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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
JULIE C. RIGGS,                             :
                                            :
                          Appellant         :     No. 348 WDA 2014

                    Appeal from the Order January 24, 2014
               In the Court of Common Pleas of Cambria County
               Criminal Division No(s).: CP-11-CR-0000850-2012

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 13, 2015

        Appellant, Julie C. Riggs, appeals pro se from the judgment of

sentence entered in the Cambria County Court of Common Pleas following

her jury convictions of resisting arrest and disorderly conduct.1 She avers

(1) the evidence was insufficient; (2) the verdict was against the weight of

the evidence; (3) trial counsel was ineffective for unduly influencing her not

to testify at trial; and (4) the trial court acted with bias in imposing a

sentence in the aggravated range. We affirm.

        The trial court summarized the evidence adduced at the jury trial:

           On St. Patrick’s Day . . . March 17, 2012, at 2:17 a.m., all
           on-duty Johnstown Police Officers responded to a large

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 5104, 5503(a)(4).
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            fight/disturbance outside the Coney Island restaurant in
            downtown Johnstown. Several persons were . . . yelling
            outside of the restaurant, and various people were fighting
            inside the restaurant. Approximately 75 persons were on-
            scene, and numerous persons were detained by the
            Johnstown Police.

Trial Ct. Op., 4/4/14, at 5-6.2

      The court summarized the trial testimony of the arresting officer,

Reginald Floyd, as follows:

            Upon arriving on-scene, Officer Floyd was instructed . . . to
            guard 3 individuals who were being detained, with their
            hands on the restaurant’s outside wall. While watching
            these individuals, [Appellant] nudged into/bumped
            into/utilized blunt force on Officer Floyd’s lower back,
            causing him to take 2-3 steps toward the restaurant wall.
            Floyd turned around, and confronted [Appellant] by
            stating, “hey you bumped into me.” [Appellant] responded
            “oh well,” and leaned into her vehicle to retrieve
            something.

Id. at 6.

      Our review of the trial transcript reveals the following testimony by

Officer Floyd.     When Appellant replied “[O]h, well,” he said “[Y]ou know

what, get your fat ass in the car and get out of here, call it a night.

[Appellant] said, no, I’m not going anywhere, I’m going back into Coney

Island.” N.T. Trial, 10/10/13, at 94. Officer Floyd testified, “I said, [O]kay,


2
   At the sentencing hearing, the trial court recalled there were “30 to 70
people that were obviously under the influence of alcohol or some other
substance,” “people were banging on the windows of the Coney Island
Restaurant,” it was “a near riot situation,” and there were “maybe four or
five police officers” to handle or control the crowd.       N.T. Sentencing,
12/17/13, at 7, 8.



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just get in the restaurant and get out of here because I was somewhat

concerned about the three people I had detained because . . . that was my

original mission.”   Id. at 95.      However, Appellant was swearing, was

“demonstrative,” and yelled, “Eff you, you don’t know who you’re eff-ing

dealing with, you’re an eff-ing peon, you don’t know, better Google my

name[, and] you apparently don’t know who I am.” Id. at 95-96.

      Officer Floyd believed Appellant should not go into the restaurant

because he did not know what would happen with the large crowd who had

been drinking. Id. At that point, Officer Floyd told Appellant she was under

arrest, grabbed her left wrist, and put on one handcuff.      Id.   Appellant

“pull[ed] back and started fighting.” Id. at 96. The officer told her to stop

resisting, warned her he would use pepper spray if she did not stop, and

“pulled her forward and swept her front leg.” Id. at 96. Appellant fell on

“her knees still resisting.”   Id.   Officer Floyd “gave her a couple more

warnings, stop, you’re going to be pepper sprayed,” but Appellant did not

stop and the officer did pepper spray her. Id. Officer Floyd was concerned

because a person who has on one handcuff and is pulling away presents “a

dangerous situation,” as the handcuff could become a weapon. Id. at 97.

At trial, the officer apologized for his “fat ass” remark and acknowledged it

“was very unprofessional.” Id. at 105.

