J-S71017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ROBERT SANDS,

                         Appellant                    No. 244 WDA 2015


          Appeal from the Judgment of Sentence August 25, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0009317-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 27, 2016

      Appellant, Robert Sands, appeals from the judgment of sentence

entered following his convictions of two counts of aggravated assault and

one count of carrying a firearm without a license, a violation of the Uniform

Firearms Act (“VUFA”). We affirm.

      We summarize the history of this case as follows. On April 17, 2013,

at approximately 1:30 p.m., Appellant and Carloto Neal had a confrontation

on the street outside of Mr. Neal’s home in the East Liberty section of

Pittsburgh. The situation arose from a dispute regarding Appellant’s alleged

girlfriend. Mr. Neal’s mother, Jennifer Scott, was also present at the time.

The incident culminated in Appellant pulling a gun, pointing the firearm at

Mr. Neal’s face and chest, and ultimately shooting Mr. Neal in the groin.

Prior to fleeing the scene, Appellant also pointed the gun at Ms. Scott’s face.
J-S71017-15


      In an information filed on August 16, 2013, Appellant was charged

with one count of criminal attempt (criminal homicide), two counts of

aggravated assault, and one count of VUFA. On March 28, 2014, Appellant

proceeded to a nonjury trial and upon motion of defense counsel a mistrial

was granted.       Subsequently, after new counsel was appointed, Appellant

proceeded to a jury trial that commenced on June 16, 2014.

      The trial court summarized the remaining procedural history of this

case as follows:

            On June 17, 2014, [Appellant] was found guilty of two
      counts of aggravated assault, [18 Pa.C.S. §] 2702 (A)(1) and
      [18 Pa.C.S. §] 2702 (A)(4), and carrying a firearm without a
      license, [18 Pa.C.S. §] 6106 (A)(1).1 A pre-sentence report was
      ordered. It was received in time for sentencing on August 25 th.
      At Count 2 - causing serious bodily injury - the Court’s sentence
      was 6-12 years incarceration followed by 8 years of probation. A
      concurrent 1-2 year period of incarceration was imposed at the
      remaining two counts.
            1
              The jury acquitted [Appellant] of attempted
            homicide which was Count One in the Information.

            On September 3, 2014, a Motion to Reconsider Sentence
      was file[d] along with a separate Omnibus Post-Sentence Motion.
      The reconsideration request was denied on September 4th.
      Within the Omnibus [Post-Sentence] Motion was a request to file
      a supplemental motion. It was granted. On October 30, 2014,
      [Appellant] filed his anticipated Supplemen[tal] Post-Sentence
      Motion.    On December [1]2, 2014, the Government finally
      docketed its response. [On January 14, 2015, the Allegheny
      County Director of Court Records issued an order indicating that
      the post-sentence motions were denied by operation of law.] On
      February 11, 2015, this Court authored an opinion addressing
      [Appellant’s] post-sentence arguments. . . . A timely Notice of
      Appeal was docketed on February 10, 2015, and a 1925(b) order
      followed.    [Appellant] timely filed and properly served his
      Concise Statement of Matters Complained of on Appeal.

                                     -2-
J-S71017-15



Trial Court Opinion, 4/6/15, at 1-2 (emphases in original).

       Appellant presents the following issues for our review:

       I. Did the Trial Court err as a matter of law in determining that
       there was sufficient evidence to convict [Appellant] of
       Aggravated Assault?

       II. As such, did the Trial Court err as a matter of law in denying
       [Appellant’s] Motion for a New Trial due to the Verdict against
       the Weight of the Evidence?

       III. Did the sentence imposed by the Trial Court violate the Due
       Process Clause of the Fourteenth Amendment as the sentencing
       factor was not proven beyond a reasonable doubt?

       IV. Finally, were the jury instructions presented by the Judge
       unconstitutional?

Appellant’s Brief at 2.1

       We first address Appellant’s claim that there was insufficient evidence

to support his convictions.         Appellant’s Brief at 6-8.   In reviewing the

sufficiency of the evidence, we must determine whether the evidence

admitted at trial and all reasonable inferences drawn therefrom, viewed in

the light most favorable to the Commonwealth as verdict winner, was

sufficient to prove every element of the offense beyond a reasonable doubt.

Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009).                It is within the
____________________________________________


1
  Appellant has included in the statement of questions presented at issue
number four a claim that the jury instructions were unconstitutional.
Appellant’s Brief at 2. However, we conclude that the claim is abandoned
because Appellant has not developed any argument relating to the trial
court’s instructions to the jury in the argument section of his appellate brief.
Appellant’s Brief at 6-12. See Pa.R.A.P. 2119(a).



                                           -3-
J-S71017-15


province of the fact-finder to determine the weight to be accorded to each

witness’s testimony and to believe all, part, or none of the evidence.

Commonwealth         v.   Cousar,    928    A.2d   1025   (Pa.    2007).     The

Commonwealth may sustain its burden of proving every element of the

crime by means of wholly circumstantial evidence.         Commonwealth v.

