J-S49033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JEFFREY A. GOODMAN

                            Appellant                 No. 1833 WDA 2016


              Appeal from the Judgment of Sentence May 17, 2016
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000213-2015

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

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 13, 2017

        Appellant, Jeffrey A. Goodman, appeals from the judgment of sentence

entered in the Venango County Court of Common Pleas.           Following a jury

trial, Appellant was convicted of murder in the first degree,1 and aggravated

assault.2 Appellant was sentenced to life in prison for first degree murder3

and he was ordered to pay $8,440.00 in restitution.        Appellant challenges

the sufficiency of the evidence and the discretionary aspect of his sentence.

We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 2702(a)(1).
3
  The trial court found that the conviction for aggravated assault merged
with the conviction for first degree murder for sentencing purposes. See
Trial Ct. Op., 10/21/16, at 1.
J-S49033-17




      We glean the facts from the record.        At trial, Police Chief Robert J.

Wenner testified, inter alia, as follows:

         [The Commonwealth:] Were you involved                  in   the
         investigation into the death of Cathy Goodman?

         A. I was.

                                   *    *    *

         Q. Do you recall being dispatched to 142 Charlton Street,
         in Oil City?

         A. Yes. . . .

         Q. Do you recall what the dispatch was for at that time?
         What were you made aware of?

         A. I was contacted by Officer [Robert Allen] Meehan, by
         phone, to advise me that they were responding to a 911
         call where a man had indicated he killed his wife and was
         still inside the house with the rifle.

         Q. Did he give you a name at that point in time?

         A. The address was familiar to me. I responded, and when
         I got on the air from my own vehicle, I asked if we were
         dealing with [Appellant] at 142, and they advised it was.

                                   *    *    *

         Q. Now, upon arriving at 142 Charlton Street, . . . were
         you the only officer on scene at that point in time?

         A. No. Officer Orr and Officer Rembold arrived prior to me
         ....

                                   *    *    *

         Q. What was your first course of action when [Appellant]
         came out of the residence?


                                       -2-
J-S49033-17



        A. I asked [Appellant] to keep his hands up.         He said,
        Wenner, come on, you know me.

                                 *    *    *

        As he came towards us, he made the statements, I done
        it. I’ve had enough. I’m done. She’s dead.

                                 *    *    *

        Q. What were your observations of when you first entered
        the residence of 142 Charlton Street?

        A. As I crossed the threshold to the rear to that back door,
        I could smell the odor of gun powder, which is consistent,
        in my experience, with being discharged inside a home.

           I moved through the kitchen area with Rembold . . .
        behind me. As we moved though the kitchen toward a
        short hallway. Upon entering the hallway, I began to see
        some blood spatter and bone fragments on the hall floor
        and on the hall wall.

           As I went into the hallway that leads directly to the
        front door, with a set of steps to the second─to my left,
        there was an opening─a wide opening into what I would
        refer to as a living room or a TV room. And as I moved to
        my right, I observed the deceased, Cathy Goodman, on
        the couch with the rifle laying partially on her body and
        partially on the armrest to the couch.

                                 *    *    *

        Q. Chief Wenner, is there anything, specifically, about the
        body that you recognized regarding injury?

        A. There was extensive injury about the facial area, the
        skull. The majority of the face was gone. Other than
        her─the size of her body being consistent with Cathy
        Goodman, who was also known to me, it would have been
        difficult, if not impossible, to identify her facial features.

N.T., 3/14/16, at 39-42, 44.


                                     -3-
J-S49033-17


     Lieutenant Steven Hamilton testified as follows:

       [The Commonwealth:] Now, you were the only person who
       showed up at the scene regarding evidence collection for
       the purposes of this crime; is that correct? Initially.

       A. Initially, yes.

       Q. Who else did you call in to assist you in collection of
       evidence of this homicide?

       A. [A] decision was made that we would call the
       Pennsylvania State Police, their records and identification
       unit, to come and assist us with processing the crime
       scene.

       Q. Now prior to their arrival did you at any point in time
       take a walk-through of the crime scene?

       A. Yes, I did.

       Q. Who was it that led you through on the walk-through of
       the crime scene?

       A. Chief Wenner . . . .

                                 *    *    *

       Q. And you heard Chief Wenner’s testimony as to his
       observations initially when he went through the crime
       scene himself.

