J. S22023/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 :     IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                           Appellee           :
                                              :
                    v.                        :
                                              :
ROBERT HARES,                                 :
                                              :
                           Appellant          :     No. 1040 MDA 2015

              Appeal from the Judgment of Sentence May 28, 2015
              In the Court of Common Pleas of Lackawanna County
                Criminal Division No(s): CP-35-CR-0002460-2014

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                    FILED MAY 26, 2016

        Appellant, Robert Hares, appeals from the judgment of sentence

entered in the Court of Common Pleas of Lackawanna County, following his

jury convictions for Aggravated Assault, Simple Assault, and Recklessly

Endangering Another Person (REAP).1 After careful review, we affirm.

                    FACTUAL AND PROCEDURAL HISTORY

        The trial court set forth the factual history of this case as follows:

        On November 3, 2014, an argument broke out at the home of
        Bessie Hares, [Appellant]’s former wife. Around 5:00 p.m. on
        that date, Bessie Hares and her paramour, James Clark, the
        victim in this case, had a discussion regarding [Appellant] still
        residing in Bessie Hares’ home and how Ms. Hares lacked the

*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S. § 2702(a)(1), 18 Pa.C.S. § 2701(a)(1), and 18 Pa.C.S. § 2705,
respectively.
J.S22023/16


      funds to evict [Appellant].         During the course of this
      conversation, according to the testimony of Ms. Hares, she
      became upset, and asked Mr. Clark to leave the home.
      According to the testimony of Ms. Hares, while Mr. Clark was
      packing his belongings to leave, [Appellant] returned home
      around 9:30 or 10:00 p.m. with two other individuals, Crystal
      Macomber and Dallas Zipatelli. Ms. Hares testified that while Mr.
      Clark was gathering his belongings, [Appellant] approached Mr.
      Clark and asked him to leave the home. Mr. Clark “mumbled”
      something to [Appellant] in response. Mr. Clark testified that no
      one had asked him to leave, but when [Appellant] arrived home
      [Appellant] approached him, grabbed him, lifted his chin, stated
      “you deserve this” and began to strike him from the right hand
      side. At that point, Mr. Zipatelli struck Mr. Clark from the other
      side. [Appellant], along with Mr. Zipatelli, punched Mr. Clark
      about “five (5) times.” Mr. Clark did not attempt to fight back.
      At the end of the fight, Defendant informed Mr. Clark that he
      had “two minutes to get the rest of [his] stuff and leave.” Mr.
      Clark stated he was surprised by the attack from the [Appellant].

      As a result of the attack, Mr. Clark suffered a fractured jaw, one
      of his teeth was knocked out, and he had severe bruising to his
      face. As a result of the fractured jaw, Mr. Clark had surgery,
      and his jaw was wired shut for about six (6) weeks. This led to
      Mr. Clark losing about twenty five (25) to thirty (30) pounds,
      bringing his weight down to about one hundred thirty five (135)
      pounds. During this period of time, Mr. Clark could not speak.
      He also had to carry a pair of pliers with him at all times in case
      he had to snip the wires himself if he became nauseous and had
      to vomit.

Trial Ct. Op., filed 8/27/15, at 2-3 (internal citations omitted).

      At a pre-trial conference on February 6, 2015, the Commonwealth

made an oral motion to exclude reference to a prior allegation of Rape

against Mr. Clark. In response, Appellant argued that in July of 2014, Ms.

Hares accused Mr. Clark of rape and that this accusation should be

admissible during cross-examination of Ms. Hares as well as to prove

Appellant’s state of mind at the time that Appellant attacked Mr. Clark. N.T.,


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Pre-Trial, 2/6/15, at 18-20. The trial court ruled “there shall be no mention

of this rape allegation at any point unless and until [Appellant] takes the

stand . . . We will have a hearing on the merits at that time.” Id. at 22.

      On February 11, 2015, the jury convicted Appellant of Aggravated

Assault, Simple Assault, and REAP.          On May 8, 2015, the trial court

sentenced Appellant to     an aggregate       term of four to    eight years’

incarceration for the Aggravated Assault conviction, and a term of one year

of special probation for the REAP conviction. The court merged the Simple

Aassault conviction for sentencing.

      Appellant filed timely Post-Trial Motions, which the trial court denied

on May 28, 2015. On June 12, 2015, Appellant filed a timely Notice of

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

                               ISSUES ON APPEAL

      Appellant raises the following eight issues on appeal:

      (1)   Whether the evidence was insufficient to support the
            verdicts?

      (2)   Whether the verdicts were against the weight of the
            evidence since the Commonwealth failed to rebut the
            Appellant’s defense of property?

      (3)   Whether the trial court erred when it barred the Appellant
            from introducing evidence that he was aware of the fact
            that Bessie, his wife, had accused the victim of raping her
            earlier that year, thus precluding evidence relevant to his
            state of mind when striking the victim?

      (4)   Whether the trial court committed prejudicial error when,
            over Appellant’s objection, it permitted the victim’s sister



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J.S22023/16


               to testify as her testimony was cumulative, irrelevant, and
               inflammatory?

         (5)   Whether the jury instructions regarding the Appellant’s
               decision not to call eye-witnesses was prejudicial,
               unconstitutional, and contrary to the law, since the
               Appellant bears no burden in a criminal trial?

         (6)   Whether the trial court acted outside of the scope of its
               authority when it, sua sponte, objected to defense
               counsel’s closing argument and instructed the jury on the
               Appellant’s failure to call eye-witnesses as the
               Commonwealth made no such objection?

         (7)   Whether the trial court committed reversible error by
               refusing to give the Appellant’s requested jury instruction
               pertaining to the defense of self-defense?

         (8)   Whether the trial court erred by failing to merge the
               sentences for aggravated assault, and for recklessly
               endangering another person?

See Appellant’s Brief at 4-5.

                             LEGAL ANALYSIS

         Issues 1 and 2

         Appellant’s arguments presented in his first two issues pertaining to

the sufficiency and weight of the evidence essentially challenge the jury’s

decision not to believe his defense that the use of force was justified to

defend his property, i.e., to prevent an unlawful trespass. He avers that the

Commonwealth failed to present sufficient evidence to rebut his claims.

Appellant’s Brief at 20. We address these issues together, as did the trial

court.




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      Our Pennsylvania Supreme Court has set forth the appropriate

standards of review: “[w]hen 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.

Weiss, 776 A.2d 958, 963 (Pa. 2001) (citation omitted).

