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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
JEREMIAH BROWER,                           :         No. 1132 WDA 2015
                                           :
                          Appellant        :


             Appeal from the Judgment of Sentence, March 4, 2015,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0008604-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED OCTOBER 12, 2016

        Jeremiah Brower appeals the judgment of sentence in which the Court

of Common Pleas of Allegheny County sentenced him to serve a term of

seven to fourteen years’ imprisonment for aggravated assault, serious bodily

injury.1

        The facts as recounted by the trial court are as follows:

                    Briefly, the evidence presented at trial
              established that on June 8, 2013, Alfonzo Brower
              ([appellant’s] brother) and his wife were at his
              mother’s house for a visit. During the visit, Brower’s
              mother began to cook hot sausage with green
              peppers and onions for them.         At some point
              thereafter, [appellant] came into his mother’s house
              and screamed at Alfonzo over some money Alfonzo
              owed him. [Appellant] said he was going to “beat

* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702(a)(1).
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            [Alfonzo’s] ass” and swung at Alfonzo.          Alfonzo
            pushed [appellant] backwards into the refrigerator
            and at that point, [appellant] reached over and
            poured the contents of the frying pan onto Alfonzo.
            Alfonzo suffered severe burns to his head, face,
            chest, shoulder, arm, and wrist.           Additionally,
            Alfonzo’s wife was splashed with some of the hot oil
            and sustained minor burns to her hand. Alfonzo has
            permanent scarring and discoloration and continues
            to suffer pain and sensitivity in the burned areas as a
            result.

Trial court opinion, 1/14/16 at 2-3.

      In a non-jury trial, the trial court found appellant guilty of aggravated

assault, the crime for which he was sentenced.

      Appellant filed a post-sentence motion that challenged the sufficiency

and weight of the evidence.            He also moved for reconsideration of his

sentence   on     the   basis   that   the   trial   court   ignored   the   facts   and

circumstances of the crime and appellant’s personal background. Appellant

also filed a supplemental post-sentence motion. The trial court denied the

motions by order dated June 26, 2015.

      Appellant raises the following issues for this court’s review:

            I.      WAS THE EVIDENCE INSUFFICIENT AS A
                    MATTER OF LAW TO CONVICT [APPELLANT] OF
                    AGGRAVATED     ASSAULT    WHERE    THE
                    COMMONWEALTH     FAILED    TO  PRESENT
                    EVIDENCE    THAT   [APPELLANT]   ACTED
                    RECKLESSLY     UNDER     CIRCUMSTANCES
                    MANIFESTING EXTREME INDIFFERENCE TO
                    THE VALUE OF HUMAN LIFE?

            II.     WHERE THE COMMONWEALTH SOUGHT ONLY
                    A STANDARD RANGE SENTENCE, DID THE
                    TRIAL COURT ABUSE ITS DISCRETION AT


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                   SENTENCING BY IMPERMISSIBLY RELYING ON
                   [APPELLANT’S] PRIOR CRIMINAL HISTORY AS
                   ITS BASIS FOR IMPOSING AN AGGRAVATED
                   RANGE SENTENCE OF TOTAL CONFINEMENT
                   AND BY FAILING TO CONSIDER NUMEROUS
                   MITIGATING    FACTORS   THAT    WEIGHED
                   AGAINST    THE    IMPOSITION    OF   AN
                   AGGRAVATED RANGE SENTENCE?

Appellant’s brief at 5.

      Initially, appellant contends that the evidence presented by the

Commonwealth was insufficient to establish that appellant was guilty of

aggravated assault.

                  A claim challenging the sufficiency of the
            evidence is a question of law. Commonwealth v.
            Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
            (2000). In that case, our Supreme Court set forth
            the sufficiency of the evidence standard:

                   Evidence will be deemed sufficient to
                   support the verdict when it establishes
                   each material element of the crime
                   charged and the commission thereof by
                   the accused, beyond a reasonable doubt.
                   Commonwealth v. Karkaria, 533 Pa.
                   412, 625 A.2d 1167 (1993). Where the
                   evidence offered to support the verdict is
                   in contradiction to the physical facts, in
                   contravention to human experience and
                   the laws of nature, then the evidence is
                   insufficient as a matter of law.
                   Commonwealth v. Santana, 460 Pa.
                   482, 333 A.2d 876 (1975).           When
                   reviewing a sufficiency claim the court is
                   required to view the evidence in the light
                   most favorable to the verdict winner
                   giving the prosecution the benefit of all
                   reasonable inferences to be drawn from
                   the evidence.       Commonwealth v.



