J-S15023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NUWRULDYIN JOHNSON                         :
                                               :
                       Appellant               :   No. 1333 WDA 2019

          Appeal from the Judgment of Sentence Entered June 19, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0011272-2018


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

MEMORANDUM BY OLSON, J.:                                  FILED APRIL 3, 2020

        Appellant, Nuwruldyin Johnson, appeals from the judgment of sentence

entered on June 19, 2019, as made final by the denial of Appellant’s

post-sentence motion on July 31, 2019. We affirm.

        The trial court thoroughly summarized the underlying facts of this case:

          On August 27, 2018, at approximately 10:00 a.m., an
          argument ensued between [Appellant] and his girlfriend,
          [T.G. (hereinafter “the Victim”)], at her Pittsburgh apartment
          where they were both residing. During the course of this
          argument, [the Victim] asked [Appellant] to leave the home
          and take his belongings with him. Initially, [Appellant]
          started to gather his things, but then he approached [the
          Victim], getting within mere inches of her face. [The Victim]
          told [Appellant] that "he needed to back up and just get his
          stuff and leave."

          [The Victim] then tried to "push him back and walk away,"
          but that only escalated the situation. [Appellant] threw [the
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*   Former Justice specially assigned to the Superior Court.
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       Victim] "down to the bed," and, when she tried to get back
       up, he pushed her against the door of her closet and "tried to
       choke" her. He placed "both of his hands around" her neck.
       She was unable to breathe or speak. [The Victim] testified
       that "he was squeezing so tight I couldn't get no air in, that's
       why I couldn't even speak."

       As [Appellant] was squeezing her neck with his hands, [the
       Victim] tried to defend herself by shoving [Appellant] away
       from her. [Appellant] released her from his grasp, shoving
       her to the floor and causing her to sustain scrapes on her leg
       that spanned the length of her shin to her knee. [Appellant]
       threatened [the Victim] that, if she did not stop fighting back,
       he would have "his sisters and cousin" come to [the Victim’s]
       house to "handle" her, which she interpreted as a threat to
       have his family, who lived nearby, come beat her up. [The
       Victim] told [Appellant] that she was going to call 911, and
       [Appellant] stormed out of the house.

       [The Victim] called 911 after [Appellant] left. Responding
       Officer lani Williams, of the City of Pittsburgh Police
       Department, promptly arrived on the scene and observed
       that [the Victim] had "a large, [thick and red] scratch mark
       on [the front of] her left leg, bruises on both her arms, and
       redness to her neck.” [The Victim] declined Officer Williams'
       invitation to seek medical attention for her injuries, but she
       was advised of the [protection from abuse (PFA)] process.
       [The Victim] estimated that the bruising on her neck lasted
       for approximately one [] week.

       [Appellant] testified on his own behalf at trial and provided a
       much different account of the events.              According to
       [Appellant], he and [the Victim] had been having problems,
       and he decided to leave her that morning. When he began
       packing his things, [the Victim] grew upset and started
       throwing his belongings around the room. She told him "[i]f
       you [are] going to leave, do not come back," to which he
       replied, "I didn't plan on it." [The Victim] then took his wallet,
       which contained her bus pass. [Appellant] testified that he
       told her that he needed to use the pass one more time to
       transport his belongings, and he promised that he would
       bring it back to her. He claimed that [the Victim] told him
       that he could not use it and that she said, "no, give me my


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           things now." [The Victim] "started reaching and grabbing" at
           [Appellant].

           [Appellant] further testified that [the Victim] was "pulling" on
           his pants, trying to go into his pockets, and that they were
           "rolling around on the floor." He claimed he was telling [the
           Victim] to stop and leave him alone, and that he pushed her
           on the bed and got on top of her because she made him
           angry. He told her to "[j]ust chill," then tried to get back up
           and gather his things, but she continued to grab at him. At
           that point, [Appellant] decided that he did not care anymore,
           and he ran out of the house and to his cousin's residence. He
           asked his cousin to retrieve his things later. [Appellant]
           claimed that [the Victim] threatened to call the police if he
           left. He denied that he ever strangled [the Victim], but he
           admitted that he told her "[y]ou know who my family is."
           [Appellant] also never attempted to contact the authorities
           to report that [the Victim] was the one who attacked him.

