Com. v. Boltz, R., Sr. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT PAUL BOLTZ, SR.
Appellant No. 298 MDA 2017
Appeal from the Judgment of Sentence January 26, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000648-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 03, 2017
Robert Paul Boltz appeals from the judgment of sentence, entered in
the Court of Common Pleas of Berks County, following his conviction for
aggravated assault and related offenses. After careful review, we affirm.
The trial court summarized the facts of this case as follows:
During the evening hours of January 30, 2016, [Boltz’s]
estranged wife, [Lynda Boltz], was present inside of her
residence located at 54 School Road, Mohrsville, Berks County,
Pennsylvania. At that time, [Lynda] Boltz’s boyfriend, James
Wosochlo, arrived at [her] [r]esidence to have dinner [].
Wosochlo was operating a red Chevrolet Silverado and parked in
the driveway []. After dinner, Lynda Boltz and [] Wosochlo were
in [the] bedroom when they heard a noise outside coming from
the rear portion of the [r]esidence. [] Wosochlo and Lynda Boltz
then exited the [r]esidence to determine the source of the noise.
[] Wosochlo and Lynda Boltz came into contact with [Boltz]
outside of the residence. [Boltz] testified that he was there to
see his dog, Mandy. [Boltz] told [] Wosochlo that “[Lynda Boltz]
is my wife” and that “this is my house.” Boltz was in possession
of a knife and attempted to stab [] Wosochlo in the
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chest/stomach area but was blocked by [] Wosochlo. The knife
was long and silver in color and at least six inches [] in length.
The blade of the knife was approximately four inches [] in
length. [] Wosochlo took the knife away from [Boltz] and threw
it aside. During the altercation, [] Wosochlo sustained a scratch
on his arm. [] Wosochlo secured [Boltz’s] arms and moved him
to the front of the [r]esidence so [Boltz] would leave the
property. [Boltz] threatened to sue [] Wosochlo if he suffered
any injuries and referenced his prior back surgery. [Boltz] was
shouting at [] Wosochlo and said “this is my house, that is my
wife, I guess you’ve been fucking her for the past year and a half
because I haven’t been getting any. I know where you live. I
know where you work. I know you have a Mexican girlfriend.” []
Wosochlo released [Boltz] who then left the residence and the
altercation concluded. The knife was recovered by Pennsylvania
State Police Trooper Dominic Marino. After [Boltz] had left the
[r]esidence, [] Wosochlo observed damage to his [v]ehicle. []
Wosochlo noticed that the words “[fuck] you” were scratched
into the paint on the back of his [v]ehicle. He also saw that the
anti-lock braking system [] lines were cut and all four of his tires
were slashed. Trooper Marino also observed this damage. []
Wosochlo’s [v]ehicle had new tires and was in good condition
when he arrived at the [r]esidence. [] Wosochlo testified that the
paint on the [v]ehicle was also in good condition other than one
scratch.
Trial Court Opinion, 4/10/17, at 3-4.
On January 26, 2017, the court sentenced Boltz to 3½ to 10 years’
imprisonment in a state correctional facility. On February 1, 2017, Boltz
filed a post-sentence motion, which the trial court denied by order dated
February 6, 2017. Boltz filed a timely appeal, after which both he and the
trial court complied with Pa.R.A.P. 1925. Boltz presents the following issues
for our review:
1. Whether the guilty verdicts for aggravated assault, simple
assault, recklessly endangering another person (REAP), criminal
mischief and harassment were against the weight of the
evidence?
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2. Whether the trial court abused its discretion in imposing an
aggregate sentence of 3½ to 10 years, where such sentence was
manifestly excessive and clearly unreasonable, where the
sentence was contrary to the fundamental norms underlying the
Sentencing Code.
Brief of Appellant, at 9 (reworded for clarity).
Our standard of review in challenges to a trial court’s verdict as
against the weight of the evidence is necessarily limited. See
Commonwealth v. Young, 692 A.2d 1112, 1114 (Pa. Super. 1997). “The
determination of whether to grant a new trial because the verdict is against
the weight of the evidence rests within the discretion of the trial court, and
we will not disturb that decision absent an abuse of discretion.” Id.(citations omitted). “A claim that the evidence presented at trial was
contradictory and unable to support the verdict requires the grant of a new
trial only when the verdict is so contrary to the evidence as to shock one’s
sense of justice.” Id. (citations omitted).
Boltz first claims his physical disabilities limited his ability to engage in
physical activity, including fighting, for purposes of his aggravated assault
and related convictions, and that the Commonwealth presented no forensic
or circumstantial evidence proving he had a knife. Thus, Boltz avers, his
convictions for aggravated assault, simple assault, REAP and harassment
were against the weight of the evidence. A person is guilty of aggravated
assault, simple assault, REAP or harassment if he:
§ 2702. Aggravated Assault.
