J-S16045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRY SCOTT,                               :
                                               :
                       Appellant               :       No. 797 EDA 2019

        Appeal from the Judgment of Sentence Entered January 31, 2019
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005240-2018

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 26, 2020

        Terry Scott (“Scott”) appeals from the judgment of sentence imposed

following his conviction of aggravated assault, simple assault, recklessly

endangering another person (“REAP”), and possession of an instrument of

crime (“PIC”).1 We affirm.

        In its Opinion, the trial court set forth the relevant factual history as

follows:

              On June 30, 2018, at about 11:30 p.m., [] Don Doyle
        [(“Doyle”)] … was inside a park situated on the 900 block of North
        8th Street in Philadelphia drinking beer. [Scott], who[m Doyle]
        had known for three or four months by the name “T”, was also
        present at the time. At some point, [Scott], who had smoked
        crack cocaine just prior to the incident herein, asked [Doyle] for
        three or four dollars[,] and he told [Scott] that he had no money.
        After [Doyle] told [Scott] that he had no money, [Scott] ordered
        [Doyle] to leave the park, a directive with which he immediately
        complied.
____________________________________________


1   18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, 907(a).
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             As [Doyle] was exiting the park, [Scott] ran up to him and
       began threatening and cursing [at] him. [Scott] also punched
       [Doyle] in the face with his left hand and asked [Doyle] why he
       was running away. [Doyle] attempted to hit [Scott] back[,] and
       as the two men struggled, [Scott] stabbed [Doyle] three or four
       times with a knife he was holding in his left hand. [Doyle], who
       suffered on stab wound to his abdomen and others to his back,
       again tried to leave the area and, as he did so[, Scott] began
       chasing him and attempted to stab him another time. While
       fleeing, [Doyle] told [Scott] that he had stabbed him and that he
       would get his.

              Philadelphia Police Officer James Crusemire [(“Officer
       Crusemire”)] and his partner responded to a radio call concerning
       the incident herein. [Officer Crusemire] encountered [Doyle,] and
       because of the seriousness of his injuries, [Officer Crusemire]
       immediately transported him to the hospital. At the hospital,
       [Doyle] stated that “T” stabbed him and also gave a description
       of “T.”[2]

              On July 2, 2018, Officer Crusemire saw [Scott] in a park
       located at 8th Street and Girard Avenue in Philadelphia and
       apprehended him on an absconder warrant and a bench warrant.
       Incident to the arrest, [Officer Crusemire] took a black school bag
       from [Scott] that contained tan pants with red stains on them and
       a four-inch knife. [Officer Crusemire] placed these items and a
       cell phone on property receipts.

             Subsequent DNA testing was negative for the presence of
       [Doyle’s] DNA on the pants and the knife found in [Scott’s]
       possession.

              [Scott] testified that he did not argue with or stab [Doyle],
       who[m] he knew, and that he was not present at the park when
       the incident occurred. [Scott] indicated that he carried the knife
       for self-defense and that the red stains from his pants came from
       berries he sat on. [Scott] admitted that he had been at the park
       where the incident occurred earlier in the day[,] and that when he
       left the park he believed that [sic] went to [a] friend’s house who
       lived nearby, something he did every day.
____________________________________________


2Doyle also identified Scott as his assailant at trial. See N.T., 11/20/18, at
25, 26-31.

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Trial Court Opinion, 7/10/19, at 2-4 (citations to record omitted; footnote

added).

      Following a bench trial, Scott was convicted of the above-mentioned

crimes. The trial court deferred sentencing, and ordered the preparation of a

pre-sentence investigation report (“PSI”). On January 31, 2019, the trial court

sentenced Scott to a term of 3 to 6 years in prison, with credit for time served,

followed by 4 years of probation for his aggravated assault conviction. For his

PIC conviction, the trial court imposed a concurrent term of 5 years of

probation. The trial court also imposed concurrent terms of 2 years of

probation for his simple assault and REAP convictions.       Further, the court

ordered Scott to pay restitution in the amount of $320.




