Com. v. McCoy, T.

J-S27023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY MCCOY :
:
Appellant : No. 166 EDA 2022
Appeal from the Judgment of Sentence Entered October 25, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004774-2020
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 16, 2022
Appellant Troy McCoy appeals from the judgment of sentence imposed
following his conviction for aggravated assault and related offenses. Appellant
challenges the sufficiency and weight of the evidence, the trial court’s
evidentiary rulings, and the discretionary aspects of his sentence. We affirm.
We adopt the trial court’s summary of the facts and procedural history
underlying this case. See Trial Ct. Op., 3/21/22, at 1-4. Briefly, on August
9, 2020, Appellant and Shakerra Bonds (co-defendant) visited Sesame Place
with a group of family members. N.T. Trial, 7/8/21, at 166. While Appellant
was in line for the carousel ride, a 17-year-old employee (the victim) asked
Appellant to pull up his face mask in accordance with the park’s COVID-19
policy. N.T. Trial, 7/7/21, at 125. After Appellant became argumentative, the
victim walked away in order “to avoid any problems.” Id. at 127. Later that
day, the victim was in the operating booth for another ride at the park. Id.
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at 128. After Appellant spotted the victim, he demanded to be released from
the ride, then approached the victim and asked if he wanted to go somewhere
private to fight. Id. at 133. The victim responded that he did not want to
fight and then pressed the call button for assistance. Id. at 133-34. As staff
members escorted the victim to the employee break room for his own
protection, co-defendant began following the victim and cursing at him. Id.
at 134. While the victim’s back was turned, Appellant jumped over a fence
and punched the victim in the left side of his face. Id. at 57. As a result of
the attack, the victim suffered a broken jaw, underwent surgery, and spent
two weeks in the hospital with his jaw wired shut. Id. at 148.
Appellant was subsequently arrested and charged with aggravated
assault, recklessly endangering another person (REAP), simple assault,
harassment, and two counts of disorderly conduct.1 Appellant’s co-defendant
was also charged with simple assault and other offenses for her involvement
in the attack. On July 7, 2021, both matters proceeded to consolidated jury
trial. Ultimately, on July 9, 2021, Appellant and co-defendant were convicted
of all charges. On October 25, 2021, the trial court sentenced Appellant to a
term of five to ten years’ incarceration for aggravated assault and a concurrent
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1 18 Pa.C.S. §§ 2702(a)(1), 2705, 2701(a)(1), 2709(a)(1), and 5503(a)(1),
respectively.
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term of two years’ probation for REAP.2 The trial court also ordered Appellant
to pay restitution.
Appellant filed a timely post-sentence motion, which the trial court
denied. Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)
opinion addressing Appellant’s claims.
On appeal, Appellant raises multiple issues, which we have reordered as
follows:
1. Did the trial court err in permitting testimony regarding
Appellant’s pre-arrest silence?
2. Did the trial court err in admitting the hearsay testimony of
Detective Viscardi?
3. Was the verdict of guilty of aggravated assault supported by
sufficient evidence?
4. Was the verdict of guilty of aggravated assault against the
weight of the evidence?
5. Did the trial court abuse its discretion in sentencing Appellant
by imposing manifestly excessive sentences, failing to consider
all relevant factors, and relying on improper factors in imposing
said sentence?
Appellant’s Brief at 10.
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2 Appellant’s sentence for both aggravated assault and REAP were within the
standard guideline range. At the time of sentencing, Appellant’s prior record
score (PRS) was a two. Under the Sentencing Guidelines, the standard
minimum guideline range for aggravated assault is forty-eight to sixty-six
months of confinement, plus or minus twelve months for aggravating or
mitigating circumstances. See 204 Pa.Code §§ 303.15, 303.16(a). For REAP,
the standard minimum guideline range is restorative sanctions to nine
months, plus or minus three months for aggravating or mitigating
circumstances. See id.
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Pre-Arrest Silence
In his first issue, Appellant argues that the trial court erred by allowing
the Commonwealth to elicit testimony concerning Appellant’s pre-arrest
silence. Appellant’s Brief at 24.
