J. A14005/14



NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :       IN THE SUPERIOR COURT OF
                                       :             PENNSYLVANIA
                   v.                  :
                                       :
ERIC A. CHAMBERS,                      :           No. 1961 MDA 2013
                                       :
                        Appellant      :


           Appeal from the Judgment of Sentence, July 17, 2013,
             in the Court of Common Pleas of Dauphin County
             Criminal Division at No. CP-22-CR-0000392-2012


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 25, 2014

     Eric A. Chambers appeals from the judgment of sentence entered

July 17, 2013, in the Court of Common Pleas of Dauphin County.

     The facts of this matter are as follows.       On September 9, 2011,

Jalil Walters (“Jalil”) and his two brothers, Ibrahiim Muhammad (“Ibrahiim”)

and Lewin Chism, Jr. (“Lewin”), were drinking at their grandmother’s house

with family members and their friend, Mike Burgress (“Mike”).      (Notes of

testimony, 5/13-16/2013 at 76-78.)         Lewin was admittedly intoxicated,

having consumed three beers and several shots of liquor. (Id. at 80.) Jalil

had also consumed several shots and a beer. The group decided to continue

drinking at the Jazzland Bar, located on Walnut Street in Harrisburg. (Id. at

79-81.)



* Retired Senior Judge assigned to the Superior Court.
J. A14005/14


      Upon arrival, at approximately 11:00 p.m., Lewin began to feel

anxious and uncomfortable; he told his brothers that he wanted to leave as

he thought other people in the bar were thugs and gangsters. (Id. at 135,

224-226.) Lewin left the bar, which prompted Jalil, Ibrahiim, and Mike to

follow in an effort to calm him down. (Id. at 86, 209.)

      Appellant and Demond Bates, who was security at the bar, followed

them outside. Appellant approached Lewin and asked him what he had been

saying about the clientele in the bar. (Id. at 86, 136, 227-228.) Appellant

then took a gun out of his pants and pointed it in Lewin’s face.        (Id. at

87-89.)   The brothers asked Bates to interject, which he refused to do.

Appellant then secreted the gun on his person and went back inside the bar.

(Id. at 90.)

      A short time later, appellant exited the bar again, and this time he was

“even more aggressive.” (Id. at 232.) Appellant stated he was going to kill

one of them. (Id.) Appellant, who was “irate and angry,” pointed the gun

at Ibrahiim’s chest.    (Id. at 91-92, 229-232.)        The brothers claimed

appellant pulled the trigger and at that split second, Jalil jumped in front of

the gun taking the bullet that was fired.1     (Id. at 231, 233.)    All of the

brothers identified appellant as the shooter in a photographic lineup and in

the courtroom.    (Id. at 97, 148-149, 237-239.)      All of the brothers also


1
 At the preliminary hearing, Jalil also testified that he jumped in front of his
brother and took the bullet that was intended for him. (Notes of testimony,
1/1/12 at 9.)


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stated that the gun used was a revolver.          (Id. at 98-100, 146-148,

229-230.)

      After Jalil was shot, the group flagged down a police vehicle, which

then called for an ambulance. (Id. at 95-96.) Jalil was hospitalized for six

to eight days and underwent two surgeries. (Id. at 243.) The bullet had

traveled through his left elbow, which it shattered, and his abdomen. The

bullet is to remain in his abdomen indefinitely, as the doctors were afraid his

internal organs might rupture if they removed it. (Id. at 240-244.)

      Mike, however, claimed that the shooting occurred right after the

group exited the bar, and that the bouncer was most likely the shooter. (Id.

at 211-212.)   Mike was standing approximately five feet from the shooter

who he described as heavy set with hair on his head and a beard, not a

goatee.   (Id. at 210, 216.)   Mike testified he was “unsure” if any of the

individuals present at trial was the shooter, including appellant, who was

bald with a goatee; he averred he did not see the shooter in the courtroom.

(Id. at 216, 217-220.) Lewin, Ibrahiim, Jalil, and Mike were also unable to

give consistent descriptions of the shooter or what he was wearing.

Demond Bates, who worked as a bouncer on the night in question, was

familiar with appellant but did not see him in the area at any point.

