J-S18036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MARK A.A. CLIETT

                                 Appellant             No. 187 EDA 2016


           Appeal from the Judgment of Sentence November 6, 2012
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0013972-2011

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 26, 2017

        Appellant, Mark A.A. Cliett, appeals from the judgment of sentence of

eight to twenty years’ imprisonment entered in the Philadelphia County

Court of Common Pleas following his conviction for, inter alia, aggravated

assault.1 Appellant challenges the discretionary aspects of the sentence and

the sufficiency of the evidence. We affirm.

        The trial court summarized the evidence presented at trial as follows:

              At approximately 2:00 a.m. on September 28, 2011,
           Appellant entered Walter Green’s home at 708 N. Preston
           Street in Philadelphia. Present in the residence at the time
           were Walter Green, Jazar Triple, a female named Alexis,
           and a male named Mike. The complainant, Jazar Triple,
           testified at trial that Appellant appeared to be somewhat
           intoxicated when he entered the residence and ignored Mr.
           Green’s requests to leave. According to Mr. Triple, Mike

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1).
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         and Alexis were able to exit the residence, but Appellant,
         who is approximately 6’5” and 280 pounds, blocked him
         from leaving. Appellant and Mr. Triple exchanged some
         words as Appellant repeatedly poked Mr. Triple in the
         chest. Appellant then punched Mr. Triple in the head with
         a closed fist and Mr. Triple, 5’4” and 135 pounds, stumbled
         into the living room and lost consciousness. When Mr.
         Triple finally regained consciousness he was in the hospital
         on a respirator and unable to walk. Mr. Triple spent
         several weeks in the hospital followed by several weeks in
         a rehabilitation facility where he had to learn to walk
         again.

            Walter Green testified at trial that on that date and
         time, while he was upstairs in his home, he heard Mr.
         Triple call out to him.    When Green came down and
         entered the dining room he observed Appellant and asked
         him to leave.      Instead of leaving, Appellant started
         attacking Mr. Triple after he tried to back away from
         Appellant and tripped over some bicycle rims on the floor.
         Appellant got on top of the victim and repeatedly punched
         him in the head. Green stated that Mr. Triple appeared to
         lose consciousness after the third punch.        He then
         observed Appellant pick Mr. Triple up by the shirt collar
         and was still punching him when Green left the residence
         to call police.

             Philadelphia Police Officer Danny Mammola testified at
         trial that he arrived on the scene at approximately 2:20
         a.m. and observed Mr. Triple lying in a pool of blood on the
         living room floor. Mr. Triple was nonresponsive, his eye
         was completely swollen shut, and his face was swollen.
         Officer Mammola also observed a metal pipe covered with
         blood next to the victim and blood around a large hole in
         the wall with crumbled sheetrock. The metal pipe weighed
         4.1 pounds.      Mr. Triple was then transported to HUP
         hospital by medics.

Trial Ct. Op., 9/8/16, at 2-3 (record citations omitted).

      Appellant was charged with aggravated assault, burglary, theft, and

related offenses. On June 5, 2012, Appellant proceeded to a non-jury trial.



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The trial court heard testimony on June 5 and 15, 2012, and found Appellant

guilty    of   aggravated   assault,   as   well   as   simple   assault,   recklessly

endangering another person, criminal mischief, and theft.2

         On November 6, 2012, the trial court accepted Appellant’s guilty pleas

in two unrelated cases—a burglary committed on October 7, 2011, and a

robbery committed on October 15, 2011. The court immediately proceeded

to a sentencing hearing in the two unrelated cases and the instant matter.

