Opinion
J-S79041-18 No. 669 MDA 2018
02-28-2019
COMMONWEALTH OF PENNSYLVANIA v. NASEEM SMITH, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 13, 2017 in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000200-2016 BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Naseem Smith ("Smith") appeals from the judgment of sentence imposed after a jury convicted him of aggravated assault - attempted serious bodily injury, firearms not to be carried without a license, terroristic threats, simple assault, recklessly endangering another person, and possession of a firearm by a minor. We affirm.
The trial court thoroughly set forth the relevant facts and procedural history in its Memorandum accompanying the Order denying Smith's Post-trial Motions, which we incorporate herein by reference. See Trial Court Memorandum and Order, 3/16/18, at 2-8. In sum, in July 2015, when Smith was a 17-year-old high school student, following an altercation with the victim, Saddiq Fields ("Fields"), Smith and Jamil Harding ("Harding") pursued Fields in a car driven by Harding, whereupon Smith fired a handgun at Fields, narrowly missing him.
We note that the trial court conducted a hearing on Smith's Motion to decertify the case from the criminal division to the juvenile system on April 2, 2016 (hereinafter, the "Decertification Hearing"), which the trial court denied.
Following the entry of the Order denying Smith's Post-trial Motions, Smith filed a timely Notice of Appeal. In response, the trial court ordered him to file a Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal, and Smith timely complied. The trial court then issued a Pa.R.A.P. 1925(a) Opinion.
On appeal, Smith presents the following questions for our review:
A. Whether the decertification court incorrectly found that [Smith] was not amenable to treatment, supervision, or rehabilitation in the juvenile court system and, thus, erroneously denied his Motion for decertification?Brief for Appellant at 5 (capitalization omitted).
B. Whether there was sufficient evidence to sustain the verdicts of aggravated assault - attempted serious bodily injury, simple assault, recklessly endangering another person, terroristic threats, possession of a firearm without a license, and possession of a firearm by a minor?
C. Whether the verdicts of aggravated assault - attempted serious bodily injury, simple assault, recklessly endangering another person, terroristic threats, possession of a firearm without a license, and possession of a firearm by a minor were against the weight of the evidence?
D. Whether the sentencing court impose[d] harsh and unreasonable sentences?
In his first issue, Smith argues that the trial court abused its discretion in denying his Motion for decertification, where he was a minor at the time of the commission of the offenses, and the evidence showed that he was amenable to treatment and rehabilitation in the juvenile court system. See Brief for Appellant at 33-40.
In its Rule 1925(a) Opinion, the trial court summarized the relevant evidence adduced at the Decertification Hearing, which we incorporate as though fully set forth herein. See Supplemental Trial Court Opinion, 7/19/18, at 3-6.
Smith dedicates the majority of his Argument on this issue to his claim that the decertification court erred in the weight it afforded the respective psychological expert testimony presented at the Decertification Hearing by the defense and the Commonwealth. See Brief for Appellant at 36-40. Specifically, Smith asserts that the Commonwealth's expert, Steven Samuel, Ph.D. ("Dr. Samuel"), failed to acknowledge the significance of prevailing scientific research on the development of the human brain in adolescents and how it affects impulse control, which was testified to by the defense's expert, forensic psychiatrist Richard Fischbein, M.D. ("Dr. Fischbein"). Id. at 36-37. According to Smith, "the decertification court should have accepted Dr. Fischbein'[s] opinion that[,] within a degree of medical certainty[, Smith] was amenable to treatment in the juvenile system." Id. at 37-38. Additionally, Smith emphasizes that
[a]t the time of the [D]ecertification [H]earing, [Smith] had been incarcerated for several months. He has had no misconducts. He was also taking high school classes with good grades. He contends that these facts demonstrated that he would do well in the structure of the juvenile system. He asserts that both
psychiatrists and psychologists would have had extensive time to treat his mental issues behind his impulsivity which gave rise to his behavior.Id. at 38; see also id. (asserting that "while in the juvenile system until age 21, [Smith] would undergo important brain development" and "would be able to continue the educational strides made in ... prison.").
