Com. v. Forbes

867 A.2d 1268

COMMONWEALTH of Pennsylvania, Appellee, v. Earl FORBES, Appellant.

Superior Court of Pennsylvania.

Argued October 5, 2004.

Filed January 28, 2005.

Marc J. Frumer, Philadelphia, for appellant.

William G. Young, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: STEVENS, GANTMAN, and KELLY, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Earl Forbes, appeals from his judgment of sentence and asks us to determine whether the verdict was against the weight of the evidence and whether the court erred in charging the jury on the elements of burglary. Appellant also asks us to determine whether the court erred in applying Pennsylvania's "two-strikes" sentencing statute. Specifically, Appellant claims 42 Pa.C.S.A. § 9714(a)(1) offends due process under the United States and Pennsylvania Constitutions. We hold the verdict was not against the weight of the evidence and Appellant's challenge to the court's jury instruction on the elements of burglary is waived. We further hold the court's application of Section 9714(a)(1) did not offend Appellant's due process rights under the United States and Pennsylvania Constitutions. Accordingly, we affirm.

¶ 2 The trial court opinion sets forth the relevant facts of this case as follows.

The complainant, Daniel P. Kelly, testified that in the evening of July 7, 2002, he left his apartment at 5008 Penn Street in Philadelphia and went for a walk. Mr. Kelly met Appellant briefly during the walk. When Kelly returned home and went to the dumpster behind his house, he again saw Appellant sitting on the fire escape steps. The two struck up a conversation, which eventually became sexual in nature. The complainant invited Appellant into his apartment where they engaged in consensual sexual activity.

When this concluded, the complainant gave Appellant approximately ten dollars ($10) in coins and they left the apartment. The complainant went to buy beer, and the two men agreed to meet again in a few minutes at the first floor fire escape landing. The complainant returned to his apartment with the beer and saw Appellant on the back steps. [The complainant] invited [Appellant] up to the apartment and the two began drinking beer. Appellant's mood then began to change. He became "very hostile." Appellant asked for more money. The complainant asked Appellant to leave and Appellant did. Approximately twenty minutes later, the complainant again saw Appellant outside his apartment with a female companion. The complainant went downstairs and Appellant's female companion said "I want to use your f___ing bathroom and I'm going to use it." The complainant replied "You have a good evening and get off the property," and went back upstairs.

A few minutes later, the complainant noticed his doorknob turning and immediately called 911. Almost simultaneously, Appellant entered the apartment through the kitchen door. Appellant began choking [the complainant], beating him, and dragging him around the apartment on his knees while saying "all kinds of obscenities." During the attack, Appellant attempted to crush the complainant's ankle by stepping on it with great force, about ten times. The complainant was in great pain and could see his anklebone "protruding out." During the attack, the complainant thought he "was going to die a violent death." Appellant also bit the complainant on the hand during the attack.

Because of the attack, [the complainant] suffered multiple fractures of the fibula and had fluid on his knee. The ankle remained in a cast for six (6) to eight (8) weeks. At the time of trial, about six (6) months after the attack, the complainant still suffered from residual pain in the ankle and knee.

Philadelphia Police Officer Ernest Walker arrived because of the 911 call. He noticed that the TV was turned over and that the dead bolt lock was no longer attached to the door. He also saw the complainant's ankle swollen. Police officer Walker took flash information, took the complainant to the Detective Division for an initial interview and then took the complainant to the hospital for treatment. When they arrived at the hospital Appellant was outside the hospital. The complainant identified him as the attacker and the officer arrested Appellant.

Medical evidence introduced by way of stipulation indicated the complainant was treated at Frankfor[d] Hospital in the early morning of July 8, 2002, for an abrasion to the left wrist, for an abrasion of the right knee and for a distal fibula fracture of the right ankle and right foot.

(Trial Court Opinion, filed February 20, 2004, at 2-4) (internal citations omitted).