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                     Chambers, 528 Pa. 558, 599 A.2d 630
                     (1991).

            Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

     A person will be found guilty of aggravated assault if he “attempts to

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

knowingly     or   recklessly   under     circumstances     manifesting     extreme

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

term “serious bodily injury” is defined by statute as “[b]odily injury which

creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S.A. § 2301. Where the victim suffers serious

bodily injury, the Commonwealth is not required to prove specific intent.

Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa.Super. 1997). Instead,

the Commonwealth must establish that the defendant acted recklessly under

circumstances that manifested an extreme indifference to the value of

human life.    Id.     In order to prevail on a theory of recklessness, the

Commonwealth       must    prove   that   the   defendant    acted   with   malice.

Commonwealth v. Bruce, 916 A.2d 657 (Pa.Super. 2007).

                     Malice   exists     where   there   is  a
                     “wickedness of disposition, hardness of
                     heart,     cruelty,    recklessness    of
                     consequences, and a mind regardless of
                     social duty, although a particular person
                     may not be intended to be injured.”
                     Commonwealth v. Pigg, 391 Pa.Super.


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                 418, 571 A.2d 438, 441 (1990), appeal
                 denied, 525 Pa. 406, 581 A.2d 565
                 (1990) (quoting Commonwealth v.
                 Drum, 58 Pa. 9, 15 (1868).         Where
                 malice is based on a reckless disregard
                 of consequences, it is not sufficient to
                 show mere recklessness; rather, it must
                 be shown the defendant consciously
                 disregarded an unjustified and extremely
                 high risk that his actions might cause
                 death or serious bodily injury.      See
                 Commonwealth        v.    Scales,    437
                 Pa.Super. 14, 648 A.2d 1205, 1207
                 (1994), appeal denied, 540 Pa. 640,
                 659 A.2d 559 (1995) (regarding third
                 degree murder).      A defendant must
                 display a conscious disregard for almost
                 certain death or injury such that it is
                 tantamount to an actual desire to injure
                 or kill; at the very least, the conduct
                 must be such that one could reasonably
                 anticipate death or serious bodily injury
                 would likely and logically result. See
                 [Commonwealth v.] O’Hanlon, . . .
                 [539 Pa. 478,] 653 A.2d [616] at 618
                 [(1995)] (regarding aggravated assault).

           [Commonwealth v.] King, 731 A.2d [145] at 147-
           148 [(Pa.Super. 1999)].

Bruce, 916 A.2d at 664.

     Here, the record reflects that when appellant appeared at his mother’s

house and saw his brother, Alfonzo Brower (“the victim”), appellant said, “I

want my f***in’ money, I’m about to beat your ass.” (Notes of testimony,

12/3/14 at 7.)   The victim testified that appellant then swung at him and

missed.   The victim then pushed appellant back into the refrigerator.   As

appellant kept swinging, the victim attempted to protect himself and push



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away from appellant. Appellant took the pan which contained hot sausage,

onions, and peppers and was cooking on the stove and poured the contents

on the victim. The victim suffered severe burns to his chest, shoulder, arm,

wrist, face, and head. (Id. at 10.)

       The victim’s wife, Tamika Brower, testified that appellant “picked the

pot up with the right hand and dumped it on my husband’s head. . . . It (the

pot) was on the stove boiling. It had hot sausage, onions, peppers.” (Id. at

24.)

       The fact that the victim suffered severe burns which resulted in

permanent scarring and discoloration and for which he still experiences pain

establishes that there was a serious bodily injury. The action of grabbing a

boiling pot from a stove and dumping the contents on another could and did

cause a serious bodily injury.    This court agrees with the trial court that

there was sufficient evidence to support a conviction for aggravated assault.

       Appellant next contends that the trial court abused its discretion when

it imposed an aggravated range sentence based on appellant’s prior criminal

history and when it failed to consider mitigating factors against the

imposition of an aggravated range sentence.

            [T]he proper standard of review when considering
            whether    to    affirm   the    sentencing    court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the    judgment       exercised    was      manifestly
            unreasonable, or the result of partiality, prejudice,


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            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

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

Moury, 992 A.2d at 170 (citation omitted).




