Case Information
*1 J-S66004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JAMES BANKS,
Appellant No. 1286 WDA 2016 Appeal from the Judgment of Sentence Entered July 14, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015867-2014 BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J. *
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 18, 2017
Appellant, James Banks, appeals from the judgment of sentence of and aggregate term of 26-52 years’ incarceration, followed by 5 years’ probation, imposed after his conviction for attempted homicide, robbery, and related offenses. Appellant challenges the weight of the Commonwealth’s evidence supporting his identity as the perpetrator of the crimes at issue in this case, the discretionary aspects of his sentence, as well as its legality. We reject Appellant’s weight challenge. However, we are compelled to vacate Appellant’s sentence and to remand for resentencing due the imposition of an illegal sentence. Consequently, we decline to address Appellant’s discretionary-aspects-of-sentencing claim at this time. ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S66004-17
A full recitation of the facts adduced at trial is provided in the trial court’s opinion. See Trial Court Opinion (TCO), 2/15/17, at 3-8. Briefly stated, the victim, Anthony Matthews, was sleeping in his City of Pittsburgh apartment at approximately 8:30 a.m. on October 10, 2014, when he awoke to find three knife-wielding men standing at his bedside. Id. at 3. Appellant immediately recognized two of the unmasked men, Appellant and Jerome Banks, as the younger brothers of his former girlfriend, London Banks. Id. The third man demanded money. Id. at 4. As Matthews attempted to get out of his bed, one of the intruders stabbed him in the abdomen. Id. When Matthews began to struggle with his assailants, Appellant stabbed him in the back. Id. The melee continued for some time, until Matthews heard Appellant tell his brother, Jerome, “[h]it him, hit him, hit him.” Id. Jerome then struck Mathews in the head six or seven times with a brick. Id. After this, Appellant and his cohorts fled, but not before stealing a game system and a laptop from the Matthew’s apartment. Id. at 5.
Matthews managed to call 911 while he crawled into the hallway of his apartment building, where a neighbor assisted him. Id. In the ambulance on the way to the hospital, and believing he was going to die, Matthews told the attending paramedic that he was stabbed by his ex-girlfriend’s brothers. Id. at 6. Although he survived, Matthews was placed in a medically induced coma for two days before police could speak with him. Id. When the police were finally able to communicate with Matthews, he identified Appellant and Jerome Banks as his assailants. Id. Matthews’ injuries required multiple
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surgeries, resulted in extensive nerve damage in his hands and back, and left him struggling with post-traumatic stress, including severe anxiety and sleeplessness. Id. at 7.
The Commonwealth charged Appellant with attempted homicide, 18 Pa.C.S. § 901; robbery, 18 Pa.C.S. § 3701(a)(1); burglary, 18 Pa.C.S. § 3502(a)(1); aggravated assault, 18 Pa.C.S. § 2702(a)(1); as well as conspiracy to commit each of those offenses, 18 Pa.C.S. § 903. Following a trial held on December 2-3, 2015, the jury found Appellant not guilty of conspiracy to commit homicide, but guilty of all the remaining charges. On July 14, 2016, the trial court sentenced Appellant to 15-30 years’ incarceration for attempted homicide, with consecutive terms of 7-14 years’ and 4-8 years’ incarceration for conspiracy to commit robbery and burglary, respectively, and a concurrent term of 8-16 years’ incarceration for robbery. The trial court also ordered Appellant to serve a consecutive term of 5 years’ probation for robbery. Thus, Appellant received an aggregate sentence of 26-52 years’ incarceration and 5 years’ probation.
Appellant timely filed post-sentence motions challenging the weight of the evidence supporting his convictions and the discretionary aspects of his sentence. The trial court denied Appellant’s post-sentence motions on August 5, 2016, from which he filed a timely notice of appeal. Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on December 5, 2016, and the trial court issued its Rule 1925(a) opinion on February 15, 2017.
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Appellant now presents the following questions for our review:
I. Did the trial court abuse its discretion in denying the post- sentence motion that the verdict was contrary to the weight of the evidence presented in that no physical or scientific evidence, including fingerprints, DNA, weapons, or inculpatory statements were presented implicating [Appellant] in the commission of the crimes, the victim gave three different versions of the facts, named persons other than [Appellant] as his attackers, and [Appellant] presented an alibi?
II. Did the trial court abuse its discretion in sentencing [Appellant] to an aggregate term of 26 to 52 years of imprisonment, to be followed by 5 years of probation, in that the sentence is manifestly unjust, unreasonable, and excessive, is contrary to the Sentencing Code, and the fundamental norms underlying the sentencing process in that the court failed to apply, as it must, all required sentencing factors including the gravity of the offense in relation to the impact on the victim, the history, character and condition of the defendant, and his rehabilitative needs?
III. Did the trial court err in imposing an illegal sentence on Count 3 (Robbery), as the sentence imposed is greater than the lawful maximum?
Appellant’s Brief at 9.
Appellant’s first claim asserts that the trial court abused its discretion in denying his post-sentence motion claim that the verdict was against the weight of the evidence with respect to Appellant’s identity as one of the three assailants. We apply the following standard of review to a challenge that a verdict is against the weight of the evidence:
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. - 4 -
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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. Clay , 64 A.3d 1049, 1055 (Pa. 2013) (internal citations omitted).