¶ 3 The jury convicted Appellant of burglary,¹ simple assault,² and aggravated assault.³ Following preparation and review of a presentence investigation report, the court sentenced Appellant to a mandatory minimum sentence of 10 to 20 years' imprisonment under the second or subsequent offense provisions of 42 Pa.C.S.A. § 9714(a)(1).

¶ 4 At sentencing, Appellant argued the "two strikes" sentencing provision of Section 9714(a)(1) violated the Ex Post Facto Clause under Article 1, Section 10 of the United States Constitution, and Article 1, Section 17 of the Pennsylvania Constitution. Specifically, Appellant argued Section 9714 was unconstitutional, because his prior convictions for violent crimes, upon which the penalty enhancement would be based, occurred prior to the enactment of Section 9714.⁴ The court disagreed and imposed the mandatory minimum sentence required under Section 9714. Appellant filed a post-sentence motion claiming, inter alia, the verdict was against the weight of the evidence. The motion also claimed that Section 9714 is unconstitutional as follows:

11. The second strike provision is unconstitutional because it automatically enhances punishment for past conduct which had not previously been used to enhance punishment. Further, there is no prohibition as to how remote, or under what circumstances the "first strike" was obtained. Thus, the second strike law acts as an ex post facto law. Consequently, [Appellant] asserts that this sentencing law is unconstitutional under both the United States and Pennsylvania Constitutions.

12. The second strike law, in its application, is also illegal. [Appellant] asserts that it should not be applied retroactively, i.e."strikes" should be tabulated from the time of its passing by the legislature. Thus, the "calling" of "strikes" should not include those before the "game" was even initiated. [Appellant's] first "strike" was in 1991!

(Appellant's Post-Sentence Motion at 3).

¶ 5 The court denied Appellant's motion and this timely appeal followed. Appellant timely complied with the court's directive to file a Rule 1925(b) statement. In his concise statement, Appellant alleged, inter alia, the verdict was against the weight of the evidence and "the Pennsylvania `two strikes' rule is unconstitutional" without further elaboration. (Appellant's Rule 1925(b) Statement at 2).

¶ 6 On appeal, Appellant raises three issues for our review:

WERE THE VERDICTS OF GUILTY ON ALL CHARGES SUPPORTED BY THE WEIGHT OF THE EVIDENCE?

DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY THAT AN ELEMENT OF BURGLARY IS "THIRD, THAT [APPELLANT] ENTERED THE PLACE WITH THE INTENT TO COMMIT THE CRIME OF AGGRAVATED ASSAULT?"

IS THE PENNSYLVANIA "TWO STRIKES" SENTENCING LAW UNCONSTITUTIONAL?

(Appellant's Brief at 5).

¶ 7 Appellant first claims entitlement to a new trial because the victim's testimony at trial was so conflicting and contradictory, the jury's resulting verdict was against the weight of the evidence. Specifically, Appellant asserts: 1) the victim's trial testimony conflicted with his statement to police on the night of the incident; 2) the victim's trial testimony regarding Appellant's entry into the apartment was internally inconsistent; 3) the victim's trial testimony regarding the severity of his injuries was contradictory to the medical evidence; and 4) the victim's trial testimony regarding his and Appellant's use of intoxicants on the night in question conflicted with his trial testimony that he was a recovering substance abuser. Appellant argues the victim "gave conflicting testimony on every material point from the witness stand, as well as to the police. Indeed his testimony can be characterized as both `false in one' and `false in all.'" (Appellant's Brief at 15). Thus, Appellant concludes the court erred in denying his request for a new trial. We disagree.

¶ 8 Our standard of review in cases involving the denial of a new trial based on a weight of the evidence claim is subject to the following principles:

The weight of the evidence is 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. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, 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. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (internal citations omitted); Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000). It is not the function of an appellate court to re-assess the credibility of the witnesses' testimony. Commonwealth v. Aguado, 760 A.2d 1181, 1184 (Pa.Super.2000) (en banc). Instead, we review the trial court's exercise of discretion. Commonwealth v. Riley, 811 A.2d 610, 616 (Pa.Super.2002).

¶ 9 The scope of a trial court's discretion to address a post-verdict weight claim is not whether the court would...