Opinion
J.A21001/15 No. 2227 EDA 2014
08-13-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM HLUSHMANUK, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 2, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: CP-51-CR-0003766-2012
BEFORE: ALLEN, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, William Hlushmanuk, appeals from the judgment of sentence entered following a bench trial in the Philadelphia County Court of Common Pleas. Appellant was found guilty of simple assault, aggravated assault, and recklessly endangering another person ("REAP") for an incident in which he, inter alia, choked his ex-wife at a gas station. On appeal, he challenges the weight and sufficiency of the evidence, the admission of evidence of a prior incident with his ex-wife, and the imposition of his sentence to run consecutive to an unrelated federal sentence. We affirm.
Appellant is also known as Bill Le. N.T. Sentencing, 5/2/14, at 61.
The trial court opinion referred to the complainant in this matter, Jacqueline Diana, as Appellant's "ex-wife." Trial Ct. Op., 1/29/15, at 3. At the January 2014 trial, Diana referred to Appellant as her "ex-husband," and stated they separated in December 2010, but were not divorced. N.T. Trial, 1/6/14, at 73, 94. They have two children together, one of whom, M., was present during the incident in this matter. Id. at 73.
We note the certified record transmitted on appeal does not include any notes of testimony. Appellant, however, has included copies of the full transcripts of trial, the sentencing hearing, and post-sentence motion hearing in his reproduced record. The Commonwealth does not object to these copies. "While we will consider the cop[ies of the transcripts] in the reproduced record, we caution counsel that it is the appellant's burden to ensure that the certified record is complete. See Pa.R.A.P. 1921 . . . ." Commonwealth v. Landis , 89 A.3d 694, 697 n.5 (Pa. Super. 2014).
The court conducted a bench trial on January 6, 2014. It summarized the underlying facts as follows:
[O]n October 31, 2011, at approximately 9:45 p.m., [Appellant] violently attacked the victim, his ex-wife, [Diana,] at a gas station located at Welsh Road and Roosevelt Boulevard, Philadelphia, Pennsylvania. The attack was witnessed by three independent and unrelated individuals: Philadelphia Police Lt. John Stanford[ ], Rebecca McBride and Natasha Cintron. All three witnesses, as well as the victim, Ms. Diana, testified at trial. The witness testimony was consistent, in that [Appellant] physically attacked the victim and choked her to a point of unconsciousness. He was then observed dragging her around her vehicle and attempting to put her into a vehicle. All of this took place in front of his young daughter. [Appellant] was arrested at the scene by Philadelphia police.Trial Ct. Op. at 3. The trial court opined of the Commonwealth's witnesses as follows:
The testimony presented at trial was consistent inId. at 4. Appellant did not testify or present evidence.
regard to [Appellant's] criminal conduct [and] sufficient to support this Court's findings of guilt. The witnesses' testimony was credible when taken both individually and was also consistent with one another when taken as a whole. Cross-examination revealed no bias, prejudice or mistake on the witnesses' part and inconsistencies, if any, were minor and without negative effect upon the overall determinations made by this Court.
The trial court found Appellant guilty of aggravated assault, simple assault, and REAP. On May 2, 2014, the court imposed an aggregate sentence of four to eight years' imprisonment and five years' probation. The court ordered the sentence to run consecutive to an unrelated, seven year and eight months' "sentence for a federal Medicare fraud offense." See N.T. Sentencing at 12, 19, 72-73. Appellant filed a timely post-sentence motion which raised claims relating to, inter alia, the four issues raised in the instant appeal. On July 9, 2014, the court granted partial relief by holding simple assault merged with aggravated assault and vacating the concurrent two-year probation term. However, the court denied relief on Appellant's remaining claims. Appellant filed a timely notice of appeal and complied with the court's order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Specifically, the court imposed the following sentences: (1) for aggravated assault, a felony of the first degree, the court imposed four to eight years' imprisonment and five years' probation; (2) for simple assault, a misdemeanor of the second degree, a concurrent two years' probation; and (3) for REAP, also a misdemeanor of the second degree, no further penalty as it merged with simple assault. Sentencing Order, 5/2/14.