By way of background to this claim, we note that prior to trial, the trial
court rejected the Commonwealth’s request to question a Sesame Place
security supervisor, Sergeant Jesus Hernandez Ceron, about Appellant’s
refusal to provide a statement immediately after the incident. N.T. Pre-Trial
Mot. Hr’g, 7/6/21, at 8-18. When the issue resurfaced at trial, the court
reiterated that it would “err on the side of caution” as it did not “feel
comfortable letting anyone refer to the defendant’s right not to speak.” N.T.
Trial, 7/8/21 at 79-80. However, the court warned both Appellant and co-
defendant’s counsel that that they “need[ed] to be careful when [they] cross-
examine[d] because if [they] even go near it[, the court was] going to allow
it.” Id. at 79.
Later that day, co-defendant’s counsel asked Sergeant Ceron about a
statement that Appellant made to him after the incident occurred. Id. at 117-
18. Appellant did not object. Id. Before the Commonwealth began re-direct
examination, the trial court stated that the co-defendant had “opened the
door” for the Commonwealth to question Sergeant Ceron about statements
Appellant made after the incident. Id. at 119. Appellant did not object. Id.
Thereafter, the following exchange occurred:
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[The Commonwealth]: There was another statement that
[Appellant] made to you, correct, that you didn’t previously
discuss on your [d]irect [examination], right?
[Sergeant Ceron]: Correct.
[The Commonwealth]: And what [Appellant] tells you is what?
[Sergeant Ceron]: He said, “Don’t touch me. I don’t want to talk
to you.”
[The Commonwealth]: So, you’re attempting to talk to him,
correct?
[Sergeant Ceron]: Correct.
[The Commonwealth]: Why are you attempting to talk to him?
[Sergeant Ceron]: I want to know what happened.
[The Commonwealth]: In response to you trying to figure out what
happen[ed], what does [Appellant] tell you?
[Sergeant Ceron]: He doesn’t want to talk. Don’t touch me.
N.T. Trial, 7/8/21, at 120. On re-cross examination, both Appellant and co-
defendant’s counsel continued to question Sergeant Ceron about his
interactions with Appellant after the incident. Id. at 120-23.
On appeal, Appellant argues that the trial court erred in concluding that
co-defendant’s counsel “opened the door” to testimony concerning Appellant’s
pre-arrest silence. Appellant’s Brief at 27. Appellant claims that “[i]n essence,
the trial court conditioned the protection of Appellant’s constitutional rights on
the requirement that co-defendant not open the door by eliciting evidence
helpful to her defense.” Id. Further, Appellant contends that the
Commonwealth relied on this testimony during closing argument, when the
Commonwealth “lump[ed] Appellant’s silence with his flight and suggest[ed]
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that both [were] evidence that Appellant knew that he committed a crime and
consciousness of guilt.” Id. at 27. Therefore, Appellant concludes that even
if the testimony was properly admitted, “the use of the evidence to infer guilt
was in violation of Appellant’s constitutional rights.” Id.
The Commonwealth responds that Appellant has waived these claims by
failing to object to the Commonwealth’s questions during re-direct
examination or the trial court’s ruling that co-defendant’s counsel had “opened
the door” to such testimony. Commonwealth’s Brief at 32. Further, the
Commonwealth argues that Appellant waived his challenge to the
Commonwealth’s statements during cross-examination. Id.
Initially, we must determine whether Appellant has preserved his claim
for review. It is well settled that “[t]he absence of a contemporaneous
objection below constitutes a waiver of the claim on appeal.”
Commonwealth v. Rodriguez, 174 A.3d 1130, 1145 (Pa. Super. 2017)
(citation and quotation marks omitted); see also Pa.R.A.P. 302(a) (stating
that “[i]ssues not raised in the trial court are waived and cannot be raised for
the first time on appeal”). As this Court has explained, the trial court must
be given “an opportunity to correct errors at the time they are made. A party
may not remain silent and afterwards complain of matters which, if erroneous,
the court would have corrected.” Commonwealth v. Strunk, 953 A.2d 577,
579 (Pa. Super. 2008) (citations omitted and some formatting altered).
Here, the record confirms that Appellant did not object to the trial court’s
ruling that co-defendant’s counsel “opened the door” to testimony about what
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Appellant said to Sergeant Ceron after the incident, nor did he object during
the Commonwealth’s redirect examination of Sergeant Ceron. See N.T. Trial,
7/8/21, at 119-20. Therefore, that claim is waived. See Rodriguez, 174
A.3d at 1145.