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       Scott filed a post-sentence Motion,3 challenging the sufficiency and

weight of the evidence presented, and a Motion for Reconsideration of his

sentence.    The trial court denied Scott’s Motions.    Scott thereafter filed a

timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

       Scott now raises the following issues for our review:

       1) Was not the 3 to 6[-]year sentence imposed for aggravated
       assault (F2) manifestly excessive and unreasonable, where the
____________________________________________


3  The tenth day following the imposition of sentence was Sunday, February
10, 2019. See Pa.R.Crim.P. 720(a)(1). Thus, Scott had until Monday,
February 11, 2019, to file a timely post-sentence Motion. See 1 Pa.C.S.A.
§ 1908 (explaining that, for computation of time purposes, when the last day
of a time period falls on a Saturday or Sunday, “such day shall be omitted
from the computation.”). Because Scott’s post-sentence Motion was docketed
on February 12, 2019, this Court issued a Rule to Show Cause why this appeal,
filed March 14, 2019, should not be quashed as untimely. Rule to Show Cause,
4/23/19 (citing Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa. Super.
2003) (en banc) (stating that the filing of an untimely post-sentence motion
does not toll the 30-day appeal period)). Scott filed an Answer, explaining
that he filed the post-sentence Motion at 5:31 p.m. on Monday, February 11,
2019, but that the Motion was not docketed until the following day,
“presumably because the electronic filing occurred after 5:00 p[.]m[.]”
Answer, 5/2/19. This Court subsequently discharged the Rule to Show Cause.
Our review reflects that the post-sentence Motion contains a time-stamped
filing date of February 11, 2019. See generally Pa.R.Crim.P. 114(c)(2)
(requiring docket entries to contain, inter alia, “the date of receipt in the
clerk’s office of the order or court notice”); Pa.R.Crim.P. 576 (stating that
when a document for which filing is required “is received by the clerk of courts,
the clerk shall time stamp it with the date of receipt and make a docket
entry reflecting the date of receipt, and promptly shall place the document
in the criminal case file.” (emphasis added)); Pa.R.Crim.P. 113 (providing that
docket entries in criminal case files must contain, inter alia, all information
required by Rules 114 and 576). Under these circumstances, where the time
stamp on Scott’s post-sentence Motion reflects a filing date of February 11,
2019, we will consider his post-sentence Motion, and the resulting appeal, to
be timely filed.

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      trial court improperly relied on conduct for which it found [Scott]
      not guilty?

      2) Did not the trial court abuse its discretion and impinge on
      [Scott’s] Sixth Amendment right to counsel when it denied
      defense counsel’s [M]otion for continuance to allow counsel time
      to adequately review the medical records, a toxicology report, and
      a DNA report, which the Commonwealth turned over to the
      defense on the eve and morning of trial[?]

      3) Did not the trial court abuse its discretion in denying [Scott’s]
      post-sentence [M]otion for a new trial, as the verdict was contrary
      to the weight of the evidence, where the sole identifying witness
      was drunk and high at the time of the attack?

Brief for Appellant at 4.

      In his first claim, Scott argues that the trial court abused its discretion

by imposing an aggravated-range sentence for his aggravated assault

conviction. Id. at 15. According to Scott, the trial court imposed a sentence

in the aggravated range because it had already given him a “break” by grading

the aggravated assault conviction as a second-degree felony, as opposed to a

first-degree felony.   Id. at 15-16.    Scott claims that by referring to the

potential for a conviction under a higher grade, the trial court relied on conduct

of which he was found not guilty. Id. at 16, 17. Scott also asserts that the

trial court failed to appropriately consider his rehabilitative needs. Id. at 17-

18.

      Scott’s claim challenges the discretionary aspects of his sentence. “It is

well-settled that, with regard to the discretionary aspects of sentencing, there

is no automatic right to appeal.” Commonwealth v. Mastromarino, 2 A.3d




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581, 585 (Pa. Super. 2010). Before we address the merits of a discretionary

sentencing claim,

      [w]e conduct a four-part analysis to determine: (1) whether the
      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 the 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) (some

citations omitted).   “A substantial question exists 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. (quotation marks and citation omitted). Further,

      [i]n determining whether a substantial question exists, this Court
      does not examine the merits of whether the sentence is actually
      excessive.    Rather, we look to whether the appellant has
      forwarded a plausible argument that the sentence, when it is
      within the guideline ranges, is clearly unreasonable.
      Concomitantly, the substantial question determination does not
      require the court to decide the merits of whether the sentence is
      clearly unreasonable.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).

