J-S28011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

CHARLES SHIELDS,

                        Appellant                   No. 3376 EDA 2014


           Appeal from the Judgment of Sentence July 25, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0001484-2013


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 22, 2016

     Charles Shields appeals from the July 25, 2014 judgment of sentence

of twenty-one to forty-two years incarceration, which was imposed after a

jury convicted him of aggravated assault, attempted kidnapping, and

conspiracy to commit aggravated assault. We affirm.

     The record reveals the following. When Dwayne Walters awoke in the

early afternoon hours of November 17, 2012, his cell phone displayed

numerous missed calls from Appellant. Around 1:30 p.m., Mr. Walters left

his apartment to get a haircut.     He walked through the parking lot of his

apartment complex towards his rental car, a white Dodge. As he unlocked

the car door, Lamar Roane, whom Mr. Walters did not know, approached Mr.

Walters and asked him for a light. When Mr. Walters said he did not smoke,


* Retired Senior Judge assigned to the Superior Court.
J-S28011-16



Roane grabbed his arm tightly. Appellant and his brother, Thomas Shields,

appeared from their concealed locations and approached Mr. Walters and

Roane.    Thomas Shields displayed a long chrome-colored handgun and

shoved the barrel into Mr. Walters’s stomach.    Thomas Shields asked Mr.

Walters about the money, a reference to $700 he believed Mr. Walters owed

him from a drug transaction. Surrounded, and desperate to defend himself,

Mr. Walters grabbed the gun. A brief struggle ensued between Mr. Walters

and Thomas Shields. Appellant pulled out a black handgun and Thomas told

Appellant to shoot Mr. Walters.   Mr. Walters released his hold on the gun

and stopped struggling. Appellant took Mr. Walters’ car keys, phone, watch

and wallet and then forced him into the driver’s door of his white Dodge. He

shoved Mr. Walters over the center console into the passenger seat, while

Roane and Thomas Shields went around the car and entered the rear seats

of the vehicle.

      Mr. Walters pushed open the passenger door, and as he started to

escape, Roane grabbed his jacket. Mr. Walters wiggled out of his grasp and

ran while Roane pursued him.      When Mr. Walters glanced back to see if

anyone was chasing him, he saw Appellant and Thomas Shields aiming guns

at him. He heard two gunshots and a single bullet struck him in the back

and exited his chest.

      Jennifer Boyle, a resident of the apartment complex, heard men

arguing outside. When she went to the window of her apartment, she saw

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two men fire their guns. She later identified the shooters as Appellant and

Thomas Shields.

      Mr. Walters, bleeding profusely from his gunshot wound, entered the

back seat of a stopped vehicle occupied by two women and a young boy. He

pressed his back against the seat of the vehicle in an attempt to stop the

bleeding. The woman in the passenger seat panicked and asked Mr. Walters

to exit her car, and he stumbled out and collapsed onto the sidewalk. As he

lay there, he saw his assailants exiting the parking lot in his white Dodge

rental car.

      At approximately 1:39 p.m., Philadelphia Police Officer Brandon Badey

received a priority radio call reporting a shooting near 2607 Welsh Road,

Philadelphia, Pennsylvania.   Upon arriving at the scene, Officer Badey saw

Mr. Walters on the ground, holding a blood-soaked towel to his chest. Mr.

Walters, who was slipping in and out of consciousness, was unable to

communicate to Officer Badey who shot him.      Realizing that Mr. Walters’s

condition was critical, Officer Badey and the second officer on scene placed

Mr. Walters in the back of Officer Badey’s patrol car and rushed him to the

hospital.     Mr. Walters was immediately taken to the operating room and,

after surgery, he was transferred to the Intensive Care Unit. He remained

hospitalized for six weeks.