Further, to the extent Appellant challenges the Commonwealth’s
references to Appellant’s pre-arrest silence during closing argument, Appellant
did not raise that issue at trial or in his Rule 1925(b) statement. See N.T.
Trial, 7/9/21, at 52-53; Rule 1925(b) Statement, 3/2/22. Therefore, this
claim is also waived. See Rodriguez, 174 A.3d at 1145; see also
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (stating that
“[a]ny issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived” (citation omitted)). Accordingly, Appellant is not entitled to relief.
Hearsay Testimony
Appellant next argues that the trial court erred in allowing the
Commonwealth to elicit inadmissible hearsay testimony from Detective
Christopher Viscardi. Appellant’s Brief at 29.
By way of background, we note that at trial, co-defendant’s counsel
called Detective Viscardi to testify about the contents of the criminal complaint
and the victim’s prior statement that he had accidentally pushed and/or hit
co-defendant during the attack. N.T. Trial, 7/8/21, at 160. On cross-
examination, the trial court permitted the Commonwealth to elicit the
following testimony from Detective Viscardi:
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[The Commonwealth]: When you filed this complaint you had
talked to how many other witnesses when you seen their
statements?
[Appellant]: Objection, Your Honor. Hearsay.
THE COURT: When you filed this complaint you had talked to how
many other witnesses when you seen their statements? That was
the question.
[Appellant]: Yes. The objection is that it’s suggesting that they
told him certain information that led him to his conclusion.
THE COURT: The only thing he’s asking is if he talked to him. As
long as he asked that question that’s okay.
[Appellant]: Understood.
THE COURT: Overruled.
[The Commonwealth]: How many witnesses did you talk to or see
statements from?
[Detective Viscardi]: 30-plus.
[The Commonwealth]: Included in those, was Beyonce Best
included?
[Detective Viscardi]: Yes.
[The Commonwealth]: Was Nadia Gonzalez included in that?
[Detective Viscardi]: Yes.
[The Commonwealth]: Was Andrew Beck included in that?
[Detective Viscardi]: Yes.
[The Commonwealth]: Was Captain Reynolds and Sergeant Ceron
included in that information?
[Detective Viscardi]: Yes.
[The Commonwealth]: After you talked to those witnesses and
gathered the evidence, that’s when you wrote in your criminal
complaint that [the victim] may have accidentally—
[Appellant]: I object again.
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THE COURT: You can object but [co-defendant’s counsel]
questioned him extensively on that, and this is cross-examination
so I’m going to allow it. He was questioned on it on direct. You
may not have asked questions about it but, certainly, it’s proper
cross-examination in my view. I’ll overrule the objection.
[The Commonwealth]: So, after you talked to at least those five
witnesses that testified in court yesterday and today who told us
that they never saw [the victim] touch, shove, push, hit [co-
defendant], that’s when you filled out the affidavit of probable
cause and you wrote in the probable cause that [the victim] may
have accidentally touched [co-defendant]?
[Detective Viscardi]: Yes.
[The Commonwealth]: And you would have taken into account,
both, the witness’s statements, as well as what [the victim] had
told you, correct?
[Detective Viscardi]: Correct.
[The Commonwealth]: And when you wrote that, that is what you
believed happened?
[Detective Viscardi]: Yes.
N.T. Trial, 7/8/21, at 160-62.
On appeal, Appellant cites to this portion of testimony and asserts that
Detective Viscardi “was permitted to testify to what upwards of thirty people
told him and to suggest that what they told him was consistent with what the
victim told him.” Appellant’s Brief at 32. Therefore, Appellant concludes that
Detective Viscardi’s testimony was inadmissible hearsay and that the trial
court erred in concluding that co-defendant opened the door to that testimony
on cross-examination. Id. at 32-33.