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     Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Second, appellant raises two issues that challenge his sentence:

1) the trial court abused its discretion when it impermissibly relied on

appellant’s prior criminal history as a basis for imposing an aggravated

range sentence and 2) the trial court abused its discretion when it failed to

consider any mitigating factors that weighed against the imposition of an

aggravated range sentence. In his original post-sentence motion, appellant

contended:

                The sentence imposed was unjust, unreasonable,
                 and manifestly excessive.       The sentence
                 impose[d] was also contrary to the Sentencing
                 Code, 42 Pa.C.S.A. §§ 9701-9909, and the
                 fundamental norms underlying the sentencing
                 process.

                The trial court failed to consider and apply all the
                 required factors under 42 Pa.C.S.A. § 9721
                 (Sentencing Generally) and 42 Pa.C.S.A. § 9781
                 (Appellate Review of Sentence). The trial court
                 did   not    adequately     consider   [appellant’s]
                 character and/or his need for rehabilitation.
                 Thus, the sentence imposed was based on
                 improper factors and/or not based on all relevant
                 and proper factors.

                The sentencing decision was based solely on the
                 nature and facts of the case and the seriousness
                 of the crime.

                The trial court failed to put adequate reasons on
                 the record to justify the sentencing decision.



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Post–Sentence Motion; Motion for Leave to File Supplemental Post-Sentence

Motions; Motions for an Extension of Time to Decide All of the Post-Sentence

Motions; and Motion for the Immediate Production of the Transcripts, 2/4/15

¶ 14 at 3-4.

     In the Supplemental Post-Sentence Motion, Motion to Reconsider

Sentence, appellant contended:

           17.   [Appellant] avers that this Honorable Court
                 abused its sentencing discretion.          This
                 Honorable Court failed to follow the general
                 principles of sentencing consisting [sic] with
                 the    rehabilitative  needs of [appellant],
                 protection of the public, and impact on the life
                 of the victim and on the community.

           18.   Specifically, this Honorable Court overlooked
                 pertinent facts, such as the facts and
                 circumstances of the crime and the specific,
                 personal      background     of   [appellant].
                 [Appellant] avers that this Honorable Court
                 ignored the character and background of
                 [appellant]. For instance:

                 a.    The incident that resulted in the
                       injuries to [appellant’s] brother
                       was     a   family    fight,    which
                       unfortunately     escalated      after
                       [appellant’s]    brother     initiated
                       physical contact.

                 b.    [Appellant] did not go out looking
                       to hurt anyone.
                 c.    [Appellant] has a history of mental
                       health issues, which this Honorable
                       Court did not consider when
                       initiating [appellant’s] sentence.




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                   d.      [Appellant]   apologized    to  his
                           brother in court, and       showed
                           remorse for his actions.

            19.    Moreover, this Honorable Court did not
                   consider any mitigating evidence when
                   sentencing [appellant] to the top end of the
                   aggravating [sic] range.

Supplemental Post-Sentence Motion, 6/25/15 ¶¶ 17-19 at 4-5.

      With regard to the first issue, the Commonwealth argues that

appellant did not properly preserve this issue in his post-sentence motions.

After a review of the post-sentence motion and supplemental post-sentence

motion, this court agrees that appellant failed to preserve the issue of

whether the trial court abused its discretion when it impermissibly relied on

appellant’s prior criminal history as a basis for imposing an aggravated

range sentence.         Therefore, this court determines that this issue was

waived.     However, appellant did preserve the second issue in his

post-sentence motions.

      Third, appellant included a Rule 2119(f) statement in his brief in which

he avers that “the trial court abused its sentencing discretion because, in

essence, it failed to consider relevant and mandatory sentencing criteria,

including   his   character,   personal   history,   and   rehabilitative   needs.”

(Appellant’s brief at 27.)

      A substantial question is only raised on a sentence within the

guidelines when there are circumstances in which “the application of the

sentencing guidelines would be clearly unreasonable.” Commonwealth v.


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Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161

(Pa. 2014), quoting 42 Pa.C.S.A. § 9781(c)(2).

            In determining whether a substantial question exists,
            this Court does not examine the merits of whether
            the sentence is actually excessive. Commonwealth
            v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
            Rather, we look to whether the appellant has
            forwarded a plausible argument that the sentence,
            when it is within the guideline ranges, is clearly
            unreasonable.      Concomitantly, the substantial
            question determination does not require the court to
            decide the merits of whether the sentence is clearly
            unreasonable.

Dodge, 77 A.3d at 1270.