      During the investigation of the crime scene, police located two .45

caliber casings, which the Commonwealth’s ballistician testified were fired

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from the same gun. Underneath a nearby car that had a bullet hole in its

windshield, investigators found a cell phone that contained several videos

and photos that Thomas Shields had taken of himself.           Investigators

obtained search warrants for that cell phone data, including call logs and

text messages. It also obtained warrants for the data from Mr. Walters’ cell

phone and information associated with the telephone numbers of Appellant,

Thomas Shields, and Lamar Roane.          The search revealed that multiple

telephone calls were made to and from Thomas Shields and Appellant, and

from Thomas Shields to Lamar Roane, on the day in question. At least four

telephone calls and several text messages were sent from Thomas Shields’

phone to the victim on the morning of the shooting.

      On November 20, 2012, Mr. Walters identified both Appellant and

Thomas Shields from a photographic array.       Several days later, Officers

arrested Thomas Shields at 1758 East Washington Lane, Philadelphia,

Pennsylvania. A search of the residence yielded one silver .45 caliber hollow

point bullet.   The Commonwealth’s ballistics expert could not determine if

the spent .45 caliber casings found at the scene were hollow point bullets.

On November 29, 2012, Appellant surrendered at the U.S. Marshall’s office.

      At trial, Mr. Walters testified that he had previously sold drugs for

Appellant and his brother. Mr. Walters reported that he received numerous

threatening phone calls and text messages from Appellant and Thomas

Shields about a $700 debt he allegedly owed Thomas following a recent drug

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transaction. Thomas Shields gave him an ultimatum: “either come up with

money or there will be consequences[,]” which he understood to mean

“physical harm.” N.T., 5/7/14, at 56.

       Mr. Walters told the jury that, prior to trial, a mutual friend of

Appellant and Mr. Walters offered him $5,000.00 not to testify in court, but

he did not accept.         On May 16, 2014, a jury found Appellant guilty of

aggravated      assault,    conspiracy     to   commit   aggravated   assault,   and

attempted kidnapping.1 He was acquitted of attempted murder, firearms not

to be carried without a license, and possession of an instrument of crime.

       Appellant filed a post-sentence motion on July 31, 2014, which was

denied on November 7, 2014.            He timely filed the instant appeal, and he

further complied with the trial court’s order directing him to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.              Appellant

raises three issues for our review:

       I. Whether the adjudication of guilt is based upon insufficient
       evidence that the Appellant actually committed, or conspired
       with, or aided, abetted or solicited another to assault or kidnap
       the complainant.

       II. Whether the adjudication of guilt is against the weight of the
       evidence where there was compelling evidence that the
       complainant was not a truthful witness to the police or during his
       testimony at trial, where the complainant had motives to
       fabricate, where the eyewitness did not get a good look at the
____________________________________________


1
 Appellant was tried jointly with his brother, Thomas Shields, and Thomas’s
appeal is also pending before this panel.



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        perpetrators and gave a description different from the physical
        appearance of the Appellant, where there was compelling
        evidence that the Appellant called the complainant on the
        telephone after the complainant had been shot and left for dead
        and where the bullet recovered in the Appellant’s residence did
        not match the ballistics evidence at the scene.

        III. Whether the sentence of 21-42 years was excessive,
        manifestly unreasonable and contrary to the fundamental norms
        that underlie the sentencing process where the Court did not
        give due weight to the Appellant’s family background and
        character and his actual rehabilitative needs.

See Appellant’s brief at 6.2

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

underlying his convictions. In conducting our review, we view the evidence

and all reasonable inferences therefrom in a light most favorable to the

verdict winner in determining whether there was sufficient evidence for the

fact finder to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa.Super. 2014). The

Commonwealth may sustain its burden with wholly circumstantial evidence.

Id.    This Court may overturn these convictions only if “the evidence is so

weak and inconclusive that as a matter of law no probability of fact may be

drawn from the combined circumstances.” Commonwealth v. Castelhun,

889 A.2d 1228, 1232 (Pa.Super 2005).




____________________________________________


2
    We have re-ordered Appellant’s issues for ease of disposition.



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      Appellant contends first that the combined testimony of Mr. Walters

and Ms. Boyle was insufficient to sustain his aggravated assault conviction

because it was contrary to the physical facts.    Aggravated assault occurs

when someone “attempts to cause serious bodily injury to another, or

causes such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life.” 18 Pa.C.S. §

2702(a)(1).     Mr. Walters testified that both Appellant and his brother

threatened him with loaded guns before forcing him into his car and later

shooting him.    Jennifer Boyle confirmed that she saw both Appellant and

Thomas Shields fire weapons and that she observed smoke rising from their

weapons. The Commonwealth’s physical evidence from the scene, however,

consisted of two shell casings that came from the same gun.         Appellant

argues that this constituted proof that there was only one shooter, refuting

the version of the events testified by Ms. Boyle and Mr. Walters.

