J-S72025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
            v.                          :
                                        :
SAMUEL BUCKNER,                         :
                                        :
                       Appellant        :     No. 613 WDA 2014


    Appeal from the Judgment of Sentence Entered September 18, 2012,
                In the Court of Common Pleas of Erie County,
             Criminal Division, at Nos. CP-25-CR-0000649-2012
                        and CP-25-CR-0001260-2012.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                     FILED NOVEMBER 24, 2014

      Samuel Buckner (“Appellant”) appeals from the judgment of sentence

imposed following his July 25, 2012 jury conviction of aggravated assault,

recklessly endangering another person (“REAP”), possession of a weapon,

and firearms not to be carried without a license at docket number 649 of

2012.1 We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:



*Retired Senior Judge assigned to the Superior Court.
1
   Appellant pled guilty to fleeing or attempting to elude police officer and
driving under suspension on September 5, 2012, at docket number 1260 of
2012. Appellant does not challenge the judgment of sentence imposed for
those two convictions.
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           On December 26, 2011, Denairo Price and [his uncle] Dion
     Pullium arrived at the Country Fair store in Pullium’s silver Land
     Rover. Pullium went into the store and Price left the vehicle to
     urinate behind a dumpster. As Price walked back towards the
     vehicle, he heard Appellant say ”what’s up” twice. Price and
     Appellant disliked each other so Price removed his cellular
     telephone and shirt in anticipation of a fight. Price, who was
     unarmed, walked toward Appellant and swung at him. Price
     heard a shot, turned around and started to run. Price was then
     shot in the buttocks and arm. Price did not see Appellant with a
     firearm. N.T. Trial (Day 1), 7/24/12, at 25–30, 43.

           Following the shooting, police went to the scene and
     recovered shell casings and the convenience store’s video
     surveillance. The video surveillance reflected that Appellant
     pulled a gun from his waistband and shot at Price four times.
     Police also obtained a videotaped statement from Appellant.
     N.T. Trial (Day 1), 07/24/12, at 58, 64–65, 70–72, 85, 90, 92.

           On July 25, 2012, following a two-day jury trial, Appellant
     was found guilty of the aforementioned offenses.

                                   * * *

           On September 18, 2012, at . . . Docket No. 649 of 2012,
     Appellant was sentenced to a term of 21 to 120 months’
     incarceration at Count 2 (aggravated assault), consecutive to
     Docket No. 1260 of 2012, and a term of 12 to 24 months’
     incarceration at Count 4 (firearms not to be carried without a
     license), consecutive to Count 2. Counts 3 and 5 merged for
     sentencing purposes.

           Appellant did not file a post-sentence motion, nor did he
     take a direct appeal. . . . On September 6, 2013, Appellant filed
     pro se PCRA petitions. . . . Following an evidentiary hearing, this
     Court reinstated Appellant’s post-sentence and appellate rights
     on March 13, 2014. On March 24, 2014, Appellant filed a Motion
     For Post Sentence Relief, which this Court denied on March 26,
     2014.




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Trial Court Opinion, 8/1/14, at 1–2. This appeal followed. The trial court

and Appellant complied with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Appellant presents the following questions:

            [Whether t]he evidence in this case was insufficient to
      prove that the defendant committed the crimes of aggravated
      assault, reckless, [sic] endangerment, possession of a weapon,
      and firearms not to be carried without a license[?]

           [Whether t]he sentences in this case were manifestly
      excessive and clearly unreasonable, especially in their
      consecutiveness[?]

Appellant’s Brief at 2 (full capitalization omitted).

      Appellant first challenges the evidence as insufficient to support the

convictions because the police did not recover a firearm, the victim did not

identify Appellant at trial as the shooter, and other witnesses failed to

identify Appellant at trial as the shooter. Appellant’s Brief at 5. In response,

the Commonwealth argues that the videotaped surveillance and Appellant’s

videotaped    statement     were    sufficient   to     sustain   the   convictions.

Commonwealth’s Brief at 1.

      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, were sufficient to prove every element of the offense beyond

a reasonable doubt.       Commonwealth v. Diamond, 83 A.3d 119 (Pa.

2013). It is within the province of the fact-finder to determine the weight to


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be accorded to each witness’s testimony and to believe all, part, or none of

the evidence. Commonwealth v. James, 46 A.3d 776 (Pa. Super. 2012).

The Commonwealth may sustain its burden of proving every element of the

crime by means of wholly circumstantial evidence.            Commonwealth v.

Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). “[I]n applying the above

test, the entire record must be evaluated and all evidence actually received

must be considered.” Commonwealth v. Estepp, 17 A.3d 939, 944 (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).

