Case Information

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

VICTOR DALFONSE

Appellant No. EDA 2015 Appeal from the Judgment of Sentence May 8, 2015

In the Court of Common Pleas Philadelphia County Criminal Division at No(s): CP-51-CR-0004419-2014

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.* FILED MAY 05, 2017

MEMORANDUM BY LAZARUS, J.: Victor Dalfonse appeals from judgment of sentence, imposed the Court of Common Pleas of Philadelphia County. Upon careful review, we affirm.' trial court set forth the facts of this case follows:

On January 2014, at approximately 8:30 the evening, complainant friend were the Tacony section of Philadelphia, PA, seeking to purchase marijuana. During the course of their search, [they] proceeded corner store where they encountered individual standing outside. Complainant and his friend asked the individual whether he had any marijuana; the individual responded waiting for some marijuana arrive. Complainant requested * Former Justice specially assigned the Superior Court.

' We note that, despite several requests extensions granted by this Court, the Commonwealth not file brief matter.

individual notify him once the marijuana had arrived because complainant wanted to make purchase. Complainant and his friend then continued inside the corner store. While still in the store, complainant observed [Dalfonse] engage in what hand-to-hand exchange with appeared to be individual [with whom he had just spoken]. aforementioned Complainant then approached [Dalfonse] to attempt to purchase marijuana, whereupon [Dalfonse] responded he did not have any marijuana, but he would return to the store with marijuana within ten (10) to fifteen (15) minutes. As result, complainant and his friend waited for [Dalfonse's] return inside of the corner store. returning the corner store, [Dalfonse] directed

Upon to complainant follow him outside to the corner order to avoid surveillance cameras. [Dalfonse] and complainant then proceeded outside corner[,] at which time [Dalfonse] asked complainant if he had money to purchase marijuana. Complainant produced twenty-five dollars ($25) United States currency and gave it to [Dalfonse,] who then placed the money inside his jacket pocket. [Dalfonse] then retrieved silver revolver with shortened barrel from behind his back, and pressed the firearm against complainant's stomach[,] whereupon [Dalfonse] stated "get f--- out here, you little pussy." Complainant distinctly described feeling if [Dalfonse] was jabbing firearm into his stomach.

Following the incident, complainant waited [Dalfonse] walk away from him down block, then complainant re-entered the corner store. Complainant notified friend the store manager of what had just transpired[,] whereupon all three (3) individuals unsuccessfully attempted locate [Dalfonse]. to Complainant friend then returned complainant's home. Complainant contact the police because [he] feared that [Dalfonse] would retaliate; complainant's fear grounded [Dalfonse's] use firearm during the incident question. Trial Court Opinion, 5/13/16, 3-4. The complainant subsequently went to home of Dalfonse's mother, who gave him $25 after explained to her what had happened. complainant eventually reported the incident to police. He positively identified from photograph police obtained a warrant to search Dalfonse's mother's home. Upon conducting search, police found neither contraband nor firearm.

On November 17, 2014, after nonjury trial before the Honorable Edward C. Wright, Dalfonse was convicted of robbery2 and related offenses.3 Sentencing deferred pending presentence investigation mental health evaluation and, on May 8, 2015, sentenced to an aggregate term 10 to 20 years' incarceration, followed by five years of probation. Dalfonse filed motion to modify sentence, which denied. On July 22, 2015, filed timely appeal to this Court, followed by court ordered statement of errors complained of on appeal pursuant Pa.R.A.P. 1925(b). On appeal, Dalfonse challenges the sufficiency weight of the evidence supporting conviction robbery, as well as discretionary aspects of sentence.

"A claim challenging the sufficiency of the evidence question of law." Weston, 749 A.2d 460 n.8 2000). "For ^[2] 18 Pa.C.S.A. § 3701.

[3] was also convicted of persons not possess firearms ("VUFA"), 18 Pa.C.S.A. § 6105; firearms be carried without license, 18 Pa.C.S.A. § 6106; carrying firearms public streets Philadelphia, 18 Pa.C.S.A. § 6108; theft by unlawful taking disposition, 18 Pa.C.S.A. § 3921; receiving stolen property, 18 Pa.C.S.A. § 3925; possessing instruments of crime, Pa.C.S.A. § 907; terroristic threats, 18 Pa.C.S.A. § 2706; simple assault, Pa.C.S.A. § 2701; recklessly endangering another person, Pa.C.S.A. § 2705. Dalfonse does not challenge his convictions these offenses.

questions of law, our scope of review is plenary." Commonwealth v. Jackson, 924 A.2d 618, 620 (Pa. 2007). "In reviewing a sufficiency challenge, court determines whether the evidence, viewed light most favorable verdict winner, is sufficient enable the fact -finder to find every element of the crime beyond reasonable doubt." Id.

