J-S39044-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                      Appellee             :
                                           :
                      v.                   :
                                           :
ZAQUAN STEVEN HARGETT,                     :
                                           :
                      Appellant            :     No. 1569 MDA 2015

           Appeal from the Judgment of Sentence August 12, 2015
             in the Court of Common Pleas of Dauphin County,
            Criminal Division, at No(s): CP-22-CR-0003317-2014

BEFORE:     STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED JULY 14, 2016

      Zaquan Steven Hargett (Appellant) appeals from the judgment of

sentence entered on August 12, 2015, following his conviction for simple

assault. We affirm.

      The trial court aptly set forth the relevant factual and procedural

history of this matter as follows.

            On May 10, 2014, at around midnight, Scotty Ball and his
      then fiancé[e] Rachel Hartman were in a hospital room at the
      Milton S. Hershey Medical Center with Rachel’s young son,
      Zamari, who was scheduled for surgery for injuries suffered as a
      result of a dog bite. [Appellant] is the biological father of Zamari.

           At approximately 2 o’clock a.m., as Mr. Ball and Ms.
      Hartman prepared to rest for the night on a chair and sofa near
      Zamari, [Appellant] entered the room and told Mr. Ball, who was
      seated, “You [sic] sleeping outside.”

            Ms. Hartman responded that Mr. Ball was not going to
      leave and stepped between [Appellant] and Mr. Ball. [Appellant]
      became angry and ripped off his shirt. As Mr. Ball remained

*Retired Senior Judge assigned to the Superior Court.
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     seated, [Appellant] suddenly began punching him with closed
     fists. Mr. Ball attempted to cover his face and stand. As Mr. Ball
     stood, [Appellant] continued to punch him, causing him to fall.
     Because Mr. Ball did not want to brace himself on the child’s crib
     during the attack, he fell directly onto his arm. Mr. Ball did not
     throw a punch to [Appellant] at any time.

           [Appellant’s] blows struck Mr. Ball in the nose, face and
     forehead. Photographs admitted as Commonwealth Exhibits 1-3
     depict the injuries [Appellant] inflicted upon Mr. Ball. Mr. Ball
     sustained contusions, swelling of the eye, a broken nose, lumps
     on the left side of the head, a broken index finger and injury to
     his arm. A nurse gave Mr. Ball a towel to attempt to stop the
     profuse bleeding.

           Officer Michael McCormick responded to the dispatch to
     the Medical Center. When Officer McCormick arrived at the
     hospital room, Mr. Ball was holding a blood-soaked towel to his
     face. [Appellant] had no injuries.

            At trial, [Appellant] admitted that he punched Mr. Ball in
     the face, but claimed that Mr. Ball struck him first. [Appellant]
     testified that Mr. Ball inflicted injuries upon himself.

           The jury found [Appellant] guilty of simple assault[, but
     acquitted him of disorderly conduct.]

           Immediately following the verdict, the [c]ourt sentenced
     [Appellant] to a term of not less than one year nor more than
     two years in a state correctional institution. [Appellant] filed a
     post sentence motion on August 21, 2015 to which the
     Commonwealth filed an answer and new matter. On September
     1, 2015, the [c]ourt denied [Appellant’s] post sentence motion.

           [Appellant] filed a notice of appeal on September 10,
     2015. Pursuant to the [c]ourt’s order, [Appellant] filed a timely
     concise statement of [errors] complained of on appeal on
     September 15, 2015. [The trial court filed a 1925(a) opinion.]

Trial Court Opinion, 11/5/2015, at 1-3 (citations to notes of testimony and

unnecessary capitalization omitted).




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      Appellant raises the following issues for our review.

      1. Whether the trial court erred in denying Appellant’s post
      sentence motion for arrest of judgment where the jury verdict of
      guilty was against the weight of the evidence because the
      Commonwealth failed to show that Appellant sustained any
      injuries indicative of fighting?

      2. Whether the trial court abused its discretion in sentencing
      Appellant to the maximum permissible sentence of one to two
      years of incarceration where the sentence is excessive and
      unreasonable in light of the Appellant’s background and
      rehabilitative needs and the trial court considered Appellant’s
      prior record score twice for sentencing purposes?

Appellant’s Brief at 6.

      Appellant first argues that the lack of “visible injuries” and “blood on

his hands” at the time of his arrest belies the victim’s testimony that

Appellant committed an assault. Appellant’s Brief at 15. We address

Appellant’s claim mindful of the following.1

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review. 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

1
  Although presented in his statement of questions involved as a sufficiency
claim, Appellant’s first argument implicates the weight of the evidence. See
Commonwealth v. Vogel, 461 A.2d 604, 607 (Pa. 1983) (holding that
arrest of judgment is the proper remedy at law when the evidence presented
is insufficient to support a conviction); Commonwealth v. Yong, 120 A.3d
299, 312 n.9 (Pa. Super. 2015) (reiterating that a challenge to the credibility
of the Commonwealth’s witnesses implicates the weight, not the
sufficiency of the evidence presented at trial.)


