J-S49015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GERALD N. KREISER, III,

                        Appellant                    No. 1773 MDA 2014


       Appeal from the Judgment of Sentence Entered May 22, 2014
              In the Court of Common Pleas of Perry County
           Criminal Division at No(s): CP-50-CR-0000399-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 28, 2015

     Appellant, Gerald N. Kreiser, III, appeals from the May 22, 2014

judgment of sentence of 36 to 72 months’ incarceration, followed by two

years’ probation, imposed after a jury convicted him of aggravated assault

and simple assault. Appellant challenges the sufficiency and weight of the

evidence, as well as the legality of his sentence.   After careful review, we

vacate Appellant’s judgment of sentence and remand for resentencing.

     Appellant’s convictions stemmed from a March 25, 2013 altercation

with the victim, Robert Mourey.     At trial, the Commonwealth presented

evidence that Appellant and his co-defendant, Gregory Mader, went to

Mourey’s home and repeatedly punched him in the head, arms, and legs.

During the attack, Mourey was struck in the head with a chair, fell through a

glass coffee table, and his head hit and punctured a wall in the residence.
J-S49015-15



As a result of the fight, Mourey sustained significant injuries and was

hospitalized for seven days. While Appellant asserted at trial that he acted

in self-defense, the jury disbelieved that claim and convicted him of the

above-stated offenses. Appellant was sentenced on May 22, 2014, to a term

of 36 to 72 months’ for his aggravated assault offense, and a consecutive

term of two years’ probation for his simple assault conviction.

        The trial court’s docket indicates that Appellant filed a timely post-

sentence motion on June 2, 2014. However, the motion itself is not included

in the certified record.       Over the next two months, Appellant requested

several extensions of time within which to file an amended post-sentence

motion.     The court granted Appellant three extensions, contrary to the

mandate set forth in Pa.R.Crim.P. 720(B)(3)(b) (directing that the trial

“judge may grant one 30-day extension for decision on the motion”)

(emphasis added).          Despite being granted these extensions of time,

Appellant never filed an amended post-sentence motion.             Instead, on

October 20, 2014, he filed a notice of appeal with our court, asserting that

his June 2, 2014 post-sentence motion was denied by operation of law on

September 19, 2014.          See Pa.R.Crim.P. 720(B)(3)(a) (stating that if the

court fails to decide a post-sentence motion within 120 days of the filing

date, the motion will be deemed denied by operation of law). 1 However, the


____________________________________________


1
    We note that 120 days from June 2, 2014, was September 30, 2014.



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trial court’s docket did not contain any order, entered on September 19,

2014 or otherwise, directing that Appellant’s post-sentence motion was

deemed denied by operation of law.     Nevertheless, the trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal, and Appellant timely complied. The court subsequently issued

a Rule 1925(a) opinion.

      Herein, Appellant presents four issues for our review:

      1. Should [Appellant’s] [a]ppeal be quashed as having been
      taken from a purported order, which was not entered upon the
      appropriate docket of the lower court[?]

      2. Did the Commonwealth, as a matter of law, provide
      insufficient evidence to meet its burden of proof with regard to
      Count I – Aggravated Assault, 18 Pa.C.S.A. §2702(a)(1) and
      Count II – Simple Assault, 18 Pa.C.S.A. §2701(a)(1), as
      [Appellant] was justified in using self-defense since he was
      lawfully on the property where the incident occurred, reasonably
      believed that force was immediately necessary to protect against
      death or serious bodily injury, and [the victim,] Mourey[,]
      greeted him with a lethal weapon in hand[?]

      3. Whether the verdict entered finding [Appellant] guilty of
      Count I – Aggravated Assault and Count II – Simple Assault was
      against the weight of the evidence as [Appellant] lawfully used
      self-defense and had a right to “stand his ground” as he was
      lawfully on the property, reasonably believed that force was
      immediately necessary to protect against death or serious bodily
      injury, and Mourey greeted [Appellant] with a lethal weapon in
      hand?

      4. Whether the sentence imposed by the trial court for Count I –
      Aggravated Assault and Count II – Simple Assault is illegal as
      both counts should have merged for sentencing?

Appellant’s Brief at 1-2.