The Commonwealth responds that Appellant “does not advance any
argument about how the testimony was a statement, out of court, and/or
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uttered for its truth.” Commonwealth’s Brief at 44. Further, the
Commonwealth argues that Detective Viscardi’s statements were admissible
to show “how he proceeded in the investigation.” Id. at 45. Finally, the
Commonwealth contends that any alleged error was harmless, as the
testimony about the victim’s statement was beneficial to Appellant’s case and
did not have any prejudicial effect. Id. Therefore, the Commonwealth asserts
that Appellant is not entitled to relief.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. Super. 2020) (citation
omitted), appeal denied, 250 A.3d 1158 (Pa. 2021).
Hearsay is defined as “a statement that . . . the declarant does not make
while testifying at the current trial or hearing; and . . . offer[ed] in evidence
to prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
Generally, hearsay evidence is inadmissible “except as provided by [the Rules
of Evidence], by other rules prescribed by the Pennsylvania Supreme Court,
or by statute.” Pa.R.E. 802.
Our Supreme Court has explained:
The rule against admitting hearsay evidence stems from its
presumed unreliability, because the declarant cannot be
challenged regarding the accuracy of the statement. But it is well
established that certain out-of-court statements offered to explain
the course of police conduct are admissible because they are
offered not for the truth of the matters asserted but rather to show
the information upon which police acted. The trial court, in
exercising discretion over the admission of such statements, must
balance the prosecution’s need for the statements against any
prejudice arising therefrom.
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Commonwealth v. Chmiel, 889 A.2d 501, 532-33 (Pa. 2005) (citations
omitted); see also Commonwealth v. Jones, 658 A.2d 746, 751 (Pa. 1995)
(concluding that a police officer’s testimony was proper because it was not
offered for the truth of the matter asserted, was admitted in order to explain
police conduct, and merely repeated matters covered in testifying witnesses’
own testimony).
Here, the trial court addressed Appellant’s claim as follows:
[T]he first statement uttered by Detective Viscardi (that he spoke
to thirty witnesses) is not hearsay. Detective Viscardi did not
testify to what those witnesses said, only that he spoke to them.
Further, while Detective Viscardi’s second statement (that the
information gathered was used when writing the complaint) may
constitute hearsay, co-defendant’s counsel “opened the door” to
the testimony when he questioned Detective Viscardi extensively
on the subject during direct examination. Co-defendant’s counsel
asked a plethora of questions about the content of the incident
report, ranging from what information witnesses provided for the
complaint to whether the witnesses used specific terms that
Detective Viscardi included. N.T. Trial, 7/8/2021, 134-140. “If a
defendant delves into what would be objectionable testimony on
the part of the Commonwealth, the Commonwealth can probe
further into the objectionable area.” Commonwealth v.
McCabe, 498 A.2d 933, 934 (Pa. Super. 1985). Therefore, this
[c]ourt did not err in allowing hearsay testimony but properly
admitted a statement that was heavily questioned during direct
examination.
Trial Ct. Op. at 6-7.
Following our review of the record, we discern no abuse of discretion by
the trial court. See Rivera, 238 A.3d at 492. Although Detective Viscardi
referred to some of the witnesses’ statements during his testimony, he did so
in response to questions about what information he relied on when preparing
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the criminal complaint. Therefore, the trial court did not err in overruling
Appellant’s hearsay objection. See Chmiel, 889 A.2d at 532 (concluding that
“it is well established that certain out-of-court statements offered to explain
the course of police conduct are admissible because they are offered not for
the truth of the matters asserted but rather to show the information upon
which police acted” (citations omitted)). Accordingly, Appellant is not entitled
to relief.
Sufficiency of the Evidence
Appellant next argues that the Commonwealth failed to prove the intent
element for aggravated assault. Appellant’s Brief at 14. Specifically, although
Appellant concedes that the victim suffered serious bodily injury,3 he claims
that a single punch does not prove that he acted with the intent to cause
serious bodily injury. Id. at 18 (citing Commonwealth v. Alexander, 383
A.2d 887 (Pa. 1978)). Therefore, Appellant concludes that there was
insufficient evidence to sustain his conviction for aggravated assault.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
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3We note that serious bodily injury is defined as “[b]odily 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; see also Commonwealth v. Nichols, 692 A.2d
181, 184 (Pa. Super. 1997) (holding that a broken jaw and being confined to
a liquid diet constitutes a serious bodily injury).
