J-A25016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN J. SYGA

                            Appellant                 No. 2477 EDA 2014


             Appeal from the Judgment of Sentence April 11, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008932-2009


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                         FILED NOVEMBER 16, 2015

        Appellant, John J. Syga, appeals from the April 11, 2014 aggregate

judgment of sentence of 10 to 20 years’ imprisonment, imposed after he

was found guilty of one count each of simple assault, aggravated assault,

and recklessly endangering another person (REAP).1         After careful review,

we affirm.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

              On May 8, 2009, at around 3:00 a.m., Larry Jones
              heard someone screaming for help as he exited the
              back door of his apartment on the 7100 block of
              Oxford Avenue, Philadelphia. Mr. Jones determined
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2701(a), 2702(a), and 2705, respectively.
J-A25016-15


          that the screaming was coming from the rear parking
          lot of an apartment complex at 7110 Oxford Avenue,
          where he saw a young woman, later identified as
          Jeanette Mercado, lying on the black concrete
          surface. As Ms. Mercado lay defenseless on the
          ground, [Appellant] was observed kicking her in the
          head and face. Mr. Jones also saw another man,
          later identified as Eric Garcia, with [Appellant].
          However, he did not see Garcia strike or kick Ms.
          Mercado at that time. Instead, Mr. Jones saw Garcia
          pulling items from Ms. Mercado’s bag as he searched
          it.

                After witnessing this incident, Mr. Jones
          approached off-duty Police Officers Edwin Correa and
          Ralph Harris (now Sergeant) who were standing in a
          parking lot outside of the Princeton Tavern at 7100
          Rising Sun Avenue. He advised the officers of his
          observation and Officers Correa and Harris walked
          from 7100 Rising Sun Avenue to the parking lot at
          7110 Oxford Avenue. They arrived on the scene
          within fifteen seconds. Officers Correa and Harris
          observed both [Appellant] and Garcia kicking Ms.
          Mercado in the head and upper torso while she was
          lying on the ground. [Appellant] was on one side of
          Ms. Mercado’s body and Garcia was on the other
          side. [Appellant] and Garcia continued to kick Ms.
          Mercado as she lay motionless, moaning and
          groaning from the assault. As Officers Correa and
          Harris moved closer, they saw [Appellant] and Garcia
          pick up Ms. Mercado and attempt to place her in the
          back seat of a vehicle, later determined to belong to
          [Appellant]. The men were folding Ms. Mercado’s
          body as if it were a lawn chair, and placing her inside
          the vehicle.

                Officers    Correa    and    Harris    identified
          themselves as police officers, and Officer Correa
          ordered [Appellant] and Garcia to stop what they
          were doing. Both men turned and stated that they
          were helping a friend. When Officers Correa and
          Harris approached the vehicle, they heard Ms.
          Mercado gurgling loudly and observed that she was
          having difficulty breathing. Officer Harris asked her

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J-A25016-15


          questions, but received no response. Ms. Mercado
          was unconscious, and bleeding from the nose and
          mouth. There was blood on her face and body, and
          on the floor of the vehicle. Officers Correa and
          Harris tried to ascertain her name, but they could
          not find any identification documents among the
          various items spread out on the ground, about two
          to four feet away from the vehicle. Officer Correa
          drew his weapon and ordered the men to stop
          moving and to lie down in a prone position on the
          ground. The men complied.

                Afterwards, Officer Correa called 911 and
          requested medical assistance. At around 3:30 a.m.,
          Police Officers Robert Livewell and Kenneth Smith
          responded to a radio call of a person screaming at
          that location. Within minutes, Officers Livewell and
          Smith arrived on the scene and exited their patrol
          vehicle. They encountered off-duty Officers Correa
          and Harris, who requested that they arrest
          [Appellant] and Garcia.

                 Officers Correa and Harris both pointed to a
          gold Dodge Stratus and stated: “She is real bad.
          She is real bad.” When Officer Smith approached
          the vehicle, he saw Ms. Mercado’s twisted and
          contorted body in the back seat. Ms. Mercado was
          semi-conscious, and she was barely breathing. She
          suffered head trauma, including multiple cuts on her
          head and a caved-in skull. There was blood on her
          face and in her hair. Officer Smith also saw the
          following items spread out on the ground: one black
          sneaker, one gold necklace, and a pair of sunglasses.
          Officers Livewell and Smith then arrested [Appellant]
          and Garcia. Officer Smith also prepared the incident
          report and the arrest memorandum. Ms. Mercado
          was simply referred to as “Jane Doe” until police
          later discovered her name.

