J-S70006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JOHN BENSON,

                            Appellant                     No. 2383 EDA 2014


             Appeal from the Judgment of Sentence October 19, 2011
               in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No.: CP-51-CR-0005154-2010


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED December 18, 2015

        Appellant, John Benson, appeals nunc pro tunc from the judgment of

sentence imposed pursuant to his jury conviction of criminal attempt to

commit       murder    of   the   first   degree,   aggravated   assault,    robbery,

endangering the welfare of children, retail theft, and conspiracy to commit

retail theft.1 We affirm.

        We take the following factual and procedural background from our

independent review of the record and the trial court’s March 9, 2012 opinion.

On     May    4,   2010,    the   Commonwealth      charged   Appellant     with   the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S.A. §§ 901(a), 2702(a), 3701(a)(1)(ii), 4304(a)(1), 3929(a)(1),
and 903(a)(1), respectively.
J-S70006-15


aforementioned crimes, which arose from his robbery of the jewelry store

owned by complainant, Yaniv Cohen.       Appellant’s jury trial commenced on

July 26, 2011.

      The trial court described the testimony and evidence received at trial

as follows:

            Mr. [] Cohen . . . testified that at approximately 3:00 p.m.
      on February 27, 2010, he was in his store with only two other
      people, an employee named Mr. [Bouchaib] Chakir and an
      unidentified jewelry wholesaler, when he buzzed in [Appellant],
      accompanied by a woman [named Sheakia Stubbs,] and child,
      through the security door. (See N.T. Trial, 7/26/11, at 84-87,
      166). Mr. Cohen attended to them, then Mr. Chakir took over
      when Mr. Cohen went to speak with the wholesaler. (See id. at
      88-90). Shortly afterwards, Mr. Cohen buzzed the door to
      permit the woman to exit. Instead of leaving, the woman
      remained, holding the door open. (See id. at 90, 159-60). He
      then saw [Appellant] run out the door with Mr. Chakir in pursuit.
      Noticing that rings were missing from the case, Mr. Cohen also
      gave chase, catching up with them soon after. (See id. at 92-
      94, 161-62).

            Mr. Cohen testified that as he approached [Appellant], who
      was carrying the child, asking him to return the missing rings,
      [Appellant “slice[d] [him and] cut [him] with the knife.”] (Id. at
      99; see id. at 98). [When Appellant then “tried to stab [him]
      again[,]” (id. at 98),] Mr. Cohen retreated across the street still
      asking for the return of the rings, at which time [Appellant]
      “dropped the child and ran away.” (Id. at 94; see id. at 98[-
      100], [] 165). Mr. Cohen then took the child to the nearby
      police mini station. After reporting the robbery, thinking he had
      sustained a small cut, Mr. Cohen returned to his store to secure
      his merchandise. (See id. at 101-02, 118, 133, 151).

             At the insistence of the [p]olice, Mr. Cohen was taken to
      Thomas Jefferson University Hospital for treatment where he
      learned of the seriousness of his wound testifying, “I understand
      that [] I was very, very close to [] dead. I was very, very
      close[.]” (Id. at 104; see also N.T. Trial, 8/01/11, at 49). At
      trial, Mr. Cohen displayed a permanent scar, approximately six

                                     -2-
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     inches in length, running along the left side of his throat. (See
     N.T. Trial, 7/26/11, at 106-07, 125; Exhibit C-8).

           Mr. Cohen testified that he later determined that
     approximately 15 to 18 rings, valued at $70,000 to $80,000,
     were taken from the case. (See N.T. Trial, 7/26/11 at [129]).
     The rings were never recovered. (See id. at 130).

           Mr. [] Chakir testified that on February 27, 2010, he was
     in the store when [Appellant] came in asking to see a ring.
     [Appellant] was accompanied by a woman and a child. (See id.
     at 175, 177). When Mr. Chakir unlocked the display case to
     show [Appellant] a ring of interest to him, there was no one else
     in the store standing near it. He testified [Appellant] then
     dropped the ring on the floor behind the counter. As Mr. Chakir
     bent down to pick it up, [Appellant] reached over the open
     showcase and removed numerous rings from their display
     platforms. (See id. at 178-79, 190-91, 196, 211). When Mr.
     Chakir stood up, he noticed an empty space in the showcase and
     [Appellant] fleeing out the door that was still being held open by
     the woman. (See id. at 180, 198-99, 203).