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we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
Section 2702(a)(1) of the Crimes Code states that “[a] person is guilty
of aggravated assault if he . . . 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).
“When a victim actually sustains serious bodily injury, the
Commonwealth can, but does not necessarily have to, establish specific intent
to cause such harm.” Commonwealth v. Burton, 2 A.3d 598, 602 (Pa.
Super. 2010) (en banc). In such cases, “the statute’s intent requirement can
be met if the defendant acts recklessly under circumstances manifesting an
extreme indifference to human life.” Id. (citation omitted).
Our Supreme Court has stated that the defendant’s intent may be
inferred from the circumstances surrounding an attack. Alexander, 383 A.2d
at 889. Such factors include (1) whether the defendant “was
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disproportionately larger or stronger than the victim,” (2) whether the
defendant would have escalated his attack but was restrained from doing so;
(3) whether the defendant possessed a weapon, and (4) “statements before,
during, or after the attack which might indicate [defendant’s] intent to inflict
further injury upon the victim.” Id. (citation omitted).
In Alexander, the defendant was convicted of aggravated assault after
he delivered a single punch to the victim’s head. Id. at 888. Although the
victim was injured, he did not sustain serious bodily injury. On appeal, our
Supreme Court explained that because the victim did not sustain serious
bodily injury, the Commonwealth was required to prove that Appellant acted
with intent to cause such injury. Id. at 889. However, the Court noted that
the surrounding circumstances of the attack were insufficient to prove intent,
as the defendant “delivered one punch and walked away.” Id. Therefore, the
Alexander court reversed this Court’s order affirming the defendant’s
judgment of sentence. Id. at 890.
Here, the trial court addressed Appellant’s claim as follows:
This court is without a doubt that the evidence presented by the
Commonwealth is sufficient to support Appellant’s conviction for
aggravated assault. Appellant jumped over a fence and charged
at [the v]ictim, a seventeen-year-old minor, before sucker
punching him in the face. N.T. Trial, 7/7/2021, at 58. Appellant
struck [the v]ictim with such force that there was an audible sound
upon contact and it knocked [the v]ictim onto the floor,
unconscious. N.T. Trial, 7/8/2021, at 22. This was not an
accidental hit. Even if Appellant did not necessarily intend to
break [the victim’s] jaw in two places[,] to the extent that it had
to be operated on and wired shut for two weeks, Appellant should
have known that sucker punching a minor from behind would
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result in serious injury. At the very least, Appellant’s behavior
was reckless—no one throws a punch and reasonably expects the
victim to not get hurt. Therefore, the Commonwealth adequately
proved beyond a reasonable doubt Appellant’s mens rea and any
assertion to the contrary is without merit.
Trial Ct. Op. at 14 (some formatting altered).
Following our review of the record, and viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, we find no error in
the trial court’s conclusion. See Palmer, 192 A.3d at 89. As noted
previously, there is no dispute that the victim suffered serious bodily injury as
a result of the attack.4 Therefore, the Commonwealth was only required to
prove that Appellant acted “recklessly under circumstances manifesting an
extreme indifference to human life.” Burton, 2 A.3d at 602 (citation omitted).
At trial, the Commonwealth presented witness testimony establishing that
Appellant reacted angrily towards the victim when directed to comply with the
park’s mask policy, then later confronted the victim and attempted to start a
physical altercation. After the victim walked away from Appellant, witnesses
testified that Appellant “came out of nowhere,” approached the victim from
behind, and “punched [the victim] extremely hard” in the left side of his face,
at which point the victim “blacked out” and fell to the ground. N.T. Trial,
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4 As noted previously, Appellant concedes that the victim suffered serious
bodily injury. Further, we note that at trial, the victim testified that his jaw
was broken in two places, which required him to undergo multiple surgeries
and spend two weeks in the hospital with his jaw wired shut. N.T. Trial,
7/7/21, 140, 142, 147-48. Under these circumstances, we conclude that there
was sufficient evidence to establish “serious bodily injury” for purposes of
aggravated assault.