      Here, Scott filed a timely Notice of Appeal, preserved his claim in his

Motion to Reconsider, and included a separate Rule 2119(f) Statement in his

appellate brief. Additionally, Scott’s assertions that the trial court improperly

imposed a manifestly excessive sentence, failed to provide adequate reasons


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for imposing an aggravated sentence, failed to consider his rehabilitative

needs and mitigating evidence, and imposed a harsher sentence for conduct

for which he was found not guilty, raise a substantial question for our review.

See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)

(concluding that an excessive sentence claim, together with a claim that the

trial court failed to consider a defendant’s rehabilitative needs and other

mitigating factors raises a substantial question); see also Commonwealth

v. Serrano, 150 A.3d 470, 473 (Pa. Super. 2016) (stating that a substantial

question has been presented where an appellant alleged that the sentencing

court failed to consider the defendant’s individualized circumstances and

rehabilitative needs); Commonwealth v. Downing, 990 A.2d 788, 792 (Pa.

Super. 2010) (concluding that a claim that trial court relied on improper

sentencing factors raises a substantial question).

      We adhere to the following standard of review:

      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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).

      “In every case in which the court imposes a sentence for a felony … the

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

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imposed.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon,

812 A.2d 617, 620-21 (Pa. 2002) (plurality).         The Sentencing Code also

provides that “the [trial] court shall follow the general principle that the

sentence imposed should call for confinement that is 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.A. § 9721(b); see also Commonwealth v.

McClendon, 589 A.2d 706, 713 (Pa. Super. 1991) (stating that “the court

should refer to the defendant’s prior criminal record, age, personal

characteristics and potential for rehabilitation.”). Further, the trial court must

consider the Sentencing Guidelines. Commonwealth v. Sheller, 961 A.2d

187, 190 (Pa. Super. 2008) (stating that “[w]hen imposing a sentence, the

[trial] court is required to consider the sentence ranges set forth in the

Sentencing Guidelines….”).

      Our review of the record confirms that the trial court considered the

relevant section 9721(b) sentencing factors. During the sentencing hearing,

Scott’s counsel alerted the trial court to several mitigating factors, including

Scott’s good behavior in prison, his serious health issues, and concern for his

mother and children. See N.T., 1/31/19, at 5-6. Scott also exercised his right

to allocution, reiterating his concern for his mother, as well as his medical

issues, which prevent him from keeping a job. See id. at 11-12.

      The trial court stated the following in its Opinion:


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      [Scott] had a prior record score of five and the offense gravity
      score for the aggravated assault conviction was 8, making the
      standard range sentence 27-33 months, plus/minus 9 months.
      This court decided to go above the standard sentencing range
      because the recommended standard range of the guidelines did
      not reflect the seriousness of the crime or [Scott’s] egregious
      criminal record, which included 24 separate arrests. The law
      permits a sentencing court to consider a defendant’s criminal
      history….

            With regard to the claim that the court did not consider the
      factors set forth in section 9721 of the Sentencing Code, this court
      certainly did so. The court carefully reviewed the various reports
      before imposing [the] sentence[,] and took their contents into
      account when deciding on an appropriate sentence. It also took
      into account [Scott’s] mitigating factors[,] as well as those factors
      that called for an aggravated sentence. …

            Finally, while this court did state that [Scott] already
      received a break because he was convicted of a less serious
      offense[,] and that it represented the only break [Scott] would
      receive, no relief is due on that claim. This is so because this court
      considered all required factors in fashioning its sentence, which
      was based on the crime [Scott] committed, his myriad arrests and
      convictions, and his failure to rehabilitate himself.

Trial Court Opinion, 7/10/19, at 11-12 (citations to record and some

capitalization omitted).

      Moreover, the trial court had the benefit of a PSI, which it reviewed with

both parties at the start of the sentencing hearing. See N.T., 1/31/19, at 4;

see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (explaining

that where a sentencing judge considered a PSI, it is presumed that they are

“aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”).

