J-S78034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JOHNNIE LEE BOWIE

                               Appellant               No. 497 WDA 2016


            Appeal from the Judgment of Sentence January 26, 2016
      in the Court of Common Pleas of Allegheny County Criminal Division
                       at No(s): CP-02-CR-0009855-2014

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 16, 2017

        Appellant, Johnnie Lee Bowie, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following his bench

trial convictions of persons not to possess firearms,1 and two counts of theft

by unlawful taking―moveable property.2 Appellant challenges the weight of

the evidence and the discretionary aspects of his sentence. We affirm.

        The trial court’s opinion summarized the relevant facts as follows:

           [Appellant] and Julie Cosentino were involved in a
           romantic relationship. On April 26, 2014, they spent the
           night together at Ms. Cosentino’s apartment. After she
           awoke the next morning, Ms. Cosentino decided that she
           wanted to go to the local Giant Eagle supermarket to buy
           some food for breakfast. [Appellant] remained in the

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
2
    18 Pa.C.S. 3921(a).
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         residence.     When Ms. Cosentino returned home,
         [Appellant] was gone.        Cash in the amount of
         approximately $2,000 and a Taurus nine millimeter firearm
         were missing from Ms. Cosentino’s apartment. The cash
         had been kept inside Ms. Cosentino’s bedroom closet. The
         firearm had been kept in a backpack in Ms. Cosentino’s
         bedroom. Ms. Cosentino suspected [Appellant] of taking
         the items because he had previously seen her retrieve
         cash from her closet.

         Ms. Cosentino immediately attempted to contact
         [Appellant]. She sent him text messages advising him
         that she needed the cash and asking him to return the
         cash and the firearm. [Appellant] sent text messages back
         to Ms. Cosentino telling her, “I'll be back, I promise.” He
         texted, “I'll explain.” He further texted

            It was wrong how I did that, but things went
            smooth. I know I probably lost you but here’s the
            deal. I can give you $250 every other day. Shit’s
            going to move.

         Ms. Cosentino sent him a text message telling [Appellant]
         that she wanted the gun back. [Appellant] sent her a text
         message back advising that, “[y]ou can have your fucking
         gun. I know what happened wasn’t cool but you are not
         going to keep talking shit to me.” Ms. Cosentino never
         gave [Appellant] permission to take the cash or the
         firearm. . . .

Trial Ct. Op., 6/29/16, at 2-3. During the bench trial, Ms. Cosentino testified

on direct examination:

         [The Commonwealth:] When did the firearm go missing?

         [Witness:] The day I had woke up in April, that morning.

                                  *    *    *

         Q. And who else had access to your home during that
         period of time?

         A. Just my roommate and [Appellant].


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                               *    *    *

       Q. You mentioned the gun was missing. Was there
       anything else you noticed missing when you woke up on
       that morning?

       A. All of my money.

       Q. Where had your money been?

       A. I had it stashed away in [my bedroom] closet.

                               *    *    *

       Q. Did you show him where the money was?

       A. I believe he seen me one day get money out of my
       closet. That’s the only way I could possibly think of him
       knowing where it was.

                               *    *    *

       Q. How much money was taken?

       A. About $2,500.

                               *    *    *

       Q. How did you know how much money there was?

       A. I usually keep a record in my phone about how much
       money I keep in that box and how much money I have in
       my bank account.

       Q. What did you do when you discovered these items
       were missing?

       A. I continuously texted him, called him. . . .

       Q. You indicated that you sent text messages to him?

       A. Yes.



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         Q. When did you do that?

         A. Immediately as soon as I came home and I noticed
         that he was no longer in my place.

         Q. . . . Did you notice these items were missing around
         the same time you noticed [Appellant] was missing from
         your home?

         A. Yes.

                                  *    *    *

         Q. And how do you know [these text messages] are
         between you and [Appellant]?

         A. He’s had the same number the whole time I have
         talked to him.

N.T. Trial, 10/28/15, at 10-14.       On cross-examination, defense counsel

questioned Ms. Cosentino regarding the amount of money missing:

         [Defense Counsel:] Now, you reported to the police officer
         that [Appellant] had taken $2,500; is that right?