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7/7/21, at 55-58, 137; see also N.T. Trial, 7/8/21, at 22. Beyonce Best
testified that while the victim was on the ground, Appellant placed the victim
in a “headlock” while wrapping his legs around the victim’s body. N.T. Trial,
7/7/21, at 55. Under these circumstances, we agree with the trial court that
there was sufficient evidence to establish that Appellant acted recklessly. See
Burton, 2 A.3d at 602; Alexander, 383 A.2d at 889. Accordingly, Appellant
is not entitled to relief.
Weight of the Evidence – Aggravated Assault
In his next claim, Appellant argues that his conviction for aggravated
assault was against the weight of the evidence. Appellant’s Brief at 11. In
support, Appellant asserts that both the victim and witness Beyonce Best
provided inconsistent statements regarding the details of the assault and that
their testimony “was so contradictory and inconsistent that the guilty verdict
shocks one’s sense of justice.” Id. at 20-21. Further, Appellant contends that
the victim “may have gained financially” from the incident, which “goes to his
bias.” Id. at 22. Therefore, Appellant contends that he is entitled to a new
trial.
In reviewing a weight claim, this Court has explained:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. When a trial court
considers a motion for a new trial based upon a weight of the
evidence claim, the trial court may award relief only when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so that
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right may be given another opportunity to prevail. The inquiry is
not the same for an appellate court. Rather, when an appellate
court reviews a weight claim, the court is reviewing the exercise
of discretion by the trial court, not the underlying question of
whether the verdict was against the weight of the evidence. The
appellate court reviews a weight claim using an abuse of discretion
standard.
At trial, the jury [is] the ultimate fact-finder and the sole arbiter
of the credibility of each of the witnesses. Issues of witness
credibility include questions of inconsistent testimony and
improper motive. A jury is entitled to resolve any inconsistencies
in the Commonwealth’s evidence in the manner that it sees fit. . .
.
[I]nconsistencies in eyewitness testimony are not sufficient to
warrant a new trial on grounds that the verdict was against the
weight of the evidence.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080-81 (Pa. 2017) (citations
and quotation marks omitted).
Here, the trial court addressed Appellant’s weight claim as follows:
[T]he Commonwealth presented a plethora of evidence from a
variety of witnesses, including [the v]ictim. Each witness
consistently testified to the same general story outlined above:
Appellant and [his co-d]efendant physically assaulted [the v]ictim
after he asked them to wear their masks properly. The
Commonwealth also introduced photographs and video of the
incident as exhibits. Thus, the verdict is not so contrary to the
evidence as to shock the conscience. Appellant’s weight of the
evidence claim is meritless.
Trial Ct. Op. at 15.
Following our review of the record, we discern no abuse of discretion by
the trial court in rejecting Appellant’s weight claim. See Jacoby, 170 A.3d at
1080-81. Although Appellant claims that there were alleged inconsistencies
in the witnesses’ testimony, the jury was permitted to consider the evidence
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and resolve any alleged inconsistencies in the Commonwealth’s favor. See
id. Therefore, Appellant is not entitled to relief on this issue.
Discretionary Aspects of Sentence
In his final claim, Appellant challenges the discretionary aspects of his
sentence. Appellant’s Brief at 34. Specifically, Appellant contends his
sentence is manifestly excessive and unreasonable because the trial court
“improperly focused on the nature of the crime” and did not consider
Appellant’s character, history, or rehabilitative needs. Id. at 42. Further,
Appellant argues that although his sentence for aggravated assault was within
the standard range, it was “excessive” in light of the fact that Appellant
punched the victim one time and “did not threaten the victim, did not have a
weapon, and did not attempt to further strike or hit” the victim after the initial
attack. Id. at 41. Further, Appellant claims that the trial court relied on
inappropriate sentencing factors by following the sentencing recommendation
from the presentence investigation (PSI) report, which was “based on
consideration of uncharged conduct” and the incorrect assertion that Appellant
failed to express remorse. Id. at 41-42. Therefore, Appellant requests that
we vacate his judgment of sentence and remand for resentencing. Id. at 42.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such
claims, we must determine:
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(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”).