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      To understand Appellant’s first issue, it is necessary to summarize the

following procedural history. On November 10, 2014, this Court issued a per

curiam order directing Appellant to show cause as to why his appeal should

not be quashed as having been taken from an order not entered on the trial

court’s docket, i.e. the September 19, 2014 order denying Appellant’s post-

sentence motion.    See Order, 11/10/14 (citing Pa.R.A.P. 301(a)(1), which

states that no order of court shall be appealable until it has been entered

upon the appropriate docket in the lower court). Appellant filed a response,

explaining that on November 14, 2014, when he ‘hand filed’ his Rule

1925(b) statement, he asked the Perry County Clerk of Courts why a final

order denying his post-sentence motion by operation of law had not yet

been entered on the docket. Appellant alleged that the clerk informed him

that it was a mistake, and that the order would be entered that day.

Appellant attached to his response an updated trial court docket showing the

entry of an order on November 14, 2014, denying Appellant’s post-trial

motion by operation of law. Based on this response, our Court discharged

the November 10, 2014 show-cause order, and deferred this procedural

issue to the discretion of the panel.

      The Commonwealth now avers that we should quash Appellant’s

appeal because his notice of appeal “was premature.”         Commonwealth’s

Brief at 4.   Appellant responds that the error of filing his notice of appeal

prior to the entry of the November 14, 2014 order denying his post-sentence

motion was “harmless and was the result of a breakdown in the court

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system….”    Appellant’s Brief at 19-20.    Accordingly, he requests that we

consider his appeal.

      We acknowledge that Appellant’s counsel should have inquired with

the Clerk of Courts about the entry of a final order pertaining to the post-

sentence motion before he filed a notice of appeal. However, it is apparent

that mistakes were also made by the trial court and by the Perry County

Clerk of Courts. Consequently, in the interests of judicial economy, we will

overlook the prematurity of Appellant’s notice of appeal, and treat it as

having been filed on November 14, 2014, the date of the entry of the final

order denying Appellant’s post-sentence motion.       See Liddle v. Scholze,

768 A.2d 1183, 1184 n.1 (Pa. Super. 2001) (treating a premature notice of

appeal as having been “filed after entry of judgment”) (citing Pa.R.A.P.

905(a)(5) (“A notice     of appeal    filed after    the   announcement of a

determination but before entry of an appealable order shall be treated as

filed after such entry and on the day thereof.”)).

      Appellant next argues that the evidence was insufficient to prove that

he committed either aggravated or simple assault.

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it



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       links the accused to the crime beyond a reasonable doubt.
       Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

       Here, Appellant focuses his sufficiency of the evidence argument on

claiming that the Commonwealth failed to rebut his assertion of self-defense.

Appellant maintains that he “did not spontaneously start a fight[]” but,

instead, he “instinctively reacted to a situation that Mourey created.”

Appellant’s Brief at 26. Appellant insists that “Mourey [] answered the door

with what appeared to be a knife” and Appellant “was fighting in self-defense

because of the threat of the knife….” Id. at 28. Appellant contends that the

Commonwealth failed to proffer sufficient evidence to disprove that he

fought with Mourey in self-defense.

       In assessing Appellant’s argument, we begin by summarizing the

pertinent evidence presented at his trial. First, Mourey testified that at the

time of this incident, he was living with Trisha Kreiser, with whom he had

had a romantic relationship, despite Ms. Kreiser’s marriage to Appellant.

N.T., 3/24/14, at 34-36.    Mourey explained that he and Ms. Kreiser had

ended their relationship in February of 2013, but were still living together in

March of that year. Id. at 36. Mourey testified that on March 25, 2013, he

was angry with Ms. Kreiser because he believed she “was having some sort

of a relationship with somebody else.”      Id. at 37.    The two began an

argument that morning, which continued by text messaging throughout the

day.   Id.   That evening, Mourey became aware that Ms. Kreiser was with

Appellant and Gregory Mader, Appellant’s co-defendant in this case. Id. at

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39. Mourey testified that Appellant and Mader began sending him angry text

messages, as well. Id. at 39-40.

     At some point later that evening, Mourey heard a knock on the door

between his kitchen and garage, and Ms. Kreiser’s voice telling him to open

the door. Id. at 43-44. Mourey admitted that when he heard the knock, he

had in his hand a “three-inch regular pocket knife” because he was in the

process of cutting up some boxes owned by Ms. Kreiser. Id. at 44. Mourey

stated that, with the knife still in his hand, he opened the door between the

kitchen and garage and “was immediately pushed back by [Appellant]….”