      The standard of review applied to a challenge to the weight of the

evidence is as follows:

      A motion for a new trial alleging that the verdict was against the
      weight of the evidence is addressed to the discretion of the trial
      court. An appellate court, therefore, reviews the exercise of
      discretion, not the underlying question whether the verdict is
      against the weight of the evidence. The factfinder is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses. The trial court will award a new trial
      only when the jury's verdict is so contrary to the evidence as to
      shock one's sense of justice. In determining whether this
      standard has been met, appellate review is limited to whether
      the trial judge's discretion was properly exercised, and relief will
      only be granted where the facts and inferences of record disclose
      a palpable abuse of discretion.

Commonwealth v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007).

      “[C]onduct which would otherwise constitute a crime can be excused

when necessary to prevent a greater harm or crime.” Commonwealth v.

Berrigan, 501 A.2d 226, 229 (Pa. 1985).          The use of force to protect

property is allowed “when the actor believes that such force is immediately

necessary [] to prevent or terminate an unlawful entry or other trespass



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J.S22023/16


upon land.”     18 Pa.C.S. § 507(a). However, before resorting to force a

property owner must first request that the trespasser leave, unless:

      (i)     such request would be useless;
      (ii)    it would be dangerous to himself of another person to
              make the request; or
      (iii)   substantial harm will be done to the physical condition of
              the property which is sought to be protected before the
              request can effectively be made.

18 Pa.C.S. § 507(c)(1)(i-iii).

      In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly reviewed

the facts and applicable law before concluding that Appellant’s first and

second issues are without merit.       The trial court stated that there was

sufficient evidence to rebut Appellant’s defense of property defense, that the

trial testimony presented two factual scenarios, that the jury was free to

believe and weight either scenario, that neither scenario demonstrated a

need to use force, and that the verdicts were not contrary to the weight of

the evidence. See Trial Ct. Op., filed 8/27/15, at 4-8. Our review of the

certified record, the briefs of the parties, and the applicable law, supports

the well-reasoned Trial Court Opinion. Accordingly, we adopt that portion of

the Opinion pertaining to Appellant’s first two issues as our own.

      Issues 3 and 4

      Appellant’s   third   and   fourth   issues   challenge   the   trial   court’s

evidentiary rulings.   Appellant argues in his third issue that the trial court

erred when it granted the Commonwealth’s motion to exclude evidence that

Ms. Hares had accused Mr. Clark of raping her many months prior to the


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J.S22023/16


incident.   Appellant avers that “his knowledge of the allegation would be

admissible as to his state of mind” and “was essential in order to establish

his defense of property” defense.    Appellant’s Brief at 27.    Appellant also

argues that he should have been able to impeach Ms. Hares on cross-

examination regarding the allegation. Appellant’s Brief at 28.

      In his fourth issue, Appellant argues that the trial court erred when it

permitted Mr. Clark’s sister, Ms. Jenkins, to testify because her testimony

regarding her brother’s injuries, his going to the hospital, and his filing a

report at the police station was “cumulative, irrelevant, and inflammatory” in

light of photographs of and Clark’s testimony about his injuries. Appellant’s

Brief at 4, 29.

      The admission or exclusion of evidence “is vested in the sound

discretion of the trial court and will not be reversed on appeal absent an

abuse of discretion.” Commonwealth v. Brown, 839 A.2d 433, 435 (Pa.

Super. 2003) (citation omitted). A trial court abuses its discretion when it

“overrides or misapplies the law, or exercises judgment which is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill will.”   Id.

(citation omitted).

      We have thoroughly reviewed the certified record, the briefs of the

parties, the applicable law, and the well-reasoned Trial Court Opinion.     We

conclude that Appellant’s third issue and fourth issues merit no relief. The

trial court properly found that Appellant’s attorney could not cross-examine



                                     -7-
J.S22023/16


Ms. Hares regarding the allegation pursuant to Pa.R.E. 608(b)(1), that the

issue of whether the allegation was relevant to Appellant’s state of mind was

moot as Appellant never testified, and that Ms. Jenkins’ testimony was

relevant to demonstrate the serious injuries suffered by Mr. Clark and was

not prejudicial, cumulative, or inflammatory.         See Trial Ct. Op., filed

8/27/15, at 8-9, 16-18.      The comprehensive Trial Court Opinion properly

disposes of the issues and we adopt that portion of the Trial Court’s Opinion

as our own. See id.

      Issue 5

      In his fifth issue, Appellant avers that the trial court’s instruction to the

jury regarding Appellant’s decision not to call eyewitnesses was prejudicial,

unconstitutional, and contrary to the law since Appellant bears no such

burden in a criminal trial. Appellant’s Brief at 4. Our review indicates that

Appellant did not properly preserve this issue and, therefore, it is waived.

      The Pennsylvania Rules of Criminal Procedure provide that “[n]o

portions of the charge nor omissions from the charge may be assigned as

error, unless specific objections are made thereto before the jury retires to

deliberate.”    Pa.R.Crim.P. 647(C).     Further, “the mere submission and

subsequent denial of proposed points for charge…will not suffice to preserve

an issue, absent a specific objection or exception to the charge or the trial

court's ruling respecting the points.” Commonwealth v. Sanchez, 82 A.3d

943, 978 (Pa. 2013) (citation omitted); see also Pa.R.A.P. 302(b).



                                       -8-
J.S22023/16


      In the instant case, at no point did Appellant object to the jury

instructions.   See N.T. Trial, 2/11/15, at 26-36.    At the conclusion of the

trial, the trial court asked, “any additions or corrections to the charge?” to

which Appellant’s attorney answered, “[n]o.” Id. at 82. Because Appellant’s

attorney failed to object, Appellant waived this issue for appellate review.

See Pa.R.A.P. 302(b); Sanchez, supra.

      Issue 6

      Appellant’s sixth issue is that the trial court acted outside of the scope

of its authority when it, sua sponte, gave a cautionary instruction during

closing arguments after Appellant’s attorney alluded to a witness who did

not testify and made inflammatory comments. Appellant’s Brief at 5. This

argument is without merit.

      The Pennsylvania Rules of Criminal Procedure provide the trial court

with the authority to give instructions to the jury “before taking of evidence

or at anytime during the trial as the judge deems necessary and

appropriate for the jury’s guidance in hearing the case.”          Pa.R.Crim.P.

647(E) (emphasis added).      Further, a trial court may sua sponte give a

cautionary instruction to the jury to disregard remarks by a prosecutor or

defense attorney in order to cure potential prejudice.              See, e.g.,

Commonwealth v. Chimenti, 524 A.2d 913, 924 (Pa. Super. 1987).

