Com. v. Senestant, J. ( 2017 )

J-S44021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOEL SENESTANT,
Appellant No. 1311 EDA 2015
Appeal from the Judgment of Sentence March 27, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015924-2013, CP-51-CR-0015925-
2013
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 01, 2017
Appellant, Joel Senestant, appeals from the judgment of sentence
entered following his convictions of one count each of aggravated assault,
firearms not to be carried without a license, possession of an instrument of
crime, intimidation of a witness, retaliation against a witness, and
possession of a firearm by prohibited person.1 We affirm.
The trial court set forth the underlying facts of this case as follows:
Facts supporting the verdicts of guilty stemmed from
events beginning October 24, 2013 when a shooting occurred on
the 800 Block of North 66th Street in Philadelphia. Specifically,
Philadelphia Police Officer John Rubino responded to a radio call
for a person with a gun and a person shot on the highway. (N.T.
____________________________________________
1
18 Pa.C.S. §§ 2702(a)(1), 6106(a)(1), 907, 4952(a)(1), 4953, and
6105(a)(1), respectively.
J-S44021-17
01/23/2015, pp. 151-152). Upon arriving at 878 North 66th
Street, Officer Rubino came into contact with the victim Vernon
Oliver sitting inside his residence at 878 North 66th Street,
profusely bleeding from his lower left leg. (N.T. 01/23/2015,
pgs. 151-152). During the investigation Officer Rubino learned
that Mr. Oliver was approached by a black male, around five-
foot-eight, glasses, wearing a gray hoodie. This male pulled out
a handgun and started shooting multiple times at Mr. Oliver as
he fled in fear into his residence. Mr. Oliver was transported to
Hospital of the University of Pennsylvania by medics and treated
for his leg injuries and loss of blood. Id.
Detective Deayoung Park credibly testified that he arrived
on scene after uniformed Philadelphia police officers secured the
scene where he recovered three fire cartridge casing (FCC) for a
.22 caliber firearm. After leaving the crime scene, Detective
Park had a brief opportunity to speak with Mr. Oliver at the
hospital. Mr. Oliver stated to Detectives that he had recognized
the male who shot him. Detective Park further testified that
Mr. Oliver was obviously in so much pain, he told Mr. Oliver
follow-up would continue at the police station the next day.
(N.T. 01/23/2015, pgs. 164-168).
Mr. Oliver again indicated that he recognized the male who
shot him as someone from the neighborhood, named “Joel.” He
further explained that “Joel” was the same man whom he had
had an argument with on October 23, 2013, the night before the
shooting. (N.T. 01/23/2015, pg. 168). During trial, Philadelphia
Police Officer James Little testified that he responded to the area
of 878 North 66th Street in Philadelphia on October 23, 2013.
Earlier that evening there had been a radio call for a person with
a gun. (N.T. 01/23/2015, pg. 159). Upon arriving on location,
Officer Little had not found a victim. Id. On that same night in
question, October 23, 2013, Officer Rubino also responded to a
radio call in the same area of the 800 block of North 66 th Street.
(N.T. 01/23/2015, pg. 148). Specifically, Officer Rubino
responded to the same general area of 66th and Leeds Street for
a robbery in progress. The complainant on that night was a
white male, who told officers he had been robbed by
approximately 10 black males for his Xanax pills[.] (N.T.
01/23/2015, pg. 148). Mr. Oliver further verified the occurrence
of a robbery on October 23, 2013 when he testified at trial on
January 23, 2015.
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While Mr. Oliver was an extremely reluctant witness, the
trial court determined that his prior recorded statements to
police officers about the robbery were credible and corroborated.
Specifically, the Commonwealth confirmed through Mr. Oliver’s
previous statements to police that he had earlier witnessed a
group of black males surrounding and talking to the “white
dude.” (N.T. 01/23/2015, pg. 72). Mr. Oliver further recalled
seeing the police canvasing the area. About fifteen minutes
after the police left the area, Mr. Oliver took his dog for a walk
and asked some young guys in the area about what happened.
Id. He further testified that while walking his dog he noticed
some blue-shaped pills on the ground. After he bent down to
pick the pills up, a black male wearing glasses and a hoodie
walked up stating “give me money for my pills.” (N.T.