Id. at 45. Mourey elaborated:

     I had the door open maybe … 30 degrees before I was just
     shoved back and pushed up against the wall, had my arms back
     like this, had the knife in my hand like this. I let go of the knife,
     because that was not my intent whatsoever. You know, I was
     just cutting up boxes. I was completely taken by surprise,
     obviously….”

Id. at 46. While Appellant was pushing Mourey, Mourey saw Ms. Kreiser and

Mader “running through the door” and into the house. Id. at 46.

     Mourey then described the fight that ensued between himself,

Appellant, and Mader.   At one point, Mourey was wrestling with Appellant

when Mader “grabbed a heavy dining room chair and broke it over the back

of [Mourey’s] head.” Id. at 48. After being struck with the chair, Mourey

stopped fighting back, yet Appellant and Mader continued to beat him all

over his “body, … head, … arms, [and] legs.”        Id. at 50-51.     The fight

traveled into the living room of Mourey’s home, where Mourey “got pushed


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up against the wall[]” and his “head went through the wall….” Id. at 50. In

total, Mourey estimated he was hit by Appellant and Mader approximately 20

to 30 times. Id.

      Once Appellant and Mader stopped their attack, Mourey went into a

bathroom and cleaned off the “[m]assive amount of blood that was all over

[him],” and Ms. Kreiser then transported Mourey to the hospital. Id. at 52-

53, 54.   Mourey sustained significant injuries as a result of the attack,

including: a laceration on his head; cuts on his face and body that required

stitches; multiple broken bones, including his nose, orbital bone, finger, and

“a tibia plateau fracture” on his right leg; and “acute renal failure” due to

“the amount of trauma that [his] body experienced….”        Id. at 58, 61, 66,

68. He was hospitalized for seven days, id. at 69, and was unable to return

to work for five months. Id. at 82.

      Ms. Kreiser also testified at Appellant’s trial.   She stated that there

were three steps from the floor of the garage to the door leading into the

kitchen of Mourey’s home. Id. at 230. She testified that she knocked on

the door to the kitchen, but there was no response, so she began to walk

toward the door leading to the outside patio. Id. As she was walking away,

she “hear[d] the door being yanked open, the inside door[,]” and she turned

to see Mourey “on the step of the door with a knife.”        Id. at 231.   Ms.

Kreiser testified that Mourey was “coming out [of] the door[]” with the knife

raised at shoulder height.     Id.    She stated that as Mourey came out,

Appellant was at the bottom of the steps leading to the door. Id. at 232.

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Ms. Kreiser heard Appellant scream that Mourey had a knife, at which point

she “[r]an out the door” to the outside. Id. at 233. Ms. Mourey stated that

when the door opened, Appellant could have also left the garage but, rather

than doing so, “[h]e went towards [Mourey].” Id. at 265.

      A short time later, Ms. Kreiser came back inside and saw Appellant and

Mourey wrestling on the ground in the kitchen. Id. at 233. She explained

that Appellant was “on [Mourey’s] back basically – like towered over him.”

Id.   She watched the attack proceed into the living room, where Mourey

“went through the coffee table – the glass coffee table[,]” after which she

saw [Appellant] “throw his shoulder into [Mourey]” who “hit the wall[]” and

became “dazed….”        Id. at 234.   Ms. Kreiser also testified that when the

fighting stopped, she helped Mourey clean himself up and took him to the

hospital. Id. at 236.

      Appellant also testified at trial.    He stated that after Ms. Kreiser

knocked on the door leading from the garage to the kitchen and received no

answer, she began to walk outside, followed by Mader. Id. at 320. At that

point, Appellant “hear[d] the door open[]” and saw Mourey, with “his hand

up behind the door hiding it a little bit.” Id. Appellant continued:

      The next thing I know he’s on me like he’s coming at me. So I
      charged him. Pushed him back into the corner against the wall,
      small corner like this. Put my head against him, and … I’m up
      against this side of him. He has a knife in his right hand. I
      twisted his hand down, put it to his side, pried on it…. That’s
      when I said to [Mader], he’s got a damn knife … or something
      like that.

