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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

    AVERY MICHAEL VALENTIN-BAIR

                             Appellant               No. 1291 MDA 2018


              Appeal from the Judgment of Sentence April 6, 2018
                In the Court of Common Pleas of Berks County
               Criminal Division at No: CP-06-CR-0005349-2016

BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.                          FILED JANUARY 21, 2020

Appellant, Avery Michael Valentin-Bair, appeals from his judgment of sentence

of 22½-50 years’ imprisonment for third-degree murder and two counts of

aggravated assault with a deadly weapon.1 We affirm.

        On the early evening of September 25, 2016, Christhian Torres, the

decedent, was riding his bike with friends on the 1100 block of Locust Street

in Reading, Pennsylvania with a Halloween mask on his head. Angered by

Torres’s behavior, Jeremey Martinez, Appellant’s neighbor, popped the tire of

Torres’s bike.    Torres informed his parents about Martinez’s act.   Torres’s

parents and approximately twenty other local residents gathered to confront



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502 and 2702, respectively.
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Martinez.   Appellant, who resided at 1145 Locust Street, was standing on

Martinez’s porch at 1147 Locust Street when the group arrived.

      A loud and profane argument began, but the situation appeared to de-

escalate when Martinez agreed to pay for the tire. Hostilities reignited,

however, when Appellant’s mother disputed Martinez’s responsibility to pay

for the tire. Appellant made graphic statements about Torres’s mother, and

a fight began in front of 1145 Locust Street. Appellant brandished a stainless

steel knife with a 3½-inch blade and stabbed Torres once in the heart, opening

a 4½-inch wound in his left chest, just below the nipple. The force generated

was powerful enough to penetrate Torres’s breastplate. Darah Kim, a friend

of Torres who attempted to intervene after the stabbing, testified that the

stabbing took place in a breezeway between 1145 and 1147 Locust Street.

Jonathan Torres, the decedent’s brother, also testified that the stabbing took

place in front of the breezeway. Appellant then swung the knife at and injured

Kim’s left hand.   A short time later, Torres collapsed and died.      Fourteen

stitches were necessary to close the wound to Kim’s hand. After the brawl,

Appellant cleaned off his bloody face and hand, fled the neighborhood where

he lived, and did not turn himself in until almost three days later.

      Reading Police evidence technician Wilfredo Ramirez testified at trial

that blood spots were found on the street and sidewalk. The blood spots were

photographed and admitted as CW #10 without objection. Additionally, the

spots were designated on a to-scale diagram of the crime scene, listed as


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Legend #11. The diagram was admitted without objection.       Ramirez further

testified that despite the many areas where they detected and swabbed blood,

he and investigators decided to send only four swabs to the lab for processing:

a trail of blood spots from Appellant’s door (CW #37), sink (CW #38), wall

behind the sink (CW #39), and the knife (CW #40). All were admitted without

objection; all were a match for Appellant. None of the blood swabs from the

street or breezeway were tested.

      Ramirez admitted during cross-examination that a boxcutter was found

near Torres’s body, and that a trail of blood spots on Legend #11 led toward

the body as well. Defense counsel later suggested during closing argument

that this evidence demonstrated Torres was the aggressor.

      Appellant testified that he acted in self-defense because he was being

attacked from every side by the group that had gathered to confront Martinez.

He claimed that he could not stop the beating or escape without using his

knife. He further stated that he stabbed Torres in the corner of the steps at

1147 Locust Street, not in front of 1145 Locust Street.

      The jury found Appellant guilty of the above offenses but acquitted him

of first-degree murder and possession of an instrument of crime. On April 6,

2018, the trial court imposed sentence. Appellant filed timely post-sentence

motions, which the court denied, and a timely notice of appeal. Both Appellant

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




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     Appellant raises four issues in this appeal, which we re-order for the

sake of convenience:

     1. Did the trial court err[] in denying a new trial when the
     Commonwealth made a specific repeated argument during its
     closing regarding the finding of blood in locations more consistent
     with their position despite having never sent said samples for
     testing to the lab, laying the inference that the blood was that of
     the deceased victim or secondary victim where said location of the
     killing was a material issue in the case of self-defense and caused
     extreme prejudice to [Appellant] and created a reasonable
     probability that these statement[s] contributed to the
     conviction[?]

