NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No MDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. LIZA A. HERNANDEZ, Appellant No MDA 2012 Appeal from the Judgment of Sentence of May 7, 2012, in the Court of Common Pleas of Berks County, Criminal Division at No. CP-06-CR BEFORE: PANELLA, SHOGAN and COLVILLE*, JJ. MEMORANDUM BY COLVILLE, J.: Filed: March 26, 2013 This is an appeal from a judgment of sentence. We affirm. The trial court summarized the factual background underlying this matter in the manner that follows. Just after midnight on December 14, 2011, shots rang out in the 1800 block of Cotton Street, in the City of Reading, Berks County, Pennsylvania. A resident, Donald Dease, heard five gunshots and saw a flash from his bedroom, but declined to venture outside to investigate further at the time. The next morning, Dease discovered several bullet holes in the rear of his 2005 Chrysler 300 three in the trunk lid, one in the bumper cover, and one in the right rear tire, which was now flat. Five.22 caliber shell casings and one bullet were also found on the scene. Dease reported the incident to the Reading Police Department, and officers were dispatched to the scene. *Retired Senior Judge assigned to the Superior Court.

2 On the night the shots were fired, Joshua Castro placed a phone call to Appellant, who was his roommate, to ask her for a ride home. Castro testified that Appellant picked him up, then drove him to the vicinity of 17 th and Cotton streets, where she said she needed to take care of something. Castro testified that when they reached Cotton Street, Appellant parked the car and went under her seat [and] pulled out a gun, then walked up to a Chrysler 300 parked nearby and started shooting at it. During his testimony at trial, Castro identified a picture of Dease s vehicle as the one he saw Appellant shoot that night. Castro also testified that the weapon Appellant used was a silver and black.22 caliber handgun. [1] On December 15, 2011, Castro and an acquaintance went to the Reading Police Department to report Appellant s involvement in the shooting. Police asked Castro if Appellant said anything that night to explain her actions, and Castro told them she had not said anything about it. At trial, however, Castro testified that when they arrived at home after the incident, he had confronted Appellant and asked her what was going on. He testified that Appellant, who had been the victim of a robbery, told him she had been following this car around all day and that she seen it parked and that she just thought it was them, the people who had robbed her. After the incident was reported, Criminal Investigator Kyle Rentschler performed a background check on Appellant, which revealed that Appellant had been convicted of robbery in The background check also revealed that Appellant did not have a valid license to operate a motor vehicle on the date of the incident. Rentschler also determined that Appellant did not have a valid license to possess a firearm. Appellant was arrested the same day. Trial Court Opinion, 10/24/12, at 2-3 (citations and footnote omitted). 1 At trial, Castro actually testified that Appellant used a silver and black.22 caliber long rifle. N.T., 05/02/12, at

3 After holding a bench trial, the trial court convicted Appellant of persons not to possess firearms, firearms not to be carried without a license, criminal mischief, and driving while operating privilege is suspended or revoked. The court sentenced Appellant to an aggregate term of imprisonment of eight to eighteen years, to a two-year term of probation to be served consecutively to the prison term, and to pay a fine and costs. Appellant filed post-sentence motions and, later, supplemental postsentence motions. The trial court denied the post-sentence motions. Appellant timely filed a notice of appeal. On appeal, Appellant asks us to consider the following two questions. A. Whether the [c]ourt erred by not granting a new trial on the basis that the guilty verdicts on all counts were contrary to the weight of the evidence, where Joshua Castro s testimony, the only evidence implicating [Appellant] as the perpetrator, was inconsistent, unclear, and clearly motivated by ulterior motives? B. Whether the [c]ourt abused its discretion by imposing an aggregate sentence of incarceration for eight to sixteen years, followed by two years of probation, based solely on a consideration of [Appellant s] prior record and the seriousness of the current offenses, where such a sentence was manifestily excessive and clearly unreasonable, where the sentence was contrary to the fundamental norms underlying the Sentencing Code, in that the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and [Appellant s] individual rehabilitative needs and mitigating circumstances were not considered? Appellant s Brief at 6. Under her first issue, Appellant challenges the weight of the evidence. Appellant states that, in order to be convicted of criminal mischief, persons - 3 -

4 not to possess firearms, and firearms not to be carried without a license, the Commonwealth was required to prove that she possessed and fired a gun into Dease s vehicle. According to Appellant, the Commonwealth only presented Castro s testimony to prove that Appellant, in fact, possessed and fired a gun on the night in question. Appellant contends that Castro s testimony was so inconsistent, unclear, and motivated by ulterior motives that the trial court should not have credited Castro s testimony.... Our standard of review for a challenge to the weight of the evidence is well-settled: The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses. As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury's verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one's sense of justice. Our appellate courts have repeatedly emphasized 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. Furthermore, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Rabold, 920 A.2d 857, (Pa. Super. 2007) (citations and quotation marks omitted). The trial court denied Appellant s post-sentence motions wherein she challenged the weight of the evidence. Moreover, in its Pa.R.A.P. 1925(a) - 4 -