       A. Yes.

       Q. Do you believe his recollection of the crime scene is a
       fair and accurate rendition of your walk-through of the
       crime scene?

       A. Yes, it is.

                                 *    *    *

       Q. Now we’re going to go ahead and move to Photograph
       No. 10. Next slide if you would please.


                                     -4-
J-S49033-17



              Photograph No. 10, could you describe for the jury what
           that depicts.

           A. Yes. This would be the corner of that living room, and
           you would be looking to the right and that would be the
           couch that the─Cathy Goodman is laying on, and she’s
           covered with a white blanket there.

           Q. Now I’m going to go ahead and have you move to
           Photograph 11.

              Lieutenant, can you please describe for the jury and the
           [c]ourt what this photograph depicts.

           A. This would depict the victim on the couch, along with
           the firearm, rifle, and this is─her purse is between her and
           the couch back itself.

           Q. Okay. Now, the firearm itself, can you describe what
           exactly or where it’s positioned on the couch.

           A. It’s positioned with the back end of it on the arm of the
           couch. And as you can see, the rest of the scope and that
           area was laying on the arm of Ms. Goodman.

                                    *    *    *

           Q. I’m going to ask you specific questions regarding the
           crime scene after Cathy Goodman was removed from the
           couch.[4]

           A. Okay.

           Q. Is there anything in particular that came to your
           attention upon her removal from the couch?

           A. Yes, there was.

           Q. What was that?


4
    The victim was taken to the coroner’s office in Erie. Id. at 96.



                                        -5-
J-S49033-17


        A. We noticed a hole in the couch that would be at the
        back of the couch.

        Q. If we could move to Commonwealth’s Exhibit 5,
        Photograph No. 14. Now, what does [it] depict?

        A. It shows the exit─the trajectory the bullet took from
        front to back. This would be the photograph of the back of
        the couch, and it’s showing the fibers that are coming out
        of the hole in that direction.

        Q. Was there a hole in the front of the couch?

        A. Yes, there was.

        Q. Did the trajectory of the hole in the front of the couch
        line up with the hole in the back of the couch?

        A. Yes, it did.

        Q. What was the significance of the fibers hanging out, as
        you described, in the hole in the back of the couch?

        A. With the fibers hanging out, you could tell that’s the
        direction the bullet went. That was an exit─the back of the
        couch is an exit; the front of the couch is an entrance. . . .

Id. at 65-66, 80-81, 96-97.

     Dr. Eric Vey, of the Erie County coroner’s office, “testif[ied] as an

expert in the field of anatomical pathology and forensic pathology.”     N.T.,

3/15/16, at 148.

        [The Commonwealth:] What was revealing, when you first
        saw this body, as to the extent of her injuries?

        A. The overwhelming first impression was that she had
        sustained massive destruction to her head as a result of a
        gunshot wound.       It was difficult to get an accurate
        assessment of her overall height because, essentially, the
        top half of her skull had been exploded as a result of the



                                    -6-
J-S49033-17


       gunshot wound so that multiple fragments of skull were no
       longer in their normal anatomic position.

          In other words, . . . we had multiple resected
       fragments. That means that pieces that were normally in
       a place that they were supposed to be were displaced
       elsewhere.

          Same thing with [sic] there was a large fragment of her
       scalp that had been resected as a result of the gunshot
       trauma too.     So, essentially, from the level of her
       eyebrows up, everything was either collapsed in or
       resected out. So there was no bony structure left to the
       top of her head above the level of the eyebrows. And that
       was, again, as a result of the explosive effect from the
       gunshot wound.

           The other thing I was going to say was that as a result
       of this explosive destruction to her head, the majority of
       her brain had been evacuated from her skull and was not
       present in her head at the time of the autopsy. The only
       thing left in her head, as far as central nervous system
       tissue went, was cerebellum and a little bit of brain stem.

                               *    *    *

       Q. Also, at the time of the examination did you notice any
       other, what looked like, gunshot wounds to any extremity
       in addition to her head?

       A. Yes. She had a gunshot wound through and through─in
       other words, in one side and out the other─on the back of
       her right hand right over the pinky finger. . . . So there
       was, in association with that, a number of the skeletal
       structures─in other words, bones of the hand─had been
       blown out of that area as well.