     2. Did the court err[] in denying a new trial as the verdict of guilty
     at Count No. 2 of the information, [where the verdict] was
     contrary to the law, the evidence, the weight of the evidence, and
     the evidence [was] insufficient to sustain a verdict of guilty, in
     that it was not established by direct or circumstantial evidence,
     the requisite element of malice required for third degree murder,
     by failing to show a wanton and willful disregard of an unjustified
     and extremely high risk that [Appellant’s] conduct would result in
     death or serious bodily to Christ[h]ian Torres, which not only
     shock the conscience but even when viewed in the light most
     favorable to the Commonwealth were insufficient to support the
     verdict[?]

     3. Did the court err[] in denying a new trial as the verdict of
     guilt[y] at Count No. 4 for aggravated assault on Darah Kim,
     [where the verdict] shocks the conscience as the evidence [was]
     insufficient to sustain a verdict of guilty as the witness (victim)
     gave multiple statements to police and under oath at the
     preliminary hearing that his wound was incidental contact and that
     he didn’t even notice the cut until afterward, contrary to his trial
     testimony explained only by “I was going through a phase” and
     the location of the cuts (on the sides) [contradicted the
     Commonwealth’s position that they were defensive wounds on the
     palms] if they occurred as described at trial[?]

     4. Did the trial court abuse its discretion in imposing sentence,
     each individually and in light of the consecutive nature of the
     sentencing scheme, as it is manifestly excessive so as to inflict
     to[o] severe a punishment on [Appellant] and was not warranted

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      under the circumstances of the within case or the factors
      enumerated in the Sentencing Code which did not militate in favor
      of total confinement of the length imposed in this case by failing
      to give proper consideration [to] any rehabilitative incentive on
      behalf of [Appellant] and the mitigating factors presented at
      sentencing and focusing only on the punitive needs of the
      Commonwealth to the exclusion of all others, including the fact
      that the victim was the initial aggressor[?]

Appellant’s Brief at 5.

      First, Appellant demands a new trial because the prosecutor remarked

improperly during closing argument that the spots found in the breezeway

between 1145 and 1147 Locust Street were blood. According to Appellant,

the prosecutor could not claim these spots were blood because the police did

not submit swabs from these spots to the laboratory for testing. Appellant

claims that the prosecutor’s comments prejudiced him by bolstering the

Commonwealth’s theory that the stabbing occurred in the breezeway and

discrediting Appellant’s position that he stabbed Torres in self-defense in the

corner of the steps at 1147 Locust Street.

      Appellant   has      waived        this   argument   by   failing   to   raise   a

contemporaneous objection to the prosecutor’s statements during closing

argument.    Commonwealth v. Arrington, 86 A.3d 831, 854 (Pa. 2014)

(defendant waived objection to Commonwealth’s closing argument inviting

jury to draw negative inference from defendant’s failure to testify where

defense     counsel       failed    to      make     contemporaneous       objection);

Commonwealth v. Jones, 543 A.2d 548, 550 (Pa. Super. 1988) (defendant

waived issue that prosecutor committed prosecutorial misconduct during

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closing argument by referring to location of crime being within running

distance of defendant’s house where defendant failed to object at time

statement was made).

