J-A19024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAYMOND CORLL                              :
                                               :
                       Appellant               :   No. 934 MDA 2017

          Appeal from the Judgment of Sentence Entered May 12, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0001815-2016,
                            CP-36-CR-0005325-2016

BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 20, 2018

        Appellant Raymond Corll appeals from the judgment of sentence

entered following a jury trial and his convictions for perjury,1 false swearing,2

official oppression,3 and simple assault.4 Appellant challenges the sufficiency

of the evidence for his convictions for perjury and false swearing, whether the

trial court erred by not charging the jury on justifiable use of non-deadly force,




____________________________________________


1   18 Pa.C.S. § 4902(a).
2   18 Pa.C.S. § 4903(a)(1).
3   18 Pa.C.S. § 5301(1).
4   18 Pa.C.S. § 2701(a)(1).
J-A19024-18


and whether it abused its discretion by imposing an excessive sentence. We

affirm.

        We present the following as background for Appellant’s convictions for

perjury and false swearing.5 Appellant was a police officer at the time of the

above offenses. R.R. at 112a.6 Appellant testified at the summary trial of

Steve Widdowson for public intoxication as follows:

        [Appellant7]: On the evening of the 7th into the 8th of March 2014,
        I was working overtime detail for a quality of life enforcement with
        the city police.     I had a partner[, now-Lieutenant James
        Carpenter,] that evening. We were both in police uniforms. I was
        the passenger. My partner was the operator of a full-sized marked
        SUV with a badge on the side of the vehicle and an emergency
        light on the top. At approximately 0150 hours, which would have
        been Saturday morning, 8th of March 2014, we were going north
        through the 100 block of North Queen Street. As we’re going
        through the block, up ahead of us to our right-hand side, which
        would have been the east side of the street, we saw a couple[,
        i.e., Widdowson and his friend, Tami Jones,] staggering on the
        sidewalk, also walking north, the same direction we were going.
        They were staggering. They were going from one end of the
        sidewalk to the other. When I say one end to the other, curbside
        all the way to the width of the sidewalk.

        My partner slowed the vehicle and we were just following them
        and watching what they were doing. As we approached the
        intersection, which is Chestnut Street, we had a green light and
        the couple had stepped to the curb. I actually thought they were
        going to step in front of us into the street. That didn’t happen.
____________________________________________


5We state the facts in the light most favorable to the Commonwealth as the
verdict-winner. Commonwealth v. Arcelay, 190 A.3d 609, 617 (Pa. Super.
2018).
6   We cite to the reproduced record for the parties’ convenience.
7 Appellant read into the instant trial record portions of his direct-examination
testimony at the underlying summary trial, including the questions.


                                           -2-
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     My partner proceeded through the intersection. I was still
     watching the couple. I was concerned for their safety. They were
     staggering quite a bit and were on the curb.

     At that time, the male party, later identified as the defendant,
     Steven Widdowson, seated at the defense table with the blue shirt
     and blue tie, yelled, what the fuck are you looking at. My partner
     made a right-hand turn. I exited the vehicle, told him to stop.
     [Widdowson] made a step towards the intersection as if to cross
     the street. I grabbed him. I detected a very strong odor of
     alcohol. At that point, I arrested him for public drunkenness . . .
     .

                                 *    *    *

     [Appellant]: Question, so other than just alcohol on his breath,
     that was your indication?        Answer, and [Widdowson] was
     staggering from side -- the entire width of the sidewalk which was
     on the 100 block of North Queen Street by Lancaster Square
     there. That sidewalk has got to be 15 feet wide. So he was
     manifestly under the influence of alcohol. He was staggering. He
     appeared to be unaware of his surroundings, standing on the curb,
     almost stepping in front of us which we had the green light. He
     had the do not walk sign.

Id. at 112a-15a.   We add that during the course of the arrest, Appellant

punched Widdowson while he was on the ground. Id. at 114a. Based on

Appellant’s testimony, the district judge convicted Widdowson of public

intoxication. Widdowson appealed and requested a trial de novo.

     The parties do not dispute that Widdowson’s counsel subsequently

obtained video surveillance of his arrest, which was reviewed by the district

attorney.   Afterwards, the district attorney dropped the charges against

Widdowson and began investigating Appellant.         The district attorney’s

investigation was referred to the Pennsylvania Office of Attorney General,

which resulted in Appellant’s arrest and charges for the above crimes.