After reviewing the certified record, the parties’ briefs and arguments contained therein, as well as the trial court’s thorough and well-reasoned Rule 1925(a) opinion, authored in this case by the Honorable Beth A. Lazzara, we conclude that the trial court did not abuse its discretion in denying Appellant’s post-sentence motion claim that the verdict was against
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the weight of the evidence. We rest our holding on the basis set forth in the trial court’s opinion. See TCO at 8-19.
For ease of disposition, we now turn to Appellant’s third claim, whereby he asserts that his sentence for robbery is illegal because it exceeded the statutory limit for that offense. The Commonwealth concedes the illegality of the sentence.
“The issue of whether a sentence is illegal is a question of law and our scope of review is plenary.” Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa. Super. 2010). If a sentence is illegal, “whether it was properly preserved below is of no moment, as a challenge to the legality of sentence cannot be waived.” Commonwealth v. Dickson , 918 A.2d 95, 99 (Pa. 2007). Furthermore, a “sentence that exceeds the statutory maximum is illegal. If a court imposes a sentence outside of the legal parameters prescribed by the applicable statute, the sentence is illegal and should be remanded for correction.” Commonwealth v. Infante , 63 A.3d 358, 363 (Pa. Super. 2013) (internal citations and quotation marks omitted).
Robbery, a first-degree felony, carries a maximum possible sentence of 20 years’ incarceration. 18 Pa.C.S. § 1103(1). As detailed above, the trial court imposed a ‘split sentence’ for Appellant’s robbery conviction: 8-16 years’ incarceration, with a consecutive term of 5 years’ probation. Consequently, Appellant faces the potential of serving up to 21 years’ punishment for his robbery offenses, thereby exceeding the statutory maximum punishment of 20 years. See, e.g., Crump , 955 A.2d at 1284
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(stating that “where the [statutory] maximum [sentence] is ten years[’ incarceration], a defendant cannot receive a term of incarceration of three to six years followed by five years[’] probation”). Therefore, we agree with Appellant and the Commonwealth that Appellant’s sentence for robbery is illegal. Accordingly, we are compelled to vacate Appellant’s sentence in its entirety and remand for resentencing, as it is possible that a correction of Appellant’s illegal sentence will upset the overall sentencing scheme envisioned by the trial court. Infante, supra ; see also Commonwealth v. Dobbs , 682 A.2d 388, 393 (Pa. Super. 1996) (stating that “[w]here we determine that a sentence must be corrected, this Court has the option of amending the sentence directly or remanding it to trial court for re- sentencing. If a correction by this Court may upset the sentencing scheme envisioned by the trial court, the better practice is to remand”).
Finally, because we must remand for resentencing, we decline to address Appellant’s second claim, which concerns the discretionary aspects of the vacated sentence.
Judgment of sentence vacated . Case remanded for resentencing. Jurisdiction relinquished .
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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Circulated 11/20/2017 11:55 AM IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA, CC No. 2014-15867 v.
JAMES BANKS,
ORIGINAL Criminal (Division Defendant. t. of Court Records OPINI gneny County, PA. BETH A. LAZZARA, JUDGE Court of Common Pleas Copies Sent To: Mike W. Streily, Esq.
Office the District Attorney Courthouse Pittsburgh, PA 15219 0
Suzanne Swan, Esq.
310 Grant Street Suite 823 tt1 Pittsburgh, PA "' tst :
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
vs. CC No. 2014-15867 JAMES BANKS,
Defendant.
OPINION This a direct appeal from judgment of sentence entered on July 14, 2016, following a jury trial that took place between April April 8, 2016. The Defendant was charged five (5) count information as follows: Count One (1): Criminal Attempt - Homicide (18 Pa. C.S.A. §901(a)); Count Two (2): Criminal Conspiracy commit Homicide, Robbery, Burglary, and Aggravated Assault (18 Pa. C.S.A. §903); Count Three (3): Robbery - Serious Bodily Injury (18 Pa. C.S.A.
§3701(a)(1); Count Four (4): Burglary (18 Pa. C.S.A. §3502(a)(1)); Count Five (5) Aggravated Assault (Pa. C.S.A. §2702(a)(1)). At conclusion of trial, jury found Defendant not guilty Conspiracy Commit Criminal Homicide, but guilty all of remaining charges. Sentencing was deferred allow for preparation Pre - Sentence Report ("PSR").
On July 14, 2016, the Defendant was sentenced to an aggregate sentence of 26 to 52 years of imprisonment with a five (5) year period of probation to follow upon his release from imprisonment. Specifically, the Defendant was sentenced to a period of fifteen (15) to thirty (30) years of incarceration at Count One (1), and a period of seven (7) to fourteen (14) years of incarceration at Count Two (2), which was ordered to run consecutively to sentence imposed at Count One (1). At Count Three (3), court sentenced Defendant to a period of eight (8) to sixteen (16) years of incarceration, which was ordered to run concurrently with sentences imposed at the previous counts. A five (5) year term of probation was also imposed at Count Three (3), and probation term was ordered commence upon the Defendant's release from imprisonment. At Count Four (4), Defendant was sentenced to period four (4) eight (8) years imprisonment, which was ordered run consecutively Counts One (1) and Two (2). No further penalty was imposed for Aggravated Assault conviction Count Five (5) because conviction merged with the Attempted Homicide conviction at Count One (1). Court costs were imposed, Defendant received days of credit for time served. The Defendant also was ordered have no contact with the victim, Anthony Matthews, or his family. The Defendant filed a timely post -sentence motion, which was heard and denied on August 5, 2016. This timely appeal followed.