         With respect to the present case, the Commonwealth called Dr. Gary

Collins as “an expert in “forensic pathology and the examination and

interpretation of wounds.” N.T., 11/6/12, at 17. Dr. Collins opined that the

complainant’s injuries were consistent with the use of a “hard blunt object”

and not punching alone. Id. at 21-22. The doctor suggested that the use of

a fist would likely would not cause the fractures as well as the brain injuries

suffered by the complainant without causing significant injury to the

attacker’s hand. Id. at 22. During direct examination, the Commonwealth

presented Dr. Collins with the pipe recovered near the complainant, and the

doctor asserted that it “could have been an object used to inflict these

injuries.”     Id. at 21.   On cross-examination, however, Appellee’s counsel

asked Dr. Collins, “Now, so we don’t really know whether a pipe was used on

this man or not[?]” Id. at 25. Dr. Collins responded, “Correct, all I know is

2
  Appellant did not testify and presented no evidence on his own behalf. The
trial court acquitted Appellant of burglary and criminal trespass.




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it’s a hard object. And if you give a pipe as an example, that’s an example.”

Id. at 25.

        The trial court determined that Appellant used the pipe and applied the

deadly weapon enhancement (“DWE”) of the Sentencing Guidelines.            See

204 Pa. Code § 303.10(a)(2). The court thereafter sentenced Appellant to

eight to twenty years’ imprisonment for aggravated assault. The minimum

portion of the sentence fell within the enhanced standard range of 90 to 108

months under the DWE.3

        Appellant did not timely file a post sentence motion or direct appeal,

but on March 19, 2013, filed a pro se Post Conviction Relief Act4 (“PCRA”)

petition. The PCRA court appointed counsel, who filed an amended petition

seeking reinstatement of Appellant’s right to file a post-sentence motion. On

July 23, 2015, the PCRA court granted Appellant leave to file a post-

sentence motion nunc pro tunc. Appellant filed a post-sentence motion on


3
  No further penalty was imposed on the remaining charges in this case.
The court also sentenced Appellant to two to five years’ imprisonment for
the unrelated burglary and three and a half to ten years’ imprisonment for
the unrelated robbery. The resulting aggregate sentence in all three cases
was thirteen and a half to thirty five years’ imprisonment.

The Sentencing Guidelines suggested a standard range minimum sentence
of seventy-two to ninety months’ imprisonment, plus or minus twelve
months for aggravating or mitigating factors, without the DWE. See 204 Pa.
Code. § 303.16(a).     Accordingly, the eight-year (96-month) minimum
sentence in this case would have fallen within the aggravated range of the
unenhanced standard range sentence.
4
    42 Pa.C.S. §§ 9541-9546.



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July 31, 2015, and the motion was denied by operation of law on December

4, 2015.

      Appellant took this appeal on January 6, 2016. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following questions for review:

           I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
           IN SENTENCING . . . APPELLANT TO A HARSH AND
           EXCESSIVE SENTENCE?

           II. WHETHER THE VERDICT WAS CONTRARY TO LAW?

Appellant’s Brief at 7.

      Appellant first challenges the discretionary aspects of the sentence for

aggravated assault. He contends:

           It would appear that Alleyne v. [United States], 133
           S.Ct. 2151 (2013) does not apply to a deadly weapon
           enhancement.       However, the principle expanded in
           Alleyne, that all facts that increase a mandatory minimum
           sentence must be submitted to and found true by a jury,
           should be considered in this case.

Appellant’s Brief at 13-14. Appellant thus suggests that the facts triggering

the DWE must be proven beyond a reasonable doubt and “the court

considered the [DWE] without sufficient evidence of a weapon.” Id. at 17-

18. Additionally, Appellant avers that the sentence was manifestly excessive

because it “was in the aggravated range” and the trial court “did not give

sufficient consideration to Appellant’s background, drinking problem, and

mental health issues. Id. at 14. No relief is due.

