Com. v. Chambers, E.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ERIC A. CHAMBERS, : No. 1961 MDA 2013 : Appellant :

Appeal from the Judgment of Sentence, July 17, 2013, in the Court of Common Pleas of Dauphin County Criminal Division at No. CP-22-CR-0000392-2012

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 25, 2014

Eric A. Chambers appeals from the judgment of sentence entered July 17, 2013, in the Court of Common Pleas of Dauphin County.

The facts of this matter are as follows. On September 9, 2011, Jalil Walters (“Jalil”) and his two brothers, Ibrahiim Muhammad (“Ibrahiim”) and Lewin Chism, Jr. (“Lewin”), were drinking at their grandmother’s house with family members and their friend, Mike Burgress (“Mike”). (Notes of testimony, 5/13-16/2013 at 76-78.) Lewin was admittedly intoxicated, having consumed three beers and several shots of liquor. (Id. at 80.) Jalil had also consumed several shots and a beer. The group decided to continue drinking at the Jazzland Bar, located on Walnut Street in Harrisburg. (Id. at 79-81.)

• • Retired Senior Judge assigned to the Superior Court.

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Upon arrival, at approximately 11:00 p.m., Lewin began to feel anxious and uncomfortable; he told his brothers that he wanted to leave as he thought other people in the bar were thugs and gangsters. (Id. at 135, 224-226.) Lewin left the bar, which prompted Jalil, Ibrahiim, and Mike to follow in an effort to calm him down. (Id. at 86, 209.)

Appellant and Demond Bates, who was security at the bar, followed them outside. Appellant approached Lewin and asked him what he had been saying about the clientele in the bar. (Id. at 86, 136, 227-228.) Appellant then took a gun out of his pants and pointed it in Lewin’s face. (Id. at 87-89.) The brothers asked Bates to interject, which he refused to do. Appellant then secreted the gun on his person and went back inside the bar. (Id. at 90.)

A short time later, appellant exited the bar again, and this time he was “even more aggressive.” (Id. at 232.) Appellant stated he was going to kill one of them. (Id.) Appellant, who was “irate and angry,” pointed the gun at Ibrahiim’s chest. (Id. at 91-92, 229-232.) The brothers claimed appellant pulled the trigger and at that split second, Jalil jumped in front of the gun taking the bullet that was fired.1 (Id. at 231, 233.) All of the brothers identified appellant as the shooter in a photographic lineup and in the courtroom. (Id. at 97, 148-149, 237-239.) All of the brothers also

1 At the preliminary hearing, Jalil also testified that he jumped in front of his brother and took the bullet that was intended for him. (Notes of testimony, 1/1/12 at 9.)

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stated that the gun used was a revolver. (Id. at 98-100, 146-148, 229-230.)

After Jalil was shot, the group flagged down a police vehicle, which then called for an ambulance. (Id. at 95-96.) Jalil was hospitalized for six to eight days and underwent two surgeries. (Id. at 243.) The bullet had traveled through his left elbow, which it shattered, and his abdomen. The bullet is to remain in his abdomen indefinitely, as the doctors were afraid his internal organs might rupture if they removed it. (Id. at 240-244.)

Mike, however, claimed that the shooting occurred right after the group exited the bar, and that the bouncer was most likely the shooter. (Id. at 211-212.) Mike was standing approximately five feet from the shooter who he described as heavy set with hair on his head and a beard, not a goatee. (Id. at 210, 216.) Mike testified he was “unsure” if any of the individuals present at trial was the shooter, including appellant, who was bald with a goatee; he averred he did not see the shooter in the courtroom. (Id. at 216, 217-220.) Lewin, Ibrahiim, Jalil, and Mike were also unable to give consistent descriptions of the shooter or what he was wearing. Demond Bates, who worked as a bouncer on the night in question, was familiar with appellant but did not see him in the area at any point.

Detective Quinten Kennedy of the Harrisburg Police Department testified that on January 9, 2012, he was informed that appellant had been arrested at a motel. (Id. at 281-282.) He was instructed to go to the motel

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and execute a search pursuant to a warrant that had been issued. (Id. at 282-283.) They searched the room and also discovered appellant’s vehicle parked outside a motel room. (Id. at 286-287.) Officer Kennedy had the vehicle towed to the impound lot and then searched the vehicle, finding several pieces of paper in the driver’s side door panel. One of these items was an envelope containing appellant’s handwritten notes. (Id. at 291-293, 310.)