In its Opinion, the trial court addressed Smith's claim, adeptly set forth the applicable law, and determined that it properly exercised its discretion in denying Smith's Motion to decertify. See Supplemental Trial Court Opinion, 7/19/18, at 6-10. We decline Smith's invitation to reweigh the credibility of the respective experts' testimony, and the proper weight to be assigned to it, both of which were in the sole purview of the decertification court. See Commonwealth v. West , 937 A.2d 516, 523 (Pa. Super. 2007) (emphasizing that the trier of fact is free to believe all, part or none of the evidence, and this Court may not reweigh the evidence and substitute its judgment for that of the fact finder). As the trial court's cogent analysis is supported by the law and the record, and we discern no abuse of its discretion, we affirm on this basis concerning Smith's first issue. See Supplemental Trial Court Opinion, 7/19/18, at 6-10.
In his second issue, Smith asserts that the Commonwealth failed to present sufficient evidence for the jury to convict him, beyond a reasonable doubt, of the above-mentioned crimes. See Brief for Appellant at 40-44. Smith urges that there was no conclusive evidence that he was the person who fired the gun at Fields. Id. at 41-42. Specifically, Smith alleges that when Fields had selected a photo of Smith as the shooter from a police photo array, "Fields stated that he could not be one hundred percent sure as to the perpetrator's identity." Id. at 41. Smith also emphasizes that the police never recovered the gun. Id. Smith asserts that the only eyewitness who had testified to seeing Smith fire the gun, Harding, "had reason to implicate [Smith] as the shooter, [since Harding] did not want to have any exposure as being the shooter." Id. at 42. Finally, Smith contends that his convictions of aggravated assault and simple assault cannot stand, since there was no evidence that Fields suffered any bodily injury. Id. at 42-43 (pointing out that Fields "walked away from the entire incident[, and] never received medical treatment.").
We apply the following standard of review when considering a challenge to the sufficiency of the evidence:
[W]hether[,] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).
The Crimes Code provides that a person is guilty of aggravated assault if he or she "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]" 18 Pa.C.S.A. § 2702(a)(1).
The statute concerning firearms not to be carried without a license provides, in relevant part, that "any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree." Id. § 6106(a)(1).
A person commits the crime of terroristic threats if the person, inter alia, "communicates, either directly or indirectly, a threat to ... commit any crime of violence with intent to terrorize another[.]" Id. § 2706(a)(1).
A person is guilty of simple assault if he or she, inter alia, "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.]" Id. § 2701(a)(1).
Concerning recklessly endangering another person, the Crimes Code provides as follows: "A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." Id. § 2705.
Finally, the statute governing possession of a firearm by a minor provides that, generally, "a person under 18 years of age shall not possess or transport a firearm anywhere in this Commonwealth." Id. § 6110.1(a).
In its Opinion, the trial court cogently addressed Smith's sufficiency challenge, set forth the applicable law, and determined that there was ample evidence for the jury to convict Smith of the crimes. See Trial Court Memorandum and Order, 3/16/18, at 9-12. We agree with the trial court's analysis and determination, which is supported by the record and the law, and therefore affirm on this basis in rejecting Smith's sufficiency challenge, see id., with the following addendum.
To the extent that Smith challenges his convictions of aggravated assault and simple assault based upon the fact that Fields did not sustain any bodily injury (or serious bodily injury), this claim does not entitle Smith to relief, where the evidence established that he had attempted to cause such injury. See 18 Pa.C.S.A. § 2702(a)(1) (providing that a person is guilty of aggravated assault if he or she "attempts to cause serious bodily injury to another ...." (emphasis added)); id. § 2701(a)(1) (providing that a person is guilty of simple assault if he or she "attempts to cause ... bodily injury to another[.]" (emphasis added)).
In his third issue, Smith contends that the jury's verdicts were against the weight of the evidence. See Brief for Appellant at 45-46.