      Detective Quinten Kennedy of the Harrisburg Police Department

testified that on January 9, 2012, he was informed that appellant had been

arrested at a motel. (Id. at 281-282.) He was instructed to go to the motel



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and execute a search pursuant to a warrant that had been issued. (Id. at

282-283.) They searched the room and also discovered appellant’s vehicle

parked outside a motel room. (Id. at 286-287.) Officer Kennedy had the

vehicle towed to the impound lot and then searched the vehicle, finding

several pieces of paper in the driver’s side door panel. One of these items

was an envelope containing appellant’s handwritten notes. (Id. at 291-293,

310.)

        During trial, Detective Ryan Neal testified to the search warrant and

subsequent search of the vehicle. He was asked to read the contents of the

notes to the jury on direct examination:     “On one side [of the envelope

appears] the abbreviation for criminal attempt homicide, and then former

convict not to possess firearms.” (Id. at 291.) Defense counsel objected

and moved for a mistrial because the statement suggested that appellant

had previously been guilty of another crime; prior to trial, the count of

persons not to possess firearms had been bifurcated. The court denied his

motion and his request for a curative instruction, as it found the error

harmless. (Id. at 300-301.)

        After a jury trial, appellant was convicted of criminal attempt

(homicide), aggravated assault, firearms not to be carried without a license,

simple assault, recklessly endangering another person, and possession of a

firearm prohibited.    On July 17, 2013, appellant received an aggregate




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sentence of 25 to 50 years’ incarceration and a fine of $4,000.      Appellant

was also ordered to pay restitution.

      A timely post-sentence motion was filed, and defense counsel filed a

motion to withdraw, which was granted on July 22, 2013. Appellant’s new

counsel, Andrea Haynes, Esq., filed a supplemental post-sentence motion on

July 31, 2013.     On September 3, 2013, appellant filed an amended

post-sentence motion.    A hearing was held on September 27, 2013, and

thereafter, the court denied the motion on October 3, 2013. Appellant filed

a timely notice of appeal on Monday, November 4, 2013.2        The Honorable

Andrew H. Dowling issued a Rule 1925(a) opinion on December 11, 2013,

whereby it incorporated its memorandum and order from October 3, 2013.

      The following issues have been presented for our review:

            I.    Whether the trial court committed reversible
                  error in instructing the jury that the victim of
                  the        attempted         murder          was
                  Ibrahiim Muhammad, not Jalil Walters, where a
                  variance existed that was fatal to the verdict
                  between the criminal information and the jury
                  instructions in violation of Appellant’s Due
                  Process    protections    of   the   Fourteenth
                  Amendment to the United States Constitution
                  and Article 1, Section 9 of the Pennsylvania
                  Constitution?

            II.   Whether the trial court committed reversible
                  error in denying Appellant’s motion for a
                  mistrial where a prosecution witness read from
                  a document, in front of the jury, that Appellant
                  is a convict who cannot own or possess a

2
  Because November 2, 2013, fell on a Saturday, appellant had until the
following Monday to file his appeal. 1 Pa.C.S.A. § 1908.


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                   firearm, where Appellant’s charge for Persons
                   Not to Possess a Firearm had been bifurcated
                   from Appellant’s other charges prior to trial to
                   eliminate prejudice to Appellant?

            III.   Whether the Commonwealth failed to adduce
                   sufficient evidence at trial to sustain the jury’s
                   verdict of guilty on all counts where the
                   Commonwealth failed to prove beyond a
                   reasonable doubt that Appellant committed the
                   crimes alleged?

            IV.    Whether the jury’s verdict of guilty on all
                   counts was contrary to the weight of the
                   evidence so as to shock one’s sense of justice
                   where there was conflicting testimony as to
                   when the shooting occurred, the description of
                   the shooter, and whether Appellant was
                   present on the night in question?

            V.     Whether Appellant’s sentence is excessive and
                   unreasonable and constitutes too severe a
                   punishment in light of Appellant’s rehabilitative
                   needs and where the punitive measures
                   inherent in this sentencing scheme could have
                   been accomplished with the imposition of a
                   lesser sentence?

Appellant’s brief at 9-10.

