J-S12018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY JONES,

                            Appellant                 No. 700 EDA 2014


      Appeal from the Judgment of Sentence Entered on October 8, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011990-2012


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 24, 2015

       Appellant, Timothy Jones, appeals from the judgment of sentence

entered on October 8, 2013, in the Philadelphia County Court of Common

Pleas. We affirm.

       The relevant facts of this matter were set forth by the trial court as

follows:

             [The charges filed against Appellant] arose out of a bar
       fight between Appellant and the decedent, Dijon Bowie
       (“Bowie”), also known as “Shiz”. On February 11, 2012, at 1:11
       A.M. a fight broke out between Appellant and Bowie inside of
       Whisper’s Inn bar located at the 7600 block of Ogontz Avenue in
       Philadelphia. Whisper’s Inn had a series of working surveillance
       cameras inside of the establishment. The fight lasted
       approximately 10-15 seconds before Terrence L. Stratton
       (“Stratton”), a patron at the bar, and other patrons of the bar
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*
    Former Justice specially assigned to the Superior Court.
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      interceded and separated the two men, leading Bowie outside
      while Appellant was held inside. A patron of the bar that night
      attempted to block Appellant from exiting the building, however,
      Appellant went outside briefly before returning into the bar to
      retrieve items that fell from his person during the altercation.
      Appellant then exited the bar again to confront Bowie, who was
      still standing outside of the bar.

            Outside of Whisper’s Inn, Bowie taunted the Appellant to
      continue the fight. Appellant drew a gun, pointed it at Bowie,
      and put it back in his pocket. Bowie taunted the Appellant again,
      at which point, Appellant shot Bowie one (1) time in the neck
      and ran towards 76th Avenue. After Bowie was shot, Stratton,
      who had exited Whisper’s Inn directly after Appellant had
      retrieved his belongings, reentered the bar and yelled for the
      bartender to call the police because someone had been shot.
      Bowie was still breathing when police arrived on the scene at
      1:15 A.M. Bowie was transported to Albert Einstein Medical
      Center, where he was later pronounced dead at 1:29 A.M. by Dr.
      Salzman. Bowie’s cause of death was determined to be a single
      gunshot wound to the neck, and the manner of death was
      homicide.

            Stratton and two other patrons of Whisper’s Inn were seen
      leaving the scene in a cream-colored Ford Taurus and were
      taken into custody later that night for questioning in connection
      with the shooting. After multiple attempts to locate Appellant, he
      was assigned to the Fugitive Unit on February 13, 2012. The
      dissemination of a wanted poster and coordinated efforts with
      U.S. Marshals nationwide lead to Appellant’s arrest on May 23,
      2012 in Rose Hall, North Carolina.

Trial Court Opinion, 9/23/14, at 3-4.

            On August 12, 2013, the Appellant, Timothy Jones, was
      found guilty, by a jury sitting before [the trial] Court, of one (1)
      count each of Third Degree Murder, a felony of the first degree;
      Firearms not to be Carried Without a License, a felony of the
      third degree; Possession of Instruments of Crime, a
      misdemeanor of the first degree; and Carrying Firearms in Public
      in Philadelphia, a misdemeanor of the first degree. Appellant
      completed a waiver trial by stipulation for Persons not to Possess
      Firearms, a felony of the second degree; and was found guilty by
      [the trial] Court.

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            On October 8, 2013, [the trial] Court sentenced the
      Appellant to twenty to forty (20-40) years [of] incarceration for
      the Third Degree Murder, plus five to ten (5-10) years [of]
      incarceration for the Persons not to Possess Firearms, plus three
      to six (3-6) years [of] incarceration for the Firearms not to be
      Carried Without a License, plus two to four (2-4) years [of]
      incarceration for Possession of Instruments of Crime, all to run
      consecutively. No further penalty was assessed on the Carrying
      Firearms in Public in Philadelphia charge. On October 16, 2013,
      Appellant filed a timely Post Sentence Motion which was denied
      by operation of law on February 18, 2014.

             On March 4, 2014, the Appellant filed a Notice of Appeal.
      When the notes of testimony became available, [the trial] Court
      ordered the Appellant, pursuant to Pennsylvania Rule of
      Appellate Procedure 1925(b) to file a self-contained and
      intelligible statement of errors complained of on appeal on March
      25, 2014. On April 9, 2014, counsel filed a timely 1925(b)
      Statement of Errors Complained of on Appeal[.]

Trial Court Opinion, 9/23/14, at 1-2.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      [1.] Did the trial court commit an abuse of discretion by refusing
      to give the jury a concealment charge?

      [2.] Did the trial court commit an abuse of discretion and impose
      an excessive sentence by ordering that the sentences imposed
      on the weapons offenses be served consecutively to one another
      and the sentence imposed on the murder charge?