Id.

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     When later asked at what point he first saw the knife in Mourey’s

hand, Appellant replied:

     I knew he had something in his hand. I wasn’t exactly sure
     what it was, but I knew he was hiding it like he was ready – he
     didn’t want me to see. He didn’t want it to be in plain view. So
     he kind of moved. I went towards the hand, grabbed his hand;
     and I twisted it down. … I pushed him into the corner. Tweaked
     his … hand back and pried as hard as I could to get it out.”

Id. at 321.

     Appellant then explained that inside the house, “a massive scuffle[]”

ensued during which both men were “charging” each other and Mourey was

“totally going psycho,” which put Appellant “in fear for [his] life.”   Id. at

323, 325.     Appellant testified that during the fight, he did not intend to

cause Mourey serious bodily injury but, instead, he was simply trying “to

make him … stop the whole thing.”        Id. at 330.    Appellant stated that

Mourey “wouldn’t stop.     Wouldn’t give up.”   Id.    Appellant believed that

Mourey “was trying to kill [him] or trying to kill whoever was behind the

door.” Id. at 331. When asked why he did not retreat when Mourey opened

the door, Appellant answered,

     If I would have turned, I … thought maybe he would have shot
     me in the back or something. At that point, I just knew he had
     something. I could see the look in his eye that he was pissed,
     that he had something. So, I mean, it was a split-second
     decision. I just charged for him, and I realized … that’s where it
     started.

Id. at 331-332.




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      Appellant stated that when the fight eventually stopped, Mourey was

lying on the floor. Id. at 237. Then, while Ms. Kreiser was upstairs helping

Mourey clean up, Appellant cleaned blood off himself in a downstairs

bathroom. Id. at 328. Appellant stated that he “had some bumps on [his]

head but no major gashes or cuts or anything like that.” Id. at 329. When

Ms. Kreiser and Mourey left for the hospital, Appellant and Mader went

home. Id. at 330.

      Finally, Mader testified at trial.       He stated that after Ms. Kreiser

knocked on the door and received no response, he followed her out “of the

garage door to go the exterior, outside.” Id. at 352. As Mader “was walking

through the threshold behind her … [he] heard a swoosh, which was the

door being flung open.”       Id.   A few seconds after that, Mader heard

Appellant say, “he’s got a fucking knife.”       Id.   Mader testified that by the

time he turned around, “[t]hey weren’t there.”         Id. Mader stated that he

entered the house and saw Mourey on top of Appellant, who was “laying in a

pool of blood….” Id. at 352-353. Mader began kicking Mourey “as hard as

[he] could[]” to make him “[s]top attacking [Appellant].” Id. at 354. Mader

testified that he did not specifically recall striking Mourey with a chair, but he

“may have.” Id. at 355. He claimed that the fight “was up and down” and

Mourey “kept getting up[,]” even “with [Appellant] on his back….”          Id. It

was not until Mourey’s head went through the wall and he got “drywall dust

in his eyes” that he finally stopped fighting. Id. at 357.




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      On cross-examination, the Commonwealth confronted Mader with a

statement he provided to police two days after the incident, in which he told

police that “when [he] came in[to the house], [Appellant] had [Mourey] up

against a wall, [Appellant] was trying to get the knife out of [Mourey’s]

hand, and that’s where [Mader] began to assist[.]”      Id. at 365.    Mader

stated that he “really [did not] remember that.” Id.

      Appellant now contends that this evidence failed to disprove his claim

that he acted in self-defense.

      When an accused raises a self-defense claim, the Commonwealth
      must prove beyond a reasonable doubt that the defendant's acts
      were not justifiable self-defense.

         The Commonwealth sustains this burden if it establishes at
         least one of the following: 1) the accused did not
         reasonably believe that he was in danger of death or
         serious bodily injury; or 2) the accused provoked or
         continued the use of force; or 3) the accused had a duty to
         retreat and the retreat was possible with complete safety.
         It remains the province of the jury to determine whether
         the accused's belief was reasonable, whether he was free
         of provocation, and whether he had no duty to retreat.

Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super. 2008)

(citations omitted).