      Even assuming Appellant did not waive this argument, it fails on the

merits. A prosecutor’s arguments to the jury are generally not a basis for the

granting of a new trial unless the unavoidable effect of such comments would

be to prejudice the jury, forming in their minds fixed bias and hostility towards

the accused which would prevent them from properly weighing the evidence

and rendering a true verdict. Commonwealth v. Scott, 212 A.3d 1094, 1110

(Pa. Super. 2019). We must not view prosecutorial remarks in isolation but

in the context in which they were made. Id. The prosecution is accorded

reasonable latitude and may employ oratorical flair in arguing its version of

the case to the jury.     Id.   Furthermore, “[a] prosecutor may make fair

comment on the admitted evidence and may provide fair rebuttal to defense

arguments. Even an otherwise improper comment may be appropriate if it is

in fair response to defense counsel’s remarks.”            Commonwealth v.

Wholaver, 177 A.3d 136, 175 (Pa. 2018).            This is because when the

defendant “opens the door” on a particular subject, he “cannot . . . complain

because the prosecutor chose to further comment on what was behind that

door.” Commonwealth v. Hawkins, 701 A.2d 492, 503 (Pa. 1997). Thus,

our Supreme Court held in Hawkins that the prosecutor’s closing argument—

suggesting that the defendant failed to prove that someone else committed


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the crime—was permissible, because defense counsel’s opening statement—

asserting that the defense would prove that someone other than the defendant

committed the crime—opened the door for the prosecutor’s comments. See

also Commonwealth v. Miller, 172 A.3d 632, 644-45 (Pa. Super. 2017)

(prosecutor’s argument that correctional officer witness “was completely

honest and candid with you” was fair response to defense counsel’s repeated

attacks on officer’s credibility in his opening and closing argument).

      Presently, the prosecutor’s comments were a fair response to defense

counsel’s thesis that spots on the street leading to where Torres collapsed

were blood.     Defense counsel initially raised this position while cross-

examining police technician Ramirez:

      Defense Counsel: The box cutter that was found that you
      identified as CW #36, that was found behind a car right behind
      the body of Christhian Torres?

      Officer Ramirez: It was found in the front of the car, near the
      front passenger side of the vehicle, Item #9 on the diagram.

      Defense Counsel: And that would be following the path there on
      the diagram where it kind of goes like 3, 4, 5, 6, 7, 8? It follows
      the path from 1145 [Locust Street] up towards 1132 [Locust
      Street] . . . I’m just asking if you agree with me that the diagram
      that you're looking at that’s up on the screen now, which is CW
      #6, that there seems to be a path that starts with, let’s say #4,
      and heading up the street on Locust towards 1132, that box
      cutter, which is listed as #9 on the exhibit, is in front of the car
      where the victim is deceased next to it?

      Officer Ramirez: That’s fair to say, yes.

N.T. at 489. During closing argument, defense counsel implied that the path

on the diagram was a trail of blood spots, even though these spots had not

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been forensically tested. Counsel further implied that the “blood path,” along

with the discovery of the box cutter near Torres’s body, indicated that Torres

was the aggressor and that Appellant acted in self-defense, by stating:

      [Y]ou can follow his blood trail, unfortunately, up the block to
      1132 where [Torres] ultimately falls at Hannah Wilkinson’s place,
      the same way you can follow the path of blood that [Appellant]
      is going to leave as he goes back into the house . . . Was [Torres]
      probably holding the box cutter? Maybe it was in his pocket . . .
      So it’s a reasonable thing to believe that it might have been
      [Torres’s] fight. Again, not a knife fight. Follow the blood path.

N.T. at 693-94 (emphasis added).

      Following defense counsel’s closing argument, the prosecutor responded

during the Commonwealth’s closing argument:

