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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID T. DONES

                            Appellant                 No. 597 MDA 2016


           Appeal from the Judgment of Sentence November 3, 2015
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003653-2015


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 05, 2017

        David T. Dones appeals from the judgment of sentence, entered in the

Court of Common Pleas of Dauphin County, entered after a jury convicted

him of simple assault (M-2).1 After careful review, we affirm.

        The trial court aptly summarized the relevant facts of the case as

follows:

        Jaime Maldonado, a 68[-]year[-]old resident at 310 Hummel
        Street, Harrisburg, Pennsylvania[,] testified to the events that
        occurred on the evening of February 26, 2015. Mr. Maldonado is
        the step-grandfather to [Dones].       [Dones] lives with Mr.
        Maldonado. Mr. Maldonado and [Dones] had been drinking and
        talking in the kitchen when the two started to have a
        disagreement. Mr. Maldonado le[ft] the kitchen area and [went]
        to sit on the living room couch. [Dones] followed Mr. Maldonado
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2701(a)(1).
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        and started beating Mr. Maldonado up. Mr. Maldonado lost a
        tooth, had two black eyes, and had to get a stitch in his
        forehead. Mr. Maldonado remembers being repeatedly punched
        before being knocked unconscious. Mr. Maldonado was taken to
        the hospital where he was released after 3-4 hours.     The
        Commonwealth also introduced photographs of Mr. Maldonado
        when he was in the hospital.

        Juana Rivera, whose step-grandfather is Mr. Maldonado, also
        testified that she saw [Dones] repeatedly hitting Mr. Maldonado
        in the face. Ms. Rivera was upstairs attending to her
        grandmother when she heard some commotion downstairs.
        When she went downstairs, she saw Mr. Maldonado “on the sofa
        laid out flat. He was cold. There was blood all over. His face
        was swollen, blood all over.” Ms. Rivera testified that [Dones]
        was screaming and yelling that “[Mr. Maldonado] needs to
        respect me.” Finally, Ms. Rivera testified that there were no
        bruises or injuries on [Dones’] face. The final witness to testify
        for the Commonwealth was Officer Marchand Pendelton. When
        Officer Pendelton arrived on the scene, [Dones] was standing
        there with his hands in the air holding his identification. Officer
        Pendelton could see facial injuries on Mr. Maldonado but could
        not see any bruises on [Dones’] face.

        The defense offered Mr. Dones’ testimony. [Dones] testified to
        his version of the events and that it was Mr. Maldonado who
        “came at me” and that he was in [“]defense mode.” On cross-
        examination, the Commonwealth introduced a picture of [Dones]
        after the incident.

Trial Court Opinion, 12/6/16, at 2-4 (footnotes and citations to record

omitted).

        After a two-day jury trial, Dones was convicted of simple assault 2 and

sentenced to serve 4 to 24 months in prison and to pay the costs of

prosecution and a $200 fine.          He filed timely post-sentence motions that

were denied by operation of law.           See Pa.R.Crim.P. 720(B)(3)(b). Dones
____________________________________________


2
    Dones was acquitted of public drunkenness. 18 Pa.C.S. § 5505.



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filed a timely notice of appeal, in which he raises the following issues for our

review:



       (1) Did not the lower court abuse its discretion by failing to grant
       [Dones] a new trial on the basis that the guilty verdict . . . [was]
       against the weight of the evidence?

       (2) Did not the court err in refusing to instruct the jury[3] as
       requested by the Defendant on the legal points set forth in
       section 3.18 of Pennsylvania Suggested Standard Criminal Jury
       Instructions, which addresses the manner in which the jurors
       should exercise restraint in reviewing inflammatory photographs
       that were admitted at trial?

       (3) Was the imposition of an aggregate sentence of one year,
       ten months, to nine years, clearly unreasonable, so manifestly
       excessive as to constitute an abuse of discretion, and
       inconsistent with the protection of the public, the gravity of the
       offenses, and defendant’s rehabilitative needs where the court
       imposed consecutive jail sentences both of which were in the
       aggravated range of the sentencing guidelines.