          Now, significantly, associated with this entrance wound
       right here, there were little punctate─in other words, little
       punched out─superficial abrasions scattered on the skin.

          This is significant with respect to gunshot wounds
       because it provides a telltale assessment regarding the
       nature of those punctate abrasions. That’s called powder


                                   -7-
J-S49033-17


       tattooing or powder strippling. So that when a gun is
       discharged, coming out of the end of the muzzle, in
       addition to the bullet coming out, little fragments of burnt
       and unburnt powder, sort of like grains of pepper, come
       out as well.

           And depending on how far away the end of the muzzle
       is from the target beyond a certain distance, those little
       grains [sic] pepper, the flakes of burnt and unburnt
       powder will, early on, have enough energy to impact the
       skin, but once you get beyond a certain range, they’ll fall
       away. They no longer have enough kinetic energy to make
       it to the skin surface.

          So when there’s no powder tattooing, that defines
       what’s termed, in forensic pathology, as a distant gunshot
       wound. When there is powered tattooing, that’s diagnostic
       of an intermediate─or medium─range gunshot wound.
       And there are certain distances for handguns and rifles, in
       general, that allow a determination of range of fire. In
       other words, how far the end of the muzzle was to the
       target.

          Now, based upon the presence of powder tattooing with
       a rifle, the distance then between the end of the
       muzzle─or the end of the barrel of the rifle to the hand
       that was struck by this gunshot wound is roughly between
       a foot and a half and 2 feet─I’m sorry, a foot and a half to
       21/2 feet. Beyond 21/2 feet, there’s no longer enough
       kinetic energy associated with those little grains of pepper,
       the burnt and unburnt powder that comes out of the
       muzzle, to allow them to make it to the skin surface. They
       just fall away.

          So that’s it, between about a foot and a half to 2 feet is
       the distance, based on the presence of the powder
       tattooing or the powder stippling that was present on her
       hand, in association with the bullet hole, scattered around
       there little punctate abrasions, like little salt and pepper
       grains imbedded right in the skin, you can’t wash them
       away, a foot and a half to 21/2 feet. . . .

                               *    *    *



                                   -8-
J-S49033-17


       Q. I’d like you to maybe identify, in your opinion, based on
       your examination, what the path of the bullet was in this
       case. Striking what part of her body first, then second,
       and then where the exit wound was.

       A. Again, this case presented a challenge because,
       typically, with a handgun wound to the head at
       intermediate range you don’t get the degree of destruction
       to the head as you would get with a─with a high-power or
       hunting rifle. That has a lot more─a lot more umph behind
       it. So it became difficult because there was multiple─there
       were multiple large, gaping lacerations and complete
       disfigurement of the head from the level of the eyebrows
       to what was left above that.

          But it’s possible, with collection of the pieces of scalp
       from the scene and then putting the large lacerations back
       together again, to establish where the entrance was. That
       entrance was located about 3 centimeters to the right,
       which is roughly─there’s 21/2 centimeters in an inch. So
       that’s about an inch and a quarter to the right of the
       midline, or the middle, of her forehead. And it was 8
       centimeters, roughly, which is roughly─8 centimeters is
       about 31/4 inches above the bridge of the nose.

                               *    *    *

       So the overall path of this bullet, as it went through her
       head, was from her front to her back and her right to her
       left.

       Q. On her body, was the first place it entered the head?

       A. Well, this case presented evidence that, in fact, there
       was─we also had some stippling on her─some powder
       tattooing on her right and left upper forehead. But given
       the dense concentration of powder tattooing on her hand
       and the sparse distribution of the powder tattooing on her
       forehead, it looks as if the─Mrs. Goodman actually put her
       hand up in an attempt to shield herself.

                               *    *    *




                                   -9-
J-S49033-17


        Q. [D]o you have a determination as to the cause of death
        in this case?

                                 *     *      *

        A. The determination is that Cathy Goodman died as a
        result of a gunshot wound to the head.

                                 *     *      *

        Q. [A]s specifically as possible, could you please list, again,
        the traumatic events to the head that caused you to form
        your opinion.