      It is well settled that:


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        [c]hallenges to the discretionary aspects of sentencing do
        not entitle an appellant to appellate review as of right.
        Prior to reaching the merits of a discretionary sentencing
        issue:

             [W]e conduct a four part analysis to determine: (1)
             whether appellant has filed a timely notice of appeal,
             see Pa.R.A.P. 902 and 903; (2) whether the issue
             was properly preserved at sentencing or in a motion
             to reconsider and modify sentence, see Pa.R.Crim.P.
             [720]; (3) whether appellant’s brief has a fatal
             defect, Pa.R.A.P. 2119(f); and (4) whether there is a
             substantial question that the sentence appealed from
             is not appropriate under the Sentencing Code, 42
             Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some

citations and punctuation omitted).     “A defendant presents a substantial

question when he sets forth a plausible argument that the sentence violates

a provision of the sentencing code or is contrary to the fundamental norms

of the sentencing process.”     Commonwealth v. Dodge, 77 A.3d 1263,

1268 (Pa. Super. 2013) (citation and quotation marks omitted). Appellant,

as a preliminary matter, has preserved his challenges to the application of

the DWE and the failure to consider mitigating factors in his post-sentence

motion nunc pro tunc, this appeal nunc pro tunc, and in his Pa.R.A.P.

2119(f) statement.

     Appellant’s challenges to the trial court’s application of the DWE raise

substantial questions, and we proceed to consider the merits of Appellant’s

arguments.    See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266,




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1270 n.10 (Pa. Super. 2014) (en banc).           Section 303.10(a)(2) of the

Sentencing Guidelines provides:

         When the court determines that the offender used a deadly
         weapon during the commission of the current conviction
         offense, the court shall consider the DWE/Used Matrix (§
         303.17(b)). An offender has used a deadly weapon if any
         of the following were employed by the offender in a way
         that threatened or injured another individual:

            (i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
            whether loaded or unloaded, or

            (ii) Any dangerous weapon (as defined in 18 Pa.C.S. §
            913), or

            (iii) Any device, implement, or instrumentality capable
            of producing death or serious bodily injury.

204 Pa. Code § 303.10(a)(2)(i)-(iii).

      This Court has concluded that the findings necessary to trigger the

application of the Sentencing Guideline enhancement require proof by a

preponderance of the evidence. See Commonwealth v. Hammond, 504

A.2d 940, 942 (Pa. Super. 1986).         Moreover, in Buterbaugh, this Court

concluded that Alleyne was not implicated in a challenge to the application

of the DWE, noting:

         Alleyne . . . dealt with factors that either increased the
         mandatory minimum sentence . . . . Our case does not
         involve [such a] situation; instead, we are dealing with a
         sentencing enhancement. If the enhancement applies, the
         sentencing court is required to raise the standard guideline
         range; however, the court retains the discretion to
         sentence outside the guideline range.

Buterbaugh, 91 A.3d at 1270 n.10.



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          In light of the foregoing, we are constrained to conclude that

Appellant’s legal argument that Alleyne requires a finding by a jury and/or

proof beyond a reasonable doubt before applying the DWE warrants no

relief.    See id.; Hammond, 504 A.2d at 942.          Moreover, the trial court

considered evidence that (1) the pipe was recovered near the complainant,

(2) the pipe weighed approximately four pounds, (3) the pipe had a blood

stain on one of its ends, (4) the severity of the complainant’s injuries was

consistent with the use of a hard blunt object, and (5) the use of a fist alone

would not likely have caused the complainant’s injuries without significantly

injuring Appellant’s hand. Thus, we discern no error or abuse of discretion in

the trial court’s determination that a preponderance of the evidence showed

that Appellant used the pipe to injure the complainant.        See Hammond,

504 A.2d at 942. Accordingly, we affirm the trial court’s application of the

DWE under the circumstances of this case.

          Appellant’s further challenge to the trial court’s weighing of the

mitigating     circumstances   presented   at   sentencing   does   not    raise   a

substantial question. See Evans, 901 A.2d at 533.

            [A] sentencing court generally has discretion to impose
            multiple sentences concurrently or consecutively, and a
            challenge to the exercise of that discretion does not
            ordinarily raise a substantial question.