      Appellant’s contention that the witnesses’ testimony was inconsistent

with the physical evidence fails to consider the possibility that police

investigators may have overlooked shell casings from a second gun.       The

absence of evidence is not evidence.     Furthermore, Appellant’s underlying

premise, i.e., that physical evidence must be accorded greater weight than

testimonial evidence, is faulty. Moreover, it ignores our standard of review.

We view the evidence in the light most favorable to the verdict winner, and

thus we accept the eyewitness testimony that placed Appellant at the scene

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and firing a gun at Mr. Walters.         That testimony alone was sufficient to

sustain Appellant’s aggravated assault conviction. See Commonwealth v.

Jackson, 955 A.2d 441, 450 (Pa.Super. 2008) (evidence that defendant

shot in the direction of the victim was sufficient to sustain his conviction of

aggravated assault). This claim fails.

      Next, Appellant argues the aggravated assault conviction is infirm

since the jury acquitted him of all firearms and weapons charges.            The

Commonwealth counters that inconsistent verdicts are not grounds for relief.

Commonwealth         v.   Stokes,   38    A.3d   846,   855   (Pa.Super.   2011).

Additionally, the Commonwealth maintains that the evidence proved that,

“[Appellant] and his brother acted in concert—by arming themselves,

arriving at the scene together, accosting the victim, and then simultaneously

shooting at him—which makes [Appellant] liable as a co-conspirator and

accomplice.” Commonwealth’s brief at 15.

      “A person is guilty of aggravated assault if he attempts to cause or

intentionally or knowingly causes bodily injury to another with a deadly

weapon.” 18 Pa.C.S. § 2702(a)(4). A deadly weapon is defined as:

             Any firearm, whether loaded or unloaded, or any device
      designed as a weapon and capable of producing death or serious
      bodily injury, or any other device or instrumentality which, in the
      manner in which it is used or intended to be used, is calculated
      or likely to produce death or serious bodily injury.

18 Pa.C.S. § 2301.




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       Appellant’s acquittal on the firearms charges does not implicate his

aggravated assault conviction. As the Commonwealth correctly points out,

we do “not disturb guilty verdicts on the basis of apparent inconsistencies as

long as there is sufficient evidence to support the verdict.” Commonwealth

v. Petteway, 847 A.2d 713, 718 (Pa.Super. 2004). This Court “looks upon

the acquittal as no more than the jury's assumption of a power which they

had no right to exercise, but to which they were disposed through lenity.”

Id.

       Furthermore, the verdict herein is not inconsistent as the evidence

supports Appellant’s conviction of aggravated assault based on accomplice

liability.   The general rule is “[a] person is guilty of an offense if it is

committed by his own conduct or by the conduct of another person for which

he is legally accountable, or both.” 18 Pa.C.S. § 306(a). “A person is legally

accountable for the conduct of another person when he is an accomplice of

such other person in the commission of the offense.” 18 Pa.C.S. § 306(b).

An accomplice is someone who, “with the intent of promoting or facilitating

the commission of the offense, solicits such other person to commit it or aids

or agrees or attempts to aid such other person in planning or committing it.”

18 Pa.C.S. § 306(c).

       Appellant, his brother, and Roane were drug dealers jointly seeking to

collect a debt from Mr. Walters. The cell phone records revealed that the

men harassed Mr. Walters in the weeks leading up to the shooting.

