J-S07014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC BAKER                                 :
                                               :
                       Appellant               :   No. 2397 EDA 2018

          Appeal from the Judgment of Sentence Entered April 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002099-2016

BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                 Filed: March 23, 2020

        Appellant Eric Baker appeals from the judgment of sentence entered

after a jury found him guilty of robbery, theft by unlawful taking, and simple

assault.1 On appeal, Appellant challenges the weight of the evidence and the

discretionary aspects of his sentence. We affirm.

        We state the facts as set forth by the trial court:

        On Saturday[,] November 7, 2015, at approximately 5:30 PM,
        Appellant approached the locked door of . . . a hat store located
        [in] Philadelphia, PA. Appellant told the owner, Soo Ja Kim, [who
        was then seventy-one years old], he needed a hat for his mother’s
        funeral. Ms. Kim let him in and watched Appellant as he stood in
        the middle of the store. Smelling strongly of alcohol when he
        approached Ms. Kim, she told him to “come back next time.”
        Suddenly, he grabbed her neck with both his hands, and strangled
        her saying, “Give me money. I just came out of prison and I need
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. §§ 3701(a)(1), 3921(a), and 2701(a), respectively.
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     money.” She fell to the ground, then went to the cash register,
     and gave Appellant $600. Appellant then ordered her to “take off
     [her] clothes and go to the back.” As she was removing her
     jacket, boxes and hats fell from the wall, which she used as an
     opportunity to escape the building. Ms. Kim ran next door and
     called the police, who arrived shortly thereafter, unable to locate
     . . . Appellant.

     Philadelphia Police Officer Frank Sackowsky, while on patrol,
     received the 911 call for the robbery . . . . He arrived on the scene
     at 5:59 PM, and obtained a description of the perpetrator in order
     for the police to conduct a search in the area. Ms. Kim described
     her assailant as a [b]lack male weighing approximately 160
     pounds, standing 5 [feet] 8 inches, and wearing black clothing.

     Ms. Kim testified she saw . . . Appellant three more times before
     his arrest on Friday evening November 13, 2015, nearly a week
     after the robbery. The first occasion was on Thursday evening
     November 12, 2015, five days after the robbery. Ms. Kim was
     taking out the trash and passed by John Lewis, also known as
     “Johnnie,” an employee at the neighboring [shop] when she saw
     Appellant walking on the other side of the street. “Shaking,” she
     pointed Appellant out to Mr. Lewis and recognized him as an
     individual Mr. Lewis would regularly spend time with in the
     mornings on the corner of the street. Mr. Lewis explained to Ms.
     Kim that though she referred to Appellant as his “brother,” he
     used that term to describe Appellant as his friend, and not his
     actual blood relative.

     The next morning, on Friday[,] November 13, 2015, Ms. Kim saw
     Appellant for a second time. Startled, she hid herself in her store
     as she watched him walk by. Finally, [later that day], at around
     6 PM, Ms. Kim saw Appellant with Mr. Lewis across the street from
     her store. Mr. Lewis walked over with Appellant who was either
     high or inebriated at the time and asked Ms. Kim whether
     Appellant was the man who robbed her. After she confirmed
     Appellant’s identity as the perpetrator of the robbery, Mr. Lewis
     called the police and Appellant was arrested shortly thereafter.

     On February 10, 2016, Ms. Kim identified Appellant in a lineup as
     the perpetrator of the crime.




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Trial Ct. Op., 6/20/19, at 2-4 (citations omitted).      At trial, we note that

Appellant’s trial counsel cross-examined Ms. Kim and Mr. Lewis about Ms.

Kim’s identification and highlighted contradictions and discrepancies in her

testimony. See, e.g., N.T. Trial, 12/18/17, at 28. Ultimately, the trial court

issued a Kloiber2 instruction. Id. at 129. A jury convicted Appellant of the

above crimes. The trial court sentenced Appellant to an aggregate sentence

of ten to twenty years’ imprisonment.3

        Appellant timely filed a post-sentence motion challenging the weight of

the evidence and the discretionary aspects of his sentence. On August 9,

2018, the trial court denied Appellant’s post-sentence motion by operation of

law.