01/23/2015, pgs. 73-74). Mr. Oliver testified that during the
verbal exchange with this black male, he recognized him to be
Joel from the neighborhood. Id. After arguing over whose pills
were on the ground, Mr. Oliver smacked [Appellant’s] hands off
of him because [Appellant] attempted to grab Mr. Oliver while
screaming for his money. Additionally, Mr. Oliver’s statements
to police corroborated that the man whom he had an altercation
over Xanax pills with on October 23, 2013, was the same
person, [Appellant], who shot him in the lower left leg on
October 24, 2013. Id. The entire testimony established
[Appellant] to be the individual involved on both nights in
question.
Detective Park also testified that after Mr. Oliver left
Southwest Detectives on October 25, 2013, Mr. Oliver contacted
detectives regarding a number of threatening phone calls he
received on his cell phone. Detective Park convinced Mr. Oliver
to report the threats to him to Detectives from the Southwest
Division on October 30, 2013. In this second interview, Mr.
Oliver reported that he received two blocked phone calls after
leaving a CVS pharmacy to fill his prescription on October 25,
2013. Mr. Oliver stated to Detective Park that he recognized the
voice to be that of [Appellant]. Mr. Oliver stated that [Appellant]
threatened him during the two phone calls. In the first
telephone call, he remembered [Appellant] saying: “You know
why I shot you.” Within the second phone call [Appellant]
stated: “You lucky I didn’t get you coming from the CVS.” (N.T.
01/23/2015, pp. 173-176).
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Southwest Detectives searched the incoming phone
records of [Mr.] Oliver’s phone and discovered two incoming
calls to [Mr.] Oliver’s telephone recorded from the number
(484)-751-[****] one minute apart from each other. Pursuant
to a duly authorized search warrant for [Appellant’s] residence,
detectives recovered a blue pre-paid Cricket cellular telephone
and a black iPhone. Since it was a pre[-]paid cell phone,
subscriber information could not be found in the database
detectives use when searching for information pertaining to a
specific phone. Detective Park, however, testified that a name
must be associated with a pre[-]paid cell phone, and in this
instance, the name “Bad man” was listed for the Cricket cell
phone. Upon further investigation it was determined that the
number associated with the Cricket cell phone recovered from
[Appellant’s] house matched the repeated incoming calls to
[Mr.] Oliver. (N.T. 01/23/2015, pp. 179-185).
Trial Court Opinion, 4/8/16, at 5-8.
In addition, the trial court summarized the procedural history of this
case as follows:
The underlying case stems from the November 23, 2015
arrest of [Appellant] for shooting Vernon Oliver in front of the
victim’s residence in the 800 Block of North 66th Street in
Philadelphia on October 24, 2015, and for subsequently
repeatedly threatening the same shooting victim. Following
arraignment, preliminary hearing and filing of charging Bills Of
Information the charges docketed under CP-51-CR-0015924-
2013 included Criminal Attempt-Murder §901 §§A, Felony First
Degree, Aggravated Assault, §2702 §§A1 Felony First Degree,
Possessing Instrument of Crime §907 §§A, Misdemeanor First
Degree, and enumerated Violations of the Uniform Firearms Act
including offenses under §6105 §§A1- Carrying A Firearm as a
Prohibited Person, Felony Second Degree; F-2, §6106 §§A1-
Firearms Not To Be Carried Without License, Felony Third
Degree; §6108 Carrying Firearm Public Street In Philadelphia,
Misdemeanor First Degree. The charges of Intimidation of a
Witness, §4952 §§A1, Felony First Degree, and Retaliation
Against a Witness, §4953§§A, Felony Third Degree were
docketed under CP-51-CR-0015925-2013. All charges were
consolidated for a jury trial.
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On January 20, 2015, jury selection began before the
Honorable Anne Marie B. Coyle[,] Judge of the Court of Common
Pleas for the First Judicial District. After several jurors were
selected, Pierre LaToure, Esquire, as trial counsel for [Appellant],
raised an untimely objection to the method which the trial court
had prioritized available randomly selected jurors based upon
the prospective juror written responses on their completed
written questionnaire forms. Although the trial court did not
agree to the belated objection, the trial court gave [Appellant]
more benefit than due and granted [Appellant’s] requested
remedy. This Court dismissed all previously selected jury panel
members, and began the selection process anew before any
panel was sworn. Inexplicably, after this Court granted
[Appellant’s] motion, [Appellant], by and through his counsel,
orally moved for this [c]ourt’s recusal on January 22, 2015
alleging judicial bias without supporting basis. Hearing zero
legitimate reason for this request, this [c]ourt properly denied
the Motion for Recusal. An entirely new jury panel was
empaneled without any further claim of judicial bias.