On December 2016, Defendant filed timely Concise Statement of Errors Complained on Appeal ("Concise Statement"), raising two (2) issues for review.
(Concise Statement, 2-4). The Defendant argues that this court abused its
discretion in denying post -sentence motion because verdict was against the weight of evidence, and he contends that this court abused its discretion imposing sentence. The Defendant's allegations error on appeal are without merit. The court respectfully requests that Defendant's convictions and sentence be upheld for reasons that follow. FACTUAL BACKGROUND
I.
On morning October 10, 2014, at approximately 8:30 a.m., the victim, Anthony Matthews, was asleep his bedroom when he was suddenly awakened by three (3) African -American men standing at bedside. (Jury Trial Transcript ("TT") (Volume I), 4/5/16-4/8/16, pp. 72, 87, 89, 94, 102-03, 127, 136, 142-44). The intruders had broken into his apartment Moore Avenue, located Knoxville/Mt. Oliver area of City of Pittsburgh. (TT, pp. 72, 89-90, 127, 136, 165). All three (3) men were armed with weapons, they made no attempt mask their identities. (TT, pp. 136-37, 140). Mr. Matthews was immediately able recognize two (2) of the intruders as James Jerome Banks, the younger brothers of his ex - girlfriend, London Banks. (TT, pp. 129-31, 134, 137, 140). Mr. Matthews was well familiar with the Banks brothers. (TT, pp. 129-31). He knew exactly what the Banks brothers looked and sounded like because he had spent time with them on multiple occasions during the time was dating their sister. (TT, 129-31). The Defendant, James Banks, knew exactly where Mr. Matthews lived because London Banks had briefly resided with Matthews during the time that they were dating, and *13 the Defendant had been inside of Mr. Matthews' apartment on at least one (1) prior occasion. (TT, pp. 131-32, 135-36).
Mr. Matthews woke up to an unidentified man yelling "Where's money? Where's the money'?" (TT, pp. 73, 81, 136-37, 144-45). Armed with a knife, the unidentified man was standing on the side of Mr. Matthews' bed, and he stabbed Mr. Matthews in abdomen as Mr. Matthews was attempting stand up in order to get out bed. (TT, pp. 136-37, 145). Mr. Matthews began fighting with the unidentified man, and, with his right hand, Mr. Matthews grabbed knife that the man was holding. (TT, pp. 137, 145). During the struggle, Mr. Matthews felt himself get stabbed in the back. (TT, pp. 137-38, 145). When he turned around, he realized that the Defendant was also armed with knife Defendant had been one who had stabbed him the back. (TT, pp. 137, 145).
As Mr. Matthews tried to push Defendant away from him, unidentified man stabbed him again, this time side. (TT, pp. 145-46, 161). Mr. Matthews turned back around grab the knife from the unidentified man, and, as continued to struggle for the knife, the co -Defendant, Jerome Banks began hitting Mr. Matthews repeatedly the head with brick, delivering between six (6) seven (7) blows. (TT, 137-38, 145-46, 162). Mr. Matthews heard the Defendant yell to brother Jerome, "[h]it him, hit him, hit him." (TT, pp. 137, 146). Shortly thereafter, Defendant and his brother ran out bedroom, leaving Matthews alone with *14 unidentified male. (TT, pp. 137-38, 146). At that point, Mr. Matthews, who still had a grip on the unidentified male's knife, released his grip from knife, which allowed man to flee from apartment. (TT, pp. 138, 146). Before leaving apartment, however, the three (3) men stole Mr. Matthews' Playstation 3 gaming system and laptop from his living room, and they smashed his television with the same brick that Jerome Banks had used repeatedly hit him the head. (TT, pp. 138-39, 153, 161-63, 274).
After the third male ran out of his bedroom, Mr. Matthews stumbled out into his living room screaming, "I don't have anything, I swear God I don't have any money, I don't have anything for you all to take." (TT, pp. 73, 84, 138). Mr. Matthews collapsed on floor of his living room. However, he managed call on his cell phone. (TT, pp. 147-48). Mr. Matthews then crawled across his living room floor and out into the hallway of his apartment building. (TT, pp. 90, 147, 161, 204). His next-door neighbor, Donald Fuller, heard struggle take place. Mr. Fuller came outside of his apartment and tried assist Mr. Matthews. Mr. Fuller had seen three (3) black men fleeing from Mr. Matthews apartment when peered through his peephole after he heard commotion outside. (TT, pp. 72-75, 77-80, 147-49).