      We have thoroughly reviewed the certified record, the briefs of the

parties, the applicable law, and the well-reasoned Trial Court Opinion. The



                                     -9-
J.S22023/16


trial court properly concluded that it had had the authority to give the

instruction to cure potential prejudice caused by defense attorney’s

comments during closing statements.        See Trial Ct. Op., filed 8/27/15, at

10-15.    The comprehensive Trial Court Opinion properly addresses and

disposes of the issue, and we adopt that portion of the trial court’s opinion

as our own. See id.

      Issue 7

      In his seventh issue, Appellant avers that the trial court committed

reversible error by refusing to give Appellant’s requested jury instruction

pertaining to self-defense. Appellant’s Brief at 5. This is a curious argument

as Appellant’s attorney withdrew the request for that jury instruction during

trial, stating:   “Judge, I’m going to rest.   And I’m going to withdraw my

request for a self-defense instruction[.]” N.T., Trial, 2/10/15, at 245. Later,

Appellant’s attorney stated:      “I’m agreeing with the instruction.   I’m not

objecting to it. So it wouldn’t be preserved for error anyway because I’m

agreeing to it.” Id. at 254.

      We agree with the trial court that Appellant did not preserve this issue

for appeal. In fact, Appellant’s attorney specifically withdrew this issue for

consideration on appeal.       As stated above, issues not raised in the lower

court are waived. Pa.R.A.P. 302(a). Appellant failed to object to the charge

and therefore, failed to preserve this issue for review.    See Sanchez, 82

A.3d at 978.



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J.S22023/16


      Issue 8

      Lastly, Appellant argues that the trial court erred by failing to merge

the sentences for Aggravated Assault and REAP. Appellant’s Brief at 5. We

disagree.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence. Therefore, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Quintua, 56 A.3d 399, 400 (Pa. Super. 2012) (internal citation omitted).

Further, “merger is a nonwaivable challenge to the legality of the sentence.”

Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa. Super. 2012)

(citation omitted).

      The Sentencing Code dictates that two crimes should merge for

sentencing purposes if (1) the crimes arise from a single criminal act and

(2) all of the statutory elements of one offense are included in the statutory

elements of the other offense. 42 Pa.C.S. § 9765 (emphasis added). In the

instant case, the act supporting the offenses of Aggravated Assault and

REAP is the same – Appellant punched Mr. Clark in the face causing his jaw

to break.   Accordingly, we must next compare the statutory elements of

each offense.

      The Pennsylvania Crimes Code defines Appellant’s Aggravated Assault

offense as follows: “A person is guilty of aggravated assault if he…attempts

to cause serious bodily injury to another, or causes such injury intentionally,



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J.S22023/16


knowingly   or   recklessly   under     circumstances       manifesting   extreme

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

defined as follows: “A person commits a misdemeanor of the second degree

if he recklessly engages in conduct which places or may place another

person in danger of death or serious bodily injury.” 18 Pa.C.S. §2705.

      This Court has recently held that Aggravated Assault and REAP do not

merge for purposes of sentencing because “each offense requires proof of an

element that is absent from the other offense, and one offense can be

committed without committing the other offense.”             Commonwealth v.

Ciani, 130 A.3d 780, 783 (Pa. Super. 2015). In Ciani, we reasoned that

“[a]ggravated assault contains an element missing from REAP – serious

bodily injury or an attempt to cause serious bodily injury.” Id. at 782. We

concluded that “unlike aggravated assault, REAP requires the element of

actual danger of death or serious bodily injury. An individual could attempt

to cause serious bodily injury to another person without placing that person

in actual danger, which would support a conviction for aggravated assault

but not REAP.” Id. at 783.

      Accordingly,   Aggravated   Assault      and   REAP    do   not   merge   for

sentencing purposes. The trial court properly sentenced Appellant to an

aggregate term of four to eight years’ incarceration for Aggravated Assault,

merging the sentence for Simple Assault, plus a consecutive term of one

year special probation for REAP. Trial Ct. Op., filed 8/27/15, at 1, 23.



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      Because we adopt the Trial Court Opinion filed 8/27/15 with respect to

issues 1 through 4 and 6, the parties are directed to include that opinion

with any future filings.

      Judgment of sentence affirmed. Jurisdiction relinquished.

      Judge Strassburger joins this Memorandum.

      Judge Mundy concurs in the result.


 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2016




                                   - 13 -
                                                                 Circulated 04/29/2016 09:42 AM




COMMONWEALTH         OF
PENNSYLVANIA



                            vs.              CRIMINAL DIVISION



ROBERT HARES                                 No. 2014 CR 2460

                 OPINION PURSUANT TO Pa.R.A.P. 1925(a)

BISIGNANI MOYLE, J.

  I.      INTRODUCTION/PROCEDURALHISTORY

       Defendant Robert Hares (hereinafter referred to as "Defendant") has

  appealed various rulings made by this Court during the course of his trial,

  as a result of which he was convicted of one (1) count of Aggravated

  Assault, (18 Pa.C.S.A §2702(a)(l)) one (1) count of Simple Assault, ill

  Pa.C.S.A § 2701(a)(l)) and one (1) count of Recklessly Endangering

  Another Person (18 Pa.C.S.A § 2705). On May 8, 2015 this court

  sentenced Defendant to an aggregate term of four years (4) to eight (8)

  years at a State Correctional Institute plus one (1) year of special

  probation.

       Defendant filed various post-sentence motions, which included a

  Motion for Judgment of Acquittal and/or New Trial and Motion for New

  Trial. This Court issued an Order on May 28, 2015 denying Defendant's

  post-sentence motions. Defendant filed a Notice of Appeal on June 12,

  2015. This Court issued an Order on June 24, 2015, directing Defendant to

  file a Concise Statement of Matters Complained of on Appeal Pursuant to


                                     1
     Pa.R.A.P .1025(b ). Defendant issued his Concise Statement of Matters

     Complained of on Appeal on July 1, 2015. The Court will address each

     issue per Pa.R.A.P. 1025(a).

     II.      FACTUAL HISTORY

The evidence at trial demonstrated as follows:

           On November 3, 2014, an argument broke out at the home of Bessie

Hares, Robert Hares' former wife. N.T. 2/10/15 at pg. 54, 64. Around 5:00

p.m. on that date, Bessie Hares and her paramour, James Clark, the victim in

this case, had a discussion regarding Defendant still residing in Bessie Hares'

home and how Ms. Hares lacked the funds to evict Defendant. N.T. 2/10/15 at

~-         During the course of this conversation, according to the testimony of

Ms. Hares, she became upset, and asked Mr. Clark to leave the home. N.T.