Husband had an "ambulance business" and Diana "worked for him." N.T. Trial at 94. Husband allegedly stole "a couple of million dollars from the federal government." Id. According to Appellant's counsel's statements at the sentencing hearing, his federal sentence commenced on May 16, 2013, and included a consecutive "three years federal release." N.T. Sentencing at 19. At the time of trial, Diana was "under indictment" and on "home arrest" for her role in that matter. N.T. Trial at 94, 95.
We address Appellant's first two issues together. First, he purports to challenge the sufficiency of evidence for aggravated assault. Appellant maintains Diana did not sustain serious bodily and the Commonwealth failed to establish he acted intentionally, knowingly, or with a high degree of recklessness. In support, Appellant cites the following perceived inconsistent testimony by the Commonwealth's witnesses: (1) Lieutenant Stanford testified Appellant stood over Diana, who was lying on the ground on the driver's side of the vehicle, and then "Appellant picked up his wife by the neck[,] dragged her around . . . to the passenger side," and put two hands around her neck in a chokehold; (2) witness Rebecca McBride testified Diana was seated on the passenger side of the vehicle when "Appellant was pulled off of her," and Appellant was "'pinning down' his wife with one hand by her neck on the seat and the other hand holding her mouth;" (3) witness Natasha Cintron testified "the female was leaning into the passenger side of the vehicle at which time Appellant had only one hand around her neck;" (4) Diana "only recalled that Appellant was behind her when he put her into a choke hold, and that she passed out without recalling anything more." Appellant's Brief at 26. Furthermore, Appellant states that while Lieutenant Stanford testified the daughter M. was outside of the vehicle, "the female witnesses" indicated she was in the rear seat. Id. Appellant also notes Diana's testimony that "immediately before placing her into a chokehold," Appellant said "I'm never letting you go home. Do you hear me right now? You're not going home." Id. at 27. However, he maintains, "none of the eyewitnesses heard [him] make any statements before, during or after the incident." Id. at 28. Appellant, however, does note Diana's testimony that earlier that evening, he "yelled to her 'I'm going to F'ing kill you.'" Id.
The relevant heading in Appellant's brief articulated a sufficiency challenge to simple assault and REAP as well. However, his discussion addresses only the elements of aggravated assault.
In his second claim on appeal, Appellant argues the verdicts for aggravated assault and REAP were against the weight of the evidence. In support, he reiterates: (1) although Diana testified he made threatening statements, none of the other witnesses heard them; and (2) "[t]he eyewitnesses have conflicting observations as to what Appellant did to his wife." Id. at 28. Appellant requests this Court to "carefully scrutinize[ ]" Diana's credibility," as she pleaded guilty to federal charges "of Health Care Fraud, Conspiracy to Commit Health Care Fraud, and Aiding and Abetting" Appellant, all of which "are crimes of dishonesty." Id. Appellant further asserts Diana has "refused to allow [him] to see his children at times" and that there have been no "reports of any violence and/or threats" since the underlying incident. Id. We find no relief is due.
Preliminarily, we hold Appellant's first issue, which argues inconsistencies in the witnesses' testimony, goes to the weight, not sufficiency, of the evidence. See Commonwealth v. Trinidad , 96 A.3d 1031, 1038 (Pa. Super. 2014) (stating (1) variances in testimony go to credibility of witnesses and not sufficiency of evidence and (2) mere conflict in testimony does not render evidence insufficient because it is within province of fact finder to determine weight to be given to testimony and to believe all, part, or none of evidence), appeal denied, 99 A.3d 925 (Pa. 2014). We thus consider Appellant's first and second issues under weight of the evidence guidelines.
"[A]ppellate 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." Commonwealth v. Gonzalez , 109 A.3d 711, 723 (Pa. Super. 2015) (citation omitted).
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.Id. (citations omitted).