____________________________________________


3
 In Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013), our
Court stated:

       In reviewing a challenge to the trial court’s refusal to give a
       specific jury instruction, it is the function of [the appellate] court
       to determine whether the record supports the trial court’s
       decision. In examining the propriety of the instructions a trial
       court presents to a jury, [the appellate court’s] scope of review
       is to determine whether the trial court committed a clear abuse
       of discretion or an error of law which controlled the outcome of
       the case.

Id. at 667.




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        In his first issue, Dones argues that his simple assault4 conviction is

against the weight of the evidence where there was no independent witness

to the incident, he struck the victim in self-defense, and the victim’s

testimony “was hampered by severe inconsistencies.” Appellant’s Brief, at

37.

        We review a trial court’s decision in not ordering a new trial for an

abuse of discretion. Commonewealth v. Olsen, 82 A.3d 1041, 1049 (Pa.

Super. 2013).       We cannot assess witness credibility, because the jury is

entitled to believe all, some, or none of the witnesses' testimony.            Id.

Moreover,

        [t]he trial court will only award a new trial when the jury’s
        verdict is so contrary to the evidence as to shock one’s sense of
        justice. In turn, we will reverse a trial court's refusal to award a
        new trial only when we find that the trial court abused its
        discretion in not concluding that the verdict was so contrary to
        the evidence as to shock one’s sense of justice. In effect, the
        trial court’s denial of a motion for a new trial based on a weight
        of the evidence claim is the least assailable of its rulings.




____________________________________________


4
    Simple assault is defined in our Crimes Code as:

        (a) Offense defined. — Except as provided under section 2702
        (relating to aggravated assault), a person is guilty of assault if
        he:

           (1)   attempts to cause or intentionally, knowingly or
           recklessly causes bodily injury to another[.]

18 Pa.C.S. § 2701(a)(1).



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Id. (internal quotations and citations omitted).     Moreover, with regard to

self-defense:

      The use of force against a person is justified when the actor
      believes that such force is immediately necessary for the
      purpose of protecting himself against the use of unlawful force
      by the other person. See 18 Pa.C.S. § 505(a). When a
      defendant raises the issue of self[-]defense, the Commonwealth
      bears the burden to disprove such a defense beyond a
      reasonable doubt. While there is no burden on a defendant to
      prove the claim, before the defense is properly at issue at trial,
      there must be some evidence, from whatever source, to justify a
      finding of self[-]defense. If there is any evidence that will
      support the claim, then the issue is properly before the fact
      finder.

Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa. Super. 2003).

      At trial, the victim testified that Dones came in to the living room and

began “beating [him] up” with his closed fists “all over [his] face.” N.T. Jury

Trial, 10/27/15, at 25-26.       The victim testified that Dones eventually

“knocked [him] out” and that he was in pain after the incident. Id. at 26.

The victim required emergency room care, which included a stitch to his

forehead; he also suffered two black eyes and lost a tooth from the incident.

Moreover, Rivera, the victim’s granddaughter, testified that she witnessed

Dones “hitting [the victim]” and that she asked Dones to stop because she

“thought [Dones] had killed [the victim] because he was completely [out] . .

. out. He was bleeding all over the place.” Id. at 48-49. Rivera testified

that Dones “was on top of the [victim] . . .[l]eaning against [him] . . . hitting

him, just hitting him . . . using both fists.” Id. at 50-52.




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J-S87046-16



      Dones, on the other hand, testified that he and the victim got into a

heated argument and that the victim “basically came at [him] and . . .

[Dones] attempted to stop him [and he] couldn’t stop [him so] that’s when

[Dones] actually went in motion and . . . had no choice but to put hands on

him and hit him back.” Id. at 98-100.

      Instantly, the Commonwealth presented ample evidence that the

victim sustained bodily injuries, while Dones exhibited few to no injuries

after the incident.   See 18 Pa.C.S. § 2701(a)(1) (“a person is guilty of

assault if he attempts to cause or intentionally, knowingly or recklessly

causes bodily injury to another.”). Based on the evidence, the jury, as fact-

finder, chose to believe the Commonwealth’s version of events over that of

Dones and to disbelieve his claim of self-defense. Reynolds, supra. The

jury was in the best position to assess the credibility of the witnesses’

testimony.     Because the record supports the jury’s verdict, the trial court

did not abuse its discretion in denying a new trial based on a weight of the

evidence challenge.

