Commonwealth v. Felder

75 A.3d 513, 2013 Pa. Super. 247, 2013 WL 4714410, 2013 Pa. Super. LEXIS 2652
CourtSuperior Court of Pennsylvania
DecidedAugust 30, 2013
StatusPublished
Cited by43 cases

This text of 75 A.3d 513 (Commonwealth v. Felder) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Felder, 75 A.3d 513, 2013 Pa. Super. 247, 2013 WL 4714410, 2013 Pa. Super. LEXIS 2652 (Pa. Ct. App. 2013).

Opinion

OPINION BY

DONOHUE, J.:

Appellant, Selina N. Felder (“Felder”), appeals from the judgment of sentence entered on May 7, 2012, following her convictions for intimidation of a witness/victim, 18 Pa.C.S.A. § 4952(b)(2), simple assault, 18 Pa.C.S.A. § 2701, and conspiracy to commit simple assault, 18 Pa.C.S.A. § 903(a). On appeal, Felder raises two challenges to her sentencing. For the reasons that follow, we affirm.

Because Felder’s issues on appeal are limited to sentencing, a detailed review of the factual background of the case is not necessary. For present purposes, it will suffice to indicate that Kashee Johnson (“Johnson”) testified that at approximately 10 pm on July 14, 2010, she received a call from Felder asking her to come over and “chill”. N.T., 2/24/2012, at 141. Johnson went upstairs and joined Felder and her sisters Gabrielle and Mocha. Id. at 144. The group soon went outside to get some air, and about 20 minutes later, Johnson testified that Gabrielle hit her in the mouth with a closed fist, and that Felder and others joined in, kicking and punching her repeatedly from all directions. Id. at 153-155. When Johnson eventually got to her feet and attempted to flee the scene, Felder told her, “If you go to the cops, I’m gonna kill you.” Id. at 165, 175.

On March 1, 2012, a jury convicted Felder of the above-referenced offenses. The jury deadlocked on an aggravated assault charge and the Commonwealth later nolle prossed this offense. The jury found Felder not guilty of conspiracy to commit aggravated assault. On May 7, 2012, the trial court sentenced Felder as follows: (1) on the conviction for intimidation of a witness/victim, a term of incarceration of 54 to 174 months; (2) on the conviction for simple assault, a consecutive term of incarceration of 3 to 12 months; and (3) on the conviction for conspiracy to commit simple [515]*515assault, a consecutive term of incarceration of 3 to 12 months. The aggregate sentence is a term of incarceration of 60 to 198 months. Order of Sentence, 7/12/2012.

This timely appeal followed, in which Felder presents two issues for our review and determination:

1. Whether the trial court erred in imposing a five (5) to sixteen (16) year sentence of state correctional institution incarceration on [Felder], who had a zero prior record score, for what was essentially a simple assault street fight.
2. Whether the charge of “Intimidation of a witness or victims,” Title 18 § 4952, specifically subsection (b) regarding grading of offense, as applied in this case is unconstitutionally ambiguous in violation of the United States Constitution and the Pennsylvania Constitution.

Felder’s Brief at 4.

Felder’s first issue on appeal challenges the trial court’s application of the sentencing guidelines. This claim involves a review of the discretionary aspects of her sentence. Commonwealth v. Diamond, 945 A.2d 252, 257-58 (Pa.Super.2008), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008). Challenges to the discretionary aspects of a sentence must be raised first in the trial court, either in a post-sentence motion or by presenting them during the sentencing proceedings. Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa.Super.2010) (citing Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa.Super.2006)). The failure to do so results in a waiver of all such claims. Id. In this case, the certified record on appeal does not reflect that Felder raised any claims related to the discretionary aspects of her sentence with the trial court, either in a post-sentence motion or at the sentencing hearing. Accordingly, Felder has not preserved any challenges to the discretionary aspects of her sentence for appellate review.

For her second issue on appeal, Felder challenges the trial court’s grading of the conviction for witness/victim intimidation as a first-degree felony. The proper grading of a criminal offense is an issue of statutory interpretation and implicates the legality of the sentence imposed. Commonwealth v. Rossetti 863 A.2d 1185, 1193 (Pa.Super.2004), appeal denied, 583 Pa. 689, 878 A.2d 864 (2005). For' this reason, it may not be waived. Id. The interpretation of a statute is a pure question of law, and therefore our standard of review is de novo and our scope of review is plenary. Commonwealth v. Davidson, 595 Pa. 1, 11, 938 A.2d 198, 203 (2007).

18 Pa.C.S.A. § 4952(b), relating to the grading of the offense of intimidation of a witness or victim, provides as follows:

§ 4952. Intimidation of witnesses or victims
(b) Grading.—
(1) The offense is a felony of the degree indicated in paragraphs (2) through (4) if:
(i) The actor employs force, violence or deception, or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person.
(ii) The actor offers any pecuniary or other benefit to the witness or victim or, with the requisite intent or knowledge, to any other person.
(iii) The actor’s conduct is in furtherance of a conspiracy to intimidate a witness or victim.
(iv) The actor accepts, agrees or solicits another to accept any pecuniary [516]*516or other benefit to intimidate a witness or victim.
(v) The actor has suffered any prior conviction for any violation of this section or any predecessor law hereto, or has been convicted, under any Federal statute or statute of any other state, of an act which would be a violation of this section if committed in this State.
(2) The offense is a felony of the first-degree if a felony of the first-degree or murder in the first or second degree was charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
(3) The offense is a felony of the second degree if a felony of the second degree is the most serious offense charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
(4) The offense is a felony of the third degree in any other case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
(5) Otherwise the offense is a misdemeanor of the second degree.

18 Pa.C.S.A. § 4952(b).

The trial court sentenced Felder on the conviction for witness/victim intimidation pursuant to subsection 4952(b)(2), reasoning that Felder had been charged with a first-degree felony (aggravated assault). N.T., 5/7/2012, at 8-11. According to the trial court, the fact that the jury hung on the aggravated assault charge at trial was of no consequence under the statute for grading purposes. Id. at 10-11.

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Cite This Page — Counsel Stack

Bluebook (online)
75 A.3d 513, 2013 Pa. Super. 247, 2013 WL 4714410, 2013 Pa. Super. LEXIS 2652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-felder-pasuperct-2013.