        Appellant timely appealed. On January 8, 2019, Appellant filed a Rule

1925(b) statement.4 On appeal, Appellant raises the following issues:

____________________________________________


2 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). “A Kloiber
instruction informs the jury that an eyewitness identification should be viewed
with caution when either the witness did not have an opportunity to view the
defendant clearly, equivocated on the identification of the defendant, or has
had    difficulties  identifying   the   defendant     on    prior   occasions.”
Commonwealth v. Colon, ___ A.3d ___, ___, 2020 PA Super 43, 2020 WL
856453 at *5 (filed Feb. 21, 2020) (citation omitted).
3   We discuss the sentencing hearing in further detail below.
4 On August 30, 2018, Appellant filed a preliminary Pa.R.A.P. 1925(b)
statement and a motion for extension of time to file a supplemental Rule
1925(b) statement pending receipt of the notes of testimony. The statement
asserted that on August 14, 2018, the trial court ordered Appellant to file a
Rule 1925(b) statement, but the order is not in the docket or the record. The



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       1. Did the trial court err when it found Appellant . . . guilty of the
       criminal offenses . . . as the verdict was against the weight of the
       evidence?

       2. Did the trial court err when it sentenced Appellant . . . to not
       less than nine (9) years to not more than eighteen (18) years
       incarceration for robbery . . . as this sentence “departed” from or
       was outside (i.e. above) the Pennsylvania Sentencing guidelines
       and, due to the fact that there were mitigating factors, this
       sentence was “manifestly excessive?”

Appellant’s Brief at 2.

       In support of his first issue, Appellant argues that Ms. Kim’s

identification of Appellant was unreliable. Appellant highlights discrepancies

in the testimony of Ms. Kim and other witnesses, which in his view undermine

the reliability of Ms. Kim’s identification. Id. at 29-31. For example, Appellant

asserts that Ms. Kim testified she did not know Appellant, but that Mr. Lewis

testified that Ms. Kim recognized Appellant as Mr. Lewis’s “brother.” Id. at

29-30. Another example was that Ms. Kim described her assailant as having

a full beard, but when she identified Appellant on November 13, 2015, he was

clean shaven.       Id. at 32.      Appellant concludes that because Ms. Kim’s

identification was inconsistent and unreliable, the verdict was against the

weight of the evidence. Id. at 32-33.


____________________________________________


trial court never ruled on Appellant’s motion for extension of time, but on
October 2, 2018, the trial court again ordered Appellant to comply with Rule
1925(b). On October 22, 2018, Appellant filed another motion for extension
of time, which the trial court did not rule on. Neither the trial court nor the
Commonwealth has stated that Appellant’s Rule 1925(b) statement was
untimely.


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      The standard of review for a claim that the verdict is against the weight

of the evidence is well-settled:

      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. 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. Rather, the role of
      the trial 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.
      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.

      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. 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:

      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 exercised

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      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. Soto, 202 A.3d 80, 97 (Pa. Super. 2018) (citation and

quotation marks omitted). “[E]vidence of identification need not be positive

and certain to sustain a conviction. . . .       Given additional evidentiary

circumstances, any indefiniteness and uncertainty in the identification

testimony goes to its weight.” Commonwealth v. Orr, 38 A.3d 868, 874

(Pa. Super. 2011) (en banc) (citations and quotation marks omitted).

      Instantly, it was for the jury to evaluate the reliability of Ms. Kim’s

identification testimony, as well as any conflicting testimony.        See id.

Appellant’s trial counsel cross-examined Ms. Kim and Mr. Lewis regarding Ms.

Kim’s identification testimony and highlighted the discrepancies at trial. See,

e.g., N.T. Trial, 12/18/17, at 28. Indeed, the trial court gave a Kloiber jury

instruction given the contradicting testimony. Id. at 129. The jury resolved

the conflicts and credibility adverse to Appellant, and we cannot find that the

trial court abused its discretion in denying Appellant’s weight claim.      See

Soto, 202 A.3d at 97.

      Before   summarizing   Appellant’s   argument   for   his   second   issue

challenging the discretionary aspects of the sentence, we set forth the

following as background. After the jury convicted Appellant, the trial court

ordered a pre-sentence investigation and mental health evaluation reports.