           Mr. Chakir testified that he then ran after them. (See id.
     at 180). When he caught up with them several doors away,
     [Appellant] was carrying the child and the woman was carrying
     shopping bags. [Appellant] turned to Mr. Chakir telling him to
     “go away or I’m going to shoot you.” (Id.; see id. at 181-82,
     184, 205). At the end of the block they parted ways, with Mr.
     Chakir continuing to follow [Appellant] down a small street.
     (See id. at 183, 185, 211).

            Mr. Chakir testified that after Mr. Cohen caught up “we
     were running after him and then my boss started to catch him
     with his hand, and he just, I like saw bleeding, blood and all the
     stuff there.” (Id. at 183). Mr. Chakir called 911 and continued
     to follow [Appellant]. On encountering a police officer, they both
     pursued [Appellant] until losing sight of him. (See id. at 185).

                                *    *    *

           Detective Robert Spaduccini[, the assigned investigator in
     this matter, arrested Appellant and Ms. Stubbs on March 1,
     2010. (See N.T. Trial, 8/01/11, at 18)]. [He] took a statement
     from Ms. Stubbs immediately after her arrest in which she

                                    -3-
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         admitted going into Mr. Cohen’s jewelry store.          Detective
         Spaduccini testified that she told him that while they were in the
         store an altercation broke out and they left. Once outside they
         were confronted by a man from the store wanting to know where
         the rings were. After that she and [Appellant] split up and she
         went home without her son. (See id. at 42-43). When he
         asked her if [Appellant] told her about the attack on Mr. Cohen,
         she answered, “Yes. He said he hit him, like [] with a razor.”
         (Id. at 44).

(Trial Court Opinion, 3/09/12, at 3-6) (record citation formatting and some

punctuation provided).

         On August 2, 2011, the jury convicted Appellant of the aforementioned

charges.     On October 19, 2011, the court sentenced him to an aggregate

term of not less than thirty nor more than seventy-two years’ incarceration.

On November 18, 2011, Appellant timely appealed, and, on January 24,

2012, he filed a timely Rule 1925(b) statement of errors complained of on

appeal pursuant to the court’s order. See Pa.R.A.P. 1925(b). The trial court

filed a Rule 1925(a) opinion on March 9, 2012. See Pa.R.A.P. 1925(a). On

May 22, 2012, this Court dismissed the appeal for Appellant’s failure to file a

brief.

         On August 10, 2012, Appellant filed a timely petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On October

2, 2013, appointed counsel filed an amended petition seeking reinstatement

of Appellant’s right to file a post-sentence motion and direct appeal nunc pro

tunc.     On May 30, 2014, the Commonwealth filed a motion to dismiss in

which it consented to Appellant’s request to have his direct appeal rights


                                       -4-
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reinstated, but objected to the reinstatement of his right to file post-

sentence motions nunc pro tunc.           On July 28, 2014, the court entered an

order reinstating Appellant’s right to file an appeal nunc pro tunc, and

denying his request to file a post-sentence motion nunc pro tunc. Appellant

timely appealed on August 12, 2014.2

       Appellant raises five questions for our review:

       1.    Whether the evidence was sufficient to establish beyond a
       reasonable doubt that [Appellant] was guilty of robbery rather
       than retail theft?

       2.    Whether the trial [court] erred in failing to grant a motion
       for judgment of acquittal on the charge of attempted murder
       where the evidence failed to show malice or a specific intent to
       kill?

       3.    Whether the trial [court] committed error by failing to
       reinstate [Appellant’s] right to file a Post Sentence Motion
       challenging the sentence imposed when he received an
       aggregate sentence of [thirty] to [seventy-two] years[’]
       incarceration?

