J-A20033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    NOEL VEGA                                  :
                                               :
                       Appellant               :      No. 1981 MDA 2018

      Appeal from the Judgment of Sentence Entered November 14, 2018
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005092-2017


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                     FILED SEPTEMBER 06, 2019

        Appellant, Noel Vega, appeals from the judgment of sentence entered

in the Berks County Court of Common Pleas, following his jury trial convictions

for two counts of aggravated assault and one count of resisting arrest.1 We

affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises the following issues for our review:

           [WHETHER THE EVIDENCE WAS INSUFFICIENT TO
           CONVICT APPELLANT OF AGGRAVATED ASSAULT AND
           RESISTING ARREST?]

           [WHETHER APPELLANT’S CONVICTIONS FOR AGGRAVATED
____________________________________________


1   18 Pa.C.S.A. §§ 2702(a)(3) and 5104, respectively.
J-A20033-19


         ASSAULT AND RESISTING ARREST WERE AGAINST THE
         WEIGHT OF THE EVIDENCE?]

         [WHETHER THE COURT IMPOSED A MANIFESTLY
         EXCESSIVE SENTENCE, WHERE IT FAILED TO CONSIDER
         APPELLANT’S CRIMINAL HISTORY, BACKGROUND, AND
         EFFECT OF UNDERLYING OFFENSES ON VICTIMS?]

(Appellant’s Brief at 2-5).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable M. Theresa

Johnson, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed March 21, 2019, at 5-17) (finding: (1) evidence

was sufficient to convict Appellant of aggravated assault; that police officers

did not seek medical treatment or miss time from work is immaterial in light

of other trial evidence indicating Appellant caused injury to officers while they

were performing their law enforcement duties; further, Appellant did not raise

insanity defense at trial, so evidence that one or more officers knew of

Appellant’s mental illness is irrelevant and inadmissible; to extent Appellant

asserts evidence was insufficient to convict him of aggravated assault because

he did not do anything to officers until one officer pushed him, it appears

Appellant attempts to argue he acted in self-defense; Appellant, however,

failed to raise self-defense claim at trial; additionally, record belies Appellant’s

assertion that he did not consciously intend to cause or attempt to cause injury

to officers; evidence demonstrated Appellant attempted to cause and caused


                                       -2-
J-A20033-19


bodily injury to Officers Federico and Lower while in performance of their

duties as police officers; evidence was sufficient to convict Appellant of

resisting arrest; during altercation with police who were attempting to detain

Appellant, Appellant attempted to injure and did injure Officers Federico and

Lower; officers had to use substantial force to overcome Appellant’s

resistance;   Appellant   also   repeatedly   failed   to   comply   with   officers’

instructions to place his hands behind his back; officers requested backup due

to Appellant’s resistance; (2) as set forth in analysis of Appellant’s sufficiency

claim, verdict was not contrary to evidence; verdict was consistent with

evidence and did not shock one’s sense of justice; (3) with benefit of PSI,

court sentenced Appellant within parameters of guidelines to standard range

sentences on all charges; court’s application of sentencing guidelines was

reasonable; record belies Appellant’s claims that sentencing court failed to

consider certain factors; court considered all factors that Appellant claims

court did not consider). Accordingly, we affirm on the basis of the trial court

opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/2019



                                      -3-
                                                                                               Circulated 08/15/2019 03:29 PM




COMMONWEALTH OF PENNSYLVANIA                                              IN THE COURT OF COMMON PLEAS
                                                                          OF BERKS COUNTY, PENNSYLVANIA
                                                                          CRIMINAL DIVISION
                              vs.
                                                                          No. CP-06-CR-0005092-2017

NOEL VEGA                                                                 Assigned to: Judge M. Theresa Johnson

Michael D. Dautrich, Esquire
       Attorney for Appellant

Alisa R. Hobart, Esquire
       Attorney for the Commonwealth!Appellee

Memorandum Opinion                               March 21, 2019                               M. Theresa Johnson, J.

