J-S38044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
BILAL LEE WATTS,                         :
                                         :
                 Appellant               :           No. 1990 MDA 2014

    Appeal from the Judgment of Sentence entered on October 14, 2014
             in the Court of Common Pleas of Dauphin County,
               Criminal Division, No. CP-22-CR-0004106-2013

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JULY 16, 2015

     Bilal Lee Watts (“Watts”) appeals from the judgment of sentence

imposed following his conviction of insurance fraud, criminal attempt (theft

by deception), and false reports to law enforcement.      See 18 Pa.C.S.A.

§§ 4117(a)(2), 901(a), 4906(b)(1). We affirm.

     On February 29, 2012, Watts reported to the Pennsylvania State Police

that he had been involved in a hit-and-run accident on Interstate 81 in

Dauphin County. Pennsylvania State Trooper Ronald Charles (“Trooper

Charles”), responded to the scene and determined that the damage to the

car was not fresh, as the damage had already rusted.        Nevertheless, on

March 12, 2012, Watts filed a claim with his insurance company, Geico

Insurance Company (“Geico”), relating to the accident. The estimated claim

payment for the damage was $976.98.          Albert A. Tenuta (“Tenuta”), an
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investigator for Geico, determined that Watts had previously filed a claim

with Progressive Insurance Company (“Progressive”) for the same damage.

      Watts was arrested and charged with various crimes. On August 24,

2014, a jury found Watts guilty of the above-mentioned charges. The trial

court sentenced Watts to serve nine to twenty-three months in work release

for each count, with the sentences to run concurrently. Watts filed a Post-

Sentence Motion, which the trial court denied.

      Watts filed a timely Notice of Appeal. Thereafter, Watts filed a court-

ordered 1925(b) Concise Statement of Matters Complained of on Appeal,

and the trial court issued an Opinion.1

      On appeal, Watts raises the following questions for our review:

      I. Was there insufficient evidence to conclude that [Watts] filed a
      false claim?

      II. Did the trial court err in denying [Watts’s] [P]ost[-S]entence
      [M]otion because the jury’s verdict against [Watts] was so
      against the weight of the evidence as presented at trial so as to
      shock one’s sense of justice?

      III. Did the trial court abuse its discretion by imposing an unduly
      harsh and unreasonable sentence because the trial court failed
      to consider [Watts’s] rehabilitative needs versus the public’s
      safety?

Brief for Appellant at 7.




1
   We note that the trial court found the Concise Statement to be vague
regarding the sufficiency and weight of the evidence claims. See Trial Court
Opinion, 2/23/14, at 3. While the Concise Statement is vague, we decline to
find waiver on this basis.


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      In his first claim, Watts alleges that the evidence was insufficient to

establish that he had filed a false claim. Id. at 17. Watts argues that the

evidence clearly shows that the damage from the first and second claims

were different.   Id. at 18.   Also, Watts states that the testimony showed

that he received chiropractic care ten days after the alleged second accident.

Id.   Watts contends that this evidence proves that he had been in two

separate accidents, and that the evidence was insufficient to support his

convictions. Id.2

      The standard of review for a sufficiency of the evidence claim is as

follows:

      When reviewing a sufficiency of the evidence claim, an appellate
      court, viewing all of the evidence and reasonable inferences in
      the light most favorable to the Commonwealth as the verdict
      winner, must determine whether the evidence was sufficient to
      enable the fact-finder to find that all elements of the offense
      were established beyond a reasonable doubt.

Commonwealth v. Hawkins, 701 A.2d 492, 499 (Pa. 1997). Further, the

Commonwealth can sustain its burden of proving every element beyond a

reasonable doubt by using wholly circumstantial evidence. Commonwealth

v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003).

      In order to sustain a conviction under 18 Pa.C.S.A. § 4117(a)(2), the

Commonwealth must prove that the defendant



2
  Watts does not specifically cite to the convictions from which he is
appealing. See Pa.R.A.P. 2119(a). While we may find waiver based upon
Watts’s vague argument, we decline to do so and will address his claim.


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     [k]nowingly and with the intent to defraud any insurer or self-
     insured, presents or causes to be presented to any insurer or
     self-insured any statement forming a part of, or in support of, a
     claim that contains any false, incomplete or misleading
     information concerning any fact or thing material to the claim.

18 Pa.C.S.A. § 4117(a)(2).

     In order to sustain a conviction under 18 Pa.C.S.A. § 901(a), the

Commonwealth must prove that “[w]ith intent to commit a specific crime,

[the defendant] does any act which constitutes a substantial step toward the

commission of that crime.”       Id. § 901(a).    A person commits theft by

deception, the defendant “[i]ntentionally obtains or withholds property of

another by deception.” Id. § 3922(a)(1).

     In order to sustain a conviction under 18 Pa.C.S.A. § 4906(b)(1), the

Commonwealth     must    prove    that   the   defendant   “[r]eports   to   law

enforcement authorities an offense or other incident within their concern

knowing that it did not occur.” Id. § 4906(b)(1).

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

the record reflects that on February 29, 2012, Watts told Trooper Charles

that he had been involved in a hit-and-run crash.      N.T., 8/21/14, at 20.