                Ms. Mercado was transported by ambulance to
          the emergency room at Albert Einstein Medical
          Center, where she arrived unresponsive, sedated
          and paralyzed. She was placed on a ventilator after
          being diagnosed with respiratory failure. A catheter

                                  -3-
J-A25016-15


          was inserted. Ms. Mercado also suffered a small
          subarachnoid hemorrhage in her brain. She had
          lacerations on the left side and right side of her skull
          and bruises behind her left ear. After a drug screen,
          Ms. Mercado tested positive for cocaine, marijuana
          and opiates and negative for alcohol. Ms. Mercado
          was later transferred to the surgical intensive care
          unit for further treatment. On May 18, 2009, Ms.
          Mercado underwent two surgeries: a gastrostomy to
          insert a feeding tube and a tracheostomy to insert a
          breathing tube. On May 22, 2009, Ms. Mercado
          opened her eyes for the first time, but she was
          unable to follow commands. On May 23, 2009, Ms.
          Mercado was transferred from the surgical intensive
          care unit to the step-down unit.

                On June 4, 2009, Ms. Mercado was discharged
          to the Drucker Brain Injury Center at Moss
          Rehabilitation in Elkins Park, Pennsylvania. At that
          time, she was diagnosed with bleeding in the brain
          and traumatic brain injury. Ms. Mercado was in a
          minimally conscious state and she did not
          demonstrate oral movements or attempt to
          communicate.       During her stay, Ms. Mercado
          underwent physical therapy five days each week in
          order to learn how to walk, talk and sit upright on
          her own.

                 Ms. Mercado’s catheter was removed on June
          4, 2009. Her breathing tube was removed on June
          11, 2009, and her feeding tube was removed on July
          2, 2009. As of June 11, 2009, she was still blind. By
          July 13, 2009, Ms. Mercado had regained her vision,
          albeit impaired. She had missing teeth and required
          assistance with her oral care. On July 17, 2009, Ms.
          Mercado was discharged from the rehabilitation
          center to her family’s care. Upon discharge, she was
          instructed not to shower, dress, or use the bathroom
          without assistance. She was further instructed to
          complete a home exercise plan with assistance and
          to take five medications daily. At that time, she was
          unable to drive, ride a bike, walk a dog, or engage in
          any activity requiring a high level of balance. At
          trial, Ms. Mercado stated that she did not remember

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J-A25016-15


              the incident, but that she knew she had been in a
              coma for eight [days]. She further stated that she
              had difficulty learning Spanish and English again.

                    [Appellant] testified at trial and stated that he
              and Garcia had been out drinking that evening, and
              that afterwards he drove Garcia to the Kensington
              section of Philadelphia to pick up a prostitute. He
              went on to say that after Garcia picked up Ms.
              Mercado, [Appellant] drove to Garcia’s apartment
              complex at 7210 Oxford Avenue, which is next to
              and shares a parking lot with the apartment complex
              at 7110 Oxford Avenue. While en route to the
              apartment, Garcia called his girlfriend on a cell
              phone. [Appellant] stated that Garcia became angry
              with Ms. Mercado because she began to talk loudly
              while he was on the phone with his girlfriend.
              [Appellant] further stated that Garcia and Ms.
              Mercado were in a shouting match for about five
              minutes. When they arrived at the rear parking lot
              of his apartment complex, Garcia and Ms. Mercado
              exited the vehicle. [Appellant] vigorously denied
              repeatedly kicking Ms. Mercado in her head and
              upper torso. He claimed that Garcia was the only
              one who assaulted her in that manner. [Appellant]
              admitted to slapping Ms. Mercado in the face several
              times, but claimed that he did so only to calm her
              down.

Trial Court Opinion, 12/31/14, 2-5 (internal citations omitted).

        On July 23, 2009, the Commonwealth filed an information charging

Appellant with the above-mentioned offenses, plus one count each of

criminal conspiracy, unlawful restraint, and false imprisonment.2 Appellant

proceeded to a jury trial, at the conclusion of which on January 16, 2014,

the jury found Appellant guilty of one count each of simple assault,
____________________________________________
2
    18 Pa.C.S.A. §§ 903(a)(1), 2902(a)(1), and 2903(a), respectively.



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J-A25016-15


aggravated assault, and REAP.              The jury found Appellant not guilty of

criminal conspiracy, and the unlawful restraint and false imprisonment

charges were nolle prossed. On March 13, 2014, Appellant filed a motion for

extraordinary      relief,   seeking   a   new   trial   on   the   grounds   that   the

Commonwealth committed a Brady[3] violation. The trial court denied said

motion on March 21, 2014. On April 11, 2014, the trial court imposed an

aggregate sentence of 10 to 20 years’ imprisonment.4 On April 18 and April

21, 2014, Appellant filed timely post-sentence motions. On April 30, 2014,

Appellant filed an untimely supplemental post-sentence motion. On August

19, 2014, the trial court entered an order denying Appellant’s post-sentence

motions by operation of law. See generally Pa.R.Crim.P. 720(B)(3)(c). On

August 20, 2014, Appellant filed a timely notice of appeal.5

        On appeal, Appellant raises the following five issues for our review.