        A. Well, we had the entrance     to    the    right   upper
        forehead region, and then there was extensive destruction
        to the skull and scalp with multiple displaced and resected
        skull and scalp fragments and traumatic evacuation of the
        majority of the brain from the skull as a result of this
        gunshot wound.      Therein lies the─you know, that is,
        indeed, the cause of death.

Id. at 154-59, 163-64.

     At trial, Appellant testified, on cross-examination, as follows:

        [The Commonwealth:] [Y]ou don’t deny that it was you on
        the 911 call when you called in to explain that you had just
        shot your wife?

        A. Right.

        Q. Okay. And again, during that 911 call, you answered
        her specific questions, whoever you were talking to, and
        followed her direction to go out the back door of the house
        when the police had arrived?

        A. Yes.

                                 *     *      *

        Q. When you were taken into custody, was Chief Wenner
        at least there?



                                     - 10 -
J-S49033-17


                               *     *       *

       A. I believe he was.

       Q. And you were still on the phone, even as you came out
       of the residence, and that’s why it was found in the
       driveway where it was with the pictures that the
       Commonwealth offered, correct?

       A. Yes.

       Q. It was there that you first indicated to the Oil City PD in
       answering, I don’t have a gun. I shot my wife. It’s inside.

       A. Yes.

                                *     *      *

       Q. You told Chief Wenner that night, on the video, that
       Cathy had been sleeping on the couch for the last four or
       five days; is that correct?

       A. Yes.

                                *     *      *

       Q. And you also said, and I believe I saw on the video
       itself, that what really angered you was when she laughed
       at you. Do you remember that?

       A. Yes.

                                *     *      *

       Q. Let me ask you this: What was it about her laughing
       that caused you to be so enraged?

       A. Everything else, then laughing. You know with the
       affair, the crabs, being throwed [sic] out, having
       somebody move into my house.

       Q. Your counsel was careful in his questions to say when
       the shells were put in the gun. I want to be more specific.
       In the video, you indicated that you went upstairs to the


                                    - 11 -
J-S49033-17


       attic, climbed up on the shelving and got the gun; is that
       correct.

       A. Yes.

       Q. At that time there were five shells, I believe, that you
       also got at the same time in the attic?

       A. Yeah. There was [sic] five in a─that black case thing.

       Q. On the way down from the attic, you went to the
       bedroom, where you took the case and three shells and
       put them in the drawer of your dresser?

       A. Yes.

       Q. And in your hand, when you took downstairs [sic] the
       gun─you had two shells in your hand; is that correct?

       A. Yes.

       Q. Did you point the unloaded firearm at her first?

       A. Yeah. To get her attention, I bumped her with the
       gun─unloaded gun.

       Q. Okay. And you still had the two bullets in your hand?

       A. Yes.

       Q. And when she laughed at you, you took one of the
       bullets, put it into the breach of the gun and you activated
       the slide action on it to load it, correct?

       A. Yes.

                               *      *      *

       Q. [W]hy would you put a loaded cartridge into the breach
       action of this gun, slide the lever, and point the gun at her
       head then if you had no intention to shoot her?

       A. At that time there was.



                                    - 12 -
J-S49033-17


        Q. You did have the intention at that time?

        A. Because of after the affair and, you know, getting me
        throwed [sic] out of the house.

        Q. On the video, we heard that after the first shot you slid
        the action again, ejected the spent casing, and then put
        the other live shell in, activating the lever to reload the
        gun.

        A. Yes.

        Q. Why did you do that?

        A. It was for me.

        Q. Well, you said in the video that you─

        A. Right.

        Q. ─weren’t contemplating committing suicide at any
        point.

        A. Right.

                                *     *      *

        Q. Were you telling the truth that night, on the night you
        shot her, within two hours afterwards, or are you telling
        the truth here today?

        A. Both.

                                *     *      *

        Q. I believe Chief Wenner also asked you in that video that
        night those questions that if the first round hadn’t gotten
        the job done, you were going to go ahead and reload that
        second just to make sure the job got done, and you
        affirmed that for him; is that correct?

        A. Yes.

Id. at 220-24, 226-29, 231, 233.


