J-A05039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

THOMAS EUGENE WALTEMYER,

                            Appellant                    No. 975 EDA 2015


           Appeal from the Judgment of Sentence November 18, 2014
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000953-2013


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED APRIL 08, 2016

        Appellant Thomas Eugene Waltemyer appeals the judgment of

sentence entered on November 18, 2014, by the Honorable Jonathan Mark

in the Court of Common Pleas of Monroe County. Following a review of the

record, we affirm.

        The trial court aptly detailed the facts and procedural history herein as

follows:

              The charges in this case stem from incidents of domestic
        violence in which [Appellant] assaulted his wife, Anna
        Airepetian.[1] On November 30, 2012, [Appellant] and Ms.
        Airepetian were having a dispute via text message where insults
        were being hurled at one another. After returning to the house
        the couple shared, Ms. Airepetian went to sleep in her son's
        bedroom. There, Defendant attacked Ms. Airepetian by grabbing
        her hair and repeatedly slamming her head into a wall.
____________________________________________


1
    In the record and trial transcripts, the victim’s name is spelled Airapetian.



*Former Justice specially assigned to the Superior Court.
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     Defendant continued his attack by choking Ms. Airepetian.
     Following this attack, Ms. Airepetian attempted to flee but after
     things had briefly calmed down, she returned to the house for
     her son.
            The next day, while [Appellant] was out hunting, Ms.
     Airepetian attempted to gather some items and leave the house.
     While she was searching for her cell phone, [Appellant] returned
     to the house. The two began arguing in the kitchen, and
     [Appellant] placed Ms. Airepetian in a martial arts-style hold and
     slammed her to the ground again.
            After this second incident, Ms. Airepetian left the house
     and went to the Lehighton Barracks of the Pennsylvania State
     Police. There, she reported to troopers what had happened, and
     the police took pictures of her injuries including bruising around
     her neck. [Appellant] came to the police barracks where he was
     arrested and charged with Aggravated Assault, Simple Assault,
     and Harassment.
            After much delay due to defense counsel's involvement in
     a long federal criminal proceeding in New Jersey, a jury trial was
     convened in this case on August 19, 2014.
            Immediately    before    the   trial   began,   a   hearing
     ("Suppression Hearing") was held on a motion in limine filed by
     the Commonwealth and a motion to suppress filed by
     [Appellant]. (N.T., 8l19/2014, pp. 2- 1). During this hearing, the
     Commonwealth called one of the arresting state troopers, a
     defense exhibit was identified, and the attorneys argued their
     respective positions. At the conclusion of the hearing, we issued
     an order denying [Appellant’s] motion to suppress and grating
     [sic] in part and denying in part the Commonwealth's motion in
     limine. (Id. at 35-36; Order dated August 19, 2014). We ruled
     that [Appellant] would not be allowed to present evidence of
     medications that Ms. Airepetian was allegedly taking for
     supposed mental health issues purportedly relating to an
     abortion. We also barred any mention of the alleged abortion.
     (Id. at 30-40; Order dated August 19, 2014). In doing so, we
     summarized our reasoning on the record. (Id. at 25-26, 30-34,
     and 39-40). We incorporate our on-record statements and
     reasoning into this opinion by reference.
            After the hearing ended, the trial commenced. On August
     21, 2014, the jury found [Appellant] guilty of simple assault and
     harassment. The jury was a hung [sic] on the Aggravated
     Assault charge. After the verdict was entered, a sentencing
     hearing was scheduled and a Pre-Sentence Investigation ("PSI")
     report was ordered.