               We are mindful, however, that “the key to resolving the
            preliminary substantial question inquiry is whether the
            decision to sentence consecutively raises the aggregate
            sentence to, what appears upon its face to be, an
            excessive level in light of the criminal conduct at issue in


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         the case.” An appellant making an excessiveness claim
         raises a substantial question when he “sufficiently
         articulates the manner in which the sentence violates
         either a specific provision of the sentencing scheme set
         forth in the Sentencing Code or a particular fundamental
         norm underlying the sentencing process.”

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)

(citations omitted).

      Instantly, the trial court sentenced Appellant within the enhanced

standard range under the DWE and imposed no further penalty on the

remaining offenses in this case.       Although the court’s sentence was

consecutive to two unrelated cases, those two cases involved offenses that

Appellant committed after the present offense. Under these circumstances,

Appellant’s claims—i.e., that the trial court improperly weighed mitigating

factors when imposing the instant sentence of eight-to-twenty-years’

imprisonment for aggravated assault, or ordering the sentence to run

consecutive to the two unrelated cases—do not raise a substantial question

warranting further review.5 See id.




5
  In any event, we discern no abuse of discretion by the trial court. The trial
court considered the gravity of the offense, found Appellant’s lack of
rehabilitative potential based on his “lack of human compassion . . . and
indifference to the value of life,” and weighed the impact on the victim and
the community. See 42 Pa.C.S. § 9721(b); N.T. at 50-51. Therefore, we
discern no basis upon which to conclude that the court’s sentence was
“clearly unreasonable.” See 42 Pa.C.S. § 9781(c)(2).



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      Lastly, Appellant claims that the evidence was insufficient to sustain

his conviction.   He argues that the Commonwealth failed to prove he

intended to cause serious bodily injury. No relief is due.

      The following precepts govern our review:

            In reviewing a claim regarding the sufficiency of the
            evidence, an appellate court must determine
            whether the evidence was sufficient to allow the fact
            finder to find every element of the crimes charged
            beyond a reasonable doubt. In doing so, a reviewing
            court views all the evidence and reasonable
            inferences therefrom in the light most favorable to
            the Commonwealth. Furthermore, in applying this
            standard, the Commonwealth may sustain its burden
            of proof by means of wholly circumstantial evidence.
            When performing its review, an appellate court
            should evaluate the entire record and all evidence
            received is to be considered, whether or not the trial
            court’s rulings thereon were correct. Additionally,
            we note that the trier of fact, while passing on the
            credibility of witnesses and the weight of the
            evidence, is free to believe all, part, or none of the
            evidence.

         [Section 2702(a)(1) of the Crimes Codes] provides, “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.” Serious bodily injury is defined as,
         “Bodily 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.”

Commonwealth v. Burton, 2 A.3d 598, 601 (Pa. Super. 2010) (en banc)

(citations omitted).

      Instantly, the trial court noted:



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         the evidence showed that Appellant, an extremely large
         and physically powerful man, repeatedly punched the
         much smaller victim, struck him in the head with a four
         pound metal pipe and threw him into the wall. It was
         reasonable for the court to infer from these repeated and
         sustained assaults on a vulnerable victim that Appellant
         intended to cause serious bodily injury. The evidence in
         this case was more than sufficient to prove Appellant’s
         intent to cause serious bodily injury beyond a reasonable
         doubt.

Trial Ct. Op. at 5. We discern no basis to disturb the trial court’s analysis

and add that a witness in this case testified about Appellant’s assault of the

complainant.   That testimony established Appellant struck the complainant

several times, and the complainant fell to the floor.           Although the

complainant was unconscious, Appellant continued to attack, lifting the

complainant up by his shirt and punching him several more times before the

witness left the house to call the police as the assault was ongoing.      The

complainant was 5’4” and 135 pounds, and Appellant was 6’5” and weighed

well over two hundred pounds.      Thus, even if the Commonwealth did not

establish the use of a deadly weapon at trial, there was ample evidence to

prove his intent to cause serious bodily injury based on Appellant’s use of his

fists. See Burton, 2 A.3d 598, 601-05 (discussing sufficiency of evidence

for aggravated assault based on a single punch).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2017




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