         [Witness:] Yes.

         Q. But in the text messages you are referring to $2,000?

         A. I believe I say two and then I say three in another text
         message just because I wasn’t 100 percent sure at the
         time what amount it really was.

Id. at 21.

      Appellant subsequently testified at the bench trial:

         [Defense Counsel:] What did you do when you woke up on
         April 26?

         [Appellant]: Panicked because I was―I’m a married man.
         I wasn’t supposed to be staying out all night. I jumped
         up, grabbed what I could and I was running out the


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       house―out of the apartment because I, you know, I
       messed up, in lighter words. And she asked me―you
       know, she was talking about breakfast. I said I had to go.
       And she said, Why. And that’s when I told her, I’m
       married. I gotta go.

       Q. I believe you testified that she appeared to you to be
       angry when you told her that?

       A. Surprised and angry.

       Q. In this conversation you had with Ms. Cosentino that
       morning . . . did she mention to you that a gun or $2,000
       was missing?

       A. No.

                              *    *      *

       Q. Did you contact [Ms. Cosentino] about it?

       A. No.

       Q. Why not?

       A. I couldn’t actually. . . . [B]ecause when I ran out the
       house in the morning I left―I didn’t have my phone. So I
       couldn’t call her either.

       Q. When you woke up on the morning of the 26th and left
       out, you left your phone and other items at Ms.
       Cosentino’s apartment?

       A. When I ran out in the morning, yes.

                              *    *      *

       Q. Did you send those test messages to her?

       A. No, I didn’t.

       Q. So you believe they are fake?




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         A. They look like real messages, but they wasn’t from me.
         I didn’t even have my phone to send a message.

                                  *    *    *

         Q. Did you steal Ms. Cosentino’s gun?

         A. No.

         Q. Did you steal any money, $2,000, from Ms. Cosentino?

         A. No.

Id. at 39-42.

      The trial court convicted Appellant of persons not to possess firearms

and two counts of theft on October 28, 2015.       Thereafter, counsel filed a

motion to withdraw due to Appellant’s failure to cooperate.         The court

sentenced Appellant on January 26, 2016, to five to ten years’ imprisonment

for the firearms offense, followed by two years’ probation for one of the theft

offenses.   The court imposed no further penalty on the remaining theft

offense. That same day, the court granted counsel’s motion to withdraw and

appointed the Public Defender’s Office to represent Appellant.

      On February 11, 2016, Appellant filed a post-sentence motion nunc

pro tunc, along with a motion for leave to file supplemental post-sentence

motions nunc pro tunc and a motion for an extension of time for the court to

decide all post-sentence motions nunc pro tunc.           The court granted

Appellant’s latter two motions on February 18, 2016. Appellant then filed a

post-sentence motion nunc pro tunc, in which he raised his weight of the

evidence and discretionary aspects of sentencing claims.            The court


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subsequently denied all of Appellant’s post-sentence motions on April 1,

2016. Appellant timely filed a notice of appeal on April 7, 2016. The court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

      Appellant raises the following issues for our review:

         I. Whether the trial court abused its discretion in not
         granting [Appellant’s] Post-Sentence Motion requesting a
         new trial when the verdicts of guilty as to all three offenses
         were contrary to the weight of the evidence?

         II. Whether the trial court’s sentence is unreasonable,
         manifestly excessive, and inconsistent with the Sentencing
         Code in that the trial court relied on impermissible factors
         when considering the gravity of the offenses as it relates
         to the impact on the victim and the community, and failed
         to consider relevant and required sentencing criteria,
         including the character, personal history, and rehabilitative
         needs of [Appellant], thereby violating 42 Pa.C.S.A. §
         9721(b)?

Appellant’s Brief at 6.

      In his first issue, Appellant argues his guilty verdicts were against the

weight of the evidence because the Commonwealth’s primary evidence, Ms.

Cosentino’s testimony, was vague, unreliable, and inconsistent.       Appellant

claims Ms. Cosentino never stated that she saw Appellant with her money

and gun, but instead merely speculated based on the fact that Appellant saw

her take her money out of a box in her closet.           Appellant alleges Ms.

