J-S95036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
EDWARD CZAPLICKI,                          :
                                           :
                   Appellant               :           No. 116 EDA 2016

             Appeal from the Judgment of Sentence August 6, 2015
              in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No(s): CP-51-CR-0005061-2012

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 23, 2017

        Edward Czaplicki (“Czaplicki”) appeals from the judgment of sentence

entered following his conviction of three counts of criminal conspiracy, two

counts of robbery, and one count each of burglary and aggravated assault.1

We affirm.

        In its Opinion, the trial court summarized the facts underlying the

instant appeal, which we incorporate herein by reference. See Trial Court

Opinion, 7/19/16, at 1-3.

        Following a jury trial, Czaplicki was convicted of the above-described

crimes. The trial court sentenced Czaplicki to an aggregate prison term of

20 to 40 years. Czaplicki filed a Post-Sentence Motion, which the trial court

denied. Thereafter, Czaplicki filed the instant timely appeal, followed by a




1
    18 Pa.C.S.A. §§ 903, 3701, 3502, 2702.
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court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained

of on Appeal.

      Czaplicki presents the following claims for our review:

      A. Was the evidence presented at trial sufficient to establish
      guilt beyond a reasonable doubt on any of the counts of which
      [Czaplicki] was convicted?

      B. Was the evidence presented at trial against the weight of the
      evidence to establish guilt beyond a reasonable doubt on any of
      the counts of which [Czaplicki] was convicted?

      C. Did not the trial court err by allowing into evidence irrelevant
      and overly prejudicial testimony that [Czaplicki] was an alleged
      member of the Pagan Motorcycle Club[,] and did not the trial
      court err by allowing into evidence testimony about men with
      motorcycle jackets and patches at the courthouse during the
      preliminary hearing?

      D. Did not the trial court err in allowing into evidence as
      substantive evidence complainant Mark Smith’s [(“Smith”)]
      statement to police?

      E. Did not the trial court impose an excessive sentence[,] and
      abuse [the] discretionary aspects of sentenc[ing,] by departing
      from the guidelines[,] … entering a consecutive sentence[,] and
      failing to properly weigh [Czaplicki’s] poor health, positive work
      history an[d] position in the community, etc.?

Brief for Appellant at 7.

      Czaplicki first challenges the sufficiency of the evidence underlying his

convictions. Id. at 9. Specifically, Czaplicki claims that the Commonwealth

failed to establish that he was present in the house during the robbery,

“which was committed by two young white males wearing masks and/or

hoodies, and because [Czaplicki] was never seen in the getaway truck[.]”

Id.


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      In reviewing a challenge to the sufficiency of the evidence,

      [t]he standard we apply … is whether[,] viewing all the evidence
      admitted at trial in the light most favorable to the verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.           Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [finder] of fact[,] while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Fabian, 60 A.3d 146, 150-51 (Pa. Super. 2013)

(citation omitted).

      In its Opinion, the trial court addressed this claim and concluded that

the evidence was sufficient to establish Czaplicki’s guilt based upon

accomplice liability. See Trial Court Opinion, 7/19/16, at 8-9; see also id.

at 6-7 (setting forth the evidence as to each particular crime charged). The

trial court additionally found the evidence sufficient to sustain Czaplicki’s

conviction as a conspirator in the commission of the crimes. See id. at 9.

The trial court’s findings are supported by the record, and its legal

conclusions are sound. We therefore affirm on the basis of the trial court’s

Opinion with regard to this claim. See id. at 6-9.



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      Czaplicki next challenges the verdicts as against the weight of the

evidence. Brief for Appellant at 9. Czaplicki again challenges the lack of an

identification of him as one of the perpetrators. Id.

      As our Supreme Court has explained,

      [t]he decision to grant or deny a motion for a new trial based
      upon a claim that the verdict is against the weight of the
      evidence is within the sound discretion of the trial court.
      Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1033,
      1036 (Pa. 2007). Thus, “the function of an appellate court on
      appeal is to review the trial court’s exercise of discretion based
      upon a review of the record, rather than to consider de novo the
      underlying question of the weight of the evidence.”
      Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1225
      (Pa. 2009). An appellate court may not overturn the trial court’s
      decision unless the trial court “palpably abused its discretion in
      ruling on the weight claim.” Commonwealth v. Champney,
      574 Pa. 435, 832 A.2d 403, 408 (Pa. 2003).              Further, in
      reviewing a challenge to the weight of the evidence, a verdict
      will be overturned only if it is “so contrary to the evidence as to
      shock one’s sense of justice.” Commonwealth v. Diggs, 597
      Pa. 28, 949 A.2d 873, 879 (Pa. 2008).