Trial Court Opinion, 12/12/19, at 4-7 (citations omitted).

        The Commonwealth charged Appellant with strangulation, simple

assault, and terroristic threats.1 Following a bench trial, the trial court found

Appellant guilty of strangulation and simple assault and not guilty of terroristic

threats.     N.T. Trial, 3/20/19, at 39.         On June 19, 2019, the trial court

sentenced Appellant to serve a mitigated-range sentence of four to eight years

in prison, followed by two years of probation, for the strangulation conviction.2

N.T. Sentencing, 6/19/19, at 15.



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1   18 Pa.C.S.A. §§ 2718(a)(1), 2701(a)(1), and 2706(a)(1), respectively.

2 The trial court also sentenced Appellant to serve two years of probation for
the simple assault conviction. The trial court ordered that Appellant serve this
term concurrently to the probationary term for the strangulation conviction.
N.T. Sentencing, 6/19/19, at 15.


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      Appellant filed timely a post-sentence motion and claimed: 1) that the

trial court’s decision was against the weight of the evidence because he

testified he never strangled the victim, he testified that “he and the victim

tussled in a mutual encounter,” and the “office[r] could not testify to any

injuries on [the victim’s] neck;” and 2) his mitigated-range sentence was

excessive because he suffers from mental health issues, he “has a JRS plan,”

and he “believes he can be a productive member of society.”       Appellant’s

Post-Sentence Motion, 6/28/19, at 1-2; Appellant’s Motion to Reconsider

Sentence, 6/28/19, at 1-2.

      On July 31, 2019, the trial court denied Appellant’s post-sentence

motion and Appellant filed a timely notice of appeal from his judgment of

sentence. Appellant raises two claims on appeal:

        [1.] Was the verdict against the weight of the evidence when
        [the Victim’s] testimony should not have been believed and
        the situation was more akin to mutual combat?

        [2.] Is [Appellant’s] sentence of [four to eight] years of
        incarceration manifestly excessive and an abuse of the
        sentencing court’s discretion despite being in the mitigated
        range of the guidelines as that sentence is too great based
        upon the circumstances of the offense and that [Appellant’s]
        two children will now be placed up for adoption?

Appellant’s Brief at 6 (some capitalization omitted).

      Appellant first claims that the trial court’s decision was against the

weight of the evidence.

      As our Supreme Court explained:




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        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
        [factfinder’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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (quotations

and citations omitted).

      “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.” Id. at 1055. Our Supreme Court summarized:

        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, [the
        Pennsylvania Supreme Court has] explained:



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            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.

Id. (quotations, citations, and emphasis omitted).

      According to Appellant, the trial court’s decision was against the weight

of the evidence because:

        The testimony of [the Victim] of being choked and repeatedly
        thrown on the ground by her slightly-built[] ex-boyfriend,
        who was ending their relationship should be suspect, making
        her inherently unreliable as to make the [decision] in the
        instant case pure conjecture. . . .

        [Further,] the facts of the instant case strongly suggest that
        [the Victim] started the physical fight and continued to fight
        in the altercation leading to her injuries. She testified that it
        was indeed a “two-sided fight.”

Appellant’s Brief at 19-20.

      The trial court ably explained why it rejected Appellant’s weight of the

evidence challenge:

        As noted, [the trial] court, which sat as the fact-finder in this
        case, carefully studied the tone and demeanor of the
        witnesses in this case. [The trial] court found [the Victim] to
        be highly credible. She was confident and consistent in her
        testimony, and her testimony was corroborated by the
        observations made by the responding officer, who [observed]
        the scrapes on her leg and the redness to her neck when she
        responded to the domestic violence call shortly thereafter.



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        Moreover, the [trial] court did not find [Appellant’s]
        testimony to be credible in the least. His testimony had
        material inconsistencies and was unsupported by the other
        credible evidence in the record. For example, [Appellant]
        twice testified on direct examination that he pushed the
        victim onto the bed:

            I did push her onto the bed because she said something
            bad, kind-of made me mad, I won't lie to you. She said:
            If you are going to be petty I am going to be petty, as
            well. So I push her on the bed, and I am on top of her.

