J-S60039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SIDNEY NATHAN MICHAELS                     :
                                               :
                       Appellant               :   No. 223 MDA 2019

       Appeal from the Judgment of Sentence Entered December 21, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0002913-2017


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED NOVEMBER 26, 2019

        Sidney Nathan Michaels (Michaels) appeals from the judgment of

sentence imposed in the Court of Common Pleas of Dauphin County (trial

court) after his jury conviction1 of Murder of the Second Degree, Robbery, and

Conspiracy.2 We affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The jury found Michaels not guilty of murder in the first degree, 18 Pa.C.S.
§ 2502(a), and Carrying a Firearm Without a License, 18 Pa.C.S. § 6106(a)(1).

2   18 Pa.C.S. § 2502(b), 3701(a)(1)(i), and 903(a), respectively.
J-S60039-19


                                               I.

       We take the following factual background and procedural history from

the trial court’s May 8, 2019 opinion and our independent review of the

certified record. On April 27, 2017, the Commonwealth arrested and charged

Michaels for the April 25, 2017 murder and robbery of the victim, Kodi

Flanagan.      At trial, the Commonwealth presented testimony from four

witnesses, co-defendant Sadia Bretznepe, Saeed Christiaan Afshar, Stephen

Wentze, and co-defendant Dylan Beard.3

       Mr. Flanagan was a drug-dealer who owed Michaels money. (See N.T.

Trial, 12/10-12/18, at 185). Mr. Beard had set up Mr. Flanagan with a drug

supplier so he could sell marijuana, but Mr. Flanagan failed to pay for the

drugs that were fronted to him. (See id. at 183). Mr. Beard and Michaels

decided to confront Mr. Flanagan about these issues approximately one week

before he was killed. (See id. at 186).

       In April 2017, Michaels and Mr. Beard contacted Ms. Bretznepe, a long-

time friend of Mr. Flanagan’s, to get her assistance in arranging a meeting

with him under the guise of a drug deal because they knew he would not trust

them if they attempted to do so. (See id. at 186-87). Michaels contacted


____________________________________________


3 Ms. Bretznepe pleaded guilty in connection with the robbery and murder of
Mr. Flanagan in exchange for a sentence of not less than five nor more than
twelve years’ incarceration. Mr. Beard entered a guilty plea for the murder,
robbery, and conspiracy to commit robbery, and received an agreed-upon
sentence of forty years’ incarceration.


                                           -2-
J-S60039-19


Ms. Bretznepe on Snapchat to see if she knew how to reach Mr. Flanagan.

(See id. at 42). She indicated she did not, but two days later, Michaels again

contacted her and offered to pay her for any information she had about how

to locate Mr. Flanagan because he owed Michaels and Mr. Beard money. (See

id. at 42-43). After Ms. Bretznepe explained she did not know how to contact

Mr. Flanagan and was not interested in Michaels’ money, Michaels did not

make any further effort to contact her. However, the next day (the day of the

murder), Ms. Bretznepe engaged in a video chat with Mr. Beard; during which

Michaels was in the background directing Mr. Beard to tell Ms. Bretznepe the

specific details of location and time for the drug deal with Mr. Flanagan. (See

id. at 45-48).

      Mr. Afshar was friends with Mr. Beard and met Michaels through him the

day before the shooting. (See id. at 79, 81). That day, Mr. Beard advised

Mr. Afshar that Mr. Flanagan owed him money, and that he and Michaels

intended to find him to get it back. (See id. at 84-85).

      The next day (the day of the incident), Mr. Afshar agreed to serve as

their protection in this plan. (See id. at 85-86). He picked up Michaels and

Mr. Beard from each of their residences and the men drove around until Mr.

Afshar dropped them off near Mr. Beard’s home at approximately 4:00 p.m.

(See id. at 88-90, 98). During a series of texts messages with Mr. Beard

shortly thereafter, Mr. Afshar discovered that Michaels planned to bring a gun

to the meeting with Mr. Flanagan. (See id. at 107-08). However, Mr. Beard


                                     -3-
J-S60039-19


did not think that the gun would be used because the plan was to ambush Mr.

Flanagan, attack him, and take all of the items in his possession, not shoot

him. (See id. at 195-96).