Law enforcement officials were dispatched scene approximately 8:56 a.m. (TT, pp. 88-89). Officers medical personnel arrived within minutes and found Mr. Matthews hallway outside apartment, laying in a large pool of his own blood. (TT, 89-92, 104-05,147-48, 204). Matthews was bleeding profusely, and *15 he was fading in out of consciousness due to the amount blood loss he had sustained. (TT, pp. 90-92, 104). Mr. Matthews was substantial pain due to "multiple severe stab wounds" that he suffered. (TT, pp. 103-04, 148). His intestines were hanging out his body, and he was struggling to breathe because stab wound to his lung. (TT, pp. 75, 105-06, 151). Mr. Matthews was transported an ambulance Mercy Hospital. (TT, pp. 93, 107-08, 150). While he was route hospital, Mr. Matthews began panicking, believing that he was going to die, and he attempted to provide paramedic Shawn Eigenbrode with information about the attack. (TT, pp. 107-09, 150-51). Although he was struggling breathe through an oxygen mask, Mr. Matthews asked Mr. Eigenbrode tell his mother, father, and daughter, if he did not survive, that loved them. (TT, pp. 105, 107,120-121, 150-51). Mr. Matthews also relayed to Mr. Eigenbrode that he was stabbed by his ex -girlfriend's brothers and that there were three (3) men who attacked him. (TT, 109-10, 113-15, 150). When Mr. Eigenbrode asked the name of his ex -girlfriend, Mr. Matthews replied, "London Banks." (TT, pp. 110, 150).
Upon his arrival at Mercy Hospital, Mr. Matthews was put into medically induced coma for approximately two (2) days. (TT, p. 151). For approximately next week, Mr. Matthews remained hospital, undergoing various surgeries and treatment. (TT, pp. 151-53). On October 2014, Mr. Matthews' condition stabilized sufficiently that he was able speak with the police about attack and stabbing. Mr. Matthews spoke with Detective Judd Emery, identifying attackers as Jerome and James Banks, the younger brothers of his ex -girlfriend, London Banks. Matthews *16 was presented with separate photo arrays for each brother, and he positively identified both brothers without any hesitation. He circled their pictures, wrote their nicknames next to their faces, and signed his name. (TT, pp. 167-171; 257-262)
After spending approximately a week in hospital, Mr. Matthews was discharged. Unfortunately, he was readmitted less than hours later due various complications from his injuries. (TT, pp. 151-52). Mr. Matthews required yet more surgical procedures,and he developed deep vein thrombosis. (TT, p. 152). He spent nearly month in hospital due to complications he developed from his stab wounds. (TT, p. 152). He was ultimately discharged from hospital on November 6, 2014. (TT, pp. 152-53). By the time trial, Mr. Matthews still was experiencing symptoms from nerve damage both of his hands and in his lower back. (TT, p. 153). He continued struggle with pain his abdominal area from the scar tissue that had developed after his surgeries. (TT, p. 153). He reported some slight short-term memory loss from the head injury that had been caused by the blows from brick wielded by Jerome Banks. (TT, 153-54). In addition his physical injuries, Mr. Matthews struggled with anxiety post -traumatic stress, reported difficulty sleeping since attack bedroom. (TT, p. 153).
Prior attack, Matthews had been working full-time at Chipotle Mexican Grill. (TT, pp. 128, 154). He primarily worked on the grill and was also training for management position restaurant. (TT, p. 128). Since the stabbing,
however, Mr. Matthews has not been able to work in any capacity because he is significantly limited in his ability to use his hands for an extended period of time. (TT, pp. 154-55). It is also difficult for him to work in any position that requires lifting or squatting because of the scar tissue in his stomach and the nerve damage in his back. (TT, p. 154). Mr. Matthews also has difficulty sitting and standing for prolonged periods time because he experiences severe, sharp pains his back that shoot down his leg. Mr. Matthews unsure whether will be able to work full workday again. (TT, pp. 154-55). DISCUSSION
II. A. The Defendant's convictions for Attempted Murder, Criminal Conspiracy, Robbery, Burglary, and Aggravated Assault were not against the weight of the evidence.
In first allegation of error, the Defendant contends that this court "abused its discretion denying the post -sentence motion [because] the evidence presented was so contrary the verdict rendered that it shocks one's sense justice." (Concise Statement, 2-3). In support of his assertion, the Defendant cites to: (i) the lack of physical and scientific evidence implicating Defendant commission of the crimes, (H) credibility victim and the conditions surrounding his identification of Defendant, (Hi) fact that Defendant unidentified coconspirator perpetrated attack using knives from Matthews' kitchen, (iv) the fact that Defendant presented an alibi defense at trial, (v) apparent lack of motive for attack. (Id.).
It is well -established a challenge to the weight of the evidence "concedes that there is sufficient evidence to sustain the verdict." Commonwealth v. Widmer, 744 A.2d 751 (Pa. 2000); Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005), appeal denied, 880 A.2d 1237 (Pa. 2005) ("A true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed.") (emphasis added). In reviewing claims that verdict was against the weight of the evidence, our appellate courts have explained that
Mho weight the evidence is exclusively for the finder of fact who is free believe all, part, or none of the evidence determine credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on weight claim below, an appellate court's role is not to consider underlying question of whether verdict is against weight of evidence. Rather, appellate review is limited whether the trial court palpably abused its discretion ruling on weight claim.
Commonwealth v. Lewis, A.2d 558, 565 (Pa. Super. 2006) (emphasis added); Commonwealth v. Torres, 578 A3d 1323, 1326 (Pa. Super. 1990) ("The determination whether grant a new trial on the ground that verdict is against weight of evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse discretion.").
Indeed, "appellate review trial court's decision on weight of the evidence claim extremely limited." Torres, supra, at 1326. Courts have reasoned that
[b]ecause the trial judge has had the opportunity to hear 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.
Widmer, supra, at 753. Stated differently, "[o]ne 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 that a new trial should be granted in interest justice." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting Widmer, supra, at 753).