       4.   Whether the sentence imposed by the court was illegal
       where he was sentenced on both [r]obbery and [c]onspiracy (to
       commit [r]etail [t]heft), and sentenced on [a]ttempted [m]urder
       which lacked sufficient evidence, or where the sentences should
       merge where the charges arose from one incident?

       5.     Whether the sentence imposed by the trial court was an
       illegal sentence in violation of Pennsylvania Constitution (Pa.
       Const. art. I, § 13), when the U.S. Constitution (U.S. Const.
       amend. VIII), 42 Pa.C.S.[A.] § 9721, and 42 P[a].C.S.[A.] §
____________________________________________


2
  Appellant filed a timely Rule 1925(b) statement on September 29, 2014.
See Pa.R.A.P. 1925(b). He filed an untimely supplemental Rule 1925(b)
statement on October 1, 2014. The court filed an opinion on January 30,
2015 supplementing its March 9, 2012 opinion. See Pa.R.A.P. 1925(a).



                                           -5-
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       9781(d) where the sentence imposed was excessive and not
       accurately based on [Appellant’s] prior record or his prospect of
       rehabilitation, as balanced against the need to protect society?

(Appellant’s Brief, at 3).3

       In Appellant’s first issue, he challenges the sufficiency of the evidence

to establish the crime of robbery. (See id. at 3, 13). This issue is waived

and would not merit relief.

       It is well-settled that:

       when challenging the sufficiency of the evidence on appeal, the
       Appellant’s 1925 statement must “specify the element or
       elements upon which the evidence was insufficient” in order to
       preserve the issue for appeal. [Commonwealth v.] Williams,
       959 A.2d [1252,] 1257 [(Pa. Super. 2008)] (quoting
       Commonwealth v. Flores, 921 A.2d 517, 522-23 (Pa. Super.
       2007)). . . . Here, Appellant . . . failed to specify which elements
       he was challenging in his 1925 statement . . . . While the trial
       court did address the topic of sufficiency in its opinion, we have
       held that this is “of no moment to our analysis because we apply
       Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a
       selective manner dependent on an appellee’s argument or a trial
       court’s choice to address an unpreserved claim.” Id. at 1257
       (quoting Flores at 522-23).

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010).

       In the case before us, Appellant’s Rule 1925(b) statement does not

identify which element or elements of robbery the Commonwealth allegedly



____________________________________________


3
  The Commonwealth has not filed a brief in this matter, although we
granted two extensions to do so.



                                           -6-
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failed to prove.      (See Statement of Matters Complained of on Appeal,

9/29/14, at 1-2 ¶ 2). Specifically, his statement claims that:

         the evidence was [not] sufficient to establish beyond a
         reasonable doubt that [Appellant] was guilty of robbery . . .
         where he was not seen taking the rings or display, he was never
         seen with the jewelry or display cases, the items were not
         recovered from him, and where the co-defendant’s statement
         indicated that neither she nor [Appellant] removed jewelry from
         the store[.]

(Id.).     Accordingly, because his Rule 1925(b) statement fails to identify

which specific elements the Commonwealth allegedly failed to prove,

Appellant’s challenge to the sufficiency of the evidence is waived.            See

Gibbs, supra at 281.

         Moreover, even if Appellant had not waived his sufficiency claim, it

would not merit relief. Appellant argues that “[his] illegal act constituted a

[r]etail [t]heft and not a [r]obbery.” (Appellant’s Brief, at 14). We disagree.

                The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at trial in
         the light most favorable to the verdict winner, there is sufficient
         evidence to enable the fact-finder to find every element of the
         crime beyond a reasonable doubt. In applying [the above] test,
         we may not weigh the evidence and substitute our judgment for
         the fact-finder.    In addition, we note that the facts and
         circumstances established by the Commonwealth need not
         preclude every possibility of innocence. Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless the
         evidence is so weak and inconclusive that as a matter of law no
         probability of fact may be drawn from the combined
         circumstances. The Commonwealth may sustain its burden of
         proving every element of the crime beyond a reasonable doubt
         by means of wholly circumstantial evidence.         Moreover, in
         applying the above test, the entire record must be evaluated and
         all evidence actually received must be considered. Finally, the
         [finder] of fact while passing upon the credibility of witnesses

                                        -7-
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      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation

omitted).