Here, the record reflects that Appellant preserved his sentencing claims
in his post-sentence motion, filed a timely notice of appeal, and included the
issues in his Rule 1925(b) statement. Appellant has also included a Rule
2119(f) statement in his brief.5 Further, Appellant’s sentencing claims raise a
substantial question for our review. See Commonwealth v. Caldwell, 117
____________________________________________
5 We note that in his Rule 2119(f) statement, Appellant cites to a case where
this Court found that the appellant raised a substantial question by claiming
that the trial court failed to provide adequate reasons for the appellant’s
sentence. However, because Appellant does not develop this claim in his brief,
we decline to address that issue on appeal. See Commonwealth v. Garcia,
661 A.2d 1388, 1395-96 (Pa. Super. 1995) (noting that issues that are not
developed or supported with appropriate argument will be deemed waived);
see also Pa.R.A.P. 2119(a), (b), (c) and (d).
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A.3d 763, 770 (Pa. Super. 2015) (en banc) (stating that “an excessive
sentence claim—in conjunction with an assertion that the court failed to
consider mitigating factors—raises a substantial question” (citations
omitted)); Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super.
2010) (explaining that the defendant’s claim that “the trial court relied on an
improper factor raises a substantial question permitting review” (citations
omitted)); see also Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa.
Super. 2011) (concluding that the defendant raised a substantial question in
claiming that the trial court focused on the seriousness of the offense and
failed to consider the defendant’s rehabilitative needs). Therefore, we will
review the merits of Appellant’s claims.
Our well-settled standard of review is as follows:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
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[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 848 (Pa. Super. 2006) (citation omitted and formatting altered).
“[T]he trial court is required to consider the particular circumstances of
the offense and the character of the defendant,” including the defendant’s
“prior criminal record, age, personal characteristics, and potential for
rehabilitation.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.
Super. 2009) (citation omitted). This Court has held that “where the
sentencing judge had the benefit of a [PSI report], it will be presumed that he
or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Id. (citation omitted). This Court may only disturb a standard range
sentence if we find that the circumstances of the case rendered the application
of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).
Here, at the outset of the sentencing hearing, Appellant’s counsel
objected to “the reference to any [un]charge[d] or [un]prosecuted criminal
conduct” in the PSI report. N.T. Sentencing Hr’g, 10/25/21, at 5. In response,
the trial court stated: “Yeah, I won’t take that into consideration. . . . That’s
not a conviction and there’s been no disposition. So that’s not a factor in my
mind.” Id.. Ultimately, after considering testimony from Appellant,
Appellant’s witnesses, and arguments from counsel, the trial court explained:
When imposing sentence, there are a number of things, as the
lawyers know, that I must take into consideration: The facts of
the case, the nature and character and background of the
defendant, the sentencing guidelines, the impact upon the
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community, the defendant, the need to protect the community,
and, of course, your need for rehabilitation.
The facts of this case are clear. [Appellant and co-defendant,
along] with family members[,] were at Sesame Place during the
pandemic when people were required to wear masks. One might
suggest we should still be wearing them as some of you are.
In any event, Sesame Place was open. And I might add, the young
people working there, teenagers or college age, are there either
to make life better for themselves, notwithstanding the risks of
working at a park during a pandemic or because they had to and
because they wanted to go to college.
In any event, I might point out . . . all of them were quite polite
and respectful when they appeared here. And there’s nothing to
suggest that they were anything but that on the day of this
incident contrary to the testimony and inferences that the jury
was asked to draw.
For what it’s worth, I thought they all represented Sesame Place
appropriately, and I would consider hiring them myself if I were
in a position of authority of that institution. That’s how well I
thought they came across and how well they presented. And
clearly the jury believed what they had to say.
This was a violent, unprovoked assault on a defenseless teenager.
He was struck from behind with such force that his jaw was broken
on both sides. [His] teeth, I’m not sure if they were broken or
dislodged. But he continues to heal physically and emotionally
today, according to the presentence report. The injuries resulted
in physical and mental trauma. And that [Appellant] failed to
exercise remorse or accept responsibility.
Quite frankly, I think today he has demonstrated a level of
remorse and acceptance of responsibility that the probation officer
probably didn’t see. So I think that he’s to get some credit for
that.
So I have taken into account the facts. Of course, [Appellant and
co-defendant] left, and as was pointed out in the [PSI] report of
[co-defendant] having been trained in emergency medicine as an
EMT, she left and didn’t complete the report and didn’t remain to
provide a report. And we all recall the video of them running out
of the park trying to avoid apprehension. It was really clear to
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anyone who saw [it] that that’s exactly what they were trying to
do.