      This case proceeded to a jury trial on October 10, 2013, on the

charges of resisting arrest, a misdemeanor of the second degree, and



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disorderly conduct, a misdemeanor of the third degree. The Commonwealth

called three witnesses: (1) Officer Floyd, (2) Lawrence Burke, one of the

people being detained by Officer Floyd when the incident with Appellant

occurred; and (3) Daniel Hockenberry, an eyewitness to the incident.

Appellant did not testify, but presented the testimony of Brenda Shaffer, an

employee at the Coney Island restaurant on the night in question. The jury

found Appellant guilty of both charges, and the trial court subsequently

found her not guilty of harassment.   We note that at trial, Appellant was

represented by privately retained counsel, Thomas Dickey, Esq.

     On December 17, 2013, the trial court convened a sentencing hearing.

The court indicated its intention to impose a sentence in the aggravated

range, and Appellant’s counsel strenuously argued against jail time.    The

court did impose an aggravated-range sentence as follows: (1) for resisting

arrest, imprisonment of three days to twelve months, with parole after three

days, and (2) for disorderly conduct, twelve months’ probation, to run

concurrently.

     On December 27, 2013, Appellant filed a timely, counseled post-

sentence motion.   On the same day, Attorney Dickey filed a petition to

withdraw from representation, averring Appellant wished to pursue claims

that he provided ineffective assistance. The court granted counsel leave to

withdraw on January 3, 2014. On January 27th, the court denied Appellant’s

post-sentence motion. We note Appellant did not make any claim before the



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trial court of counsel’s ineffective assistance, either in her post-sentence

motion or after the court allowed Attorney Dickey to withdraw.3 Appellant

filed a pro se timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b)

statement of matters complained of on appeal. As stated above, Appellant

proceeds pro se in this appeal.

      Appellant’s first two issues challenge the sufficiency and weight of the

evidence, and include a multitude of sub-claims.     In the statement of the

facts section in her appellate brief, Appellant alleges she “was advised

against her wishes not to testify by her counsel so her account of the facts of

the case are not on the appeal record for review.”4 Appellant’s Brief at 7.

She then presents her account of the incident, which differs from Officer

Floyd’s trial testimony.5 Id. We cannot consider this version of the facts,


3
 As we discuss infra, however, she raised the claim for the first time in her
Pa.R.A.P. 1925(b) statement.
4
  Appellant also avers she “filed a civil suit in March 2014 related to this
criminal case,” and that “[h]er sworn factual background statements . . . can
be found by reviewing 3:14-v-00046-KRG-KAP RIGGS v. FLOYD et al,
Docket No. 8, Amended Complaint.”           Appellant’s Brief at 7.    These
documents are not included in the certified record in this appeal, and
therefore we do not review them.
5
  Appellant avers the following in her appellate brief. When she and a friend
entered the Coney Island restaurant, the “fighting and chaos [were] already
over,” “[t]he officers had the scene under control and patrons continued to
go in and out of the restaurant.” Appellant’s Brief at 7. When Officer Floyd
said she had bumped into him, Appellant said, “I’m sorry Sir, I didn’t realize
I had.” Id. at 8. Officer Floyd, however, “angrily replied, ‘Well you did!,”
and Appellant apologized again, turned, and walked away “to avoid any
further confrontation.” Id. Officer Floyd “yelled in her direction, ‘Hey Fat



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however, because it is not a part of the certified record.     See Pa.R.A.P.

1921, note (“An appellate court may consider only the facts which have been

duly certified in the record on appeal.”).     Instead, we review only the

evidence adduced at trial.

      Appellant’s first issue on appeal is the sufficiency of the evidence to

establish resisting arrest and disorderly conduct.        She presents two

arguments in support, which we address seriatim.       First, Appellant claims

the resisting arrest conviction cannot stand because the underlying arrest for

disorderly conduct was unlawful.     She contends there was no evidence

suggesting she “had the intent of having any contact with Officer Floyd let

along being disorderly or causing any type of commotion to commit a

crime.”   Appellant’s Brief at 15.   Appellant further avers “Officer Floyd

conveniently omitted in the Affidavit of Probable Cause [attached to the

criminal complaint] that he called [her] a ‘Fat Ass’ twice,” and that had he



Ass!,’” Appellant turned and asked “in an offended tone, ‘What did you just
call me?’,” and the officer again called her “a Fat Ass.” Id. Appellant told
him “his comments were uncalled for,” and the officer immediately grabbed
and twisted her left wrist, “leg swept her” foot, causing her to fall on her
knee and both forearms and causing her cell phone to fall and break. Id. at
9. “Without warning . . . Officer Floyd pepper sprayed [her] eyes and chest
area.” Id. Appellant screamed “You’re getting sued for this!,” and the
officer “replied, ‘You’re under arrest!’” Id. at 9.

