J-S28008-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LAMARR JONES,

                         Appellant                  No. 819 EDA 2015


         Appeal from the Judgment of Sentence January 20, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008032-2013


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED JULY 15, 2016

      Lamarr Jones appeals from the judgment of sentence of seven to

fourteen years of incarceration followed by six years of probation that the

trial court imposed after a jury convicted Appellant of aggravated assault

and possession of an instrument of crime. We affirm.

      The proof underlying these convictions was as follows.   On February

18, 2013, Appellant made arrangements with the victim, Walter Jackson, to

go to a local gym in Philadelphia. The two men agreed to meet at the home

of the girlfriend of Appellant's brother.   When Mr. Jackson arrived at the

designated location, Appellant was already there, and wearing thick rubber

gloves fastened to his wrists with masking tape. After the men conversed

briefly, Mr. Jackson said he was leaving for the gym, but Appellant stopped


* Retired Senior Judge assigned to the Superior Court.
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him.    Appellant had heard rumors that Mr. Jackson engaged in sexual

relations with Appellant’s former wife, accused Mr. Jackson of that conduct,

and said that he was going to kill Mr. Jackson.

       Mr. Jackson denied the allegations and started to leave the residence.

Appellant retrieved a metal baseball bat and began to swing it at the victim

while the victim attempted to call his aunt, who was a police officer.

Appellant shattered the cell phone with the bat.     Mr. Jackson ran, and he

and his attacker went into the kitchen, where Appellant threw a pot of

boiling oil at Mr. Jackson.   Mr. Jackson ducked so that his face was not

struck by that liquid, but the oil engulfed Mr. Jackson’s back, neck, and

arms, and it ignited his shirt.   As Mr. Jackson ran toward the exit of the

house, Appellant retrieved the bat, and began to strike the victim on the

back on the head. Mr. Jackson was able to flee from the residence and ran

to a nearby donut shop, where an employee contacted police.

       Philadelphia Police Officer Michael Smith responded to the call and

discovered Mr. Jackson hiding in the bathroom of the donut shop with severe

burns to his back, neck, and forearms. The victim was transported to the

hospital, where he was later interviewed by police and identified Appellant as

his attacker. Appellant was arrested on February 25, 2013.

       After Appellant received the above-described sentence, he filed a post-

sentence motion for reconsideration.       Before that motion was resolved,

Appellant filed the present appeal. Since the trial court thereafter denied the

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post-sentence motion, we consider the within appeal as filed on the date of

entry of the final order denying the post-trial motion. Pa.R.A.P. 905(a)(5)

("A notice of appeal filed after the announcement of a determination but

before the entry of an appealable order shall be treated as filed after such

entry and on the date thereof.").

      Appellant raises two issues for our review:

      1. The trial court abused its discretion and imposed a manifestly
         unreasonable sentence by sentencing the Appellant in the
         aggravated range of the sentencing guidelines without giving
         proper    consideration to      the   Appellant's needs    for
         rehabilitation.

      2. The court erred when it permitted the prosecution to
         introduce text messages purportedly from the Appellant
         without proper foundation without proper notice by the
         prosecution and other related evidentiary issues.

Appellant's brief at 6.

      We consider the questions in reverse order as the second, if

successful, would entail the grant of a new trial while the first would require

only re-sentencing. That challenge relates to the trial court's admission of

text messages that Appellant sent after the crime to the victim's aunt.

Initially, we note, "Our standard of review over evidentiary rulings requires

us   to   determine       whether   the   trial   court   abused   its   discretion."

Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa.Super. 2007).                       In

Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), we ruled that a

text message must be properly authenticated before it is admissible into



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evidence. Under that decision, before a text message purportedly authored

by the defendant can be admitted, the Commonwealth must present

circumstantial evidence tending to corroborate that the defendant actually

sent the message in question.

       Herein, the trial court concluded that there was significant proof

establishing    that    Appellant    disseminated   the   communications.    The

messages were received by the victim's aunt within hours after the attack.

She confirmed that the messages were generated from Appellant's cell

phone number.        Contextually, the messages also indicated that Appellant

was their author.      One was an apology and the other confirmed that the

motive for the attack was the fact that Mr. Jackson had engaged in sexual

relations with Appellant's former spouse.

       Accordingly, we conclude that the trial court did not abuse its

discretion in concluding that there was sufficient contextual evidence to

authenticate the fact that the text messages were sent by Appellant, and we

affirm on the basis of the thorough and compelling analysis provided by the

trial court, the Honorable Edward Wright, on pages nine through eleven of

his May 28, 2015 opinion.1

____________________________________________


1
 To the extent that Appellant suggests that the text messages should have
been excluded from evidence in that he was not aware of their existence
until trial, this position is waived as Appellant did not object at trial on this
basis.     Commonwealth v. Smith, 985 A.2d 886 (Pa. 2009) (where
(Footnote Continued Next Page)


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        Appellant's second averment is that his aggravated-range sentence is

excessive since the trial court did not give “proper consideration” or

"adequate weight" to mitigating factors.          Appellant's brief at 6, 12.   This

position relates to the discretionary aspects of Appellant's sentence, and a

defendant does not enjoy an appeal as of right from the discretionary

aspects of his sentence.          Commonwealth v. Giordano, 121 A.3d 998

(Pa.Super. 2015). Instead, merits review of such a claim can be obtained

only when a four-part test is satisfied: 1) there is a timely appeal; 2) the

issue is preserved in the trial court proceedings and in a Pa.R.A.P. 1925(b)

statement; 3) the brief includes a concise statement of the reasons relied

upon for allowance of appeal to this Court from the discretionary aspects of

a sentence as required by Pa.R.A.P. 2119(f); and 4) that statement raises

the existence of a substantial question that the sentence is not appropriate

under the Sentencing Code. Id.

        In the present case, Appellant satisfied the first three aspects of this

test.    However, his Pa.R.A.P. 2119(f) fails to raise the existence of a

substantial question as to the appropriateness of his sentence.          As noted,

Appellant’s claim is that the sentencing court did not adequately weigh the

mitigating factors herein. "This Court has held on numerous occasions that

                       _______________________
(Footnote Continued)

defendant objects to introduction of evidence on one ground, only that
specific objection is preserved for purposes of appeal).



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a claim of inadequate consideration of mitigating factors does not raise a

substantial question for our review." Commonwealth v. DiSalvo, 70 A.3d

900, 903 (Pa.Super. 2013) (quoting Commonwealth v. Downing, 990

A.2d 788, 794 (Pa.Super. 2010)). Moreover, the trial court had the benefit

of a presentence report so we must presume that the mitigating factors were

weighed.    Commonwealth v. Macias, 968 A.2d 773 (Pa.Super. 2009).

Hence, we decline to review the discretionary aspects of Appellant's

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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