As stated above, the trial court specifically found the Commonwealth's "witness[es'] testimony was consistent," "credible when taken both individually and . . . also consistent with one another when taken as a whole." Trial Ct. Op. at 3-4. The trial court reproduced in detail the testimony of Diana, Lieutenant Stanford, and eyewitnesses McBride and Cintron. Id. at 4-23. We decline Appellant's request to reweigh Diana's credibility, as our role is to "review of the trial court's exercise of discretion, not . . . the underlying question of whether the verdict is against the weight of the evidence." See Gonzalez , 109 A.3d at 723. Instead, the trial court, sitting as finder of fact, was "free to believe all, part, or none of the evidence and to determine the credibility of the witnesses." See id. After careful review of the parties' briefs, the trial court's opinion, and the record, including the trial transcript, we adopt the pertinent law and analysis set forth in the trial court's opinion. See Trial Ct. Op. at 24-26 (rejecting Appellant's claim that his actions did not put Diana in danger of serious bodily injury and finding: (1) need for medical attention is not element of crimes charged, (2) Appellant "is trained in karate and holds a black belt, [which] compounded is ability to inflict harm," (3) "trial evidence showed [Appellant] specifically and successfully targeted Ms. Diana with his violent actions," (4) Diana and three witnesses testified Appellant choked her, Diana lost consciousness, and her body went limp, and (5) Appellant's assault "was directed at her head and neck region and caused [Diana] to lose consciousness"). We agree that the court's verdict does not shock the conscience. See Gonzalez , 109 A.3d at 723. Accordingly, we find no relief is due on Appellant's first two issues.
Appellant's third claim on appeal is that the trial court erred in allowing evidence of a prior incident involving Diana. He asserts the prior act was "too remote in time, and not part of the incident that occurred [in this case] to be considered part of the same crime." Appellant's Brief at 35. We find no relief is due.
The Commonwealth filed a pre-trial motion to admit this evidence of a prior bad act. The parties argued the motion immediately prior to trial, and the court granted it.
At this juncture, we summarize the challenged evidence, which the Commonwealth presented through direct examination of Diana. See N.T. Trial at 74-85. Diana testified to the following. On December 20, 2011, approximately ten months prior to the instant incident, she and the children stayed at her parents' house in Northeast Philadelphia. Around 1:00 a.m., Appellant called and said, "No, you're coming home," and "Even if I have to come in there and drag you out," and "curs[ed Diana] out." Id. at 75. "[A] few minutes later," while Diana was still on the phone with him, Appellant was at the door, and "it sounded like he was kicking the door in." Id. at 76. Diana went to the basement, someone called the police, and Diana heard her father open the door and tell Appellant to leave. Diana's father called Appellant's father, who arrived, and eventually Diana went outside. Appellant "grabbed [Diana's] neck in midair and body slammed [her] on the ground." Id. at 79-80. Appellant "was on top of" Diana, her "chest really hurt," and she could not breathe. Id. at 80-81. Both Diana's father and Appellant's father attempted "to help by getting [Appellant] off" of her. Id. at 81. Finally, Diana and her father returned inside, the police arrived, Diana gave a statement to them, but Appellant was not charged. Id. at 82. Diana went to the hospital at 2:00 a.m. the following night, believing she had a broken rib, but learned she "was just bruised." Id. at 97-98.
Diana testified only, "We already called the police." N.T. Trial at 77.
In his brief, Appellant states he was "charged, but the charges were withdrawn after his wife failed to appear for court." Appellant's Brief at 32-33.
This Court has stated: "Questions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court's rulings regarding the admissibility of evidence absent an abuse of that discretion." Trinidad , 96 A.3d at 1036 (citation omitted).
"[E]vidence of crimes other than the one in question is not admissible solely to show the defendant's bad character or propensity to commit crime." [ S ] ee Pa.R.E. 404(b)(1). Nevertheless, "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Pa.R.E. 404(b)(2)[.] "In order for evidence of prior bad acts to be admissible as evidence of motive, the prior bad acts 'must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by theCommonwealth v. Ferguson , 107 A.3d 206, 211 (Pa. Super. 2015) (some citations omitted).
prior set of facts and circumstances.'" "Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts."
In the case sub judice, the trial court allowed Diana's testimony about the prior incident under Rule of Evidence 404(b)(2), finding:
[E]vidence that [Appellant] had previously assaulted and committed physical violence upon his estranged wife by choking her previously to the night in question was relevant and probative of [Appellant's] motive and intent for committing the assaults upon his ex-wife.Trial Ct. Op. at 34 (citation omitted). We agree with the court's analysis and find no abuse of discretion. See Pa.R.E. 404(b)(2); Ferguson , 107 A.3d at 211; Trinidad , 96 A.3d at 1036.
