Com. v. Cintron, M. ( 2019 )


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  • J-S26041-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    MANUEL A. CINTRON                          :
    :
    Appellant               :   No. 869 EDA 2018
    Appeal from the Judgment of Sentence February 22, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0001486-2017,
    CP-51-CR-0007199-2015, CP-51-CR-0007242-2015,
    CP-51-CR-0007244-2015
    BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.*
    MEMORANDUM BY PANELLA, P.J.:                          FILED OCTOBER 28, 2019
    Appellant, Manuel A. Cintron, appeals from the judgment of sentence
    imposed following his jury conviction of rape, kidnapping, sexual assault,
    attempted kidnapping, unlawful restraint, possessing an instrument of crime,
    false identification to law enforcement, and intimidation of a witness. The court
    sentenced him to an aggregate term of not less than forty-five years nor more
    than ninety years of incarceration, followed by five years’ probation. Appellant
    challenges the admission of certain evidence. He asserts the evidence was
    insufficient to prove the charge of false identification to law enforcement. He
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-S26041-19
    claims his sentence was excessive.             We vacate the conviction for false
    identification. In all other respects, we affirm.
    We derive the facts of the case from the trial court opinion and our
    independent review of the certified record. The trial court set forth the facts
    of the case as follows:1
    The facts, when viewed in the light most favorable to the
    Commonwealth as the verdict-winner, show that at 4:10 AM on
    May 1, 2015, [R.C.] was walking to catch the bus in the area of
    12th and Ruscomb Streets in Philadelphia on the way to work.
    Manuel    Cintron    approached    her,    brandished  a    black
    semiautomatic pistol, pulled the slide back and threatened [R.C.
    with] “Come with me” and “Don't do anything stupid or I’ll shoot
    you in the head.” Cintron then pulled [R.C.] towards his old blue
    minivan. A struggle ensued and Cintron covered this victim’s
    mouth when she attempted to scream. Fortunately, [R.C.] was
    able to fight her way out and escape. Running toward Broad
    Street, she managed to jump on a bus and get to her workplace
    in Center City, where she informed her boss and then the police
    about what had occurred, providing a detailed description of the
    defendant, his clothing, the van as well as the gun.
    About an hour after attacking [R.C.], Cintron approached
    [J.Q.] on the 2000 block of East York Street, again brandished the
    black semi-automatic hand gun, pointing it at [J.Q.], telling her
    “Do what I say and nothing bad will happen.” Cintron ordered
    [J.Q.] into the van, which was without rear seating. The defendant
    drove around the area for a short period of time before stopping
    near a factory. Cintron ordered [J.Q.] into the back of the van and
    told her to undress. The victim asked if he was serious, began
    shaking and struggled to remove her clothing. Cintron took his
    prey’s shoes and pulled down her pants, then took down his own
    pants demanding that [J.Q.] “Suck me off” and to “put this
    condom on me.” She attempted to put the condom on Cintron but
    she was shaking with fear. This defendant tried to force his penis
    into this victim’s vagina, but was unable as [J.Q.] was clenching
    ____________________________________________
    1To protect the privacy of the victims we have substituted initials for their full
    names.
    -2-
    J-S26041-19
    her legs. Cintron flipped her over and vaginally raped this victim
    from behind. Following the rape, Cintron demanded [J.Q.]’s
    identification which he photographed with his cell phone - warning
    his victim that if anything happened to him, the defendant’s
    brother would come after her and her family. He then returned
    her driver’s license. Cintron drove the victim around, telling her
    what to say if stopped by the police. The defendant eventually
    dropped [J.Q.] off on the 2600 block of East York Street. [J.Q.]
    was hysterical when she arrived at work. A co-worker called her
    family and her uncle and brother picked her up and took her to
    the hospital where they flagged down a police officer to report the
    crime. This victim gave a detailed description of the defendant,
    his clothing, the van and the gun. Episcopal Hospital does not
    admit sexual assault victims so [J.Q.] was transported to the
    Sexual Assault Response Center.
    Surveillance video was obtained from the area, the van
    identified and composite sketches created. Early morning plain
    clothes surveillances were conducted and a similar van observed.