2/10/15 at pg. 55. According to the testimony of Ms. Hares, while Mr. Clark

was packing his belongings to leave, Defendant returned home around 9:30 or

10:00 p.m. with two other individuals, Crystal Macomber and Dallas Zipatelli.

N.T. 2/10/15 at pg. 55. Ms. Hares testified that while Mr. Clark was gathering

his belongings, Defendant approached Mr. Clark and asked him to leave the

home. N.T. 2/10/15 at pg. 63. Mr. Clark "mumbled" something to Defendant

in response. N.T. 2/10/15 at pg. 55. Mr. Clark testified that no one had asked

him to leave, but when Defendant arrived home he approached him, grabbed

him, lifted his chin, stated "you deserve this" and began to strike him from the

right hand side. N.T. 2/10/15 at pg. 55, 150. At that point, Mr. Zipatelli struck

Mr. Clark from the other side. N.T. 2/10/15 at pg. 122, 123. Defendant, along



                                         2
with Mr. Zipatelli, punched Mr. Clark about "five (5) times." N.T. 2/10/15 at

pg. 66. Mr. Clark did not attempt to fight back. N.T. 2/10/15 at pg. 55. 125. At

the end of the fight, Defendant informed Mr. Clark that he had "two minutes

to get the rest of [his] stuff and leave." N.T. 2/10/15 at pg. 125. Mr. Clark

stated he was surprised by the attack from the Defendant. N.T. 2/10/15 at pg._

150.

              As a result of the attack, Mr. Clark suffered a fractured jaw, one of his

teeth was knocked out, and he had severe bruismg to his face. N.T. 2/10/15 at

pg. 136. 137. 139. As a result of the fractured jaw, Mr. Clark had surgery, and

his jaw was wired shut for about six (6) weeks. N.T. 2/10/15 at pg. 139. This

led to Mr. Clark losing about twenty five (25) to thirty (30) pounds, bringing

his weight down to about one hundred thirty five (135) pounds. N.T. 2/10/15

at pg. 139.141.        During this period of time, Mr. Clark could not speak. N.T.

2/10/15 at pg. 140. He also had to carry a pair of pliers with him at all times in

case he had to snip the wires himself if he became nauseous and had to vomit.

N.T. 2/10/15 at pg. 144.

       III.        MATTERS COMPLAINED OF ON APPEAL

              Defendant has raised eight (8) matters complained of on appeal. They

       are as follows:

              1.   Whether the evidence presented was insufficient to support the
                   verdicts when the Commonwealth provided sufficient evidence to
                   establish the basic elements of each of the charged offenses but
                   failed to rebut the Defendant's defense of defense of property?

              2. Whether the verdicts were against the weight of the evidence and
                 thereby any finding by the jury that the Defendant did not act in
                 defense of property was contrary to the weight of the evidence?

                                              3
         3. Whether the trial court erred when it barred the Defendant from
            introducing evidence that he was aware of the fact that his ex-wife
            had accused Clark of raping her earlier that year, thus precluding
            evidence relevant to the Defendant's state of mind when striking
            him?

         4. Whether the jury instructions regarding Defendant's decision not
            to call eye witnesses was prejudicial, unconstitutional, and contrary
            to the law, based on the fact the Defendant bears no burden in a
            criminal trial?

         5. Whether the trial court acted outside of its authority and prejudiced
            the jury, when without any objection on behalf of the
            Commonwealth, it sua sponte objected to defense counsel's
            closing argument and instructed the jury on Defendant's failure to
            call eye witnesses?

         6.   Whether the trial court committed prejudicial error when, over
              Defendant's objection, the court permitted Clark's sister to testify
              since her testimony was irrelevant, inflammatory and cumulative?

         7.   Whether the trial court committed reversible error when the court
              failed to give the jury instruction requested by the Defendant
              pertaining to the defense of self-defense?

         8.   Whether the trial court erred by failing to merge the sentences of
              Aggravated Assault, 18 Pa. C.S.A §2702(a)(l), and Recklessly
              Endangering Another Person, 18 Pa. C.S.A. §2705?


   IV.        DISCUSSION

   Pursuant to Pa.R.A.P. 1025(a), the Court will address each issue

complained of on appeal by Defendant.

         A. The Commonwealth Presented Sufficient Evidence to Rebut
            Defendant's Defense of Defense of Property and The Verdicts of
            Guilty Returnedbv the Jurv that Defendant did not Act in Defense of
            PropertyWere Not Contraryto the Weight of the Evidence.


   Defendant's first two errors complained of on appeal regard Defendant's

defense of property justification defense and shall be addressed by this Court


                                          4
m tandem.    During the course        of Defendant's    trial, this Court allowed

Defendant to present evidence         in support of his defense of Defense of

Property. This Court subsequently instructed the jury regarding the Defense of

Property. Because this Court allowed Defendant to present evidence of

justification, it became the Commonwealth's burden, beyond a reasonable

doubt,. to prove that Defendant did not act in justifiable defense of property.

Defendant alleges, on appeal, that the Commonwealth did not meet this

burden and did not provide sufficient evidence to rebut Defendant's defense

of defense of property.

   The Pennsylvania Crimes Code "embraces the concept that conduct which

would otherwise constitute a crime can be excused when necessary to prevent

a greater harm or crime." Com. v. Berrigan, 501 A.2d 226, 229 (Pa. 1985).

However, Section 507 of the Crimes Code provides in relevant part:


               .. (a) Use of force justifiable for protection of
               property.-The use of force upon or toward the
               person of another is justifiable when the actor
               believes that such force is immediately necessary:

                      ( 1) to prevent or terminate an unlawful
                           entry or other trespass upon land or a
                           trespass against or the unlawful
                           carrying away of tangible movable
                           property, if such land or movable
                           property is, or is believed by the actor
                           to be, in his possession or in the
                           possession of another person for whose
                           protection he acts ....

               (c) Limitations on justifiable use of force.-
                          (1) The use of force is justifiable under this
                             section only if the actor first requests

                                           5
                          the person against whom such force is
                          used to desist from his interference
                          with the property, unless the actor
                          believes that:
                                  (i) such request would be
                                  useless;
                                  (ii) it would be dangerous to
                                  himself or another person to
                                  make the request; or

                                  (iii) substantial harm will be
                                  done to the physical condition
                                  of the property which is sought
                                  to be protected before        the
                                  request can effectively        be
                                  made."
               18 Pa.C.S.A. § 507


       The evidence at trial demonstrated that the Commonwealth presented

sufficient evidence to rebut Defendant's defense of defense of property.