      In the first issue presented, appellant claims the trial court committed

reversible error where a variance existed between the criminal information

and the jury instructions.    Specifically, he directs our attention to a jury

instruction that identified Ibrahiim as the victim rather than Jalil, which went

against the criminal information sheet.      Appellant avers that the criminal

information led him to believe the Commonwealth intended to prove at trial

that appellant attempted to kill Jalil. (Id. at 24.) Appellant also argues that



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the trial court, in effect, amended the criminal information when it gave a

special interrogatory where the jury was asked to determine whether Jalil

had suffered serious bodily injury during the commission of the attempted

murder of Ibrahiim. (Id. at 25.)

      The purpose of the information is to provide the accused with sufficient

notice to prepare a defense. Commonwealth v. Alston, 651 A.2d 1092,

1095 (Pa. 1994). “An information is sufficient if it sets forth the elements of

the offense intended to be charged with sufficient detail that the defendant

is apprised of what he must be prepared to meet, and may plead double

jeopardy in a future prosecution based on the same set of events.”         Id.

Additionally, the information must be read in a common sense manner, and

should not be construed in an overly technical sense. Commonwealth v.

Jones, 912 A.2d 268, 289 (Pa. 2006).        A purported variance between a

criminal information and evidence produced at trial is not fatal, “unless it

could mislead the defendant at trial, involves an element of surprise

prejudicial to the defendant’s efforts to prepare his defense, precludes the

defendant from anticipating the prosecution’s proof, or impairs a substantial

right.” Id.

      We find no error with either the trial court’s decision or rationale.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, it is our

determination that there is no merit to this question raised on appeal. The



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trial court’s opinion, filed on December 11, 2013, comprehensively discusses

and properly disposes of the question presented.      We will adopt it as our

own and affirm on that basis. (Trial court opinion, 12/11/13 at 2-3.)

        We note our agreement with the trial court and the Commonwealth

that appellant’s argument regarding the variance is factually incorrect. The

information did not identify a victim or intended victim with regard to

attempted murder.3 (Docket #11-2.) The criminal information only states

that Jalil suffered gunshot wounds to his upper body as a result of the

commission of the crime.        (Id.)    Thus, appellant’s argument that the

Commonwealth put him on notice that it “intended to prove at trial that the

defendant attempted to kill Jalil Walters” is erroneous. (Appellant’s brief at

26.)    During its instruction to the jury, Ibrahiim was only named as an

intended victim, not the victim; the trial court specifically instructed “that

the defendant did a certain act; that is fired a handgun at Ibrahiim

Muhammad.” (Notes of testimony, 5/13-16/2013 at 368.)

        Included in the argument section of the first issue, appellant also

includes a claim concerning the special interrogatory; we find this argument

is waived as it was not included in his Rule 1925(b) statement.              See

Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Mattison, 82 A.3d 386, 393

(Pa. 2013) (defendant waived his challenges to the sufficiency of the

evidence to support his burglary and robbery convictions where he failed to


3
    The information did name a victim for the crime of aggravated assault.


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include these challenges in his statement of matters complained of on

appeal).

      The second issue concerns whether the trial court erred in denying his

motion for a mistrial. Our standard of review of a court’s denial of a motion

for mistrial is as follows:

                   A motion for a mistrial is within the discretion
             of the trial court. A mistrial upon motion of one of
             the parties is required only when an incident is of
             such a nature that its unavoidable effect is to deprive
             the appellant of a fair and impartial trial. It is within
             the trial court’s discretion to determine whether a
             defendant was prejudiced by the incident that is the
             basis of a motion for a mistrial. On appeal, our
             standard of review is whether the trial court abused
             that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa.Super. 2014), quoting

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (internal

citations and footnote omitted).

      Appellant claims he suffered prejudice when the jury heard “evidence

that [a]ppellant was a former convict.”         (Appellant’s brief at 33.)     We

disagree with appellant’s characterization of the testimony.             Here, the

Commonwealth did not elicit testimony of appellant’s status as a former

convict; in fact, the trial court properly bifurcated proceedings related to

appellant’s charge of persons not to possess a firearm during the trial.

Rather, during direct examination of Officer Neal, he read what was written

on an envelope found during the search of appellant’s car: “on the one side

it has the abbreviation for criminal attempt homicide, and then former


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convict not to possess firearm.” (Notes of testimony, 5/13-16/2013 at 290-

291.)