                                            PROCEDURAL HISTORY

          The defendant in the above-captioned case, Noel Vega ("Vega"), was charged with six

counts of aggravated assault, 1 six counts of simple assault.i six counts of harassment3 and one

count of resisting arrest or other law enforcement4 arising from an incident alleged to have

occurred on October 17, 2017. On October 30, 2018, a jury found Vega guilty of two counts of

aggravated assault' and the sole count of resisting arrest or other law enforcement. The

Commonwealth withdrew all counts of simple assault and this court dismissed three counts of

aggravated assault" on judgment of acquittal. This court found Vega guilty of all six counts of

harassment.: Prior to sentencing, the Commonwealth withdrew all the counts of harassment. On

November 14, 2018, this court imposed a cumulative sentence on Vega of 42 months to 8 years

in a State Correctional Facility. Appellant was given credit for the 49 days he had previously




1   18 Pa.C.S.A.   §2702(a)(2) (3 counts) and 18    Pa.C.S.A. §]797(<!){3)' (3 counts).
2   18 Pa.C.S.A.   §270 l(a)(l) (3 counts) and ts   Pa.C.s.A: §2701 (a)(3) (3 counts).
3   18 Pa.C.S.A.   §2709(a)(l) (1 counts) an4: is   Pa.C.S:A. j§l7g9(a){�t() counts).


: !: :::gt1: i;;��i:�m g :��:::�:
4   18 Pa.C.S.A.   §5104.                    v'-'    ·-· .. -

                                              s J_ .: l\ l; J j .. : , :_2 �:: �] J
                                                                    1
       served. On November 2 I, 2018, Vega filed a Post-Trial Motion which this court denied by order
..
(.()
       dated December 5, 2018.

               On December 7, 2018, Vega filed a Notice of Appeal to the Superior Court of

       Pennsylvania from the judgment of sentence entered on November 14, 2018, and the order of

       December 5, 2018, denying Vega's Post-Trial Motion. On December 11, 2018, Vega was

       ordered to file a concise statement of matters complained of on appeal within twenty-one days

       from the date of the concise statement order's entry on the docket. On December 26, 2018, upon

       motion of counsel, Vega was granted an extension and ordered to file a concise statement within

       thirty days from the filing date of the transcripts. The transcripts were filed on January 4, 2019,

       and January 16, 2019. On January 25, 2019, upon motion of counsel, Vega was granted an

       additional thirty days to file his concise statement. On February 22, 2019, Vega filed a Concise

       Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b) challenging the

       weight of the evidence, sufficiency of the evidence and claiming that this court's sentence was

       manifestly excessive.

                                                  DISCUSSION

                                                Statement of Facts

              On October 17, 2017, at approximately 8:00 a.m., Officer Valery Lower ("Officer

       Lower"), Officer Charles Federico ("Officer Federico"), and Officer Dale Trythall ("Officer

       Trythall") of the Reading Police Department (collectively referred to as "Officers") were

       dispatched to 519 Moss Street, Reading, Berks County, Pennsylvania ("Residence") for an

       unknown problem. Notes of Testimony, Jury Trial, October 29, 2018, to October 30, 2018

       ("N.T.") at 77-78, 96, l 17-118, 140-141. TheOfficerswerein uniform, wearing badges of

       authority and operating marked patrol VEP:)cl�s., N.'f..'at·77�   :9'J·;\ 17-118, 141.   Upon arrival at



                                                          2
the Residence, the Officers encountered Vega and identified themselves to him as police officers.

N.T. at 78-79, 90, 118-119, 142. Vega confirmed that he lived at the Residence and granted the

Officers permission to enter. N.T. at 78-79, 99-100, 134.

        While Officer Federico and Officer Lower were inside the Residence with Vega's wife,

Mercedes, Vega argued with Officer Trythall.7 N.T. at 80-81, 100, 119-120, 134, 143-144, 155.

After Officer Lower exited the Residence, Vega continued to argue with both Officer Trythall

and Officer Lower. N.T. at 81-82, 120, 135, 145-146, 155. Officer Federico exited the

Residence and encouraged Vega to sit down and relax. N.T. at 82, 84, 102-103. Vega was

agitated and used profanity when responding to Officer Federico. N.T. at 82, 84. Officer

Federico pulled out his handcuffs and told Vega that he would be placed in handcuffs ifhe didn't

calm down. N.T. at 87, 122, 137, 146 .