Defendant's argument that the Commonwealth did not meet its burden fails

for several reasons.

       The jury was presented with two factual scenanos regarding the

incident that resulted in Mr. Clark's injuries. The jury was free to believe

either Mr. Clark had been asked to leave by Bessie Hares, as she testified, and

was packing his belongings to leave, or that, as Mr. Clark testified, he had not

been asked by anyone to leave.

       Under the first scenario, 18 Pa.C.S.A. § 507 (a)(l) provides that the

use of force to stop an unlawful trespass must be immediately necessary. If

Mr. Clark was packing his belongings, there was no immediate need for the

use of force. Mr. Clark was welcomed in Defendant's home for several

                                       6
months pnor to the attack. Mr. Clark was not a stranger and was not

destructive. There was no immediate need to use force to expel Mr. Clark

from the property.

         Under the second scenario, even if Mr. Clark was not packing his

things to leave and had not been asked to leave, there was no immediate threat

that required force to eject Mr. Clark to the property. Under 18 Pa.C.S.A. §

507(c)(l), "the use of force is justifiable under this section only if the actor

first requests the person against whom such force is used to desist from his

interference with the property." Thus, Defendant had to ask Mr. Clark to

vacate the premises unless one of the following three (3) exceptions applied:


       "(i) such request would be useless; (ii) it would be dangerous to
       himself or another person to make the request; or (iii) substantial harm
       will be done to the physical condition of the property which is sought
       to be protected before the request can effectively be made."
        18 Pa.C.S.A. § 507(c)(l)(i):(ii):(iii)

       There is no indication that asking Mr. Clark to leave would have been

useless. Further, no evidence was presented to suggest that it would be

dangerous   to make such     request. Finally,   no evidence    was   presented    to


establish any harm would be done to the property if a request for Mr. Clark to

vacate the premises was made. If Mr. Clark had not been asked to leave, he

could not have known that any individual in the home did not want him there,

as he had been a welcome guest for months. A simple request to leave could

have alleviated any need to use force. Under both scenarios, there was no

need to use force on Mr. Clark to eject him from the property.



                                         7
       Therefore, it is clear to this Court that based on the evidence presented,

the Commonwealth          presented   sufficient   evidence   to rebut Defendant's

defense of defense of property and the verdicts of guilty returned by the Jury

that Defendant did not act in defense of property were not contrary to the

weight of the evidence.


       B. The Trial CourtDid Not Err in PrecludingEvidence that Defendant's
           Ex-Wife had accused the Victim, James Clark, of Defendant's
           Assault, of Rape.

       At the pretrial conference on February 6, 2015 before this Court, the

Commonwealth made a motion to exclude any reference of a rape allegation

by Defendant's former wife, Bessie Hares, against the victim in this case,

James Clark. Defendant opposed the Commonwealth's motion, and argued

two (2) possible scenarios of how the allegation made by Ms. Hares would be

admissible. N.T. 2/06/15 at pgs. 18-22. First, Defense counsel argued that he

should be able to impeach Ms. Hares on cross examination by questioning her

about the allegation of rape. N.T. 2/06/15 at pgs. 15-16. Second, Defense

counsel argued that should the Defendant testify, the testimony would be

admissible as to his state of mind at the time he hit the victim. N.T. 2/06/15 at

pg. 20. Defense counsel argued the rape allegation has probative value

because it was in Defendant's mind at the time of the attack and argued that

Defendant discussed the rape allegation with the police the day after the

alleged crime. N.T. 2/06/15 at pg. 22.

       The first step in determining whether the rape allegation made by Ms.

Hares is admissible at trial is determining whether the allegation is relevant


                                            8
under Pa. R.E. 401, and if so does its probative value, under Pa.R.E.           403,

outweigh    a danger of one or more of the following:          "unfair prejudice,

confusing the issues,    misleading   the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence."

       In the case at hand, the rape allegation may have been relevant to show

the Defendant's state of mind at the time of the attack on the victim, Mr.

Clark. However, the next step in determining the admissibility of this

evidence is to determine whether any rules of evidence preclude the admission

of this evidence.

        This Court ruled that Defendant would not be permitted cross-examine

Ms. Hares regarding the rape allegation pursuant Pa. R.E. 608(b); which

provides:


         ( 1) the character of a witness for truthfulness may not be attacked or
        supported by cross-examination or extrinsic evidence concerning
        specific instances of the witness' conduct; however,
        (2) in the discretion of the court, the credibility of a witness who
        testifies as to the reputation of another witness for truthfulness or
        untruthfulness may be attacked by cross-examination concerning
        specific instances of conduct (not including arrests) of the other
        witness, if they are probative of truthfulness or untruthfulness; but
        extrinsic evidence thereof is not admissible
        Pa.R.E. 608(b)
        Therefore, before defense counsel would be permitted to cross-

examine a witness regarding Ms. Hares' alleged claim of rape, that witness

would have to be vouching for Ms. Hares credibility. Under those

circumstances, it would be potentially permissible to question the witness




                                         9
about the false rape allegations. However, no witness was called to vouch for

Ms. Hares' veracity.

         Regarding the second scenario proffered by the Defendant, this Court

ruled if Defendant decided to take the stand, this Court would then entertain

Defendant's motion to introduce the prior rape allegation as evidence of the

Defendant's state of mind. N. T. 2/06/15 at pg. 22.. However, Defendant never

testified, so the issue is moot. Therefore, Defendant's argument is without

merit.

         In conclusion, Defendant's claim of error regarding this issue ts

without merit.


         C. The Jurv Instructions Given bv this Courtregarding Defendant's
            Decision Not to Call Witnesses Were Not Prejudicial,
            Unconstitutional, or Contrarv to the Law and the Trial CourtDid Not
            Act Outside of its Authoritywhen the Court Called a Sidebar During
            Defendant's Closing Argument and Subsequently issued Jury
            Instructions based on Defendant's Closing Argument.
         Defendant's fourth and fifth matters complained of on appeal both

regard this Court's jury instructions given as a result of statements made by

Defense Counsel during his closing argument. Therefore, they shall be

addressed in tandem.


         During Defense counsel's closing argument, he stated:

                       "I didn't have to put on any evidence. I chose to call Crystal.
                       Okay. They didn't call these other eyewitnesses to the stand.
                       They didn't call Dallas and they didn't call Brian.