Trooper Charles testified that, based on his years of experience doing crash

reports, the damage to the vehicle was not fresh because it had already

rusted. Id. at 25-26. Trooper Charles also testified that after explaining to

Watts that the damage was not fresh, Watts responded, saying, “[i]t just

happened. I swear.” Id. at 26.



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      Tenuta testified that Watts filed a claim with Geico on February 29,

2014, the same day that his policy went into effect.         Id. at 41-43.   The

estimated claim payment was $976.98. Id. at 52. Tenuta further testified

that he discovered that Watts had also filed an identical claim with

Progressive. Id. at 57. When showed two pictures, one of the damage from

the night in question and one from the Progressive claim, Tenuta stated that

the damage was the same. Id. at 57-58. In viewing the evidence in the

light most favorable to the Commonwealth, the evidence was sufficient to

support his convictions.

      In his second claim, Watts argues that the verdict was against the

weight of the evidence presented at trial.     Brief for Appellant at 19.    He

claims that the testimony of Tenuta and Trooper Charles was so inconsistent

that the jury’s verdict shocks one’s sense of justice. Id.

      The standard of review for challenges to the weight of the evidence is

as follows:

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the fact-finder is free to believe all, part, or none of the
      evidence and to determine the credibility of the witnesses, and a
      new trial based on a weight of the evidence claim is only
      warranted where the fact-finder’s verdict is so contrary to the
      evidence that it shocks one’s sense of justice. In determining
      whether this standard has been met, appellate review is limited
      to whether the trial judge’s discretion was properly exercised,
      and relief will only be granted where the facts and inferences of
      record disclose a palpable abuse of discretion.


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Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation

and brackets omitted).

     Initially, Watts incorporates by reference his sufficiency argument.

However, our appellate rules do not allow for incorporation by reference.

See Commonwealth v. Veon, 109 A.3d 754, 774 (Pa. Super. 2015)

(stating that an appellant waives any claim where he or she incorporates by

reference to prior arguments).       In any event, from the verdict, it is

apparent that the jury found the testimony of both Trooper Charles and

Tenuta credible. See Karns, 50 A.3d at 165 (stating that the fact finder

determines the credibility of witnesses). Because the evidence supports the

jury’s verdict, we conclude that the trial court did not abuse its discretion in

denying Watts’s weight of the evidence claim.

     In his final claim, Watts challenges the discretionary aspects of his

sentence.

     An appellant challenging the discretionary aspects of the
     sentence must invoke this [C]ourt’s jurisdiction by satisfying a
     four-part test:

     [W]e conduct a four-part analysis to determine: (1) whether
     appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
     and 903; (2) whether the issue was properly preserved at
     sentencing or in a motion to reconsider and modify sentence,
     see Pa.R.Crim.P. [720]; (3) whether the 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).

                                    ***



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     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis.          A substantial
     question exists only when the appellant advances a colorable
     argument that the sentencing judge’s actions were either: (1)
     inconsistent with a specific provision of the Sentencing Code; or
     (2) contrary to the fundamental norms which underlie the
     sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

     Here, Watts filed a timely Notice of Appeal, raised his claims in a

timely Post-Sentence Motion, and included a Rule 2119(f) Statement in his

brief. Further, Watts’s claim that the trial court failed to consider the nature

and circumstances of the crimes and his rehabilitative needs raises a

substantial question.     See Brief for Appellant at 11-12; see also

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (stating

that failure “to consider relevant sentencing criteria, including the protection

of the public, the gravity of the underlying offense and the rehabilitative

needs” raises a substantial question).        Thus, we will review Watts’s

sentencing claims.

     Watts argues that the trial court did not consider his mental health

needs.   Brief for Appellant at 20-21.       Watts asserts that he has been

diagnosed as being schizophrenic and bipolar. Id. at 20.

     Our standard of review is as follows:

     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.


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      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. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)

(citation omitted).

     The trial court addressed Watts’s sentencing claim as follows:

     [The trial court] carefully considered all of the factors including
     [Watts’s] offense gravity score and prior record as well as the
     Commonwealth’s sentence recommendation. Clearly, [Watts’s]
     sentence is well below the aggregate that could have been
     imposed. Further[,] review of the sentencing hearing transcript
     reveals that th[e trial c]ourt also carefully considered the factors
     raised by [Watts]: mental health treatment, the fact of his
     employment and his desire to remain employed to support his
     family and that any criminal history did not involve insurance
     fraud. It is notable that this [c]ourt ordered that [Watts’s]
     incarceration be served in a work release setting[,] which would
     facilitate his continued efforts to remain employed. [Watts] was
     also granted a deferred report date to permit him to get his
     family’s affairs in order and ensure that he would have a job
     while serving his sentence[,] which is indicative of the [c]ourt’s
     consideration of his obligations with respect to his wife and
     children.

Trial Court Opinion, 2/23/14, at 4 (citations omitted). We discern no abuse

of discretion in the trial court’s reasoning. Therefore, we cannot grant Watts

relief on this claim.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/16/2015




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