       . Vega came towards Officer Federico prompting Officer Federico to raise his hands and

command Vega to stop. N.T. at 84, 106, 121. Officer Federico's hands were up with his palms

facing towards Vega. N.T. at 84. Vega continued to walk towards Officer Federico until he

came into contact with his open hands. N.T. at 84, 107. At that time, Officer Federico gave

Vega a slight push and instructed him to sit down. N.T. at 84, 107, 112, 115. In response, Vega

knocked Officer Federico's arms away, pushed him and threw a punch at Officer Federico's

head. N.T. at 84, 86, 107-112, 115, 122, 126, 131, 137. Vega's punch missed Officer Federico.

N.T. at 84-85. Officer Federico grabbed Vega's arm and pushed him up against the side of the

Residence. N.T. at 85, 87, 110-111. All three of the Officers engaged Vega to get control of

him. N.T. at 85, 110, 112, 138, 157. Vega was instructed to put his hands behind his back and




7Officer Federico testified that Mercedes did not speak English, but he did hear her say the words "marijuana" and
"mental" during his interaction with her. N.T. at 100, 101.

                                                         3
..     to stop resisting. N.T. at 87, 88, 112, 122, 126, 162-163. Vega bent over and kept his arms in
....
iri


       front of him. N.T. at 87, 114.

               During the Officers' attempt to control Vega, Vega physically attacked Officer Federico,

       Officer Lower and Officer Trythall. N.T. at 88, 96, 124, 138, 147-148. Vega elbowed Officer

       Trythall in his rib cage below his vest. N.T. at 124, 125, 138. Vega struck Officer Trythall's

       leg/groin with a ceramic coffee cup. N.T. at 96, 116, 124, 125, 132. Vega also "hammer

       punched" Officer Federico in the groin causing him significant pain (a "10" on a scale of 1-10).

       N.T. at 88, 89, 123, 149. Vega kicked Officer Lower in her shin, knee and upper groin area.

       N.T. at 148, 157-158. During the altercation, the Officers attempted to physically subdue and

       restrain Vega using pressure points and physical strikes to Vega's body. N.T. at 123-125, 138.

       Officer Federico deployed his taser with minimal impact on Vega. N.T. at 88, 114, 126-127,

       149. The Officers were eventually able to take Vega to the ground, but he continued to resist and

       kept his left arm tucked underneath him. N.T. at 88, 127-128, 149-150. Officer Federico kneed

       Vega twice in the back before he gave up his other arm and was placed into handcuffs. N.T. at

       89, 126, 128. Due to Vega's behavior, additional backup was requested by the Officers. N.T. at

       90, 150. After Vega was placed into handcuffs, he refused the Officers' instructions to stand up

       and to walk to the transport wagon. N.T. at 91. After the Officers lifted Vega up and pushed

       him to the transport wagon, Vega was searched with negative results. N.T. at 91-92, 129. Vega

       was placed in the transport wagon and taken to the hospital for a medical evaluation. N .T. at 93,

       94.

              As a result of the altercation with Vega, Officer Federico sustained a cut on his hand and

       suffered pain in his groin, knee and hand. N.T. at 94. Officer Trythall had abdominal pain as

       well as leg/groin pain from being struck with the ceramic coffeecup. N.T. at 130. Officer



                                                        4
 ..
,...
C)')   Trythall's pants were ripped during the altercation. N.T. at 131. Officer Lower suffered black
 ..
en     and blue marks on her knee, shin, crotch and groin area. N.T. at 151. None of the Officers

       sought medical attention or lost time at work due to their injuries. N.T. at 96, 114-115, 138-139,

       151, 152, 158.

                                    Sufficiency of the Evidence - Generally

              When reviewing a challenge to the sufficiency of the evidence supporting a defendant's

       conviction, an appellate court is required to evaluate the record "in the light most favorable to the

       verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from

       the evidence." Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (citation

       omitted).

              The test for determining the sufficiency of the evidence is whether, viewing the evidence

              in the light most favorable to the Commonwealth as the verdict winner and drawing all

              proper inferences favorable to the Commonwealth, the jury could have determined that

              all of the elements of the crime have been established beyond a reasonable doubt. The

              Commonwealth may sustain its burden of proving every element of the crime beyond a

              reasonable doubt by means of wholly circumstantial evidence. The facts and

              circumstances established by the Commonwealth need not be absolutely incompatible

              with the defendant's innocence, but the question of any doubt is for the jury unless the

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

              be drawn from the combined circumstances. Commonwealth v. Smith, 848 A.2d 973, 977

              (Pa. Super. 2004) (citation omitted).