             Pursuant to 18 Pa.C.S.[A.] § 3701(a)[(1)](ii), “a person is
      guilty of robbery if, in the course of committing a theft, he: . . .
      (ii) threatens another with or intentionally puts him in fear of
      immediate serious bodily injury.” The law of this Commonwealth
      defines serious bodily injury as “bodily 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.] When
      reviewing a judgment under this subsection, this Court will look
      to the nature of the defendant’s threats, and not to the
      subjective state of mind of the victim.

Commonwealth v. Kubis, 978 A.2d 391, 397-98 (Pa. Super. 2009) (case

citations omitted).   Further, “[a]n act shall be deemed ‘in the course of

committing a theft’ if it occurs in an attempt to commit theft or in flight after

the attempt or commission.” 18 Pa.C.S.A. § 3701(a)(2).

      In the present case, in finding the evidence sufficient to support

Appellant’s robbery conviction, the trial court observed:

            There is little doubt, from the testimony of both Mr. Cohen
      and Mr. Chakir, that the attack occurred while both men were in
      pursuit of [Appellant]. . . . Mr. Chakir testified that immediately
      after the theft he pursued [Appellant] out of the store and
      continued to maintain contact with him until after Mr. Cohen was
      attacked.    Similarly, after he caught up, Mr. Cohen also
      continued to maintain contact with [Appellant] until after he was
      attacked.

                                  *    *    *

           Whether or not Mr. Cohen or Mr. Chakir saw [Appellant’s]
      weapon is irrelevant. It is clear from the record that [Appellant]

                                      -8-
J-S70006-15


       attacked Mr. Cohen with a weapon that struck a vital part of his
       body. The jury’s specific finding that [Appellant] inflicted serious
       bodily injury makes it abundantly clear that the Commonwealth
       met its burden. [Appellant’s] [sufficiency challenge] is further
       weakened by Mr. Cohen’s testimony that [Appellant] “tried to
       stab me again” after the initial attack. (N.T. Trial, 7/26/11, at
       98). Not only did Mr. Cohen sustain serious bodily injury, but he
       was aware of [Appellant’s] continued threat to inflict further
       injury.

(Trial Ct. Op., 3/09/12, at 11-12) (record citation formatting provided).

       After our independent review of the record, we agree with the trial

court’s finding that the evidence was sufficient to sustain Appellant’s robbery

conviction.     See Harden, supra at 111; Kubis, supra at 397-98.

Appellant’s first issue would lack merit.

       In his second claim, Appellant argues that the trial court erred in

denying his motion for judgment of acquittal on the charge of attempted

murder. (See Appellant’s Brief, at 17-19). Specifically, Appellant maintains

that, “[w]hile the act of swinging a cutting object at an individual which

resulted in . . . arguably serious bodily injury and clearly an aggravated

assault, the act does not rise to attempted murder in the absence of malice

or specific intent to kill.” (Id. at 18). Appellant’s claim lacks merit.4

____________________________________________


4
  Appellant appears to confuse the legal theories of sufficiency and weight of
the evidence. (See Appellant’s Brief, at 17-18). However, it is clear from
the record and the remainder of Appellant’s argument on this issue that it is
his intent to challenge the sufficiency of the evidence, not its weight. (See
id. at 18-19; see also N.T. Trial, 8/01/11, at 66-67 (Appellant’s oral motion
for judgment of acquittal challenging sufficiency of evidence to support
attempted murder charge)). Moreover, we note that, even if Appellant had
(Footnote Continued Next Page)


                                           -9-
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      Our standard of review of a trial court’s denial of a motion for

judgment of acquittal is as follows:             “A motion for judgment of acquittal

challenges the sufficiency of the evidence to sustain a conviction on a

particular charge, and is granted only in cases in which the Commonwealth

has failed to carry its burden regarding that charge.”           Commonwealth v.

Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014), appeal denied, 95 A.3d 276

(Pa. 2014) (citation omitted).

      Here, Appellant was convicted of criminal attempt to commit murder of

the first degree. “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). Pursuant to section

2502(a) of the Crimes Code, “[a] criminal homicide constitutes murder of

the first degree when it is committed by an intentional killing.” 18 Pa.C.S.A.

§ 2502(a).    An intentional killing is a “[k]illing by means of poison, or by

lying in wait, or by any other kind of willful, deliberate and premeditated

killing.” 18 Pa.C.S.A. § 2502(d). First degree murder requires “malice and

specific intent to kill on the part of the defendant.” Commonwealth v.

Sanchez, 907 A.2d 477, 486 (Pa. 2006), cert. denied, 551 U.S. 1106

(2007) (citation omitted).

                       _______________________
(Footnote Continued)

intended to raise a weight claim, it would have been waived for his failure to
file a post-sentence motion. See Commonwealth v. Barnhart, 933 A.2d
1061, 1066 (Pa. Super. 2007); see also Pa.R.Crim.P. 607(A).



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     It is well-settled that:

            Malice under the law comprehends not only a particular ill-
     will, but every case where there is wickedness of disposition,
     hardness of heart, cruelty, recklessness of consequences, and a
     mind regardless of social duty, although a particular person may
     not be intending to be injured. . . . Otherwise stated, malice may
     be found where the defendant has consciously disregarded an
     unjustified and extremely high risk that [his] conduct might
     cause death or serious injury to another.

Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008), appeal

denied, 964 A.2d 1 (Pa. 2009) (citations and quotation marks omitted).

     Further:

     [s]pecific intent may be inferred from the use of a deadly
     weapon on a vital part of the victim’s body. . . . [T]he period of
     reflection required for premeditation to establish the specific
     intent to kill may be very brief; in fact the design to kill can be
     formulated in a fraction of a second.          Premeditation and
     deliberation exist whenever the assailant possesses the
     conscious purpose to bring about death. . . .

Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009), cert. denied,

560 U.S. 909 (2010) (citations and quotation marks omitted).

     Here, the evidence established that Appellant slit the left side of Mr.

Cohen’s throat while fleeing from the scene of the robbery. Based on the

above well-settled law, this evidence was sufficient to prove that Appellant

“consciously disregarded an unjustified and extremely high risk that [his]

conduct might cause death or serious injury to another,” Geiger, supra at

90, and his “[s]pecific intent may be inferred from the use of a deadly

weapon on a vital part of the victim’s body.”      Rivera, supra at 1220.

Accordingly, the trial court properly denied Appellant’s motion for judgment

                                   - 11 -
J-S70006-15


of acquittal of his attempted murder conviction.             See Emanuel, supra at

894. Appellant’s second issue lacks merit.

       In his third claim, Appellant maintains that the PCRA court erred by

denying his petition alleging ineffectiveness of counsel, resulting in it “failing

to reinstate his right to file a [p]ost [s]entence [m]otion[.]”             (Appellant’s

Brief, at 19).5 Specifically, Appellant argues that “[t]he PCRA court’s denial

was improper where trial counsel failed to adequately represent [him], i.e.,

provided ineffective assistance of counsel, by failing to file a timely

post[-]sentence motion to preserve Appellant’s appellate claims.”                 (Id. at

21) (emphasis added).

       It is well-settled that, “as a general rule, claims of ineffective

assistance     of   counsel    will   not      be    entertained   on   direct   appeal.”

Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (citation

omitted).