    The registered owner of the van admitted this defendant had paid
    for the van but put it in her name because the defendant did not
    have a valid drivers’ license. [J.Q.] positively identified the
    defendant from a photo array, however [R.C.] was unable to do
    so. Mr. Cintron was arrested on May 18, 2015, in an apartment in
    the 700 block of Princeton Street in Philadelphia. Upon being
    confronted by the police, the defendant gave the name of “Omar
    Rivera”.
    On Christmas Day, 2016, [J.Q.] was at home with her
    family, when her brother retrieved the mail. There was a letter
    from the defendant in prison, addressed to his victim at her house.
    The intent of the letter was clear - to intimidate this victim.
    Trial Court Opinion, 8/6/18, at 3-4 (record citations omitted).
    We also note that Noah Brophy was the sexual assault nurse examiner
    (“SANE nurse”) who performed the examination on the victim. When Nurse
    Brophy was not available for trial, the court permitted the Commonwealth to
    present the testimony of Dr. Ralph Riviello, as an expert, over the initial
    objection of Appellant. See N.T. Trial, 10/10/17, at 28.
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    J-S26041-19
    Dr. Riviello was the founder and Medical Director of the Philadelphia
    Sexual Assault Response Center (sometimes referred to as “PSARC” in the
    record).    He testified as an expert in sexual assault examination, and
    emergency medicine.2 Ultimately, Cintron’s counsel stipulated to Dr. Riviello’s
    expertise. See N.T. Trial, 10/10/17, at 34. Dr. Riviello based his testimony
    on the patient records of the victim as prepared by SANE nurse Brophy,
    photographs taken by Brophy, as well as his own professional experience.
    The trial court permitted the Commonwealth to publish to the jury one
    color photograph of three taken by Brophy, showing micro tears in the vaginal
    area not visible with the naked eye, as highlighted by a diagnostic blue dye,
    toluidine. The trial court gave the jury a cautionary instruction before they
    saw the photograph.
    Cintron’s defense was that the sex was consensual.3            J.Q. denied
    consent, both on direct examination and on cross-examination.            See N.T.
    Trial, 10/05/17, at 129, 155.             Notably, Dr. Riviello testified that the
    photograph of the injury presented to the jury could not establish whether the
    ____________________________________________
    2Dr. Riviello testified that in addition to serving as the medical director of
    PSARC, he was employed as a professor of emergency medicine at Drexel
    University, and as an attending physician in the Emergency Department at
    Hahnemann University Hospital. See N.T. Trial, 10/10/17, at 39.
    3 Appellant exercised his constitutional right not to testify. See N.T. Trial.
    10/11/17, at 5. The defense rested without presenting any witnesses. See
    N.T. Trial, 10/11/17, at 16. Therefore, there was no evidence supporting the
    claim of consent. It was defense counsel who raised and argued the claim of
    consensual sex. See e.g., N.T. Trial, 10/05/17, at 38.
    -4-
    J-S26041-19
    sex was consensual or non-consensual. See N.T. Trial, 10/10/178, at 52
    (“Nobody can do that.”). He did testify that the injuries to the victim were
    consistent with J.Q.’s report of sexual assault. See N.T. Trial 10/10/17, at
    54.
    We also highlight that when the police came to arrest Cintron he denied
    his identity, claiming to be “Omar Rivera Morales” and offering a driver’s
    license in that name as proof. See N.T. Trial, 10/10/17, at 129. However,
    the police recognized Cintron from his description, most notably a large,
    distinctive tattoo on his neck, even though he had dyed his hair, shaved off
    his goatee, and begun wearing glasses. The police arrested him.
    At the close of its case, the Commonwealth moved a number of exhibits
    into evidence, including the SANE report, before it rested.              The following
    exchange occurred:
    [DEFENSE COUNSEL]        Your Honor, we have no objection.
    However, the majority of those exhibits were admitted for very
    limited purposes. We would have an objection for those limited
    purposes.
    THE COURT: That’s fine. They are admitted for the record.
    N.T. Trial, 10/11/17, at 15.