       An appellate court "may not substitute [its] judgment for that of the fact finder; thus, so long as

       the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates



                                                         5
""
,...
0'1    the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's

       convictions will be upheld." Rahman, 75 A.3d at 501.

                               Sufficiency of the Evidence - Aggravated Assault

              Vega alleges that the evidence presented by the Commonwealth was insufficient to

       establish the crime of aggravated assault under 18 Pa.C.S.A. §2702(a)(3). In support of his

       claim, Vega argues that 1) the Officers did not receive medical treatment for their injuries; 2) the

       Officers continued with their work schedules with no time lost from work; 3) there were no

       photographs of the Officers' injuries entered into evidence; 4) one or more of the Officers had

       notice that Vega suffered from mental health issues; 5) Vega did not take action against the

       Officers until he was pushed; and 6) it was not Vega's conscious object to cause or attempt to

       cause injury to the officers.

              An individual is guilty of aggravated assaultunder 18 Pa.GS.A. §2702(a)(3) ifhe or she

       "attempts to cause or intentionally or knowingly causes bodily injury to any of the officers,

       agents, employees or other persons enumerated in subsection (c), in the performance of duty."

       18 Pa.C.S.A. §2702(a)(3). A police officer is a person enumerated in subsection (c). 18

       Pa.C.S.A. §2702(c)(l). Bodily injury is defined as the "impairment of physical condition or

       substantial pain." 18 Pa.C.S.A. §2301.

               The only differences between assaults under§ 2701(a)(l) and§ 2702(a)(3) are that the

               latter applies when the assault is committed upon one of the persons enumerated in§

               2702(c) in the performance of their duties and the latter does not allow for a mens rea of

               recklessness .. Consequently, for purposes of defining the bodily injury component of

               these provisions, whether the assault is characterized as "simple" or "aggravated" has no

               bearing.on our interpretation. Calling a simple assault upon a police officer aggravated



                                                         6
·..�·
'"
()')            merely reflects the legislature's intent to punish this assault more severely than one
1:i')
                 committed upon a layperson, which is accomplished by grading the offense as a felony of

                the second degree rather than a misdemeanor of the second degree. Commonwealth v.

                Marti, 779 A.2d 1177, 1182-1183 (Pa. Super. 2001) (citation omitted).

                "[I]n a prosecution for aggravated assault on a police officer the Commonwealth has no

         obligation to establish that the officer actually suffered a bodily injury; rather, the

         Commonwealth must establish only an attempt to inflict bodily injury, and this intent may be

         shown by circumstances which reasonably suggest that a defendant intended to cause injury."

         Commonwealth v. Brown, 23 A.3d 544, 560 (Pa. Super. 2011) (citation omitted) (emphasis in

         original). "The finder of fact is free to conclude that the accused intended the natural and

         probable consequences of his actions to result therefrom." Commonwealth v. Rosado, 684 A.2d

         605, 608 (Pa. Super. 1996) ( citation omitted).

                In this case, Vega argues that there was insufficient evidence to convict him of

         aggravated assault as the Officers did not receive medical treatment for their injuries or lose time

         from work. An identical claim was rejected by the Pennsylvania Superior Court in

         Commonwealth v. Richardson, 636 A.2d 1195 (Pa. Super. 1994}. In Richardson, a police officer

         responded to a radio call for a disturbance and, while on scene, was punched in the face by the

         appellant. Richardson, 636 A.2d at 1196. The appellant's punch broke the officer's glasses,

        · caused the officer to stumble.backwards, and resulted in pain for a few days. Id. However, the

         officer did not seek medical treatment or miss work. Id. The appellant was convicted of simple

         assault after a bench trial. Id. at 1195. On appeal, the appellant claimed that the officer "did not

         suffer bodily injury because he did not receive any medical treatment or miss any work as a

         result of the blow to the face." Id. at 1196. The Superior Court responded as follows:



                                                            7
        Such a claim is frivolous. Appellant cites no authority which states that such

       consequences are necessary to sustain a simple assault conviction. [The officer] testified

       that [a]ppellant's punch broke his glasses, caused him to stumble backwards, and caused

       pain for the next few days. Such testimony was sufficient to sustain a finding that

        [a]ppellant actually caused bodily injury to [the officer].