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        At Appellant’s jury trial, Appellant’s testimony at Widdowson’s summary

trial was read into the record, as quoted above.      The Commonwealth also

introduced video surveillance footage, which was played for the jury. Id. at

141a.    The video did not depict Widdowson’s staggering as Appellant had

previously testified at Widdowson’s summary trial. Id. It was undisputed,

however, that the video footage only recorded several seconds of Widdowson’s

and Jones’s walk. Id. at 157a, 206a.

        Widdowson and Jones also testified, disputing that they were intoxicated

or staggering and that Widdowson prompted Appellant’s punch. See, e.g.,

id. at 173a-74a, 179a-82a, 215a-16a, 220a, 225a, 230a-31a.                Jones

specifically denied seeing Widdowson throw a punch, spit, kick, or otherwise

provoke Appellant’s punch. Id. at 174a.8

        The Commonwealth also called Officer William Hamby, a police officer

who arrived to assist Appellant and Carpenter. Id. at 272a. Hamby testified

he did not observe Widdowson punch, kick, spit, or otherwise fight Appellant.

Id. at 277a-78a. Hamby stated that because he felt Widdowson did not pose

a danger to Appellant or others, Appellant’s punch of Widdowson was

unwarranted.      Id. at 279a.      Hamby transported Widdowson to the police



____________________________________________


8 Jones was also arrested, charged, and convicted of public intoxication.
Unlike Widdowson, Jones did not appeal her summary conviction, but the
Commonwealth vacated her conviction and expunged her record.          We
summarize additional portions of the trial testimony, infra.


                                           -4-
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station and testified that other than a faint odor of alcohol, Widdowson did not

appear intoxicated. Id. at 284a.

      Appellant testified in his own defense, reiterating that Widdowson and

Jones were staggering. See, e.g., id. at 407a. Appellant alleged that he

punched Widdowson in self-defense and testified as follows:

      [Appellant’s counsel]. Were you aware at some point that other
      officers had intervened?

      [Appellant]. At some point. I’m not -- I got [Widdowson] down on
      the ground and somebody, I can’t even remember if I knew it was
      [Jones] at the time or not, but somebody came up from behind
      me and I don’t remember if they pushed me, grabbed me or
      whatever they did but they made contact from behind me, and I
      went like that, shoved her away, and as I did that, now Mr.
      Widdowson was facedown on the ground at this point and he
      pushed up with his left arm and was up facing me like that trying
      to get up, and I didn’t have control of him. Someone else had just
      come up behind me and made contact with me and I gave him a
      punch to the face [with Appellant’s right hand, which was his non-
      dominant hand].

Id. at 409a-10a; see also id. at 407a.

      After Appellant rested, the trial court and the parties discussed the

proposed jury instructions. Appellant requested that the court instruct the

jury on justified use of non-deadly force, specifically that Appellant “did not

reasonably believe that it was immediately necessary for him to use force to

protect himself against the unlawful use of force by” Widdowson. Id. at 448a;

see also id. at 446a. The court denied Appellant’s request, reasoning that it

did not recall any testimony that Appellant used force to protect himself from

force being used by Widdowson. R.R. at 448a. Appellant properly preserved


                                     -5-
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his objection. Id. The court elected to charge the jury with, among other

items, use of non-deadly force to prevent escape of an arrested person. Id.

at 449a.    Following the charge, the jury convicted Appellant on March 30,

2017. The court ordered a pre-sentence investigation report.

       At the May 12, 2017 sentencing hearing, the trial court considered,

among many other things, the pre-sentence investigation report, and

sentenced Appellant to an aggregate sentence of seven to twenty-three-and-

one-half months’ imprisonment followed by two years’ probation.              N.T.

Sentencing Hr’g, 5/12/17, at 9, 14. On May 19, 2017, Appellant filed a post-

sentence motion challenging only the excessiveness of his sentence. 9        The

court denied Appellant’s motion three hours later. Appellant timely appealed

and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

       Appellant raises the following issues on appeal:

       1. Did the trial court commit an error of law when it denied
       Appellant’s request to instruct the jury on the justifiable use of
       non-deadly force to prevent Appellant from injury or harm when
       the evidence clearly supported the issuance of such an
       instruction?