    The jury convicted Cintron of all charges.              When polled, the jury
    confirmed that the verdict was unanimous. After reviewing the pre-sentence
    investigation report, sentencing memoranda and other evidence, the court
    imposed an aggregate sentence of not less than forty-five nor more than
    ninety   years   of   incarceration   in    a    state   correctional   institution,   as
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    J-S26041-19
    recommended by the Commonwealth, followed by five years of reporting
    probation. This timely appeal followed the denial of Cintron’s motion for
    reconsideration.4
    Cintron presents five questions on appeal:
    A. Is a forensic sexual assault examination report testimonial,
    implicating the state and federal Confrontation Clauses, and if so,
    did the trial court violate appellant’s right of confrontation under
    Article 1, Section 9 of the Pennsylvania Constitution and the Sixth
    Amendment to the United States Constitution in permitting the
    use of and reading into the record the contents of that report by
    another expert as the basis of his own opinion?
    B. Although Rule of Evidence 703 allows an expert to use
    inadmissible evidence to form an opinion, when the testifying
    expert’s opinion has relevance and probative value only if the
    report he relied on is true, did the trial court err in permitting Dr.
    Riviello to testify to the contents of a report by a non-testifying
    employee?
    C. Did the trial court err in permitting the introduction of a graphic,
    close up color photograph of the complainant’s vagina as the
    probative value of the evidence was outweighed by its prejudicial
    effect and was otherwise cumulative?
    D. Is the evidence insufficient to prove the charge of false
    identification to law enforcement where there was no evidence
    that Appellant was informed that he was the subject of an official
    investigation?
    E. Did the trial court impose a manifestly excessive and grossly
    disproportionate sentence where it imposed a de facto life
    sentence in that the sentences were well beyond the aggravated
    range, they were applied consecutively without sufficient basis,
    and the court failed to consider the proper factors specified in
    Section 9721 of the Sentencing Code?
    ____________________________________________
    4   Both Cintron and the trial court complied with Pa.R.A.P. 1925.
    -6-
    J-S26041-19
    Appellant’s Brief, at 5.
    In his first issue, Cintron contends that the report of J.Q.’s examination
    by the SANE nurse, Noah Brophy, was testimonial in nature and, therefore,
    its use at his trial violated his rights under the Confrontation Clause of the
    Sixth Amendment of the United States Constitution and Article I, Section 9 of
    the Pennsylvania Constitution. We disagree.
    The Sixth Amendment’s Confrontation Clause provides that, “[i]n all
    criminal prosecutions, the accused shall enjoy the right . . . to be confronted
    with the witnesses against him.” See U.S. Const. amend. VI. The United
    States Supreme Court has held that “this bedrock procedural guarantee
    applies to both federal and state prosecutions.” Crawford v. Washington,
    
    541 U.S. 36
    , 42 (2004) (citation omitted).         Article I Section 9 of the
    Pennsylvania Constitution provides: “In all criminal prosecutions the accused
    hath a right . . . to be confronted with the witnesses against him. . . .”
    Whether the admission of the SANE report violated an appellant’s rights
    under the Confrontation Clause is a question of law, for which the appellate
    standard of review is de novo. Our scope of review is plenary. See
    Commonwealth v. Yohe, 
    79 A.3d 520
    , 544 (Pa. 2013).
    In 
    Crawford, 541 U.S. at 51
    , 
    124 S. Ct. 1354
    , the [United States
    Supreme] Court held that the Sixth Amendment guarantees a
    defendant’s right to confront those “who ‘bear testimony’ ” against
    him, and defined “testimony” as “[a] solemn declaration or
    affirmation made for the purpose of establishing or proving some
    fact.” The Confrontation Clause, the High Court explained,
    prohibits out-of-court testimonial statements by a witness unless
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    J-S26041-19
    the witness is unavailable and the defendant had a prior
    opportunity for cross-examination. 
    Id. at 53–56,
    124 S. Ct. 1354
    .
    
    Yohe, 79 A.3d at 531
    (footnotes omitted).
    The [United States Supreme] Court described the class of
    testimonial statements covered by the Confrontation Clause as
    follows:
    Various formulations of this core class of “testimonial”
    statements exist: “ex parte in-court testimony or its
    functional equivalent-that is, material such as affidavits,
    custodial examinations, prior testimony that the defendant
    was unable to cross-examine, or similar pretrial statements
    that declarants would reasonably expect to be used
    prosecutorially;” “extrajudicial statements . . . contained in
    formalized testimonial materials, such as affidavits,
    depositions, prior testimony, or confessions;” “statements
    that were made under circumstances which would lead an
    objective witness reasonably to believe that the statement
    would be available for use at a later trial.”