Appellant further states she was transported to the police garage and then
the hospital “to have her eyes flushed out” and be checked for other injuries.
Id. at 9. An officer asked her to take a blood alcohol level test, but
Appellant refused because “she landed on both forearms and they were
badly bruised and lacerated.” Id.



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not called her this inappropriate name, “the altercation never would have

taken place.” Id. We find no relief is due.

      This Court has stated:

         [O]ur standard of review of sufficiency claims requires that
         we evaluate the record “in the light most favorable to the
         verdict winner giving the prosecution the benefit of all
         reasonable inferences to be drawn from the evidence.”
         “Evidence will be deemed sufficient to support the verdict
         when it establishes each material element of the crime
         charged and the commission thereof by the accused,
         beyond a reasonable doubt.”

Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (citations

omitted).

         In assessing the trial court’s ruling [on a post-sentence
         motion], we must “review[ ] the trial court’s exercise of
         discretion, not the underlying question of whether the
         verdict is against the weight of the evidence.” The fact-
         finder is free to believe all, part, or none of the evidence;
         an appellate court will not make its own assessment of the
         credibility of the evidence. “The 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.”

Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super. 2013) (citations

omitted).

      Appellant was convicted under the following subsection of the

disorderly conduct statute: “A person is guilty of disorderly conduct if, with



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intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, he: . . . (4) creates a hazardous or physically

offensive condition by any act which serves no legitimate purpose of the

actor.” See 18 Pa.C.S. § 5503(a)(4).

         Inherent in the act of physically attempting to impede a
         law enforcement officer from carrying out his or her official
         duties in the public arena is the risk of creating a condition
         hazardous or physically offensive in nature. [W]e have
         held, ‘the reckless creation of a risk of public alarm,
         annoyance or inconvenience is as criminal as actually
         causing such sentiments.’”

Commonwealth v. Love, 896 A.2d 1276, 1286 (Pa. Super. 2006) (citation

omitted).

      The Pennsylvania Crimes Code defines resisting arrest as follows:

         A person commits a misdemeanor of the second degree if,
         with the intent of preventing a public servant from
         effecting a lawful arrest or discharging any other duty, the
         person creates a substantial risk of bodily injury to the
         public servant or anyone else, or employs means justifying
         or requiring substantial force to overcome the resistance.

18 Pa.C.S. § 5104. “[A] lawful arrest is an element of the crime of resisting

arrest,” and “the lawfulness of an arrest depends on the existence of

probable cause to arrest the defendant.”         Rahman, 75 A.3d at 504

(citations omitted).   “Probable cause to arrest exists when the facts and

circumstances within the police officer’s knowledge and of which the officer

has reasonably trustworthy information are sufficient in themselves to

warrant a person of reasonable caution in the belief that an offense has been

committed by the person to be arrested.          Probable cause justifying a


                                     -8-
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warrantless arrest is determined by the totality of the circumstances.”

Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa. Super. 2013) (citations

omitted).

      In the instant appeal, we disagree with Appellant’s claim that “[t]here

is no reference anywhere in the record that suggests [she] had the intent of

. . . causing any type of commotion to commit a crime.”6 Appellant’s Brief at

16.   At trial, Officer Floyd clearly testified that although he made an

“unprofessional” comment to Appellant, he initially told her to leave and “call

it a night.” N.T. Trial at 94, 105. Appellant refused and stated she would

instead return inside the restaurant.      Id. at 94.   Officer Floyd agreed,

stating, “[O]kay, just get in the restaurant and get out of here.” Id. at 95.

Instead of leaving, however, Appellant was “demonstrative” and yelled, “Eff

you, you don’t know who you’re eff-ing dealing with, you’re an eff-ing peon,

you don’t know, better Google my name[, and] you apparently don’t know

who I am.”     Id. at 95-96.   It was at this point that Officer Floyd placed

Appellant under arrest. Id. at 96.