Based upon the foregoing, we discern no abuse of the trial court’s discretion


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in imposing a sentence in the aggravated range of the Sentencing Guidelines.

Thus, Scott is not entitled to relief on this claim.

      In his second claim, Scott contends that the trial court abused its

discretion, and “hampered” his Sixth Amendment right to counsel by denying

his request for a continuance. Brief for Appellant at 18. Scott claims that his

trial counsel “received an exculpatory DNA report at 5:00 p[.]m[.] on the

evening before trial[,] and 700 pages of medical records on the morning of

trial.” Id. Scott argues that his continuance request was reasonable, and

that the trial court improperly emphasized its concern for Doyle’s availability

and convenience. Id. at 18-19. According to Scott, his counsel was unable

to fully prepare for trial as a result of the trial court’s refusal to grant a

continuance.    Id. at 20.    Scott also asserts that he did not provide any

toxicology information, and that “the defense presented no evidence about []

Scott’s many health ailments, referenced in the sentencing documents, that

would have prevented [] Scott from chasing after [] Doyle and using a knife

in one hand while punching with the other.” Id. at 20-21.

      We are cognizant of the following standard of review:

             The decision to grant or deny a continuance request rests
      with the sound discretion of the trial court[,] and we will not
      reverse the decision absent a clear abuse of discretion. This Court
      will not find an abuse of discretion if the denial of the continuance
      request did not prejudice the appellant. In order to demonstrate
      prejudice, the appellant must be able to show specifically in what
      manner he was unable to prepare his defense or how he would
      have prepared differently had he been given more time.




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Commonwealth v. Broitman, 217 A.3d 297, 299-300 (Pa. Super. 2019)

(internal citations and quotation marks omitted). Further, “[a] bald allegation

of an insufficient amount of time to prepare will not provide a basis for reversal

of the denial of a continuance motion.” Commonwealth v. Ross, 57 A.3d

85, 91 (Pa. Super. 2012).

       In his appellate brief, Scott does not specifically explain how he would

have prepared differently with a one-week continuance, nor does he identify

a particular portion of his medical records, which he believes would have been

exculpatory. See Broitman, supra. From his vague argument, it appears

that Scott primarily desired additional time to review the toxicology report.4

Brief for Appellant at 20.          At trial, when Scott’s counsel moved for a

continuance, she specifically referenced the toxicology report, and explained

that she believes information contained in the report would be relevant for

cross-examination.5 See N.T., 11/20/19, at 14. Defense counsel asked to

continue the trial to the following week. See id. at 15. The trial court, noting

that the toxicology report is typically a short document, put the case on hold

until 4:00 p.m. that day to allow defense counsel time to review the document.

See id. at 15-17.


____________________________________________


4 Notably, Scott does not identify whether the toxicology report pertained to
him or Doyle.

5 Defense counsel also sought to introduce the contents of the DNA report,
and the Commonwealth agreed to stipulate to the report. See N.T., 11/20/19,
at 13-14.

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      Additionally, in its Opinion, the trial court addressed Scott’s claim as

follows:

      First, a week or so before the trial commenced[,] a readiness
      hearing was held at which the defense made no mention of
      missing medical records. Second, [the trial court] provided the
      defense a several hour continuance so that it could review the
      various records. When the case was reconvened, the defense did
      not renew its request for a continuance[,] leading this [c]ourt to
      believe that the defense had had adequate time to review the
      records.

            Third, a very small part of the records at issue were relevant
      to [Scott’s] defense. Those included [Doyle’s] toxicology report,
      the scale of [Doyle’s] injuries, and the results of the DNA test.
      [Scott] and his attorney had more than enough time to review
      them[,] and in fact[,] the defense [] used them during the trial.
      Thus, the defense cannot show that it was prejudiced as a result
      of the refusal to grant a continuance.

            Finally, the Commonwealth was ready to proceed to trial.
      Its case relied upon a witness who was essentially homeless and
      had difficulty getting to the court house. The [c]ourt was well
      aware that if the matter was continued[,] it was likely that [Doyle]
      would not appear at another listing. …

Trial Court Opinion, 7/10/19, at 5-6 (citations to record omitted).