              I.     Whether the trial court abused its discretion in
                     denying the jury’s request to view the prior
                     inconsistent statement of Officer Correa,
                     concerning the incident, which was a lynchpin
                     of Appellant’s defense?



____________________________________________
3
    Brady v. Maryland, 373 U.S. 83 (1963).
4
   Specifically, the trial court sentenced Appellant to 10 to 20 years’
incarceration for aggravated assault, and no further penalty on the
remaining charges.
5
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-A25016-15


          II.    Whether the trial court erred in denying
                 Appellant’s [m]otion for [e]xtraordinary [r]elief
                 based on the Commonwealth’s prosecutorial
                 misconduct by failing to provide critical Brady
                 material pretrial, in the nature of Appellant’s
                 Philadelphia arrest record, which could have
                 been used to impeach [Officer] Harris’s
                 testimony that he saw blood on Appellant’s
                 clothing and took pictures of such, where the
                 arrest record would have revealed that no such
                 pictures were taken by Officer Harris?

          III.   Whether this Court should grant review of the
                 discretionary aspect of sentencing because
                 [A]ppellant raises a substantial question that
                 imposition of the statutory maximum sentence
                 is not appropriate under the Sentencing Code?

                 a.    Whether the trial court abused its
                       discretion in sentencing Appellant to the
                       maximum authorized by law of not less
                       than ten (10) nor more than twenty (20)
                       years     in   a   [s]tate    [c]orrectional
                       [i]nstitution, which was more than triple
                       the     co-defendant’s     sentence,     not
                       supported by sufficient reasons stated on
                       the record, and failed to take into
                       account        [A]ppellant’s       personal
                       characteristics?

          IV.    Whether there was insufficient evidence to
                 support Appellant’s conviction for [a]ggravated
                 [a]ssault committing serious bodily injury, in
                 that the Commonwealth failed to prove that
                 Appellant caused serious bodily injury to the
                 victim, or was guilty as an accomplice?

          V.     Whether the weight of the evidence fails to
                 support the jury’s finding that Appellant is
                 guilty of [a]ggravated [a]ssault committing
                 serious    bodily   injury,   in   that    the
                 Commonwealth failed to prove that Appellant
                 caused serious bodily injury to the victim, or
                 was guilty as an accomplice?

                                    -7-
J-A25016-15



Appellant’s Brief at 6-7.

      We address Appellant’s fourth issue first, as the remedy for lack of

sufficient   evidence   is   a   discharge   order,   rather   than   a   new   trial.

Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011).                      Our

standard of review regarding the sufficiency of the Commonwealth’s

evidence is well settled.

      “In reviewing the sufficiency of the evidence, we consider whether the

evidence presented at trial, and all reasonable inferences drawn therefrom,

viewed in a light most favorable to the Commonwealth as the verdict winner,

support the jury’s verdict beyond a reasonable doubt.” Commonwealth v.

Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied,

Patterson v. Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth

can meet its burden by wholly circumstantial evidence and any doubt about

the defendant’s guilt is to be resolved by the fact finder unless the evidence

is so weak and inconclusive that, as a matter of law, no probability of fact

can be drawn from the combined circumstances.”                 Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation

marks and citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an

appellate court, we must review “the entire record … and all evidence

actually received[.]”    Id. (internal quotation marks and citation omitted).

“[T]he trier of fact while passing upon the credibility of witnesses and the

weight of the evidence produced is free to believe all, part or none of the

                                        -8-
J-A25016-15


evidence.”    Id. (citation omitted).    “Because evidentiary sufficiency is a

question of law, our standard of review is de novo and our scope of review is

plenary.”    Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013)

(citation omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145

(2014).

      Instantly, Appellant only challenges the sufficiency of the evidence for

his aggravated assault conviction. Appellant’s Brief at 40. The statute for

aggravated assault provides as follows.

             § 2702. Aggravated assault

             (a) Offense defined.--A          person   is   guilty   of
             aggravated assault if he:

                  (1) 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.A. § 2702(a)(1). The Crimes Code defines serious bodily injury as

“[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. Appellant

avers that the Commonwealth presented insufficient evidence to prove that

it was he who caused serious bodily injury to Mercado. Appellant’s Brief at

41.

      At trial, the Commonwealth presented several different eyewitnesses

to the assault on Mercado. Officer Correa testified that when he arrived on

                                        -9-
J-A25016-15


the scene he observed “two males standing and one body on the floor.”

