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

v.

ANTONIO D. ARCHER

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 679 WDA 2020 Appeal from the Judgment of Sentence Entered February 12, 2019 In the Court of Common Pleas of Fayette County Criminal Division at

No(s): CP

- 26

- CR

- 0001740

- 2018

BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J. * MEMORANDUM BY DUBOW, J.: FILED: MARCH 18, 2021 Appellant, Antonio D. Archer, appeals from the February 12, 2019 Judgment of Sentence entered in the Fayette County Court of Common Pleas after a jury convicted Appellant of Terroristi c Threats. 1 Appellant challenges several of the trial court’s evidentiary rulings as well as the discretionary aspects of his sentence. Upon review, we affirm. PROCEDURAL AND FACTUAL HISTORY The relevant factual and procedural history is as follows. On or around September 27, 2017, Fayette County Children and Youth Services (“ CYS”) caseworker Leigh Ann David , accompanied by college student Megan Robinson , went to Appellant’s home to serve a Dependency P etition on

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2706(a)(1).J

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Appellant and his wife (“Wife”)

. In her capacity as a CYS caseworker, Ms. David had previously been to the home and met the family. When Ms. David arrived at the home, two Pit Bull dogs were hanging out an open window and barking. Wife came outside to meet Ms. David, and Ms. David ser ved the Petition on Wife. Appellant came outside, stood o n the porch with one Pit Bull by his side , screamed obscenities, directed Ms. David to leave his property , and threatened to sic his dog on Ms. David. Ms. David immediately left the property and c ontacted police, who subsequently arrested Appellant. The Commonwealth charged Appellant with two counts each of Aggravated Assault by Physical Menace, Recklessly Endangering Another Person (“REAP”), and Terroristic Threats. 2 On February 5, 2019, aft er hearing testimony from Ms. David, Masontown Police Chief Joseph C. Ryan, and Appellant, a jury convicted Appellant of one count of Terroristic Threats

. 3 On February 12, 2019, t he trial court sentenced Appellant to a standard range sentence of six to t wenty

- four months’ incarceration. Appellant filed a timely Post

- Sentence Motion for Modification of Sentence, averring that the trial court imposed a harsh, severe, and excessive sentence at the top of the standard range. The trial court denied the Motio n on February 25, 2019.

_________________ __________ ______ ____ _______ 2 18 Pa.C.S. §§ 2702(a)(6), 2705, and 2706(a)(1), respectively.

3 Upon hearing an oral Motion from Appellant’s counsel, the trial court dismissed one count of Aggravated Assault against Ms. Robinson because she was not a CYS employee, which is an element of the offense. The jury acquitte d Appellant of the remaining charges.J

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Appellant filed a Notice of Appeal on April 18, 2019, which this Court subsequently quashed as untimely on June 5, 2019. On June 19, 2020, this
Court reinstated Appellant’s appeal rights nunc pro tunc after Appellant filed

a Post

- C onviction Relief Act Petition alleging ineffective assistance of counsel and a Motion to File Notice of Appeal Nunc Pro Tunc

. Appellant filed a timely appeal on July 9, 2020 . Both Appellant and the trial court complied with Pa.R.A.P. 1925. ISSUES RAISED ON APPEAL Appellant raises the following issues for our review:
1. Whether the court e rred in failing to grant [ counsel]’s objection on the grounds of relevancy to the Commonwealth’s question to [CYS] caseworker, [Ms. ] David: “How did you feel when you would hear these dogs or see these dogs?” 2. Whether the court erred in allowing [Ms.] David to testify as to why CYS was involved with [Appellant]’s family? 3. Whether the court e rred in failing to grant [ counsel]’s objection on the grounds of relevancy to the Commonwealth’s question to Appellant: “Did you ever have a confrontation with CYS?” 4. Whether the court er red in failing to grant [ counsel]’s objection on the grounds of relevancy to the Commonwealth’s question to Appellant: “What was the purpose of you ha ving two Pit Bulls?” 5. Did the court impose a harsh, severe, and manifestly unreasonable and excessive sentence in light of the circumstances surrounding the alleged incident? Appellant’s Br. at 3. Evidentiary RulingsJ

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In his first four issues, Appellant challenges several of the trial court’s evidentiary rulings, which overruled counsel’s relevancy objections to portions of Ms. David and Appellant’s testimony and allowed the jury to hear the testimony

. The admission of evidence is within the discretion of the trial court. Commonwealth v. Woodard , 129 A.3d 480, 494 (Pa. 2015). “An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that over rides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill

- will.” Id. An abuse of discretion by the trial court, and a showing of resulting prejudice, constitutes reversibl e

error. Commonwealth v. Glass , 50 A.3d 720, 724

- 25 (Pa. Super. 2012). Instantly, Appellant avers that the trial court abused its discretion when it allowed the Commonwealth to present irrelevant testimony to the jury that had no probative value and was extremely prejudicial to Appellant. Appellant’s Br. at 7. Appellant argues that the Commonwealth’s question asking Ms. David how she felt when she saw the dogs intended to illicit sympathy from the jury and had no probative value. Id . at 10. Appellant contends that Ms. David’s testimony about why CYS was involved with Appellant’s family had no probative value and was prejudicial to Appellant, “paint[ing] Appellant as a bad person in the minds of the jury.” Id . Appellant also asserts that the Commonwea lth’s question regarding whether he ever had a confrontation with CYS improperly implied that he had “some grudge” with CYS and lacked probative value. Id . at 11. Finally, Appellant arguesJ

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that the Commonwealth’s question asking Appellant what his purpos e was in having two Pit Bulls lacked probative value and implied to the jury that Appellant had the dogs “for the purpose of terrifying other people with them, while ignoring all of the other reasons why a person might want to keep two [P]it [B]ulls.” Id