      We emphasize, as the trial court did, the context in which this

exchange occurred.     At the time, all members of the Johnstown police

6
  Appellant further avers, “No one in their [sic] right mind would purposely
bump into an officer for no reason or respond ‘Oh well’ if the officer told
them they [sic] bumped into him.” Appellant’s Brief at 16. However, that
was exactly the testimony of Officer Floyd; he testified that Appellant
“bumped into [him], nudged [him] from the rear,” with enough force to
cause him to lose his balance and take three steps forward. N.T. Trial, at
92.



                                     -9-
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force—four or five officers, according to the trial court—were called to

respond to fights and intoxicated behavior at a crowded restaurant on the

night of St. Patrick’s Day.   Appellant’s own witness, Brenda Shaffer—who

was the person who called the police—testified that “[t]he crowd” of

“[d]runks” had become “really out of hand and banging on the window.” Id.

at 142. While Appellant was yelling and swearing at Officer Floyd, he was

watching three people who were being detained against a wall; indeed, he

had told her to leave because he was “concerned about the three people

[he] had detained because . . . that was [his] original mission.” Id. at 95.

      Furthermore, we note Appellant also wholly ignores the testimony of

the Commonwealth’s other witnesses, which corroborated that of Officer

Floyd. Lawrence Burke was one of the individuals being detained by Officer

Floyd when Appellant bumped into the officer. He testified to the following.

When Appellant brushed into Officer Floyd, the officer asked her twice where

she was going, and she did not respond. Appellant “turned around and was

like, f--- you.” N.T. Trial at 33. They argued for “a good two minutes,” and

Appellant was yelling.    Id. at 35, 36.      Burke thought the officers “were

trying to get her to calm . . . down but it got so out of control.” Id. at 36.

The officers told Appellant “to get on the ground” but she refused, and “she

was resisting for a good minute and a half . . . yelling back at the police like,

no, I’m going to.” Id. at 36-37. Burke also testified he had been drinking

alcohol, and eventually pleaded to public drunkenness and disorderly



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conduct. Id. at 23, 37.

      Furthermore, Daniel Hockenberry testified to the following.       He was

not drinking alcohol, and arrived at Coney Island sometime after 2:00 a.m.

to eat. Id. at 73. At that time, he knew Officer Floyd and recognized him

outside the restaurant. Id. at 75-76. Hockenberry saw a woman “trying to

talk” to Officer Floyd, and “Officer Floyd instructed her to go back to her car”

a few times.     Id. at 76-77.      “They had words, and the next thing

[Hockenberry knew,] she was face-first into the sidewalk.” Id. at 77. One

officer tried to handcuff her, but “she was kicking.”      Id.   “Officer Floyd

maced her and they got the handcuffs on her.” Id.

      Finally, we reject Appellant’s request, despite her repeated claims that

her attorney unduly influenced her to not testify, to consider her account of

the events. Her version of the facts is not a part of the record and therefore

not before this Court to consider. Instead, the jury, as finder of fact, was

free to believe all, part, or none of the evidence presented at trial, and this

Court cannot re-assess the credibility of the witnesses. See Olsen, 82 A.3d

at 1049.

      In light of the foregoing, we disagree with Appellant’s contention that

the record is devoid of evidence suggesting she intended to “be[ ] disorderly

or caus[e] any type of commotion to commit a crime.” See Appellant’s Brief

at 16. Her claims that she “simply went to her car to get her cell phone to

make a call,” and that no altercation would have occurred if Officer Floyd



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had not “called her an inappropriate name” ignores the testimony by Officer

Floyd that after he told her twice to leave, she yelled and swore at him. See

id.   Appellant’s argument also ignores the testimony of Burke and

Hockenberry. After evaluating the record in the light most favorable to the

Commonwealth, we hold the evidence was sufficient for the jury to find

Appellant recklessly created a risk of public annoyance or alarm and

hazardous or physically offensive condition without any legitimate purpose.