                                    - 13 -
J-S49033-17


     On March 16, 2016, following a jury trial, Appellant was convicted of

murder in the first degree and aggravated assault.        On May 17, 2016,

Appellant was sentenced to lifetime imprisonment.      Appellant filed a post-

sentence motion.      Following a hearing, the post-sentence motion was

denied.    This timely appeal followed.5     Appellant filed a court-ordered


5
   We note that Appellant was sentenced on May 17, 2016. He filed a post-
sentence motion on May 27, 2016. On the same date, Appellant filed a
motion to request relief to file a supplemental post-sentence motion and a
motion for extension of time to file a motion to modify his sentence. On
June 17, 2016, the trial court granted the motion and extended the time to
file the motion to modify sentence until 20 days after the public defender
has received all court ordered transcripts.       The Pennsylvania Rules of
Criminal Procedure provide, inter alia, as follows:

          The defendant may file a supplemental post-sentence
          motion in the judge’s discretion as long as the decision on
          the supplemental motion can be made in compliance with
          the time limits of paragraph (B)(3).

Pa.R.Crim.P. 720(B)(1)(b). The time limits provide as follows:

          Upon motion of the defendant within the 120-day
          disposition period, for good cause shown, the judge may
          grant one 30-day extension for decision on the motion. If
          the judge fails to decide the motion within the 30-day
          extension period, the motion shall be deemed denied by
          operation of law.

Pa.R.Crim.P. 720(B)(3)(b); Pa.R.Crim.P. 720(B)(3)(a) (setting forth general
rule that post sentence motions be decided in 120 days). Instantly, the
supplemental post sentence motion was filed on July 19, 2016. A hearing
was scheduled for August 30, 2016. The Commonwealth requested a
continuance which the court granted on September 14, 2016. A hearing was
held on October 12, 2016. The post sentence motions were denied on
October 21, 2016. Thus, the court timely decided the motion within the
thirty-day extension period. See id.




                                    - 14 -
J-S49033-17


Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and the trial

court filed a Pa.R.A.P. 1925(a) opinion.6

      Appellant raises the following issues for our review:

         The evidence in this case was insufficient to support the
         murder and aggravated assault charges.

         The sentence in this case was manifestly excessive and
         clearly unreasonable when the court sentenced [Appellant]
         to a period of incarceration and did not take into account
         mitigating factors such as [Appellant’s] background and
         the nature of the crime.

Appellant’s Brief at 2.

      First, Appellant challenges the sufficiency of the evidence to support

the murder charge. He avers that

         no direct evidence was presented which directly linked him
         to the possession of the firearm and the firing of it at the
         time that the victim was shot. Further, no direct physical
         evidence was presented that linked the firearm found at
         the scene of the crime to the killing of the victim. No
         direct evidence was presented to prove that [Appellant]
         had the requisite intent, mental state, or malice to kill Mrs.
         Goodman.

                                  *     *      *

            [Appellant] points out that even though law
         enforcement could have tested the bullet and firearm for
         fingerprints linking him to holding that weapon or to
         ballistic tests to prove that the bullet that killed Mrs.
         Goodman was actually fired out of that particular weapon,
         none of those tests were run.             Therefore, the
         Commonwealth was unable to link the shooting to
         [Appellant]. Further, [Appellant] seemed to be on good

6
 We note the trial court’s Rule 1925(a) opinion incorporated its October 21,
2016 opinion disposing of post-sentence motions.



                                      - 15 -
J-S49033-17


        terms with Mrs. Goodman, with no ill will stated to anyone
        that he was intending on harming her, so no evidence of a
        first degree intentional murder was actually presented.

           While [Appellant] stated that the gun went off in his
        hands, this does not confirm intent. [Appellant’s] case
        seems to involve a heat of passion type of murder, rather
        than a premeditated, intentional killing, as [Appellant] was
        arguing with his wife and had previously learned that she
        was having an affair with someone else.

Id. at 14-15.

     “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

           [T]he critical inquiry on review of the sufficiency of the
        evidence to support a criminal conviction . . . does not
        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict. . . .

                                 *     *      *

            When reviewing the sufficiency of the evidence, an
        appellate court must determine whether the evidence, and
        all reasonable inferences deducible from that, viewed in
        the light most favorable to the Commonwealth as verdict
        winner, are sufficient to establish all of the elements of the
        offense beyond a reasonable doubt.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)

(citations and quotation marks omitted).