      Later that evening, Mr. Afshar met Mr. Beard and Michaels near the

agreed-upon location. (See id. at 114, 116). Mr. Afshar walked around on

his own looking for Mr. Flanagan before he observed Mr. Beard and Michaels

approach Mr. Flanagan’s vehicle, Mr. Beard pull him out, and Mr. Flanagan

attempt to run away. (See id. at 118-19, 203). When Mr. Beard punched

Mr. Flanagan in the back of the head to keep him from escaping, Mr. Afshar

and Mr. Beard witnessed Michaels shoot Mr. Flanagan twice from the driver’s

side of the vehicle, before then assaulting him and going through his pockets.

(See id. at 120, 204-05).      Mr. Beard also went through Mr. Flanagan’s

pockets. (See id. at 123). Mr. Beard then ran away and Michaels left the

scene with Mr. Afshar in his vehicle.   (See id. at 123-24, 204-05).      After

dropping Michaels off, Mr. Afshar called 911 to report the shooting. (See id.

at 129-31). Michaels and Mr. Beard later called Mr. Wentze for a ride and

Michaels advised him that Mr. Flanagan had been shot and might be dead.

(See id. at 171-72).

      Video surveillance of a portion of the scene showed a person in light-

colored khaki pants like those worn by Michaels approach the driver’s side of

Mr. Flanagan’s vehicle. (See id. at 209-10). An individual dressed in all black




                                     -4-
J-S60039-19


was near him. (See id. at 210). Mr. Beard identified the men as Michaels

and Mr. Afshar, respectively. (See id. at 209-10).

        At the conclusion of trial, the jury convicted Michaels of the previously

mentioned charges. On December 21, 2018, the trial court sentenced him to

a mandatory term of life imprisonment without the possibility of parole.4

Michaels filed post-sentence motions challenging his sentence and the weight

and sufficiency of the evidence to support his conviction, which the trial court

denied. Michaels timely appealed and he and the court complied with Rule

1925. See Pa.R.A.P. 1925.

                                               II.

                                               A.

        Michaels first contends that a mandatory sentence of life without the

possibility of parole violates the United States and Pennsylvania Constitutions’

proscription against cruel and unusual punishment.5 In essence, he maintains


____________________________________________


4   Pursuant to Section 1102(b) of the Crimes Code:

        Second Degree. Except as provided under section 1102.1, a
        person who has been convicted of murder of the second degree,
        of second degree murder of an unborn child or of second degree
        murder of a law enforcement officer shall be sentenced to a term
        of life imprisonment.

18 Pa.C.S. § 1102(b) (emphasis added).

5   See U.S. Const. amend. VIII; Pa. Const., Art. I, § 13.




                                           -5-
J-S60039-19


that   the   trial   court’s lack of      discretion   in   his   case   resulted in a

“disproportionate, excessive” sentence.6 (Michaels’ Brief, at 30; see id. at

13-30).

       However, in Commonwealth v. Cornish, 370 A.2d 291 (Pa. 1977), our

Supreme Court rejected a nearly identical argument as the one presented

here, holding:

       Under the present statutory scheme, the mandatory sentence is
       imposed only in cases of murder of the second degree, or felony
       murder. It can hardly be said that the circumstances wherein a
       murder is committed during the commission of a felony vary to
       such an extent that the legislative determination to mandate one
       penalty is unreasonable.

Cornish, supra at 293 n.4.

       Based on this precedent, Michaels’ claim that his mandatory sentence

was illegal because it constituted cruel and unusual punishment and is

disproportionate to the facts presented lacks merit.7




____________________________________________


6 Because Michaels’ constitutional claim raises a pure question of law, our
standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Omar, 981 A.2d 179, 185 (Pa. 2009); Commonwealth
v. Henkel, 938 A.2d 433, 446 n.14 (Pa. Super. 2007), appeal denied, 955
A.2d 356 (Pa. 2008).

7 As observed by the Commonwealth, to the extent that Michaels’ sentencing
challenge could in any way be interpreted as a challenge to the court’s exercise
of discretion, any review would be inappropriate where he failed to include a
Rule 2119(f) statement in his brief. (See Commonwealth’s Brief, at 5).


                                           -6-
J-S60039-19


                                               B.