        We cannot find this brief remark entitles appellant to a new trial. This

court has held that a witness’ isolated, passing reference, which did not give

details of a prior offense and which the Commonwealth did not elaborate

upon or otherwise exploit, warrantied no relief. Commonwealth v. Miller,

481 A.2d 1221, 1222 (Pa.Super. 1984).           When considering the officer’s

testimony as a whole, the reference to a “former convict” did not stand out

on its own; in fact, the remaining testimony of the officer concerning the

words written on the envelope was far more damaging.           When the officer

continued to testify after the sidebar, he described the remaining contents of

the envelope as follows:

              [A]lso in the handwriting it has the name of
              Jalil Walters. In parenthesis it has left arm and
              abdomen. Also the name of Ibrahiim Muhammad
              and Lewin Chism. Then below that a little bit there’s
              Walters and Muhammad identified me from photo
              array.    And then below that it says Jalil push
              Ibrahiim out of the way -- d-a way and got hit. And
              then it lists my name and my officer telephone
              number. And I think at the bottom it says Carter,
              and then it has a -- I think it’s a colon or semicolon,
              and it says I got ten eyewitnesses.

Notes of testimony, 5/13-16/13 at 310.

        Therefore, we find appellant suffered no prejudice from the officer’s

fleeting mention of the crime. Additionally, the trial court offered to issue a

curative instruction and defense counsel rejected the offer.



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      The third claim concerns the sufficiency of the evidence.       However,

appellant’s   entire   argument   concerns   credibility   as   he   avers   the

Commonwealth’s witnesses gave conflicting descriptions of the shooter and

he avers he was not present at the Jazzland Bar on the evening in question.

(See appellant’s brief at 40-41.)     Appellant also contends that the jury

should have credited the testimony of Mike and the bouncer whose

description did not match his appearance. An argument that the finder of

fact should have credited one witness’ testimony over that of another

witness goes to the weight of the evidence, not the sufficiency of the

evidence. Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa.Super.

2007) (claim that the jury should have believed appellant’s version of the

event rather than that of the victim goes to the weight, not the sufficiency of

the evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-714

(Pa.Super. 2003) (a review of the sufficiency of the evidence does not

include an assessment of the credibility of testimony; such a claim goes to

the weight of the evidence); Commonwealth v. Gaskins, 692 A.2d 224,

227 (Pa.Super. 1997) (credibility determinations are made by the finder of

fact, and challenges to those determinations go to the weight, not the

sufficiency of the evidence). Thus, we will not review appellant’s asserted

sufficiency of the evidence claim as it is, in fact, a weight of the evidence

claim.




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      Nevertheless, appellant properly preserved and presented a claim

regarding the weight of the evidence.

            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.

            This does not mean that the exercise of discretion by
            the trial court in granting or denying a motion for a
            new trial based on a challenge to the weight of the
            evidence is unfettered. In describing the limits of a
            trial court’s discretion, we have explained[,] [t]he
            term ‘discretion’ imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is
            not exercised for the purpose of giving effect to the
            will of the judge. Discretion must be exercised on
            the foundation of reason, as opposed to prejudice,
            personal motivations, caprice or arbitrary actions.
            Discretion is abused 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the

original omitted) (citations omitted).




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      There was no abuse of discretion by the trial court.            Appellant

essentially asks us to reassess the credibility of the witnesses.     Issues of

credibility are for the trier of fact to decide, and the jury obviously chose to

believe   the   Commonwealth’s version of the        facts and believed the

recollection of the three brothers, regardless of the fact that they had

consumed alcohol. As the trial court observed, while appellant “emphasizes

that Mike Burgress testified that, unlike [appellant], the shooter had hair on

his head and a beard, Mr. Burgress originally testified that he was not able

to see who shot Jalil even though he testified he was standing five feet away

at the time.” (Trial court opinion, 12/11/13 at 9.) We conclude appellant is

entitled to no relief.

      The final claim presents a challenge to the discretionary aspects of

sentencing. “It is well settled that, with regard to the discretionary aspects

of sentencing, there is no automatic right to appeal.”     Commonwealth v.

Austin, 66 A.3d 798, 807-808 (Pa.Super. 2013) (citation omitted).