Id. Therefore, in accordance with Richardson, Vega's claim that the evidence was insufficient to

convict him of aggravated assault because the Officers did not seek medical treatment or miss

time from work is frivolous and should be denied.

       Vega next claims that the evidence was insufficient because there were no photographs

introduced into evidence to demonstrate any of the injuries that the Officers sustained during the

altercation. Vega's claim that there were no corroborating photographs of the Officers' injuries

is more properly characterized as a weight of the evidence challenge and is addressed below.

       Vega next argues that the evidence was insufficient because at least one or more of the

officers were on notice that Vega had mental health issues and those issues were the reason his

wife called 9-1-1. However, "under Pennsylvania law, mental illness is not a defense to criminal

liability unless the mental illness rises to the level oflegal insanity under Section 314( c)(2)."

Commonwealth v. Andrews, 158 A3d 1260, 1264 (Pa. Super. 2017). Furthermore, the Superior

Court has held that evidence of mental iilness may only be introduced "in conjunction with a

defense of insanity." Commonwealth v. Hatfield, 579 A.2d 945, 947 (Pa. Super. 1990). In the

absence of an insanity defense, "evidence of mental illness is irrelevant and therefore,

inadmissible." Id. In this case, Vega did not raise a defense of insanity. As a result, the

evidence that one.or more of the Officers knew of Vega's mental illness was irrelevant and

inadmissible. Vega's claim should be denied.



                                                   8
       Vega next argues that the evidence was insufficient because he did not do anything to the

Officers until he was pushed by one of them. Vega appears to be arguing that he was acting in

self-defense in response to the physical contact initiated by Officer Federico. However, this

issue was not raised at trial. The Pennsylvania Rules of Appellate Procedure state that "[i]ssues

not raised in the lower court are waived and cannot be raised for the first time on appeal."

Pa.R.A.P. §302(a). "Since [Vega] did not raise the issue of self-defense at trial, the

Commonwealth had no burden to disprove it. Nor can [Vega] argue self-defense for the first

time on appeal; the claim is waived." Commonwealth v. Butler, 647 A.2d 928, 931 (Pa. Super.

1994) (citation omitted). Vega's claim should be denied.

       Vega claims that the evidence was insufficient because it was not his conscious object to

cause or attempt to cause injury to the Officers. However, as set forth below, the record belies

Vega's assertion.

       The Pennsylvania Crimes Code defines the general requirements of culpability in Section

302. Specifically, regarding intentional acts, the Crimes Code states:

       (1) A person acts intentionally with respect to a material element of an offense when:

               (i) if the element involves the nature of his conduct or a result thereof, it is his

               conscious object to engage in conduct of that nature or to cause such a result; and

               (ii) if the element involves the attendant circumstances, he is aware of the

               existence of such circumstances or he believes or hopes that they exist.

       18 Pa.C.S.A. §302(b)(l).

"[Ijintent may be shown by circumstances which reasonably suggest that a defendant intended to

cause injury." Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super. 1994) (citation

omitted).



                                                   9
       The Crimes Code also sets forth the definition of a criminal attempt in Section 901. "A

person commits an attempt when, with intent to commit a specific crime, he does any act which

constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. §901(a).

       When viewing the facts in the light most favorable to the Commonwealth, the evidence

was sufficient to convict Vega of aggravated assault against Officer Federico. The testimony

presented by the Commonwealth established that Vega threw a punch at Officer Federico's head.

Although Vega missed with his punch, he clearly attempted to cause bodily injury to Officer

Federico. Also, during the Officers' altercation with Vega, Vega "hammer punched" Officer

Federico in the groin which caused him substantial pain. Officer Federico testified to a pain

level of" 10" on a scale of 1-10 as a result of this punch. It is clear that Vega attempted to cause

and also caused bodily injury to Officer Federico while in the performance of his duties as a

police officer. Therefore, the evidence was sufficient to support Vega's conviction for

aggravated assault on Officer Federico.

       The evidence was also sufficient to convict Vega of aggravated assault against Officer

Lower. The testimony presented by the Commonwealth established that Vega kicked Officer

Lower in her shin, knee and upper groin area during his altercation with the Officers. Officer

Lower suffered black and blue marks on those areas. Vega attempted to cause and was

successful incausing bodily injury to Officer Lower while in the performance of her duties as a

police officer. When viewing the evidence in the light most favorable to the Commonwealth, the

jury could have determined that the elements of aggravated assault had been established beyond

a reasonable doubt. Therefore, the evidence was sufficient to support Vega's conviction for

aggravated assault against Officer Lower.