Cosentino also admitted that her roommate’s ex-boyfriend had previously

been charged with burglarizing their apartment. Appellant also contends the

alleged text messages between Appellant and Ms. Cosentino were full of


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inconsistencies, such as the amount of money allegedly missing. Appellant

maintains Ms. Cosentino had a motive to lie and fabricate the text messages

because the morning of the alleged theft he revealed to her that he was

married.     Appellant concludes this Court should vacate his judgment of

sentence and remand for a new trial. We determine that no relief is due.

      Our standard of review regarding challenges to the weight of the

evidence is as follows:

           The weight of the evidence is exclusively for the finder of
           fact who is free to believe all, part, or none of the evidence
           and to determine the credibility of the witnesses. An
           appellate court cannot substitute its judgment for that of
           the finder of fact. Thus, we may only reverse the . . .
           verdict if it is so contrary to the evidence as to shock one’s
           sense of justice.

           Moreover, where the trial court has ruled on the weight
           claim below, an appellate court’s role is not to consider the
           underlying question of whether the verdict is against the
           weight of the evidence. Rather, appellate review is limited
           to whether the trial court palpably abused its discretion in
           ruling on the weight claim.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011)

(citations omitted).

      Instantly, Appellant’s weight of the evidence issue is based solely on

the credibility of Ms. Cosentino’s testimony. Ms. Cosentino testified that on

the morning of April 26, 2014, she left Appellant at her apartment and

returned    home    to   find   Appellant   missing   along   with   her   gun   and

approximately $2,000. See N.T. Trial, at 10. At trial, the Commonwealth

introduced screenshots of a text message conversation taken from Ms.


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Cosentino’s phone on April 26th, which purported to show Ms. Cosentino

confronting Appellant about the missing items.         Id. at 20-22.    Appellant

subsequently went on to refute Ms. Cosentino’s allegations and testified that

he had left his cellphone at her apartment the morning of April 26th, after

informing Ms. Cosentino that he was married and leaving her in a state of

anger. Id. at 39-42.

      The trial court, acting as the fact finder, heard the testimony of both

witnesses and found Ms. Cosentino to be credible. See id. at 63 (stating: “I

find Ms. Cosentino’s testimony to be credible, particularly in light of the fact

that she gets up, everything is fine, she goes to Giant Eagle to get

breakfast, she is gone twenty minutes.        In twenty minutes her gun, her

money    and   [Appellant]   are   gone.”).    After   conducting   a   thorough

examination of the record, we conclude the court did not abuse its discretion

in finding Ms. Cosentino to be a credible witness. See Devine, 26 A.3d at

1146. Therefore, Appellant’s weight of the evidence issue merits no relief,

as his guilty verdicts do not shock one’s sense of justice. See id.

      In his second issue, Appellant argues his sentence of five to ten years’

imprisonment followed by two years’ probation is manifestly excessive.

Appellant alleges the court relied on improper factors when imposing his




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sentence.3   Appellant also contends the court failed to consider mitigating

factors, including that he had taken affirmative steps to become a

rehabilitated member of society by being steadily employed, completing

various programs while incarcerated, and having the support of his family

and community. Appellant concludes this Court should vacate his judgment

of sentence and remand for a new sentencing hearing. We determine that

no relief is due.

      This Court has stated that:

             [c]hallenges to the discretionary aspects of
             sentencing do not entitle an appellant to appellate
             review as of right. Prior to reaching the merits of a
             discretionary sentencing issue:

                [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).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.


3
   Appellant’s brief fails to articulate what improper factors the trial court
allegedly relied on during sentencing. Therefore, this argument is waived.
See Pa.R.A.P. 2119(a), (f).



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Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)

(quotation marks and some citations omitted).

         [T]he Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm . . . .

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).   “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.   A claim that a sentence is

manifestly excessive might raise a substantial question if the appellant’s

Rule 2119(f) statement sufficiently articulates the manner in which the

sentence imposed violates a specific provision of the Sentencing Code or the

norms underlying the sentencing process.       Commonwealth v. Mouzon,

812 A.2d 617, 627 (Pa. 2002). However, “[a] claim that a sentencing court

failed to consider certain mitigating factors does not raise a substantial

question . . . .” Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super.