On January 28, 2015, the jury entered verdicts of guilty to
the charges of Aggravated Assault, § 2702 §§ A1 (F1), Firearms
Not To Be Carried Without A License, 18 § 6106 §§ A1 (F3),
Possession of an Instrument of Crime, 18 § 907 §§ A1 (M1),
Intimidation of a Witness, § 4952 §§ A1 (F3), and Retaliation
Against a Witness, §4953 §§ A (F3). The jury returned [a]
verdict of not guilty to Criminal Attempt-Murder § 901 §§ A (F1).
Pursuant to agreement of the parties, the bifurcated offense of
Possession of Firearm By Prohibited Person under 18 §6105 A1
(F2) was incorporated into the record and the trial court
recorded the corresponding verdict of guilty to this charge
consistently with the jury verdicts. Subsequent to the entry of
the verdicts, on January 28, 2015, this [c]ourt directed that
comprehensive sentencing evaluations and mental health
assessments to be completed of [Appellant] via authorized
investigators and evaluators of the Court of Common Pleas Trial
Division Adult Probation and Parole Department and scheduled
the sentencing hearing for March 27, 2015.
On March 27, 2015 this Court incorporated into the record
all relevant data concerning [Appellant] from the completed
Presentence Investigation Reports and Mental Health
Assessments. A full and fair sentencing hearing was conducted
with all parties given the opportunity to be heard. After carefully
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assessing all material sentencing factors including the required
imposition of the applicable mandatory sentencing requirements
for this individual, and the calculated sentencing guideline
recommendations, this Court imposed the following sentences
under CP-51-CR-0015924-2013 relative to the shooting of [Mr.]
Oliver:
Count 2: 18 Pa.C.S.A. § 2702 §§A1-
Aggravated Assault (F1): State term of confinement
for a minimum of 10 years to maximum 20 years;
and
Count 3: 18 Pa.C.S.A. § 6105 §§A1-Possession
Of Firearm Prohibited (F2): State term of
confinement for a minimum of 4 years to maximum
of 10 years state term [of] confinement to run
consecutively to confinement imposed for Count 2;
and
Count 4: 18 Pa.C.S.A. § 6106 §§A1-Firearms
Not To Be Carried Without A License (F3): State term
of confinement for a minimum period of 3 years and
a maximum a period of 7 years to run consecutively
to confinement imposed for Count 3; and
Count 6: 18 Pa.C.S.A. § 907 §§A-Possession
Instrument of Crime- No further penalty-Merged with
Count 4.
This Court imposed the following sentences under CP-51-
CR-0015925-2013 for separate charges stemming from the
subsequent threats and intimidation of the shooting victim:
Count 1: 18 Pa.C.S.A. § 4952 §§A1-
Intimidation Witness/Victim-Refrain From Reporting
(F1): State term of confinement for a minimum
period of 5 years and a maximum a period of 10
years to run consecutively to confinement imposed
under CP-51-CR-0015924-2013 Count 4; and
Count 2: 18 Pa.C.S.A. § 4953 §§A-Retaliation
Witness/Victim (F3): State term of confinement for a
minimum period of 3 years six months and a
maximum a period of 7 years to run consecutively to
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confinement imposed under CP-51-CR-0015925-
2013 Count 1.
The aggregate sentences for the charges related to the
shooting event was a period of state confinement from a
minimum of 17 years to a maximum of 37 years. The aggregate
sentence for the crimes related to the subsequent threatening
intimidation of [Mr.] Oliver was a period of state confinement
from a minimum of 8½ years to a maximum of 17 years. Thus,
the total sentence for all offenses was a period of state
confinement from a minimum of 25½ years to a maximum of 59
years. The remaining charges were Nolle Prossed. The
conditions of the sentences imposed included stay away from the
victim and payment of fines and costs.
Trial Court Opinion, 4/8/16, at 1-4.
Appellant did not file post-sentence motions. On April 20, 2015,
Appellant filed this timely appeal. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Did the trial judge show such bias against [Appellant]
during jury selection that she should have recused herself?
2. Was the evidence presented at trial sufficient to show
that [Appellant] intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life caused or attempted to cause serious bodily injury to
the complainant?