             As the law currently stands, a valid waiver of PCRA review
       is a prerequisite to appellate review of ineffectiveness claims on
       direct appeal. Because our Supreme Court and this Court en
       banc have instructed that ineffectiveness claims are generally
____________________________________________


5
    Appellant’s third through fifth issues were raised in his untimely
supplemental Rule 1925(b) statement. (See Supplemental Rule 1925(b)
Statement, 10/01/14, at 1). However, Rule 1925(b) provides, in pertinent
part, that “[i]n extraordinary circumstances, the judge may allow for the
filing of a Statement or amended or supplemental Statement nunc pro tunc.”
Pa.R.A.P. 1925(b)(2). Here, because Appellant’s issues were raised in his
PCRA petition, the court addressed the claims raised in his supplemental
statement. (See Trial Court Opinion, 1/30/15, at 12-13). Therefore, we will
not deem these issues waived on this basis.



                                            - 12 -
J-S70006-15


        not reviewable on direct appeal, before reviewing such a claim
        on direct appeal it is incumbent upon this Court to determine
        whether a defendant expressly, knowingly and voluntarily
        waived his or her right to PCRA review. . . .

Commonwealth v. Baker, 72 A.3d 652, 665-66 (Pa. Super. 2013), appeal

denied, 86 A.3d 231 (Pa. 2014) (citations and footnote omitted).

        In this case, Appellant moved for reinstatement of his right to file

post-sentence motions in his PCRA petition, alleging ineffectiveness of trial

counsel.     (See PCRA Petition, 8/10/12, at 3; Amended PCRA Petition,

10/02/13, at unnumbered pages 4-9). He has not, at any time, waived his

right to PCRA review.           Accordingly, we are precluded from reviewing

Appellant’s third issue in this direct appeal. See Baker, supra at 665-66.

        Appellant’s fourth claim of error is that “the sentence imposed by the

court was illegal where . . . the sentences should merge [because] the

charges arose from one incident[.]” (Appellant’s Brief, at 21; see id. at 21-

23).6    He specifically argues, “where the robbery statute provides for the

infliction of serious bodily injury, he cannot be sentenced on both robbery

and attempted murder.” (Id. at 23). Appellant’s fourth issue lacks merit.

              In reviewing an illegal sentence claim, [t]he issue . . . is a
        question of law and, as such, our scope of review is plenary and

____________________________________________


6
   Appellant also again contends that the jury wrongly convicted him of
robbery and attempted murder, thus making his sentence illegal. (See
Appellant’s Brief, at 22-23).    Because we already concluded that the
evidence was sufficient to establish these crimes, we will not address this
allegation.



                                          - 13 -
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     our standard of review is de novo. Section 9765 of our Judicial
     Code provides:

                 No crimes shall merge for sentencing purposes
           unless 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 has assessed a merger issue by
     examining whether the charges arose out of a single set of facts
     and whether all the statutory elements of one offense coincide
     with the statutory elements of the other offense.

Commonwealth v. Lomax, 8 A.3d 1264, 1267-68 (Pa. Super. 2010) (case

citations and quotation marks omitted).

     As previously stated by the Pennsylvania Supreme Court:

     The elements of robbery as applied to this case . . . are[]
     infliction of serious bodily injury while committing a theft and the
     elements of attempted murder are taking a substantial step
     toward an intentional killing. Once again, the crimes do not
     merge, for robbery requires proof of a theft, which attempted
     murder does not; and attempted murder requires taking a
     substantial step toward an intentional killing, which robbery does
     not.

Commonwealth v. Belsar, 676 A.2d 632, 635 (Pa. 1996) (citation

omitted); see also Commonwealth v. Ward, 856 A.2d 1273, 1276 (Pa.

Super. 2004) (observing that “attempted murder [does] not merge into

robbery for sentencing purposes.”) (citation omitted).

     Here, in pertinent part, the trial court imposed consecutive standard

range sentences for attempted murder and robbery.         (See Trial Ct. Op.,

1/30/15, at 15).   Because the two charges do not merge for sentencing

                                    - 14 -
J-S70006-15


purposes, see Belsar, supra at 635, the trial court did not commit an error

of law in imposing separate sentences on the robbery and attempted murder

conviction. See Lomax, supra at 1267.7

        In Appellant’s fifth and final issue, he alleges that “[t]he sentence of

[thirty] to [seventy-two] years imposed by the court was excessive[.]”

(Appellant’s Brief, at 26). This claim is waived and would not merit relief.