       2. Was the evidence sufficient to sustain Appellant’s convictions
       for perjury and false swearing?

       3. Did the lower court abuse its discretion in sentencing Appellant
       to a manifestly excessive sentence of imprisonment where the
       court based its sentence solely on the severity of the offense and

____________________________________________


9 Appellant’s motion did not claim the court erred by not charging the jury
regarding justifiable use of non-deadly force. Appellant first raised the issue
in his Pa.R.A.P. 1925(b) statement.


                                           -6-
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      failed to properly weigh all relevant sentencing factors, including
      Appellant’s military service, lack of criminal history, employment
      history, community service and expressions of remorse?

Appellant’s Brief at 4 (issues reordered to facilitate disposition).

          Jury Charge on Justifiable Use of Non-Deadly Force

      In support of his first issue, Appellant argues that the record established

he punched Widdowson in self-defense. In Appellant’s view, the punch was

justified because it occurred “only after the situation ‘exploded,’ the two men

engaged in a scuffle, and he was either pushed or grabbed from behind . . .

.” Id. at 27. In support, Appellant relies on Commonwealth v. Brown, 421

A.2d 660 (Pa. 1980). In Appellant’s view, Brown stands for the proposition

that such a charge must be given when the record supports it. Appellant’s

Brief at 27-28.

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

Court set forth the following guidelines:

      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


                                      -7-
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      charge does not require reversal unless the [defendant] was
      prejudiced by that refusal.

Sandusky, 77 A.3d at 667 (citation omitted).

      Under the Crimes Code, self-defense falls under the defense of

justification, which is a complete defense to criminal culpability.     See 18

Pa.C.S. § 502. The jury instruction at issue follows:

      If the defendant only used non-deadly force during the incident in
      question, the Commonwealth may prove that this use of force was
      not justified if it can show, beyond a reasonable doubt, any of the
      following elements . . . :

      [a. That the defendant did not reasonably believe that it was
      immediately necessary for [him] [her] to use force to protect
      [himself] [herself] against the unlawful use of force by [name of
      alleged victim]. The Commonwealth must prove either: (i)
      that the defendant did not actually believe [he] [she] was
      in danger of becoming the victim of unlawful force such
      that [he] [she] needed to use force to defend [himself]
      [herself] at the moment [he] [she] used it; or, (ii) that
      while the defendant actually believed [he] [she] needed to
      use such force, [his] [her] belief was unreasonable in light
      of all the circumstances known to [him] [her]. Keep this in
      mind: a person is justified in using force against another not only
      when they are in actual danger of unlawful attack but also when
      they mistakenly, but reasonably, believe that they are. A person
      is entitled to estimate the necessity of the force he or she employs
      under the circumstances as he or she reasonably believes them to
      be at the time. In the heat of conflict, a person who has been
      attacked ordinarily has neither time nor composure to evaluate
      carefully the danger and make nice judgments about exactly how
      much force is needed to protect himself or herself. Consider the
      realities of the situation faced by the defendant here when you
      assess whether the Commonwealth has proved beyond a
      reasonable doubt either that he or she did not believe he or she
      was actually in danger of unlawful force to the extent that he or
      she needed to use such force in self-defense, or that, while he or
      she did believe that, his or her belief was unreasonable. Unlawful
      force means any form of force, including confinement, that is
      employed without the consent of the person against whom it is

                                     -8-
J-A19024-18


      directed where its use would constitute an offense or actionable
      tort.