3. Did the trial court abuse its discretion by:
a. sentencing defendant in the aggravated
range for Retaliation Against a Witness without
identifying any aggravating factors?
b. sentencing defendant to an aggregate
sentence of 306 to 648 months without considering
the particular circumstances of the offense and the
character of [Appellant] or referring to [Appellant’s]
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prior criminal record, age, personal characteristics,
and potential for rehabilitation?
c. failing to consider any mitigating factors?
Appellant’s Brief at 5-6.
Appellant first argues that the trial court erred in refusing to recuse
itself. Appellant’s Brief at 15-23. Appellant asserts that the trial court’s
conduct during the jury selection process evidenced an intent to increase the
chances of Appellant’s conviction.
The standard of review for the recusal of judges is as follows:
Our standard of review of a trial court’s determination not
to recuse from hearing a case is exceptionally deferential. We
recognize that our trial judges are “honorable, fair, and
competent,” and although we employ an abuse of discretion
standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially.
The party who asserts that a trial judge should
recuse bears the burden of setting forth specific
evidence of bias, prejudice, or unfairness.
“Furthermore, a decision by the trial court against
whom the plea of prejudice is made will not be
disturbed absent an abuse of discretion.”
Commonwealth v. Postie, 110 A.3d 1034, 1037 (Pa. Super. 2015)
(quoting Commonwealth v. Harris, 979 A.2d 387, 391-392 (Pa. Super.
2009)) (citations omitted).
The trial court thoroughly addressed this issue of the request for
recusal as follows:
In the instant case, Pierre LaToure, Esquire, as
[Appellant’s] trial attorney, motioned for this court’s recusal
after this [c]ourt reluctantly granted [Appellant’s] requested
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remedy to dismiss the previously agreed upon and selected
jurors. The originally stated reason for the request to dismiss
jury panelists was rooted in an untimely objection to the
[c]ourt’s acknowledged and accepted practice of prioritizing
prospective jurors. As both attorneys were aware, this [c]ourt
divided the packet of 40 random prospective panelists sent from
the jury room pool into priority “A” and “B” list based upon
previously recorded written responses on the jury questionnaire
form that indicated the level of a panelist’s willingness and ability
to fairly serve as a juror. Copies of the questionnaire sheets,
which reflected the divided groups, are given to both parties
through their counsel to review before and during jury selection
process. No objection was raised by either party or their
respective counsel as to the trial court’s method until most of the
prospective panel members had been selected as agreed upon
jurors and the “B” list members were no longer available.
Belatedly, [Appellant], by and through his counsel, raised
an objection and argued that it was unfair that the trial court
included two prospective pool members into the “B” list because
they answered they were less likely to believe the testimony of a
police officer or law enforcement official solely based on that
person’s job in law enforcement. Counsel for [Appellant] argued
that since the [c]ourt included in the “A” list persons, who had
answered in the affirmative to the written question: “Are you are
more likely to believe the testimony of a police officer or law
enforcement just because of that person’s job,” persons who had
responded that they were less likely to believe police officers or
persons in law enforcement just because of their position should
have also been included in the “A” list.
This [c]ourt believed that [Appellant’s] objection to the
method of jury selection was waived because it was untimely
raised. This [c]ourt disagreed with [Appellant’s] assumption of
the equality of the prospective juror’s reasoning for such
differences in responses did not necessarily follow with respect
to potential rehabilitation. This [c]ourt concluded from past
experience that it was far often easier to rehabilitate a
prospective juror who indicated affirmative respect or preference
for law enforcement than a juror who began the questionnaire
process with a bias against law enforcement. The prospective
rehabilitative measure[s] are not equal because the human
motivations for the opposing answers differ.
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As to the waiver issue, Defense counsel raised the
objection after a full day of jury selection completed with the “A”
and “B” method as described. He claimed that he had
misunderstood this [c]ourt’s process. Ironically, only two
additional prospective jurors would have been added to
[Appellant’s] preference of “A” grouping. As all parties were
aware those jurors were no longer available. In an abundance of
caution, and to avoid any semblance of an appellate issue
including ineffectiveness of counsel, this [c]ourt reluctantly
granted [Appellant’s] Motion to strike the entire picked panel and
begin the jury selection process anew.