    
    Id. at n.11,
    quoting 
    Crawford, 541 U.S. at 51
    –52 (citation omitted).
    Here, Cintron maintains that the SANE report is testimonial, such that
    the trial court violated his constitutional right to confrontation by “permitting
    the use of [the report] and reading into the record the contents of that report
    by another expert as the basis of his own opinion[.]” Appellant’s Brief, at 4.
    Cintron’s claim does not merit relief.
    Preliminarily, we note that Cintron’s repeated assertion that Dr. Riviello
    simply read the report into the record is belied by the trial transcript and
    substantially mischaracterizes Dr. Riviello’s testimony.     It is true that Dr.
    Riviello referred to the report. It is also true that he testified based on his
    own experience and expertise about how a SANE examination is conducted.
    -8-
    J-S26041-19
    Moreover, Cintron’s mischaracterization does not support his assumption that
    the report was testimonial.
    In any event, Cintron fails to establish that Riviello’s testimony deprived
    him of his right to confrontation. With respect to Riviello’s testimony, Cintron
    can only claim to have been denied the right to confront two witnesses. First,
    he could argue he was denied the right to confront J.Q., whose statements
    were included in Brophy’s report.
    However, J.Q. (as well as R.C.) accused Cintron of multiple violent
    crimes. As noted previously, Cintron conceded that had sexual intercourse
    with J.Q. The primary factual issue at trial was therefore whether the
    intercourse was consensual.
    J.Q. vigorously testified at trial that it was not. See N.T., 10/5/17, at
    114-124. Cintron availed himself of the opportunity to cross-examine J.Q. at
    trial. See 
    id., at 147-156.
    He therefore could not, and indeed does not, argue
    that he was deprived of his right to confront J.Q.
    Cintron maintains that “the issue is not with what J.Q. said to Nurse
    Brophy, but what Nurse Brophy says he saw and heard, and then documented
    and relayed in a report.” Appellant’s Brief, at 31. However, he never specifies
    what Nurse Brophy reported that he claims is objectionable.
    Our independent review of the SANE report confirms that Nurse Brophy
    only reported the information J.Q. gave him. He offered no opinions, made
    -9-
    J-S26041-19
    no assessments of credibility or anything beyond the fact-based answers
    provided by J.Q.
    A careful reading of Dr. Riviello’s testimony confirms that aside from a
    factual recitation of the general procedures for a SANE examination, as
    implemented in the examination of J.Q., nothing in his testimony conveys
    what Nurse Brophy “saw and heard” beyond the objective facts of the
    examination itself as related to him by J.Q. (Appellant’s Brief, at 31). In the
    end, Dr. Riviello opined that the physical observations, as opposed to J.Q.’s
    statements, contained in Brophy’s report were consistent with consensual
    intercourse. See N.T., 10/10/17, at 67.
    As a result, Cintron has failed to establish that he was entitled to
    confront Brophy. The inculpatory nature of Brophy’s report was entirely due
    to the statements of J.Q. As Cintron concedes, he had the opportunity to
    confront J.Q. over her accusations. His failure to identify how any statement
    of Brophy was used against him at trial is fatal to his claim.
    Additionally, this case is distinguishable from the line of cases cited by
    Cintron, which found their respective reports testimonial and surrogate (i.e.,
    non-author) testimony in violation of the Confrontation Clause. Importantly to
    the High Court, the reports in those cases proved “one fact necessary for [ ]
    conviction.” Bullcoming v. New Mexico, 
    564 U.S. 647
    , 651 (2012) (report
    which confirmed blood alcohol content in DWI case was testimonial); see also
    Melendez-Diaz v. Massachusetts, 
    557 U.S. 305
    , 310–11 (2009) (analyst’s
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    affidavit certifying suspect substance as cocaine was testimonial, implicating
    Confrontation Clause); Commonwealth v. Brown, 
    185 A.3d 316
    , 318 (Pa.
    2018), Opinion Announcing the Judgment of the Court, (autopsy report
    concluding manner of death from gunshot wounds to be homicide was
    testimonial in nature, but admission was harmless error).5 Compare 
    Yohe, 79 A.3d at 543
    (testimony of forensic toxicologist who analyzed test results of
    appellant’s blood, determined blood alcohol content by comparing results, and
    authored Toxicology Report, satisfied appellant’s right to confrontation).
