J-S20021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES F. BENNETT

                            Appellant                 No. 1087 WDA 2015


          Appeal from the Judgment of Sentence Entered May 9, 2014
                  In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000324-2013


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED MARCH 7, 2016

        Appellant, Charles F. Bennett, appeals from the judgment of sentence

entered on May 9, 2014. We affirm.

        The trial court ably summarized the underlying facts of this case.

          Appellant was convicted after a jury trial on March 10 and
          11, 2014, of aggravated assault, unlawful restraint, and
          theft by unlawful taking.[1]

          The aggravated assault charge arose on November 24[,
          2012. That night,] Appellant arrived at [the home of his ex-
          girlfriend (hereinafter “the victim”)], ostensibly to repay
          monies he owed her. Appellant was dropped off at the
          victim’s house and told the victim his ride would return in
          about a half an hour. Appellant and the victim began to use
          cocaine and drink beer. The victim became concerned for
          her safety as Appellant’s friend was not coming back to pick
          him up. She could not find her cell phone in the kitchen
____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1), 2902(a)(1), and 3921(a), respectively.



*Retired Senior Judge assigned to the Superior Court.
J-S20021-16


       where she normally kept it. As a precautionary measure,
       the victim put a knife in her pocket.

       As the evening wore on, the victim told Appellant to leave
       as she had to work the next morning. Appellant asked the
       victim to give him a ride home but the victim refused.
       Appellant refused to leave despite numerous requests by
       the victim.

       The victim picked up a baseball bat she kept near her front
       door.    Appellant and the victim began arguing.         The
       argument escalated into a physical confrontation when
       Appellant wrested the bat away from the victim, punched
       her in the face with a closed fist[,] and twice choked her to
       the point of unconsciousness. Appellant took the knife away
       from the victim[’s hand,] injuring her thumb. The punch to
       the victim’s face knocked her out and fractured her eye
       socket and nose, causing nerve damage to her nose. The
       victim described severe head trauma, bruises on her chest,
       arms, legs, inner thighs, outer thighs, knee, hand[,] and
       toe.

       . . . At some point, the parties went upstairs to the victim’s
       bedroom. Appellant left the victim’s bedroom to use the
       victim’s bathroom. The victim locked her bedroom door.
       The victim attempted to escape from her home by climbing
       out her bedroom window. When Appellant returned to the
       bedroom and found the door locked, he kicked her bedroom
       door open. Appellant saw the victim attempting to escape
       via the bedroom window and pulled her back into the
       bedroom before she could escape.

       The charge of unlawful restraint arose when Appellant
       pulled her back into the bedroom, tied the victim’s hands
       behind her back, forced her naked into a closet[,] and
       blocked the closet door with a dresser for more than [24]
       hours. At one point, the victim asked Appellant to let her
       out of the closet so she could use the bathroom.

       On Monday morning, after she heard Appellant drive away
       in her vehicle, the victim was able to push open the closet
       door and call the police.




                                   -2-
J-S20021-16


       When the police arrived at her home, the responding
       officers immediately called for a priority one ambulance due
       to the severity of the victim’s visible injuries to her right eye
       and nose, swelling, bruising[,] and bleeding.

       The charge of theft by unlawful taking arose when Appellant
       took the victim’s car keys and drove away in her 1999
       Chevrolet Malibu without her permission early Monday
       morning.   The victim reported her car was stolen by
       Appellant.

       The next day, on Tuesday, the victim filed a protection from
       abuse [(hereinafter “PFA”)] petition against Appellant. In
       order to serve the [PFA] petition, the victim needed
       Appellant’s address where he could be served. After driving
       around in the area of Appellant’s parents’ homes in order to
       ascertain an address for Appellant, the victim found her car
       parked . . . in the area of Appellant’s father’s house. The
       victim notified the police she had found her vehicle.

       Thereafter, Appellant was arrested. A jury trial was held
       March 10 and 11, 2014. Appellant chose to represent
       himself. Appointed counsel[, Attorney Kevin M. Kallenbach
       (hereinafter “Attorney Kallenbach”)] remained as standby
       counsel. The jury returned verdicts of guilty on aggravated
       assault, unlawful restraint[,] and theft by unlawful taking.
       Appellant was found not guilty of rape and involuntary
       deviate sexual intercourse.