      Officer Ramirez testified about evidence collection, about coming
      to the block after the incident . . . they see there’s blood on the
      sidewalk, that there’s blood on the street. They’re the ones that
      go in and do swabs to verify that it’s [Appellant]’s DNA on the
      knife. This (indicating) is the to-scale diagram that the Reading
      Police evidence department made up from what they saw at the
      scene. You can see the legend on the side here. Evidence
      markers 1, 3, 4, 6, 7, 8, and 9—I’m sorry; and 10 all have
      indications of blood. Amber and Jeremy testified that they saw
      [Appellant] getting beat up in this area here (indicating).
      [Appellant] testified, that’s where I was when I had to stab
      Christhian Torres. That’s where I was when I was being savagely
      beaten by ten people and had to stab Christhian Torres. And you’ll
      see where they marked blood. There’s no blood in that corner
      (indicating) where [Appellant] claims, I was being punched, I was
      being kicked, people were ripping my hair out. His testimony was,
      my face was covered in blood. They marked no blood in that
      corner (indicating). They marked blood on the block here
      (indicating), right in front of the breezeway, right in the middle of
      the sidewalk, right where Darah Kim says [Appellant] stabbed
      Christhian Torres, not in the corner where he suffered this savage
      beating . . . .




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      He was in the middle of the sidewalk, not in the corner. There is
      no physical evidence that corroborates that version of events.
      There’s no blood in that corner found by police. There’s blood
      right where Darah says Christhian was stabbed.

N.T. at 720-21, 726 (emphasis added).

      If we viewed the prosecutor’s closing argument in isolation, we might

have concluded that it lacked evidentiary support. The police tested only four

blood spots, none of which came from the street or breezeway, yet the

prosecutor argued that spots on the street and breezeway were blood.

However, when we review the prosecutor’s comments in context, as the law

requires us to do, Scott, 212 A.3d at 1110, we readily conclude that they

were proper. Defense counsel commented during closing argument that the

spots on the street leading towards where Torres collapsed were a “blood trail”

and “blood path.” This opened the door for the prosecutor to respond that the

“blood” in the street and breezeway belonged to Torres, and that there was

no “blood” where Appellant claimed he stabbed Torres in self-defense.

Although there was no forensic foundation for the prosecutor’s statement that

the spots in the street and breezeway were blood, it was a fair response to

defense counsel’s entreaty to “follow the blood path” to Torres’s body, which

itself lacked a forensic foundation. Hawkins, 701 A.2d at 503.

      In his next two arguments, Appellant asserts that the evidence was

insufficient to sustain his convictions for third-degree murder and aggravated

assault against Kim with a deadly weapon, and that the trial court erred by




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denying Appellant’s post-sentence motion seeking a new trial on these

charges.

      At the outset, Appellant merely asserts in passing that the evidence was

insufficient, Appellant’s Brief at 23, but fails to develop this argument further.

Accordingly, he has waived his challenge to the sufficiency of the evidence.

Commonwealth v. Miller, 212 A.3d 1114, 1131 (Pa. Super. 2019) (waiver

of issue results when appellant fails to properly develop issue or cite to legal

authority to support his contention in his appellate brief).

      Even if Appellant did not waive his sufficiency argument, it is devoid of

substance.      To   sustain   a   conviction   of   third-degree   murder,   the

Commonwealth must prove that Appellant killed another person with malice.

Commonwealth v. Knox, --- A.3d ----, 2019 WL 4316128, *5 (Pa. Super.

2019). Malice constitutes “exhibiting an extreme indifference to human life.”

Id. A fact-finder may find malice not only in an intentional killing, “but also

in an unintentional homicide where the perpetrator consciously disregarded

an unjustified and extremely high risk that his actions might cause death or

serious bodily injury.” Id. A fact-finder may also infer malice “from the use

of a deadly weapon upon a vital part of the victim’s body.”         Id.; accord

Commonwealth v. Briggs, 12 A.3d 291, 307 (Pa. 2011) (use of deadly

weapon on victim’s chest sufficient to prove malice).

      In a murder prosecution, evidence of provocation or self-defense tends

to negate the malice required to prove murder.              Commonwealth v.


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Carbone, 574 A.2d 584, 589 (Pa. 1990). To meet its burden of proof on the

element of malice, the Commonwealth must exclude self-defense beyond a

reasonable doubt. Id. On the other hand, a jury is not required to believe

the testimony of the defendant who raises the claim. Id. Where there is

evidence from which a jury can reasonably infer malice, the Commonwealth

has met its burden of proving beyond a reasonable doubt that the defendant

did not act in self-defense. Id. at 590.