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            On November 18, 2014, after a continuance granted at the
     request of [Appellant], the sentencing hearing was convened. At
     the conclusion of the hearing, [Appellant] was sentenced to one
     to two years, less a day, in the Monroe Country Correctional
     Facility, a sentence in the standard range.1
            At the sentencing hearing, [Appellant] did not contest any
     of the information contained in the PSI report, including his
     classification as a Repeat Felon for sentencing purposes. (N.T.,
     11/18/2014, pp. 3-4 and 22-23), [Appellant] and his attorney
     both addressed the Court. In addition, they presented Exhibits,
     including evaluations that were performed on [Appellant] in New
     York as part of a custody case, which were admitted and
     reviewed by the Court before sentence was imposed. In
     summary, [Appellant] and his attorney asked the Court for
     leniency and a sentence that would deviate below the mitigated
     range on the basis that most of [Appellant’s] history that earned
     him the Repeat Felon status occurred more than twenty years
     ago while he was a young adult. (Id. at 2-15).
            The assistant district attorney also addressed the Court
     and introduced exhibits. He asked that we adopt the sentence of
     eleven and one-half to twenty-three months recommended in
     the PSI report, pointing to the facts of the case, the impact on
     the victim, and [Appellant’s] Repeat Felon status. (Id. at 15-22).
            Thereafter, we informed [Appellant] of the information we
     considered and explained our reasons for imposing the sentence
     we ordered. We advised [Appellant] that the sentence was based
     on the record and file in this case, the facts presented during
     trial, the comprehensive PSI report that had been prepared by
     our Probation Office, the statements made by [Appellant] his
     attorney, and the assistant district attorney during the
     sentencing hearing, the exhibits presented at time of sentencing,
     and the applicable sentencing laws, rules, and guidelines. We
     then stated our reasons on the record. (Id. at 22-29; PSI
     Report). We incorporate our on- record statements and
     reasoning into this opinion by reference.
            On November 20, 2014, [Appellant] filed a post-sentence
     motion raising the same issues that he presents in this appeal. A
     hearing on the motion was convened on March 30, 2015. At the
     conclusion of the hearing, we entered an order denying the
     motion. (NT., 3/30/2015, pp. 30-31; Order dated March 30, 2-
     15). During the hearing, we articulated our reasons for denying
     the motion on the record. In doing so, we referenced and
     incorporated the rulings and reasoning we expressed during the


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      Suppression Hearing, the trial, and the sentencing hearing.
      (N.T., 3/30/2015, pp. 2-3, 11-32; Order dated March 30, 2015).
      We incorporate our on-record statements and reasoning into this
      Opinion by reference.
      _______
      1
        [Appellant] is a Repeat Felon for sentencing purposes. As a
      result, the standard range sentence is one to two years, a state
      sentence that is also the statutory maximum. If imposed, this
      sentence would have required [Appellant] to serve his time in a
      state correctional facility. Since [Appellant] was sentenced to
      one year less a day to two years less a day, to be served in a
      county correctional facility, the sentence was technically a
      mitigated range sentence.

Trial Court opinion, filed 6/2/15, at 1-4.

      On April 6, 2015, Appellant filed his notice of appeal, and on that same

date the trial court ordered Appellant to file a concise statement of the

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

complied and raised therein seven assignments of error.

      In his appellate brief, Appellant presents the following two questions

for our review:


                                       A.
      Whether the trial court rulings and jury instructions which served
      to permit the jury to render a guilty verdict on the offenses
      charged in the Information based on uncharged criminal conduct
      deprived Appellant of his constitutional rights to not be convicted
      for [sic] an offense for which he was not charged, and his
      constitutional rights to not be convicted of any offense on a less
      than unanimous verdict?
                                       B.
      Whether the trial court’s guideline sentence of 12 to 24 months
      (less one day) based primarily on Appellant’s criminal history
      category of RFEL (repeat felon) which category was based on 24
      year old convictions was unreasonable and inappropriate,
      especially in light of highly favorable individual factors to which
      the court failed to give due weight and consideration?

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Brief for Appellant at 3.