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Appellant, his brother, and Roane finally lay in wait for Mr. Walters and

attempted to kidnap him.       When Mr. Walters escaped, Appellant or his

brother shot Mr. Walters in the back.       The act of firing a gun at another

person, whether it was the act of Appellant, his brother, or Roane, all whom

were acting together, is sufficient to sustain Appellant’s aggravated assault

conviction as an accomplice. See Jackson, supra at 450.

      Appellant also asserts the Commonwealth’s evidence was insufficient

to convict him of attempted kidnapping as there was no attempt to confine

Mr. Walters in isolation for a substantial time. Appellant maintains that the

evidence revealed he was merely escorting Mr. Walters to a car parked in a

public place, and the car was not running or moving. The Commonwealth

counters that one can reasonably infer from the use of loaded firearms to

force Mr. Walters into the passenger seat of his own car that Appellant and

his   cohorts    were   not   merely    escorting   Mr.   Walters   to   his   car.

Commonwealth’s brief at 17. The inference is buttressed by evidence that

this kidnapping attempt was the “culmination of weeks of threats.” Id.

      “[A] person is guilty of kidnapping if he unlawfully removes another a

substantial distance under the circumstances from the place where he is

found, or if he unlawfully confines another for a substantial period in a place

of isolation.”   18 Pa.C.S. § 2901(a).     The person must also have done so

with the intent to do any of the following:

      (1)   To hold for ransom or reward, or as a shield or hostage,

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      (2)   To facilitate commission of any felony or flight thereafter,

      (3) To interfere with the performance by public officials of any
      governmental or political function.

18 Pa.C.S. § 2901(a). Additionally, “[a] person commits an attempt when,

with intent to commit a specific crime, he does any act which constitutes a

substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a).

A removal or confinement for purposes of the kidnapping statute is unlawful

if it is accomplished by force, threat or deception. 18 Pa.C.S. § 2901(b)(1).

      Appellant contends that there was no attempt to confine Mr. Walters

for a substantial time in a place of isolation because Mr. Walters’s car was

parked in a public place. Furthermore, there was no attempt to remove Mr.

Walters as the car was not running. The Commonwealth counters that when

Appellant and his cohorts forced Mr. Walters into the car at gunpoint, and

Appellant sat behind the wheel in possession of the keys, he took a

substantial step in facilitating the kidnapping. We agree.

      The record reveals that Appellant physically forced Mr. Walters into the

car at gunpoint and he entered the driver’s seat.        Had Mr. Walters not

escaped, one could reasonably infer that Appellant intended to remove Mr.

Walters a substantial distance from the parking lot.     The fact that the car

was not running or moving when Mr. Walters was initially confined does not

alter our analysis. Appellant and his cohorts entered the car, and the jury

could reasonably infer that Appellant would have started the engine and

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driven his victim away from the parking lot had Mr. Walters not escaped.

The seizure of Mr. Walters and the attempt to remove him to another place

constituted a substantial step sufficient to support his conviction for

attempted kidnapping. See Commonwealth v. Mitchell, 883 A.2d 1096,

1109 (Pa.Super. 2005) (evidence that the defendant forced the victim into

the back seat of a car and transported him to a wooded area was sufficient

to sustain a kidnapping conviction); see also Commonwealth v. Eckrote,

12 A.3d 383, 388 (Pa.Super. 2010) (evidence sufficient to sustain

kidnapping conviction where defendant hid and ambushed woman, forced

her into his car, drove her to an undisclosed location where he sexually

assaulted her, and then let her go).

      The evidence in the record also indicates that Appellant and his

accomplices harassed and threatened Mr. Walters for several weeks and

ultimately confronted him on the day in question about a $700 debt. Such

evidence suggests that Appellant intended to seize Mr. Walters, transport

him to a secluded place, and either hold him for ransom for the $700 debt or

injure or terrorize him. See Commonwealth v. Simpson, 74 A.2d 1264,

1279 (Pa. 2013) (the act of forcing the victim into a van, driving him to a

separate location, and demanding $20,000 in ransom was sufficient to

sustain a kidnapping conviction). Under either scenario, his claim fails.