    As noted above, the factual issue at trial here was whether J.Q.
    consented. By Dr. Riviello’s testimony, Brophy’s physical observations of J.Q.
    during the SANE examination were consistent with both parties’ positions.
    Brophy’s out-of-court statements were not used to establish any element of
    the crimes the Commonwealth sought to prove. Cintron is due no relief on his
    first issue.
    In his second issue, Cintron claims that the trial court erred in permitting
    Dr. Riviello to testify based on the Brophy SANE report. In an argument which
    frequently overlaps the arguments already made in his first claim, Cintron
    maintains the report “and its contents” should have been excluded.
    Appellant’s Brief, at 22. He asserts that Pennsylvania Rule of Evidence 703
    ____________________________________________
    5We note for the sake of clarity and completeness that Cintron confuses
    Bullcoming with Melendez-Diaz and mis-cites the facts of the case. See
    Appellant’s Brief, at 25.
    - 11 -
    J-S26041-19
    (explicitly permitting an expert to rely on non-admissible facts or data) was
    improperly used to supersede his confrontation rights, with Dr. Riviello acting
    as a mere conduit. See 
    id. at 32,
    35-36. We disagree.
    Preliminarily, on this issue, Cintron failed to raise this objection with the
    trial court. Instead, as previously noted, defense counsel made only a vague,
    generalized objection to “the majority” of the Exhibits moved into evidence by
    the Commonwealth. N.T. Trial, 10/11/17, at 15.6
    “A party complaining, on appeal, of the admission of evidence in
    the court below will be confined to the specific objection there
    made.” Commonwealth v. Cousar, 
    593 Pa. 204
    , 231, 
    928 A.2d 1025
    , 1041 (2007), cert. denied, 
    553 U.S. 1035
    , 
    128 S. Ct. 2429
    ,
    
    171 L. Ed. 2d 235
    (2008). If counsel states the grounds for an
    objection, then all other unspecified grounds are waived and
    cannot be raised for the first time on appeal. Commonwealth v.
    Arroyo, 
    555 Pa. 125
    , 142, 
    723 A.2d 162
    , 170 (1999);
    Commonwealth v. Stoltzfus, 
    462 Pa. 43
    , 60, 
    337 A.2d 873
    , 881
    (1975) (stating: “It has long been the rule in this jurisdiction that
    if the ground upon which an objection is based is specifically
    stated, all other reasons for its exclusion are waived, and may not
    be raised post-trial”); Commonwealth v. Duffy, 
    832 A.2d 1132
    ,
    1136 (Pa.Super.2003), appeal denied, 
    577 Pa. 694
    , 
    845 A.2d 816
            (2004) (stating party must make timely and specific objection to
    preserve issue for appellate review).
    ____________________________________________
    6   As noted, supra at 5:
    [DEFENSE COUNSEL]        Your Honor, we have no objection.
    However, the majority of those exhibits were admitted for very
    limited purposes. We would have an objection for those limited
    purposes.
    THE COURT: That’s fine. They are admitted for the record.
    N.T. Trial, 10/11/17, at 15.
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    J-S26041-19
    Commonwealth v. Lopez, 
    57 A.3d 74
    , 81–82 (Pa. Super. 2012) (emphasis
    in original).
    In this case, Cintron failed to raise the objection he now proposes on
    appeal in the trial court. Accordingly, his claim is waived.
    Moreover, it would not merit relief. The trial court properly determined
    that, to the extent that the nurse’s SANE report incorporated statements by
    J.Q. herself when seeking medical treatment, those statements were either
    not hearsay or fell within a recognized exception to the hearsay rule. (See
    N.T. Trial, 10/10/17, at 28; see also Pa.R.E. 803 (4) (A, B) (Statement Made
    for Medical Diagnosis or Treatment.). Additionally, Rule 703 plainly permits
    an expert to base an opinion on facts or data even if that data would not be
    independently admissible. See Pa.R.E. 703. Cintron’s second issue is waived
    and would not merit relief.
    Cintron’s third issue is that the trial court erred in permitting the jury to
    view one color photograph of the victim’s vagina, stained with a diagnostic
    blue dye, toluidine, to show tears or abrasions not visible to the naked eye.