                                                  10
.....
','U'
                   Sufficiency of the Evidence- Resisting Arrest or other Law Enforcement
,,..
()�



                Vega alleges that the evidence presented by the Commonwealth was insufficient to

         establish the crime of resisting arrest or other law enforcement. Vega claims that 1) a person

         cannot commit resisting arrest unless he creates a substantial risk of bodily injury; 2) Vega did

         not resist by merely attempting to run away from the officers or scuffling with them; 3) the

         evidence demonstrated nothing more than a scuffle in a confined space; and 4) it was not Vega's

         conscious object to cause or attempt to cause injury to the Officers.

                An individual is guilty of resisting arrest or other law enforcement "if, with the intent of

         preventing a public servant from effecting a lawful arrest or discharging any other duty, the

         person creates a substantial risk of bodily injury to the public servant or anyone else, or employs

         means justifying or requiring substantial force to overcome the resistance." 18 Pa.C.S.A. §5 l 04;

         See Commonwealth v. Soto, 2018 WL 6816969, *11 (Pa. Super. 2018) (appellant's attempt to

         punch a police officer and remove his taser was sufficient to convict appellant of resisting arrest).

         Even the "use of passive resistance requiring substantial force to overcome [will provide]

         sufficient evidence for upholding [a] resisting arrest conviction." Commonwealth v. Thompson,

         922 A.2d 926, 928 (Pa. Super. 2007).

                In this case, the evidence presented by the Commonwealth was sufficient to convict Vega

         ofresisting arrest or other law enforcement. Although Vega characterizes the altercation as a

         "scuffle in a confined space" and an attempt "to run away", it was during this "scuffle" that Vega

         not only created a substantial risk of bodily injury to the Officers but actually inflicted bodily

         injury upon them. As set.forth above, Vega threw a punch at Officer Federico's head and

         "hammer punched" him in the groin which caused him substantial pain. Vega kicked Officer

        . Lower on her body resulting in black and blue marks. Officer Trythall was elbowed in his rib



                                                           11
..
,,..
()")   cage and struck on his leg/groin with a ceramic coffee cup. Officer Trythall had abdominal pain

       and leg/groin pain following the altercation. The Officers were also required to use substantial

       force to overcome Vega's resistance. During the altercation, Vega was instructed to place his

       hands behind his back, but he kept his arms in front of him. The Officers used pressure points

       and deployed their taser in an effort to subdue Vega. Even after Vega was taken to the ground,

       he continued to keep one arm tucked underneath him. Vega only gave up his arm after Officer

       Federico kneed him twice in the back. Additional backup was requested by the Officers due to

       Vega's resistance. When viewing the evidence in the light most favorable to the

       Commonwealth, the jury could have determined that the elements of resisting arrest or other law

       enforcement had been established beyond a reasonable doubt. Therefore, the evidence was

       sufficient to support Vega's conviction.

                                            Weight of the Evidence

              Vega claims that his convictions on each offense were against the weight of the evidence

       for the same reasons he challenges the sufficiency of the evidence,

              "A true weight of the evidence challenge concedes that sufficient evidence exists to

       sustain the verdict but questions which evidence is to be believed." Commonwealth v. Charlton,

       902 A.2d 554, 561 (Pa. Super. 2006) (citation omitted),

              The weight of the evidence is exclusively for the finder of fact who is free to believe all,

              part, or none of the evidence and to determine the credibiiity of the witnesses. An

              appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may

              only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's

              sense of justice. Moreover, where the trial court has ruled on the weight claim below> an

              appellate court's role is not to consider the underlying question of whether the verdict is



                                                        12
        against the weight of the evidence. Rather, appellate review is limited to whether the trial

        court palpably abused its discretion in ruling on the weight claim. Commonwealth v.

        Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).

        In the case at bar, Vega claims that the verdict was against the weight of the evidence.

