J-S75007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 LEROY WILSON                            :
                                         :
                   Appellant             :    No. 3250 EDA 2017

             Appeal from the Judgment of Sentence May 5, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0007374-2015


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                            FILED JUNE 05, 2019

     Appellant, Leroy Wilson, appeals from the judgment of sentence entered

on May 5, 2017 in the Philadelphia Court of Common Pleas after he was found

guilty of first degree murder, robbery, burglary, and possessing an instrument

of crime (“PIC”). Wilson challenges the trial court’s discretion in admitting

photographic evidence, the sufficiency of the evidence, and the trial court’s

discretion in imposing sentence. We affirm.

     The trial court summarized the facts of this case as follows.

     Defendant served as a handyman to various residents, including
     the victim, eighty-five-year-old Regina Brunner Holmes, living on
     or around the 300 block of Roumfort Road in Philadelphia. On June
     27, 2015, defendant was in the neighborhood, gardening and
     moving furniture for one of the victim’s neighbors. While he was
     working, he approached another neighbor, Darlene Adams, and
     inquired about a car of hers that she had listed for sale. Defendant
     told Ms. Adams that he believed the car was worth $2,500 and
     Ms. Adams agreed to sell the car to defendant in exchange for
     $1,500 and defendant’s services. Defendant told Ms. Adams that
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     he would pay her the following week, after he collected his pay
     from the victim and another neighbor for services he had
     performed on their homes.

     Two days later, on June 29, 2015, Adam Brunner, the victim’s son,
     received a phone call from his mother’s employer, the Chestnut
     Hill Local, where she worked as a typist and editor. Mr. Brunner
     was told that his mother had not shown up for work, which was
     highly unusual because she had never been late. Mr. Brunner went
     to his mother’s home, at 307 Roumfort Road, but was unable to
     get into the home or get into contact with his mother, so he called
     the police.

     After arriving at the scene and gaining entry into the victim’s
     home, police located the victim lying on her bedroom floor, with
     multiple lacerations and strangulation marks on her body. In
     addition, police observed a large amount of blood on her bed and
     bedroom wall, and multiple emptied purses on the bed and floor.
     The victim was pronounced dead at the scene. An autopsy
     revealed that the victim died during the early morning hours of
     June 28, 2015, from a combination of multiple stab wounds,
     strangulation, and blunt trauma to her head.

     During the course of their investigation, Philadelphia Police
     Detectives discovered that the victim’s ATM card was used three
     times at a Wells Fargo Bank on Broad Street at approximately
     3:30 A.M. on June 28th, the same morning that the victim was
     killed. Detectives also discovered that one of the victim’s credit
     cards was used to make a large online purchase at Toys R Us. The
     I.P. address from where the purchase was made was traced to
     3137 North Stillman Street in Philadelphia, the home of Micshell
     Hoskins, defendant’s ex-girlfriend, and where defendant
     periodically resided.

     On the morning of the murder, at approximately 3:00 A.M.,
     defendant arrived at Ms. Hoskins’s home and knocked on the front
     door for Hoskins to let him in. Soon after arriving, defendant left,
     only to come back a short time later. After Hoskins once again let
     him into her home, defendant told her that he had “caught a
     body.” A few hours later, defendant gave Hoskins a laptop that
     belonged to the victim and told Hoskins to buy whatever she
     wanted from Toys R Us.




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      On June 30, 2015, the victim’s car, a 2007 Toyota Corolla, was
      found near Hoskins’s home on the 3100 block of North Stillman
      Street. Video surveillance recovered from the morning of the
      murder showed the car travelling onto North Stillman Street at
      3:01 A.M. and leaving North Stillman at 3:22 A.M. At 3:28 A.M.,
      video surveillance captured the car entering the parking lot of the
      Wells Fargo Bank on Broad Street, where the victim’s ATM card
      was used only minutes later. Video surveillance also captured the
      individual using the victim’s card at the ATM machine, although
      his face was not visible. However, Micshell Hoskins identified the
      individual depicted in the video surveillance as defendant by his
      walk, the manner in which he wore his pants, and because he was
      wearing the same sweatshirt that defendant had been wearing the
      day before the murder. Jessica Gaymon, defendant’s girlfriend at
      the time of the murder, also identified defendant as the individual
      using the victim’s card at the ATM machine from his clothes, his
      build, and the manner in which he pulled up his pants.

Trial Court Opinion, 12/21/2017, at 2-4 (citations to the record omitted).

      On May 5, 2017, a jury convicted Wilson of one count each of first-

degree murder, robbery, burglary, and PIC. The trial court imposed the

mandatory sentence of life in prison for the murder charge, with two

consecutive terms of ten to twenty years’ imprisonment for robbery and

burglary, and a consecutive term of two and one half to five years’

imprisonment for PIC, resulting in an aggregate sentence of life plus twenty-

two and one half to forty five years’ imprisonment.

      The court denied Wilson’s post-sentence motions. This appeal followed.

      In his first issue on appeal, Wilson contends the trial court abused its

discretion when it admitted photograph number 43 into evidence and showed

it to the jury. He describes the photograph as a gruesome photograph of the




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victim’s face and claims it was unduly prejudicial and inflammatory,

outweighing any probative value.

      There is a patent problem with Wilson’s appeal: the photograph at issue

is not in the certified record. It is an appellant’s responsibility to ensure that

the certified record contains all the items necessary to review his claims. See

Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008). “When a

claim is dependent on materials not provided in the certified record, that claim

is considered waived.” Commonwealth v. Petroll, 696 A.2d 817, 836 (Pa.