N.T., 1/14/14, at 75. The two men were kicking Mercado, specifically “using

[their] right [feet] moving forward and down in a forceful manner.” Id. at

75-76.   Officer Correa identified Appellant as one of the two men he saw

kicking her.   Id.    Officer Harris testified that he also observed two men

kicking Mercado as she was lying on the ground. Id. at 43. Officer Harris

further identified Appellant in court as one of those men. Id. at 38, 42. In

addition, Jones testified that when he first heard someone screaming for

help and arrived on the scene, he observed Mercado behind a car with her

head protruding from behind the car. Id. at 6. Jones testified that someone

was stomping on her body as she lay there. Id. at 7. Jones also identified

that man as Appellant. Id. at 6.

      Our Supreme Court has held that the testimony of one eyewitness to

an   element   of    the   offense   is    sufficient   evidence   of   that    element.

Commonwealth          v.   Brown,         52   A.3d     1139,   1165     (Pa.    2012);

Commonwealth v. Duncan, 373 A.2d 1051, 1054 (Pa. 1977). Here, the

Commonwealth presented three eyewitnesses that each identified Appellant

as the perpetrator who repeatedly and forcefully kicked Mercado as she laid

on the ground. See generally N.T., 1/14/14, at 7, 42, 75-76. Based on




                                          - 10 -
J-A25016-15


these considerations, Appellant is not entitled to relief on this issue. 6 See

Patterson, supra; Diamond, supra.

       We next address Appellant’s first issue, where he avers that the trial

court erred when it refused the jury’s request to review a prior written

statement by Officer Correa. Appellant’s Brief at 26. The Commonwealth

counters that the trial court did not err, as allowing the jury to have only this

statement with it during deliberations would have placed undue emphasis on

Officer Correa’s written statement. Commonwealth’s Brief at 14. We note

that we review a trial court’s decision pertaining to a jury’s request to have

exhibits during deliberations for an abuse of discretion. Commonwealth v.

Parker, 104 A.3d 17, 25 (Pa. Super. 2014) (citation omitted), appeal

denied, 117 A.3d 296 (Pa. 2015).

       Pennsylvania Rule of Criminal Procedure 646 governs this issue

generally, and provides in relevant part as follows.

              Rule 646. Material Permitted in Possession of
              the Jury

              (A) Upon retiring, the jury may take with it such
              exhibits as the trial judge deems proper, except as
              provided in paragraph (C).

              (B) The trial judge may permit the members of the
              jury to have for use during deliberations written
____________________________________________
6
  Because we have concluded that the Commonwealth presented sufficient
evidence that Appellant was the principal perpetrator, we need not address
his argument that the Commonwealth did not present sufficient evidence to
convict him on an accomplice theory of liability.



                                          - 11 -
J-A25016-15


           copies of the portion of the judge’s charge on the
           elements of the offenses, lesser included offenses,
           and any defense upon which the jury has been
           instructed.

                (1) If the judge permits the jury to have
                written copies of the portion of the judge’s
                charge on the elements of the offenses, lesser
                included offenses, and any defense upon which
                the jury has been instructed, the judge shall
                provide that portion of the charge in its
                entirety.

                (2) The judge shall instruct the jury about the
                use of the written charge. At a minimum, the
                judge shall instruct the jurors that

                       (a) the entire charge, written and oral,
                       shall be given equal weight; and

                       (b) the jury may submit questions
                       regarding any portion of the charge.

           (C) During deliberations, the jury shall not be
           permitted to have:

                (1) a transcript of any trial testimony;

                (2) a copy of any written or otherwise recorded
                confession by the defendant;

                (3) a copy of the information or indictment;
                and

                (4) except as provided in paragraph (B),
                written jury instructions.

           (D) The jurors shall be permitted to have their notes
           for use during deliberations.

Pa.R.Crim.P. 646.   In addition, this Court has held that a trial court may

refuse to permit the jury to have one exhibit in its possession during


                                  - 12 -
J-A25016-15


deliberations if it will cause the jury to place undue emphasis on that

singular piece of evidence above others. Commonwealth v. Taylor, 596

A.2d 222, 224 (Pa. Super. 1991), appeal denied, 602 A.2d 859 (Pa. 1992).

      In Taylor, the defendant was convicted of various drug offenses and

the jury requested that a tape recorded conversation between Taylor and a

confidential informant be sent back so it could listen to it again. Id. The

trial court refused and we concluded that it was not an abuse of discretion.