The factual basis of the present charges against [Appellant] indicated that he became violently aggressive towards her, choking until the point of lost consciousness. Evidence that [Appellant] had previously engaged in the same behavior with Ms. Diana was relevant and admissible as it was closely linked in similarity and nature to the charged offenses. This degree of similarity is an important factor in determining the admissibility of other crimes or bad acts as relevant to show a common scheme or plan.
Appellant's final issue on appeal is a challenge to the discretionary aspects of his sentence. As stated above, the court imposed an aggregate term of four to eight years' imprisonment, to run consecutive to his federal sentence of seven years and eight months. Appellant alleges "the imposition of this sentence, albeit within the Standard Guideline range, but ordered to run consecutively to his federal sentence, was unreasonable[,] inconsistent with his rehabilitative needs," and "not consistent with the protection for the public and the victim." Appellant's Brief at 37, 38. He explains the underlying incident occurred when he and his wife were separated, they were "under review by the federal law enforcement authorities regarding their ambulance business," "and the parties were under a tremendous amount of stress." Id. at 37-38. Although he acknowledges the prior, December 2010 incident, he avers "[t]here was no prior history of violence between" them. Id. at 38. Appellant further avers his sentence "goes above and beyond what should be considered appropriate to rehabilitate him," where "[h]is prior record does not show any violence towards a person. Id. Instead, Appellant maintains, he "has demonstrated several years in the community as being a productive member of society by obtaining education, and being employed." Id. He adds the fact he now has a girlfriend "demonstrates that he no longer poses a threat to his wife as he has accepted the ending of their marital relationship." Id. at 39. Appellant concludes his sentence should have been imposed to run concurrently with this federal sentence. We find no relief is due.
Appellant, however, acknowledges: (1) when he was eighteen years old, "he entered an auto auction" and was "charged with Burglary, for which he was placed on juvenile probation;" (2) at age twenty-one, he pleaded guilty to Possession of a Firearm; and (3) at age twenty-nine, he pleaded guilty to illegal transfer of a firearm. Appellant's Brief at 38.
We note:
Before this Court can address such a discretionary challenge, an appellant must comply with the following requirements:
An appellant challenging the 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. 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. [720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
* * *
"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Further:
Commonwealth v. Caldwell , ___ A.3d ___, ___ 2015 WL 3444594 at *2 (Pa. Super. May 29, 2015) (en banc) (some citations omitted), alloc. filed, 408 EAL 2015 (Pa. Jun. 29, 2015).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.
In Caldwell , an en banc panel of this Court stated:
A court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Rather, the imposition of consecutive rather than concurrent sentences will present 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."
To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.
Caldwell , 2015 WL 3444594 at *3 (some citations omitted). This Court has also held that a "claim that the trial court erred in ordering [a sentence] to run consecutively, instead of concurrently, to a previously imposed sentence does not raise a substantial question." Commonwealth v. Pass , 914 A.2d 442, 446 (Pa. Super. 2006).
Commonwealth v. Dodge , 77 A.3d 1263, 1270 (Pa. Super. 2013), . . . appeal denied, 91 A.3d 161 (Pa. 2014) (emphasis in original).
With respect to a claim that the trial court failed to consider a defendant's rehabilitative needs, the Caldwell Court noted:
"[O]rdinarily, a claim that the sentencing court failed to consider or accord proper weight to a specific sentencing factor does not raise a substantial question." Specifically,
[t]here is ample precedent to support a determination that [a claim that the trial court failed to consider an appellant's rehabilitative needs] fails to raise a substantial question . . . .
Similarly, "this Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review."
However, "prior decisions from this Court involving whether a substantial question has been raised by claims that the sentencing court 'failed to consider' or 'failed to
adequately consider' sentencing factors has been less than a model of clarity and consistency." In . . . Dodge , this Court determined an appellant's claim that the sentencing court "disregarded rehabilitation and the nature and circumstances of the offense in handing down its sentence" presented a substantial question. Dodge , [77 A.3d] at 1273.