       At the time of these offenses, Appellant was on state
       supervision for prior convictions. On May 9, 2014,
       Appellant was sentenced in the standard range of the
       sentencing guidelines as follows:

          Count 1: aggravated assault: 72 to 144 months of
          incarceration;

          Count 3: unlawful restraint: 16 to 32 months of
          incarceration[,] consecutive to Count 1 . . . ; and[,]

          Count 4: theft by unlawful taking: 18 to 36 months of
          incarceration[,] consecutive to count 3. . . .




                                     -3-
J-S20021-16



Trial Court Opinion, 12/9/14, at 1-4 (internal citations and footnote omitted)

(some internal capitalization omitted).

      Further, during the May 9, 2014 sentencing hearing, Appellant chose

to have Attorney Kallenbach fully represent him. N.T. Sentencing Hearing,

5/9/14, at 6-7 (Attorney Kallenbach informed the trial court “I met with

[Appellant] after the verdict.     He has affirmed his request to have

representation reinstated;” and, after the trial court asked Appellant whether

Attorney Kallenbach’s statement was correct, Appellant replied “Yes, it is,

Your Honor”).

      On May 12, 2014, Appellant submitted a pro se post-sentence motion

to the trial court.    In accordance with Pennsylvania Rule of Criminal

Procedure 576(A)(4), the clerk of courts forwarded the document to both the

Commonwealth and Attorney Kallenbach. Attorney Kallenbach then filed an

untimely post-sentence motion on May 21, 2014, wherein Attorney

Kallenbach contended that the trial court abused its discretion when it

sentenced Appellant.   Specifically, Attorney Kallenbach contended that the

trial court abused its discretion by: “setting each sentence at the top end of

the standard range and [running them] consecutively [to one another]” and

failing to “factor in and account for the additional anticipated revocation

proceeding such that the overall sentence of [Appellant] will subject him to

an excessive length of incarceration considering the nature of [Appellant’s]

background and nature of the offense.”          Appellant’s Counseled Post-

Sentence Motion, 5/21/14, at 1.

                                     -4-
J-S20021-16



       On May 23, 2014, the trial court entered an order denying Appellant’s

post-sentence motion. Trial Court Order, 5/23/14, at 1.

       Following the reinstatement of Appellant’s direct appellate rights,

Appellant filed a timely notice of appeal.       Appellant raises the following

claims on appeal:2
____________________________________________


2
  The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Trial Court Order, 7/17/15, at 1. Appellant complied
with the trial court’s order and, within his Rule 1925(b) statement, Appellant
raised the following claims:

         [1.] [Appellant] avers that his sentences were manifestly
         excessive and clearly unreasonable, especially in their
         consecutiveness, and considering that a revocation sentence
         was also taking place, in that the court failed to take into
         account the fact that the cumulative sentences imposed
         would subject him to an excessive length of incarceration
         considering [Appellant’s] background and the nature of his
         offense.

         [2.] [Appellant] avers that the trial court erred in failing to
         charge the jury with requested instructions on self-defense,
         duty to retreat, and a lesser included offense of simple
         assault and by permitting the charge to include the use of
         deadly force.

         [3.] [Appellant] avers that the trial court erred in allowing
         the Commonwealth’s attorney to make comments that
         [Appellant] “always wanted to be in control” and that
         [Appellant] did not contact police, as these comments were
         prejudicial and amounted to prosecutorial misconduct.

         [4.] [Appellant] avers that the evidence presented in this
         case by the Commonwealth was insufficient to sustain the
         charges for which he was convicted, as follows:

(Footnote Continued Next Page)


                                           -5-
J-S20021-16



         [1.] The evidence in this case was insufficient to prove that
         [Appellant] committed the crime of aggravated assault, as
         the Commonwealth did not prove serious bodily injury
         sustained by the victim[.]

         [2.] The evidence in this case was insufficient to prove that
         [Appellant] committed the crime of unlawful restraint, as
         the evidence failed to demonstrate that the victim [was]
         exposed to the risk of serious bodily injury[.]

         [3.] The evidence in this case was insufficient to sustain the
         [verdict] of theft by unlawful taking as the Commonwealth
         failed to prove that [Appellant’s intention] was to deprive
         the victim of the use of the vehicle when he borrowed the
         vehicle[.]