Specifically, we agreed with the trial court that “the quality of the

reproduction was poor, and that he did not wish the jury to emphasize that

piece of evidence over the other evidence presented.” Id.; see also, e.g.,

Commonwealth v. Hall, 407 A.2d 1335, 1337 (Pa. Super. 1979) (stating

that the trial court did not abuse its discretion in deciding that the “re-

reading of the victim’s testimony was unnecessary and potentially prejudicial

to appellant because it might seemingly place undue emphasis on the

victim’s testimony[]”).

      In the case sub judice, the trial court concluded that the jury’s request

should be denied based on the following reasoning.

            [The trial] court deemed it inappropriate to send out
            [Officer Correa’s statement] because it would have
            unnecessarily highlighted that statement as no other
            statements were provided to the jury during its
            deliberations. [The trial] court denied the jury’s
            request to prevent undue emphasis being placed on
            that exhibit at the expense of other evidence
            presented at trial. … During this trial the jury had the
            opportunity to hear Officer Correa’s full testimony
            and to view his demeanor as he testified. Only a

                                     - 13 -
J-A25016-15


            portion of Officer Correa’s testimony involved the
            content of his statement. Instead of sending that
            statement out to the jury, [the trial] court instructed
            the jurors to rely upon their own recollections as to
            what Office Correa said and the circumstances under
            which he said it during their deliberations.

Trial Court Opinion, 12/31/14, at 8-9.

      After careful review, we conclude Appellant is not entitled to relief on

this issue. As we explained above, our cases state that undue emphasis is a

sufficient reason for the trial court to exercise its discretion to not send an

exhibit back to the jury. Taylor, supra; Hall, supra. The jurors’ original

request was for “[a]ll police reports, incident reports … arrest reports and

statements.” N.T., 1/16/14, at 57. The trial court concluded that the only

exhibit that was moved into evidence that did not contain any inadmissible

hearsay was Officer Correa’s statement. Id. at 62. The trial court did not

wish to overemphasize this one statement and de-emphasize other pieces of

evidence.   The trial court was well within its discretion to do so.      See

Taylor, supra; Hall, supra. Based on these considerations, we conclude

the trial court did not abuse its discretion in denying the jury’s request. See

Parker, supra.

      In his second issue, Appellant avers that the trial court erred when it

denied his motion for extraordinary relief, alleging that the Commonwealth

committed a Brady violation when it did not disclose the record of

Appellant’s arrest which allegedly contained impeachment information

regarding Officer Harris’s testimony, specifically photographs that Officer

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J-A25016-15


Harris allegedly took of Appellant.          Appellant’s Brief at 31.    The

Commonwealth counters that it did not commit a Brady violation because

the hypothetical evidence in question does not exist, and if it did, it was

inculpatory. Commonwealth’s Brief at 18.

     “Under Brady, the State violates a defendant’s right to due process if

it withholds evidence that is favorable to the defense and material to the

defendant’s guilt or punishment.”    Smith v. Cain, 132 S. Ct. 627, 630

(2012) (citation omitted).    “Thus, to establish a Brady violation, an

appellant must prove three elements: (1) the evidence at issue is favorable

to the accused, either because it is exculpatory or because it impeaches; (2)

the evidence was suppressed by the prosecution, either willfully or

inadvertently; and (3) prejudice ensued.”      Commonwealth v. Weiss, 81

A.3d 767, 783 (Pa. 2013) (citation omitted).

                 Pursuant to Brady and its progeny, the
           prosecutor has a duty to learn of all evidence that is
           favorable to the accused which is known by others
           acting on the government’s behalf in the case,
           including the police. Kyles v. Whitley, 514 U.S.
           419, 437 (1995).         Pursuant to Kyles, “the
           prosecutor’s Brady obligation clearly extends to
           exculpatory evidence in the files of police agencies of
           the same government bringing the prosecution.”
           Commonwealth v. Burke, 781 A.2d 1136, 1142
           ([Pa.] 2001). Moreover, there is no Brady violation
           when the defense has equal access to the allegedly
           withheld evidence. See Commonwealth v. Spotz,
           896 A.2d 1191, 1248 ([Pa.] 2006) (“It is well
           established that no Brady violation occurs where the
           parties had equal access to the information or if the
           defendant knew or could have uncovered such


                                    - 15 -
J-A25016-15


            evidence with reasonable            diligence[]”    (internal
            citation omitted)).

Id. (parallel citations omitted).

      After careful review, we conclude that Appellant is not entitled to

relief. Appellant has not shown that the disputed photographs ever existed,

such that they were withheld or suppressed by the Commonwealth.                 The

Commonwealth informed the trial court that neither its office nor the

Philadelphia Police Department were in possession of any photographs, other

than Appellant’s arrest photograph.        N.T., 4/11/14, at 25-26.         Nor were

there any evidence logs or other similar documents showing that such

photographs ever existed and then were lost.           Id.     We further note that

Appellant himself testified at trial that the police never took any photographs

of him at all, other than his arrest photograph.             N.T., 1/15/14, at 129.