      [b. That, (i) in the same encounter with [name of alleged victim],
      the defendant engaged in conduct that demonstrated [his] [her]
      intent to use unlawful force against the alleged victim, and, (ii) by
      that conduct, [he] [[[she] proved the use of force against
      [himself] [herself]. Conduct that is not itself the unlawful use of
      force does not constitute the kind of provocation upon which the
      Commonwealth may rely to prove its case. If you find beyond a
      reasonable doubt that it is of such a nature, then you must then
      ask whether it provoked the similar use of force against [him]
      [her]. In this assessment, the conduct by the defendant may be
      the initial provocation of the fight, or it may be an act that
      continues or escalates it. However, even if the defendant was the
      initial aggressor, or who was the person who escalated the
      incident to one involving the use of unlawful force, if [he] [she]
      thereafter withdraws in good faith, making it clear that [his] [her]
      further intentions are peaceable, and the alleged victim pursues
      [him] [her] and renews the fight, [he] [she] does not forfeit [his]
      [her] right to claim justifiable self-defense. If, on the other hand,
      you find beyond a reasonable doubt that the defendant provoked
      the use of force against [himself] [herself] by engaging in conduct
      that showed that [he] [she] intended to cause unlawful force to
      the alleged victim, you may find that [his] [her] conduct was not
      justified]. . . .

      2. Unless the Commonwealth proves one of these two elements,
      the use of non-deadly force by the defendant is justified and you
      must find [him] [her] not guilty of the offense of [offense]. If the
      Commonwealth does prove one of the elements beyond a
      reasonable doubt, the actions of the defendant are not justified.

Pa. Suggested Standard Crim. Jury Instructions 9.501 (emphasis added).

      In Brown, the case cited by Appellant, the trial court instructed the jury

on the defendant’s right to use deadly force in defense of another but refused

to charge the jury on the defendant’s right to act in self-defense. Brown,

421 A.2d at 661. The Brown Court summarized the facts as follows:




                                      -9-
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       On December 24, 1975, [the defendant] shot and killed [the
       victim] at the Jubilee Bar at 16th and Fountain Streets in
       Philadelphia. The day before the shooting, [the defendant] was
       told by his cousin, Estelle Wilson, a barmaid at the Jubilee Bar,
       that her former boyfriend, the victim, had been beating and
       threatening to kill her. On December 24, at approximately 7:50
       a.m., [the defendant] went to the Jubilee Bar to await the victim’s
       arrival. [The victim] arrived between 9:00-9:30 a.m., went
       behind the bar and started by beat up Estelle Wilson. [The
       defendant], noticing that [the victim] had his hand in his pocket,
       pulled him away from Wilson. [The victim] spun around and
       produced a gun. [The defendant and victim] struggled over the
       gun and it fell to the floor. [The defendant] seized the gun and
       shot the victim in a further struggle for possession of the weapon.

Id. at 662. The defendant’s defense was that he was justified to use deadly

force in order to defend himself. Id.

       The Brown Court identified three factors that would support such a

defense:

       First, the actor must have reasonably believed himself to be in
       imminent danger of death or serious bodily harm, and that it was
       necessary to use deadly force against the victim to prevent such
       harm. Second, the actor must have been free from fault in
       provoking or continuing the difficulty which resulted in the slaying.
       Third, the actor must have violated no duty to retreat.

Id. (citations omitted).10      The Brown Court ultimately held that the facts

supported such an instruction and thus remanded for a new trial. Id. at 661-

62.




____________________________________________


10We note that generally, a defendant using only non-deadly force has no
duty to retreat. See Pa. Suggested Standard Crim. Jury Instructions 9.501.


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      Here, Appellant has cited only his testimony that someone came up

behind him and made contact with him. See R.R. at 409a. But it was only

that contact that prompted Appellant to punch the victim. See id. Unlike

Brown, this case involved non-deadly force and Appellant did not refer this

Court to any other evidence justifying a finding of self-defense. Cf. Brown,

421 A.2d at 662.     Appellant did not refer to evidence of Widdowson’s

aggression or any other action that would have prompted Appellant to punch

Widdowson in self-defense.    See R.R. at 409a-10a. Indeed, the proposed

instruction would have asked the jury to consider whether Appellant used

force to protect himself against the unlawful use of force by Widdowson. See

R.R. at 448a. We disagree with Appellant that Brown applies, and thus, we

cannot conclude that the instant trial court abused its discretion by refusing

to instruct the jury on justifiable use of non-deadly force. See Sandusky, 77

A.3d at 667.

        Sufficiency of Evidence for Perjury and False Swearing

      We next examine Appellant’s second issue, which challenges the

sufficiency of evidence for his perjury and false swearing convictions. Before

summarizing Appellant’s arguments, we state the following as background.