     Section 2502(a) of the Crimes Code defines first degree murder:

           (a) Murder of the first degree.─A criminal homicide
        constitutes murder of the first degree when it is committed
        by an intentional killing.



                                     - 16 -
J-S49033-17


18 Pa.C.S. § 2502(a).

     The Pennsylvania Supreme Court has stated:

           In order to sustain a conviction for first-degree murder,
        the Commonwealth must demonstrate that a human being
        was unlawfully killed; the defendant was responsible for
        the killing; and the defendant acted with malice and a
        specific intent to kill, i.e., the killing was performed in an
        intentional, deliberate, and premeditated manner. Specific
        intent may be established through circumstantial
        evidence, such as the use of a deadly weapon on a
        vital part of the victim’s body.

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citations

omitted and emphasis added).     “[T]he intent to kill may be formulated in

seconds.” Commonwealth v. Baez, 759 A.2d 936, 938 (Pa. Super. 2000)

     The trial court found the evidence was sufficient to sustain a conviction

for first degree murder. The court opined:

        [T]here was a considerable amount of testimony and
        tangible evidence dedicated to establishing the physical
        circumstances of Cathy Goodman’s death. . . . Moreover,
        [Appellant] admitted via his voluntary statements to the
        police immediately following the incident that he did in fact
        shoot his wife, and he confirmed this fact on the stand
        both via direct testimony and on cross examination.

                                 *     *      *

        [I]t was essentially uncontroverted at the time of trial that
        [Appellant] shot the victim; indeed, the only defense
        [Appellant] seriously advanced was whether he possessed
        the requisite mens rea to establish first degree murder. . .
        . In any event, the Commonwealth may sustain its burden
        by wholly circumstantial evidence. As such, we find the
        evidence more than sufficient to uphold the jury’s verdict
        both with respect to whether [Appellant] killed the victim
        and with respect to [Appellant’s] mental state in so doing.



                                     - 17 -
J-S49033-17


Trial Ct. Op. at 4-5 (citations omitted).

      Dr. Vey testified that Mrs. Goodman died as a result of a gunshot

wound to the head. A conviction for first-degree murder can be sustained

based upon circumstantial evidence where a deadly weapon was used on a

vital part of the decedent’s body.     See Ramtahal, 33 A.3d at 607.       The

intent to kill can be formulated in an instant. See Baez, 759 A.2d at 939.

      Moreover, Appellant’s suggestion that the killing case involved a heat

of passion defense warrants no relief. The jury was instructed on voluntary

manslaughter and was free to discredit Appellant’s testimony that the killing

occurred during an argument regarding a previous affair.      Even if the jury

concluded that an argument occurred, there was a reasonable basis for the

jury to conclude that Appellant did not actually respond in the heat of

passion. See Commonwealth v. Marks, 704 A.2d 1095, 1099 (Pa. Super.

1997) (“The test for a heat of passion defense used to reduce the degree of

the offense is ‘whether a reasonable man, confronted with the same series

of events would become impassioned to the extent that his mind would be

incapable of cool reflection.’   Further, if sufficient provocation exists, the

fact-finder must determine whether the defendant actually acted in the heat

of passion.” (citations omitted)). The jury was also entitled to find that the

argument was an insufficient provocation to warrant a reduced conviction for

voluntary manslaughter, as Appellant knew the affair before the argument

preceding the killing.   See Commonwealth v. Walker, 656 A.2d 90, 92



                                     - 18 -
J-S49033-17


(Pa. 1994).   Thus, we find no relief is due.     See Ratsamy, 934 A.2d at

1235-36; Widmer, 744 A.2d at 751.

      Appellant avers the evidence was insufficient to support his aggravated

assault charge. He “again, argues that there was no proof presented by the

Commonwealth that he was intending for any sort of serious bodily injury to

happen to Mrs. Goodman, or even that he was the person who shot the gun

that night.” Appellant’s Brief at 15.

      “A person is guilty of aggravated assault if he . . . causes such injury

intentionally, knowingly or recklessly under circumstances manifesting

extreme indifference to the value of human life.” 18 Pa.C.S. § 2702 (a)(1).

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. § 2301.       “Bodily injury” is defined as

“impairment of physical condition or substantial pain.”    Id. “The intent to

cause serious bodily injury may be proven by direct or circumstantial

evidence.” Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super.

