J-S56024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JUSTIN TYRONE BAXTER

Appellant No. 1752 MDA 2015

Appeal from the Judgment of Sentence March 24, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0000913-2014

 CP-22-CR-0005089-2014

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J. FILED AUGUST 26, 2016

Appellant, Justin Baxter, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Dauphin County after a jury 

convicted him of aggravated assault,1carrying a firearm without a license,2

persons not to possess a firearm,3and simple assault by physical menace.4

We affirm. 

The trial court summarized the factual history as follows. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 2702(a)(1). 

2 18 Pa.C.S.A. § 6106(a)(1). 

3 18 Pa.C.S.A. § 6105(a)(1). 

4 18 Pa.C.S.A. § 2701(a)(3). 
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Dion Dickens testified that he was inside 1611 Thompson Street 

when he heard loud voices outside arguing. He went outside and 

saw his daughters, Monique and Tiana, as well as Joseph PayneCasiano, Baxter and Michael Gelsinger near a parked car. After 

telling Payne-Casiano and Baxter to stop arguing, Dion saw 

Baxter go behind a vehicle and heard the “cocking” of a gun. 

Dion then saw Baxter return from behind the car with his hand 

on a gun tucked into his pants. After Baxter returned 

brandishing the gun, Gelsinger told him that “we can light this 

street up” while displaying a gun tucked into his pants. The 

initial altercation subsided with Payne-Casiano and Gelsinger 

returning to their car, and Baxter walking away down toward his 

house on the right side of the roadway. Dion witnessed the car 

driven by Payne-Casiano slowly drive toward Baxter, saw 

Gelsinger reach out of the passenger window and fire multiple 

shots toward Baxter, who at the time was adjacent to the vehicle 

on Gelsinger’s side. Dion then saw Baxter fire shots back toward 

Payne-Casiano and Gelsinger. 

Monique Dockens also testified that an initial altercation between 

Payne-Casiano, Gelsinger and Baxter occurred outside of her 

house. She testified that at some point she heard Baxter cock 

something and then saw him display a gun. 

***

Trial Court Memorandum, 7/28/15, at 1-2. 

The trial court sentenced Baxter to an aggregate term of 91⁄2 to 19 

years’ imprisonment. Baxter’s post-trial motion for reconsideration was 

denied. This timely appeal followed. 

On appeal, Baxter raises two issues for our review. In his first issue, 

Baxter contends that his aggravated assault conviction is against the weight 

of the evidence. In his second issue, Baxter challenges discretionary aspects 

of his sentence. Specifically, Baxter argues that the trial court erred in 

imposing consecutive sentences for his aggravated assault and carrying a 

firearm without a license convictions. 
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We will first address Baxter’s weight of the evidence claim. 

An appellate court’s standard of review when presented with a 

weight of the evidence claim is distinct from the standard of 

review applied by the trial court:

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:

The 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. Orie, 88 A.3d 983, 1015-1016 (Pa. Super. 2014) 

(citation omitted). 
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After reviewing the record, we discern no abuse of discretion in the 

court’s assessment of the credibility of the witnesses or weight of the 

evidence at trial. Thus, we conclude that Baxter’s first issue merits no relief.

We now turn to Baxter’s second issue, in which he challenges the 

discretionary aspects of his sentence. We note that an appellant’s right to 

appeal the discretionary aspects of his sentence is not absolute. See 

Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006). 

Rather, an appellant must first file a “petition for allowance of appeal.” 42 

Pa.C.S.A. § 9781(b). An appellate court may grant allowance of the appeal 

“where it appears that there is a substantial question that the sentence 

imposed is not appropriate under ... [the sentencing guidelines].” Id. The 

procedure for filing this petition is set forth in Pa.R.A.P. 2119(f), which 

provides as follows. 

An appellant who challenges the discretionary aspects of a 

sentence in a criminal matter shall set forth in a separate section 

of the brief a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of a 

sentence. The statement shall immediately precede the 

argument on the merits with respect to the discretionary aspects 

of the sentence. 

Here, Baxter failed to include a separate Rule 2119(f) statement in his 

brief. The Commonwealth objected to Baxter’s omission. Because Baxter 

failed to comply with Rule 2119(f) and the Commonwealth objected to the 

omission, this Court may not review the merits of Baxter’s claim. See 
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Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).5

Accordingly, we deny allowance of appeal. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/26/2016

____________________________________________

5 Even if Baxter had included a Rule 2119(f) statement in his brief, we would 

not have reached the merits of his appeal because the issue he raised failed 

to present a substantial question. See Commonwealth v. Austin, 66 A.3d 

798, 808 (Pa. Super. 2013) (“[T]he imposition of consecutive, rather than 

concurrent, sentences may raise a substantial question in only the most 

extreme circumstances....”) (emphasis added). That is simply not the case 

here.