A person is guilty of robbery if, "in course committing theft, . threatens another with or intentionally puts him fear immediate he: . . serious bodily injury[.]" 18 Pa.C.S.A. § 3701(a)(1)(ii). "Serious bodily injury" is defined "[b]odily injury which creates substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S.A. § An act is deemed "in the course of committing theft" if it occurs in an attempt commit theft flight after attempt or commission. 18 Pa.C.S.A. § 3701(a)(2).

For purposes of subsection 3701(a)(1)(ii), the proper focus on the nature of the threat posed by assailant whether reasonably victim "immediate serious bodily injury." placed fear of Commonwealth Ross, 570 A.2d 86, (Pa. Super. 1990). threat posed by the appearance of firearm calculated inflict fear of deadly injury, merely fear of "serious bodily injury." v. Hopkins, 747 A.2d Super. 2000), citing v. Thomas, 546 A.2d 116, A factfinder to infer that victim in mortal fear when defendant visibly brandished a firearm. Id. Dalfonse argues that, because the complainant testified that

Dalfonse did threaten him prior to turning over the money, "there simply no robbery." Brief of Appellant, at Dalfonse claims his use of firearm "had nothing to do with the taking of the money as the money had already been taken." Id. He further argues he did not produce the weapon "in the course of" fleeing from the robbery, as it was Dalfonse who instructed complainant to leave. This argument unavailing.

While complainant did, in fact, voluntarily hand over $25 to Dalfonse, he so in the belief would, in exchange, give him $25 worth marijuana. Instead, Dalfonse accepted the money, immediately brandished firearm, instructed the complainant leave. Based on complainant's testimony, it clear the production of the firearm part parcel of Dalfonse's effort deprive the complainant both $25 marijuana expected return. Thus, Commonwealth established placed complainant "in fear of immediate serious bodily injury the course of committing theft." See Hopkins, supra (factfinder infer victim mortal fear when defendant visibly brandished firearm); Pa.C.S.A. § 3701(a)(1)(ii). Moreover, this Court has previously held, the Commonwealth need not prove verbal utterance threat sustain conviction under subsection 3701(a)(1)(ii). Hopkins, 747 A.2d at 914, citing v. Scott, 369 A.2d 809, (Pa. Super. Based upon the foregoing facts, the finder of fact could reasonably have found beyond reasonable doubt that committed the offense of robbery. asserts conviction for robbery was against the

weight of the evidence.

A claim alleging verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled [fact finder] is free believe all, part, none of the evidence determine credibility of the witnesses, and new trial based on weight of the evidence claim is only warranted where the [fact finder's] verdict so contrary evidence it shocks one's sense justice. In determining whether this standard has been met, appellate review limited whether trial judge's discretion was properly exercised, relief will only be granted where the facts inferences of record disclose palpable abuse of discretion. v. Tejada, 107 A.3d 795-96 Super. 2015),

quoting Karns, A.3d 158, 2012) (citation omitted). Dalfonse argues that "the greater weight of the evidence does

not establish there any force used at any relevant time this event." Brief of Appellant, at Thus, asserts, "this theft and while other offenses were involved . . ., greater weight of the evidence would not establish robbery." Id. at 11-12. This argument misplaced.

Dalfonse appears to conflate his purported challenge to the weight of the evidence with challenge its sufficiency, arguing that to not demonstrate "that there was any force used at any relevant time in this event." Id. A claim that the Commonwealth failed to prove an element of an offense goes to sufficiency, not weight. In any event, Dalfonse no relief. Dalfonse convicted under subsection 3701(a)(1)(ii), which

requires the actor "threatens another with intentionally puts him in fear of immediate serious bodily injury[.]" Pa.C.S.A. § 3701(a)(1)(ii). Dalfonse's argument, however, addresses the elements of subsection 3701(a)(1)(v), pursuant which an individual commits robbery when he "physically takes or removes property from the person of another by force however slight." Pa.C.S.A. § 3701(a)(1)(v). Because was charged under subsection 3701(a)(1)(ii), the Commonwealth not required to prove used force course of committing theft. Accordingly, this claim meritless.4

Lastly, Dalfonse challenges discretionary aspects sentence. Such claim does not entitle appellant review matter of right. To extent attempts to raise challenge weight of the evidence, claim meritless. Our review of the trial court's exercise discretion concluding its verdict against the weight of the evidence reveals no palpable abuse of discretion light of the record matter. Tejada, supra. v. Swope, 123 A.3d 333, 337 Rather, before this Court can address such a discretionary challenge, appellant must comply with the following requirements:

An appellant challenging discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. and 903; (2) whether issue was properly preserved at sentencing or motion reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has fatal defect, Pa.R.A.P. 2119(f); and (4) whether there substantial question the sentence appealed from not appropriate under the Sentencing Code. Id., quoting Allen, A.3d Super. 2011). Dalfonse filed timely notice appeal and preserved his

sentencing claim by filing motion modify sentence. He includes his brief concise statement of reasons relied upon allowance of appeal with respect discretionary aspects of his sentence pursuant Rule 2119(f). Accordingly, we must determine whether raises substantial question sentence appropriate under the sentencing code.