                       Now, Attorney Lafferty might tell you, well, neither did
                       Attorney Parkins. But, yeah, not my burden. They have the
                       burden. It's their responsibility to put on the evidence.



                                       10
                       So what's the inference as to why they didn't call those
                       witnesses? Bad for them. They support justification."

                       N.T. 2/11/15   at pg. 22.

        Further, Defense counsel stated:

                       "Punching him a few times to get him to leave the house is not
                       unreasonable. I mean if it were my house, he might be leaving
                       with a gunshot wound."

                       N.T. 2/11/15 at pg. 25.
       At the completion of Defense Counsel's closing argument, this Court

called Defense Counsel and the Assistant District Attorney for a sidebar

conference. This Court expressed concern during the conference because

Defense counsel had listed Dallas Zipatelli as a witness on his witness list, but

did not call him because Mr. Zipatelli was a co-defendant and he had stated it

was his (Dallas Zippatelli) intent to invoke his fifth amendment right to

remain silent. N.T. 2/11/15 at pgs. 27-28. Further, the Court expressed

concern that Defense Counsel made the above statement regarding the

gunshot.   N.T. 2/11/15 at pg. 30. The Court expressed concern that this

statement would leave the jurors with the impression that any amount of force,

even deadly force, can be used to stop an unlawful trespass. N.T. 2/11/15 at

pg. 30. After the sidebar conference, the Court instructed the jurors as follows:


                "Ladies and gentleman, before we tum to the District
               Attorney's closing argument, there are two matters that I just
               want to give you some instruction on.

                During closing argument, Attorney Parkins referenced two
               witnesses who were not called: Dallas Zipatelli and Brian
               Belles. And his argument was that the Commonwealth didn't
               call them as witnesses, and, therefore, you, the jury, may
               properly draw, from their failure to call those two witnesses, an


                                        11
inference. That if they were called, their testimony would be
adverse to the Commonwealth.

  My instruction to you, with respect to that line of argument,
is, with respect to Dallas Zipatelli, you are to disregard the
comment and the argument regarding drawing any adverse
inference against the Commonwealth's failure to call Dallas
Zipatelli. Okay.

 The second point that I need to raise with you, is, in my final
instructions, I'm going to read to you the entire law on
justification.

And as I mentioned earlier, the final instructions are
complicated. We stayed here last night long after you left,
ironing out word-for-word, to make sure that the jury
instruction I'm going to read to you this morning is in
accordance with Pennsylvania Law.

Attorney Parkins touched on it during his closing argument,
and I can imagine Attorney Lafferty will touch on it in her
closing argument.

What I must tell you, is, it's my version of the statute, when I
read it to you, is what will control you. But the attorneys are
permitted to touch upon the law and tell you what the law is.
So I'm not suggesting that you shouldn't listen to that aspect of
it. But I do need to make a point of clarification about a point
that was made.

Under the law in Pennsylvania, for justification, if you are in
your own home, there are two types of defenses available to
you - or two different sets of circumstances contemplated by
the law: Use of deadly force to protect your property; and use
of non-deadly force to protect your property.

Two separate laws. Each one concerns two very different sets
of circumstances.

So everyone agrees, the only circumstances, in this case, that
apply are the use of non-deadly force. So I'm going to ask you
to disregard the comment, because it would tend to confuse
you on this issue, that 'if it were me, I would have used a gun,'
because that is when you use deadly force in protecting your
property, which has a whole host of other requirements before
a homeowner can resort to non-deadly force.

                        12
                So, in giving you this instruction, I do not want you to be left
               with the impression that anyone can use deadly force, under
               any circumstances, in protecting their home. That's not the
               case.

                There are two different sets of circumstances. If a person used
               deadly force, you have to look at those circumstances to see
               that it's justifiable. But if you try to put them in the same
               category, it's confusing and can be misleading.

                So just disregard the comment about the firearm. It has
               nothing to do with this case. It has nothing to do with the
               circumstances."

               N.T. 2/11/15 at pg. 32-36.


       Defense Counsel then asked for a clarification from this Court:


               "Judge, just as a clarification to the first one, is that they can't
               draw an inference from the Commonwealth's failure to call
               Dallas, but they may draw an inference from the failure to call
               Brian Belles"

               N.T. 2/11/15 at pg. 36.


       This Court responded:


               "And the Commonwealth may properly argue that the jury may
               call an adverse inference from the Defendant's failure to call
               him as well. .... but, as far as Dallas Zipatelli, the jurors are not
               to call an adverse inference to either side for the failure to have
               him called as a witness.

               N.T. 2/11/15 at pg. 36.


       The Pennsylvania Rules of Criminal Procedure clearly state that "[tjhe

trial judge may give instructions to the jury before the taking of evidence or at

anytime during the trial as the judge deems necessary and appropriate for the

jury's guidance in hearing the case.·· Pa. R.Crim.P No 64 7(0) ( emphasis



                                         13
added.). Further, a trial court may sua sponte give a cautionary instruction to

the jury to disregard remarks made by a prosecutor or defense attorney in

order to cure potential prejudice. Commonwealth v. Chimenti, 524 A.2d 913,

924 (Pa.Super. 1987), appeal denied 533 A.2d 711 (Pa. 1987).

         Moreover, a missing witness instruction is only available in certain

circumstances. This instruction allows the jury to draw an adverse inference

from the absence      from a potential material witness who is available.

Commonwealth v. Culmer, 604 A.2d 1090, l 098 (Pa. 1992). "In order for the

instruction to be invoked against the Commonwealth[,] the witness must be

available only to the Commonwealth."         Id. In order to determine whether a

witness was "available" only to a party, the trial court must ascertain whether

the witness was "peculiarly within the knowledge and reach" of that party.

_Commonwealth v. Boy_c1, 514 A.2d 623, 626 (Pa.Super. 1986) appeal denied,

531 A.2d 427 (1987); Commonwealth v. Newmiller. 409 A.2d 834, 839 (Pa.

1979).

         In Newmiller, counsel for both parties, in their summation, argued the

issue of a missing witness to the jury and the trial court explained the missing

witness rule to the jury during its charge.     evmliller, 409 A.2d at 839. The

Pennsylvania Supreme Court held:

                 "as no evidence was presented to the jury that the witness was
                within either parties' reach, the court should, as a matter of law,
                have instructed the jury to disregard counsels' arguments and
                not apply the missing witness rule." Id. Thus, by charging as it
                did, the court permitted the jury to speculate on whether or not
                to draw the adverse inference. As such that portion of the
                charge was erroneously given. We further can find no
                reasonable basis for trial counsel's failure to object to the


                                        14
               charge. As we believe appellant was denied effective assistance
               of trial counsel, he is entitled to a new trial. Id.