      [3.] Did the trial court committ [sic] an abuse of discretion in
      imposing a sentence outside the applicable sentencing guidelines
      range on the PIC charge because the court failed to provide
      reasons for exceeding the applicable sentencing guidelines range
      in violation of the applicable law?

Appellant’s Brief at 4 (full capitalization omitted).




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      In his first issue, Appellant argues that the trial court erred when it

refused to instruct the jury on flight and concealment.       Our scope and

standard of review for a challenge to a trial court’s jury instruction is as

follows:

      In reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this Court to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error. Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties
      and its refusal to give a requested charge does not require
      reversal unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(citation omitted).   Additionally, a jury instruction regarding a particular

defense is not warranted where the evidence does not support the

instruction. Commonwealth v. Walker, 36 A.3d 1, 15 (Pa. 2011). A trial

court may instruct the jury on flight and concealment when a person knows

that he is a suspect in a crime and conceals himself, because such conduct is

evidence of consciousness of guilt, which may along with other proof form

the basis from which guilt may be inferred. Commonwealth v. Bruce, 717




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A.2d 1033, 1039 (Pa. Super. 1998) (citing Commonwealth v. Hartey, 40,

621 A.2d 1023, 1029 (Pa. Super. 1993)).

      Appellant complains that the trial court should have instructed the jury

on this issue because his defense was that he was not the shooter.

Appellant alleges that Mr. Terry Stratton, an individual who attempted to

break up the fight inside the bar and who asked the bartender to call an

ambulance after the shooting, was actually the perpetrator. Appellant avers

that Mr. Stratton, who was wearing a reversible vest on the night of the

shooting, chose to invert the vest upon leaving the area. Appellant’s Brief at

12.   This, Appellant claims, reveals Mr. Stratton’s attempt to flee and

conceal his identity from police. Id. at 17. Additionally, Appellant argues

that his request for this jury instruction was supported by the testimony of a

witness who claimed that it was Mr. Stratton who killed the victim. Id. at

17.

      Appellant cites to Commonwealth v. Milligan, 693 A.2d 1313 (Pa.

Super. 1997) as support for his claim that the court erred in refusing to give

the flight and concealment instruction. Appellant’s Brief at 13. In Milligan,

police were dispatched to a traffic accident. Upon arriving at the scene, the

responding officer observed a single car with heavy front-end damage. The

officer noted that there was damage to the windshield that was consistent

with the driver’s head striking it. Moreover, the officer testified that there

were two indentations in the windshield indicating that there was at least


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one other person in the car.    The officer testified that he saw Mr. Milligan

sitting across the street from the accident with lacerations to his mouth and

head. However, bystanders told the officer that another individual had left

the scene of the accident.      During the minutes spent waiting for an

ambulance, Mr. Milligan told the officer that he was a passenger in the

damaged car. During this conversation, the officer noticed that Mr. Milligan

smelled of alcohol, had slurred speech, and had bloodshot eyes. While Mr.

Milligan gave conflicting statements regarding who was in the car, he twice

denied that he was driving. Subsequently, in follow-up questions, the officer

again asked if Mr. Milligan was driving, and Mr. Milligan answered in the

affirmative.   The officer opined that Mr. Milligan’s speech pattern and the

content of his speech were due to intoxication and not injury. Milligan, 693

A.2d at 1315-1316, 1318.

      However, there was also testimony which established that prior to

reaching the accident scene, the officer received a dispatch informing him

that an individual was leaving the scene. The defense presented testimony

from a man named Joseph Oliver.        Mr. Oliver testified that prior to the

accident, he and Robert Smith were passengers in the car. Mr. Oliver

testified that after he got out, Mr. Smith and Mr. Milligan drove off, and Mr.

Smith was driving.    Mr. Oliver also testified that on the day following the

accident, he saw Mr. Smith and noticed that Mr. Smith had severe cuts to

his face. Finally, Mr. Oliver stated that, during this meeting with Mr. Smith,


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Mr. Smith confessed that he had been driving Mr. Milligan’s car at the time

of the accident, but he fled because he knew the police were coming.

Milligan, 693 A.2d at 1318.

      At trial, Mr. Milligan requested the trial court to give the jury the flight

and concealment instruction regarding the driver who had fled.          The trial

court refused to give this instruction, and following Mr. Milligan’s conviction,

he appealed to this Court. In addressing the issue on appeal, a panel of this

Court stated as follows:

      [I]t would appear that, once a defendant properly introduces
      evidence that someone else fled the crime scene, the trial court
      is duty bound to instruct the jury concerning the significance of
      this evidence. See [Commonwealth v. Birch, 644 A.2d 759,
      762 (Pa. Super. 1994)]. This decision is also compatible with
      Pennsylvania’s Suggested Standard Jury Instruction on flight,
      which, to a great extent, is neutral in its application to a
      defendant or another party. The suggested instruction reads, in
      pertinent part, as follows:

            Generally speaking when a crime has been
            committed and a person thinks he is or may be
            accused of committing it and he flees or conceals
            himself such flight or concealment is a circumstance
            tending to prove the person is conscious of guilt.
            Such flight or concealment does not necessarily show
            consciousness of guilt in every case. A person may
            flee or hide for some other motive and may do so
            even though innocent. Whether the evidence of flight
            or concealment in this case should be looked at as
            tending to prove guilt depends upon the facts and
            circumstances of this case especially upon motives
            which may have prompted the flight or concealment.