So I’ve taken into consideration the facts that were testified to at
trial and found presumably by the jury in its verdict. I have taken
into account the [PSI] report for each of them subject to the
objections of counsel.
But, nevertheless, the [PSI] reports have given me a complete
and thorough background, at least in my opinion it did.
[Appellant] has presented a number of witnesses, all of whom
testified quite well on his behalf, although I have to admit I am
somewhat perplexed by [his mother’s testimony that he helped
her get off drugs when] he sold drugs previously. But,
nevertheless, I have given him credit for the family support and
show of support that is in the courtroom today.
* * *
[The Sentencing Guidelines] recommend a sentence of 36 months
in the mitigated range, 48 to 66 months in the standard, and 78
in the aggravated range [for aggravated assault].
I have taken all of that into account as well as the impact it’s had
upon the victim. Of course, the impact upon the victim is
immeasurable. He at this point still continues to suffer from the
consequences of what took place that day, and I can’t emphasize
it enough. It was completely and unequivocally, at least in my
mind and the minds of the jury, unprovoked. You struck him from
behind. He could not even defend himself against a violent blow
to the face.
The need to protect the community I think is clear as well, and
the need for your rehabilitation is just as clear in my mind.
So I have taken all of those things into account. They’ve all been
testified to or covered by the [PSI] report and I believe have been
covered by the attorneys.
And lastly, before I forget . . . I have considered the victim impact
statements as well. In any event, the [PSI] report for [Appellant]
recommends a lengthy sentence of total confinement in the state
correctional institution. And as has been pointed out, the
guidelines for that offense recommend 48 to 66 months, and that
would be on count number [one, aggravated assault].
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Id. at 62-70.
In its Rule 1925(a) opinion, the trial court explained:
Appellant’s claim that this court erred in sentencing is meritless.
This court found that this was a “violent, unprovoked assault on a
defenseless teenager . . . [that] resulted in physical and mental
trauma.” N.T. Sentencing Hr’g, 10/25/21 at 64. [The v]ictim, a
seventeen-year-old child, was working at Sesame Place, in large
crowds in the middle of a pandemic, to further better his life when
he was struck from behind by Appellant, a forty-year-old grown
adult, which resulted in injuries that [the v]ictim is still trying to
heal from-over a year later. Id. at 63-64. This court found that
[the v]ictim had no chance to defend himself against Appellant’s
violent blow to [the v]ictim’s face and the impact of this assault
on [the v]ictim is immeasurable. Id. at 67. While this court did
take into consideration the fact that Appellant demonstrated a
level of remorse and acceptance of responsibility during
sentencing, this court found that remorse to be overdue, as
Appellant failed to show any sort of concern for [the v]ictim when
he immediately ran to leave the park after the assault. Id. at 64-
67. These reasons for sentencing were clearly outlined on the
record, despite Appellant’s unfounded and perplexing argument to
the contrary.
Accordingly, this court found a sentence of five to ten years in a
state correctional institution necessary to protect the public and
to rehabilitate Appellant. Appellant’s sentence is within the
standard range of his Sentencing Guidelines. This court did not
rely on improper factors, as Appellant asserts, but rather only
needed to rely on the egregious facts of the case, sentencing
guidelines, and additional circumstances as noted above.
Appellant’s assertions that this court abused its discretion in
sentencing are meritless.
Trial Ct. Op. at 17-18 (some formatting altered).
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Raven, 97 A.3d at 1253. The record reflects that the
trial court did not consider improper factors when imposing Appellant’s
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sentence. Instead, the trial court considered the PSI report, the appropriate
sentencing factors, and the mitigating evidence presented at the sentencing
hearing. See Ventura, 975 A.2d at 1135. Ultimately, the trial court
concluded that a standard-range sentence of five to ten years’ incarceration
was necessary in light of the impact of Appellant’s crimes and in order to
protect the public. Under these circumstances, we have no basis upon which
to conclude that the trial court’s application of the guidelines was “clearly
unreasonable.” See 42 Pa.C.S. § 9781(c)(2). Therefore, Appellant is not
entitled to relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2022
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