J-S04009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHEEK R. BLACKSTONE                      :
                                               :
                       Appellant               :   No. 307 MDA 2018

          Appeal from the Judgment of Sentence December 21, 2006
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0001725-2006,
                           CP-22-CR-0001726-2006

BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 13, 2019

       Appellant, Rasheek R. Blackstone, appeals nunc pro tunc from the

December 21, 2006 judgment of sentence. We affirm.

       We previously summarized the initial procedural history as follows:

              On October 13, 2006, following trial, a jury convicted
       Appellant of two counts of recklessly endangering another person
       [(“REAP”)], one count each of aggravated assault, firearms not to
       be carried without a license, and unlawful to fire any weapon
       within city limits.[1,2] On December 21, 2006, the trial court
       sentenced Appellant to an aggregate term of incarceration of not
       less than eight nor more than twenty years. Appellant did not file
       a direct appeal.


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1 18 Pa. C.S. §§ 2705, 2702(a)(1), 6106(a)(1), and City of Harrisburg Local
Ordinance § 3-345(2), respectively.

2Appellant was convicted of aggravated assault and REAP at Dauphin County
Docket Number CP-22-CR-0001726-2006 and the firearms violations at
Dauphin County Docket Number CP-22-CR-0001725-2006. See note 4 infra.
____________________________________
* Former Justice specially assigned to the Superior Court.
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            On December 7, 2015, Appellant filed a motion claiming
     that, in 2008, he had filed a petition under the [Post Conviction
     Relief Act (“PCRA”)], which had never been decided by the court.
     (See Motion for Disposition of Pending Petition for PCRA Relief,
     12/07/15, at 1). Appellant sought either a decision on the petition
     or immediate discharge. (See id. at 3). The [trial] court denied
     the motion on May 2, 2016. The instant timely appeal followed.
     The court did not order Appellant to file a concise statement of
     errors complained of on appeal. See Pa.R.A.P. 1925(b). On July
     26, 2016, the court issued a statement in lieu of a Rule 1925(a)
     opinion stating that there is no indication in either docket that a
     PCRA petition was ever filed for Appellant in 2008. Furthermore,
     the PCRA court reviewed Appellant’s physical files and found no
     petition in any of them. (See PCRA Court Opinion, 7/26/16, at
     2); see also Pa.R.A.P. 1925(a)).

Commonwealth v. Blackstone, 995 MDA 2016 (Judgment Order at 1–2,

filed May 2, 2017). Appellant filed an appeal to this Court, whereupon we

vacated the May 2, 2016 order denying Appellant’s Motion for Disposition of

Pending Petition for PCRA Relief. Because the record before us included a

copy of the purported PCRA petition that appeared to be time-stamped by the

Dauphin County Clerk of Courts on January 18, 2008, we remanded to the

trial court with instructions to appoint counsel for Appellant and to schedule

an evidentiary hearing to determine whether there was a breakdown in the

operation of the court in 2008. Id.

     Upon remand, after appointing counsel and pursuant to the agreement

of defense counsel and the Commonwealth, the trial court reinstated

Appellant’s post-sentence and direct-appeal rights on November 7, 2017.




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Order, 11/7/17.3        Appellant filed a post-sentence motion pursuant to

Pa.R.Crim.P. 720(B) on December 18, 2017, seeking modification of his

sentence because “[t]he trial court abused its discretion when it overlooked

several important mitigating factors, and in particular the sentence of the Trial

Court did not adequately reflect [Appellant’s] reduced mental capacity and

rehabilitative needs.”      Post-Sentence Motion, 12/18/17, at unnumbered 3

(unnecessary capitalization omitted). The trial court denied the motion on

January 25, 2018. Appellant filed a notice of appeal on February 13, 2018.4

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant has addressed the absence of the notes of testimony from his

October, 2006 trial. When notes of testimony are either not transcribed or

are unavailable, an appellant may “prepare a statement of the evidence or


____________________________________________


3  On November 13, 2017, appointed counsel sought the notes of testimony
from Appellant’s October, 2006 jury trial. The common pleas court filed an
order on November 16, 2017, advising that the notes of testimony, which
were older than seven years, were not retained according to county policy.
The notes of testimony from the sentencing hearing, however, are included in
the record.

4   Appellant filed a single notice of appeal on February 13, 2018, which
included both docket numbers. On June 1, 2018, our Supreme Court held, in
a decision to be applied prospectively only, that “when a single order resolves
issues arising on more than one lower court docket, separate notices of appeal
must be filed. The failure to do so will result in quashal of the appeal.”
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018). Because
Appellant’s consolidated notice of appeal in this matter was filed prior to our
Supreme Court’s June 1, 2018 decision in Walker, we need not quash the
appeal.



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proceedings from the best available means, including his recollection.”