Super. 1997) (citation omitted).

      Without the photograph, we cannot conduct a review of Wilson’s issue

presented on appeal. See Commonwealth v. Powell, 956 A.2d 406, 423

(Pa. 2008) (finding claim that an autopsy photograph was unduly prejudicial

waived “[b]ecause the record does not contain the photograph appellant refers

to, we cannot assess his description and claim”); Petroll, 696 A.2d at 836

(finding claim of improperly admitted photographs waived where they were

not in the certified record). Therefore, we find Wilson’s claim waived.

      In his second issue on appeal, Wilson argues the verdict was against the

sufficiency of the evidence. Specifically, in his Rule 1925(b) statement, Wilson

declares there was no DNA or fingerprints linking him to the crime scene or

stolen car and that the cell phone analysis demonstrated that he could have

been one-half mile away at the time of the crime. See Appellant’s Rule

1925(b) Statement, 11/15/2017, at 2. Wilson is not challenging the sufficiency


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of the evidence to support any of the specific legal definitions of his

convictions. Rather, he is challenging the sufficiency of the evidence to

establish that he was person who committed the crimes.

      Our standard of review for a challenge to the sufficiency of the evidence

is to determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means

of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,

661 (Pa. Super. 2007) (citation omitted).

      “The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). “As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record.” Commonwealth v. Kinney, 863 A.2d 581, 584

(Pa. Super. 2004) (citation omitted). Thus, we will not disturb the verdict

“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.” Bruce,

916 A.2d at 661 (citation omitted).

      The trial court, in its December 21, 2017, opinion, has thoroughly

reviewed this claim and disposed of the argument on the merits. We have


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reviewed the parties’ briefs, the relevant law, the certified record, and the trial

court’s well-written opinion. The trial court’s findings of fact and conclusions

of law comprehensively dispose of Wilson’s second issue on appeal, with

appropriate references to the record and without legal error. See Trial Court

Opinion, 12/21/17, at 7-11. We therefore adopt the court’s reasoning as our

own. As it is clear that there is overwhelming evidence in support of the

verdict, we find Wilson’s second issue without merit.

       In Wilson’s third issue on appeal, he contends the sentence imposed by

the court is cruel and unusual punishment1 since he has a mandatory life

sentence without the possibility of parole. He acknowledges this is a challenge

to the discretionary aspects of his sentence. See Appellant’s Brief, at 13.

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

       An appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction by satisfying a four-part test:
____________________________________________


1 We note that although Wilson includes the phrase “cruel and unusual
punishment” in his statement of the questions involved, his entire analysis is
devoid of any constitutional argument, and instead focuses solely on an abuse
of discretion in sentencing challenge. See Appellant’s Brief, at 13-14. Thus,
we interpret this issue as only challenging the trial court’s discretion and do
not review it on a constitutional basis. However, even if we were to address
this issue as a constitutional matter we would find it without merit as the
horrific facts of this case justify the sentence without offending “evolving
standards of decency or a balanced sense of justice.” Commonwealth v.
Ehrsam, 512 A.2d 1199, 1210 (Pa. Super. 1986).

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      [W]e 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

      Here, Wilson preserved his issues through a timely post-sentence

motion and filed a timely appeal. Counsel has included the required Rule

2119(f) statement. Thus, we must determine if Wilson has raised a substantial

question for our review.

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005). “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. (citation

omitted); see also Pa.R.A.P. 2119(f).

      Wilson “must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at

274 (citation omitted). That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a




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particular fundamental norm underlying the sentencing process.” Tirado, 870

A.2d at 365.

      In his Rule 2119(f) statement, Wilson argues, “Although the trial court

stated in its OPINION that all sentences the appellant received were

mandatory except for the PIC count, they could have been run concurrent to

the Life sentence Without the Possibility of Parole instead of consecutive.”

      Under 42 Pa.C.S.A. § 9721, the court has discretion to impose sentences

consecutively or concurrently and, ordinarily, a challenge to this exercise of

discretion does not raise a substantial question. Commonwealth v. Moury,

992 A.2d 162, 171 (Pa. Super. 2010). The imposition of consecutive, rather

than concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.

Id., at 171-172.

      After full review of the record before us, we do not find the aggregate

sentence is unduly harsh considering the extreme and gruesome nature of the

crimes. Therefore, Wilson has failed to raise a substantial question. Even if we

were to reach the merits of his argument, we would find no abuse of the

court’s discretion. Wilson was found guilty of killing the eighty-five year old

victim in her home, in the middle of the night, and did so by a combination of

multiple stab wounds, strangulation, and blunt trauma to her head, all for a




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credit card, a laptop computer, and a car. Further, the court fully explained

its reasons on the record for imposing the aggregate sentence.

      Also I do have discretion as to how these sentences should run.
      I’m going to exercise that discretion and run all of the sentences
      consecutive to each other. So the aggregate sentence is life in
      prison plus 22 and a half to 45 years. That is the most that I can
      give you. So that’s what I will give you.

      While we all know that no one can actually serve more than their
      entire life in prison, the reason for this kind of a sentence is to
      telegraph to the prison, to telegraph to the governor, the Board
      of Pardons that this was more terrible than the typical first degree
      murder case and deserving of the maximum sentence possible.

N.T., 5/5/2017, at 157. The trial court clearly considered the totality of

Wilson’s conduct and the horrible facts of this case and sentenced him

accordingly. Thus, no relief is due.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




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