      Viewing the above-stated evidence in the light most favorable to the

Commonwealth, we conclude that it was sufficient to disprove Appellant’s

claim of self-defense. See Commonwealth v. Coronett, 455 A.2d 1224,

1228 (Pa. Super. 1983) (stating that in assessing a claim “that the

Commonwealth’s evidence was insufficient to prove that [the defendant’s]

actions were not in self-defense[,]” this Court “must view the evidence in

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the light most favorable to the Commonwealth as verdict winner.”) (citation

omitted).   First, the evidence demonstrated that Appellant provoked the

fight with Mourey. Specifically, Appellant admitted that he sent Mourey text

messages with “fighting words” before going to Mourey’s house.         N.T. at

333. While Appellant now claims that “the time in between the texts and the

fight was … sufficient for a cool down[,]” at trial Appellant testified that he

was “pissed” when he arrived at Mourey’s house.       N.T. at 333.   Thus, we

conclude that the evidence proved that Appellant provoked the fight with

Mourey.

      Additionally, the evidence demonstrated that Appellant unjustifiably

continued the use of force after disarming Mourey.      Appellant and Mourey

both testified that Mourey dropped the knife just inside the doorway of

Mourey’s home.      Nevertheless, Appellant and Mader continued to beat

Mourey, with Mader at one point striking Mourey in the head with a chair.

Mourey stated that after that blow, he stopped fighting back, yet Appellant

kept beating him all over his body. Ms. Kreiser testified that Appellant was

on top of Mourey, Mourey crashed through a glass coffee table, and she saw

Appellant ram Mourey with his shoulder causing Mourey’s head go through

the wall. As a result of this attack, Mourey sustained severe injuries, while

Appellant and Mader were not significantly harmed. We conclude that this

evidence was more than sufficient to demonstrate that Appellant inexcusably

continued the assault against Mourey, and that he used more force than was




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reasonably necessary to protect himself from Mourey’s purported attack.

Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000).

      Finally, the evidence proved, beyond a reasonable doubt, that because

the location of the assault was not Appellant’s home or place of work, he had

a duty to retreat, and he could have done so with complete safety. See 18

Pa.C.S. § 505(b)(2)(ii). While Appellant baldly contends that he “could not

[have] retreat[ed] safely in the heat of the moment[,]” the record belies this

claim. Again, according to Mourey’s testimony, he opened the door with a

knife in hand, but was not raising that weapon or coming out of the door

toward Appellant. Ms. Kreiser testified that when Mourey opened the door,

Appellant was at the bottom of the steps leading up to the door and, from

that position, Appellant could have fled the garage behind Ms. Kreiser.

According to both Mourey and Ms. Kreiser, Appellant rushed at Mourey and

shoved him against the wall, rather than fleeing.    From this testimony, it

was appropriate for the jury to conclude, beyond a reasonable doubt, that

Appellant could have safely retreated from the garage to escape Mourey’s

purported attack.

      In sum, we conclude that the Commonwealth presented sufficient

evidence to disprove Appellant’s claim of self-defense.         Namely, the

Commonwealth established that Appellant provoked the attack, continued

the attack beyond that which was necessary to defend himself, and/or had a

duty to retreat and could have safely done so.         Therefore, Appellant’s

convictions for aggravated and simple assault must be upheld.            See

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Coronett, 455 A.2d at 1228 (“The conviction must be upheld if, accepting

as true all the evidence which could properly have been the basis for the

verdict, the finder of fact could reasonably find that [the] appellant’s claim of

self-defense had been disproved beyond a reasonable doubt.”).

      Appellant next asserts that the jury’s verdict was contrary to the

weight of the evidence.

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury's verdict is so contrary to the evidence that it shocks
      one's sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge's
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

      In support of his challenge to the weight of the evidence, Appellant

maintains that he, Ms. Kreiser, and Mader “all told similar stories that

indicated that the catalyst of the altercation was Mourey’s possession of a

knife and the immediate danger it posed.” Appellant’s Brief at 34. Appellant

avers that “the jury’s verdict goes against the weight of the evidence

because the only person’s testimony that truly supported findings of




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aggravated and simple assault was that of Mourey.”           Id. (emphasis in

original).