Succinctly, Appellant has not provided any indication that these photographs

exist, much less that the Commonwealth withheld or suppressed them. As a

result, we conclude the trial court did not err when it denied Appellant’s

motion for extraordinary relief.

      In his fifth issue, Appellant argues that the jury’s verdict was against

the weight of the evidence.         We begin by noting our standard of review

regarding weight of the evidence issues. “A claim alleging the verdict was

against the weight of the evidence is addressed to the discretion of the trial

court.”   Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014)

(citation omitted).   An argument that the jury’s verdict was against the

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J-A25016-15


weight of the evidence concedes that the evidence was sufficient to sustain

the convictions.    Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa.

2013), cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our

Supreme Court has admonished that “[a] new trial should not be granted

because of a mere conflict in the testimony or because the judge on the

same facts would have arrived at a different conclusion.” Commonwealth

v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).         Instead, “the

trial judge is to determine that notwithstanding all the facts, certain facts are

so clearly of greater weight that to ignore them or to give them equal weight

with all the facts is to deny justice.”       Id. (internal quotation marks and

citation omitted). “[A] new trial should be awarded when the jury’s verdict

is so contrary to the evidence as to shock one’s sense of justice ….” Id.

      As an appellate court, it “is not [our role] to consider the underlying

question of whether the verdict is against the weight of the evidence.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).

An argument that the jury’s verdict was against the weight of the evidence

remains “[o]ne of the least assailable reasons for granting … a new trial ….”

Id. (citation omitted). “Thus, only where the facts and inferences disclose a

palpable abuse of discretion will the denial of a motion for a new trial based

on the weight of the evidence be upset on appeal.”        Id. (citation omitted;

emphasis in original).




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      In this case, Appellant avers the jury’s verdict was against the weight

of the evidence because Officer Correa, Officer Harris, and Jones had been

drinking on the night of the incident, Jones used crack cocaine, and Officer

Correa’s trial testimony differed from his written statement.              Appellant’s

Brief at 45. Appellant essentially argues the jury inaccurately weighed these

factors relative to Appellant’s testimony as well as other evidence. Id.

      Instantly, as noted above, the Commonwealth presented three

witnesses, Officers Correa and Harris, as well as Jones, all of whom

identified Appellant as assaulting Mercado on the night in question.                N.T.,

1/14/14, at 6, 38, 75-76.        Appellant in his brief, and at trial, highlighted

inconsistencies among the witnesses’ testimony as well as reasons why their

ability to recall events may have been impaired. See generally Appellant’s

Brief at 45. However, our cases are emphatically clear that as “an appellate

court [we] will not make [our] own assessment of the credibility of the

evidence.”    Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super.

2013) (citation omitted). “The jury sat as the finder of facts in this case[,

and   it]   was   in    the   best   position     to   view   the   demeanor   of    the

Commonwealth’s witnesses and to assess each witness’ credibility.” Id. In

this case, the jury was free to find the Commonwealth’s witnesses’ trial

testimony credible, find Appellant’s testimony not credible, and resolve any

inconsistencies    in     the   Commonwealth’s           favor.      See   generally

Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014) (concluding


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the weight of the evidence claim could not prevail as “the jury resolved the

inconsistencies among the testimonies as it saw fit and reached a

verdict[]”). The jury was presented with Officer Correa, Officer Harris, and

Jones’ testimony and Appellant’s own testimony. The jury weighed all of the

testimony and ultimately concluded that the officers and Jones were credible

and Appellant was not credible. As an appellate court, we will not reweigh

the evidence and substitute our judgment for that of the fact-finder. Olsen,

supra; Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013)

(citation omitted).   Based on these considerations, we conclude the trial

court did not commit a palpable abuse of discretion in deciding the jury’s

verdict was not against the weight of the evidence. See Morales, supra.

      Finally, in his third issue on appeal, Appellant contends the trial court

abused its discretion in going outside the sentencing guidelines and imposing

the statutory maximum sentence for aggravated assault. Appellant’s Brief at

40.   The Commonwealth counters that the record reveals the trial court

considered all the necessary factors and adequately explained its reasons for

the upward departure. Commonwealth’s Brief at 36.

      At the outset, we note that Appellant’s arguments pertain to the

discretionary aspects of his sentence.        It is axiomatic that in this

Commonwealth, “[t]here is no absolute right to appeal when challenging the

discretionary aspect of a sentence.”    Commonwealth v. Tobin, 89 A.3d

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant raises an


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argument pertaining to the discretionary aspects of the sentence, this Court

considers such an argument to be a petition for permission to appeal.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n

[a]ppeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc) (internal quotation marks and citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether   a     petition   for   permission     to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

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

Id.