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      limited to whether the trial court palpably abused its discretion in
      ruling on the weight claim.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)

(citations and quotations omitted).

      Appellant’s limited argument on this point assails the inconsistencies in

the victim’s testimony and suggests that the jury erred in disbelieving his

version of events. However, reconciling inconsistencies in the testimony was

within the province of the fact-finder. Commonwealth v. Simmons, 662

A.2d 621, 630 (Pa. 1995) (“After examining the evidence in this case, we

find that appellant’s assertion that the inconsistencies in the witnesses’

testimony rendered them incredible to have no merit since the inaccuracies

claimed are only minor and a witness’s credibility is solely for the [fact-

finder] to determine.”). Additionally, it is well-settled that “the [fact-finder]

is free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Cousar, 928 A.2d 1025,

1035-36 (Pa. 2007).

      In evaluating this claim, the trial court concluded that the evidence

presented at trial “sufficiently supports the verdict [and] also weighs in a

manner consistent with the verdict, namely, that [Appellant] struck Mr. Ball

repeatedly out of anger, knocked him down and caused significant bleeding,

bruising and injury.” Trial Court Opinion, 10/6/2015, at 5.          We agree.

Appellant has failed to convince us that the trial court abused its discretion




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in holding that the verdict was not against the weight of the evidence.

Accordingly, we hold that he is not entitled to relief on this issue.

      Appellant next presents a challenge to the discretionary aspects of his

sentence. We address this claim mindful of the following:

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code…. [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant has satisfied the first three requirements: he timely filed a

notice of appeal, he sought reconsideration of his sentence in a post-

sentence motion, and he has included a Rule 2119(f) statement in his brief

to this Court. We now consider whether he has raised a substantial question

for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.       Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the



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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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

        Appellant first contends that the sentencing court abused its discretion

by sentencing Appellant to one to two years of incarceration, “the maximum

permissible sentence for a misdemeanor of the second degree,” when his

sentencing guidelines suggested a standard range sentence of 3 to 12

months. Appellant’s Brief at 13. While he is correct that simple assault is a

misdemeanor of the second-degree punishable by a maximum term of two

years of incarceration, in this case, due to Appellant’s prior record score and

the applicable sentencing guidelines, the imposed sentence of one to two

years fell within the standard guideline range. It is well-settled that “where

a sentence is within the standard range of the guidelines, Pennsylvania law

views     the   sentence   as   appropriate   under   the   Sentencing   Code.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).2

Accordingly, this claim does not raise a substantial question.




2
  We note that Appellant’s counsel waived his right to a pre-sentence
investigation at sentencing. N.T., 8/12/2015, at 2.



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       Appellant also argues that his sentence is manifestly excessive “in light

of Appellant’s background[3] and rehabilitative needs” and contends that, in

imposing the sentence, the trial court “punished Appellant twice for his prior

record score.” Appellant’s Brief at 13. See Commonwealth v. Keiper, 887

A.2d 317, 319 (Pa. Super. 2005) (holding that “[a] claim that the sentencing

court misapplied the Sentencing Guidelines in double counting a prior

conviction in its calculation of the prior record score presents a substantial

question.”); Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.

2015) (en banc) (recognizing that this court has held that “an excessive

sentence claim—in conjunction with an assertion that the court failed to

consider mitigating factors—raises a substantial question.”) To the extent

that these claims may raise a substantial question, Appellant is not entitled

to relief.

       At sentencing, the trial court heard argument from the district attorney

and Appellant regarding the instant offense and Appellant’s prior record

score. N.T., 8/12/2015, at 2-6.     Appellant exercised his right to allocution

and explained that he had recently been released from prison and was

working at the time of the incident. Id. at 7. However, Appellant expressed

disbelief at the victim’s version of events, which was soundly rejected by the

trial court. Id. at 6-7.


3
  Appellant agrees that, due to a prior homicide conviction, his prior record
score is 4.


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      In fashioning Appellant’s sentence, the trial court explained that it

“relied upon not only [Appellant’s] prior record score of 4 but also considered

the nature of the unprovoked attack upon Mr. Ball” and took into

consideration Appellant’s “violent tendencies in connection with the need to

protect the public and the need for rehabilitation in that [Appellant]

committed this assault within only a few years of completing a sentence for

a homicide charge.” Trial Court Opinion, 11/5/2015, at 6. Moreover, at

sentencing, the trial court acknowledged that Appellant’s homicide conviction

was accounted for properly in the calculation of Appellant’s prior record

score. N.T., 8/12/2015, at 8.

      Based on the foregoing, we hold that the trial court did not abuse its

discretion in fashioning Appellant’s sentence.   Thus, we affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2016




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