      Pa.S.S.J.I. (Crim) 3.14.




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Milligan, 693 A.2d at 1317-1318. This Court determined that the flight and

concealment instruction is available to a defendant who is attempting to

establish that a person other than himself is guilty. Id. at 1318. However,

the failure to give this jury instruction does not require a new trial if the

error is harmless. Id. at 1318.

      Here, we are faced with a markedly different set of facts from those

presented in Milligan. First, in the case at bar, the record reflects that after

Mr. Stratton saw Appellant shoot Dijon Bowie, he did not flee. Rather, he

went back inside the bar and asked the bartender to call an ambulance.

N.T., Trial, 8/8/13, at 45; N.T., Trial, 8/7/13, at 167.      While there was

testimony that Mr. Stratton reversed his vest, there is no indication that he

did so in an attempt to hide or conceal himself. Rather, Mr. Stratton, much

like many of the other witnesses, left the area after there were gunshots and

police arrived.   We cannot conclude that the evidence supported the

accusation that Mr. Stratton fled and concealed himself, a prerequisite for

the instruction. Milligan, 693 A.2d at 1317-1318; Sandusky, 77 A.3d at

667. Thus, the record did not support the instruction. Walker, 36 A.3d at

15.

      Additionally, while Mr. Michael Smalls testified that he thought Mr.

Stratton may be the shooter because he believed the shooter had lighter

skin than Appellant, N.T., Trial, 8/9/13, at 79, another eyewitness

unequivocally identified Appellant as the shooter. Id. at 106. Absent from


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the testimony in this matter is any evidence of Mr. Stratton’s flight or

concealment that would support the requested jury instruction.              For these

reasons, we discern no error or abuse of discretion in the trial court refusing

to provide the flight and concealment jury charge.1

       Next, Appellant claims that the trial court abused its discretion and

imposed an excessive sentence by ordering Appellant to serve his sentences

on the weapons offenses consecutively to one another and to the sentence

imposed     on   the    murder     charge.       Appellant’s   claim   challenges   the

discretionary aspects of his sentence.            A challenge to the discretionary

aspects of a sentence is a petition for permission to appeal, as the right to

pursue such a claim is not absolute.           Commonwealth v. Treadway, 104

A.3d 597, 599 (Pa. Super. 2014). Before this Court may review the merits

of a challenge to the discretionary aspects of a sentence, we must engage in

the following four-pronged analysis:
____________________________________________


1
  However, even if we were to find that the instruction was warranted, we
would conclude as this Court did in Milligan, that the error was harmless.
Under the harmless error doctrine, the judgment of sentence will be affirmed
in spite of the error where the reviewing court concludes beyond a
reasonable doubt that the error did not contribute to the verdict.
Commonwealth v. Moran, 104 A.3d 1136, 1150 (Pa. 2014) (citation
omitted). “An error is harmless if it does not prejudice the defendant, or the
effect on the jury is minimal.”       Milligan, 693 A.2d at 1318 (citation
omitted). There was testimony from several eyewitnesses and a video
recording of Appellant and Bowie fighting inside the bar. Moreover, there
were accounts from eyewitnesses who saw Appellant shoot and kill Bowie.
Thus, even if the trial court had instructed the jury on flight and
concealment with respect to Mr. Stratton, it would not have altered the
testimony from eyewitnesses who saw Appellant commit the murder.



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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) (citing

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

Additionally, “issues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings. Absent such efforts, an

objection    to    a   discretionary      aspect   of   a   sentence   is   waived.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)

(quoting Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011)).

       We note that Appellant has met the first three parts of the four-prong

test required prior to our review of the merits of a discretionary challenge to

a sentence: Appellant timely filed an appeal; Appellant preserved the issue

in a post-sentence motion;2 and Appellant included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief. Thus, we assess whether Appellant has raised

a substantial question.
____________________________________________


2
  The Commonwealth argues that this claim was waived because Appellant
failed to raise it in his post-sentence motion. Commonwealth’s Brief at 16.
However, we are satisfied that Appellant’s post-sentence motion sufficiently
challenges the consecutive nature of the sentences imposed, and we decline
to find waiver.



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      A determination as to whether a substantial question exists is made on

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.

2000). This Court will grant the appeal “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.”              Id. at

912-913.

