving the notifications (Footnote Continued Next Page)
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Talbert presents this Court with three issues for review challenging the
sufficiency of the evidence, the adequacy of a jury instruction, and the
discretionary aspects of his sentence. Upon careful review, we conclude that
none of the claims merit relief.
Talbert first argues that his conviction of PIC must be reversed because
the Commonwealth failed to prove that he possessed the knife for criminal
purposes.2 See Appellant’s Brief at 14-16. He asserts that because the jury
acquitted Talbert of the crimes of aggravated and simple assault, he cannot
concerning Talbert’s cases. However, that letter was not received until after the direct appeal at 1225 EDA 2020 was dismissed. Suffice it to say we are satisfied that this Court’s improper listing of prior counsel as Talbert’s attorney of record precipitated much of the confusion in this case. This breakdown resulted in the lack of proper court filings leading to the dismissal of Talbert’s timely filed direct appeal at 1225 EDA 2020 and led to the appearance of an abandonment by counsel. Accordingly, we will not quash as untimely the instant appeal at 2095 EDA 2022. See Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007) (finding a breakdown in the court system occurred and appeal should not be quashed).
2 To the extent Talbert’s argument challenges the credibility of the testimony
offered by Conteh, see Appellant’ Brief at 15, thereby presenting a challenge to the weight of the evidence, such a claim is waived. Pennsylvania Rule of Criminal Procedure 607 and its comment instruct that in order to preserve for appellate review a claim that a verdict is against the weight of the evidence, the issue must be raised with the trial judge in a motion for a new trial either orally prior to sentencing, by written motion prior to sentencing, or in a post- sentence motion. See Pa.R.Crim.P. 607. Here, Talbert never filed an oral or written motion for a new trial prior to sentencing, or a post-sentence motion challenging the weight of the evidence. Accordingly, we conclude that any argument challenging the weight of the evidence is waived. See Pa.R.Crim.P. 607; Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004) (“[t]he purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived”).
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be considered to have possessed the knife with the intent to employ it
criminally. See id. at 14-15. Talbert alleges the Commonwealth “failed to
present any evidence to prove that [his] possession of the knife was intended
for anything other than … self-defense purposes.” Id. at 16.
We review challenges to the sufficiency of the evidence with great
deference to the credibility determinations of the fact finder:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en
banc) (citation omitted).
A person is guilty of PIC “if he possesses any instrument of crime with
intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). The statute defines
“instrument of crime” as “[a]nything used for criminal purposes and possessed
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by the actor under circumstances not manifestly appropriate for lawful uses it
may have.” 18 Pa.C.S.A. § 907(d)(2).
“‘[I]t is the actor’s criminal purpose that provides the touchstone of his
liability’ for possessing an instrument of crime.” Commonwealth v.
Andrews, 768 A.2d 309, 317-18 (Pa. 2001) (citations omitted). We have long
held that wholly circumstantial evidence is sufficient to support a conviction
of possession of an instrument of crime. See Commonwealth v. Young,
692 A.2d 1112, 1114 (Pa. Super. 1997) (holding that circumstantial evidence
was sufficient to sustain conviction of possession of instrument of crime).
Further, we are mindful that “[w]here an appellant has been acquitted
of the underlying crime, and no other evidence has been presented to
establish criminal intent, an appellant cannot be deemed to possess the
requisite intent to employ a weapon criminally -- a prerequisite to a conviction
for PIC.” Commonwealth v. Weston, 749 A.2d 458, 461 (Pa. 2000)
(citations omitted). Moreover, a conviction for possession of an instrument of
crime may be sustained when a defendant has been otherwise acquitted of
related offenses involving the use of that instrument of crime. See
Commonwealth v. Moore, 103 A.3d 1240, 1245-50 (Pa. 2014) (relying on
the “long-standing principles that juries may issue inconsistent verdicts and
that reviewing courts may not draw factual inferences in relation to the
evidence from a jury’s decision to acquit a defendant of a certain offense”).
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Talbert argues that the jury’s decision not to convict him of aggravated
or simple assault leaves us with no underlying crime to support his PIC
conviction. However, this argument conveniently overlooks that the jury did
convict Talbert of REAP. And the evidence of record is sufficient to support the
REAP conviction.