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016).

      In its Opinion, the trial court addressed Czaplicki’s second claim and

concluded that it lacks merit. See Trial Court Opinion, 7/19/16, at 2 (setting

forth the evidence identifying Czaplicki as the owner/driver of the Ford F-150

pickup truck that transported the victim’s assailants from the scene), 6-10

(setting forth the evidence supporting the verdicts, and addressing in

particular Czaplicki’s challenge to the weight of the evidence).    We agree

with the reasoning of the trial court, as set forth in its Opinion and discern

no abuse of discretion in this regard.    See id. at 2, 6-10.    We therefore



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affirm on the basis of the trial court’s Opinion with regard to this claim. See

id.

      In his third claim, Czaplicki argues that trial court improperly admitted

testimony regarding his membership in the Pagan Motorcycle Club, and the

presence of men at the courthouse during the preliminary hearing, who were

wearing wearing motorcycle jackets and patches. Brief for Appellant at 15.

Czaplicki argues that “the erroneously admitted evidence was essentially

that [Czaplicki] is a member of the Pagan[] Motorcycle gang and that he

employed several Pagan thugs to intimidate witnesses.”          Id.    Czaplicki

argues that such evidence was inflammatory and prejudicial. Id.

      In its Opinion, the trial court set forth the relevant law, addressed this

claim, and concluded that it lacks merit. See Trial Court Opinion, 7/19/16,

at 12-15. We agree with the sound reasoning of the trial court, as set forth

in its Opinion, and affirm on this basis with regard to Czaplicki’s third claim.

See id.

      In his fourth claim, Czaplicki argues that the trial court improperly

admitted as substantive evidence the victim’s statement to police. Brief for

Appellant at 16. Czaplicki argues that at trial, Smith testified that he had no

independent recollection of the events or of a statement he made to police

two weeks after the shooting.     Id.   Czaplicki contends that the trial court

abused its discretion by admitting the contents of Smith’s statement to

police as substantive evidence. Id.



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      The trial court set forth the relevant law in its Opinion, addressed this

claim, and concluded that it lacks merit. See Trial Court Opinion, 7/19/16,

at 10-12. We affirm on the basis of the trial court’s well-reasoned Opinion

with regard to this claim. See id.

      In his fifth claim, Czaplicki challenges the discretionary aspects of his

sentence. Brief for Appellant at 16. Czaplicki specifically challenges the trial

court’s imposition of a consecutive sentence, and its failure to credit

mitigating circumstances as to his remorse, lack of significant criminal

offenses in the last 30 years, work history, health and position in the

community.      Id.     Czaplicki claims that the sentence is “especially

unreasonable in light of the fact that [he] was never accused of actually

possessing any weapon, entering any house, or of actually carrying out the

actual home invasion robbery.”       Id. at 16-17.   According to Czaplicki, the

trial court’s sentence is, in effect, a life sentence. Id. at 17.

      A claim that the trial court failed to consider mitigating factors

implicates the discretionary aspects of one’s sentence. Commonwealth v.

Raven, 97 A.3d 1244, 1252 (Pa. Super. 2014).                 A challenge to the

discretionary aspects of one’s sentence must be treated as a petition for

permission to appeal, as the right to pursue such a claim is not absolute.

Id. When considering an appellant’s challenge to the discretionary aspects

of his sentence, we 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


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     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, [see] 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, [see] 42
     Pa.C.S.A. § 9781(b).

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

(quotation marks and some citations omitted).

     Here, Czaplicki timely filed a post-sentence Motion and Notice of

Appeal.   However, Czaplicki’s appellate brief fails to include the requisite

statement of reasons relied upon for allowance of appeal, as required by

Pa.R.A.P. 2119(f), and the Commonwealth has objected to this deficiency.

“Because the Appellant failed to comply with Pa.R.A.P. 2119(f) and the

Commonwealth objected to the omission, this Court may not review the

merits of the claim[.]” Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.

Super. 2004). We therefore affirm Czaplicki’s judgment of sentence.2

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2017

2
  Even if Czaplicki had included the required Rule 2119(f) statement, we
would conclude that his claim lacks merit for the reasons stated in the trial
court’s Opinion. See Trial Court Opinion, 7/19/16, at 16-19.


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