In determining whether a trial court abused its discretion denying a motion for a new trial based on a claim that verdict was against weight of evidence, our Supreme Court has cautioned that
[a] new trial should not be granted because of mere conflict testimony or because judge on same facts would have arrived at a different conclusion. [Widmer, supra, at 751-52]. Rather, "the role of the trial judge is to determine 'notwithstanding all the facts, certain facts are so clearly greater weight that ignore them or to give them equal weight with all the facts is deny justice."' [Widmer, supra] at (citation omitted). It has often been stated that "a new trial should be awarded when jury's verdict is so contrary evidence as shock one's sense of justice and the award new trial imperative so that right may be given another opportunity prevail." [Commonwealth v. Brown, 648 A.2d 1189 (Pa. 1994)].
Clay, supra, 1055.
This court did not abuse its discretion denying Defendant's post -sentence motion because verdict was not against weight of the evidence. To the contrary,
the weight of the evidence presented at trial was substantially against the Defendant and his brother, Jerome Banks. Although the Defendant correctly notes that the Commonwealth was unable to present physical or scientific evidence linking him to the crime, his "CSI" argument loses substantial force when considered against evidence as whole, and it seeks distract one's attention away from the fact that determination of guilt this case was centered on credibility determinations and the resolution of conflicting testimony, matters that are solely within province of jury.
Although this court did not sit as the fact -finder, it presided over trial and closely studied the victim as he recounted horrific events that unfolded on October 10, 2014. At all times throughout proceedings, Mr. Matthews came across as sincere, genuine, and highly credible. He testified calmly, confidently consistently, and his credibility was bolstered by other compelling pieces evidence that corroborated account of what transpired on October 2014.
One of most salient pieces evidence this case was fact that Mr. Matthews identified Banks brothers as his attackers on the way to the hospital, while believing was going to die. (TT, pp. 107-09, 150). Mr. Matthews told paramedic Shawn Eigenbrode, as he was bleeding out struggling breathe, that he was stabbed by his ex -girlfriend's younger brothers. (TT, 107-09,121,150-51). When paramedic asked name his ex -girlfriend, Mr. Matthews replied, "London Banks." (TT, pp. 110, 150). Eigenbrode testified trial and corroborated Mr. Matthews'
testimony. Specifically, Mr. Eigenbrode confirmed that, while they were in ambulance, Mr. Matthews asked him, "Am I going die?" and he also testified that Mr. Matthews told him he was attacked by "his ex's brothers." (TT, 107-109). Although Mr. Matthews' injuries were not ultimately fatal, Mr. Matthews essentially made a dying declaration to Mr. Eigenbrode when he identified his attackers in the ambulance, because he genuinely believed he was going die. Our Supreme Court has recognized reliability of dying declarations, noting that such reliability "is based on premise that no one who is immediately going into the presence of his Maker will do so with lie upon his lips." Commonwealth v. Smith, 314 A.2d 224, 225 (Pa. 1973) (internal quotations omitted). For that reason, our Supreme Court has even stated that dying declarations "should be considered as the equivalent testimony given under oath in open Court" because an individual who believes that death is imminent is "more likely to tell truth than is witness Court who knows that if he lies he will have a locus penitentiae, an opportunity repent, confess be absolved of his sit]" Commonwealth v. Brown, A.2d 367, 369-370 (Pa. 1971).
Thus, fact that Mr. Matthews identified Banks brothers as his attackers while thought he was dying on the way hospital makes identification highly credible worthy belief. It should be noted that trial, the defense attempted to undermine identification made ambulance by claiming Matthews identified his ex -girlfriend as "Linda Bey." (TT, pp. 114-16, 222). This argument is nothing more than an attempt mislead jury. When considered against evidence its entirety, it clear that "name issue" is a desperate attempt by the
defense to attack the credibility of the victim. Considering Mr. Matthews' physical condition, noise from the ambulance's sirens, fact that Mr. Matthews was "panicking" and that he was trying speak through an oxygen mask, with a punctured lung, at the time he made his identification, Mr. Eigenbrode understandably could have been confused as to the name that he thought that he heard. (TT, pp. 120-21). This is even more likely given that "London" is a much less common name than "Linda". Given how similar the names sound even without all background noise, Mr. Eigebrode's confusion as to the name is easily understood. In any event, any discrepancy as identification of the perpetrators was for the jury to consider and resolve. The jurors obviously resolved this "discrepancy" Mr. Matthews' favor after weighing evidence as a whole. It should also be noted Mr. Matthews identified his attackers as the brothers his ex -girlfriend, no matter what name was heard or mis-heard, and he testified credibly that he did not even know, let alone date, Linda Bey.
Any doubt as to whether Mr. Matthews said name "Linda Bey" or "London Banks" further cast away by the fact that Mr. Matthews identified Banks brothers as his attackers two (2) more times week following his attack. Detectives Emery and Bolin initially went to hospital on the day of the stabbing to talk to Mr. Matthews, but they were unable speak with him because of his condition. (TT, p. 257). On October 2014, Detectives Emery and Bolin returned hospital, they were able have brief conversation with Matthews about the attack. (TT, p. 257). Mr. Matthews told them that knew two (2) attackers because they were his ex - girlfriend's brothers, he identified his ex -girlfriend as London Banks. (TT, p. 257).