        However, on cross-examination, [Appellant] testified that
        "yes, I was on top of her, but I never pushed her."
        [Appellant’s] version of events also failed to account for the
        injuries that were readily observable by law enforcement
        shortly after the altercation. The [trial] court also found his
        explanation of his comment regarding "you know who my
        family is" to be contrived and self-serving. [Appellant’s]
        testimony simply failed to carry "the ring of truth,"
        particularly when considered against the testimony provided
        by the [V]ictim and the responding officer.

Trial Court Opinion, 12/12/19, at 10-12 (emphasis, citations, and corrections

omitted).

      Thus, as the trial court explained, it rejected Appellant’s weight of the

evidence challenge because, after hearing the Victim and Appellant testify, it

believed the Victim and disbelieved Appellant. On appeal, Appellant simply

asks that we reweigh the evidence to favor his version of the events. See

Appellant’s Brief at 17-20.         However, this is not our role.            See

Commonwealth v. Williams, 854 A.2d 440, 445 (Pa. 2004) (“[i]n criminal

proceedings, the credibility of witnesses and weight of evidence are

determinations that lie solely with the trier of fact. The trier of fact is free to

believe all, part, or none of the evidence. [An appellate court] will not reweigh



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the evidence and substitute [its] judgment for that of the factfinder”)

(quotations omitted).

      The trial court’s decision in this case was based upon its credibility

determinations and, as is evident by the trial court’s thorough explanation in

its opinion, was based upon its careful and considered evaluation of the

evidence. The trial court’s denial of Appellant’s weight of the evidence claim

– which simply asked the trial court to believe his version of the events – was

not an abuse of discretion. Therefore, Appellant’s first claim on appeal fails.

      For Appellant’s second claim on appeal, Appellant contends that the trial

court abused its discretion in imposing a mitigated-range sentence of four to

eight years in prison for the strangulation conviction.     Appellant’s Brief at

13-16. Specifically, Appellant claims that the trial court failed to consider the

mitigating evidence that he suffers from mental health problems and that his

“two children will now be placed up for adoption.” See id. at 6.

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

“[S]entencing is a matter vested in the sound discretion of the sentencing

judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).

Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

      As this Court explained:

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         [t]o reach the merits of a discretionary sentencing issue, we
         conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
         903; (2) whether the issue was properly preserved at
         sentencing or in a motion to reconsider and modify sentence,
         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).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

       In the case at bar, Appellant filed a timely post-sentence motion and

notice of appeal. Further, Appellant’s post-sentence motion claimed that his

sentence is manifestly excessive because the trial court failed to consider the

mitigating evidence that Appellant suffers from mental health issues.

Appellant’s Motion to Reconsider Sentence, 6/28/19, at 1. Thus, Appellant

preserved his appellate claim that, at sentencing, the trial court failed to

consider his mental health problems.3            We will now determine whether

Appellant’s claim presents a “substantial question that the sentence appealed

from is not appropriate under the Sentencing Code.” Cook, 941 A.2d at 11.


____________________________________________


3 Appellant waived any claim that the trial court failed to consider, as
mitigating evidence, the fact that his “two children will now be placed up for
adoption.” See Appellant’s Brief at 6. Appellant did not raise this claim at the
sentencing hearing or in his post-sentence motion. See Pa.R.Crim.P. 720;
Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal”); Commonwealth v. Cartrette, 83
A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived”).


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       Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were: (1) inconsistent with

a specific provision of the Sentencing Code; or (2) contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. McKiel,

629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748

A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.

2000).     Additionally, in determining whether an appellant has raised a

substantial question, we must limit our review to Appellant’s Rule 2119(f)

statement.     Goggins, 748 A.2d at 726.           This limitation ensures that our

inquiry remains “focus[ed] on the reasons for which the appeal is sought, in

contrast to the facts underlying the appeal, which are necessary only to decide

the appeal on the merits.” Id. at 727 (internal emphasis omitted).