See 18 Pa.C.S. § 5503(a)(4); Rahman, 75 A.3d at 500; Love, 896 A.2d at

1286. Thus, we do not disturb her conviction of disorderly conduct.

      Appellant’s sole challenge to the sufficiency of the evidence for

resisting arrest is that her arrest was unlawful.      We disagree.     After

reviewing the totality of the circumstances, we hold Officer Floyd had

probable cause to arrest her for disorderly conduct. See Weaver, 76 A.3d

at 565.

      Appellant’s next argument against the sufficiency of the evidence is

that her “language is protected by the First Amendment because no ‘fighting

words’ were used and Officer Floyd was never threatened by [her]

statements.”    Appellant’s Brief at 16.    This statement is a heading in

Appellant’s argument section, and there is no further argument concerning

the statements she made to Officer Floyd. Instead, the ensuing portion of

her brief—six sentences in total—is comprised of statements of law. Id. at

16-17.    Without any further discussion, we find this claim waived.    See



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Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) (noting

failure to develop argument with citation to and analysis of relevant

authority waives issue on review).

      Appellant’s second issue on appeal is that the jury’s verdict was

against the weight of the evidence.7 Again, she advances several theories in

support.8 First, she argues the “court abused its discretion by not allowing

evidence of Officer Floyd’s prior acts of physical aggression.”      Appellant’s

Brief at 18. This claim pertains to an evidentiary ruling, and not the weight

of the evidence, and this evidentiary challenge was not raised in Appellant’s

pro   se   court-ordered   Pa.R.A.P.    1925(b)   statement.   See    Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).       In

the Rule 1925(b) statement, under the heading, “New Trial (Weight of the

Evidence),” Appellant states in pertinent part:

           [Appellant] had concrete evidence she was not permitted
           to disclose to the jury about Reginald Floyd’s past history
           of lying under oath when he was testifying about his
           previous assault on a female citizen. The greater weight of
           the evidence showed Reginald Floyd to be the aggressor
           and to have acted wrongfully with respect to the offenses
           of which [Appellant] was convicted.


7
 This issue is preserved for appellate review, as it was raised in Appellant’s
post-sentence motion. See Pa.R.Crim.P. 607(A).
8
  For ease of disposition, we have reordered the four arguments under
Appellant’s weight of the evidence claim.




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Appellant’s Concise Statement of Errors Complained of on Appeal, 3/26/14,

at 5.      Appellant only indirectly refers to the exclusion of evidence as a

supporting argument for her main claim—that Officer Floyd was not credible.

Accordingly, we agree with the Commonwealth that this issue is waived. See

Pa.R.A.P. 1925(b)(4)(vii); Commonwealth’s Brief at 13-14.

        Second, Appellant alleges that between the affidavit of probable cause

accompanying the criminal complaint and the suppression hearing, Officer

Floyd made inconsistent statements as to when he placed her under arrest.

Appellant fails to cite the place in the record where the alleged inconsistent

statements were presented to the jury at trial.        See Pa.R.A.P. 2117(c)

(requiring statement of case to specify state of proceedings at which issue

sought to be reviewed on appeal was raised), 2119(e) (requiring same of

argument section of appellate brief). Nevertheless, this Court has gleaned

the following.

        On appeal, Appellant cites the following statement in the affidavit of

probable cause: “[Appellant] stated that if I continued to yell at [her,] she

would file harassment charges.         I then did inform [her she] was under

arrest.”    Appellant’s Brief at 18.   This passage was read aloud at trial by

Officer Floyd. N.T. Trial at 128-29.

        Appellant also cites Officer Floyd’s testimony at page 55 of the

suppression hearing transcript.        Her appellate brief omits some of the

testimony; we set forth the complete passage, emphasizing the part missing



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in Appellant’s brief:

          [Appellant] said, I’m not going in my car, I’m going back
          into Coney Island. So that’s when I said, you know
          what, get in Coney Island, get out of here. [She]
          continued to run [her] mouth, you don’t know who you’re
          messing with, blah, blah, blah, blah, blah, blah, blah. I
          said, at this point, you know what, you’re under arrest.

See N.T. Suppression H’rg, 1/17/13, at 55 (emphasis added).              Appellant

next claims Officer Floyd “contradict[ed] himself a few questions later” with

this testimony:

          . . . I looked at Coney Island, there was a large crowd of
          people, and [Appellant] was somewhat agitated. So at this
          point I made the decision that I cannot let [her] go into
          Coney Island. At that point, I told [her she was] under
          arrest and needed to stop.”