      Construed in the light most favorable to the Commonwealth, the

evidence demonstrates the use of a deadly weapon on a vital part of the

victim’s body, thus supporting the inference of malice.         Other evidence

supports a finding of malice as well. Several witnesses testified that Appellant

acted aggressively and with hostility toward the group that gathered in front

of Martinez’s residence, engaging in aggressive body language and trading

threats and insults with members of the crowd. This behavior continued even

as Martinez attempted to de-escalate the situation by promising to pay for the

victim’s tire. The Commonwealth’s forensic pathologist testified that it took

substantial force to cause the decedent’s stab wound, given the firmness of

his breastplate and the fact that the entry wound was almost a full inch longer

than the length of the blade itself. Immediately after the stabbing, Appellant

cleaned off his bloody face and hand, fled the neighborhood where he lived,

and did not turn himself in until almost three days later. The knife used to kill

Torres was found in Appellant’s home under a dresser in a second-floor


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bedroom. Based on Appellant’s aggressive behavior immediately before the

incident, the sheer force used to inflict the fatal blow, and the apparent

attempt   to   hide   evidence   and   evade    capture, Appellant   consciously

disregarded an unjustified and extremely high risk that his actions might have

caused serious bodily injury. Based on the evidence, the jury could reasonably

have inferred from Appellant’s actions that he acted with malice before, during

and after the stabbing.

      Moreover, construed in the light most favorable to the Commonwealth,

the evidence defeats Appellant’s claim of self-defense. Appellant claims he

was attacked by a group of approximately ten people at the corner of the

porch steps of 1147 Locust Street, and that he was beaten so badly that his

face was covered in blood and that blood was pouring out of his eye.         He

claims that he justifiably stabbed Torres due to that attack, in an effort to

avoid injury to himself. Despite this claim, the police detected no blood in the

area where Appellant claimed blood was pouring from his face and where he

claimed he stabbed someone in the heart with a 3½-inch knife.

      Furthermore, the evidence was sufficient to prove aggravated assault

against Kim with a deadly weapon. To prove this offense, the Commonwealth

must prove that Appellant intentionally or knowingly caused bodily injury to

another with a deadly weapon. 18 Pa C.S.A. §2702(a)(4). This requires proof

of three basic elements: (1) bodily injury, (2) a knowing or intentional mens

rea, and (3) a deadly weapon. A person acts knowingly with respect to serious


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bodily injury when he is aware that it is practically certain that his conduct will

cause such a result. 18 Pa.C.S.A. § 302(b)(2)(ii). Appellant’s 3½-inch knife

was a deadly weapon. Commonwealth v. Duxbury, 674 A.2d 1116, 1117

(Pa. Super. 1996) (pen-knife with three-inch blade was instrument whose

intended use was calculated or likely to produce death or serious bodily injury,

despite its possible legitimate use as a pen, and thus was a deadly weapon

for purposes of statute prohibiting sale of deadly weapon to minor).           Kim

suffered bodily injury because Appellant violently slashed his knife around and

cut through to the bone of Kim’s thumb, requiring fourteen stitches to close

the wound. Finally, the evidence demonstrates that Appellant had to know

that swinging and slashing a knife at someone’s hands would cause bodily

injury, as there could not reasonably be any other result.

      We next consider Appellant’s challenge to the weight of the evidence,

which he preserved for appeal through post-sentence motions.              Appellate

review of a weight claim is limited to reviewing the trial court’s exercise of its

discretion. Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). We

do not review de novo the underlying question of whether a verdict was

against the weight of the evidence.       Id.   The weight of the evidence is

exclusively for the finder of fact, who is free to believe all, none or some of

the   evidence   and    to   determine    the   credibility   of   the   witnesses.