Our review of the record reflects Conteh testified that Talbert
approached her and her sister on the street, took out a knife from his pocket,
and made slashing motions toward Conteh’s chest and face. See N.T.,
10/7/19, at 33-36. Conteh expressed that it was “a big knife” and indicated
that it was approximately six inches from her body. Id. at 36. She also
testified that she “was so scared.” Id. 35. Conteh further indicated that when
she and her sister ran, Talbert followed them. See id. at 47. Likewise,
Conteh’s sister, Koroma testified concerning the incident. She indicated that
Talbert approached the women, pulled a knife from his pocket, and pointed it
at Conteh’s upper body. See id. at 67-68.
Here, regardless of whether Talbert was convicted of the crimes of
aggregated and simple assault, the facts of the incident were sufficient to
support his conviction for REAP. The jury, sitting as finder of fact, chose to
believe the evidence presented by the Commonwealth, and we will not
substitute our judgment for that of the jury. Under the totality of the
circumstances, the evidence presented at the trial, viewed in the light most
favorable to the Commonwealth as the verdict winner, establishes that Talbert
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pulled a knife on Conteh and pointed it at her upper body and face. This
evidence is sufficient to sustain Talbert’s conviction of REAP. Accordingly, his
claim the Commonwealth failed to present evidence of his criminal intent lacks
merit.
Talbert next argues that the trial court erred by failing to properly
instruct the jury on the legal definition of intent. See Appellant’s Brief at 16.
However, Talbert has not properly developed this issue for appellate review.
It is undisputed that the argument portion of an appellate brief must be
developed with pertinent discussion of the issue, which includes citations to
relevant authority. See Pa.R.A.P. 2119(a). Moreover, if reference is made to
a jury charge appearing in the record, the argument must set forth a reference
to the place in the record where the jury charge appears. See Pa.R.A.P.
2119(c).
Here, the argument section of Talbert’s brief addressing this issue
consists of general statements without any citation to legal authority
supporting his allegation of trial court error. Also, in contradiction to Rule
2119(c), in the argument portion of his appellate brief, Talbert has failed to
comply with the mandatory briefing requirements by offering no citation to
the notes of testimony where a proper objection to the jury instruction had
been made. Accordingly, because Talbert has not developed any significant
argument relating to the issue in the argument section of his appellate brief
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and has not directed this Court to the portion of the record to be reviewed,
we deem this issue to be waived.3
In his final two arguments, Talbert argues that the trial court abused its
discretion in fashioning his sentence. See Appellant’s Brief at 17-20. Initially,
Talbert contends the trial court imposed a sentence that was not based upon
proper consideration of pertinent factors, as contemplated under 42 Pa.C.S.A.
§ 9721(b). See id. at 17-19. Talbert further asserts the trial court abused its
discretion in imposing consecutive maximum sentences, which he asserts
resulted in a manifestly excessive sentence. See id. at 19-20.
Our standard of review is one of abuse of discretion. 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. See
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
It is well settled there is no absolute right to appeal the discretionary
aspects of a sentence. See Commonwealth v. Hartle, 894 A.2d 800, 805
3 Even if we did not find waiver based on Talbert’s appellate brief, and addressed the issue, we would have found waiver due to his failure to make a specific objection to the jury instruction before the jury retired. Our Supreme Court has held that, in the event counsel fails to posit the appropriate objection prior to the jury’s retirement for deliberation, the underlying point is not preserved for appellate review and will be deemed waived on appeal. See Commonwealth v. Pressley, 887 A.2d 220, 223 (Pa. 2005). Our review of the portion of record cited by the Commonwealth in its brief reflects that after jury deliberations began, the trial court gave a clarifying instruction, and Talbert did not object. See N.T., 10/9/19, at 2-17. Talbert’s failure to make such an objection resulted in waiver of this issue.
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(Pa. Super. 2006). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. See Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation and brackets omitted).
Here, the first three requirements of the four-part test are met. Talbert
brought an appropriate appeal, filed a post-sentence motion raising the issue,
and included in his appellate brief the necessary concise statement of the
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). We
next determine whether he has raised a substantial question requiring us to
review this claim challenging the discretionary aspects of the sentence
imposed.