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     The trial court then held a sentencing hearing, at which the parties

agreed that the standard range sentence for felony-one robbery was sixty to

seventy-two months, plus or minus twelve months.       N.T. Sentencing Hr’g,

4/2/18, at 5.   The trial court also noted it had Appellant’s pre-sentence

investigation and mental health evaluation reports.         Id. at 3.      The

Commonwealth requested (1) nine to eighteen years’ imprisonment for

robbery followed by one to two years’ imprisonment for simple assault, or, in

the alternative (2) ten to twenty years’ imprisonment for robbery with a

concurrent sentence of one to two years’ imprisonment for simple assault. Id.

at 6. The trial court asked the Commonwealth if the recommended sentences

exceeded the standard sentencing guidelines. The Commonwealth replied in

the affirmative and acknowledged that both of the recommended robbery

sentences were “aggravated” sentences:

     THE COURT: Is your request outside of the guidelines?

     [Assistant district attorney]: It is, Your Honor, and the
     Commonwealth is asking to aggravate despite the guidelines in
     this case.

     THE COURT: Is this a legal sentence?

     [Assistant district attorney]: This would be a legal sentence, Your
     Honor, as it -- it is the maximum sentence that Your Honor can
     give on the robbery. As I stated before, Your Honor, 10 to 20 is
     the max that Your Honor could give on the robbery charge and 1
     to 2 years is the maximum sentence Your Honor could give on the
     simple assault. Ten to 20 years on the robbery and a 1 to 2 year
     concurrent sentence on simple assault, making the total sentence
     10 to 20 years a legal sentence. It is the legal maximum that
     Your Honor can give. Your Honor could also give a 9 to 18 on the
     F1 robbery and a 1 to 2 on the simple assault and make those

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      consecutive. That would also be a legal sentence. Nevertheless,
      9 to 18 would also be an aggravated sentence for that robbery.
      The Commonwealth has stated its specific reasons why
      aggravating in this case is appropriate. This is not a simple corner
      robbery where someone gets, you know, held up and they take
      their money and run away quickly. This is a physical attack on
      Ms. Kim, an elderly immigrant woman in her own shop where she
      had no one to help her and no one was able to see what was going
      on. She was physically assaulted and robbed and potentially
      worse, possibly raped in the back of her store. So based on all of
      that, that is why the Commonwealth is asking for that maximum
      sentence.

Id. at 15-16.

      After hearing from Appellant’s counsel, who requested a standard

guideline sentence of sixty to seventy-two months’ imprisonment, the trial

court stated as follows:

      I’m in agreement with the Commonwealth that this sentence
      should be aggregated and I do aggravate your sentence for the
      following reasons:

      The victim in this case was female. Additionally, the victim was
      elderly. She was 71 years old. I also aggravated based on your
      lack of remorse for your actions. I further aggravate this sentence
      on the repetitiveness of your crime. This is not your first robbery.
      It is, in fact, your third robbery.

      I’m sentencing you to 9 to 18 years on the robbery and 1 to 2
      years on the simple assault [to be served consecutively].

Id. at 25-26.

      On appeal, Appellant challenges his sentence as manifestly excessive.

Appellant’s Brief at 35, 37. Appellant faults the trial court for describing the

sentence as “aggravated” as opposed to a “departure” sentence. Id. at 37.

In Appellant’s view, this error violated 42 Pa.C.S. § 9721(b), and he must be


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resentenced.     Id. at 38.   Appellant also argues that the sentence was

excessive given his mental health issues and alcoholism. Id. Because the

sentence was more punitive than rehabilitative, Appellant asserts he should

be resentenced. Id.

      It is well-settled:

      A challenge to the discretionary aspects of a sentence is not
      appealable as of right. Therefore, before we may exercise
      jurisdiction to reach the merits of [the defendant’s] claim, we
      must verify that [the defendant’s] appeal is properly before this
      Court—that is, that his appeal was timely filed and that the issues
      he seeks to raise were properly preserved. If so, we must then
      determine whether [the defendant’s] brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence pursuant to
      Appellate Rule 2119(f), and whether that concise statement raises
      a substantial question that the sentence is appropriate under the
      sentencing code. Only if the appeal satisfies these requirements
      may we proceed to decide the substantive merits of [the
      defendant’s] claim.