2006) (citations omitted).

     Initially, Appellant timely appealed, preserved his discretionary aspects

of sentencing issue in his post-sentence motions nunc pro tunc, and included

a Pa.R.A.P. 2119(f) statement in his brief.    See Evans, 901 A.2d at 533.



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Appellant’s Rule 2119(f) statement, however, fails to indicate where his

sentence fell in the sentencing guidelines. See Goggins, 748 A.2d at 727.

Nevertheless, Appellant asserts the trial court imposed a manifestly

excessive sentence.     Generally, such a bald assertion does not raise a

substantial question.   See Mouzon, 812 A.2d at 627.           In any event, we

shall address the merits of Appellant’s issue.

       This Court has stated:

         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. In this
         context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the 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.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted).    In making a reasonableness determination, a court should

consider four factors: (1) the nature and circumstances of the offense and

the history and characteristics of the defendant; (2) the opportunity of the

sentencing court to observe the defendant, including any presentence

investigation; (3) the findings upon which the sentence was based; and (4)

the guidelines promulgated by the commission.          42 Pa.C.S. § 9781(d)(1)-

(4).

       A sentence may be found to be unreasonable if it fails to properly

account for these four statutory factors, or if it “was imposed without



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express or implicit consideration by the sentencing court of the general

standards applicable to sentencing[.]” Commonwealth v. Walls, 926 A.2d

957, 964 (Pa. 2007). These general standards mandate that a sentencing

court impose a sentence “consistent with the protection of the public, the

gravity of the offense as it relates to the impact on the life of the victim and

on the community, and the rehabilitative needs of the defendant.”                     42

Pa.C.S. § 9721(b).

      “[W]here the sentencing court imposed a standard-range sentence

with the benefit of a pre-sentence report, we will not consider the sentence

excessive.”    Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.

2011); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010) (stating “where a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

Sentencing Code”).         Under such circumstances, “we can assume the

sentencing    court   was    aware     of    relevant    information     regarding   the

defendant’s    character    and   weighed       those    considerations    along     with

mitigating    statutory    factors.”        Corley,     31   A.3d   at   298   (quoting

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)) (quotation marks

omitted).

      Here, Appellant’s sentence is in the standard range of the Sentencing

Guidelines.     Because the trial court reviewed Appellant’s presentence

investigation report, we assume it took into consideration the mitigating



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circumstances raised in Appellant’s brief, such as his steady employment,

family and community support, and the completion of various programs

during incarceration. See Corley, 31 A.3d at 298. Moreover, the trial court

summarized its reasons for imposing Appellant’s sentence:

        This [c]ourt considered [Appellant’s] lengthy criminal
        history which includes, among other crimes, a prior
        conviction for a felony possession of a firearm, two
        separate felony drug convictions, three separate felony
        theft convictions, two separate felony criminal trespass
        convictions   and    one   felony  burglary   conviction.
        [Appellant] has been committed and re-committed to state
        custody at least four times.      The [c]ourt was also
        concerned that [Appellant] never returned the firearm he
        stole and that the firearm was unaccounted for as of the
        time of sentencing.

           Based on the totality of the circumstances, this [c]ourt
        believed [Appellant] had multiple opportunities to conform
        his conduct to the law and he repeatedly chose not to do
        so. He further demonstrated that he is a danger to the
        community.        This [c]ourt considered all relevant
        sentencing issues, most notably [Appellant’s] substantial
        rehabilitative needs, protection of the public, deterring
        [Appellant] from engaging in future similar conduct and
        the impact on [Ms. Cosentino]. The sentence imposed in
        this case was not unduly harsh as it was within the
        standard range of the sentencing guidelines and it properly
        reflected [Appellant’s] culpability in this case.

Trial Ct. Op. at 8-9. We discern no abuse of discretion in the trial court’s

conclusions. See Sheller, 961 A.2d at 190. Therefore, Appellant’s sentence

of five to ten years’ imprisonment followed by two years’ probation was not

manifestly excessive.   See Corley, 31 A.3d at 298; Moury, 992 A.2d at

171. Accordingly, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2017




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