[Appellant], by and through his attorney, immediately
followed this [c]ourt’s granting of [Appellant’s] requested
remedy with a Motion For Recusal of this [c]ourt citing a bald
allegation of judicial bias. This Motion For Recusal was properly
denied on January 22, 2015 as a blatant attempt [at] forum
shopping. The record reflects no legitimate basis for counsel's
argument about judicial bias. This [c]ourt properly conducted
the voir dire process with a brand new panel of forty prospective
jurors with . . . no priority given beyond the number assigned in
random order from the jury room. This [c]ourt no longer divided
any jury group into “A” or “B” list order for inquiry.
This [c]ourt fairly conducted an individual colloquy of each
potential juror with zero complaint of judicial bias. In short, this
[c]ourt granted a motion by counsel for a new jury, dismissed an
entire jury panel, and fairly conducted [] individual colloquies of
forty new potential jurors employing no priority selection.
Additionally, this argument fails because this [c]ourt was not the
finder of fact in this jury trial.
Trial Court Opinion, 4/8/16, at 9-11.
Our review of the record fails to reflect any evidence presented by
Appellant to establish that a conflict existed that would necessitate a recusal
by Judge Coyle. Rather, Appellant’s assertion of a conflict warranting
recusal is a baseless allegation. Accordingly, we discern no bias, prejudice,
or unfairness on the part of Judge Coyle; nor is there any indication in the
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record that she abused her discretion in denying Appellant’s recusal motion.
Postie, 110 A.3d at 1037. Hence, Appellant’s first claim fails.
Appellant next argues that the Commonwealth did not present
sufficient evidence to support his conviction of aggravated assault.
Appellant’s Brief at 24-28. Specifically, Appellant asserts that there was no
evidence presented at trial of any statements made before or during the
attack that might indicate an intent to inflict injury. Id. at 26. Appellant
contends that “the intention of the shooter was far from obvious.” Id. at 27.
We analyze arguments challenging the sufficiency of the evidence
under the following parameters:
Our standard when reviewing the sufficiency of the
evidence is whether the evidence at trial, and all reasonable
inferences derived therefrom, when viewed in the light most
favorable to the Commonwealth as verdict-winner, are sufficient
to establish all elements of the offense beyond a reasonable
doubt. We may not weigh the evidence or substitute our
judgment for that of the fact-finder. Additionally, the evidence
at trial need not preclude every possibility of innocence, and the
fact-finder is free to resolve any doubts regarding a defendant’s
guilt unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the
combined circumstances. When evaluating the credibility and
weight of the evidence, the fact-finder is free to believe all, part
or none of the evidence. For purposes of our review under these
principles, we must review the entire record and consider all of
the evidence introduced.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.
2006)).
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The crime of aggravated assault is set forth at 18 Pa.C.S. § 2702 and
provides in relevant part as follows:
(a) Offense defined.—A person is guilty of aggravated assault
if he:
(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value of
human life. . . .
18 Pa.C.S. § 2702(a)(1). Serious bodily injury is defined as “bodily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301.
As we expressed in Commonwealth v. Fortune, 68 A.3d 980 (Pa.
Super. 2013):
For aggravated assault purposes, an “attempt” is found where an
accused who possesses the required, specific intent acts in a
manner which constitutes a substantial step toward perpetrating
a serious bodily injury upon another. An intent ordinarily must
be proven through circumstantial evidence and inferred from
acts, conduct or attendant circumstances.
Id., at 984 (citations omitted). In addition, the Court in Fortune
summarized the following:
The Pennsylvania Supreme Court in Commonwealth v.
Alexander, 477 Pa. 190, 383 A.2d 887 (Pa. 1978) created a
totality of the circumstances test to be used to evaluate whether
a defendant acted with the necessary intent to sustain an
aggravated assault conviction. In Commonwealth v.
Matthew, 589 Pa. 487, 909 A.2d 1254 (2006), that Court
reaffirmed the test and articulated the legal principles which
apply when the Commonwealth seeks to prove aggravated
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assault by showing that the defendant attempted to cause
serious bodily injury. Specifically, the Court stated, in relevant
part, that:
Alexander created a totality of the circumstances
test, to be used on a case-by-case basis, to
determine whether a defendant possessed the intent
to inflict serious bodily injury. Alexander provided
a list, albeit incomplete, of factors that may be
considered in determining whether the intent to
inflict serious bodily injury was present, including
evidence of a significant difference in size or strength
between the defendant and the victim, any restraint
on the defendant preventing him from escalating the
attack, the defendant’s use of a weapon or other
implement to aid his attack, and his statements
before, during, or after the attack which might
indicate his intent to inflict injury. Alexander, at
889. Alexander made clear that simple assault
combined with other surrounding circumstances
may, in a proper case, be sufficient to support a
finding that an assailant attempted to inflict serious
bodily injury, thereby constituting aggravated
assault.