Our standard of review of a weight of the evidence claim is as follows:
The weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. A new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. 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.Commonwealth v. Gonzalez , 109 A.3d 711, 723 (Pa. Super. 2015) (quotation marks and citations omitted); see also Commonwealth v. Rabold , 920 A.2d 857, 860 (Pa. Super. 2007) (stating that "[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.") (citation omitted).
On appeal, our purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence.
Smith argues that his convictions are against the weight of the evidence, where Fields "testified [that] there were two to three individuals who followed him [on the] day [of the shooting, and Fields] did not identify [Smith] as the individual who fired the gun." Brief for Appellant at 46. Smith also challenges the credibility of Harding's trial testimony, asserting that "Harding admitted that he had used alcohol and controlled substances on the day in question[,]" and Harding's "testimony is suspect," due to the charges against Harding. Id.
Smith essentially asks us to reassess the credibility of the witnesses and reweigh the testimony and evidence presented at trial. We cannot, and will not, do so. It was for the jury to determine the credibility of the witnesses and the weight to be accorded Harding's testimony that he saw Smith fire a handgun. See Gonzalez , supra ; see also Commonwealth v. Alicia , 92 A.3d 753, 761 (Pa. 2014) (stating that "[t]he veracity of a particular witness is a question which must be answered in reliance on the ordinary experiences of life, common knowledge of the natural tendencies of human nature, and observations of the character and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity of jurors to assess, the question of a witness's credibility is reserved exclusively for the jury." (citation omitted)). Accordingly, we conclude that the trial court did not abuse its discretion in rejecting Smith's weight of the evidence contention, and we likewise determine that the jury's verdicts do not shock our collective conscience. See Commonwealth v. Santiago , 980 A.2d 659, 664 (Pa. Super. 2009) (holding that trial court did not abuse its discretion in denying weight challenge where appellant asked this Court to reweigh the evidence).
In his final issue, Smith argues that the trial court imposed an unduly excessive aggregate sentence (i.e., 61 to 122 months in prison), where (a) it ordered the respective sentences to run consecutively; (b) the sentences were at the top end of the standard guidelines ranges; (c) the incident did not result in bodily injury to Fields; and (d) the sentencing court failed to adequately consider mitigating factors. See Brief for Appellant at 32-33.
Specifically, the trial court ordered the sentences imposed for aggravated assault and firearms not to be carried without a license to run consecutively. The court also ordered the sentence imposed for terroristic threats to run consecutively to the aggravated assault sentence. The remaining offenses merged for sentencing purposes.
Smith states that the mitigating factors include "his prior record score of 0; that he was 17 years old at the time of the commission of the crimes; that he suffers from depression[;] and that[,] at the age of 17[,] the areas [of the brain] which control impulsivity are not fully developed ...." Brief for Appellant at 33.
Smith challenges the discretionary aspects of his sentence, from which there is no absolute right to appeal. See Commonwealth v. Hill , 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has preserved the sentencing challenge for appellate review by raising it at sentencing or in a timely post-sentence motion, the appellant must (1) include in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Hill , 66 A.3d at 363-64.
Here, Smith included a Rule 2119(f) Statement in his brief. See Brief for Appellant at 32-33. Moreover, his above-mentioned claims present a substantial question for our review. See Commonwealth v. Caldwell , 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (stating that "an excessive sentence claim—in conjunction with an assertion that the [trial] court failed to consider mitigating factors—raises a substantial question.") (citation omitted); Commonwealth v. Bonner , 135 A.3d 592, 604 (Pa. Super. 2016) (holding that a claim that appellant's standard-range consecutive sentence was excessive, and the trial court failed to consider appellant's rehabilitative needs, raised a substantial question); but see also Commonwealth v. Lamonda , 52 A.3d 365, 372 (Pa. Super. 2012) (en banc) (stating that "the imposition of consecutive, rather than concurrent sentences, may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment."). Accordingly, we will address the merits of Smith's claims.