         [4.] The court erred in failing to charge the jury with the
         requested instructions on self-defense, “no duty to
         retreat[,]” and the lesser included offense of simple
         assault[.]

         [5.] The sentences imposed in this case were manifestly
         excessive and clearly unreasonable, especially in their
         consecutiveness, and considering that a revocation sentence
         was also taking place, the court failed to take into account
         the fact that the cumulative sentences imposed would
         subject [Appellant] to an excessive length of incarceration

                       _______________________
(Footnote Continued)

             a. Unlawful Restraint – the Commonwealth failed to
             prove that the victim was exposed to the risk of serious
             bodily injury and that [she] was unable to leave the
             closet without assistance[;]

             b. Theft by Unlawful Taking (automobile) – the
             Commonwealth failed to prove [Appellant’s] intention to
             deprive the victim of the use of the automobile, as he
             was merely borrowing the vehicle and the vehicle was
             recovered at the [Appellant’s] father’s address.

Appellant’s Rule 1925(b) Statement, 8/4/15, at 1-2.



                                            -6-
J-S20021-16


        considering [Appellant’s] background and the nature of his
        offense.

Appellant’s   Brief    at     2-3   (internal   bolding     omitted)   (some     internal

capitalization omitted).

      Appellant’s     first   three   claims    challenge    the   sufficiency   of   the

Commonwealth’s evidence.              We review Appellant’s sufficiency of the

evidence challenges under the following standard:

        The standard we apply in reviewing the sufficiency of the
        evidence 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 [that of] 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 trier 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806

(Pa. Super. 2008).




                                          -7-
J-S20021-16



      Appellant first claims that the evidence was insufficient to support his

aggravated assault conviction. This claim is waived, as Appellant failed to

include the claim in his court-ordered Rule 1925(b) statement.       Pa.R.A.P.

1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b) s]tatement . . .

are waived”).

      Next, Appellant claims that the evidence was insufficient to support his

unlawful restraint conviction.   According to Appellant, the Commonwealth

failed to prove that the victim was exposed to the risk of serious bodily

injury. Appellant’s Brief at 13. This claim fails.

      Appellant was convicted of unlawful restraint under 18 Pa.C.S.A.

§ 2902(a)(1). In relevant part, Section 2902(a)(1) declares:

        (a) Offense defined.-- . . . a person commits a
        misdemeanor of the first degree if he knowingly:        (1)
        restrains another unlawfully in circumstances exposing him
        to risk of serious bodily injury.

18 Pa.C.S.A. § 2902(a)(1). The Crimes Code defines “serious bodily injury”

as “[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S.A. § 2301.

      Within Appellant’s brief, Appellant argues that the evidence was

insufficient to support his unlawful restraint conviction because:

        [Appellant’s] testimony indicated that he did not restrain
        [the victim] in any way. She voluntarily invited him into her
        house, and according to testimony of a witness, was
        actually “jumping” on [Appellant]. Again, [the victim] did
        not recall some of her actions that night, but [Appellant]


                                      -8-
J-S20021-16


         indicated that as she was attacking him, he was able to
         grab her wrists to pull her down, out of self[-]defense.
         Thus, the evidence does not support [the crime of unlawful
         restraint,] in terms of [Appellant] knowingly committing this
         offense.

Appellant’s Brief at 14.

       As can be seen from the above, Appellant’s claim on appeal is merely a

challenge    to   the   factfinder’s    credibility   determinations.   Specifically,

Appellant claims that the jury should have believed his version of the events

and disbelieved the testimony of the victim.            Therefore, properly viewed,

Appellant’s sufficiency of the evidence claim is actually a challenge to the

weight of the evidence – and the claim thus automatically fails, as Appellant

neither properly preserved nor properly raised a weight of the evidence

claim in this appeal. See Commonwealth v. Widmer, 744 A.2d 745, 751-

752 (Pa. 2000) (explaining the difference between a sufficiency of the

evidence claim and a weight of the evidence claim); Commonwealth ex

rel. Robinson v. Robinson, 478 A.2d 800, 804 (Pa. 1984) (“the burden is

on the appellant, and not the appellate court, to demonstrate” error).3
____________________________________________