On October 2014, Detective Emery returned to the hospital presented Mr.
Matthews with two (2) separate photo arrays for purposes making an official identification. (TT, pp. 167-71, 257-262). Mr. Matthews had no trouble positively identifying the brothers in each array. He circled their pictures, wrote their nicknames "Jimmy" (James Banks) and "Rome" (Jerome Banks) next to their respective pictures, and signed his name. (TT, 167-261-62). Thus, from the time of the attack throughout all proceedings, Mr. Matthews consistently maintained that the Banks brothers were responsible for his stabbing, which further demonstrates reliable and credible nature of his testimony.
Although the Defendant attempts to undermine circumstances surrounding ability to see his attackers, this argument unavailing in light of fact that attack happened around 8:30 a.m. the morning, and the sheer curtains Mr.
Matthews' bedroom were open when attack occurred. (TT, pp. 142, 277). Additionally, attackers made no efforts cover or mask themselves. Mr. Matthews was easily able identify familiar faces saw his room. Additionally, he was able recognize their voices, as well as their appearances.
The court further notes that, although there were no other eyewitnesses that could speak identity attackers, testimony of Mr. Matthews' next-door neighbor, Donald Fuller, also lent substantial credibility Mr. Matthews' account of what transpired. As noted, Fuller Mr. Matthews' apartments shared a common *24 wall. Because walls were thin, Mr. Fuller was able to hear the attack take place. (TT, pp. 72-74). He testified that he and his girlfriend were actually awakened by the sound of a struggle taking place in Mr. Matthews' apartment. Mr. Fuller testified that it sounded like people were "wrestling" or "playing football" in apartment. (TT, pp. 72- 73). Significantly, Mr. Fuller heard a man say, "Give me the money, give me the money," and he heard Mr. Matthews respond by saying "I don't got no money, I don't got no money," (TT, p. 73). Mr. Fuller then looked out peephole in front door saw three (3) black men running out Mr. Matthews' apartment down stairs apartment building. (TT, pp. 74, 78, 80). Mr. Fuller credibly corroborated key details of the victim's account the incident.
Mr. Fuller's testimony also corroborated another relevant point regarding entry into apartment building. Mr. Matthews testified that, although he lived in a "secure" building, security door was anything but secure because it easily could be opened with the use of a credit card. (TT, pp. 165, 179). Mr. Matthews testified that he showed London Banks how open the door with a credit card during the time that she resided with him. Mr. Fuller testified that "everybody was accessing [the security door] through credit card." (TT, pp. 84, 165, 179). Detective Emery further corroborated the ease with which building could be accessed, testifying that used business card to gain entry into the building. (TT, p. 281). Given that Defendant's sister knew how to access building, and given that Defendant had been Matthews' apartment on at least one (1) prior occasion, this was another link the chain of evidence that was relevant to the determination of guilt this matter. (TT, 165-66).
With respect to the lack of physical scientific evidence this case, court *26 The Defendant also attempts undermine the victim's credibility by arguing that it was illogical for him keep his door unlocked given the neighborhood which he lives. To that end, Mr, Matthews testified he had "bad habit" of leaving his apartment door unlocked. He further testified credibly that the door was left unlocked morning of the incident because his new girlfriend had left his apartment 2:00 a.m. to go to work, he forgot lock door behind her. (TT, pp. 182-83, 272). Even if Mr. Matthews could have exercised more care securing entry into his own apartment, reason why door was unlocked was easily explained by him and is ultimately irrelevant to the question of who attacked him.
Finally, the Defendant contends verdict was against weight of evidence because presented an "alibi" defense at trial. His alibi defense, however, was not based on any piece objective evidence, but rather the testimony of his child's mother, Angela Teasley, her mother, Tiffany Teasley. (Jury Trial Transcript, Volume II ("TT2"), 4/5/16-4/8/16, pp. 5-47). The Defendant's alibi defense relied solely on whether jury found Teasley women to be credible, and it is not at all surprising that jurors ultimately rejected alibi defense as not worthy of belief.
First, Angela and Tiffany Teasley were interviewed by defense investigator on June at the same time, the same room, thereby allowing them align their stories. (TT2, 7, 16, 22, 24). Second, Angela Teasley materially changed details her alibi defense between the time of her statement and trial. Specifically, she *27 first claimed that she was able remember exactly where the Defendant was on the day of the incident because on October 9, 2014, the day before the incident, Defendant accompanied her to Magee Women's Hospital to find out the gender their baby. (TT2, 8, 22-27). She admitted that she had used that hospital date as the lynchpin for determining where the Defendant was on October 10, 2014. (TT2, p. 28). However, after finding out that the Commonwealth would be able prove through medical records that she was never at the hospital on October 9, 2014, Angela Teasley changed her story and said that Defendant was at her mother's house with her from October until October 11, 2014, and that couple did not leave house at all for those three (3) days. (TT2, pp. 13-14, 28-29).
The court notes that it had the opportunity observe Angela Teasley as she testified, her testimony was not credible least. Between her demeanor and tone, her obvious bias and her desire to keep her child's father from going prison, it is not surprising that the jury rejected her testimony found it unworthy of belief. This court notes that it found, after hearing same testimony as the jurors, Ms.
Teasley's alibi testimony was entirely unworthy of any belief.