In his Rule 2119(f) statement, Dalfonse argues that: (1) sentence manifestly excessive because court imposed consecutive sentence VUFA conviction under section 6105 when the use of the weapon had already been determined incorporated under the robbery bill; (2) the court primarily considered the seriousness of the offense not Dalfonse's individual characteristics mitigating factors; (3) the was prejudiced against Dalfonse because Dalfonse "acted out court" after verdict announced.

To extent Dalfonse complains that sentence the section 6105 VUFA conviction imposed consecutively rather than concurrently, he fails to raise substantial question. Long-standing precedent this Court recognizes section 9721 of the Sentencing Code affords the its sentence concurrently or sentencing court discretion to impose consecutively other sentences being imposed at the same time, to sentences already imposed. Commonwealth v. Marts, 889 A.2d 608, 612 Super. Any challenge the exercise of this discretion ordinarily does not raise substantial question. Id. asserts the sentencing court failed consider

mitigating factors when imposing sentence. "This Court has held on numerous occasions claim of inadequate consideration of mitigating our review." factors does not raise substantial question v. Disalvo, A.3d 2013) (citations omitted). Accordingly, we find claim does raise substantial question.5 Even if had raised substantial question, still would not be relief. trial court here had the benefit of presentence

investigation ("PSI") report. Where the sentencing court had benefit PSI, we may assume aware of relevant information regarding the defendant's character weighed those considerations along with mitigating statutory factors. Moury, 992 A.2d 162, 171 (Footnote Continued Next Page) lastly claims that the sentencing court prejudiced against

him. This claim raises substantial question. v. McNabb, 819 A.2d 56-57 (Pa. Super. 2003) (substantial question raised by alleging sentencing court relied on impermissible factors). Nevertheless, no relief.

Dalfonse asserts the trial court harbored bias against him based upon outburst at trial. Specifically, after the trial court announced its verdict case, the following transpired courtroom: Is good [sentencing] date

THE COURT: Commonwealth?

(Defendant turned the audience.)

MS. BARR [(Complainant's mother)]: He just threatened, Officer.

MS. REBSTOCK [(Counsel for Commonwealth)]: What did he say?

(Footnote Continued) Super. 2010); see also Fowler, 893 A.2d 758, the sentencing court stated the record:

In fashioning sentence, the [c]ourt has considered the gravity of the offense, the rehabilitative needs of the defendant, the need protect community, the prior record score, pre - investigation, mental health report, arguments of sentence Commonwealth, arguments of defense, exhibits offered[,] as well as defendant's allocution.

N.T. Sentencing, 5/8/15, noted fact Dalfonse have father help raise him he had suffered brain trauma. Thus, it apparent from record court properly considered Dalfonse's individual characteristics well as mitigating circumstances.

MS. BARR: He said he'll see him. I don't care, you know I'm saying [sic]. THE DEFENDANT: THE COURT: What?

THE SHERIFF: Don't turn around.

THE COURT: Could you bring [Ms. Barr] up the bar of the court, Ms. Rebstock, please.

MS. REBSTOCK: Yes. Ms. Barr, can you please come up. Does Your Honor want her here?

THE COURT: No; right there at the bar. She's been previously sworn.

Madam, I'm sorry, what you just hear? [Dalfonse] looked at my son and said, "I'll see you, MS. BARR: cuz."

This the whole point, Your Honor. My greatest fear is the retaliation in this factor. This man lives on my block. THE COURT: Ms. Rebstock, if there's any retaliation, I want new charges filed immediately, because open court. If he's got much disdain open court, I can only imagine what occurs outside the court.

N.T. Trial, 11/17/14, at 152-53.

Subsequently, at sentencing, the court made the following statement: This [c]ourt aware of the animus you displayed this courtroom. I'm going to belabor it. Madam District Attorney went on say how you behaved subsequent guilty verdict what you tried tell the victim.

N.T. Sentencing, 5/8/15, 53.

Based on foregoing, Dalfonse asserts harbored bias against him. We cannot agree. Not only are sentences within standard ranges of the applicable guidelines, but Judge Wright provided detailed basis sentence record his Rule 1925(a) opinion. See id. 52-55 (noting, inter alia, rehabilitative needs of defendant, need protect community, PSI, mental health evaluation, defendant's statement, defendant's lack of father figure brain trauma, defendant's addiction issues, defendant's failure respond to community supervision, defendant's courtroom outburst, impact of crime victim, defendant's poor employment record, failure to respond rehabilitation efforts). In short, there nothing record suggest trial was biased prejudiced sentencing Dalfonse.

Judgment of sentence affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 5/5/2017