      Appellant first maintains the trial court unlawfully amended or allowed

the Commonwealth to unlawfully amend the Criminal Information and erred

in failing to instruct the jury to disregard any evidence related to the incident

that occurred in the couple’s kitchen on December 1, 2012.             Appellant

stresses that he does not challenge the validity of the Information but rather

the trial court’s instruction to the jury.   He maintains that as the Criminal

Information solely charged him with the “bedroom” assault, the trial court’s

instruction directing the jury to consider the “kitchen” assault as a basis for

finding Appellant guilty deprived him of his due process right to fair trial and

a unanimous verdict on the crimes charged in the information in that it had

effectively added three additional charges to the information.         Brief for

Appellant at 6, 10, 20.     Appellant states that in viewing this issue as one

which challenges the validity of the Information, the trial court’s analysis in

its Pa.R.A.P. 1925(a) opinion is illustrative of its “utter failure to understand

the issue raised by Appellant at trial and on appeal.” Brief for Appellant at

20-21. Upon our review of the record, we disagree.

      In Commonwealth v. Conaway, 105 A.3d 755 (Pa.Super. 2014),

this Court recently reiterated the well-established purpose of an Information

or an Indictment as follows:

      The purpose of an [i]nformation or an [i]ndictment is to provide
      the accused with sufficient notice to prepare a defense, and to
      ensure that he will not be tried twice for the same act.

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     Commonwealth v. Ohle, [ ] 470 A.2d 61, 73 (Pa. 1983);
     Commonwealth v. Diaz, [ ] 383 A.2d 852 (Pa. 978);
     Commonwealth v. Rolinski, [ ] 406 A.2d 763 (Pa. Super.
     1979). An [i]ndictment or an [i]nformation is sufficient if it sets
     forth the elements of the offense intended to be charged with
     sufficient detail that the defendant is apprised of what he must
     be prepared to meet, and may plead double jeopardy in a future
     prosecution based on the same set of events. Commonwealth
     v. Bell, [ ] 516 A.2d 1172, 1177 (Pa. 1986); Commonwealth
     v. Ohle, [ ] 470 A.2d 61, 73 (Pa. 1983); Russell v. United
     States, 369 U.S. 749[ ] (1962); [s]ee Pa.R.Crim.P. 225(b). This
     may be accomplished through use of the words of the statute
     itself as long as “those words of themselves fully, directly, and
     expressly, without any uncertainty or ambiguity, set forth all the
     elements necessary to constitute the offense intended to be
     punished.” Hamling v. United States, 418 U.S. 87[ ](1974),
     quoting, United States v. Carll, 105 U.S. 611, 612[ ] (
     [1881]). Id. at 764, citing Commonwealth v. Alston, 651 A.2d
     1092, 1095–96 (Pa. 1994). Moreover, while the information shall
     contain “the official or customary citation of the statute and
     section thereof ... that the defendant is alleged to have violated
     [,] ... the omission of or error in such citation shall not affect the
     validity or sufficiency of the information.” Id. at (C).


Id. at 764 citing Commonwealth v. Alston, 651 A.2d 1092, 1095-96 (Pa.

1994).

     Herein, the Criminal Complaint provided in pertinent part:

     Aggravated Assault
     Acts of the accused associated with this Offense:

           IN THAT, on or about said date, [APPELLANT] did attempt
     to cause or did intentionally, knowingly or recklessly cause
     serious bodily injury to his wife (Anna Levonauna AIRAPETIAN)
     under circumstances manifesting extreme indifference to the
     value of human life, that is to say [APPELLANT] did grab the
     victim by the hair and smash her head against a wall causing a
     lump behind the right ear. [APPELLANT] then through [sic] the
     victim on the ground and was choking her causing her to
     temporarily lose [sic] conciousness [sic], in violation of section
     2702(a)(1) of the PA Crimes Code.