      Finally, Appellant argues that the evidence presented was insufficient

to convict him of conspiracy to commit kidnapping.         He reiterates that,

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“[s]ince the motor vehicle was parked in a public place and was not running

or started for the purpose of moving Walters a substantial distance, there

was insufficient evidence to conclude that Appellant participated in a

conspiracy to kidnap.” Appellant’s brief at 25. The Commonwealth correctly

points out that Appellant was not convicted of conspiracy to commit

kidnapping, but of conspiracy to commit aggravated assault.                     N.T.,

07/25/14, at 53-54; Sentencing Order, 7/25/14, at 1. The Commonwealth

adds that the evidence “was plainly sufficient to support a conspiracy [to

commit     aggravated   assault]   charge”    because   Appellant   and   his    co-

conspirators acted in unison to threaten, ambush, and shoot Mr. Walters.

Commonwealth’s brief at 17.

     The court charged the jury that the crimes of attempted murder,

aggravated assault, and/or kidnapping were the objects of the criminal

conspiracy.    The jury returned a guilty verdict on the conspiracy charge.

The court sentenced Appellant on conspiracy to commit aggravated assault.

See N.T. Sentencing, 7/25/2014, at 53.

     Conspiracy is defined as follows:

     (a)      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:

     (1)      agrees with such other person or persons that they
              or one or more of them will engage in conduct which
              constitutes such crime; or an attempt or solicitation
              to commit such crime; or



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      (2)   agrees to aid such other person or persons in the
            planning or commission of such crime or of an
            attempt or solicitation to commit such crime.


18 Pa.C.S. § 903.      Where a conspiracy has multiple criminal objectives, a

person is guilty of only one conspiracy so long as such multiple crimes are

the object of the same agreement or continuous conspiratorial relationship.

18 Pa.C.S. § 903(c).

      The record indicates that Appellant and his brother, while armed,

restrained and confronted Mr. Walters with the help of Lamar Roane. The

three men forced Mr. Walters into his car. When Mr. Walters escaped their

custody, Appellant and his brother shot at him, and one bullet struck him in

the back.   These facts are sufficient to sustain Appellant’s conviction for

conspiracy to commit aggravated assault. See Commonwealth v. Poland,

26 A.3d 518, 520 (Pa.Super. 2011) (evidence that the defendant and a

group of other individuals attacked a fellow patron of the subway, battering

her face and knocking out her teeth, was sufficient to show conspiracy to

commit aggravated assault).      We find no merit in Appellant’s sufficiency

claims.

      Appellant’s second issue is a challenge to the weight of the evidence.

This Court’s role in reviewing a weight of the evidence issue is limited to “a

review of the exercise of discretion, not of the underlying question of

whether the verdict is against the weight of the evidence.” Commonwealth



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v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).         As our High Court explained in

Clay, the appellate standard of review is distinct from that applied by the

trial court:

             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. 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 and that a new trial should be granted in the interest of
      justice.

Clay, supra at 1055 (citations omitted) (quoting Commonwealth v.

Widmer, 744 A.2d 745, 753 (Pa. 2000)).              The court explained that,

“Discretion must be exercised on the foundation of reason, as opposed to

prejudice, personal motivations, caprice or arbitrary actions.” Id. An abuse

of discretion is “where the course pursued represents not merely an error of

judgment, but where the judgment is manifestly unreasonable or where the

law is not applied or where the record shows that the action is a result of

partiality, prejudice, bias or ill-will.” Id.

      Appellant contends that the jury’s verdict was against the weight of

the evidence and that the trial court abused its discretion when it denied his

post-trial motion because there was inconsistent testimony and other

physical evidence that could have produced a different outcome.             He



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characterizes Mr. Walters as an untruthful and unreliable witness who lied to

police and dishonestly violated his probation.       Appellant also argues that

another eyewitness, Jennifer Boyle, was not credible as she originally told

detectives that she saw one gun and then testified at trial that she saw two

guns.    Moreover, Ms. Boyle admitted she did not get a good look at the

offenders and gave a description of the shooter that did not match the

physical appearance of Appellant or his brother. Appellant suggests further

that the timing of a phone call from Appellant to Mr. Walters proved that he

did not shoot him. Finally, Appellant avers that the fact that the cartridge

recovered in his home could not be linked to the bullet casings recovered at

the scene proves he did not shoot Mr. Walters.