Pa.R.A.P. 1923; Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super.

2012). When such a statement is prepared, it must then be served upon the

appellee, who “may serve objections or propose amendments thereto within

ten days after service.” Pa.R.A.P. 1923. Appellant produced such statement

on June 29, 2018, the trial court accepted the statement in the absence of a

transcript on July 2, 2018, and the Commonwealth filed objections and

proposed amendments on August 6, 2018.5

       Appellant raises the following issues on appeal, which we have

renumbered for ease of disposition:

        I.    Did the trial court commit reversible error when it allowed
              the verdict to stand as the finding of guilt was against the
              greater weight of the evidence presented at trial?

       II.    Did the trial court commit an abuse of discretion when it
              overlooked several important mitigating factors, and in
              particular the sentence of the trial court did not adequately
              reflect [Appellant’s] reduced mental capacity and
              rehabilitative needs.

Appellant’s Brief at 5 (unnecessary capitalization omitted).

       Appellant’s challenge in the first issue to the weight of the evidence is

waived.      While Appellant filed a post-sentence motion assailing the

discretionary aspects of the sentence imposed, he did not challenge the weight

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5 The Commonwealth had sought and was granted a thirty-day extension on
July 9, 2018, from the trial court’s July 2, 2018 acceptance of the statement
pursuant to Pa.R.A.P. 1923.



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of the evidence presented at trial by either an oral or written motion. See

Lopez, 57 A.3d at 80 (failure to raise a weight-of-the-evidence challenge

pursuant to Pa.R.Crim.P. 6076 to the trial court results in waiver).         The

comment to Rule 607 clarifies that the purpose of the rule “is to make it clear

that a challenge to the weight of the evidence must be raised with the trial

judge or it will be waived.” Pa.R.Crim.P. 607, cmt. This is so because the

general rule in this Commonwealth is that a weight-of-the-evidence claim is

addressed to the discretion of the judge who actually presided at trial.

Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006).7

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6   Rule 607 provides, in pertinent part:

       A) A claim that the verdict was against the weight of the evidence
       shall be raised with the trial judge in a motion for a new trial:

          (1) orally, on the record, at any time before sentencing;

          (2) by written motion at any time before sentencing; or

          (3) in a post-sentence motion.

Pa.R.Crim.P. 607 (emphasis added).

7  The fact that the trial judge who presided at Appellant’s trial has retired is
not controlling in the instant case. Applying the rule of Armbruster v.
Horowitz, 813 A.2d 698 (2002), in Dolan v. Hurd Millwork Co., Inc., 195
A.3d 169 (Pa. 2018), our Supreme Court held that “where a properly
preserved weight of the evidence claim is raised on appeal and the judge
who presided at trial failed to rule on the claim and is now permanently
unavailable to do so, the claim must be reviewed by the appellate tribunal in
the first instance.” Dolan, 195 A.3d at 174. Here, as noted, Appellant failed
to preserve a claim to the weight of the evidence. See also Commonwealth
v. Izurieta, 171 A.3d 803 (Pa. Super. 2017) (appellate court may review



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       In the instant case, while Appellant did file a post-sentence motion, he

challenged only the discretionary aspects of his sentence; he did not challenge

the weight of the evidence. While Appellant asserted the weight claim in his

Pa.R.A.P. 1925(b) statement, raising the issue in a Rule 1925(b) statement is

not sufficient to preserve it. Commonwealth v. Sherwood, 982 A.2d 483,

494 (Pa. 2009) (fact that the appellant included issue challenging the weight

of the evidence in his Pa.R.A.P. 1925(b) statement and that trial court

addressed weight claim in its Rule 1925(a) opinion did not preserve the issue

for appellate review in the absence of an earlier motion).8

       Appellant’s second issue avers that the trial court abused its discretion

when it failed to consider Appellant’s reduced mental capacity and


____________________________________________


weight claim when trial judge no longer is available when claim was
properly preserved).

8  Even if Appellant had preserved his weight claim, he would gain no relief.
“The weight of the evidence is exclusively for the finder of fact, which is free
to believe all, part, or none of the evidence, and to assess the credibility of
the witnesses.... An appellate court cannot substitute its judgment for that of
the jury on issues of credibility.” Lopez, 57 A.3d at 80–81 (internal citations
omitted). Based upon Appellant’s Pa.R.A.P. 1923 statement in lieu of a
transcript, the trial court observed that the parties’ presentation of eleven
witnesses, including Appellant’s own testimony, reveals that the jury “carefully
weighed the testimony and evidence presented in reaching a unanimous
decision.” Trial Court Opinion, 9/6/18, at 9. This conclusion is bolstered by
the jury’s acquittal of Appellant on the most serious charge he faced,
attempted murder. Moreover, in the exercise of its discretion, the trial court
may award a new trial on the basis that the verdict is against the weight of
the evidence if the verdict is so contrary to the evidence as to shock one’s
sense of justice.” Commonwealth v. Washington, 825 A.2d 1264, 1266
n.2 (citation omitted). Our review of the record does not reveal a verdict that
is shocking to “one’s sense of justice.” Id.