      In the case sub judice, Appellant filed a timely post-sentence motion

and notice of appeal.      In addition, Appellant has included a Rule 2119(f)


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statement in his brief.     We therefore proceed to determine whether

Appellant has raised a substantial question for our review.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75

(Pa. 2013). “A substantial question exists only when the appellant advances

a colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”          Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”      Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

      Instantly, Appellant avers that the trial court erred at sentencing

because the imposition of the statutory maximum for aggravated assault

was “harsh and excessive” and the trial court gave “inadequate reasons … to

justify such a sentence.” Appellant’s Brief at 37. Appellant also argues that

the sentence is unreasonable because his co-defendant was sentenced to a

lesser term of three to seven years’ imprisonment by a different judge. Id.

Finally, Appellant argues that the trial court did not take into account his

employment history or his family life. Id. at 38.




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         We note that when a defendant claims that his sentence is excessive

because the trial court sentenced outside the guidelines and without

explanation, he or she has raised a substantial question for our review.

Commonwealth v. Tirado, 870 A.2d 362, 365-366 (Pa. Super. 2005)

(citations omitted).      This Court has also held that a claim of disparate

sentencing treatment between co-defendants raises a substantial question.

Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)

(citation omitted), appeal denied, 14 A.3d 825 (Pa. 2011).                Finally, “an

excessive sentence claim—in conjunction with an assertion that the court

failed    to   consider   mitigating   factors—raises   a   substantial    question.”

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

banc) (citation omitted).       As a result, we grant Appellant’s petition for

permission to appeal the discretionary aspects of his sentence, and proceed

to address the merits of his claims.

         We begin with our well-settled standard of review.

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

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

(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

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     We initially recognize that “where the court imposes a sentence

outside   the   sentencing   guidelines   ...   the   court   shall   provide   a

contemporaneous written statement of the reason or reasons for the

deviation from the guidelines.”   Commonwealth v. Leatherby, 116 A.3d

73, 83 (Pa. Super. 2015); accord 42 Pa.C.S.A. § 9721(b). “The court is not

required to parrot the words of the Sentencing Code, stating every factor

that must be considered under Section 9721(b) …. [T]he record as a whole

must reflect due consideration by the court of the statutory considerations.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014)

(citation omitted; brackets in original), appeal denied, 95 A.3d 275 (Pa.

2014).

            [Section 9721(b)] requires a trial judge who intends
            to sentence a defendant outside of the guidelines to
            demonstrate on the record, as a proper starting
            point, [its] awareness of the sentencing guidelines.
            Having done so, the sentencing court may deviate
            from the guidelines, if necessary, to fashion a
            sentence which takes into account the protection of
            the public, the rehabilitative needs of the defendant,
            and the gravity of the particular offense as it relates
            to the impact on the life of the victim and the
            community, so long as [it] also states of record the
            factual basis and specific reasons which compelled
            [it] to deviate from the guideline range.

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

omitted), appeal denied, 64 A.3d 640 (Pa. 2013).




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      In this case, the trial court gave the following statement on the record

during sentencing as to why it concluded an upward departure from the

guidelines was appropriate in this case.

                  I can tell all of you without fear of
            contradiction that this was an exceedingly difficult
            case to preside over. When the complainant came
            out, she was unable to recall any of the occurrences
            that led to her being, for a long period of time,
            essentially incapacitated.

                  This was like something out of a horror movie.
            Two young men out having a good time, and they
            decide to go into another area of the city to pick up a
            prostitute.

                  And what struck me about [Appellant]’s
            testimony, and he was a very good witness, is on the
            one hand his willingness to put most of the blame on
            his co-defendant, but he did say that once the victim
            was on the ground and having been kicked
            repeatedly, in his words, by his co-defendant, he, in
            an effort to intervene, did not call the authorities or
            pull the aggressor from the victim. He went over
            and got down on her and smacked her about the
            face in order, in his words, to stop her from crying
            out, because the more she did, the more [his co-
            defendant] would kick her.

                   It was very difficult to listen to his testimony,
            very difficult to listen to the account through the
            medical records of what this young woman suffered
            as a result of this beating. This was essentially a
            failed homicide, two men beating up on a woman for
            reasons only they are privy to.

                  I have read the reports, including the mental
            health evaluation, and the presentence investigation,
            with great care, and I can tell you that the person
            documented in the various letters that [Appellant]
            was so kind to submit to me is not the person who is
            described in [the Commonwealth]’s sentencing

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           memorandum, nor was he the person that the jury
           convicted of this heinous crime.

