Opinion
J-S43013-18 No. 1619 WDA 2017
10-22-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. BRIAN KEITH ISBELL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence imposed July 5, 2017
In the Court of Common Pleas of Westmoreland County
Criminal Division at No: CP-65-CR-0003323-2015 BEFORE: STABILE, DUBOW, and NICHOLS, JJ. MEMORANDUM BY STABILE, J.:
Appellant, Brian Keith Isbell, appeals from his judgment of sentence of 10-35 years' imprisonment for involuntary deviate sexual intercourse ("IDSI"), endangering the welfare of children and aggravated indecent assault. We affirm.
18 Pa.C.S.A. §§ 3123(a)(7), 4304(a), and 3125(7), respectively.
A jury found Appellant guilty of the above crimes for sexually assaulting his girlfriend's minor child. Following sentencing, Appellant filed timely post-sentence motions challenging the weight of the evidence and the length of his sentence. In an opinion and order dated September 25, 2017, the trial court thoroughly recounted the factual and procedural history of this case and denied Appellant's post-sentence motions. Appellant timely appealed to this Court and filed a timely Pa.R.A.P. 1925(b) statement of issues complained of on appeal. The trial court issued a Pa.R.A.P. 1925(a) statement incorporating by reference its September 25, 2017 opinion.
In this appeal, Appellant raises two issues:
I. Did the trial court abuse its discretion in denying the motion for a new trial on the grounds that the guilty verdicts for IDSI, endangering welfare of children, and aggravated indecent assault were contrary to the weight of the evidence presented in that the Commonwealth's evidence was of such low quality, tenuous, vague and uncertain as to make the verdict of guilty pure conjecture; and, therefore, shocks the conscience of the Court?Appellant's Brief at 8.
II. Did the trial court abuse its discretion in imposing a sentence that was manifestly excessive, unreasonable, and contrary to the dictates of the Sentencing Code when the trial court overlooked and/or failed to carefully consider relevant factors when sentencing [Appellant], including the unique facts and circumstances of the crimes, and his background and rehabilitative needs?
The law pertaining to weight of the evidence claims is well-settled. 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. Commonwealth v. Forbes , 867 A.2d 1268, 1273-74 (Pa. Super. 2005). 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. Commonwealth v. Bruce , 916 A.2d 657, 665 (Pa. Super. 2007). 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.
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." Commonwealth v. Knox , 50 A.3d 732, 738 (Pa. Super. 2012). An appellate court may not reverse a verdict unless it is so contrary to the evidence as to shock one's sense of justice. Forbes , 867 A.2d at 1273-74.
After careful review of the record, we conclude that the trial court accurately and thoroughly addressed the merits of Appellant's weight of the evidence challenge. Trial Court Opinion, 9/25/17, at 1-19. Accordingly, Appellant's argument fails.
Next, Appellant challenges the discretionary aspects of his sentence by arguing that the trial court failed to consider the circumstances of his crimes, his background and his rehabilitative needs. In reviewing challenges to the discretionary aspects of a sentence, we have observed:
Appellant is not entitled as of right to a review of such a challenge. Our jurisdiction over a claim regarding the discretionary aspects of sentence must be established as follows:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P.
Commonwealth v. Levy , 83 A.3d 457, 467 (Pa. Super. 2013) (quoting Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010)).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, 42 Pa.C.S. § 9781(b).
Appellant satisfies the first three elements of this test. He filed a timely notice of appeal and timely post-sentence motions seeking modification of his sentence. His brief discussed the reasons relied for allowance of appeal as to the discretionary aspects of his sentence. We now turn to the fourth element, whether there is a substantial question that the sentence appealed is not appropriate.
"A substantial question exists where an appellant sets forth a plausible argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Johnson , 873 A.2d 704, 708 (Pa. Super. 2005). Appellant argues that the trial court failed to adequately consider the unique facts and circumstances of his crimes and his background and rehabilitative needs. "There is ample precedent to support a determination that [Appellant]'s allegation[s] fail[] to raise a substantial question that his sentence is not appropriate under the Sentencing Code." Commonwealth v. Griffin , 65 A.3d 932, 936 (Pa. Super. 2013) (collecting cases). Additionally, Appellant does not argue that the trial court lacked adequate information to fashion his sentence. Instead, Appellant is displeased with the way the trial court weighed the relevant facts. It is well-settled, however, that mere dissatisfaction with the sentencing court's weighing of sentencing considerations is not sufficient to raise a substantial question for our review. Moury , 992 A.2d at 175.
Even if Appellant raised a substantial question, the trial court properly exercised its discretion in determining his sentence. "When imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa. Super. 2002). "In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation." Id. Where the sentencing court had the benefit of a presentence investigation report ("PSI"), we can assume the sentencing court "was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988). Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code. Moury , 992 A.2d at 171 (combination of PSI and standard range sentence, absent more, cannot be considered excessive or unreasonable).
The trial court's opinion makes clear that it considered a wide range of factors, including but not limited to the presentence investigation, and imposed a sentence within the standard guidelines. Trial Court Opinion, 9/25/17, at 21-22. Thus, Appellant fails to establish that the trial court abused its discretion.
We direct that a copy of the trial court's September 25, 2017 opinion be filed along with this memorandum and attached to any future filings in this case.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/22/2018
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