      In his second issue on appeal, Dones contends that the trial court

improperly refused to give the jury a cautionary instruction regarding

inflammatory photographs of the injuries suffered by the victim that were

admitted at trial.

      When considering the admissibility of photographs of a victim, which

by their very nature can be unpleasant, disturbing, and even brutal, the trial

court must engage in a two-step analysis:

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     First a [trial] court must determine whether the photograph is
     inflammatory. If not, it may be admitted if it has relevance and
     can assist the jury's understanding of the facts. If the
     photograph is inflammatory, the trial court must decide whether
     or not the photographs are of such essential evidentiary value
     that their need clearly outweighs the likelihood of inflaming the
     minds and passions of the jurors.

Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation

omitted). In order to render a photograph inflammatory, the depiction must

be of such a gruesome nature or be cast in such an unfair light that it would

tend to cloud an objective assessment of the guilt or innocence of the

defendant. Commonwealth v. Hubbard, 372 A.2d 687, 697 (Pa. 1977).

However, “[t]he fact that blood is visible does not necessarily require a

finding that a photograph is inflammatory.” Commonwealth v. Lewis, 567

A.2d 1376, 1382 (Pa. 1989).       Moreover, “[c]urative instructions are not

always necessary, or even desirable. A court must assure a defendant a fair

trial. A judge has discretion to give or not give curative instructions.”

Commonwealth v. Pezzeca, 749 A.2d 968, 971 (Pa. Super. 2000).

     Instantly, the court admitted into evidence two photographs depicting

the victim after the assault.   The photographs depict the bloody forehead

and bruised and swollen face of the victim immediately after his altercation

with Dones. The court found that the photographs were not inflammatory in

nature, were highly probative as they directly related to the requisite

elements of simple assault, and they established that Dones “recklessly

caused bodily injury to another.” Trial Court Opinion, 12/6/16, at 4-5.




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       While    the   photographs    may    be   considered    by    some    to   be

inflammatory in nature, they are clearly relevant to show the injuries

sustained by the victim at the hands of Dones. Here, we find that the trial

judge did not abuse his discretion by failing to give the jury a curative

instruction regarding the photographs.       While the pictures depicted blood

and bruises on the victim’s face, they were not so inflammatory that the jury

could not objectively weigh their value and arrive at a just verdict.

Sandusky, supra (trial court not required to give every charge requested

by parties and its refusal to give requested charge does not require reversal

unless defendant was prejudiced by refusal).

     In his final issue on appeal, Dones contends that the trial court’s

sentence is inappropriate where “the imposition of consecutive sentences . .

. was so manifestly excessive as to constitute an abuse of discretion.”

Appellant’s Brief, at 24. He also contends that the court focused solely on

the nature of the criminal conduct and discounted a mitigating factor, his

mental health condition.

     Our standard of review when a defendant challenges the discretionary

aspects of a sentence is very narrow.         We will reverse only where the

defendant      has    demonstrated    a     manifest   abuse        of   discretion.

Commonwealth v. Hermanson, 674 A.2d 281, 283 (Pa. Super. 1996).

However,

     [t]he right to appellate review of the discretionary aspects of a
     sentence is not absolute and must be considered a petition for
     permission to appeal. An appellant must satisfy a four-part test

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     to invoke the appellate court's jurisdiction when challenging the
     discretionary aspects of a sentence. The court conducts a four-
     part analysis to 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
     appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), citing

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super.

2014).

     Here, Dones filed a timely notice of appeal from his judgment of

sentence, preserved his discretionary aspect of sentence claim in a timely

post-sentence motion, and included a Pa.R.A.P 2119(f) statement in his

appellate brief. Therefore, we must determine whether he has presented a

substantial question to invoke our appellate review.