3
   Further, even if Appellant properly argued that the evidence was
insufficient to support his unlawful restraint conviction, the claim would still
fail because the evidence was sufficient to establish that Appellant knowingly
“restrain[ed the victim] unlawfully in circumstances exposing [her] to risk of
serious bodily injury.” 18 Pa.C.S.A. § 2902(a)(1). To be sure, viewing the
evidence in the light most favorable to the Commonwealth, the evidence
establishes that:     Appellant twice choked the victim so that she fell
unconscious; Appellant beat the victim so badly that she suffered a fractured
nose, a fractured eye socket, and severe head trauma; and, instead of
obtaining medical aid for the badly wounded victim, Appellant forced the
victim to take off her clothes, tied the victim’s hands together, and
(Footnote Continued Next Page)


                                           -9-
J-S20021-16



      Third, Appellant claims that the evidence was insufficient to support

his theft by unlawful taking conviction because “the Commonwealth failed to

prove that [Appellant’s intent] was to deprive the victim of the use of the

vehicle when he borrowed the vehicle.” Appellant’s Brief at 14. This claim is

meritless.

      18 Pa.C.S.A. § 3921(a) declares:              “[a] person is guilty of theft if he

unlawfully takes, or exercises unlawful control over, movable property of

another with intent to deprive him thereof.”             18 Pa.C.S.A. § 3921(a).     On

appeal, Appellant claims that the evidence was insufficient to support his

Section 3921(a) conviction because “[Appellant] had no motive to take the

vehicle, and he testified that [the victim] let him take the vehicle and he

then let her know where it was located, near his father’s house, and then

she retrieved the vehicle.”           Appellant’s Brief at 15.       Again, Appellant’s

challenge is to the weight of the evidence – not to the sufficiency. Widmer,

744 A.2d at 751-752. Appellant’s claim thus necessarily fails. Robinson,

478 A.2d at 804.4
                       _______________________
(Footnote Continued)

barricaded the victim in a closet – where she stayed until she was able to
escape 24 hours later. N.T. Trial, 3/10/14, at 52-62, 126-127, 152-156 and
164-165. The evidence thus establishes that Appellant restrained the victim
against her will, in circumstances that – because of her severe head injuries
– exposed her to death or permanent brain injury. The evidence is thus
sufficient to establish that Appellant committed the crime of unlawful
restraint. 18 Pa.C.S.A. § 2902(a)(1).
4
  Moreover, even if Appellant had properly argued a sufficiency of the
evidence claim, the claim would have failed because the victim testified that
(Footnote Continued Next Page)


                                           - 10 -
J-S20021-16



      Fourth, Appellant claims that the trial court erred “in failing to charge

the jury with the requested instructions on self-defense, “no duty to

retreat[,]” and the lesser included offense of simple assault[.]” Appellant’s

Brief at 15. We note that, within the argument section of Appellant’s brief,

Appellant has not claimed that the trial court erred when it failed to provide

the jury with a “no duty to retreat” instruction. Appellant’s Brief at 15-17.

Therefore, the claim is waived. Green v. Green, 69 A.3d 282, 285 n.3 (Pa.

Super. 2013) (“[w]here an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived”) (internal

citations and quotations omitted).

      With respect to Appellant’s remaining challenges to the trial court’s

jury instructions, we conclude: 1) Appellant’s claim that the trial court failed

to provide the jury with a “self-defense” instruction fails because the trial

court, in fact, charged the jury on “self-defense,” N.T. Trial, 3/11/14, at

166-169; and, 2) Appellant’s claim that the trial court failed to charge the

jury with “the lesser included offense of simple assault” is waived because

Appellant did not object to the trial court’s jury charge and Appellant did not
                       _______________________
(Footnote Continued)

Appellant severely beat her, barricaded her in a closet, took her vehicle
without her valid permission, did not inform her where he was taking the
vehicle or what he was going to do with the vehicle, and did not return the
vehicle. N.T. Trial, 3/10/14, at 62-65. The evidence is, therefore, sufficient
to establish that Appellant committed the crime of theft by unlawful taking.
18 Pa.C.S.A. § 3921(a).