The police had recorded an interview with Widdowson, during which he made

a statement regarding his staggering. Appellant cross-examined Widdowson

about that recorded statement as follows:




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     [Appellant’s counsel]. And you acknowledged [in the recorded
     statement] that you were walking up the street, chatting and
     joking and laughing and bumping each other, right?

     [Widdowson]. Potentially there was a little, yes.

     Q. You said you were asked if it would have caused you to sway.

     A. Um-hmm.

     Q. And your response was, no. I mean, it may have caused us to
     sway one or two feet at the most but 15 feet, no, because you’re
     stumbling 15 feet and you’re holding somebody that it’s extremely
     hard to stand up, no, it wasn’t even close. We were pretty much
     on a straight line 90 percent of the way at least. Is that right?

     A. Yeah.

     Q. So you weren’t just walking up the middle of the sidewalk?

     A. Well, I mean, who walks on a dead specific line from one point
     to another? Again, as you have somebody holding your arm,
     you’re going to have occasional accidental bumps of shoulder
     whether you’re drunk or whether you’re a hundred percent sober
     or at any point. There’s a case that that’s going to happen. Again,
     you’re going to deviate a tiny little bit of the pavement in any of
     those circumstances.

R.R. at 258a-59a.

     Appellant also called Carpenter, his then-partner, as a witness.

Carpenter testified that he observed Widdowson and Jones walk as follows:

     On that same sidewalk, on the east side sidewalk, there was a
     couple that had their backs towards us. They were also walking
     north. They were like arm in arm and they were -- the path they
     were taking, they were going back and forth as they walked, first
     shifting to one side and then shifting back to the other side.

                                 *     *      *

     [Commonwealth]. And when you say that they were going from
     one side to the other, what do you mean?

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J-A19024-18



         A. I mean, they weren’t walking in a straight line together. Their
         path was shifting about 2 feet to one side and then they would
         come back to center and go 2 feet to the other side and come
         back to center.

Id. at 361a.

         Carpenter also read into the record the citation he issued Jones:

         [Jones] did appear in public with a strong odor of alcohol on her
         breath. She was weaving side to side approximately 8 feet as she
         walked. She was loud, yelling for officers to arrest her.

Id. at 371a. With respect to his use of the phrase “eight feet,” Carpenter

explained that Widdowson and Jones side by side occupied four feet. Id. at

372a. Carpenter stated that because the couple purportedly shifted two feet

to either side, he meant they weaved a total of eight feet in width. Id.

         Appellant also testified about his testimony at Widdowson’s summary

trial.   In pertinent part, during cross-examination at Appellant’s trial, the

following exchange occurred:

         [Commonwealth]. Is it your testimony here that [Widdowson and
         Jones] were staggering 15 feet side to side?

         [Appellant]. As I recall, I said they were going the width of the
         sidewalk and then I guessed the width to be about 15 feet.

Id. at 430a.

         Appellant raises three arguments challenging the sufficiency of the

evidence.     First, Appellant maintains that the evidence was insufficient to

establish the falsity of his statement that Widdowson and Jones staggered the

width of the fifteen-foot wide sidewalk. Appellant’s Brief at 15. Appellant


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emphasizes that the video surveillance footage only recorded a few seconds

of the victims’ walk.   Id.   He posits that the fact that the video shows

Widdowson and Jones not staggering does not exclude their staggering at

some other time. Id. Appellant cites Carpenter’s testimony, as quoted above,

as support that Widdowson and Jones were staggering. Id. at 16 (citing R.R.

at 361a, 371a). Appellant also refers to Widdowson’s own testimony, which

we quoted above, that Widdowson and Jones may have swayed one to two

feet. Id. at 16-17. Finally, Appellant claims that because Jones’ “testimony

was uncorroborated and much of the evidence presented at trial contradicted

her claim that Widdowson did not stagger prior to his arrest,” Appellant’s

perjury conviction must fall. Id. at 17.

      Second, Appellant contends that the evidence was insufficient to

establish that he knowingly made a false statement. Id. at 17. Appellant

argues that the record establishes his statement reflected an estimate of the

distance that Widdowson staggered. Id. at 18. Because “estimates are by

their very nature susceptible to inaccuracies,” Appellant reasons that the

Commonwealth could not establish that his statement that Widdowson was

staggering “the entire width of the sidewalk,” “was ‘knowingly’ false.” Id. In

support, Appellant cites Commonwealth v. Hawkins, 284 A.2d 730 (Pa.