    Cintron asserts that the display of the photograph was inflammatory, with the
    probative value out-weighed by the prejudicial effect. (Appellant’s Brief, at
    39. We disagree.
    Our standard of review for Cintron’s claim is for an abuse of discretion.
    A trial court has broad discretion to determine whether evidence
    is admissible and a trial court’s ruling on an evidentiary issue will
    be reversed only if the court abused its discretion. Accordingly, a
    ruling admitting evidence will not be disturbed on appeal unless
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    J-S26041-19
    that ruling reflects manifest unreasonableness, or partiality,
    prejudice, bias, or ill-will, or such lack of support to be clearly
    erroneous.
    Commonwealth v. Huggins, 
    68 A.3d 962
    , 966 (Pa. Super. 2013) (internal
    quotation and citations omitted).
    When considering the admissibility of photographs of a crime scene or
    victim, which by their very nature can be unpleasant, disturbing, and even
    brutal, the trial court must engage in a two-step analysis:
    The trial court must apply a two-part test prior to admitting
    photographs into evidence over objection by a party. First, the
    court must determine whether the photograph is inflammatory.
    This Court has interpreted inflammatory to mean the photo is so
    gruesome it would tend to cloud the jury’s objective assessment
    of the guilt or innocence of the defendant. Next, if the trial court
    decides the photo is inflammatory, in order to permit the jury to
    view the photo as evidence, it must then determine whether it [ ]
    has essential evidentiary value.
    Commonwealth v. Funk, 
    29 A.3d 28
    , 33 (Pa. Super. 2011) (citations
    omitted).
    Here, we need not decide if the photograph was inflammatory. The trial
    court, in its discretion, decided that the photo was inflammatory, and we
    decline to disturb that finding. However, the court also concluded that the
    photograph had essential evidentiary value in confirming the vaginal injury
    sustained by J.Q. The photograph furnished the foundation for Dr. Riviello’s
    testimony that the injury shown was consistent with J.Q.’s report of sexual
    assault. The trial court explained the procedures it followed after concluding
    that the photograph was inflammatory:
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    J-S26041-19
    The jury was only permitted to view the one photo, one time, for
    a very brief moment, and not permitted to take the photograph
    into the deliberation room. The jury was cautioned prior to the
    photograph being exhibited in an attempt to partially sanitize the
    inflammatory nature of the picture. Clearly the court did not abuse
    its discretion in allowing a single photograph of the victim’s vaginal
    area where its probative value clearly outweighed the prejudice.
    Trial Court Opinion, at 13.    A jury is presumed to follows the trial court’s
    instructions. Commonwealth v. Baez, 
    720 A.2d 711
    , 721 (Pa. 1998).
    On independent review, we conclude that the trial court acted well within
    the bounds of its discretion, and we decline to disturb its ruling. Cintron’s
    third issue does not merit relief.
    Cintron’s fourth claim is that the evidence was insufficient to sustain the
    guilty verdict for false identification to a law enforcement officer.          See
    Appellant’s Brief, at 41-44. The Commonwealth does not oppose vacating
    Cintron’s concurrent probationary sentence. See Commonwealth’s Brief, at
    20. The trial court maintains that “under these specific circumstances” the
    evidence was sufficient to affirm the conviction. See Trial Court Opinion, at
    17. On independent review, we conclude that under controlling authority, we
    are constrained to vacate the conviction.
    Our Crimes Code defines the offense of false identification to law
    enforcement authorities as follows:
    (a) Offense defined.−A person commits an offense if he
    furnishes law enforcement authorities with false information about
    his identity after being informed by a law enforcement
    officer who is in uniform or who has identified himself as a
    law enforcement officer that the person is the subject of an
    official investigation of a violation of law.
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    J-S26041-19
    (b) Grading.−An offense under this section is a misdemeanor of
    the third degree.
    18 Pa.C.S.A. § 4914 (emphasis added).
    Our standard of review of insufficiency claims is well settled:
    A claim challenging the sufficiency of the evidence is a question of
    law. Evidence will be deemed sufficient to support the verdict
    when it establishes each material element of the crime charged
    and the commission thereof by the accused, beyond a reasonable
    doubt. Where the evidence offered to support the verdict is in
    contradiction to the physical facts, in contravention to human
    experience and the laws of nature, then the evidence is insufficient
    as a matter of law. When reviewing a sufficiency claim[,] the court
    is required to view the evidence in the light most favorable to the
    verdict winner giving the prosecution the benefit of all reasonable
    inferences to be drawn from the evidence.