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(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; [or]
(4) attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly weapon[.]1
***
§ 2701 (a)(1), (3). Simple Assault.
(1) attempts to cause or intentionally, knowingly, or
recklessly causes bodily injury to another; [or]
(3) attempts by physical menace to put another in
fear of imminent serious bodily injury[.]
***
§ 2705. Recklessly endangering another person.
A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury.
***
§ 2709. Harassment.
(a) Offense defined.--A person commits the crime of harassment
when, with intent to harass, annoy or alarm another, the person:
(1) strikes, shoves, kicks or otherwise attempts or
threatens to do the same[.]
18 Pa.C.S.A. §§ 2701(a)(1), (3), 2702(a)(2), (4), 2705 and 2709 (emphasis
added).
____________________________________________
1
Deadly weapon is defined as a “device designed as a weapon and capable
of producing death or serious bodily injury[.]” 18 Pa.C.S.A. § 2301.
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On January 30, 2016, at approximately 10 p.m., Boltz, dressed in
camouflage hunting gear, approached the rear of Linda Boltz’s residence
armed with a knife. See N.T. Jury Trial, 11/14/16, at 77-80. Wosochlo
went to the rear of the residence to investigate sounds of what he believed
was a person shifting his or her weight in the snow. Shortly thereafter,
Wosochlo encountered Boltz outside of the residence, at which time Boltz
was holding an object Wosochlo could not immediately identify. Boltz then
lunged at Wosochlo’s torso area while holding an object in his right hand.
Specifically, Wosochlo testified that he saw Boltz “go for [his] stomach with
something,” in a lunging motion. Id. at 80. Wosochlo was able to block
Boltz’s lunging motion, at which time his hand came in contact with a hard
object; Wosochlo then realized that the object in Boltz’s right hand was “a
big knife.” Id. at 81. After a struggle, Wosochlo was able to disarm Boltz
and escort him off the property surrounding Linda Boltz’s residence. Police
later recovered a “butterfly knife” from the scene, which was later identified
by Wosochlo as being the knife Boltz used to attack him. Id. at 86.
Boltz’s assertion that his physical condition inhibited or limited his
ability to attack or threaten Wosochlo with a knife is irrelevant. A conviction
for any of the foregoing charges does not require more than an attempt.
See 18 Pa.C.S.A. §§ 2701(a)(1), (3), 2702(a)(2), (4), 2705 and 2709.
Boltz’s attempts at stabbing Wosochlo in the torso, however futile, placed
Wosochlo in imminent danger of serious bodily injury. Further, the
Commonwealth’s evidence included the actual physical knife Boltz possessed
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on January 30, 2016, and the jury accepted Wosochlo’s and Linda Boltz’s
testimony that Boltz attempted to stab Wosochlo. See Commonwealth v.
Mucci, 143 A.3d 399, 409 (Pa. Super. 2016) (finder of fact, while passing
upon the credibility of witnesses and weight of evidence produced, is free to
believe all, part, or none of evidence). Additionally, Boltz avers the
Commonwealth presented no circumstantial evidence linking him to the
knife. However, the record reflects the Commonwealth presented photos of
damage to Wosochlo’s Chevy Silverado, including images of tires slashed by
a knife and graphic language scratched into the paint of the vehicle.
Commonwealth v. Devalos, 779 A.2d 1190, 1193 (Pa. Super. 2001)
(Commonwealth may sustain its burden of proving every element of crime
beyond reasonable doubt by relying wholly on circumstantial evidence).
Therefore, we find the jury’s verdict is not so contrary to the evidence as to
shock our collective sense of justice. Young, supra.We now turn to Boltz’s challenge of the trial court’s discretionary
aspects of his sentence. Our standard of review in challenges to the
discretionary aspects of a sentence is limited. See Commonwealth v.
Sims, 728 A.2d 357, 359 (Pa. Super. 1999). “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.” Id. (citations
omitted). “[W]e will only entertain a challenge to the discretionary aspects
of sentencing if a substantial question exists as to the appropriateness of the
sentence.” Id. “[I]n order to establish a substantial question, appellant
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must show actions by the sentencing court inconsistent with the Sentencing
Code or contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Gaddis, 639 A.2d 462, 469 (Pa. Super.
1994).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We 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).
Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa. Super. 2006).
Boltz’s brief includes a Rule 2119(f) concise statement of reasons
relied on for allowance of appeal; however, review of the record reveals he
failed to raise these issues at sentencing or in a post-sentence motion. The
failure to raise this type of issue in a post-sentence motion or at sentencing
results in its waiver on appeal. See Commonwealth v. Griffin, 65 A.3d
932, 936 (Pa. Super. 2013) (challenges to discretionary aspects of sentence
waived if not raised during sentencing or in post-sentence motions).
Therefore, further analysis of Boltz’s last claim on appeal is unnecessary, as
he has waived this issue.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2017
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