      Upon review, we discern no abuse of the trial court’s discretion in

denying Scott’s Motion for continuance.       The trial court provided defense

counsel additional time to review the only document specifically identified

among the 700 pages of medical records, i.e., the toxicology report.

Moreover, Scott has failed to explain how additional time to review the

toxicology report would have aided his defense, or to specifically identify any

other beneficial documents contained in his medical records that counsel was




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unable to review. See Broitman, supra. Therefore, we cannot grant Scott

relief on this claim.

      In his third claim, Scott asserts that the verdict was against the weight

of the evidence. Brief for Appellant at 21. Scott claims that on the night of

the stabbing, Doyle was drunk, and had smoked crack cocaine. Id. at 22;

see also id. at 23 (wherein Scott asserts that Doyle’s testimony was

unreliable). Scott also points to inconsistencies in Doyle’s statements, to the

treating physicians at the hospital and the police, regarding whether he knew

his assailant and what the assailant looked like. Id. at 22-23. Additionally,

Scott points out that the trial judge knows Officer Crusemire’s father, and




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exhibited bias as a result of this connection.6 Id. at 23. Scott claims that his

“numerous health problems make it difficult to believe he could have chased

after [Doyle], punched, and stabbed him so aggressively.” Id. at 24.

       As this Court has recognized,

       [a]ppellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict
       is against the weight of the evidence. Because the trial judge has
       had the opportunity to hear and see the evidence presented, an
       appellate court will give the gravest consideration to the findings
       and reasons advanced by the trial judge when reviewing a trial
       court’s determination that the verdict is against the weight of the
       evidence. One of the least assailable reasons for granting or
       denying a new trial is the lower court’s conviction that the verdict
       was or was not against the weight of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(citation omitted); Commonwealth v. Smith, 146 A.3d 257, 265 (Pa. Super.

2016) (stating that “[i]n order for an appellant to prevail on a challenge to the



____________________________________________


6The following exchange occurred after Officer Crusemire was sworn in as a
witness:

       The Court: How you doing? All right? Who is your father?

       [Officer Crusemire]: He’s James.

       [Q]: Is he a judge?

       [A]: Yes, Judge James –

       ….

       [Q]: Yeah, I went to school with him. Tell your dad I said hello.

N.T., 11/20/18, at 45-46.

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weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” (citation omitted)).

Further, “in instances where there is conflicting testimony, it is for the jury to

determine the weight to be given the testimony. The credibility of a witness

is a question for the fact-finder.” Commonwealth v. Hall, 830 A.2d 537,

542 (Pa. 2003) (citation omitted).

      To the extent that Scott asks this Court to re-assess Doyle’s credibility,

or the weight to be assigned his testimony, we are unable to do so. See Hall,

supra; see also Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.

Super. 2006) (stating that “[i]t is not for this Court to overturn the credibility

determinations of that fact-finder.”). Further, as the trial court aptly noted,

      [a]lthough the victim had ingested intoxicating substances …, this
      [c]ourt concluded that [Doyle] testified credibly and had been
      assaulted as he claimed. [Doyle] knew [Scott] prior to the
      incident, identified [Scott] by name at the hospital as his assailant,
      gave a description of [Scott], and [Doyle’s] version of events
      coincided with the physical evidence, which included a knife found
      in [Scott’s] possession that matched [Doyle’s] description of the
      weapon.

Trial Court Opinion, 7/10/19, at 8.

      Regarding Scott’s claim that the trial judge knows Officer Crusemire’s

father, our review reveals no obvious bias based on this brief exchange, nor

does the record reflect that the trial court afforded Officer Crusemire’s

testimony any undue weight as a result. Upon review, we cannot conclude

that the evidence presented at trial was “so tenuous, vague and uncertain” as

to shock the conscience of the court.     See Smith, supra. We discern no


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abuse of the trial court’s discretion in determining that the verdict was not

against the weight of the evidence. Thus, Scott is not entitled to relief on this

claim.

      Judgment of sentence affirmed.

      Judge McLaughlin joins the memorandum.

      Judge Dubow files a dissenting statement.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/20




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