During trial, Detective Ryan Neal testified to the search warrant and subsequent search of the vehicle. He was asked to read the contents of the notes to the jury on direct examination: “On one side [of the envelope appears] the abbreviation for criminal attempt homicide, and then former convict not to possess firearms.” (Id. at 291.) Defense counsel objected and moved for a mistrial because the statement suggested that appellant had previously been guilty of another crime; prior to trial, the count of persons not to possess firearms had been bifurcated. The court denied his motion and his request for a curative instruction, as it found the error harmless. (Id. at 300-301.)

After a jury trial, appellant was convicted of criminal attempt (homicide), aggravated assault, firearms not to be carried without a license, simple assault, recklessly endangering another person, and possession of a firearm prohibited. On July 17, 2013, appellant received an aggregate

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sentence of 25 to 50 years’ incarceration and a fine of $4,000. Appellant was also ordered to pay restitution.

A timely post-sentence motion was filed, and defense counsel filed a motion to withdraw, which was granted on July 22, 2013. Appellant’s new counsel, Andrea Haynes, Esq., filed a supplemental post-sentence motion on July 31, 2013. On September 3, 2013, appellant filed an amended post-sentence motion. A hearing was held on September 27, 2013, and thereafter, the court denied the motion on October 3, 2013. Appellant filed a timely notice of appeal on Monday, November 4, 2013.2 The Honorable Andrew H. Dowling issued a Rule 1925(a) opinion on December 11, 2013, whereby it incorporated its memorandum and order from October 3, 2013.

The following issues have been presented for our review:

I. Whether the trial court committed reversible error in instructing the jury that the victim of the attempted murder was Ibrahiim Muhammad, not Jalil Walters, where a variance existed that was fatal to the verdict between the criminal information and the jury instructions in violation of Appellant’s Due Process protections of the Fourteenth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution?

II. Whether the trial court committed reversible error in denying Appellant’s motion for a mistrial where a prosecution witness read from a document, in front of the jury, that Appellant is a convict who cannot own or possess a

2 Because November 2, 2013, fell on a Saturday, appellant had until the following Monday to file his appeal. 1 Pa.C.S.A. § 1908.

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firearm, where Appellant’s charge for Persons Not to Possess a Firearm had been bifurcated from Appellant’s other charges prior to trial to eliminate prejudice to Appellant?

III. Whether the Commonwealth failed to adduce sufficient evidence at trial to sustain the jury’s verdict of guilty on all counts where the Commonwealth failed to prove beyond a reasonable doubt that Appellant committed the crimes alleged?

IV. Whether the jury’s verdict of guilty on all counts was contrary to the weight of the evidence so as to shock one’s sense of justice where there was conflicting testimony as to when the shooting occurred, the description of the shooter, and whether Appellant was present on the night in question?

V. Whether Appellant’s sentence is excessive and unreasonable and constitutes too severe a punishment in light of Appellant’s rehabilitative needs and where the punitive measures inherent in this sentencing scheme could have been accomplished with the imposition of a lesser sentence?

Appellant’s brief at 9-10.

In the first issue presented, appellant claims the trial court committed reversible error where a variance existed between the criminal information and the jury instructions. Specifically, he directs our attention to a jury instruction that identified Ibrahiim as the victim rather than Jalil, which went against the criminal information sheet. Appellant avers that the criminal information led him to believe the Commonwealth intended to prove at trial that appellant attempted to kill Jalil. (Id. at 24.) Appellant also argues that

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the trial court, in effect, amended the criminal information when it gave a special interrogatory where the jury was asked to determine whether Jalil had suffered serious bodily injury during the commission of the attempted murder of Ibrahiim. (Id. at 25.)

The purpose of the information is to provide the accused with sufficient notice to prepare a defense. Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994). “An information is sufficient if it sets forth the elements of the offense intended to be charged with sufficient detail that the defendant is apprised of what he must be prepared to meet, and may plead double jeopardy in a future prosecution based on the same set of events.” Id. Additionally, the information must be read in a common sense manner, and should not be construed in an overly technical sense. Commonwealth v. Jones, 912 A.2d 268, 289 (Pa. 2006). A purported variance between a criminal information and evidence produced at trial is not fatal, “unless it could mislead the defendant at trial, involves an element of surprise prejudicial to the defendant’s efforts to prepare his defense, precludes the defendant from anticipating the prosecution’s proof, or impairs a substantial right.” Id.

We find no error with either the trial court’s decision or rationale. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our determination that there is no merit to this question raised on appeal. The

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trial court’s opinion, filed on December 11, 2013, comprehensively discusses and properly disposes of the question presented. We will adopt it as our own and affirm on that basis. (Trial court opinion, 12/11/13 at 2-3.)