Commonwealth v. Mikitiuk, 213 A.3d 290, 305 (Pa. Super. 2019). The trial

judge may not grant a new trial on the basis of a weight claim because of a


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mere conflict in the testimony or because the judge would have arrived at a

different verdict. Widmer, 744 A.2d at 752. Rather, the trial court may grant

a new trial on the basis of a weight claim only when the jury’s verdict is “so

contrary to the evidence as to shock one’s sense of justice.” Knox, 2019 WL

4316128, at *7.

      Appellant argues that the jury failed to give adequate weight to several

factors, including (1) evidence showing that Appellant was in fear for his life;

(2) Kim’s preliminary hearing testimony that was inconsistent with his trial

testimony and the trial testimony of Jeremy Martinez and Amber Lott, and (3)

Appellant   did   not   intentionally   cut   Kim.   As   explained   above,   the

Commonwealth presented considerable evidence that Appellant acted with

malice toward Torres and intentionally cut Kim. Although certain witnesses

gave accounts of the events that were more helpful to Appellant, a mere

conflict in the testimony does not entitle Appellant to a new trial. Nor do any

discrepancies between Kim’s preliminary hearing and trial testimony warrant

a new trial. The jury was free to believe all, part or none of the evidence, and

it chose to believe the Commonwealth’s version of the events on the charges

of third-degree murder, aggravated assault and possession of an instrument

of crime.   Thus, we conclude that the trial court properly exercised its

discretion in denying Appellant’s challenge to the weight of the evidence.

      Finally, Appellant claims that the trial court abused its discretion by

imposing an excessive sentence. Challenges to the discretionary aspects of


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sentencing do not entitle an appellant to review as of right. Commonwealth

v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test:

      We conduct a four-part analysis to determine: (1) whether [the]
      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 [the] 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). Appellant

has failed to include a Rule 2119(f) statement in his brief, and the

Commonwealth has objected to this omission. “A failure to include the Rule

2119(f) statement does not automatically waive an appellant's argument;

however, we are precluded from reaching the merits of the claim when the

Commonwealth lodges an objection to the omission of the statement.”

Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006).

Accordingly, Appellant has waived this issue.

      Even if Appellant preserved this issue, it does not entitle him to relief.

Sentencing is a matter vested in the sound discretion of the sentencing judge,

and we will not disturb a sentence on appeal absent a manifest abuse of

discretion. Commonwealth v. Sexton, --- A.3d ----, 2019 WL 5540999, at

*9 (Pa. Super. 2019). In this context, an abuse of discretion is not shown

merely by an error in judgment. Id. Rather, the appellant must establish, by

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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. Id. Where the sentencing

judge had the benefit of a pre-sentence investigation report (“PSI”), it will be

presumed that the judge was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.    Commonwealth v. Clemat, --- A.3d ----, 2019 WL

4180658, at *11 (Pa. Super. 2019).

      In this case, the trial court had the benefit of a PSI outlining Appellant’s

fifteen-year history of criminality that resulted in a Prior Record Score ("PRS")

of 5. This record includes burglary and weapons offenses as a juvenile and

robbery, theft and drug offenses as an adult and make clear Appellant’s

inability and unwillingness to conform to society’s laws. With regard to third-

degree murder, based on the PRS of 5, the range of minimum sentences after

application of the Deadly Weapon Enhancement (“DWE”) placed Appellant’s

sentence between 210 months to the statutory limit of twenty years (240

months).    The trial court sentenced Appellant to twenty to forty years’

imprisonment.     While this was the statutory maximum, it fell within the

accepted range of sentences based on Appellant’s prior criminal record and

sentencing enhancements sought by the Commonwealth.               With regard to

Appellant’s conviction for aggravated assault with a deadly weapon against

Kim, based on his PRS, the minimum sentencing range fell between twenty-


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seven to thirty-three months.    The trial court sentenced Appellant to a

consecutive term of thirty months to ten years’ imprisonment, again within

the accepted ranges of sentences. As such, these sentences are not excessive

nor were they an abuse of discretion.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2020




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