However, as set forth above in this court's analysis of the sufficiency of the evidence, the verdict

was not contrary to the evidence as the jury was presented with a case upon which to convict

Vega. The jury evaluated the evidence, determined the credibility of witnesses and, when

assessing the weight of the evidence, believed the evidence presented by the prosecution and

rendered a guilty verdict. Therefore, the verdict was consistent with the evidence presented and

did not shock anyone's sense of justice.

                                           Vega's Sentence

        Vega claims that this Court's cumulative sentence imposed on Vega of 42 months to 8

years in a State Correctional Facility was manifestly excessive under the circumstances. Vega

raises the follow issues: 1) although Vega had a prior record score of 5 he had not been involved

in the criminal justice system for over fifteen years; 2) Vega's prior crimes were non-violent

offenses; 3) Vega had a history of mental health issues that he was seeking help for and his

wife's call to 9-1-1 was due to those issues; 4) Vega suffered an injury in 2015 and was receiving

neck and back treatment; 5) none of the Officers sustained a substantial injury that prohibited

them from working.

        "When imposing a sentence, the sentencing court must consider the factors set out in 42

Pa.C .. S. § 9721(b), that is, the protection of the public, gravity ofoffense in relation to impact on

victim and community, and rehabilitative needs of the defendant. And, of course, the court must




                                                   13
,,..
'II'

       consider the sentencing guidelines." Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

       2015) (alterations and citation omitted).

              Sentencing is a matter vested in the sound discretion of the sentencing judge, and a

              sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this

              context, an abuse of discretion is not shown merely by an error in judgment. Rather, the

              appellant must establish, by reference to the record, that the sentencing court ignored or

              misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill

              will, or arrived at a manifestly unreasonable decision. Commonwealth v. Fullin, 892

              A.2d 843, 847 (Pa. Super. 2006) (citation omitted).

              "There is no absolute right to appeal when challenging the discretionary aspect of a

       sentence. Rather, an appeal is permitted only after this Court determines that there is a

       substantial question that the sentence was not appropriate under the sentencing code."

       Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (alterations, quotation marks

       and citations omitted). "An appellant making an excessiveness claim raises a substantial

       question when he sufficiently articulates the manner in which the sentence violates either a

       specific provision of the sentencing scheme set forth in the Sentencing Code or a particular

       fundamental norm underlying the sentencing process." Commonwealth v. Raven, 97 A.3d 1244,

       1253 (Pa. Super. 2014) (citation and quotation marks omitted).

              The appellate court shall vacate the sentence and remand the case to the sentencing court

              with instructions if it finds:

              (1) the sentencing court purported to sentence within the sentencing guidelines but

              applied the guidelines erroneously;




                                                        14
       (2) the sentencing court sentenced within the sentencing guidelines but the case involves

       circumstances where the application of the guidelines would be clearly unreasonable; or

       (3) the sentencing court sentenced outside the sentencing guidelines and the sentence is

       unreasonable.

       In all other cases the appellate court shall affirm the sentence imposed by the sentencing

       court. 42 Pa.C.S.A. §978l(c).

       A trial court's standard-range sentence will only be reversed "if the sentence is clearly

unreasonable when viewed in light of the four statutory factors outlined in 42 Pa.C.S. §9781(d)."

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citations omitted). Specifically,

the appellate court evaluates (1) [t]he nature and circumstances of the offense and the history and

characteristics of the defendant; (2) [t]he opportunity of the sentencing court to observe the

defendant, including any presentence investigation; (3) [t]he findings upon which the sentence

was based; [and] (4) [t]he guidelines promulgated by the commission. 42 Pa.C.S. §9781(d).

       When imposing a sentence, a court is required to consider the particular circumstances of

       the offense and the character of the defendant. In particular, the court should refer to the

       defendant's prior criminal record, his age, personal characteristics and his potential for

       rehabilitation. 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. Further, where a sentence is within the standard range of the

       guidelines, Pennsyivania law views the sentence as appropriate under the Sentencing

        Code. Commonwealth v. Griffin, 65 A.3d 932, 937-938 {Pa. Super. 2013) (quotation

       marks and citations omitted).



                                                 15
..             In the case at bar, this court sentenced Vega within the parameters of the sentencing
iYi
,,..

       guidelines! and, therefore, Vega must demonstrate that the application of those guidelines would

       be clearly unreasonable. 42 Pa.C.S.A. §9781(c)(2). Upon review of the factors as set forth in 42

       Pa.C.S. §9781 (d), this court's application of the sentencing guidelines was clearly reasonable.