Matthew, 909 A.2d at 1257 (citation and quotation marks
omitted). The Court indicated that our case law does not hold
that the Commonwealth never can establish a defendant
intended to inflict bodily injury if he had ample opportunity to
inflict bodily injury but did not inflict it. Rather, the totality of
the circumstances must be examined as set forth by Alexander.
Fortune, 68 A.3d at 984. In Commonwealth v. Hall, 830 A.2d 537, 542
(Pa. 2003), our Supreme Court stated that in cases “[w]here the intention of
the actor is obvious from the act itself, the finder of fact is justified in
assigning the intention that is suggested by the conduct.”
The trial court addressed Appellant’s challenge to the sufficiency of the
evidence with the following apt discussion:
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Applying the totality of the circumstances test from
Alexander, as well as the holding from Matthew, [Appellant] in
the instant case possessed the requisite specific intent to cause
serious bodily injury. While the complainant, Mr. Oliver, talked
with a friend outside [of] his house, [Appellant] purposefully
approached him, shot at him multiple times, and in so doing
caused serious injury to his lower left leg. On the night of
October 23, 2013, [Appellant] and Mr. Oliver g[o]t into an
argument over ownership of previously dropped Xanax pills in a
botched robbery of another male. [Appellant] demand[ed]
payment for them. The two men scuffle[d], and Mr. Oliver ha[d]
to push the hand of [Appellant] off of him in order to get away
and continue to walk his dog home. On the following evening,
October 24, 2013, [Appellant] approached Mr. Oliver again,
aimed and fired multiple times from a [.]22 caliber handgun at
close range, and striking him in the lower left leg as Mr. Oliver
fled into his home. Within those critical moments, [Appellant]
manifested an extreme disregard for [Mr.] Oliver’s life.
[Appellant] confirmed that he had the prerequisite
malicious intent when he shot at [Mr.] Oliver, and when he
subsequently threatened him commenting that he should have
finished him off outside the drug store. Thus, the totality of the
evidence amply supports the conviction of Aggravated Assault.
Trial Court Opinion, 4/8/16, at 13-14.
We have thoroughly reviewed the certified record before us on appeal,
and we agree with the trial court’s determination that the Commonwealth
presented sufficient evidence to establish beyond a reasonable doubt that
Appellant committed the crime of aggravated assault. Accordingly,
Appellant’s contrary claim lacks merit.
Appellant’s final argument is that the trial court abused its discretion in
fashioning his sentence. Appellant’s Brief at 29-35. Appellant claims that he
should not have been sentenced within the aggravated range for the crime
of retaliation against a witness, that the sentencing court failed to properly
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consider the statutory sentencing factors, and the court failed to consider
mitigating factors. Id. at 32-35.
We note that our standard of review is one of abuse of discretion.
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. Commonwealth v. Shugars, 895 A.2d 1270, 1275
(Pa. Super. 2006). It is well settled that there is no absolute right to appeal
the discretionary aspects of a sentence. Commonwealth v. Hartle, 894
A.2d 800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (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, 42
Pa.C.S.A. § 9781(b).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Moury, 992 A.2d at 170 (citing
Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In
Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we
reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d
790 (Pa. Super. 1995), wherein this Court observed that, although
Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions
as optional, the rule expressly provides that only issues raised in the trial
court will be deemed preserved for appellate review. Reeves, 778 A.2d at
692. Applying this principle, the Reeves Court held that an objection to a
discretionary aspect of a sentence is waived if not raised in a post-sentence
motion or during the sentencing proceedings. Id. at 692-693. See also
Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004) (holding
challenge to discretionary aspect of sentence was waived because appellant
did not object at sentencing hearing or file post-sentence motion);
Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000) (same).
Herein, the first requirement of the four-part test is met because
Appellant timely brought this appeal. However, our review of the record
reflects that Appellant did not meet the second requirement because he did
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J-S44021-17
not raise a challenge to the discretionary aspects of his sentence in a post-
sentence motion or at the time of sentencing. Therefore, we are constrained
to conclude that Appellant’s issue challenging the discretionary aspect of his
sentence is waived, and we are precluded from addressing the merits of his
issue on appeal. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2017
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