    Commonwealth v. Widmer, 
    744 A.2d 745
    , 751 (Pa. 2000) (internal
    citations omitted).
    On appeal, Cintron does not deny that he gave the police false
    information. Nevertheless, he maintains that the police who came to arrest
    him did not inform him that he was the subject of an official investigation for
    violation of law. See Appellant’s Brief, at 41-42.
    Cintron cites In re D.S., 
    39 A.3d 968
    , 974–75 (Pa. 2012) (holding that
    information must be provided to the individual by the law enforcement
    officer). An implication from surrounding circumstances is not enough. See
    Commonwealth v. Kitchen, 
    181 A.3d 337
    , 345 (Pa. Super. 2018) (en banc)
    (holding “Commonwealth must prove that individual was told by police that
    he or she was under investigation, and that must occur prior to the individual’s
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    presentment of false identity information”); see also Commonwealth v.
    Barnes, 
    14 A.3d 128
    , 132 (Pa. Super. 2011) (declining to condone provision
    of false identification information to police officers, but applying “the explicit
    language of the statute”).
    Accordingly, we are constrained to reverse Cintron’s conviction for this
    offense only. Because the associated sentence was for a term of probation,
    remand for re-sentencing is unnecessary. See Commonwealth v. Thur, 
    906 A.2d 552
    , 570 (Pa. Super. 2006) (finding no need for remand because
    vacating assault sentence did not disturb sentencing scheme where assault
    sentence was concurrent with other terms and did not increase aggregate
    length of incarceration). We grant relief on Cintron’s fourth issue.
    In his fifth and final issue, Cintron claims his sentence was manifestly
    excessive. We disagree.
    We review a sentencing court’s determination for an abuse of
    discretion. An abuse of discretion may not be found merely
    because an appellate court might have reached a different
    conclusion, but requires a result of manifest unreasonableness, or
    partiality, prejudice, bias, or ill-will, or such lack of support so as
    to be clearly erroneous. When reviewing sentencing matters, this
    Court must accord the sentencing court great weight as it is in
    best position to view the defendant’s character, displays of
    remorse, defiance or indifference, and the overall effect and
    nature of the crime.
    Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1133-34 (Pa. Super. 2009)
    (citations omitted).
    It is well-settled that the right to appeal a discretionary aspect of
    sentence is not absolute. Rather, where an appellant challenges
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    J-S26041-19
    the discretionary aspects of a sentence, an appellant’s appeal
    should be considered as a petition for allowance of appeal.
    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).
    Whether a particular issue constitutes a substantial question about
    the appropriateness of sentence is a question to be evaluated on
    a case-by-case basis.
    *     *      *
    We have found that a substantial question exists 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.
    We cannot look beyond the statement of questions presented and
    the prefatory [Rule] 2119(f) statement to determine whether a
    substantial question exists. . . .
    When we examine an appellant’s Rule 2119(f) statement to
    determine whether a substantial question exists, our inquiry must
    focus on the reasons for which the appeal is sought, in contrast to
    the facts underlying the appeal, which are necessary only to
    decide the appeal on the merits. . . . A Rule 2119(f) statement is
    inadequate when it contains incantations of statutory provisions
    and pronouncements of conclusions of law.
    Commonwealth v. Radecki, 
    180 A.3d 441
    , 467–68 (Pa. Super. 2018)
    (emphasis added) (citations, footnote and other punctuation omitted).
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    J-S26041-19
    “Generally, Pennsylvania law affords the sentencing court discretion to
    impose its sentence concurrently or consecutively to other sentences being
    imposed at the same time or to sentences already imposed. Any challenge to
    the exercise of this discretion ordinarily does not raise a substantial question.”
    Commonwealth v. Prisk, 
    13 A.3d 526
    , 533 (Pa. Super. 2011) (citation and
    internal quotation marks omitted).
    Here, Cintron asserts in his Rule 2119(f) statement that the sentencing
    court “failed to consider all relevant factors as set forth in Section 9721(b) of
    the Sentencing Code (Title 42).” Appellants Brief, at 19.