Hansley, 24 A.3d 410 (Pa. Super. 2011). Moreover, as an appellate court,

we may not re-weigh the evidence and substitute our judgment for that of

the fact-finder. Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007).

     Instantly, Appellant has abandoned any argument concerning the

sufficiency of the evidence. Regarding sufficiency-of-the-evidence issues, an

appellant must specify the elements upon which the evidence was

insufficient in order to preserve the issue for appeal. See Commonwealth

v. Williams, 959 A.2d 1252, 1257–1258 (Pa. Super. 2008) (finding waiver

where the appellant failed to specify the elements of particular crime not

proven by the Commonwealth). See also Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa. Super. 2009) (finding claim waived under Williams for

failure to specify either in Rule 1925(b) statement or in argument portion of

appellate brief which elements of crimes were not proven beyond a

reasonable doubt).

     Appellant’s     Pa.R.A.P.   1925(b)   statement   presents   the   following

pertinent issue, which fails to specify the elements of the crimes allegedly

not proven by the Commonwealth:


                                      -4-
J-S71017-15


   8. [Appellant] through undersigned counsel will raise the following
      claims on appeal:

      • The evidence was insufficient as a matter of law to convict
      [Appellant] of the one (1) count of Aggravated Assault; Pa. C.S.
      18 §2702§§A1, one (1) count of Aggravated Assault; Pa. C.S 18
      §2702§§A4, and one(1) count of Firearm Not to be Carried
      Without a License; Pa. C.S. 18 §6106§§A1. The evidence, taken
      in the light most favorable to the Commonwealth, failed to prove
      his guilt beyond a reasonable doubt.

Concise Statement (Record Entry 32), 3/18/15, at 2-3.

      In addressing this claim, the trial court stated the following:

             [Appellant’s] initial complaint is the evidence was
      insufficient to sustain each of the three convictions. Concise
      Statement, paragraph 8 (March 18, 2015). This same argument
      was made in his Post–Sentence Motion. The Court addressed
      [Appellant’s] lack of specificity in its post-sentence opinion.
      Despite the Court’s clue that more will be needed for
      preservation purposes, [Appellant’s] Concise Statement fails to
      deliver. The sufficiency arguments have been waived.

Trial Court Opinion, 4/6/15, at 2 (emphases in original).

      Likewise, Appellant has failed to specify in his appellate brief the

elements of the crimes that allegedly were not established.             Rather,

Appellant’s argument consists of citation to case law and challenges to the

credibility and reliability of the testimony offered by Mr. Neal and Ms. Scott

and the lack of physical evidence produced by the Commonwealth.

Appellant’s argument in this regard ends with the following summation:

             Without the firearm, bullets, shell casing, or any further
      investigation done by the police to corroborate the testimony of
      Mr. Neal and his Mother, the Commonwealth’s evidence was not
      sufficient to prove [Appellant’s] guilt beyond a reasonable doubt.
      The jury’s verdict was in error and [Appellant] should have been
      acquitted of the charges pertaining to Aggravated Assault under

                                     -5-
J-S71017-15


     Section 2702 § §A4, as well as Firearm not to be Carried Without
     a License pursuant to Section 6106 § §A1.

Appellant’s Brief at 8.        Consequently, Appellant’s non-specific claim

challenging the sufficiency of the evidence, which fails to state the exact

elements     of   the   particular   crimes   allegedly   not   proven    by   the

Commonwealth, is waived. Williams.

     In his second issue, Appellant argues that the jury’s verdict was

against the weight of the evidence.       Appellant’s Brief at 8-10.     Appellant

alleges that the jury improperly weighed the testimony of Mr. Neal and Ms.

Scott and wrongly ignored the lack of evidence to support their version of

events.    Appellant contends that the jury should have considered the fact

that the gun was never recovered, no bullet was recovered from Mr. Neal,

no testing was done on the hands of Appellant or Neal to determine who

fired the gun, and no photographs or other crime-scene investigatory

evidence was presented.

     In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

           A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Widmer, 560
     Pa.    308,    319,    744    A.2d   745,    751-[7]52   (2000);
     Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
     1189 (1994). A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Widmer, 560
     A.2d at 319-20, 744 A.2d at 752. Rather, “the role of the trial

                                       -6-
J-S71017-15


     judge is to determine that ‘notwithstanding all the facts, certain
     facts are so clearly of greater weight that to ignore them or to
     give them equal weight with all the facts is to deny justice.’” Id.
     at 320, 744 A.2d at 752 (citation omitted). It has often been
     stated that “a new trial should be awarded when the jury’s
     verdict is so contrary to the evidence as to shock one’s sense of
     justice and the award of a new trial is imperative so that right
     may be given another opportunity to prevail.” Brown, 538 Pa.
     at 435, 648 A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review 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. Brown, 648 A.2d at 1189. 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.          Commonwealth v.
           Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
           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.

     Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
     added).

            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:

           The 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

                                    -7-
J-S71017-15


            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.

      Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
      [11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      Our review of the record reflects that the trial court addressed

Appellant’s challenge    to   the   weight   of the   evidence   supporting his

convictions and determined that it lacked merit. Specifically, the trial court

stated the following:

      [Appellant’s] weight challenge fails to convince. The points he
      directs our attention to were matters put before the jury and
      they weighed them and gave them the weight [they] felt
      appropriate. The jury’s acquittal on the most serious charge
      demonstrates they gave careful consideration to the evidence
      including those items brought forth by [Appellant’s] lawyer.

Trial Court Opinion, 4/6/15, at 2 (quoting Trial Court Opinion, 2/11/15, at

3).

      The jury, sitting as the finder of fact, was free to believe all, part, or

none of the evidence against Appellant, as was its right. The jury weighed

the evidence and concluded Appellant perpetrated the crimes in question.



                                      -8-
J-S71017-15


This determination is not so contrary to the evidence as to shock one’s sense

of justice. We decline Appellant’s invitation to assume the role of fact finder

and to reweigh the evidence. Accordingly, we conclude that the trial court

did not abuse its discretion in determining that Appellant’s weight of the

evidence claim lacked merit.        Thus, this claim fails to provide Appellant

relief.

          In his third issue, Appellant argues that the trial court erred in

imposing his sentence.       Appellant’s Brief at 10-12.   Specifically, Appellant

states that he “was sentenced pursuant to an increased offense gravity score

relating to the actual infliction of serious bodily injury, with a score of eleven

(11) as opposed to ten (10). In this instance a score of ten (10) instead of

eleven (11) would have applied without such an injury.” Appellant’s Brief at

10. Basically, Appellant contends that an incorrect offense gravity score was

utilized by the trial court because the jury should not have convicted

Appellant of aggravated assault with serious bodily injury as there was

insufficient evidence to support his conviction.

          Appellant’s claim challenges the discretionary aspects of his sentence.

See Commonwealth v. Lamonda, 52 A.3d 365 (Pa. Super. 2012)

(explaining claim that sentencing court applied incorrect offense gravity

score challenges discretionary aspects of sentencing); Commonwealth v.

Robinson, 931 A.2d 15 (Pa. Super. 2007) (stating miscalculation of offense

gravity score constitutes challenge to discretionary aspects of sentencing);


                                        -9-
J-S71017-15


Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998) (determining

claim of improper calculation of offense gravity score implicates discretionary

aspects of sentencing).

      We note that our standard of review is one of abuse of discretion.

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.   Commonwealth v. Shugars, 895 A.2d 1270, 1275

(Pa. Super. 2006).

      Where an appellant challenges the discretionary aspects of a sentence

there is no automatic right to appeal, and an appellant’s appeal should be

considered to be a petition for allowance of appeal.      Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).             As we observed in

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

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’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 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Objections to the discretionary aspects of a sentence are generally

                                    - 10 -
J-S71017-15


waived if they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed.     Id. (citing Commonwealth v. Mann, 820

A.2d 788 (Pa. Super. 2003)). Moreover, where an appellant fails to comply

with Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived

for purposes of review.   Commonwealth v. Farmer, 758 A.2d 173, 182

(Pa. Super. 2000).

     Herein, the first of the requirements of the four-part test is met

because Appellant brought a timely appeal.         Likewise, our review of the

record reflects that Appellant met the second requirement because he raised

a similar challenge in his post-sentence motion.

     However, Appellant has not met the third requirement of the test

because he failed to comply with the requirements of Pa.R.A.P. 2119(f).

Specifically, Appellant has not filed a concise statement of reasons relied

upon for the allowance of appeal in his brief. The Commonwealth is aware

of the omission and has objected to this deficiency. See Commonwealth’s

Brief at 29. Accordingly, because of the fatal defect in the appellate brief

and the Commonwealth’s objection, we are precluded from reviewing the

merits of Appellant’s sentencing claim and deem it to be waived. Farmer,

758 A.2d at 182. Cf. Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.

Super. 2002) (holding that if the appellant fails to comply with Pa.R.A.P

2119(f), Superior Court may entertain discretionary sentencing claim if




                                    - 11 -
J-S71017-15


Commonwealth does not object to the appellant’s failure to comply with

Pa.R.A.P. 2119(f)).2,    3



       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2016




____________________________________________


2
  In addition, we note that the jury specifically found Appellant guilty of the
crime of “Aggravated Assault: Serious Bodily Injury” under 18 Pa.C.S. §
2702(a)(1). Verdict Sheet, 6/17/14, at 1 (Record Entry 16). Pursuant to
the sentencing guidelines, such a conviction carries an offense gravity score
of 11. 204 Pa.Code § 303.15. Thus, Appellant’s claim that the trial court
abused its discretion at the time of sentencing because it applied an
incorrect offense gravity score for his conviction of aggravated assault under
18 Pa.C.S. § 2702(a)(1) is belied by the record.
3
  To the extent that Appellant has, on previous occasions, attempted to
challenge the legality of his sentence for applying an unconstitutional
mandatory minimum sentence as discussed in the Commonwealth’s brief,
Appellee’s Brief at 25-28, our review of the record reflects that the trial court
did not impose any mandatory minimum sentence in this case.



                                          - 12 -
