J-S56024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                           v.

JUSTIN TYRONE BAXTER

                                Appellant               No. 1752 MDA 2015


              Appeal from the Judgment of Sentence March 24, 2015
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-CR-0000913-2014
                                           CP-22-CR-0005089-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                              FILED AUGUST 26, 2016

          Appellant, Justin Baxter, appeals from the judgment of sentence

entered in the Court of Common Pleas of Dauphin County after a jury

convicted him of aggravated assault,1 carrying a firearm without a license,2

persons not to possess a firearm,3 and simple assault by physical menace.4

We affirm.

          The trial court summarized the factual history as follows.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18   Pa.C.S.A.   §   2702(a)(1).
2
    18   Pa.C.S.A.   §   6106(a)(1).
3
    18   Pa.C.S.A.   §   6105(a)(1).
4
    18   Pa.C.S.A.   §   2701(a)(3).
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      Dion Dickens testified that he was inside 1611 Thompson Street
      when he heard loud voices outside arguing. He went outside and
      saw his daughters, Monique and Tiana, as well as Joseph Payne-
      Casiano, Baxter and Michael Gelsinger near a parked car. After
      telling Payne-Casiano and Baxter to stop arguing, Dion saw
      Baxter go behind a vehicle and heard the “cocking” of a gun.
      Dion then saw Baxter return from behind the car with his hand
      on a gun tucked into his pants. After Baxter returned
      brandishing the gun, Gelsinger told him that “we can light this
      street up” while displaying a gun tucked into his pants. The
      initial altercation subsided with Payne-Casiano and Gelsinger
      returning to their car, and Baxter walking away down toward his
      house on the right side of the roadway. Dion witnessed the car
      driven by Payne-Casiano slowly drive toward Baxter, saw
      Gelsinger reach out of the passenger window and fire multiple
      shots toward Baxter, who at the time was adjacent to the vehicle
      on Gelsinger’s side. Dion then saw Baxter fire shots back toward
      Payne-Casiano and Gelsinger.

      Monique Dockens also testified that an initial altercation between
      Payne-Casiano, Gelsinger and Baxter occurred outside of her
      house. She testified that at some point she heard Baxter cock
      something and then saw him display a gun.

                                       ***

Trial Court Memorandum, 7/28/15, at 1-2.

      The trial court sentenced Baxter to an aggregate term of 9½ to 19

years’ imprisonment. Baxter’s post-trial motion for reconsideration was

denied. This timely appeal followed.

      On appeal, Baxter raises two issues for our review. In his first issue,

Baxter contends that his aggravated assault conviction is against the weight

of the evidence. In his second issue, Baxter challenges discretionary aspects

of his sentence. Specifically, Baxter argues that the trial court erred in

imposing consecutive sentences for his aggravated assault and carrying a

firearm without a license convictions.

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      We will first address Baxter’s weight of the evidence claim.

      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 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. Orie, 88 A.3d 983, 1015-1016 (Pa. Super. 2014)

(citation omitted).




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      After reviewing the record, we discern no abuse of discretion in the

court’s assessment of the credibility of the witnesses or weight of the

evidence at trial. Thus, we conclude that Baxter’s first issue merits no relief.

      We now turn to Baxter’s second issue, in which he challenges the

discretionary aspects of his sentence. We note that an appellant’s right to

appeal the discretionary aspects of his sentence is not absolute. See

Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006).

Rather, an appellant must first file a “petition for allowance of appeal.” 42

Pa.C.S.A. § 9781(b). An appellate court may grant allowance of the appeal

“where it appears that there is a substantial question that the sentence

imposed is not appropriate under … [the sentencing guidelines].” Id. The

procedure for filing this petition is set forth in Pa.R.A.P. 2119(f), which

provides as follows.

      An appellant who challenges the discretionary aspects of a
      sentence in a criminal matter shall set forth in a separate section
      of the brief a concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of a
      sentence. The statement shall immediately precede the
      argument on the merits with respect to the discretionary aspects
      of the sentence.

      Here, Baxter failed to include a separate Rule 2119(f) statement in his

brief. The Commonwealth objected to Baxter’s omission. Because Baxter

failed to comply with Rule 2119(f) and the Commonwealth objected to the

omission, this Court may not review the merits of Baxter’s claim. See




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Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).5

Accordingly, we deny allowance of appeal.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




____________________________________________


5
  Even if Baxter had included a Rule 2119(f) statement in his brief, we would
not have reached the merits of his appeal because the issue he raised failed
to present a substantial question. See Commonwealth v. Austin, 66 A.3d
798, 808 (Pa. Super. 2013) (“[T]he imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances….”) (emphasis added). That is simply not the case
here.



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