      It is well settled that bald claims of excessiveness due to the

consecutive nature of sentences imposed will not raise a substantial

question.     Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.

2013).   However, a defendant may establish a substantial question where

the consecutive nature of the sentences results in an aggregate sentence

that is clearly unreasonable.       Id.     “The key to resolving the preliminary

substantial    question   inquiry    is    whether   the    decision   to   sentence

consecutively raises the aggregate sentence to, what appears upon its face

to be, an excessive level in light of the criminal conduct at issue in the case.”

Treadway, 104 A.3d at 599 (quoting Commonwealth v. Mastromarino, 2

A.3d 581, 587 (Pa. Super. 2010)).

      Here, Appellant alleges that the consecutive sentences imposed by the

trial court result in an excessive sentence.               Appellant’s Brief at 18.

Specifically, Appellant argues that the sentence exceeded the aggravated




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range for each sentence and the trial court failed to consider all relevant

factors in imposing sentence. Id. at 19. We disagree.

       The trial court sentenced Appellant to twenty to forty years of

incarceration for third degree murder, five to ten years of incarceration for

persons not to possess firearms, three to six years of incarceration for

firearms not to be carried without a license, and two to four years of

incarceration for possession of an instrument of crime.         The trial court

ordered all of these sentences to run consecutively, resulting in an

aggregate sentence of thirty to sixty years of incarceration.

       The record reflects that the sentences for third-degree murder and

persons not to possess firearms were in the standard range of the

Sentencing Guidelines. 204 Pa. Code §303.18; 204 Pa. Code §303.16. The

sentences for firearms not to be carried without a license and possession of

an instrument of crime were both beyond the aggravated range.          204 Pa.

Code §303.16.3

       Thus, Appellant’s primary challenge, wherein he alleged that each

sentence exceeded the aggravated range, is unfounded.           Moreover, the

record reflects that the trial court reviewed a pre-sentence investigation

report (“PSI”). N.T., Sentencing, 10/8/13, at 3. It is well settled that when

____________________________________________


3
  While the Deadly Weapon Used Sentencing Enhancement applied to the
murder conviction, that enhancement did not apply to Appellant’s other
convictions. 204 Pa. Code §303.10.



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the sentencing court had the benefit of a PSI, it was aware of the relevant

information   regarding   the   defendant’s   character   and   weighed   those

considerations along with mitigating statutory factors. Moury, 992 A.2d at

171 (citation omitted). Therefore, Appellant’s secondary claim that the trial

court failed to consider all relevant factors is meritless as well.       Thus,

Appellant’s claim of error is merely a bare challenge to the consecutive

nature of the sentences imposed. While Appellant cites to Commonwealth

v. Wilson, 946 A.2d 767 (Pa. Super. 2008), Commonwealth v. Dodge,

957 A.2d 1198 (Pa. Super. 2008), Commonwealth v. Whitman, 880 A.2d

1250 (Pa. Super. 2005), reversed on other grounds, 918 A.2d 115 (Pa.

2007),   Commonwealth v. Bauer, 604 A.2d 1098 (Pa. Super. 1992),

reversed on other grounds, 618 A.2d 396 (Pa. 1993), Commonwealth v.

Rizzi, 586 A.2d 1380 (Pa. Super. 1991), and Commonwealth v. Parrish,

490 A.2d 905 (Pa. Super. 1985), as examples of cases where this Court

found that consecutive sentences were excessive, none of those cases

involved third degree murder and the use of a firearm on a public street.

      Here, the record of the sentencing hearing reflects that counsel for the

Commonwealth summarized the facts of the case, Appellant and his father

were given an opportunity to speak, and the trial court heard these

statements and reviewed the PSI. We discern nothing unreasonable in an

aggregate sentence of thirty to sixty years of incarceration under the facts of

this case. Treadway, 104 A.3d at 599. Accordingly, because Appellant was


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unable to support his claim of excessiveness due to the consecutive nature

of the sentences with any support from the record establishing that the

aggregate sentence was clearly unreasonable, we conclude that Appellant

has failed to present a substantial question. Dodge, 77 A.3d at 1270.

      In his third issue, Appellant argues that the trial court erred and

abused its discretion when it sentenced him outside of the aggravated range

of the Sentencing Guidelines for PIC without providing its reasons for doing

so on the record.     Appellant’s Brief at 27.    As noted above, there are

requirements for raising a challenge to the discretionary aspects of one’s

sentence.     Moury, 992 A.2d at 170.         One of those prerequisites is

preserving the challenge by raising it before the trial court. Cartrette, 83

A.3d at 1042. Here, however, this issue is waived due to Appellant’s failure

to present it to the trial court at the time of sentencing or in a post-sentence

motion. Id.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Bowes joins the Memorandum.

      Justice Fitzgerald Concurs in the Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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