       As to Appellant’s first claim on appeal, Appellant’s Rule 2119(f)

statement contends that his sentence is manifestly excessive because the trial

court failed to consider the mitigating factor that he suffers from mental

illnesses. Appellant’s Brief at 14.

       This Court has “held that an excessive sentence claim – in conjunction

with an assertion that the court failed to consider mitigating factors – raises a

substantial question.” Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.

Super. 2015) (internal quotations and citations omitted).4           Therefore, we

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4 We note that we have also “held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial



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conclude that Appellant has presented a substantial claim allowing for our

review.

        Nevertheless, Appellant’s claim that the trial court abused its discretion

in failing to consider this mitigating factor immediately fails because, during

Appellant’s sentencing hearing, the trial court expressly stated that it

considered the pre-sentence investigation report. N.T. Sentencing, 6/19/19,

at 2-3. Given this fact, we must “presume that the sentencing judge was

aware of relevant information regarding [Appellant’s] character and weighed

those     considerations       along      with     mitigating   statutory   factors.”

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

        We further note that the trial court also stated in its opinion that, in

fashioning Appellant’s sentence, it did consider Appellant’s mental health

problems – but that it concluded a term of four to eight years in prison was

warranted under the facts of the case. See Trial Court Opinion, 12/12/19, at

15. As the trial court explained:

          Simply because mitigating factors were at play did not mean
          that this court was required to assign them more weight at
          the expense of other, more serious concerns that far
          outweighed any mitigating evidence. The fact remains that
          [Appellant] was convicted of crimes that involved him
          strangling and assaulting his girlfriend, which, when

____________________________________________


question for our review.” Commonwealth v. Eline, 940 A.2d 421, 435 (Pa.
Super. 2007) (internal quotations, citations, and corrections omitted); see
also Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super. 2018)
(collecting cases). Nevertheless, in light of our conflicting precedent, we will
review the merits of Appellant’s discretionary aspects of sentencing claim.


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        considered against his criminal history, indicated a pattern of
        assaultive and threatening behavior.

        Indeed, as noted by the Assistant District Attorney at
        sentencing, [Appellant] had a high prior record score, and he
        is considered an RFEL (or repeat-felon) at the age of 31. This
        high prior record score was due to convictions for, inter alia,
        robberies (including at least one armed robbery), terroristic
        threats, simple assault, being a person not to possess,
        possessing a firearm with an altered manufacturer's number,
        and endangering the welfare of children. [Appellant’s]
        classification as an RFEL did not adequately "speak to the
        extent of his criminal history" because "[i]f we didn't stop
        counting at five, he would be closer to a 15, which is not an
        [RFEL] by a little bit, but it is [RFEL] by quite a bit."

        In setting forth its justification for the sentence, the [trial]
        court noted the following:

           When I look at your background, I understand you're not
           paper, but what you have done is reflected in this paper,
           and what you have done . . . robbery, robbery, simple
           assault, endangering the welfare of children, possessing
           firearms when you are a person not to possess. These
           things - - the first robbery was the longest one ago, 2005.
           Everything else is 2014, 2016, 2017, that's within the last
           couple of years.

        The [trial] court found that [Appellant’s] history and
        background demonstrated [Appellant’s] inability to control
        his actions, which made him a danger to society. While the
        [trial] court considered [Appellant’s] willingness to make
        substantial changes in his life, it noted that [Appellant] has
        had prior opportunities to receive treatment and make
        changes. [Appellant] had previously had a JRS service plan,
        but he had failed to take advantage of the services, resources
        and support offered by such a plan. The [trial] court also
        found that a more lenient sentence would not be sufficient to
        deter him from future criminal activity because [Appellant]
        had previously received three [] county-length sentences
        that had failed to provide adequate deterrence.

Trial Court Opinion, 12/12/19, at 16-17 (citations omitted).



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      Thus, as is apparent from the record, the trial court considered and

weighed the mitigating evidence in this case. Appellant’s claim to the contrary

is belied by the record and, thus, fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2020




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