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rehabilitative needs in imposing sentence.           This issue challenges the

discretionary aspects of Appellant’s sentence. We note that “[t]he right to

appellate review of the discretionary aspects of a sentence is not absolute.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather,

where an appellant challenges the discretionary aspects of a sentence, the

appeal    should   be   considered   a   petition   for   allowance   of   appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 163 (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:

             We 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, 533 (Pa. Super.

2006)).

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

Appellant brought a timely appeal 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).            Appellant’s Brief at 15–16.

Moreover, Appellant preserved the issue by filing a post-sentence motion.


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Therefore, we next determine whether Appellant raised a substantial question

requiring us to review the discretionary aspects of the sentence imposed by

the trial court.

      The determination of whether there is a substantial question is made on

a case-by-case basis, and this Court will grant the appeal only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing Code;

or (2) contrary to the fundamental norms which underlie the sentencing

process.   Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015). “[W]e cannot look beyond the statement of questions presented and

the prefatory 2119(f) statement to determine whether a substantial question

exists.”   Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super.

2012) (citation omitted).

      Appellant submits that the sentence was excessive, and the trial court

failed to consider Appellant’s rehabilitative needs. Appellant’s Brief at 15. We

conclude that Appellant’s challenge to the imposition of his sentence as

excessive, together with his claim that the trial court failed to consider his

rehabilitative needs, presents a substantial question. See Commonwealth

v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (excessive sentence claim,

in conjunction with assertion that sentencing court failed to consider

mitigating factors, raises a substantial question). Thus, we grant Appellant’s




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application for allowance of appeal and address the merits of this sentencing

claim. Caldwell, 117 A.3d at 770.

     When reviewing a challenge to the discretionary aspects of sentencing,

this Court will determine whether the trial court has abused its discretion.

Caldwell, 117 A.3d at 770.

     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.

Id. (quoting Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.

2014)).

     The record reveals that the trial court had before it the pre-sentence

investigation (“PSI”) report provided by the Pennsylvania Board of Probation

and Parole. N.T. (Sentencing), 12/21/06, at 2. Indeed, defense counsel noted

that it was “very comprehensive.” Id. at 3. When a PSI report exists, this

Court presumes that the trial court “was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with the mitigating statutory factors.” Commonwealth v. Finnecy, 135 A.3d

1028, 1038 (Pa. Super. 2016).

     Appellant suggests that while the trial court “admittedly considered

Appellant’s mental status and functional ability,” it did so “in a vacuum”

without considering what Appellant’s reaction might be “when presented with


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the situation Appellant found himself in.” Appellant’s Brief at 22. Appellant

does not support this broad allegation with support from any source.

      A review of the sentencing transcript indicates that the trial court

considered Appellant’s reduced mental capacity and rehabilitative needs in

structuring the sentence imposed. In addressing this issue in the Pa.R.A.P.

1925(a) opinion, the trial court stated as follows:

      THE COURT: After hearing, the [c]ourt finds that the imposition
      of the following sentence to be appropriate, balancing the needs
      of society to be protected, the rehabilitation needs of [Appellant],
      the special needs of [Appellant], the need for a just punishment
      to be imposed for serious criminal activity, and at the same time
      to provide the potential for future progress and rehabilitation with
      [Appellant].

            The [c]ourt having ordered a presentence investigation
      report, having received the report and having read it cover to
      cover twice and certain other portions we read more than twice—
      we will order that the presentence investigation report shall be
      made a part of the official record under seal.

                                    * * *

            Based on all of the forgoing and the comments of the
      Commonwealth’s counsel, defense counsel, [Appellant] and the
      representative, which is the grandmother, of the victim and also
      [Appellant’s] mother, the [c]ourt finds that although we could
      easily justify the imposition of an aggravated range sentence in
      this circumstance, we will not do that and we will impose a
      sentence in the standard range.

N.T. (Sentencing), 12/21/06, at 38–39.

      The sentencing transcript reveals an exhaustive combination of defense

counsel’s argument on Appellant’s behalf, testimony by Appellant and his

mother, and the trial court’s reference to the thorough and comprehensive


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PSI report in this case. N.T. (Sentencing), 12/21/06, at 3–7, 15–18, 18–20,

20–23, 27–29. We conclude that Appellant’s claim that the trial court failed

to consider his rehabilitative needs is meritless and belied by the record. We

will not re-weigh those factors and impose our judgment in place of the

sentencing court. Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super.

2009).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/13/2019




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