1971), which we discuss below.

      Third, Appellant argues that even if his statement was knowingly false,

it was not material. Id. at 20. Appellant reasons that because the record


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established that Widdowson was staggering, Appellant’s statement that

Widdowson staggered for around fifteen feet was not material.         Id. at 21.

Appellant identifies what he believes was sufficient circumstantial evidence of

Widdowson’s drunkenness. Id.

      We state the standard of review for a challenge to the sufficiency of

evidence as follows:

      A claim challenging the sufficiency of the evidence presents a
      question of law. We must determine whether the evidence is
      sufficient to prove every element of the crime beyond a
      reasonable doubt. We must view evidence in the light most
      favorable to the Commonwealth as the verdict winner, and accept
      as true all evidence and all reasonable inferences therefrom upon
      which, if believed, the fact finder properly could have based its
      verdict.

Arcelay, 190 A.3d at 617 (citation omitted). We note that the trier of fact is

free to believe all, part, or none of the evidence. Commonwealth v. Harper,

403 A.2d 536, 539 (Pa. 1979).

      The Crimes Code defines the offense of perjury as follows:

      (a) Offense defined.—A person is guilty of perjury, a felony of
      the third degree, if in any official proceeding he makes a false
      statement under oath or equivalent affirmation, or swears or
      affirms the truth of a statement previously made, when the
      statement is material and he does not believe it to be true.

      (b) Materiality.—Falsification is material, regardless of the
      admissibility of the statement under rules of evidence, if it could
      have affected the course or outcome of the proceeding. It is no
      defense that the declarant mistakenly believed the falsification to
      be immaterial. Whether a falsification is material in a given factual
      situation is a question of law.

                                  *     *      *


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     (f) Corroboration.—In any prosecution under this section,
     except under subsection (e) of this section, falsity of a statement
     may not be established by the uncorroborated testimony of a
     single witness.

18 Pa.C.S. § 4902.

     With respect to materiality, in Commonwealth v. Lafferty, 419 A.2d

519 (Pa. Super. 1980), this Court observed:

     Materiality is to be determined as of the time that the false
     statement was made. Furthermore, the test of the materiality of
     a false statement is whether it can influence a fact-finder, not
     whether it does.     The fact that the false testimony was
     unnecessary to accomplish the end in view will not render it
     immaterial.

Id. at 521-22 (citations omitted); accord Commonwealth v. King, 939 A.2d

877, 881-82 (Pa. 2007) (stating, “the false statement need not be material to

the main issue, so long as it has a legitimate tendency to prove or disprove

some fact that is material, irrespective of the main fact at issue” (internal

quotation marks and citation omitted)).

     Lastly, the Pennsylvania Supreme Court has construed subsection (f) as

permitting uncorroborated testimony of a single witness so long as such

testimony is corroborated by circumstantial evidence.       Commonwealth v.

Johnson, 626 A.2d 514, 516 (Pa. 1993); accord In re Miles, 170 A.3d 530,

538 (Pa. Super. 2017).

     The offense of false swearing is defined as follows:

     (a) False swearing in official matters.—A person who makes
     a false statement under oath or equivalent affirmation, or swears
     or affirms the truth of such a statement previously made, when


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      he does not believe the statement to be true is guilty of a
      misdemeanor of the second degree if:

         (1) the falsification occurs in an official proceeding; or . . .

                                   *      *     *

      (c) Perjury provisions applicable.—Section 4902(c) through
      (f) of this title (relating to perjury) applies to this section.

18 Pa.C.S. § 4903.

      With respect to the knowledge element, “it is clear that the state of

defendant’s belief in the falsity can be proved by circumstantial evidence and

by inference drawn from proven facts.” Commonwealth v. Weitkamp, 386

A.2d 1014, 1029 (Pa. Super. 1978) (internal quotation marks and citations

omitted).

      In Hawkins, a witness testified at the preliminary hearing that the

distance between the defendant and the victim was eighteen inches.