        The   Commonwealth      counters   that   Mr.   Walters’s   account   was

corroborated by Ms. Boyle and that the bullet found at Appellant’s residence

matched the bullet casings found at the crime scene. Furthermore, it was

up to the fact finder to assess credibility and it was “free to believe all, part,

or none of the evidence.” Commonwealth v. DeJesus, 860 A.2d 102, 107

(Pa. 2004). The trial court determined the verdict was not so contrary to

the evidence as to shock one’s sense of justice.            Trial Court Opinion,

07/30/2015, at 12. We find no abuse of discretion.

        Appellant’s final issue is a challenge to the discretionary aspects of his

sentencing. Initially, “there is no absolute right to appeal when challenging

the discretionary aspect of a sentence.” Commonwealth v. Dodge, 77

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A.3d 1263, 1268 (Pa.Super. 2013). “In order to present a proper

discretionary sentencing claim, a defendant is required to preserve the issue

in either a post-sentence motion or at sentencing and in a court-ordered

Pa.R.A.P. 1925(b) concise statement.” Id. Additionally the defendant “must

provide a separate statement specifying where the sentence falls in the

sentencing guidelines, what provision of the sentencing code has been

violated, what fundamental norm the sentence violates, and the manner in

which it violates the norm.”      See Pa.R.A.P. 2119(f).     An “appeal is [now]

permitted only after this Court determines that there is a substantial

question that the sentence was not appropriate under the sentencing code.”

Id. A substantial question exists “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, 912-913 (Pa.Super. 2000).

      In the case at hand, Appellant preserved this issue in his post-

sentence motion, and again in his Pa.R.A.P. 1925(b) concise statement. His

appellate brief contains a Pa.R.A.P. 2119(f) statement, in which he claims a

substantial   question   exists    because     the    sentencing   court   imposed

consecutive sentences that were excessive and manifestly unreasonable and

contrary to the fundamental norms and failed to state its reasons for doing

so.   The Commonwealth contends that Appellant’s Rule 2119(f) statement

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fails to present a colorable claim because it does not (1) “specify where the

sentence falls in relation to the sentencing guidelines and what particular

provision of the Code is violated,” or (2) “specify what fundamental norm the

sentence violates and the manner in which it violates that norm.”

Commonwealth’s brief at 10 (citing Commonwealth v. Goggins, 748 A.2d

721, 727 (Pa.Super 2000).        The Commonwealth “objects to review of

[Appellant’s] claims in light of his plainly deficient statement.” Id.

      We agree with the Commonwealth that Appellant’s Rule 2119(f)

statement is deficient, and that an excessiveness claim based solely on the

imposition of consecutive sentences is inadequate to establish a substantial

question. However, since Appellant also maintained in the argument portion

of his brief that a substantial question was presented because the sentencing

court failed to justify its imposition of aggravated range sentences and failed

to consider mitigating factors, we find that Appellant plausibly states a

substantial question.   See Commonwealth v. Felmlee, 828 A.2d 1105,

1107 (Pa.Super. 2003) (a claim that the court erred by imposing an

aggravated range sentence without considering the mitigating factors

established a substantial question).

      When evaluating the merits of a discretionary sentencing claim, “[w]e

analyze the sentencing court’s decision under an abuse of discretion

standard.”    Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super.

2015).   Additionally, “this Court’s review of the discretionary aspects of a

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sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and

(d).” Id. Section 9781(c) provides that this Court may vacate a sentence

only in three circumstances:

     (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.

42 Pa.C.S. § 9781(c). We also consider:

     (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(d).

     Appellant   was    found   guilty   of   aggravated   assault,   attempted

kidnapping, and conspiracy to commit aggravated assault. Appellant had a

prior record score of five for purposes of computing the standard range

sentences for his offenses. N.T. Sentencing, 7/25/14, at 51-52. Since this




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was his second aggravated assault conviction, the two-strike rule was

applicable and provided for a mandatory minimum sentence of ten years.3

The standard range minimum sentence for attempted kidnapping was forty-

eight to sixty months, and for conspiracy to commit aggravated assault,

sixty to seventy-two months incarceration.