     While a challenge to the imposition of consecutive rather than

concurrent sentences typically does not present a substantial question

regarding the discretionary aspects of sentence, Zirkle, supra, we have

recognized that a sentence can be so manifestly excessive in extreme

circumstances that it may create a substantial question.   Commonwealth

v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010). Moreover, a claim that

a court imposed a sentence in the aggravated range without considering

mitigating circumstances constitutes a substantial question as to the

discretionary aspect of sentencing. See Commonwealth v. Felmlee, 828

A.2d 1105 (Pa. Super. 2003) (en banc).      A claim that a sentencing court



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relied    on   impermissible     factors       also   raises   a   substantial   question.

Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006). Thus, we

conclude that Dones has presented a substantial question.

         The trial court chose to run Dones’ aggravated-range sentence for

simple     assault (4-24     months) consecutively to              his   aggravated-range

aggravated assault sentence (1½-7 years) in an unrelated case.5 The trial

court stated its reasons for sentencing on the record as follows:

         Even though it does not appear that there are any convictions,
         again, there are repeated arrests and many of them are for
         batteries. One is for first-degree murder. Apparently, you were
         acquitted or it was dismissed – one or the other – but there just
         seems to be one episode after the other and it is of some
         concern. You arrived in the Harrisburg area and immediately got
         yourself involved in three different criminal episodes that
         resulted in you standing here today. And, again, it just goes to
         speak to this level of violence. This continuation of violence
         doesn’t stop. And you say it’s because, well, you were off your
         medication and so forth. But I think that particular excuse only
         takes you so far. And it seems to me that an appropriate
         sentence would be to a state correctional institution.

N.T. Sentencing Hearing, 11/3/15, at 11. In his Rule 1925(a) opinion, the

Honorable President Judge Richard A. Lewis further expounded upon why he

sentenced Dones to two aggravated-range sentences and ran them

consecutively:

         [Dones] has a disturbing past that is riddled with . . . violent
         behavior. . . . This continuation of violence does not appear to
         end. Additionally, [Dones] shows no remorse whatsoever. This
____________________________________________


5
  That case, which involved a completely distinct set of charges and a
separate jury trial, is also on appeal at 708 MDA 2016.



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      is troubling as [Dones] continues to act in an aggressive manner
      towards others. . . . [Dones] displayed actions of total disregard
      to his step-grandfather.     He repeatedly punched his step-
      grandfather in the head.          Additionally, in taking into
      consideration [Dones’] rehabilitative needs, this [c]ourt noted
      that [Dones] has been on and off his medication and continues
      to use that as an excuse to engage in violent behavior. This
      court believes that that particular excuse only carries so much
      weight and has run its course. As such, the [c]ourt fashioned a
      sentence that takes into consideration the protection of the
      public, the gravity of the offenses, and [Dones’] rehabilitative
      needs.

Trial Court Opinion, 12/6/16, at 9.

      In determining Dones’ sentence, the court carefully considered the

factors set out in 42 Pa.C.S. § 9721(b), that is: the protection of the public,

gravity of offense in relation to impact on victim and community, and

rehabilitative needs of Dones. Furthermore, as trial judge, President Judge

Lewis had wide discretion in sentencing and “can, on the appropriate record

and for the appropriate reasons, consider any legal factor in imposing a

sentence in the aggravated range.” Commonwealth v. Stewart, 867 A.2d

589, 593 (Pa. Super. 2005) (citation omitted). A defendant’s prior arrests

are   a   proper   factor   to   consider   in   fashioning   a   sentence.   See

Commonwealth v. Allen, 489 A.2d 906 (Pa. Super. 1985). Here, the court

looked at an FBI report detailing Dones’ out-of-state arrests and criminal

dispositions. N.T. Sentencing Hearing, 11/3/15, at 4-5. Moreover, the court

acknowledged the fact that Dones had significant mental health issues, but

found that his failure to consistently take his medications did not outweigh

the need to protect society from his violent behaviors. Accordingly, we find



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that the trial court did not abuse its discretion in sentencing Dones.

Hermanson, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017




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