                  We are a society of drinkers, and despite the
           efforts of Mothers Against Drunk Driving and other
           groups, we remain very forgiving of people who
           imbibe and then voluntarily put themselves behind
           the wheel of a ton or 2 tons of steel and propel it
           throughout the society’s streets, highways, and the
           like. That’s akin to, in my humble opinion, firing a
           gun in a crowd. [Appellant] has done that twice.
           I’m mindful of the fact that he was given ARD in one
           instance. I’m mindful of the fact that this is his first
           felony conviction.

                  And what is so difficult for the [trial c]ourt is
           looking at who [Appellant] is on paper and who the
           jury found him to be.           This is a man who’s
           supporting two children. He went to college and is
           employed.      Yet the person [the Commonwealth]
           presents to the [trial c]ourt is a very different person
           who goes out and drinks and engages in conduct
           that is totally inconsistent with what we’d expect of a
           well-educated person in a civil society.

                 I have an obligation to impose the least
           amount of incarceration consistent with [Appellant]’s
           need for rehabilitation and society’s need for
           protection. I’m mindful of the Superior Court’s and
           the Supreme Court’s as well as the legislative
           imposition on me of my duty.            I take into
           consideration that which has been imposed on me by
           our appellate courts as well as our legislature. I
           reviewed and considered all of the reports.

                 I’ve given due consideration to [Appellant]’s
           statements to the [trial] court, but I remain
           convinced that he was then and he is now a
           dangerous man. Although I am more often than not
           given to following the guidelines, this is a case
           wherein an upward departure is not simply called for
           but required.

N.T., 4/11/14, at 52-56.

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J-A25016-15


         In our view, the trial court’s statement is wholly adequate to support

its sentence. At the beginning of the sentencing proceeding, the trial court

reviewed the guidelines with both parties, and they agreed on what the

standard ranges would be.          N.T., 4/11/14, at 31.    Also, the trial court

explicitly stated on the record that it had reviewed the presentence report

(PSI).     Id. at 54.    This Court has consistently stated that where “the

sentencing court had the benefit of a [PSI], we can assume the sentencing

court was aware of relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal

quotation marks and citation omitted), appeal denied, 25 A.3d 328 (Pa.

2011), cert. denied, Rhoades v. Pennsylvania, 132 S. Ct. 1746 (2012).

However, the trial court believed that based on the seriousness of the

offense, the victim’s injuries, and its conclusion that Appellant was a danger

to society, an upward departure from the guidelines was warranted in this

case.      Therefore, the trial court complied with Section 9721(b) and

Appellant’s argument to the contrary lacks merit.

         We next turn to Appellant’s argument that the trial court abused its

discretion in sentencing Appellant because his co-defendant received a

substantially shorter sentence.

              The law is    well-settled that co-defendants are not
              required to   receive identical sentences. Generally, a
              sentencing     court must indicate the reasons for
              differences    in sentences between co-defendants.

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            This is not to say, however, that the court must
            specifically refer to the sentence of a co-defendant.
            Rather, it requires that when there is a disparity
            between co-defendants’ sentences, a sentencing
            court must give reasons particular to each defendant
            explaining why they received their individual
            sentences.

Mastromarino, supra.       In this case, Appellant’s co-defendant received a

sentence of three to seven years’ imprisonment, but he was tried and

sentenced before a different judge. When this occurs, our cases have held

that the trial court is not legally required to explain why there is a disparity

between sentences.    Commonwealth v. Szczesniewski, 591 A.2d 1055,

1057 (Pa. Super. 1991), appeal denied, 608 A.2d 29 (Pa. 1992);

Commonwealth v. Fuller, 579 A.2d 879, 887 (Pa. Super. 1990), appeal

denied, 588 A.2d 508 (Pa. 1991). As Appellant and his co-defendant were

not tried nor sentenced before the same judge, the trial court was not

required to explain the disparity in order to impose a higher sentence upon

Appellant. Id. As such, this argument does not entitle Appellant to relief.

      Finally, to the extent Appellant argues that the trial court failed to take

into account his employment history or his family life, as noted above, the

trial court explicitly mentioned both of those factors during sentencing. See

N.T., 4/11/14, at 55 (describing Appellant as, “a man who’s supporting two

children[,] … went to college and is employed[]”).        In addition, as noted

above, the trial court had the benefit of the PSI; hence, we presume that it

was aware of these mitigating factors in fashioning its sentence.           See


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J-A25016-15


Rhoades, supra.     Based on all of the aforementioned considerations, we

conclude Appellant’s sentencing arguments lack merit and the trial court did

not abuse its discretion in sentencing Appellant outside of the guidelines.

See Raven, supra.

     Based on the foregoing, we conclude all of Appellant’s issues are

devoid of merit.   Accordingly, the trial court’s April 11, 2014 judgment of

sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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