       Appellant contends that it “was manifestly unreasonable and excessive

to impose consecutive sentences, especially where the Court recited no

reasons.” Appellant’s brief at 19-20. Appellant also argues that the court

was required to state its reasons on the record for imposing aggravated

range sentences. Finally, Appellant complains that, “[t]here is nothing in the

record to reflect that the Court considered the Appellant’s background,

character, family support or his rehabilitative needs or other mitigating

factors.” Id.

       The Commonwealth counters that Appellant’s consecutive sentences

were well within the statutory guidelines provided by the Commonwealth of

Pennsylvania.         Commonwealth’s           brief   at   10.   Furthermore,   the

Commonwealth points to the Court’s comments at sentencing regarding

____________________________________________


3
  The mandatory minimum sentence applicable to Appellant as a second-
strike offender is not infirm under the United States Supreme Court decision
in Alleyne v. United States, 133 S.Ct. 2151 (2013), as Alleyne does not
affect mandatory minimums based on prior convictions. Commonwealth v.
Valentine, 101 A.3d 801 (Pa.Super. 2014) (citing Commonwealth v.
Watley, 81 A.3d 108, 117 (Pa.Super. 2013)).



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Appellant’s background, character, family support and his rehabilitative

needs as proof that the court considered these factors.              Id. at 12.

Appellee’s brief at 12.

       The court sentenced Appellant to the mandatory ten to twenty years

for aggravated assault, sixty to one hundred and twenty months for

attempted kidnapping, and seventy-two to one hundred and forty-four

months for conspiracy to commit aggravated assault, for an aggregate

sentence of twenty-one to forty-two years imprisonment.4           Id. at 53-54.

Contrary to Appellant’s representation, the sentences imposed at the non-

mandatory counts fell within the standard range of the guidelines, not the

aggravated range. Hence, there is no factual basis support for Appellant’s

claim that the trial court imposed an aggravated range sentence without

stating its reasons on the record. See 204 Pa.Code § 303.13(c) (when “the

court imposes an aggravated or mitigated sentence, it shall state the

reasons on the record[.]”).

       The “imposition of consecutive rather than concurrent sentences rests

within the trial court’s discretion.”          Commonwealth v. Harvard, 64 A.3d

690, 703 (Pa.Super. 2013). The record reveals that Appellant took part in

the planning and execution of a kidnapping that failed and eventually led to
____________________________________________


4
  The Commonwealth asked the court to impose a sentence of ten to twenty
years on each of the three offenses, for an aggregate sentence of thirty to
sixty years imprisonment, but the court declined.



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the shooting of an unarmed man.               The Commonwealth characterized

Appellant as a “hardened criminal” who lay in wait, ambushed his victim,

and shot him. N.T. Sentencing, 7/25/14, at 28, 31. The sentencing court

agreed, stating that, “the District Attorney has it right.” Id. at 52. The trial

court deemed it necessary to impose consecutive sentences to achieve an

appropriate sentence in light of the seriousness of the offenses, and we find

no abuse of discretion in this regard.

      Appellant’s contention that the trial court failed to consider mitigating

factors is refuted by the record. The sentencing judge observed Appellant

and listened to the testimony of his family members.             As the Court

explained, “It’s very easy for the Court to see the love, the values, and the

toughness of [Appellant’s] family.   And in spite of all that, the two of you

young gentlemen sit here before me today.” N.T. Sentencing, 07/25/14, at

52-53.    Furthermore, the trial court reviewed a presentence investigation

report.   As the Commonwealth correctly notes, “where a presentence

report[] exist[s], [an appellate court] shall continue to presume that the

sentencing judge was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with the

mitigating statutory factors.” Commonwealth v. Walls, 926 A.2d 957, 967

(Pa. 2007). We find no abuse of discretion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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