Appellant’s Brief at 18 (quoting N.T. Suppression H’rg at 56).

      Our review of the trial transcript, however, reveals that neither of the

suppression    hearing   passages    was   presented   to   the   jury   at   trial.

Accordingly, Appellant’s premise is incorrect; the jury did not hear the above

suppression hearing testimony and thus any weight of the evidence

challenge cannot be based on these statements.

      Appellant’s next argument in her weight of the evidence challenge is

that “[t]he greater weight of the evidence shows that [her] acts and

omissions . . . were justified for purposes of 18 Pa.C.S. § [5]503,” as “she

could tell [Officer Floyd] was in an agitated state based on his conduct and

words.”   Appellant’s Brief at 20.    Appellant avers she walked away from

Officer Floyd, but “he continued to harass and follow her towards the


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entrance of Coney Island,” and therefore her “actions were justified . . .

because she was not the person who initiated the contact nor did she want

it.”   Id.   Appellant’s next claim is that she was “unduly influenced not to

testify,” and thus the jury only heard “the testimony of Officer Floyd, in

which he painted [her] in a very negative light.” Id. We find no relief due.

       The jury heard the evidence presented and was free to believe all,

part, or none of it. See Olsen, 82 A.3d at 1049. We thus also reject any

claim based on Appellant’s account of the incident; as stated above, we

cannot consider any alleged fact not included in the certified record.   See

Pa.R.A.P. 1921, note. For all the foregoing reasons, we find no relief due on

Appellant’s weight of the evidence claim.

       Appellant’s third issue on appeal is whether the trial court should

“have granted a new trial due to ineffective assistance of counsel.”

Appellant’s Brief at 21. She avers “[t]he following arguments were made in

[her] Concise Statements of Errors Complained of on Appeal” and “have

considerable merit.”      Id.   Appellant asserts trial counsel (1) unduly

influenced her not to testify, despite her repeated statements that she

wished to testify; (2) failed to investigate and subpoena certain witnesses

about the alleged destruction or concealment of a videotape of the incident;

and (3) failed to impeach two Commonwealth witnesses.

       We hold this issue is waived for failure to raise it before the trial




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court.9      See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”). Furthermore, a

claim of ineffective assistance of counsel should generally be deferred to

collateral     review     under   the    Post   Conviction       Relief   Act10   (“PCRA”).

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). We note that

Appellant may be precluded from PCRA review because of her relatively

short sentence.11 See 42 Pa.C.S. § 9543(a)(1)(i) (stating that to be eligible

for    PCRA     relief,   petitioner    must    be   currently     serving   sentence    of

imprisonment, probation or parole at time relief is granted). Nevertheless,

the Pennsylvania Supreme Court clearly held that any review of a

ineffectiveness claim before collateral review is within the trial court’s

discretion.    Holmes, 79 A.3d at 563 (“[W]e appreciate that there may be

extraordinary circumstances where a discrete claim . . . of trial counsel

ineffectiveness is apparent from the record and meritorious to the extent

9
  As stated above, Appellant raised the ineffectiveness claim for the first
time in her Rule 1925(b) statement. However, this inclusion does not
preserve the issue for appeal, as at that point, the trial court had lost
jurisdiction to hear any new claim or enter relief. See Pa.R.A.P. 1701(a)
(stating general rule that after appeal is taken, trial court may no longer
proceed further in matter).
10
     42 Pa.C.S. §§ 9541-9546.
11
  On December 17, 2013, the court imposed a maximum sentence of twelve
months’ imprisonment with immediate probation and a concurrent term of
twelve months’ probation.    Assuming Appellant has not violated her
probation or parole, the sentence would have expired on December 17,
2014.




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that immediate consideration best serves the interests of justice; and we

hold that trial courts retain their discretion to entertain such claims.”).12

Here, the court was not presented with any proper claim of ineffectiveness.