Hawkins, 284 A.2d at 731. But the witness later testified at trial that the

decedent was “maybe 6 feet” away from the defendant.              Id.   At a post-

conviction relief hearing, the defendant claimed that he was convicted because

the witness perjured herself. Id. The Hawkins Court held that the defendant

failed to establish perjury because “the [post conviction relief act] judge could

properly find that the [witness’s] statement at trial was honestly given and

not willfully and corruptly false.” Id.

      Here, we have reviewed the record and construed the facts and all

reasonable inferences therefrom in the Commonwealth’s favor. See Arcelay,


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190 A.3d at 617.     Appellant’s first argument does not acknowledge the

testimony of both Widdowson and Jones denying that they were staggering.

See, e.g., R.R. at 179a, 215a-16a.           Each person’s testimony thus

corroborated the other’s testimony. See 18 Pa.C.S. § 4902(f). We add that

the jury was well aware that the video surveillance footage, which

corroborated the victim’s version of events, was limited to several seconds.

See R.R. at 157a, 206a; see also Johnson, 626 A.2d at 516 (holding single

witness’s testimony may be corroborated by circumstantial evidence). With

respect to Carpenter’s testimony, which Appellant cites in support and which

we quoted above, Carpenter did not testify that Widdowson and Jones were

staggering fifteen feet, or the entire width of the sidewalk. See R.R. at 361a.

In fact, Carpenter testified that they weaved eight feet at most. See id. To

the extent that the testimony of Carpenter or Appellant, however, actually

conflicted with Widdowson’s recorded statement or the testimony of

Widdowson and Jones, it was well within the jury’s purview to disbelieve any

such testimony. See Harper, 403 A.2d at 539.

      Second, it was for the jury to determine whether Appellant knew his

statement was false, based on the record and its evaluation of the witnesses’

credibility. See Weitkamp, 386 A.2d at 1029; see also Harper, 403 A.2d

at 539. The jury heard Appellant read his sworn testimony at Widdowson’s

summary trial into the record.    See R.R. at 112a-15a (asserting that the

defendants were staggering the entire width of the sidewalk, which “has got


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to be 15 feet wide”). The jury then heard Appellant testify at trial that his

summary trial testimony was a “guess.”      See id. at 430a.    Like the post-

conviction relief act judge in Hawkins, it was for the jury to consider the

evidence and all reasonable inferences therefrom as to whether Appellant was

merely guessing at Widdowson’s trial or was knowingly making a false

statement under oath. See Hawkins, 284 A.2d at 731; Weitkamp, 386 A.2d

at 1029.   The jury considered the evidence and found that Appellant’s

statement was a deliberate falsehood and not an estimate.

     Finally, with respect to materiality, Appellant was a police officer

testifying as to his basis for arresting and charging Widdowson with public

intoxication. Appellant testified that Widdowson staggered the width of the

entire sidewalk, a span of approximately fifteen feet. Appellant’s statement

had a legitimate tendency to prove a fact corroborating Widdowson’s alleged

intoxication. See King, 939 A.2d at 881-82; Lafferty, 419 A.2d a 521-22.

Therefore, the statement could have influenced the judge to convict

Widdowson of public intoxication. See King, 939 A.2d at 881-82; Lafferty,

419 A.2d a 521-22. Accordingly, having viewed the record in the light most

favorable to the Commonwealth, we conclude Appellant’s sufficiency challenge

lacks merit. See Arcelay, 190 A.3d at 617.

           Discretionary Challenge to Appellant’s Sentence

     Initially, Appellant challenges the discretionary aspects of his sentence,

an issue that is not appealable as of right. See Commonwealth v. Colon,


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102 A.3d 1033, 1042 (Pa. Super. 2014). Instead, this Court has set forth an

analytical framework under which we determine whether we may exercise our

discretion to hear such an appeal. Under that framework, we 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 [regarding the
     sentence’s impropriety 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.

Id. at 1042-43 (citation omitted). The determination of whether there is a

substantial question “is made on a case-by-case basis, and 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.” Commonwealth v. Sierra, 752 A.2d

910, 912-13 (Pa. Super. 2000) (internal quotation marks and citation

omitted).   “[A]rguments that the sentencing court failed to consider the

factors proffered in 42 Pa.C.S. § 9721 does present a substantial question

whereas a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”

Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013).