       Appellant was convicted of aggravated assault, REAP, possession of a

weapon, and firearms not to be carried without a license. “A person is guilty

of aggravated assault if he: (1) attempts to cause serious bodily injury to

another, or causes such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human

life[.]”   18 Pa.C.S. § 2702(a)(1).     As for REAP, “[a] person commits a

misdemeanor of the second degree if he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily

injury.” 18 Pa.C.S. § 2705. Regarding possession of a weapon, “[a] person

commits a misdemeanor of the first degree if he possesses a firearm or

other weapon concealed upon his person with intent to employ it criminally.”




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18 Pa.C.S. § 907(b).     Lastly, “any person who carries a firearm in any

vehicle or any person who carries a firearm concealed on or about his

person, except in his place of abode or fixed place of business, without a

valid and lawfully issued license under this chapter commits a felony of the

third degree.”   18 Pa.C.S. § 6106(a)(1).     To secure convictions against

Appellant, the Commonwealth had to prove each element of these offenses

beyond a reasonable doubt. Diamond, 83 A.3d 119.

      After setting forth the appropriate standard of review, the trial court

concluded that Appellant’s sufficiency challenge lacked merit:

             Here, the surveillance videotape            and Appellant’s
      videotaped statement reflect that Appellant shot at the victim
      four times. In fact, the defense theory was that Appellant shot
      the victim out of self-defense. Accordingly, the fact that the gun
      was not recovered or that the victim and/or eyewitness did not
      identify him at trial as the shooter is not dispositive.

            The evidence, as well as all reasonable inferences drawn
      therefrom, viewed in the light most favorable to the
      Commonwealth as the verdict winner, was sufficient to sustain
      the jury’s verdict on all counts.    Accordingly, this claim is
      meritless.

Trial Court Opinion, 8/1/14, at 4. Upon review, we agree.

      Although the victim did not identify Appellant in the videotaped

surveillance, he identified Appellant at trial as the man (a) who approached

him outside of the Country Fair store; (b) who he swung at before hearing

gunshots; and (c) who was the only person standing in the area.            N.T.,

7/24/12, at 27–29, 31.    An eyewitness also identified Appellant at trial as


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“the man with the gun” who shot at “the man who raised his fist” (the

victim). Id. at 45–49.

      Additionally, Detective Bizzarro informed the jury that he interviewed

Appellant and obtained a videotaped statement in which Appellant admitted

shooting the victim.     N.T., 7/24/12, at 65–66; Commonwealth Exhibit C.

The detective also commentated over the videotaped surveillance that

Appellant pulled a gun from his right waistband as the victim threw a punch

and fired four shots at the victim. Id. at 67–72, 85.

      Based on the foregoing, we conclude that the evidence admitted at

trial and all reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, were sufficient to prove

every element of the offenses beyond a reasonable doubt.        Diamond, 83

A.3d 119.

      In his second issue, Appellant contends that the trial court erred in

imposing a manifestly unreasonable sentence, and thus, he challenges the

discretionary aspects of his sentence.      Appellant’s Brief at 5.   It is well

settled that there is no absolute right to appeal the discretionary aspects of

a sentence.   Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super.

2006). Rather, 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).




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     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)).

     Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-

case basis.    Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).    As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id. “A

substantial question will be found where the defendant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms



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underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citations omitted).

      Herein, the first three requirements of the four-part test are met;

Appellant brought an appropriate appeal, raised the challenge in his post-

sentence motions, and included in his appellate brief the necessary separate

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).    Therefore, we will next determine whether

Appellant has raised a substantial question requiring us to review the

discretionary aspects of the sentence imposed by the trial court.

      Specifically, in his Pa.R.A.P. 2119(f) statement, Appellant claims that

“the Court erred in sentencing him to consecutive sentences instead of

concurrent sentences and that the sentence was thus manifestly excessive

and clearly unreasonable, especially since the charges all arose from the

same incident.” Appellant’s Brief at 5–6. This Court has instructed that “the

imposition of consecutive rather than concurrent sentences lies within the

discretion of the sentencing court, and a challenge to the imposition of

consecutive   sentences    does    not      raise   a   substantial   question.”

Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005).

Accordingly, to the extent that Appellant asserts an abuse of discretion for

imposing consecutive sentences, such a claim fails to present a challenge

which raises a substantial question to justify this Court’s review. Thus, we




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decline to address this issue. To the extent Appellant asserts an abuse of

the trial court’s discretion in sentencing based on other factors,2 we decline

to address them because Appellant has failed to present argument in a

manner    making    meaningful    appellate   review   possible.      Accord

Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (“Of

particular importance is the provision of [Pa.R.A.P.] 2119(a) that a brief

must contain a developed argument augmented by citation to pertinent

authorities. Arguments not appropriately developed are waived.”).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2014




2
  In the argument section of his brief, Appellant asserts that the sentencing
court failed to consider mitigating factors and imposed a sentence based on
speculation. Appellant’s Brief at 7–8.

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