It is also no mystery why jury also rejected testimony "alibi" witness Tiffany Teasley. The court notes that Tiffany Teasley cannot even be considered a proper alibi witness because she could not account for Defendant's whereabouts during specific timeframe attack. (TT2, pp. 43-45). Although she testified that *28 the Defendant was at her house between October 9, 2014 and October 11, 2014, she specifically testified that she was asleep until almost noon on the day of the incident. (TT2, 42-45), Tiffany Teasley, therefore, was unable to place the Defendant at her home at the time of the attack, and she had no way knowing where the Defendant was approximately 8:30 a.m., when the attack on Matthews occurred.
Accordingly, for all of the reasons cited above, there is no merit to the Defendant's claim that deserved new trial because the verdict was against the weight of the evidence. The Defendant's challenge to the weight of the evidence is, at its core, an invitation for the appellate court to reweigh the evidence and second-guess the credibility determinations made by the jury in this case. The reviewing court respectfully should decline accept such an invitation because "[i]t was the function of jury as finder of fact evaluate evidence determine weight it should be given." Lewis, supra, at 566. All of purported weaknesses in the Commonwealth's case as were outlined Defendant's Concise Statement were matters for jury resolve. Based on foregoing discussion evidence, the jurors' assessment of the evidence their credibility determinations did not shock this court's sense of justice any way. There were no facts this case that were "so clearly of greater weight that ignore them or to give them equal weight with all facts deny justice." Clay, supra, at 1055. To the contrary, weight evidence was squarely against Defendant, and this court did not abuse its discretion when it denied motion for new trial.
B. This court did not abuse Its discretion when it imposed an aggregate sentence of imprisonment of 26 to 52 years of Imprisonment. The Defendant contends that his standard range sentences were "manifestly unjust, unreasonable, and excessive," and he argues that the court abused its discretion when it imposed consecutive sentences. (Concise Statement, 3-4). In support of his argument, claims that the court "failed appropriately consider" his history, character, substance abuse problems, and rehabilitative needs. He also cites fact that criminal background involved only non-violent misdemeanor crimes that he expressed remorse at sentencing. (Id. at 3-4).
It is well -settled that "[s]entencing is a matter vested sound discretion of sentencing judge a sentence will not be disturbed on appeal absent a manifest abuse of discretion." Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.
2003). "To constitute an abuse discretion, sentence imposed must either exceed statutory limits or be manifestly excessive." Commonwealth v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 1994) (citations omitted). To that end, "an abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires result manifest unreasonableness, or partiality, prejudice, bias, or or such lack of support so as be clearly erroneous." Commonwealth v. Greer, A.2d 346, 355 (Pa. 2008). "In determining whether sentence is manifestly excessive, appellate court must give great weight sentencing court's discretion." Mouzon, supra, at 1128. This deferential standard review acknowledges sentencing court "in best position view defendant's character,
displays remorse, defiance, indifference, and the overall effect nature of crime." Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011) (internal citations omitted).
The Defendant's sentencing argument seeks challenge discretionary *31 Our courts have "held on numerous occasions a claim of inadequate consideration of [mitigating) factors does not raise a substantial question for 0 review." Haynes, supra, at 807; Commonwealth v. Buterbauoh, A.3d 1266 (Pa. Super. 2014). Furthermore, "a sentencing court generally has discretion impose multiple sentences concurrently or consecutively, a challenge to the exercise of that discretion does not ordinarily raise a substantial question." Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Moreover, "bald claims excessiveness due to consecutive nature sentences imposed will not raise a substantial question." Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). Rather, "[t]he imposition of consecutive, rather than concurrent, sentences may raise a substantial question only the most extreme circumstances, such as where the aggregate sentence unduly harsh, considering the nature of the crimes and the length of imprisonment." Mourv, supra, 171-72.
Respectfully, reviewing court should find that the Defendant has failed to raise substantial question for review of sentence. The Defendant's standard range sentences were consistent with the sentencing provisions of the Sentencing Code, and they did not conflict with the fundamental norms that underlie the sentencing process. However, should the Superior Court conclude that there exists substantial question as appropriateness of the sentence, the aggregate sentence imposed was justified by the totality circumstances this case.
First, the court notes that it had the benefit presentence report aid in its sentencing determination, and, pursuant to its consistent practice, court carefully reviewed this report prior sentencing. (Sentencing Hearing Transcript ("ST"), 7/14/16, 2-3); See Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005) (noting that "the sentencing court had benefit of reviewing presentence investigation and, as such, it presumed that the sentencing court report prior to sentencing 'was aware relevant information regarding defendants character and weighed those considerations along with mitigating statutory factors.") (internal citations omitted). The court specifically noted sentencing it had reviewed presentence report three (3) separate times preparation for sentencing. (ST, p. 3). This court, therefore, was well -familiar with the Defendant's personal background, criminal history, and substance abuse issues, and it took each one of those factors into account determining what sentence would be appropriate this case. (ST, p. 35).
Second, court considered number different factors beyond heinous In addition giving meaningful serious nature of the Defendant's crimes. consideration to Defendant's background, history, need for rehabilitation, court considered arguments of counsel at sentencing, the victim impact testimony from Matthews and his mother, and the Defendant's allocution the court. (ST, pp. 10-29).