        Appellant’s issue challenges the discretionary aspects of his sentence,

which    “must     be   considered      a      petition   for   permission   to   appeal.”

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation

omitted).     To preserve claims relating to the discretionary aspects of a

sentence properly, an appellant must first raise them with the trial court.

See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008),

affirmed, 17 A.3d 332 (Pa. 2011).

        Here, Appellant failed to file a post-sentence motion raising a

challenge to the discretionary aspects of sentence in the trial court.

Therefore, we deem Appellant’s claim waived. See id.

        Moreover, the issue would not merit relief. We observe that:

        When challenging the discretionary aspects of the sentence
        imposed, an appellant must present a substantial question as to
        the inappropriateness of the sentence. Two requirements must
____________________________________________


7
  Moreover, we note for the sake of completeness that, for sentencing
purposes, the trial court in fact did properly merge the attempted murder
charge with the aggravated assault charge, and the robbery charge with the
retail theft charge. (See N.T. Sentencing, 10/19/11, at 10-11).



                                            - 15 -
J-S70006-15


         be met before we will review this challenge on its merits. First,
         an appellant must set forth in his brief a concise statement of
         the reasons relied upon for allowance of appeal with respect to
         the discretionary aspects of a sentence. Second, the appellant
         must show that there is a substantial question that the sentence
         imposed is not appropriate under the Sentencing Code. That is,
         [that] 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.
         We examine an appellant’s Pa.R.A.P. 2119(f) statement to
         determine whether a substantial question exists. Our inquiry
         must focus on the reasons for which the appeal is sought, in
         contrast to the facts underlying the appeal, which are necessary
         only to decide the appeal on the merits.

Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (citations

omitted) (emphases in original).

         In this case, Appellant filed a Rule 2119(f) statement, in which he

alleges that the trial court failed to consider the guidelines and all relevant

sentencing factors, resulting in a “grossly excessive” sentence. (Appellant’s

Brief,    at   10).    This   issue   raises    a   substantial   question.   See

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012), appeal

denied, 63 A.3d 776 (Pa. 2013).

         Our standard of review of a sentencing challenge is well-settled:

                 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.




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Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal

denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

     Additionally, “the guidelines have no binding effect, create no

presumption in sentencing, and do not predominate over other sentencing

factors—they are advisory guideposts that are valuable, may provide an

essential starting point, and that must be respected and considered; they

recommend, however, rather than require a particular sentence.”       Id. at

727-28 (citation and footnote omitted).

     Here, in imposing sentence, the trial court observed:

     . . . I reviewed the presentence report, I’ve considered the
     arguments of counsel, I’ve recalled the testimony from the trial
     in part by going through the exhibits I have in my file as well as
     my notes from the trial.

           The driving factor behind this sentence is the attempted
     murder charge. He was found guilty of slashing that store
     owner’s throat, passing a sharp instrument close to his carotid
     artery, close to his windpipe. Somehow he did not die.

                                *     *      *

           A serious injury, a serious wound, a serious act. I’ve gone
     through the other charges to see what sentence would be
     appropriate if [Appellant] were not charged with the attempted
     murder.     And based on his prior record score and the
     seriousness of those individual charges, I’ve imposed─about to
     impose what I believe to be appropriate for each of those
     charges.

(N.T. Sentencing, 10/19/11, at 20-22).

     Based on the trial court’s analysis, our independent review of the

record, and the fact that the court had the benefit of a presentence report,


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we discern no abuse of discretion on the part of the trial court in imposing

an aggregate sentence of not less than thirty nor more than seventy-two

years’ incarceration. See Glass, supra at 727; see also Commonwealth

v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009), appeal denied, 987

A.2d 161 (Pa. 2009) (“Our Supreme Court has determined that where the

trial court is informed by a pre-sentence report, it is presumed that the court

is aware of all appropriate sentencing factors and considerations, and that

where the court has been so informed, its discretion should not be

disturbed.”) (citation omitted).   Appellant’s fifth claim, even if not waived,

would not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




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