5 opinion, the court specifically addressed Appellant s claims regarding the reliability of Castro s testimony. The court rejected the claims as follows:... We heard testimony from Joshua Castro, who claimed to have witnessed first-hand the criminal activities for which Appellant was charged. Despite some inconsistencies in his report to police and his testimony at trial, we found Castro s testimony and report to be consistent as to the material matters namely, that Appellant picked him up and drove to the neighborhood in question, that she pulled out a.22 caliber handgun from the car and left the car, and that she walked toward a Chrysler 300 and fired several shots. We did not find any discrepancies in Castro s testimony outweighed the totality of his credibility as an eyewitness. Furthermore, we were not persuaded from the evidence presented that Castro s associations with [Appellant] were sufficient to give Castro ulterior motives to testify against Appellant. We therefore do not believe that the verdict in this case is contrary to the evidence presented, nor do we believe anyone s sense of justice would be shocked by the verdict. Accordingly, we submit that our order denying Appellant s motion for a new trial should be affirmed. Trial Court Opinion, 10/24/12, at 7. After a review of the certified record, we can discern no palpable abuse of discretion regarding the manner in which the trial court ruled upon Appellant s weight-of-the-evidence claim. Consequently, this issue warrants no relief. Under her second issue, Appellant seeks to challenge the discretionary aspects of her sentence. Challenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super

6 2000). Prior to reaching the merits of a discretionary sentencing issue: [W]e conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P [now Rule 720]; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. 9781(b). Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731, 735 (1992) (most internal citations omitted). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003). Additionally, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, (2002); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Pa.R.A.P. 2119(f). The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases. Commonwealth v. Williams, 386 Pa. Super. 322, 562 A.2d 1385, 1387 (1989) (en banc) (emphasis in original). The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 A.2d 1013 (Pa. Super. 2003). A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Sierra, supra at (quoting - 6 -

7 Commonwealth v. Brown, 741 A.2d 726, 736 (Pa. Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005). Appellant timely filed a notice of appeal, and her brief includes a Pa.R.A.P. 2119(f) statement. As to whether Appellant preserved her issue for review and whether Appellant presents a substantial question, we first note that Appellant does not so much present an issue to this Court regarding the discretionary aspects of her sentence. Rather, she provides a laundry list of boilerplate allegations regarding the manner in which the trial court allegedly erred in sentencing her. A review of Appellant s postsentence motions and her Pa.R.A.P. 2119(f) statement reveal similar, generalized allegations of error on the part of the trial court. A common theme in her post-sentence motions, her appellate issue, and her Pa.R.A.P. 2119(f) is that her sentence is excessive because the trial court failed to consider the general sentencing standards found at 42 Pa.C.S.A. 9721(b); instead, the court improperly fashioned her sentence by solely considering her previous criminal history and the seriousness of the crimes for which she was convicted. Appellant, therefore, arguably has preserved and presented a challenge to the discretionary aspects of her sentence that raises a substantial question worthy of appellate review. See, e.g., Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa. Super. 2012) ( Lewis's allegation that the sentencing court focused exclusively on the seriousness of the crime raises at least a plausible argument that the sentencing court did not follow the requirements of section Therefore, we conclude - 7 -

8 that Lewis has raised a substantial question, and we will consider the merits of his sentencing claim. ) (citation omitted). Our standard of review of a sentencing claim is as follows: Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (citation omitted). At the center of Appellant s claim is her contention that the trial court failed to consider the general sentencing factors found at 42 Pa.C.S.A. 9721(b). For instance, Appellant argues that the court failed to consider (or more accurately, failed to meaningfully address,) Appellant s rehabilitative needs. Our initial observation is that Appellant does not inform this Court of what her rehabilitative needs are or where in the record such needs were brought to the court s attention. In any event, the certified record is incomplete for purposes of reviewing this issue. When sentencing Appellant, the trial court stated that it reviewed the presentence investigation report and that it took that report into account in fashioning its sentence. N.T., 05/07/12, at That report is not in the - 8 -

9 certified record. We, therefore, do not know what information the report contained. Consequently, we do not have a complete record with respect to what the trial court considered in fashioning Appellant s sentence. As an appellate court, our review is limited by the contents of the certified record. The law of Pennsylvania is well settled that matters which are not of record cannot be considered on appeal. Thus, an appellate court is limited to considering only the materials in the certified record when resolving an issue. All documents in a criminal matter must be filed with the clerk of courts in order to become part of the certified record. Additionally, Appellant has the duty to ensure that all documents essential to his case are included in the certified record. As this Court has previously stated, [i]t is the obligation of the [A]ppellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal. If a document is not in the certified record then this Court cannot take it into account.... A failure by [A]ppellant to insure that the original record certified for appeal contains sufficient information to conduct a proper review constitutes waiver of the issue sought to be examined.... Commonwealth v. Manley, 985 A.2d 256, (Pa. Super. 2009) (citations omitted). Because Appellant failed to insure that the certified record contained the presentence investigation report, she has waived her sentencing issue. For all of the reasons discussed above, we affirm the judgment of sentence. Judgment of sentence affirmed

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