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                                  ***
      Simple Assault
      Acts of the accused associated with this Offense:

            IN THAT, on or about said date, [APPELLANT] did attempt
      to cause or did intentionally, knowingly or recklessly cause
      serious bodily injury to his wife (Anna Levonauna AIRAPETIAN)
      under circumstances manifesting extreme indifference to the
      value of human life, that is to say [APPELLANT] did grab the
      victim by the hair and smash her head against a wall causing a
      lump behind the right ear. [APPELLANT} then through [sic] the
      victim on the ground and was choking her causing her to
      temporarily lose [sic] conciousness [sic], in violation of section
      2701(a)(1) of the PA Crimes Code.
                                    ***
      Harassment
      Acts of the accused associated with this Offense:

             IN THAT, on or about said date, [APPELLANT], with intent
      to harass, annoy or alarm another person, namely (VICTIM), did
      strike, shove kick or otherwise subject such other person to
      physical contact, or did attempt or threaten to do the same, in
      that [APPELLANT] did grab the victim by the hair and smash her
      head against a wall causing a lump behind the right ear.
      [APPELLANT] then through [sic] the victim on the ground and
      was choking her causing her to temporarily lose conciousness
      [sic], in violation of Section 2709(a)(1) of the PA Crimes Code.

Criminal Complaint, 12/1/12, at 3-4.

      The Amended Criminal Information was filed on May 28, 2013, and

states:

                                   Count 1

      On or about December 1, 2012 in the County of Monroe, Eldred
      Township, Pennsylvania, [Appellant] attempted to cause serious
      bodily injury to another, or caused such injury intentionally,
      knowingly or recklessly under circumstances manifesting
      extreme indifference to the value of human life, to wit: struck
      Anna Airapetian, threw her against a wall, repeatedly struck her
      head against a wall and choked her.

                                    -7-
J-A05039-16



     AGGRAVATED ASSAULT
     18 Pa.C.S. § 903(A)(1)
     F1
                                 Count 2

     On or about December 1, 2012 in the County of Monroe, Eldred
     Township, Pennsylvnaia,[sic] [Appellant] attempted to cause or
     intentionally, knowingly or recklessly caused bodily injury to
     another, to wit: struck Anna Airpetian, [sic] threw her against a
     wall, repeatedly struck her head against a wall and choked her.

     SIMPLE ASSAULT
     18 Pa.C.S. § 2701a1
     M2

                                 Count 3

     On or about December 1, 2012 in the County of Monroe, Eldred
     Township, Pennsylvania, [Appellant] with intent to harass, annoy
     or alarm another person struck, shoved, kicked or otherwise
     subjected said person to physical contact, or attempted or
     threatened to do the same, to wit: struck Anna Airpetian, [sic]
     threw her against a wall, repeatedly struck her head against a
     wall and choked her.

     HARASSMENT/STRIKE, SHOVE, KICK, ETC.
     18 Pa.C.S. § 2709A1
     S

Amended Criminal Information, filed 5/28/13.

       In the Criminal Complaint, Appellant was charged with one count

each of the aforementioned crimes for events “on or about” November 30,

2012, and the Criminal Information specifically referred to events “[o]n or

about December 1, 2012,” the date upon which the encounter occurred in

the kitchen. The allegations as set forth therein provided Appellant with

sufficient notice to prepare a defense at trial in that each element of the


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J-A05039-16


crime was explained and the citations for the charged crimes were listed.

Conaway, supra. Indeed, both the record and Appellant’s appellate brief

are replete with evidence that he was apprised of the charges he needed to

defend at trial.

      From the outset of the case, the Commonwealth represented that

Appellant’s charges arose following events that occurred on the evening of

November 30, 2012 and on the morning of December 1, 2012.          A review of

the transcripts from the preliminary hearing held on April 15, 2013, reveals

Appellant never objected to Ms. Airapetian’s testimony concerning the

December 1, 2012, confrontation. To the contrary, defense counsel

repeatedly referenced the assaults in terms of two incidents and even asked

Ms. Airapetian to clarify that her testimony described two, separate

incidents. N.T., 4/15/13, at 12, 14.     Similarly, while he filed an omnibus

pretrial motion on January 22, 2014, Appellant challenged therein only

certain incriminating statements, not any anticipated reference to two,

separate incidents at trial.   He also never averred such testimony would

result in an unlawful amendment to the Information in violation of his

federal or state constitutional due process rights.