This court would note that victim's testimony at sentencing was particularly impactful. Having closely studied victim as he testified at trial, and again during sentencing, court found Mr. Matthews to be extremely credible and sincere in his description, not only of the events that transpired on the day of incident, but also in his description of the physical and emotional pain that he continues to struggle with as a result of his brutal attack that almost took his life. The effects of the stabbing have completely derailed Mr. Matthews from management track that he was on before incident, and, the time trial, he still had not been able to return to work. Mr.
Matthews does not know whether he will ever be able work full work day in future. He continues have difficulties and challenges with even the most basic of bodily functions, such as grip strength. His mother's testimony also noted that his relationship with his child has changed fundamentally, as he cannot interact and play with his child manner that he was able to prior attack. His basic ability to be a father has been compromised.
The Defendant and his co-conspirators robbed victim of much more than his electronic possessions. They robbed him his sense of security inside of his own apartment broke his trust society as whole. The stabbing has caused Mr.
Matthews suffer from anxiety post -traumatic stress. Matthews has been robbed one of the most precious commodities - sleep. He unable sleep because attack occurred while was bed, the place where one should always feel most safe.
While counsel attempted to re -litigate facts of the case at sentencing, and while Defendant maintained his innocence in the matter, the jury rejected his alibi defense trial, likely because it was entirely unworthy belief and unable to be corroborated by any objective and unbiased evidence. As noted above, the alibi witnesses had close ties Defendant and, thus, had every incentive testify favorably for Defendant.
As the Defendant acknowledges his Concise Statement, sentences imposed were standard range sentences, and courts have recognized that "where a sentence is within standard range of guidelines, Pennsylvania law views sentence as appropriate under Sentencing Code." Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012); See also Commonwealth v. Cruz -Centeno, 668 A.2d (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Pa. 1996) (stating combination PSI standard range sentence, absent more, cannot be considered excessive or unreasonable).
In any event, a defendant not entitled a concurrent sentencing scheme, and Defendant this case certainly was not deserving "volume discount" for committing serious crimes that involved breaking into the victim's apartment, brutally stabbing him almost taking life, then robbing him of his belongings. See Commonwealth v. Hoaq, 665 A.2d 1212, 1214 (Pa. Super. 1995) ("The general rule in Pennsylvania is imposing sentence court has discretion determine *35 whether make it concurrent with or consecutive other sentences then being imposed or other sentences previously imposed."); Commonwealth v. Anderson, 650 A.2d 20, 22 (Pa. 1994) (raising a concern that defendants not be given "volume discounts" for multiple criminal acts that arose out of one larger criminal transaction).
Accordingly, after considering all of the evidence presented at trial and sentencing, as well as all of statutory factors set forth in 42 Pa. C.S.A. §9721(b), this court's decision employ a consecutive sentencing scheme so as to impose an aggregate sentence 52 years imprisonment was justified by totality circumstances this case. While court considered mitigating aspects of Defendant's circumstances, it found that mitigating factors did not outweigh other relevant considerations outlined above. The Defendant's conduct demonstrates a disregard for the law and an indifference to the value of human life, and this, turn, creates substantial need protect public from behavior. Accordingly, this court did not abuse its discretion imposing sentence, and this allegation error should be rejected on appeal.
III. CONCLUSION
The Defendant's contentions on appeal are without merit, Based on the foregoing, verdict was not against weight of the evidence, and the sentence imposed was not an abuse of discretion. Accordingly, this court respectfully requests verdict and sentence in this case be upheld.
BY THE COURT: BE
February 2017 notes that Mr. Matthews' own fingerprints could not be lifted from his own apartment door. (TT, p. 276). Additionally, no testing was conducted on security door of building because of the amount of traffic that flows through that door because officers touched the door when they were conducting their investigation. (TT, p. 280). No scientific testing could be conducted on the knives that were used the attack because they were never located. The brick used by Jerome Banks was tested, but, because nature its surface, there was no evidence that could be successfully lifted from it. (TT, pp. 241-42). The Defendant also suggests that it was illogical he and his unidentified co- conspirator armed themselves with knives from Mr. Matthews' own apartment instead of bringing their own weapons with them. (TT, 140-41, 230). Again, this was an argument that was for jury consider. The jurors evidently rejected this argument, perhaps because it well -understood that criminals often do not behave logically and are opportunistic. Moreover, Matthews testified that he recognized knives as his own, and never saw them again after incident. Regardless when and how the intruders armed themselves, fact remains that they were armed with deadly weapons and used those weapons inflict serious bodily injury upon the victim.
aspects of sentencing. The court notes that "[t]he right to appeal a discretionary aspect of sentence is not absolute." Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super. 1999). A defendant "challenging discretionary aspects of his sentence must invoke [appellate] jurisdiction by satisfying a four-part test." Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). In conducting four-part test, the appellate court analyzes (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 a motion reconsider and modify sentence, see Pa. R. Crim. P. [708]; (3) whether appellant's brief has a fatal defect, Pa. R. A. P. 2119(0; (4) whether there is a substantial question that sentence appealed from is not appropriate under Sentencing Code, 42 Pa. C. S. A. § 9781(b). Id. 170. "The determination whether there a substantial question is made on a case -by -case basis, and [the appellate court] will grant appeal only when appellant advances colorable argument that the sentencing judge's actions were either: (1) inconsistent with specific provision of the Sentencing Code; or (2) contrary fundamental norms which underlie sentencing process." Commonwealth v. Haynes, A.3d 807 (Pa. Super. 2015).
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