    Instead of developing a colorable argument that the sentencing judge’s
    actions were either inconsistent with a specific provision of the Sentencing
    Code, or contrary to the fundamental norms which underlie the sentencing
    process, in support of a substantial question, he opts for a catchall recitation
    of numerous, undeveloped, frequently repetitive claims resembling the
    incantations and conclusory pronouncements disapproved in Radecki: e.g.
    “relevant sentencing criteria,” Appellant’s Brief, at 19, failure to consider “all
    relevant factors” (id.), “all relevant factors” (id. at 20); consecutive
    sentences, (id. at 20), “stacked enhancements” / consecutive sentences
    above guideline (id. at 21), and so forth. Cintron complains the trial court’s
    sentence only paid “lip service” to mitigation. (Id. at 19).
    The trial court correctly notes that mere assertions of excessiveness do
    not raise a substantial question. See Trial Court Opinion, at 19 (collecting
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    J-S26041-19
    cases). It concludes that here Cintron failed to raise a substantial question on
    his primary claim of excessiveness.      See Trial Court Opinion, at 19.    The
    Commonwealth suggests a similar conclusion, citing 
    Radecki, 180 A.3d at 468-470
    . See Commonwealth’s Brief, at 20. We also conclude that, under
    Radecki, Cintron has failed to raise a substantial question.
    Moreover, even if we were to determine that Cintron’s discretionary
    aspects of sentencing claim raised a substantial question, we still would
    conclude that he is not entitled to relief.
    Cintron faults the sentencing court for not properly considering his
    troubled childhood, the impact of deaths in the family, and older siblings who
    led him into a life of crime. However, where, as here, the sentencing court
    had the benefit of a pre-sentence investigation report, we can properly
    assume the court was aware of the defendant’s character and weighed it along
    with mitigating statutory factors. See Commonwealth v. Rhoades, 
    8 A.3d 912
    , 919 (Pa. Super. 2010).
    Cintron notes his relatively young age (twenty-four when the crimes
    were committed; twenty-five at trial) in connection with the length of his
    sentence. The trial court notes that Appellant was adjudicated delinquent five
    times, arrested as an adult sixteen times, and incarcerated after five
    convictions. See Trial Court Opinion, at 20. One of his arrests that did not
    result in a conviction involved a sexual assault at gunpoint on a prostitute.
    Charges were dismissed when the victim failed to appear for trial. The trial
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    J-S26041-19
    court notes that Cintron has failed repeated efforts at rehabilitation and
    absconded from supervision.
    Here, Cintron attempted to rape two women, both strangers to him, at
    gunpoint, off the street in pre-dawn hours while they were on their way to
    work, within an hour of each other. He threatened murder. The first victim
    managed to escape, but he succeeded the second time. Most but not all of
    Cintron’s sentences were consecutive.        He is not entitled to a “volume
    discount.” See Commonwealth v. Yeomans, 
    24 A.3d 1044
    , 1050 (Pa.
    Super. 2011).
    Under our standard of review, an abuse of discretion may not be found
    unless the trial court’s decision is “clearly erroneous.” Commonwealth v.
    Walls, 
    926 A.2d 957
    , 961 (Pa. 2007) (citation omitted). “The rationale behind
    such broad discretion and the concomitantly deferential standard of appellate
    review is that the sentencing court is in the best position to determine the
    proper penalty for a particular offense based upon an evaluation of the
    individual circumstances before it.”(Id.) (citations and internal quotation
    marks omitted).“Although Pennsylvania’s system stands for individualized
    sentencing, the court is not required to impose the ‘minimum possible’
    confinement.” Commonwealth v. Moury, 
    992 A.2d 162
    , at 171 (citation
    omitted).
    Here, the trial court concluded that “[t]he sentence imposed properly
    took into consideration the nature of the crime, the defendant’s character, and
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    J-S26041-19
    the defendant’s rehabilitative needs and the obligation to protect the public.”
    Trial Court Opinion, at 23.     Under our deferential standard of review, we
    discern no abuse of discretion in the trial court’s sentence, and we decline to
    disturb it. Cintron’s fifth claim merits no relief.
    Appellant’s conviction for false identification to law enforcement is
    reversed and the associated sentence vacated. In all other respects, we affirm
    the judgment of sentence.
    President Judge Emeritus Gantman joins the majority.
    Judge Pellegrini files a concurring/dissenting memorandum.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/28/19
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