       Next, Michaels argues that the evidence was insufficient8 to convict him

of second-degree murder because it “nearly all comes from a corrupt source,”

i.e., his co-defendants, and was contradictory. (Michaels’ Brief, at 34; see

id. at 30-35).9

       Section 2502 of the Crimes Code, provides, in pertinent part:           “A

criminal homicide constitutes murder of the second degree when it is

committed while defendant was engaged as a principal or an accomplice in

the perpetration of a felony.” 18 Pa.C.S.A. § 2502(b). Pursuant to Section

____________________________________________


8 In reviewing the sufficiency of the evidence, “[w]e must determine whether
the evidence admitted at trial, and all reasonable inferences drawn therefrom,
when viewed in a light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt.” Commonwealth v.
N.M.C., 172 A.3d 1146, 1149 (Pa. Super. 2017) (citation omitted). “Where
there is sufficient evidence to enable the trier of fact to find every element of
the crime has been established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.”          Id. (citation omitted).    “The evidence
established at trial need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder.” Id. (citation omitted). “The
Commonwealth’s burden may be met by wholly circumstantial evidence and
any doubt about the defendant’s guilt is to be resolved by the fact[-]finder
unless the evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined circumstances.” Id.
(citation omitted).

9 As an initial matter, we observe that this argument attacks the credibility of
the witness testimony, which goes to the weight of the evidence, not its
sufficiency. See Commonwealth v. Sherwood, 982 A.2d 483, 492 (Pa.
2009), cert. denied, 559 U.S. 1111 (2010).




                                           -7-
J-S60039-19


3701(a)(1)(i), “[a] person is guilty of robbery if, in the course of committing

a theft, he: (i) inflicts serious bodily injury upon another[.]” 18 Pa.C.S. §

2502(b)(i).     Finally, Section 903(a) states that “[a] person is guilty of

conspiracy with another person or persons to commit a crime if with the intent

of promoting or facilitating its commission he . . . agrees with such other

person or persons that they or one or more of them will engage in conduct

which constitutes such crime . . . or agrees to aid such other person or persons

in the planning or commission of such crime[.]” 18 Pa.C.S. § 903(a).10

       Instantly, the Commonwealth provided testimony from Mr. Beard that

he and Michaels specifically sought out Ms. Bretznepe in an effort to locate Mr.

Flanagan to rob because he owed them money.            Ms. Bretznepe similarly

testified that both Michaels and Mr. Beard contacted her in an attempt to

locate Mr. Flanagan.        Michaels was present for the video chat when Ms.

Bretznepe spoke with Mr. Beard about robbing Mr. Flanagan.           Mr. Afshar

testified that there was a plan between Mr. Beard and Michaels to find and rob

Mr. Flanagan because he owed them money, and that he was to act as their

protection. There was surveillance video that corroborated Mr. Afshar’s story



____________________________________________


10 “Proving the existence of such an agreement is not always easy, and is
rarely proven with direct evidence. An explicit or formal agreement to commit
crimes can seldom, if ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the circumstances that attend
its activities.” Commonwealth v. Jordan, 212 A.3d 91, 96 (Pa. Super.
2019) (citations and internal quotation marks omitted).


                                           -8-
J-S60039-19


that the men went to the Harrisburg Mall earlier in the day of the murder. Mr.

Beard and Mr. Afshar were aware that Michaels was bringing a firearm to the

meeting with Mr. Flanagan.           Finally, Mr. Beard and Mr. Afshar observed

Michaels shoot Mr. Flanagan before he went through his pockets and left the

scene.

       Viewing the foregoing in the light most favorable to the Commonwealth,

we conclude that the trial court properly found that it provided sufficient

evidence to prove beyond a reasonable doubt that Michaels committed second

degree murder, robbery, and conspiracy to commit robbery.          See N.M.C.,

supra at 1149. Michaels’ second issue lacks merit.

                                               C.

       In his third and final issue, Michaels argues that the verdict was against

the weight of the evidence because it established that Mr. Beard, Ms.

Bretznepe and Mr. Afshar arranged for and executed the robbery and murder

of Flanagan.11 (See Michaels’ Brief, at 36-39). Aside from the direct evidence



____________________________________________


11“Appellate 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.” Commonwealth v. Leatherby, 116 A.3d 73, 82 (Pa. Super.
2015) (citation omitted). “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.” Id. (citation omitted). “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 and that a new trial should
be granted in the interest of justice.” Id. (citation omitted).

                                           -9-
J-S60039-19


that Michaels fired the shots that killed Mr. Flanagan, the trial court set forth

a detailed recitation of the “abundant” testimony presented by the

Commonwealth to establish that Michaels committed the crimes charged,

which we need not repeat here, and that it properly exercised its discretion to

find that the verdict was not against the weight of the evidence. (Trial Court

Opinion, 5/08/19, at 10; see id. at 7-10).

      Based on our independent review of the record and the trial court’s

detailed recitation of the facts supporting its finding, we discern no abuse of

discretion. See Leatherby, supra at 82. Hence, Michaels’ third issue does

not merit relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




                                     - 10 -