      Moreover, in his appellate brief Appellant explains that as is evident in

his opening statement and closing argument at trial, his theory of the case

was that Ms. Airapetian was emotionally unstable during the time which

preceded “the incidents” on November 30, 2012, and December 1, 2012,


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J-A05039-16


and it was that instability which provoked the “confrontations” on those

dates.    In this regard, he specifically states that the contact between Ms.

Airapetian and him on December 1, 2012, was the result of his attempting to

restrain her when she attacked him with a meat tenderizer.              Brief for

Appellant at 5-6.     Furthermore, Appellant acknowledges that he asked the

trial court to provide the jury with a self-defense instruction for the assault

in the kitchen on December 1, 2012.         Brief for Appellant at 9 citing N.T.,

8/21/14, at 2-8.

       Furthermore,    at   trial   Appellant   vigorously   cross-examined   Ms.

Airapetian regarding both encounters, presented his own testimony and that

of other witnesses concerning both assaults, and introduced a physical

exhibit related to the kitchen assault- a meat tenderizer.       It was not until

both sides had rested that Appellant raised a constitutional challenge to the

trial court’s jury instruction.     In fact, he acknowledges in his brief that

“following the close of evidence defense counsel requested the court prohibit

the Commonwealth attorney from arguing the facts of the second incident . .

. .”   Brief for Appellant at 15-16.

       This Court is hard pressed to discern how Appellant can both admit

that it was he who requested that the trial court provide a self-defense

instruction for the December 1, 2012, confrontation in the kitchen (which

the trial court accordingly supplied) and at the same time challenge that

instruction as creating an illegal amendment of the Information in violation


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J-A05039-16


of his right to due process.            It appears that it is Appellant who has

misconstrued the essence of the first claim he has presented for this Court’s

review, for in arguing it is not one of notice, he ignores that this is precisely

the purpose a criminal information serves. Clearly, from the outset of the

matter the two confrontations were treated as part of the same incident that

led to the three counts initially brought against Appellant; thus, he was

apprised of and vigorously defended his actions on November 30-December

1, 2012, which led to those charges.2          Accordingly, we find that Appellant

was provided with sufficient notice to prepare a defense to the crimes of

aggravated assault, simple assault and harassment; therefore, his first issue

is meritless.

       Appellant’s second claim presents a challenge to the discretionary

aspects of his sentence, and one’s right to appeal the discretionary aspects

of his sentence is not absolute. See Commonwealth v. McAfee, 849 A.2d

270, 274 (Pa.Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). To

reach the merits of a discretionary issue, this Court must determine:


       (1)    whether appellant has filed a timely notice of appeal; (2)
              whether the issue was properly preserved at sentencing or
              in a motion to reconsider and modify sentence; (3)
              whether appellant's brief has a fatal defect; and (4)
              whether there is a substantial question that the sentence

____________________________________________


2
 It is noteworthy that the jury was hung as to the most serious charge of
aggravated assault.



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            appealed from is not appropriate under the Sentencing
            Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011)

(footnotes and citation omitted).

      Herein, Appellant filed a timely notice of appeal as well as a timely

post-sentence motion and has included the requisite Statement of Reasons

for Allowance of Appeal from Discretionary Aspects of Sentence pursuant to

Rule 2119(f) in his appellate brief. Brief for Appellant at 21-23. Therefore,

he is in technical compliance with the requirements to challenge the

discretionary aspects of his sentence, and we may proceed to determine

whether he has presented a substantial question that his sentence is not

appropriate under the Sentencing Code. Commonwealth v. Edwards, 71

A.3d 323, 330 (Pa.Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013).

      A substantial question will be found where the defendant
      advances a colorable argument that the sentence imposed is
      either inconsistent with a specific provision of the [sentencing]
      code or is contrary to the fundamental norms which underlie the
      sentencing process. We determine whether a particular case
      raises a substantial question on a case-by-case basis.
      Additionally, we cannot look beyond the statement of questions
      presented and the prefatory 2119(f) statement to determine
      whether a substantial question exists.