       In the case at hand. no evidence was presented to show that either

witness was only available to the Commonwealth. Culmer, 604 A.2d at 1098.

In fact, Defense Counsel indicated he would be calling Dallas Zipatteli as a

witness, so the Commonwealth chose not to. But then informed the Court that

they would not be calling Mr. Zippatelli, because he intended to invoke his

right to remain silent. Furthermore, after a thorough review of the record, we

are unable to find any evidence which establishes that Brian Belles was

'peculiarly within the knowledge and reach' of the Commonwealth such that

the jury might be permitted to draw the inference that Mr. Belles' testimony

would have been unfavorable to the Commonwealth. Newmiller, 409 A.2d at

839; BentivogJio v. Ralston, 288 A.2d 745, 748 (Pa. 1972). According to the

Assistant District Attorney, Mr. Belles was subpoenaed by the District

Attorney's office but she did not have a reason to call him. N.T. 2/10/15 at p.

173. There was no indication that Mr. Belles was out of reach of the defense

or that the defendant could not call him as a witness. Absent such evidence

that the potential witnesses must be 'available to only one of the parties' has

not been satisfied.

        Further, Mr. Ziparteli expressed his intention to invoke his fifth

amendment right, so neither side could call him as a witness, further

prohibiting the inclusion of a missing witness instruction.




                                       15
       Finally, it is clear, based on the Pennsylvania Rules of Criminal Procedure and

the relevant Pennsylvania     Case Law, that the trial court may give a cautionary

instruction to the jury to disregard remarks made by a prosecutor or defense attorney

in order to cure potential prejudice.    Chimenti,   524 A.2d at 924. Because Defense

Counsel's   statements   were misapplications   of the law to the jury for the reasons

stated above, it was within this Court's purview to give cautionary           instructions

regarding the remarks to the jury in order to cure any potential prejudice. Therefore,

in sum, Defendant's claim of en-or regarding these issues is without merit.


       D. The Trial CourtDid Not Commit Error when the Trial Court
          Permitted Mr. Clark's Sister to Testify.

       During the Defendant's trial, the Commonwealth called the victim's

sister, Michelle Jenkins, to testify. N.T. 2/10/15      at p. 175. Ms. Jenkins

testified as to the condition her brother, Mr. Clark, was in after the assault by

Mr. Hares. During the course of her testimony, Defense Counsel objected to

the relevancy of the questioning. N.T. 2/10/15 at p. 181.

       The first step in determining whether the testimony of Ms. Jenkins is

admissible at trial is determining whether the testimony is relevant under Pa.

R.E. 401, and if so is its probative value, under fa.R.E. 403, outweighed by a

danger of one or more of the following: "unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence."

       The testimony of Ms. Jenkins was clearly relevant to the case at hand.

In order to prove Aggravated Assault under 18 PA. C.S.A. 2702(1), the

Commonwealth must prove that the Defendant "atternpted to cause serious

                                        16
bodily injury to another, or causes such injury intentionally,      knowingly or

recklessly under circumstances manifesting extreme indifference to the value

of human life." The Pennsylvania Standard Criminal Jury Instructions define

serious bodily injury as "bodily injury that creates a substantial risk of death

or that causes serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ." 15.2702B (Crim)

Aggravated Assault--Causing Serious Bodily I_piury. Pa. SSJI (Crim),

§15.2702B (201~. Therefore, the Commonwealth must demonstrate that the

injury suffered by the victim rose to the level of serious bodily injury, as

defined by Pennsylvania law.

       The testimony of Ms. Jenkins was offered as evidence of the serious

bodily injury Mr. Clark suffered. For example, Ms. Jenkins testified, speaking

about Mr. Clark's injuries the day after the assault, as follows:

               Assistant District Attorney: "[W[hat, if anything, did you
               notice about the injuries in comparison to what you had seen
               earlier in the day?"
               Ms. Jenkins: ..They were worse. The swelling in the jaw, in
               particular was worse. Yes.
               Assistant District Attorney: "So that prompted you to take him
               to the Police Department?"
               Ms. Jenkins: "Yes."
               N.T. 2/10/15 at p. 178


               Ms. Jenkins further testified:
                "[Mr. Clark] had to carry wire clippers with him because of
               the fact that he had to puree his food and if at some point he
               started to choke, he would have to use these clippers .... because
               of the mesh caging.


                                        17
                   N.T. 2/10/15 at p. 183


        The testimony of Ms. Jenkins was relevant to demonstrate the injuries

suffered by the victim,       Mr. Clark, constitute   serious bodily injury. This

testimony established the pain and suffering of the victim. The testimony was

not prejudicial,    cumulative or inflammatory.   The testimony was offered for

the limited purpose of establishing the serious injuries suffered by the victim.

Therefore, Defendant's claim of error regarding this issue is without merit.


        E. The Trial Court Did Not Commit Error when the Trial CourtDid not
           Instruct the Jurv Regarding the Defendant's Requested Jurv
           InstructionregardingSelf-Defense.
        On appeal, Defendant argues that this Court did not give Defendant's

requested jury instruction regarding self-defense and defense of property.

However, during a lengthy discussion on the record with Defense Counsel, the

Defendant, the Assistant District Attorney and this Court, out of the presence

of the jury, the Defendant stipulated to the jury instruction given by this Court

regarding defense of property. N.T. 2/10/15 at pgs. 251- 320. This Court put

together a jury instruction with input from both attorneys, who stipulated to

this Court reading that instruction.

        "[T]he failure to make a timely and specific objection before the trial

court at the appropriate stage of the proceedings will result in waiver of the

issue." Com. v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014), reargument

denied (Nov. 25, 2014). In Commonwealth v. Pressley, 887 A.2d 220, 224

(Pa.Super. 2006), the Court stated, that:



                                            18
               "The pertinent rules, therefore, require a specific objection to
               the charge or an exception to the trial court's ruling on a
               proposed point to preserve an issue involving a jury instruction.
               Although obligating counsel to take this additional step where
               a specific point for charge has been rejected may appear
               counterintuitive, as the requested instruction can be viewed as
               alerting the trial court to a defendant's substantive legal
               position, it serves the salutary purpose of affording the court an
               opportunity to avoid or remediate potential error, thereby
               eliminating the need for appellate review of an otherwise
               correctable issue."