. Prelimina rily, we must set forth the elements of the crimes the Commonwealth charged Appellant with in order to evaluate whether the admitted testimony was relevant. As stated above, th e Commonwealth charged Appellant with two counts each of Aggravated Assault by Physical Menace, REAP, and Terroristic Threats. A person is guilty of Aggravated Assault by Physical Menace if he a ttempt s by physical menace to put a CYS employee , while in the performan c e of duty, in fear of imminent serious bodily injury. 18 Pa.C.S. § 2702 (a)(6) , (c)(35) . A person commits the crime of REAP if he “ recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. ” 18 Pa.C. § 2705 . Finally,
a person is guilty of Terroristic T hreats if he communicates, either dire ctly or indirectly, a threat to “ commit any crime of violence w ith intent to terrorize another [

. ]” 18 Pa.C.S. § 2706 (a)(1).
T he overriding principle in determining if the trial court should admit evide nce involves “ a weighing of the probative value versus prejudicial effect. We have held that the trial court must decide first if the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect. ” Commonwealth v. Serge , 896 A.2d 1170, 1177 ( Pa. 2006)

. Generally, allJ

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relevant evidence is admissible . Pa.R.E. 402. “E vidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasona ble inference or presumption regarding the existence of a material fact.” Commonwealth v. Minerd , 753 A.2d 225, 230 (Pa. 2000) (citation omitted) ; Pa.R.E. 401.
However , relevant evidence may be excluded “ if its probative value is outweighed by a danger o f one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. ” Pa.R.E. 403

. The tri al court explained why all of the above

- referenced testimony was relevant and probative : Ms. David’s feelings when she heard and saw the dogs mad e a fact at issue more or less probable : whether [Appellant] used his dogs to indirectly communicate to others a threat to commit a crime of violence. This [c]ourt allowed M s. David to testify as to why CYS was involved with the Defendant’s family, because the testimony was preliminary in nature and provided foundation: it established why she was where she was when she saw what she saw. This [c]ourt overruled [counsel]’s obj ection on the grounds of relevance to the Commonwealth’s question to [A ppellant]: “Did you ever have a confrontation with CYS?” [] because the question addressed [Appellant]’s state of mind at the time and therefore ended to establish a material fact in t he case: whether [Appellant] intended to terrorize others. This [c]ourt overruled [counsel]’s objection on the grounds of relevance to the Commonwealth’s question to [Appellant]: “What was the purpose of you having two [P]it [B]ulls?” [] because the ques tion addressed an issue that was within the scope of the case. The [Appellant]’s purpose of owning two [P]it [B]ulls intended toJ

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establish a material fact: whether [Appellant] owned two [P]it [B]ulls for the intended purpose of terrorizing others.
Trial Ct. Op., filed 10/20/20, at 2

- 3. We agree with the trial court that the testimony challenged by Appellant was relevant and probative. Upon review, we discern no abuse of discretion with the trial court’s conclusion that the testimony was admissible, or more probative than prejudicial. Accordingly, Appellant’s first four challenges fail. Discretionary Aspects of S entencing In his fifth issue, Appellant avers that the trial court imposed a harsh, severe, and manifestly excessive sentence. Appellant’s Br. at 12. Appellant argues that t he trial court should have sentenced him to a mitigated sentence because of the nature of the offense, the circumstances surrounding the offense , and the fact that being terrorized by two dogs is “ very subjective based on the person

. ” Appellant’s Br. at 14. Appellant challenges the discretionary aspects of his sentence. Challenges to the discretionary aspects of sentenci ng are not automatically reviewable as a matter of right. Commonwealth v. Hunter , 768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a discretionary sentencing issue, we must 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 sufficiently addresses the challenge in a statement included pursuant to Pa.R.A.P. 2119(f); and (4) whethe r there is a substantial question that theJ

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sentence appealed from is not appropriate under the Sentencing Code. Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006). Appellant complied wit h the first two requirements, but did not include a separate Rule 2119(f) Statement in his Brief. The Commonwealth has not objected to this defect and, thus, we decline to find that the defect is fatal

. Commonwealth v. Kneller , 999 A.2d 608, 614 (Pa. Super. 2010)

. We, thus, proceed to consider whether Appellant has raised a substantial question for
our review. Whether an appellant has raised a substantial question regarding discretionary sentencing is determined on a case

- by

- case basis. Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). “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.” Id. (citation and quotation marks omitted). Appellant has not identified which provision of the Sentencing Code or fundamental norm underlying the sentencing process his sentence violates or offends. His argument is that the trial court did no t properly weigh allegedly mitigating factors. Claims that the sentencing court did not adequately consider mitigating factors generally do not raise a substantial question. See Commonwealth v. Disalvo , 70 A.3d 900, 903 (Pa. Super. 2013) (“This Court has held on numerous occasions that a claim of inadequate consideration ofJ

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mitigating factors does not raise a substantial question for our revie w.” (citation omitted ) ; Commonwealth v. Zirkle , 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e have held that a claim that a court did not weigh the factors as an appellant wishes does not raise a substantia l question.”) . We conclude, therefore, that Appellant has failed to present a substantial question in challenging the discretionary aspects of his sentence and , thus, we lack jurisdiction to review his claim. In conclusion, the trial court did not abuse its discretion when it deemed portions of testimony relevant and admissible . Moreover, because Appellant has failed to present a substantial question, this Court has n o jurisdiction to review Appellant’s challenge to the discretionary aspects of his sentence. Judgment of Sentence affirmed. Judge Murray joins the memorandum. Judge Strassburger did not participate. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/2021