       Appellant was found guilty of aggravated assault and resisting arrest after a jury trial. As the

       trial judge, this court was familiar with the nature and circumstances of the offenses committed

       by Vega and was able to observe Vega during the trial and sentencing. N.T.S. at 9. Vega's PSI

       was available and reviewed by this court at sentencing which provided with court with, inter

       alia, information on Vega's characteristics and his prior record. N.T.S. at 2, 4, 6, 7, 10. This

       court considered that Vega was under mental distress on the day of the altercation and that it

       took place in a small area. N.T.S. at 9. This court also considered that the Officers were able to

       finish their shifts and did not seek medical treatment. N.T.S. at 10. The Commonwealth

       presented, and this court considered, the sentencing guidelines and sentenced Vega to a standard

       range sentence on all charges. N.T.S. at 3-4, 14.

               Vega argues that this court failed to consider certain factors but his assertions are

       contradicted by the record. Through the PSI, this court was made aware of Vega's high prior

       record score and that Vega's most recent conviction was on December 13, 2002. This

       information was also provided by the Commonwealth and by Vega's attorney at sentencing.

       N .T .S. at 3, 6. A review of the PSI also revealed that Vega had not been convicted of any violent

       crimes. This information was also placed on the record by Vega's attorney at sentencing. N.T.S.

       8 At sentencing, Vega had a prior record score of 5. Notes of Testimony, Sentencing Hearing, November 14, 2018
       (''N.T.S.") at 3. The offense gravity score for count 4, aggravated assault, and count 5, aggravated assault, is 6
       resulting in a standard range of21-27 months plus or minus 6. N.T.S. at 3;204PAADC §303.15; 204 PA ADC
       §303.16(a). Vega was sentenced to serve a standard range sentence twenty-one months to four years on count 4
       followed by another standard range sentence of twenty-one months to four years on count 5. The offense gravity
       score for count 7, resisting arrest or other law enforcement, is 3 resulting in a standard range of 6-16 months plus or
       minus 3. N.T.S. at 3-4; 204 PA ADC §303.15; 204 PA ADC §303.16(a). Vega was sentenced to serve a standard
       range sentence of one to two years concurrent with count 4.
                                                                  16
at 6. This court was made aware of and considered Vega's mental health issues at sentencing.

N.T.S. at 7-13. The PSI indicated that Vega suffered from major back problems. Finally, as set

forth above, this court considered that the Officers did not seek medical treatment and that they

were able to finish their shifts. This court considered all of the factors raised by Vega within his

concise statement and sentenced him to standard range sentences on all charges. Therefore,

Vega's claim must fail as it is contradicted by the record.

       For the foregoing reasons, we respectfully request that Vega's Appeal be DENIED and

his sentence AFFIRMED.




                                                   17
<;:OMMONWEAL ri, JF PENNSYLVANIA                                                   DOCKET: �P- 06 - CR - 5092-2017

                              v.

NOEL VEGA                                                                          DATE: March 21, 2019
                                             Defendant

"B.R.Crim.P.306. l(t)(g)" requires a copy of your motion/petition for each party.
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Check the appropriate boxes to ensure proper service. Initial and X each applicable party to receive a copy.

Attach this Certificate of Distribution to the original document. Retain the second copy for your files.

CERTIFICATE OF DISTRIBUTION                                              PROOF OF SERVICE-OFFICE USE ONLY

       Original Clerk of Courts
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       Name and Address of Moving Party:
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       Judge M. Theresa Johnson                                            ___ by certified mail
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                                                                           �by
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D       Other:                                                                 ___ by personal delivery
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I certify I have delivered sufficient copies of the attached             I hereby certify I served the docYl_llent( s) on the parties
document(s) and request service as set forth above.                      indicated above on the day of     CZ
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                                                                         St�t,1:mert�,.i,Mttjs proof of service are made subject to the
                                                   ,.. \ ., . ·-, ::_ ',)�altiestfor ilniwom falsification to authorities under
                                                   ::, "" ._. ' ' '·· the Crimes Code §
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�Clock�� No.: GP-06-CR-0005092-201, ·                                   Aodresa Sheets
,'Date Mailed: 03/22/2019


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,:t,iA.ddressed To:   Michael David Dautrich (Private)
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