               Pressley. 887 A.2d at 224

   The record reflects that Defendant agreed to and assisted the court in

drafting the jury instruction. This discussion spans almost seventy (70) pages

of transcript. N.T. 2/10/15   at pgs. 251- 320. Defense Counsel is precluded

from now objecting to the jury instruction.      As the Pennsylvania     Superior

Court stated in Pressley, "a specific objection is required ....   , it serves the

salutary purpose of affording the court an opportunity to avoid or remediate

potential error, thereby eliminating the need for appellate review of an

otherwise correctable issue. Pressley. 887 A.2d at 224. This Court consulted

with the attorneys and the Defendant to come to a mutually agreeable

instruction that would not burden the appellate courts on review, and now

Defendant raises an objection to the instruction. Defendant's "failure to make

a timely and specific objection before the trial court at the appropriate stage of

the proceedings will result in waiver of the issue." .Houc_k, 102 A.3d at 451.

Defendant failed to object to the instruction at the appropriate time during

trial. Therefore, his ability to appeal this issue is waived and this issue on

appeal is without merit.




                                        19
   However, if it is found that Defendant has not waived this objection, it is

still without merit, because no evidence was presented to set forth a self-

defense theory for Defendant.

   In a criminal matter, the defendant does not have the burden of proving a

claim of self-defense. Commonwealth v. Black, 376 A.2d 627, 630 (Pa.

1977); Commonwealth v. Mayfield 585 A.2d 1069, 1071 (Pa. Super. 1991).

However, before a claim of self-defense may be placed before the trier of fact,

there must be some evidence, from whatever source, to justify a finding of

self-defense. Commonwealth v. Torres. 766 A.2d 342, 345 (Pa. 1999); If there

is such evidence, then the burden is placed upon the Commonwealth to

disprove the claim of self-defense beyond a reasonable doubt. Commonwealth

v. Samuels. 590 A.2d 1245, 1247 (Pa. 1991).

   There was no evidence presented at trial, from any source, that suggested

Defendant was acting in self-defense. The evidence demonstrated that

Defendant and Dallas Zipatteli approached James Clark and began punching

him in the face and body. There was no evidence to suggest that Mr. Hares

was defending himself. Therefore, if it is determined that Defendant did not

waive his objection, this issue on appeal is still without merit, because no

evidence was presented to set forth a self-defense theory for Defendant.

       F. The Trial Court Did Err by Failing to Merge the Sentences of
          Aggravated Assault and Recklessly EndangeringAnotherPerson and
          asks This Courtto Remand for Resentencing.
       Defendant alleges on appeal that the trial court erred by failing to

merge the sentences of Aggravated Assault, 18 Pa. C.S.A §2702(a)(l), and

Recklessly Endangering Another Person, 18 Pa. C.S.A. §2705

                                       20
       Section 9765 of the crimes code, Merger of Sentences, provides:

               No crimes shall merge for sentencing purposes unJess the
               crimes arise from a single criminal act and all of the statutory
               elements of one offense are included in the statutory elements
               of the other offense. Where crimes merge for sentencing
               purposes, the court may sentence the defendant only on the
               higher graded offense.

               42 Pa. C. S. A. § 9765

       This Court recognizes that after the enactment of section 9765 of the

Crimes Code, Pennsylvania law requires a "pure statutory elements approach"

to evaluating merger for sentencing purposes. Commonwealth v. Yeomans. 24

A.3d I 044, 1050 (Pa.Super. 2011 ). "The statute's mandate is clear. It prohibits

merger unJess two distinct facts are present: 1) the crimes arise from a single

criminal act; and 2) all of the statutory elements of one of the offenses are

included in the statutory elements of the other." Commonwealth v. Collins.

764 A.2d 1056, 1057-1058      (Pa. 2001). The test is "whether the elements of

the lesser crime are all included within the elements of the greater crime, and

the greater offense includes at least one additional element which is different,

in which case the sentences merge. or whether both crimes require proof of at

least one element which the other does not, in which case the sentences do not

merge." Id.

       Presently, Defendant challenges his sentences for Recklessly

Endangering Another Person and Aggravated Assault. The Crimes Code

defines appellant's offenses in pertinent part as follows:

       2502. Recklessly Endangering Another Person




                                        21
       A person commits a misdemeanor of the second degree if he recklessly
       engages in conduct which places or may place another person in
       danger of death or serious bodily injury.

        18 Pa. C. S. A.§ 2502

       2702. Aggravated Assault

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

        ( 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
        The Pennsylvania Superior Court and the Pennsylvania Supreme Court

have ruled that "[rjeckless endangerment is a lesser included offense of

aggravated assault and where the evidence is sufficient to support a claim of

aggravated assault it is also sufficient to        support a claim of recklessly

endangering another person." Commonwealth v. Smith. 956 A.2d 1029, 1036

(Pa. Super. 2008), citing Commonwealth v. Thompson 739 A.2d 1023, 1028

n. 13 (Pa. 1999). In consideration of the cases above, the critical point in

evaluating Defendant's claim is whether the offenses of REAP and

Aggravated Assault arose from a single criminal act. If so, the offenses merge

for sentencing purposes. Collins, 764 A.2d at 1057-1058.

        The charges of Aggravated Assault and Recklessly Endangering

Another Person of which Defendant was convicted did arise from a single

incident,   namely,   Defendant's    attack on James        Clark.   This Court

acknowledges that this sentence is improper in light of the above authority.



                                        22
This    Court   recogmzes   that   an   illegal   sentence   must   be   vacated.

Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003).

   This Court imposed a sentence of one (1) year of special probation for the

crime of Recklessly Endangering Another Person. This sentence was imposed

consecutively to the sentence imposed for Aggravated Assault. In light of the

negation of the REAP sentences and disruption of the trial court's sentencing

scheme, the trial court should be provided the opportunity- to fashion a

sentence that is equal to or comparable in length to the original sentences, but

based upon the remaining charges. This Court recognizes that when the

sentence as to one count of a multi-count case should merge, then sentences

for all counts should be vacated so that the court can restructure its entire

sentencing scheme. Commonwealth v. Williams, 871 A.2d 254, 266 (Pa.

Super. 2005). If permitted upon remand, this Court will immediately

resentence Defendant.


   V.       CONCLUSION

        For the foregoing reasons, Defendant's request for relief should be

DENIED except as to the sentence imposed by this Court. Upon remand, a

new sentence shall be issued by this Court. An appropriate Order is attached.




                                        23