2012).

      In Commonwealth. v. Fortune, 68 A.3d 980 (Pa. Super. 2013) (en

banc), this Court found there was sufficient evidence to sustain a conviction

for aggravated assault where the appellant

         appeared before the victim without warning, pointed a gun
         at the middle of her forehead, demanded her keys, and


                                        - 19 -
J-S49033-17


         threatened to blow [her] head off if she did not comply.
         The victim indicated that [the a]ppellant grasped one end
         of keys while she held a key in her hand. She also
         estimated that the gun was less than a half inch from the
         area between her eyebrows at the time. Under such
         circumstances, [the a]ppellant was not merely pointing the
         gun at the victim while making a conditional threat.
         Rather, his simultaneous demand to her to act was direct
         and uttered while he constantly pointed his weapon
         squarely at a vital part of her body and while he was
         holding the opposite end of the keys that were also still in
         her hand. As such, we find there was sufficient evidence
         from which a jury could have found that [the a]ppellant
         attempted to cause serious bodily injury upon the victim.

         We further find there was sufficient evidence from which
         the jury could have concluded that [the a]ppellant took a
         substantial step towards inflicting serious bodily injury
         since he pointed a gun at the middle of the victim’s
         forehead, threatened to kill her, and did not do so only
         because the victim fled. The only remaining step [the
         a]ppellant would have had to take to inflict serious bodily
         injury upon [the victim] would have been to pull the
         trigger on the gun, which would have obviously caused
         serious bodily injury.

Id. at 986-87 (citations and quotation marks omitted).

      Instantly, the trial court opined:

         We find the sufficiency argument as it relates to
         [aggravated assault] unavailing on similar grounds [as to
         the conviction for first degree murder]. . . . Given the
         jury’s verdict, and the Commonwealth’s entitlement to
         every reasonable inference to be drawn therefrom, we find
         that [Appellant’s] shooting the victim, thereby causing her
         death, form an adequate evidentiary basis to sustain his
         conviction [for aggravated assault].

Trial Ct. Op. at 5-6.

      In the case sub judice, Appellant inflicted serious bodily injury having

killed the victim with a gunshot wound to her head. See Fortune, 68 A.3d


                                     - 20 -
J-S49033-17


at 986-87; Martuscelli, 54 A.3d at 948.      We find no relief is due.   See

Ratsamy, 934 A.2d at 1235-36; Widmer, 744 A.2d at 751.

     Lastly, Appellant challenges the discretionary aspect of his sentence.

Appellant contends

        that he should receive a maximum sentence not to exceed
        twenty years, and a parole date not to exceed ten years.
        The law provides that a person convicted of first
        degree murder will receive life imprisonment.
        However, [Appellant] requests that the [c]ourt consider
        mitigating factors, such as his lack of intent, in order to
        grant him a shorter sentence.

Appellant’s Brief at 16 (emphasis added).

      The sentence for first degree murder is statutorily mandated as
follows:

        (a) First degree.─

           (1) Except as provided under section 1102.1 (relating to
           sentence of persons under the age of 18 for murder,
           murder of an unborn child and murder of a law
           enforcement officer), a person who has been convicted
           of a murder of the first degree or of murder of a law
           enforcement officer of the first degree shall be
           sentenced to death or to a term of life
           imprisonment in accordance with 42 Pa.C.S. § 9711
           (relating to sentencing procedure for murder of the first
           degree).

18 Pa.C.S. § 1102(a)(1) (emphasis added).      Appellant was convicted by a

jury of First Degree Murder, and as such was sentenced to life in prison.

See 42 Pa.C.S.. § 9711 (upon a conviction for first degree murder, the

defendant may either be sentenced to death or life in prison).




                                   - 21 -
J-S49033-17


     “Challenges to a trial court’s application of a mandatory sentencing

provision implicate the legality of sentence.”   Commonwealth v. Foster,

960 A.2d 160, 167 (Pa. Super. 2008). Since the sentence imposed in this

case for first degree murder is a mandatory sentence, there is no basis upon

which to appeal the imposition of a life sentence as an abuse of discretion.

See id.; 42 Pa.C.S. § 9781(a). For all of the foregoing reasons, we affirm

the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/13/2017




                                   - 22 -