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Whether a particular issue constitutes a substantial question about the
appropriateness of sentence is a question to be evaluated on a case-by-case
basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. See Commonwealth v.
Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). Rather, an appellant must
show actions by the trial court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing process. See
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).
In his Rule 2119(f) statement, Talbert argues the trial court abused its
discretion by imposing an excessive sentence that was not based upon the
gravity of the violation, the extent of Talbert’s record, his prospect of
rehabilitation, nor an assessment of the mitigating and aggravating factors of
42 Pa.C.S.A. § 9721. See Appellant’s Brief at 9. This Court has held that an
assertion that a sentence was excessive and that the trial court failed to
properly consider the factors set forth in 42 Pa.C.S.A. § 9721(b)4 raises a
substantial question. See Commonwealth v. Caldwell, 117 A.3d 763, 770
(Pa. Super. 2015) (en banc). See also Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014) (stating that “an excessive sentence claim—in
4 The factors to be considered under 42 Pa.C.S.A. § 9721(b) include: the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant. See 42 Pa.C.S.A. § 9721(b).
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conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question” (internal citation omitted)). We
therefore grant permission to appeal and proceed to review the merits of this
sentencing claim.
We next apply the four-part test to Talbert’s claim that the trial court
abused its discretion in imposing consecutive maximum sentences, which
resulted in a manifestly excessive sentence. Here, the first requirement of the
four-part test is met because Talbert properly brought this appeal. However,
our review of the record reflects that he did not meet the second requirement
because he did not include a challenge to the imposition of consecutive
sentences in his post-sentence motions or at the time of sentencing.5 See
Post-Sentence Motion, 12/23/19 (Record Entry #27). Therefore, Talbert’s
issue challenging the imposition of consecutive sentences is waived, and we
are precluded from addressing the merits of his claim on appeal.
We now review Talbert’s claim that the sentencing court failed to
properly consider relevant sentencing factors. In his brief, Talbert argues
“[t]he court only considered the nature of the offense, without consideration
of the characteristics of appellant or his rehabilitative needs.” Appellant’s Brief
5 In his post-sentence motion, Talbert presented the following challenge to his
sentence: “The sentence was excessive considering Petitioner’s age, his dual diagnosis of PTSD, his bipolar disease, his life-long need for inpatient hospitalization and treatment listed in the mental health report, and other mitigating evidence.” Post-Sentence Motion, 12/23/19, at 1.
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at 18. He further alleges the court did not state any of the findings upon which
the sentence was based. See id.
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. Commonwealth v. Bankes, 286 A.3d 1302, 1307 (Pa. Super.
2022). In this context, an abuse of discretion is not shown merely by an error
in judgment. See id. Rather, an 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. See id.
The sentencing judge has broad discretion in determining the proper
penalty, and this Court accords the sentencing court great deference, as it is
the sentencing court that is in the best position to view a defendant’s
character, displays of remorse, defiance, or indifference and the overall effect
and nature of the crime. See Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007) (quotations and citations omitted). As we have stated, “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) (citation omitted). “In particular, the court should refer to the
defendant's prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. (citation omitted).
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In addition, “[o]ur Supreme Court has determined that where the trial
court is informed by a pre-sentence report, it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that where
the court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009)
(citation omitted).
Our review of the record reflects, and it is undisputed that, at Talbert’s
sentencing, the trial court received and reviewed a presentence report,
considered argument from defense counsel, heard Talbert’s allocution, and
received argument from the Commonwealth. Prior to announcing the
judgment of sentence, the trial court read into the record the full evaluative
summary of the presentence report, which evinced a complete understanding
of the relevant factors surrounding Talbert’s sentence. See N.T., 12/18/19, at
10-16.
We conclude the comments the trial court offered for the sentence
imposed were more than sufficient to conclude that the court properly
considered all relevant factors in fashioning Talbert’s sentence. Also, because
the trial court had been fully informed and relied upon the presentence report,
we conclude the trial court did not abuse its discretion in creating the instant
sentence. Ventura, 975 A.2d at 1133. Accordingly, Talbert’s claim that the
trial court failed to consider the appropriate factors in imposing the sentence
lacks merit.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/06/2023
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