This Court has also held that "an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question." Additionally:
Caldwell , 2015 WL 3444594 at *3-*4.In determining whether a substantial question exists, this Court does not examine the merits of whether the sentence is actually excessive. Rather, we look to whether the appellant has forwarded a plausible argument that the sentence, when it is within the guideline ranges, is clearly unreasonable. Concomitantly, the substantial question determination does not require the court to decide the merits of whether the sentence is clearly unreasonable.
In the case sub judice, Appellant has filed a timely notice of appeal, preserved his sentencing claims in a post-sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief. See id. at *2. With respect to the consecutive nature of his sentence, we find Appellant has not raised a substantial question. His minimum sentence of four years is at the low end of the standard sentencing guideline, see Appellant's Brief at 37 (stating standard sentencing guideline was forty-eight to sixty-six months), and we decline to find this sentence, when coupled with his seven year and eight month-federal sentence, falls within "the most extreme circumstances" and is so "clearly unreasonable" and excessive as to support a substantial question. Cf. Caldwell , 2015 WL 3444594 at *2-*3 (holding challenge to imposition of consecutive sentences, together with claim that court failed to consider rehabilitative needs, presented substantial question where aggregate sentence for aggravated assault, robbery, and related offenses was thirty-one to sixty-two years); Dodge , 77 A.3d at 1273 (holding defendant set forth substantial question with respect to consecutive nature of his sentence, which aggregated forty years and seven months to eighty-one years and two months, but upholding sentence on merits). See also Pass , 914 A.2d at 446.
However, in light of the discussion in Caldwell , we hold Appellant has raised a substantial question that the trial court failed to consider his rehabilitative needs and the protection of the public. See Caldwell , 2015 WL 3444594 at *3-*4. We thus consider the merits of his claim.
We note the relevant standard of review:
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.Id. at *4 (citation omitted).
The trial court opined:
[T]he Presentence report revealed [Appellant] has had numerous contacts with the Court, making him RRRI ineligible. . . .Trial Ct. Op. at 35-37.
The Sentencing Guidelines recommended a sentence of 48 to 66 months (+/- 12 months). The Commonwealth recommended incarceration of 4 to 8 years incarceration, plus ten (10) years of reporting probation, in addition to other conditions. [Appellant's] counsel suggested a mitigated sentence of 3 to 6 years.
This Court imposed a sentence of 4 to 8 years incarceration, plus 5 years probation on the aggravated assault charge[,] to run consecutive to his federal prison term. The sentence imposed is well below the maximum sentence for a felony of the first degree of not more than twenty (20) years confinement.
To further support the imposition of a consecutive sentence, at his sentencing hearing, [Appellant] exercised his right of allocution. At no point during this address to the Court did he show any remorse, sorrow or any semblance of humanity. There was no apology to the victim, the mother of his children [or] members of his family. Instead, [Appellant] deflected blame to the victim and her family. He failed to accept any responsibility whatsoever for any of his actions.
In fact, the Presentence Report notes "During the interview, [Appellant] expressed anger and hatred towards [Diana] in the current offense, which suggested that he remains a threat to her safety." This same attitude and belief was compounded by [Appellant's] own words in a presentence letter to this Court. This Court clearly considered the safety concerns of both Ms. Diana and her children in considering both the term and nature of [Appellant's] sentence.
In imposing this sentence, this Court took into consideration (1) the nature and circumstances of the offense and the history and characteristics of [Appellant], including the Pre-Sentence Report; (2) the opportunity of the Court to observe [Appellant]; (3) the findings upon
which this sentence was based; and (4) the appropriate guidelines[.]
Appellant's claim that the trial court failed to consider his rehabilitative needs and the protection of the public is belied by the above, lengthy analysis. The court specifically considered his lack of "any remorse[ or] sorrow" for the attack on Diana, "fail[ure] to accept any responsibility whatsoever for any of his actions," and his "deflect[ion] of blame to the victim and her family." See id. at 36. Accordingly, we find no abuse of discretion in the court's sentence. See Caldwell , 2015 WL 3444594 at *2.
Finding no merit to Appellant's claims, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2015
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