      In rejecting Appellant’s weight-of-the-evidence claim, the trial court

reasoned:

             In Appellant’s case, the jury heard the testimony of all four
      individuals present during the altercation that resulted in the
      victim’s injuries. The jury was free to believe or reject the
      testimony of any or all witnesses.         The jury was properly
      instructed on the elements of each offense, and the elements of
      self-defense. After deliberation, the jury, having found that all
      of the elements of simple and aggravated assault were present
      and that the Commonwealth disproved the claim of self-defense,
      returned a guilty verdict as to both assault charges. Considering
      the wealth of evidence that was presented at trial (much of
      which was referenced earlier in this memorandum), Appellant’s
      guilty verdict may not be disturbed as it was not so against the
      weight of the evidence such that it would shock one’s sense of
      justice.

Trial Court Opinion, 1/8/15, at 6-7.

      Based on our thorough discussion of the evidence presented at

Appellant’s trial, we ascertain no abuse of discretion in the trial court’s

denying Appellant’s challenge to the weight of the evidence. The jury was

free to reject the testimony of Appellant, Ms. Kreiser, and Mader, and to

credit Mourey’s version of the attack. Therefore, Appellant’s claim that the

verdict was contrary to the weight of the evidence is meritless.

      Finally, Appellant presents a challenge to his sentence, claiming that

his separate sentences for aggravated and simple assault are illegal, as




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those crimes merge for sentencing purposes.2             Appellant relies on

Commonwealth v. Murphy, 462 A.2d 853 (Pa. Super. 1983), where this

Court reiterated:

       “Applying the doctrine of merger, we find that simple assault
       merges into both aggravated assault and recklessly endangering
       another person. Simple assault is defined as conduct by which
       one ‘attempts to cause or intentionally, knowingly or recklessly
       causes bodily injury to another.’ 18 Pa.C.S. § 2701(a)(1). The
       elements of this offense are necessarily included in the crime of
       aggravated assault, which is defined as conduct by which one
       ‘attempts to cause serious bodily injury to another, or causes
       such injury intentionally, knowingly or recklessly under
       circumstances manifesting extreme indifference to the value of
       human life,’ 18 Pa.C.S. § 2702(a)(1)....”

Commonwealth v. Murphy, 462 A.2d 853, 855 (Pa. Super. 1983) (quoting

Commonwealth v. Cavanaugh, 420 A.2d 674, 676 (Pa. Super. 1980)).

Based on Cavanaugh and Murphy, we agree with Appellant that his

separate sentences for aggravated assault and simple assault are illegal. We

also note that the Commonwealth concedes this point, as well. 3            See
____________________________________________


2
  While Appellant did not raise this claim before the trial court, “[a] claim
that crimes should have merged for sentencing purposes raises a challenge
to the legality of the sentence.” Commonwealth v. Nero, 58 A.3d 802,
806 (Pa. Super. 2012). “A challenge to the legality of the sentence may be
raised as a matter of right, is non-waivable, and may be entertained [as]
long as the reviewing court has jurisdiction.”         Commonwealth v.
Robinson, 931 A.2d 15, 19-20 (Pa. Super. 2007) (en banc).
3
  We acknowledge that, “where ‘the actor commits multiple criminal acts
beyond that which is necessary to establish the bare elements of the
additional crime, then the actor will be guilty of multiple crimes which do not
merge for sentencing purposes.’” Commonwealth v. Gatling, 807 A.2d
890, 896 (Pa. 2002) (quoting Commonwealth v. Weakland, 555 A.2d
1228, 1233 (Pa. 1989), abrogated on unrelated grounds by
(Footnote Continued Next Page)


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Commonwealth’s Brief at 9. Therefore, we vacate Appellant’s judgment of

sentence and remand for resentencing.

      Judgment of sentence vacated.                 Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




                       _______________________
(Footnote Continued)

Commonwealth v. Anderson, 650 A.2d 20, 22 (Pa. 1994) (holding that “in
all criminal cases, the same facts may support multiple convictions and
separate sentences for each conviction except in cases where the offenses
are greater and lesser included offenses”)). Here, the Commonwealth does
not argue that Appellant’s convictions were premised on different criminal
acts. Additionally, the criminal information set forth an identical factual
predicate for both assault charges. Accordingly, the record supports a
conclusion that Appellant’s convictions were not based on separate criminal
acts permitting individual sentences for each assault offense.



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