      Appellant’s final issue on appeal is a challenge to the discretionary

aspects of her sentence.        She first avers her sentence, which is in the

aggravated range, is manifestly excessive. She maintains the suggested

guideline ranges for both resisting arrest and disorderly conduct is twenty-

five to fifty hours’ community service, and she received sentences of three

days to twelve months’ imprisonment and twelve months’ probation.

Appellant alleges the court based the sentence on “incorrect[ ] facts,” acted

with bias, “had no justifiable or reasonable basis to sentence . . . outside the

guidelines,” and “abus[ed] his authority to ‘punish and humiliate’ her.”

Appellant’s Brief at 26.   She further challenges the trial court’s statement

that it was imposing three days’ imprisonment as a “reality check” for her.

Id. We find no relief is due.

      We first consider whether Appellant has preserved her issue.         This

Court has stated:

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of

12
  We emphasize we offer no opinion as to whether Appellant has a
meritorious ineffectiveness claim.



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J. S17006/15

        appeal with respect to the discretionary aspects of
        sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the
        concise statement raises a substantial question that the
        sentence is appropriate under the sentencing code. . . .
        [I]f the appeal satisfies each of these four requirements
        we will then proceed to decide the substantive merits of
        the case.

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014) (some

citations omitted), appeal denied, 95 A.3d 275 (Pa. 2014). This Court has

held “an allegation of bias in sentencing implicates the fundamental norms

underlying   sentencing    and   .   .   .    raises   a   substantial   question.”

Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011).

     Here, Appellant has filed a timely notice of appeal and preserved her

claim in the post-sentence motion. See Antidormi, 84 A.3d at 759. In her

appellate brief, Appellant includes the heading, “Statement of the Reasons to

Allow an Appeal to Challenge the Discretionary Aspects of a Sentence.”

Appellant’s Brief at 23.   However, there is no separate Pa.R.A.P. 2119(f)

statement, and instead Appellant includes only her argument. See Pa.R.A.P.

2119(f). Nevertheless, the Commonwealth has not objected to the lack of a

Rule 2119(f) statement, and thus we will not find waiver on this basis. See

Antidormi, 84 A.3d at 759. Finally, Appellant’s claim that the court acted

with bias raises a substantial question.         See Corley, 31 A.3d at 297.

Accordingly, we proceed to the merits of Appellant’s claim.

     This Court has stated:

        Sentencing is a matter vested in the sound discretion of
        the sentencing judge, and a sentence will not be disturbed


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J. S17006/15

         on appeal absent a manifest abuse of discretion. In this
         context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the appellant must establish,
         by 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.

Antidormi, 84 A.3d at 760 (citation omitted).

      Appellant acknowledges the trial court’s statement of why it imposed a

sentence in the aggravated range.           Appellant’s Brief at 25.      The court

reviewed      the   pre-sentence     investigation   report   and   the   sentencing

guidelines.     N.T. Sentencing, 12/17/13, at 11; Trial Ct. Op. at 3.             At

sentencing, Appellant maintained her innocence. N.T. Sentencing at 5, 14-

15. The court cited “unusual factors in this case,” including its dismissal of

some of the charges based on the Commonwealth’s failure to sustain its

burden of proof.       Id. at 6.      The court also considered Officer Floyd’s

“attitude” and “unprofessional statement,” and acknowledged the officer’s

comment “may have been a reason for [Appellant’s] actions,” “[b]ut it’s not

a justification.”    Id. at 6-7; see also id. at 12 (“I’m not here to make

excuses for the police officer’s behavior or actions.         I told you I think it’s

wrong.     It’s unprofessional.”).    The court found, “In any event, the case

went to trial, and the jury made [its] decision,” and “the fact remains that

the jury did find [Appellant] guilty of the two charges.” Id. at 6.

      The court also stated, “[T]hrough all of the pretrial discussions and the

suppression hearings, and all the other court dates and interaction that I had



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with [Appellant’s] attorney, I never saw any remorse or contrition for what

happened here.”       Id. at 7; see also id. at 16.     The court conceded this

matter

           wasn’t the crime of the century, but depending on . . .
           what part of the testimonies you take, we had a St.
           Patrick’s Day evening[,] anywhere from 30 to 70 people
           that were obviously under the influence of alcohol or some
           other substance[, and] testimony that people were
           banging on the windows of the Coney Island Restaurant. I
           think we had maybe four or five police officers, and the
           part that got me the most was this. [Daniel Hockenberry,
           who] hadn’t been drinking said he saw all of this
           commotion[ and] the people up against the wall. He
           wanted to go to the Coney Island, so he took a path
           around the commotion and went into the Coney Island.