             [T]he right to appeal such an aspect of sentencing is
             not absolute and is waived if the appellant does not
             challenge it in post-sentence motions or by raising
             the claim during sentencing proceedings. To reach
             the merits of a discretionary sentencing issue, this
             Court will conduct a four-part analysis to determine:

                   (1) whether Appellant has filed a timely
                   notice of appeal; (2) whether the issue
                   was properly preserved at sentencing or
                   in a motion to reconsider and modify
                   sentence; (3) whether Appellant’s brief
                   has a fatal defect; and (4) whether there
                   is a substantial question that the


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                  sentence    appealed    from    is   not
                  appropriate under the sentencing code.

Commonwealth v. Bullock, 948 A.2d 818, 825-826 (Pa.Super. 2008),

appeal denied, 968 A.2d 1280 (Pa. 2009) (citation omitted).

      Here, appellant filed a timely notice of appeal, and preserved his claim

that the restitution portion of his sentence is excessive.        He has also

included in his appellate brief a separate Rule 2119(f) statement. Therefore,

we proceed to determine whether appellant has presented a substantial

question that his sentence is not appropriate under the Sentencing Code.

      Appellant argues that his combined fine and restitution amount of

$13,635.26 is excessive and unreasonable.        (Appellant’s brief at 21.)   He

avers that the fine goes beyond what is necessary to protect the public and

the money will not impact the victim or the community. He also states he

will never be able to afford to pay the fine and claims that the fine “does not

consider his rehabilitative needs.”      (Id.)     This issue implicates the

discretionary aspects of appellant’s sentence and raises a substantial

question. Commonwealth v. Walker, 666 A.2d 301, 307, 310 (Pa.Super.

1995), appeal denied, 680 A.2d 1161 (Pa. 1996) (challenges alleging that

a sentence of restitution is excessive under the circumstances are challenges

to the discretionary aspects of sentencing).

      Our standard of review in an appeal from the discretionary aspects of

a sentence is well settled:




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            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. Hardy, 939 A.2d 974, 980 (Pa.Super. 2007) (citation

omitted).

       Appellant contends that the combined fine and restitution amount of

$13,635.26 ($9,635 in restitution and $4,000.26 in fines) is excessive, given

his financial situation.    At the outset, we note that restitution is penal in

nature and may be imposed without regard to the defendant’s ability to pay

when     incorporated      as   part   of   a   defendant’s   direct   sentence.

Commonwealth v. Karth, 994 A.2d 606, 607 (Pa.Super. 2010).                  The

sentencing court is not required to consider evidence of a defendant’s ability

to pay when imposing restitution; such ability need only be considered upon

default. Commonwealth v. Colon, 708 A.2d 1279, 1283 (Pa.Super. 1998).

       However, the applicable provision of the Sentencing Code provides, in

pertinent part,

            (b)   Fine as additional sentence.--The court may
                  sentence the defendant to pay a fine in
                  addition to another sentence, either involving
                  total or partial confinement or probation, . . . .

                  ....



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            (c)   Exception.--The court shall not sentence a
                  defendant to pay a fine unless it appears of
                  record that:

                  (1)   the defendant is or will be able to
                        pay the fine;

                  (2)   the fine will not prevent the
                        defendant from making restitution
                        or reparation to the victim of the
                        crime.

            (d)   FINANCIAL RESOURCES.--In determining
                  the amount and method of payment of a fine,
                  the court shall take into account the financial
                  resources of the defendant and the nature of
                  the burden that its payment will impose.

42 Pa.C.S.A. § 9726(b), (c) (d).      “Imposition of a fine is not precluded

merely because the defendant cannot pay the fine immediately or because

he cannot do so without difficulty.” Commonwealth v. Thomas, 879 A.2d

246, 264 (Pa.Super. 2005), appeal denied, 989 A.2d 917 (Pa. 2010).

      We have read the sentencing transcript, which reveals that the trial

judge considered both appellant’s character and the particular circumstances

of the offenses. However, the record is silent as to the court’s inquiry into

appellant’s ability to pay the fines imposed as required by Section 9726(c)

and (d). While the trial court had a pre-sentence investigation report which

may contain evidence to support the trial court’s imposition of a fine, the

report was not made part of the certified record. Nor does the trial court’s

opinion provide insight into its investigation of his ability to pay. Because of




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the inadequate record, we vacate the fine imposed against appellant and

remand for resentencing.

     Affirmed in part; vacated in part.    Matter remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014




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