Commonwealth v. Christine, 78 A.3d 1, 10-11 (Pa.Super. 2013) (internal

quotations and citations omitted).

      Herein, in both his “Motion for Post Verdict Relief and/or for

Reconsideration of Sentence” and in his “Statement of Matters Complained

of on Appeal Pursuant to Pa.R.A.P. 1925(B)” Appellant argues simply that:

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J-A05039-16


      Considering the characteristics of the Appellant and the
      circumstances of the Appellant’s conduct in this matter, the
      Court’s sentence is excessive as a matter of law and fact and
      imposed a punishment significantly greater than necessary to
      accomplish the purposes of sentencing.

See Motion for Post Verdict Relief and/or for Reconsideration of Sentence at

4; Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P.

1925(B) at ¶ 5.

      In his Rule 2119(f) statement, Appellant contends that his sentence,

which had been within the range of that allowable under the Sentencing

Guidelines,    was      unreasonable    and   inappropriate        because       it   did   not

sufficiently consider Appellant’s prior criminal record and personal situation;

he was characterized as a repeat felon based upon offenses he had

committed twenty-four years earlier when he was eighteen years old, a

misdemeanor assault in 1990, and tattooing a minor (M-3) in 1997).

Appellant     further    avers   “the   guideline       range   greatly    overstated       the

significance of [Appellant’s] criminal history-so much so that the Presentence

Report recommended sentencing in the mitigated range.” Brief for Appellant

at 22-23.

      This Court has repeatedly held that allegations the trial court failed to

consider particular circumstances or factors in an appellant's case do not

raise a substantial question as they go to the weight accorded to various

sentencing     factors.    Commonwealth            v.   Griffin,   65     A.3d    932,      936

(Pa.Super. 2013); accord Commonwealth v. Cannon, 954 A.2d 1222,


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1228–1229 (Pa.Super. 2008). In addition, this Court has held that an

argument that the trial court failed to consider certain mitigating factors in

favor of a lesser sentence does not present a substantial question

appropriate for our review. Commonwealth v. Ratushny, 17 A.3d 1269,

1273 (Pa.Super. 2011); accord Commonwealth v. Moury, 992 A.2d 162,

171 (Pa.Super. 2010).      Furthermore, Appellant does not set forth the

specific provision of the Sentencing Code or the fundamental norm

underlying the sentencing process the trial court allegedly violated.

Consequently, Appellant does not appear to have raised a substantial

question for our review. See Christine, supra (compare Commonwealth

v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003)(finding a contention

that a trial court misconstrued a prior record score raises a substantial

question)).

      Assuming, arguendo, Appellant has presented a substantial question

warranting our review, he would not be entitled to relief.       Despite the

recommendations set forth in the Sentencing Guidelines, trial courts retain

broad discretion in sentencing matters and may sentence a defendant

outside of those Guidelines. “The only line that a sentence may not cross is

the statutory maximum sentence.” Commonwealth v. Yuhasz, 923 A.2d

1111, 1119 (Pa. 2007) (citation omitted). In addition, the trial court had the

benefit of a presentence investigation report herein, and in such cases, this

Court has stated that “we can assume the sentencing court was aware of


                                    - 14 -
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relevant information regarding the defendant's character and weighed those

considerations along with mitigating statutory factors.” Moury, supra at

171.

       The trial court handed down a sentence within the standard range of

the sentencing guidelines and in doing so fully and adequately set forth the

reasons for its sentence. See N.T., 11/18/14, at 22-29; N.T., 3/30/15, at

24-27; Trial Court Opinion, filed 6/9/15 at 13-20.    Thus, even were we to

reach the merits of the issue, we would find the trial court did not abuse its

discretion.   See Commonwealth v. Austin, 66 A.3d 798, 809-10

(Pa.Super. 2013). For the foregoing reasons and after a careful review of

the entire record, we affirm Appellant’s judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2016




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