                                           - 11 -
J-S20021-16



request a lesser-included offense jury instruction, id. at 22-34 and 175-177;

see also Pa.R.Crim.P. 647(B) (effective until October 1, 2015) (“[n]o

portions of the charge nor omissions from the charge may be assigned as

error, unless specific objections are made thereto before the jury retires to

deliberate”); Pa.R.A.P. 302(b) (“[a] general exception to the charge to the

jury will not preserve an issue for appeal. Specific exception shall be taken

to the language or omission complained of”).

      Appellant’s final claim on appeal is a challenge to the discretionary

aspects of his sentence.    “[S]entencing is a matter vested in the sound

discretion of the sentencing judge, whose judgment will not be disturbed

absent an abuse of discretion.”      Commonwealth v. Ritchey, 779 A.2d

1183, 1185 (Pa. Super. 2001).        Moreover, pursuant to statute, Appellant

does not have an automatic right to appeal the discretionary aspects of his

sentence.   See 42 Pa.C.S.A. § 9781(b).       Instead, Appellant must petition

this Court for permission to appeal the discretionary aspects of his sentence.

Id.

      As this Court has explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief
        has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
        is a substantial question that the sentence appealed from is
        not appropriate under the Sentencing Code, [42 Pa.C.S.A.]
        § 9781(b).


                                     - 12 -
J-S20021-16



Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

       In the case at bar, Appellant failed to file a timely post-sentence

motion.    As such, Appellant’s challenge to the discretionary aspects of his

sentence is waived.5         Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) (“[i]ssues not

raised in the lower court are waived and cannot be raised for the first time

on appeal”).
____________________________________________


5
  As noted above, following Appellant’s convictions, Appellant chose to have
counsel represent him. N.T. Sentencing Hearing, 5/9/14, at 6-7. Appellant
was then sentenced on May 9, 2014. Id. On May 12, 2014 – or, while
Appellant was actively represented by counsel – Appellant filed a pro se
post-sentence motion. Under our precedent, this filing constitutes a “legal
nullity.” See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super.
2007) (holding that a represented defendant’s pro se post-sentence motion
“was a nullity, having no legal effect”); Commonwealth v. Ali, 10 A.3d
282, 293 (Pa. 2010) (“appellant was represented by counsel on appeal, so
his pro se Rule 1925(b) statement was a legal nullity”); Commonwealth v.
Tedford, 960 A.2d 1, 10 n.4 (Pa. 2008) (“a criminal defendant currently
represented by counsel is not entitled to ‘hybrid representation’ – i.e., he
cannot litigate certain issues pro se while counsel forwards other claims”);
but see Commonwealth v. Leatherby, 116 A.3d 73, 78-79 (Pa. Super.
2015) (holding that where the defendant “was effectively abandoned by
counsel and the trial court failed to timely appoint new counsel, [the
defendant’s] pro se filing [did] not offend considerations of hybrid
representation”) (emphasis omitted).      Further, Appellant’s pro se post-
sentence motion did not challenge the discretionary aspects of his sentence.
See Appellant’s Pro Se “Motion in Arrest of Judgment and Motion for a New
Trial,” 5/12/14, at 1-15.

We note that, on Wednesday, May 21, 2014, Appellant’s attorney filed an
untimely post-sentence motion and claimed that the trial court abused its
discretion when it sentenced Appellant.          Appellant’s Counseled Post-
Sentence Motion, 5/21/14, at 1. However, this post-sentence motion was
untimely and, therefore, did not preserve Appellant’s discretionary aspects of
sentencing challenge. See Pa.R.Crim.P. 720(A)(1) (“a written post-sentence
motion shall be filed no later than 10 days after imposition of sentence”).



                                          - 13 -
J-S20021-16



      Further, even if Appellant’s discretionary aspects of sentencing claim

were not waived, we would conclude that the claim does not raise a

substantial question that Appellant’s sentence is inappropriate under the

Sentencing Code.    Indeed, Appellant’s discretionary aspects of sentencing

claim is simply a “bald claim of excessiveness due to the consecutive nature

of [Appellant’s] sentence.” Commonwealth v. Dodge, 77 A.3d 1263, 1270

(Pa. Super. 2013) (“a bald claim of excessiveness due to the consecutive

nature of a sentence will not raise a substantial question”).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2016




                                    - 14 -