We note our agreement with the trial court and the Commonwealth that appellant’s argument regarding the variance is factually incorrect. The information did not identify a victim or intended victim with regard to attempted murder.3 (Docket #11-2.) The criminal information only states that Jalil suffered gunshot wounds to his upper body as a result of the commission of the crime. (Id.) Thus, appellant’s argument that the Commonwealth put him on notice that it “intended to prove at trial that the defendant attempted to kill Jalil Walters” is erroneous. (Appellant’s brief at 26.) During its instruction to the jury, Ibrahiim was only named as an intended victim, not the victim; the trial court specifically instructed “that the defendant did a certain act; that is fired a handgun at Ibrahiim Muhammad.” (Notes of testimony, 5/13-16/2013 at 368.)

Included in the argument section of the first issue, appellant also includes a claim concerning the special interrogatory; we find this argument is waived as it was not included in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Mattison, 82 A.3d 386, 393 (Pa. 2013) (defendant waived his challenges to the sufficiency of the evidence to support his burglary and robbery convictions where he failed to

3 The information did name a victim for the crime of aggravated assault.

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include these challenges in his statement of matters complained of on appeal).

The second issue concerns whether the trial court erred in denying his motion for a mistrial. Our standard of review of a court’s denial of a motion for mistrial is as follows:

A motion for a mistrial is within the discretion of the trial court. A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court’s discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa.Super. 2014), quoting Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (internal citations and footnote omitted).

Appellant claims he suffered prejudice when the jury heard “evidence that [a]ppellant was a former convict.” (Appellant’s brief at 33.) We disagree with appellant’s characterization of the testimony. Here, the Commonwealth did not elicit testimony of appellant’s status as a former convict; in fact, the trial court properly bifurcated proceedings related to appellant’s charge of persons not to possess a firearm during the trial. Rather, during direct examination of Officer Neal, he read what was written on an envelope found during the search of appellant’s car: “on the one side it has the abbreviation for criminal attempt homicide, and then former

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convict not to possess firearm.” (Notes of testimony, 5/13-16/2013 at 290-291.)

We cannot find this brief remark entitles appellant to a new trial. This court has held that a witness’ isolated, passing reference, which did not give details of a prior offense and which the Commonwealth did not elaborate upon or otherwise exploit, warrantied no relief. Commonwealth v. Miller, 481 A.2d 1221, 1222 (Pa.Super. 1984). When considering the officer’s testimony as a whole, the reference to a “former convict” did not stand out on its own; in fact, the remaining testimony of the officer concerning the words written on the envelope was far more damaging. When the officer continued to testify after the sidebar, he described the remaining contents of the envelope as follows:

[A]lso in the handwriting it has the name of Jalil Walters. In parenthesis it has left arm and abdomen. Also the name of Ibrahiim Muhammad and Lewin Chism. Then below that a little bit there’s Walters and Muhammad identified me from photo array. And then below that it says Jalil push Ibrahiim out of the way -- d-a way and got hit. And then it lists my name and my officer telephone number. And I think at the bottom it says Carter, and then it has a -- I think it’s a colon or semicolon, and it says I got ten eyewitnesses.

Notes of testimony, 5/13-16/13 at 310.

Therefore, we find appellant suffered no prejudice from the officer’s fleeting mention of the crime. Additionally, the trial court offered to issue a curative instruction and defense counsel rejected the offer.

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The third claim concerns the sufficiency of the evidence. However, appellant’s entire argument concerns credibility as he avers the Commonwealth’s witnesses gave conflicting descriptions of the shooter and he avers he was not present at the Jazzland Bar on the evening in question. (See appellant’s brief at 40-41.) Appellant also contends that the jury should have credited the testimony of Mike and the bouncer whose description did not match his appearance. An argument that the finder of fact should have credited one witness’ testimony over that of another witness goes to the weight of the evidence, not the sufficiency of the evidence. Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa.Super. 2007) (claim that the jury should have believed appellant’s version of the event rather than that of the victim goes to the weight, not the sufficiency of the evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the evidence does not include an assessment of the credibility of testimony; such a claim goes to the weight of the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (credibility determinations are made by the finder of fact, and challenges to those determinations go to the weight, not the sufficiency of the evidence). Thus, we will not review appellant’s asserted sufficiency of the evidence claim as it is, in fact, a weight of the evidence claim.

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Nevertheless, appellant properly preserved and presented a claim regarding the weight of the evidence.

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. 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[,] [t]he 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) (emphasis in the original omitted) (citations omitted).