     Here, Appellant has timely appealed, preserved the issue in a post-

sentence motion, and included a Pa.R.A.P. 2119(f) statement. See Colon,

102 A.3d at 1042-43. Appellant’s Rule 2119(f) statement asserted that the

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trial court erred by relying “solely on the seriousness of [A]ppellant’s crime

and its impact [on] the community in imposing an unduly harsh sentence

without consideration for his lack of criminal history, rehabilitative potential

and exemplary community service.”              Appellant’s Brief at 29.11   Because

Appellant’s statement is that the court failed to consider all of the section 9721

factors, he has raised a substantial question. See Dodge, 77 A.3d at 1272

n.8; Sierra, 752 A.2d at 912-13. We therefore address the substantive merits

of Appellant’s claim.

       Appellant argues that his aggregate sentence was excessive because his

convictions called for a sentence of restorative sanctions. Appellant’s Brief at

30. He maintains that the court improperly focused only on the seriousness

of his crimes “and his abuse of power as a police officer, while ignoring

substantial evidence that would have supported the imposition of a mitigated

sentence.”     Id.   Because the court allegedly failed to address Appellant’s

potential for rehabilitation, Appellant argues the court could not adequately

explain how its sentence complied with the sentencing code. Id. at 30-31.

       Our standard of review is as follows:



____________________________________________


11 Appellant’s Rule 2119(f) statement, however, does not state what the
guideline sentence ranges were for each of his convictions, and the specific
sentences he received for each of those counts. See Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (requiring that the Rule
2119(f) statement specify where the sentence falls in relation to the
sentencing guidelines).


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J-A19024-18


     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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation

omitted).

     In determining whether a sentence is manifestly excessive, the
     appellate court must give great weight to the sentencing court’s
     discretion, as he or she is in the best position to measure factors
     such as the nature of the crime, the defendant’s character, and
     the defendant’s display of remorse, defiance, or indifference.

Colon, 102 A.3d at 1044 (citation omitted).

     Additionally, our review of the discretionary aspects of a sentence is

confined by 42 Pa.C.S. §§ 9781(c) and (d):

     (c) Determination on appeal.—The appellate court shall vacate
     the sentence and remand the case to the sentencing court with
     instructions if it finds:

        (1) the sentencing court purported to sentence within the
        sentencing guidelines but applied the guidelines erroneously;

        (2) the sentencing court sentenced within the sentencing
        guidelines but the case involves circumstances where the
        application of the guidelines would be clearly unreasonable; or

        (3) the sentencing court sentenced outside the sentencing
        guidelines and the sentence is unreasonable.

     In all other cases the appellate court shall affirm the sentence
     imposed by the sentencing court.

     (d) Review of record.—In reviewing the record the appellate
     court shall have regard for:

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J-A19024-18



         (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.

         (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(c)-(d).

      Furthermore,

      the 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. § 9721(b).       The court shall not impose a sentence of total

confinement without “regard to the nature and circumstances of the crime and

the history, character, and condition of the defendant.” 42 Pa.C.S. § 9725.

Finally, when the sentencing court has had the benefit of a pre-sentence

investigation report, we presume the court was fully apprised of all mitigating

information contained therein. See Commonwealth v. Devers, 546 A.2d

12, 18 (Pa. 1988); Commonwealth v. Johnson, 125 A.3d 822, 827 (Pa.

Super. 2015).




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       Here, the court sentenced Appellant to a sentence within the standard

range of the sentencing guidelines.12          In sentencing Appellant, the court

acknowledged reviewing the pre-sentence investigation report, the sentencing

guidelines, and Appellant’s history, and extensively discussed the nature and

circumstances of Appellant’s offenses. See N.T. Sentencing Hr’g, 5/12/17, at

9-13. Based on the aforementioned law, we cannot conclude that the trial

court abused its discretion by allegedly disregarding mitigating factors and

imposing a standard-range guideline sentence. See Devers, 546 A.2d at 18;

Zirkle, 107 A.3d at 132; Colon, 102 A.3d at 1042.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018




____________________________________________


12The parties do not dispute this.                 See Appellant’s Brief at 30 n.7;
Commonwealth’s Brief at 14.


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