      Here, appellant alleges that the trial court failed to consider his

history, characteristics, and mitigating circumstances.    This court has held

that where an appellant alleges that the sentencing court erred when it

imposed an aggravated range sentence without consideration of mitigating

circumstances, a substantial question is raised.          Commonwealth v.

Hyland, 875 A.2d 1175 (Pa.Super. 2005), appeal denied, 890 A.2d 1057

(Pa. 2005). We, therefore, will address his appeal on the merits.

      Specifically, appellant asserts that the trial court failed to acknowledge

his longstanding mental health issues, the fact that the victim’s injuries were

the result of a physical altercation between two willing participants and

stemmed from a familial dispute, appellant did not use a weapon in the

“traditional sense of the word,” and appellant expressed remorse for his

actions.



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      At the sentencing hearing, the trial court explained its sentencing

decision:

                  Mr. Brower, I find that you did cause
            permanent and serious injuries to your brother by
            throwing a hot pan with grease on it at him. He is to
            this day still suffering from wounds that you gave to
            him.

                  Your criminal history record is abysmal.
            Starting at the age of 15 almost all of your
            convictions involve assaultive behavior.

                    You have done two years in the state for
            indecent assault and threatening to kill your
            girlfriend and you committed this offense that you
            are charged with while you were on probation and
            you have a detainer lodged against you and you
            have had a number of PFAs for threatening to kill
            your mother and your father as well as your
            girlfriend.

                 You have never done well while you were on
            probation, you were in technical noncompliance, and
            you continue to use drugs and you continue to
            commit crimes.

                   I did not list all of the crimes in your past, but
            I listed enough so that I am able to conclude that
            you are not a candidate for rehabilitation.

                  I find that your actions are aggravating and I
            order you to pay the costs and serve 84 to
            168 months in the state correctional institution with
            credit for the time that you have served in jail.

Notes of testimony, 3/4/15 at 5-6.

      In its subsequent opinion, the trial court further explained its decision:

            As the record reflects, this Court appropriately read
            and considered the pre-sentence investigation
            report, considered the factors and severity of the


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            present offense, evaluated [appellant’s] potential for
            rehabilitation and imposed a sentence which took all
            of these factors into consideration. The sentence
            imposed was an aggravated range sentence, but it
            was within the statutory maximum and was,
            therefore, legal. Moreover, the sentence was clearly
            appropriate, given the facts of this case and the
            extensive injuries which resulted.       [Appellant’s]
            unhappiness with the length of his sentence does not
            mean it is excessive or otherwise inappropriate. This
            claim must fail.

Trial court opinion, 1/14/16 at 7.

                  Where the sentencing court had the benefit of
            a presentence investigation report (“PSI”), we can
            assume the sentencing court “was aware of relevant
            information regarding the defendant’s character and
            weighed those considerations along with mitigating
            statutory factors.” Commonwealth v. Devers, 519
            Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
            Commonwealth v. Tirado, 870 A.2d 362, 368
            (Pa.Super. 2005) (stating if sentencing court has
            benefit of PSI, law expects court was aware of
            relevant information regarding defendant’s character
            and weighed those considerations along with any
            mitigating factors).

Moury, 992 A.2d at 171.

      The trial court stated on the record that it had received the

presentence    investigation   report.       Because   the   trial   court   reviewed

appellant’s PSI, it is presumed that the trial court was aware of appellant’s

rehabilitative needs as well as any other mitigating factors.                Devers.

Further, appellant’s contention that the victim’s injuries were the result of a

physical altercation between two willing participants is belied by the record.

Similarly, he did not use a weapon in the sense of using a gun or a knife but,



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as the trial court stated, “you can’t take a gun to a knife fight and you can’t

take hot sausage that is boiling on the stove to a tussle.”                (Notes of

testimony, 12/3/14 at 45.)

      With respect to the fact that the injuries resulted from a family dispute

and that appellant expressed remorse, these factors were brought before the

trial court at the sentencing hearing. The trial court considered these factors

but concluded that an aggravated sentence was needed because of

appellant’s past criminal behavior, the severity of the crime itself, his failed

efforts at rehabilitation, and the need to protect the public. If a defendant

does not approve of the manner in which the trial court weighed his

rehabilitative   potential,   it   does    not     mean   that   the   sentence   was

unreasonable and an abuse of discretion. Commonwealth v. Marts, 889

A.2d 608, 615 (Pa.Super. 2005).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/12/2016




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