              If [Appellant] had done that, we wouldn’t be here
           today.

Id. at 7. The court addressed Appellant:

               But you chose to go right into the middle of the fray
           when the police officers had three or four people up
           against the wall. And as I recall, . . . one of [those] people
           [had] a deadly weapon[, a knife.13] So we had a near riot
           situation, and instead of respecting the police, and
           respecting the situation, you aggravated the situation. So
           for those reason, I am going to go outside of the standard
           range.

                                    *     *      *

           [M]y departure is based on my conclusion that your
           conduct is different from the conduct of a defendant
           usually convicted of these two charges, the resisting arrest
           and the disorderly conduct. Other people avoided this
           confrontation.


13
     N.T. Trial at 41, 52.



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J. S17006/15

            This could have been a very, very, very—it was a very
         volatile situation, and it could have exploded. And quite
         frankly, . . . the police officers didn’t have the manpower
         to control it if it would have gone the other way. . . .

Id. at 8-9; see also Trial Ct. Op. at 4 (citing court’s rationale at sentencing

hearing).

      The court also stated its reason for its sentence, which included three

days’ imprisonment: “I think, in my experience, that you need a reality

check with your view relative to authority and how you act in society. I’m

hoping that this three days does it. If it does, fine. If it doesn’t, it doesn’t.”

N.T. Sentencing at 17.

      In light of the court’s thorough explanation for its sentence, we

disagree with Appellant that it abused its discretion or acted with bias.14


14
   Appellant further argues the court acted with bias post-sentencing. For
context, we note that at the December 17, 2013 sentencing hearing, the
court directed Appellant to report to prison on December 20th at 9:00 a.m.,
and stated she would be released on December 23rd. N.T. Sentencing at
17. On appeal, Appellant avers (1) on the day after the sentencing hearing,
she was admitted to the hospital “for MRSA;” (2) the court “wanted to make
sure she would be in jail during Christmas” and ordered her to report to jail
within two hours of discharge; (3) she was discharged on December 23rd
but did not report to prison because because her doctor instructed her “not
to report to work or school until seen by the specialist because her incision
could still be contagious and the dressing needed to be changed daily,” and
because she wanted to consult with her attorney; and (4) the court “wanted
her to spend Christmas in jail no matter what the consequences were” and
issued a bench warrant. Appellant’s Brief at 26-27. Appellant further
asserts she reported to prison on December 26th, and the following day, the
court: (1) denied her motion for bond pending appeal; and (2) sentenced
her to serve an additional four days for violating the court order, “which fell
over the New Year’s holiday.” Id.; see Order, 12/27/13. Finally, Appellant
directs this Court’s attention to a news article on the internet allegedly about



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See Antidormi, 84 A.3d at 760.       Instead, it considered Appellant’s pre-

sentence investigation report—which indicated she had no prior record—the

sentencing guidelines, and the facts of this case. We reject her claim that

the court was “not permitted to legally give ‘reality check’ jail sentences

based on personal bias.” See Appellant’s Brief at 26. Instead, the court had

authority to act under Sections 9721(b) and 9725(b) of the Sentencing

Code.     See 42 Pa.C.S. §§ 9721(b) (providing that when selecting from

sentencing alternatives, court shall follow general principle that sentence

should call for confinement that is consistent with defendant’s rehabilitative

needs), 9725(b) (stating court shall impose total confinement if, having

regard to nature and circumstances of crime and defendant’s character,

defendant is in need of correctional treatment that can be provided most

effectively by commitment to institution). Accordingly, we find no relief is

due.

        Judgment of sentence affirmed.




the trial judge “allow[ing] a rapist out of jail for 5-6 days to treat a skin
infection, which did not require him to be hospitalized.” Appellant’s Brief at
27.

We find all of the above claims waived, as Appellant did not raise them
before the trial court. See Pa.R.A.P. 302(a).




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J. S17006/15

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2015




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