                                  *    *     *

      A defendant presents a substantial question when he sets forth a
      plausible argument that the sentence violates a provision of the
      sentencing code or is contrary to the fundamental norms of the
      sentencing process.

Commonwealth v. Luketic, 162 A.3d 1149, 1159-60 (Pa. Super. 2017)

(citations omitted and formatting altered). A claim that the trial court imposed

a   manifestly    excessive   sentence      raises   a   substantial   question.

Commonwealth v. Roane, 204 A.3d 998, 1002-03 (Pa. Super. 2019). Here,

Appellant has timely filed a notice of appeal, preserved his issue in a post-

sentence motion, included a Rule 2119(f) statement, and has raised a


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substantial question. See id.; Luketic, 162 A.3d at 1159-60. We therefore

examine Appellant’s sentencing claim.

     Our review is governed by the following principles:

        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.

     When imposing a sentence, the sentencing court is required to
     consider the sentence ranges set forth in the Sentencing
     Guidelines, but is not bound by the Sentencing Guidelines. A court
     may depart from the guidelines if necessary, to fashion a sentence
     which takes into account the protection of the public, the
     rehabilitative needs of the defendant, and the gravity of the
     particular offense as it relates to the impact on the life of the
     victim and the community. When a court chooses to depart from
     the guidelines however, it must demonstrate on the record, as a
     proper starting point, his awareness of the sentencing guidelines.
     Further, the court must provide a contemporaneous written
     statement of the reason or reasons for the deviation from the
     guidelines.

     When reviewing a sentence outside of the guideline range, the
     essential question is whether the sentence imposed was
     reasonable. An appellate court must vacate and remand a case
     where it finds that the sentencing court sentenced outside the
     sentencing guidelines and the sentence is unreasonable.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citations

omitted and formatting altered). The inquiry into the reasonableness of a

sentence is difficult to define. Commonwealth v. Walls, 926 A.2d 957, 964

(Pa. 2007).


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      When reviewing the record, 42 Pa.C.S. § 9781 requires that we

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).

      “A sentence may be found to be unreasonable after review of Section

9781(d)’s four statutory factors . . . .” Walls, 926 A.2d at 964. Additionally,

a sentence may also be unreasonable if it was imposed “without express or

implicit consideration” of the protection of the public, the rehabilitative needs

of the defendant, and the gravity of the particular offense as it relates to the

impact on the life of the victim and the community as required by 42 Pa.C.S.

§ 9721(b). Id.

      This Court has held that

      where the trial court deviates substantially from the sentencing
      guideline range it is especially important that the court consider
      all factors relevant to the determination of a proper sentence.
      Such factors justifying an upward departure, however, may not
      include those already taken into account in the guidelines’
      calculations.

Commonwealth v. Messmer, 863 A.2d 567, 573 (Pa. Super. 2004)

(citations omitted and formatting altered). This Court should not reweigh the

proper sentencing factors considered by the trial court and impose our own

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judgment in the place of the trial court. Commonwealth v. Macias, 968

A.2d 773, 778 (Pa. Super. 2009).

      Here, as set forth above, the trial court was aware of the sentencing

guidelines and considered the sentencing recommendations of both parties.

N.T. Sentencing Hr’g at 5. Following our review of the factors set forth in

Section 9781(d), we conclude that the trial court properly considered the

nature and circumstances of the offense and the history and characteristics of

Appellant, in addition to the sentencing guidelines. See 42 Pa.C.S. § 9781(1).

Moreover, the trial court had ample opportunity to observe Appellant at trial

and sentencing, and it had the benefit of a pre-sentence investigation and

mental health evaluation reports. See id.; Commonwealth v. Walls, 926

A.2d 957, 967 n.7 (Pa. 2007) (stating that when PSI exists, we “presume that

the sentencing judge was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors”); see also N.T. Sentencing Hr’g at 3.      The trial court

outlined its reasons for imposing Appellant’s sentence, which expressed

appropriate consideration for the protection of the public, the gravity of the

offense and the impact on the life of Ms. Kim, as well as Appellant’s

rehabilitative needs and mitigating factors. See N.T. Sentencing Hr’g at 25-

26; 42 Pa.C.S. § 9721(b). Accordingly, Appellant’s claims are meritless, and

we see no reason to disturb the trial court’s sentencing determinations.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/20




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