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There was no abuse of discretion by the trial court. Appellant essentially asks us to reassess the credibility of the witnesses. Issues of credibility are for the trier of fact to decide, and the jury obviously chose to believe the Commonwealth’s version of the facts and believed the recollection of the three brothers, regardless of the fact that they had consumed alcohol. As the trial court observed, while appellant “emphasizes that Mike Burgress testified that, unlike [appellant], the shooter had hair on his head and a beard, Mr. Burgress originally testified that he was not able to see who shot Jalil even though he testified he was standing five feet away at the time.” (Trial court opinion, 12/11/13 at 9.) We conclude appellant is entitled to no relief.

The final claim presents a challenge to the discretionary aspects of sentencing. “It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.” Commonwealth v. Austin, 66 A.3d 798, 807-808 (Pa.Super. 2013) (citation omitted).

[T]he right to appeal such an aspect of sentencing is not absolute and is waived if the appellant does not challenge it in post-sentence motions or by raising the claim during sentencing proceedings. To reach the merits of a discretionary sentencing issue, this Court will conduct a four-part analysis to determine:

(1) whether Appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether Appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the

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sentence appealed from is not appropriate under the sentencing code.

Commonwealth v. Bullock, 948 A.2d 818, 825-826 (Pa.Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009) (citation omitted).

Here, appellant filed a timely notice of appeal, and preserved his claim that the restitution portion of his sentence is excessive. He has also included in his appellate brief a separate Rule 2119(f) statement. Therefore, we proceed to determine whether appellant has presented a substantial question that his sentence is not appropriate under the Sentencing Code.

Appellant argues that his combined fine and restitution amount of $13,635.26 is excessive and unreasonable. (Appellant’s brief at 21.) He avers that the fine goes beyond what is necessary to protect the public and the money will not impact the victim or the community. He also states he will never be able to afford to pay the fine and claims that the fine “does not consider his rehabilitative needs.” (Id.) This issue implicates the discretionary aspects of appellant’s sentence and raises a substantial question. Commonwealth v. Walker, 666 A.2d 301, 307, 310 (Pa.Super. 1995), appeal denied, 680 A.2d 1161 (Pa. 1996) (challenges alleging that a sentence of restitution is excessive under the circumstances are challenges to the discretionary aspects of sentencing).

Our standard of review in an appeal from the discretionary aspects of a sentence is well settled:

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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. Hardy, 939 A.2d 974, 980 (Pa.Super. 2007) (citation omitted).

Appellant contends that the combined fine and restitution amount of $13,635.26 ($9,635 in restitution and $4,000.26 in fines) is excessive, given his financial situation. At the outset, we note that restitution is penal in nature and may be imposed without regard to the defendant’s ability to pay when incorporated as part of a defendant’s direct sentence. Commonwealth v. Karth, 994 A.2d 606, 607 (Pa.Super. 2010). The sentencing court is not required to consider evidence of a defendant’s ability to pay when imposing restitution; such ability need only be considered upon default. Commonwealth v. Colon, 708 A.2d 1279, 1283 (Pa.Super. 1998).

However, the applicable provision of the Sentencing Code provides, in pertinent part,

(b) Fine as additional sentence.--The court may sentence the defendant to pay a fine in addition to another sentence, either involving total or partial confinement or probation, . . . .

....

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(c) Exception.--The court shall not sentence a defendant to pay a fine unless it appears of record that:

(1) the defendant is or will be able to pay the fine;

(2) the fine will not prevent the defendant from making restitution or reparation to the victim of the crime.

(d) FINANCIAL RESOURCES.--In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

42 Pa.C.S.A. § 9726(b), (c) (d). “Imposition of a fine is not precluded merely because the defendant cannot pay the fine immediately or because he cannot do so without difficulty.” Commonwealth v. Thomas, 879 A.2d 246, 264 (Pa.Super. 2005), appeal denied, 989 A.2d 917 (Pa. 2010).

We have read the sentencing transcript, which reveals that the trial judge considered both appellant’s character and the particular circumstances of the offenses. However, the record is silent as to the court’s inquiry into appellant’s ability to pay the fines imposed as required by Section 9726(c) and (d). While the trial court had a pre-sentence investigation report which may contain evidence to support the trial court’s imposition of a fine, the report was not made part of the certified record. Nor does the trial court’s opinion provide insight into its investigation of his ability to pay. Because of

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the inadequate record, we vacate the fine imposed against appellant and remand for resentencing.

Affirmed in part; vacated in part. Matter remanded for proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/25/2014

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