We review discretionary aspects of sentence claims under the following standard: "[S]entencing 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." Commonwealth v. Fullin , 892 A.2d 843, 847 (Pa. Super. 2006). Moreover, the sentencing court has broad discretion in choosing the range of permissible confinement that best suits a particular defendant and the circumstances surrounding his crime. Commonwealth v. Walls , 846 A.2d 152, 154-55 (Pa. Super. 2004). The Sentencing Code sets forth the considerations a trial court must take into account when formulating a sentence, providing that
the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.42 Pa.C.S.A. § 9721(b).
Importantly, the sentencing court in the instant case had the benefit of a pre-sentence investigation report ("PSI"). It is well established that where a sentencing court is informed by a PSI, "it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed." Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988)). In discussing Devers , this Court in Ventura explained as follows:
In imposing sentence, the trial court is required to consider the particular circumstances of the offense and the character of the defendant. The trial court should refer to the defendant's prior criminal record, age, personal characteristics, and potential for rehabilitation. However, where the sentencing judge had the benefit of a [PSI], it will be presumed that he or she was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Additionally, the sentencing court must state its reasons for the sentence on the record. The sentencing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by indicating that he or she has been informed by the [PSI]; thus properly considering and weighing all relevant factors.Ventura , 975 A.2d at 1135 (citation omitted).
Because the sentencing court in the instant case confirmed that it had reviewed Smith's PSI prior to sentencing him, see N.T., 9/13/17, at 19 & 25, it is presumed that the court considered all mitigating factors, including Smith's age and other relevant matters. See Ventura , supra. Moreover, the sentencing court stated as follows in support of its denial of Smith's Motion for reconsideration of sentence:
As reflected by the sentencing hearing transcript, Smith's PSI report, his juvenile and Lackawanna County Prison records, an evaluation report prepared by Dr. Fischbein in connection with Smith's 2015 [D]ecertification [H]earing, and ten letters of recommendation were reviewed and considered prior to sentencing. (T.P. 9/13/17 at pp. 2-4, 7-9, 19). Before Smith's sentences were imposed, the reasons for those sentences were stated on the record, and expressly included "the underlying circumstances of the offenses," "the nature and gravity of the offenses," Smith's "age at the time" of his offenses and sentencing, "his background," "individual circumstances," and "potential for rehabilitation." ( Id. at pp. 19-22, 24-25). Based upon Smith's prior record score of zero and the offense gravity scores assigned to each offense, the individual sentences imposed fell within the standard ranges of the Sentencing Guidelines. ( Id. at pp. 3, 22-24). Additionally, Smith was made "boot camp eligible" at the request of defense counsel and without objection by the Commonwealth. ( Id. at p. 27).Trial Court Memorandum and Order, 3/16/18, at 13-14 (footnote omitted). The trial court's foregoing analysis is supported by the record.
Additionally, a review of the sentencing hearing transcript reveals that the court considered in-depth argument by defense counsel concerning, inter alia, (1) the appropriateness of concurrent sentences because the separate convictions purportedly arose out of a "single transaction"; (2) the fact that Smith was a minor when he committed the offenses; (3) that, as a minor, Smith's brain was still developing at the time of the offenses; and (4) Smith's good conduct and educational achievements while in prison. See N.T., 9/13/17, at 10-14. Further, the court considered a statement that Smith's mother gave on his behalf. See id. at 5-10. Therefore, the record belies Smith's claim that the court failed to consider mitigating factors.
Finally, it was within the sound discretion of the sentencing court to impose consecutive, as opposed to concurrent, sentences. See Commonwealth v. Johnson , 961 A.2d 877, 880 (Pa. Super. 2008). We discern no abuse of the sentencing court's discretion, nor do we find the standard-range sentences inappropriately excessive, particularly in light of the seriousness of Smith's actions. See Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (stating that "where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code."). Accordingly, Smith's final issue fails.
The sentencing court also emphasized that less than a month after the shooting that gave rise to the instant case, Smith committed an attempted armed robbery with a gun (for which he received an aggregate term of probation of five years, to be served consecutively to the sentence in the instant case). See N.T., 9/13/17, at 20; see also Supplemental Trial Court Opinion, 7/19/18, at 2.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/28/2019
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