J-S02012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

RAYMOND BROWN,

                            Appellant                      No. 3378 EDA 2014


         Appeal from the Judgment of Sentence October 31, 2014
           In the Court of Common Pleas of Philadelphia County
 Criminal Division at No(s): CP-51-CR-0013921-2011, CP-51-CR-0013923-
                       2011, CP-51-CR-0013924-2011


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                                  FILED MARCH 23, 2016

     Appellant, Raymond Brown, appeals from the October 31, 2014

judgment of sentence entered following his conviction by a jury of

aggravated assault, simple assault, recklessly endangering another person

(“REAP”),     terroristic   threats,    unlawful   restraint,   false    imprisonment,

possession of an instrument of crime (“PIC”), and two counts of endangering

the welfare of a child.      Following our careful review, we affirm Appellant’s

convictions    but   vacate    the     judgment    of   sentence   and    remand   for

resentencing.

     The trial court summarized the facts of the crimes as follows:

          In the late hours of March 21, 2011, Emmanuella Felix
     (age 26) (the victim) was watching television in bed in her
     mother’s basement (where she resided at the time) while her
     two children, Rayanna . . . (age 3) and Christian . . .
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     (approximately age 1½ were laying in their beds preparing to go
     to sleep. On that evening [Appellant], who was the victim’s
     former long-term boyfriend and the father of Rayanna and
     Christian, called the victim because he wanted to see the
     children and put them to bed.         Though the victim and
     [Appellant] had separated in early 2011, the victim agreed to
     allow [Appellant] to come over. Shortly thereafter, [Appellant]
     went to the victim’s home, entered the basement, and began to
     “get comfortable” by plugging his phone charger into the wall.

            The victim asked [Appellant] what he was doing and
     [Appellant] responded that the two needed to talk. When the
     victim responded there was nothing to talk about, [Appellant]
     demanded the victim to take a ride in the car with him so they
     could talk. At that point Rayanna came over to her mother and
     the victim responded that “she was not going anywhere.”
     [Appellant] became agitated and stated: “Well, we can either do
     this the hard way or we could do this the easy way.” When the
     victim asked what [Appellant] meant, [Appellant] pulled out his
     loaded 9 mm Ruger pistol and pointed the gun at the victim’s
     face. The victim then asked what [Appellant] was going to do.
     In response, he threatened to kill her. [Appellant] rambled
     about wanting to talk and then walked up to the victim, pointing
     the gun at her head. In doing so, [Appellant’s] gun contacted
     the right side of the victim’s head.

           The victim called Rayanna over and held her because
     Rayanna was scared and shaking. At that time, the victim—in
     disbelief that [Appellant] was going to kill her—got up while
     holding Rayanna to turn off the television and wake her son
     Christian. The victim tried to leave the basement with her
     children but [Appellant] blocked the door and threatened her
     again, stating that “if [she] scream[ed], he’s gonna kill
     everybody that was in the house.”

              After she put her daughter down, [Appellant] began to
     tussle with the victim, causing her to fall to her knees.
     [Appellant] walked up to the victim from behind, stood over the
     top of her back, and choked her with his arm around her neck.
     As [Appellant] choked the victim, she told Rayanna to run
     upstairs and get “grandma.”         [Appellant’s] choking was so
     intense that the victim gasped for air and felt like she was going
     to faint. [Appellant] then warned her to “stop trying to fight
     it . . . You can’t. You won’t be able to get loose.”

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           When Rayanna ran upstairs, she knocked on the door of
     her uncle, Mr. David Felix. Terrified, Rayanna said that “daddy’s
     about to kill mommy.” Mr. Felix went downstairs to help and, as
     he approached the basement, called out the victim’s name. The
     victim told Mr. Felix “don't come because [Appellant] has a gun”
     and [Appellant] responded that the victim fell and needed help.
     As Mr. Felix walked down into the basement hallway and toward
     the victim’s bedroom, it was pitch black. When he reached the
     victim’s room, Mr. Felix flicked the lights on. Mr. Felix saw the
     victim lying on her back, with [Appellant] directly above her and
     his knees pressing against the top of her waist. Immediately
     thereafter, [Appellant] fired his gun multiple times. Mr. Felix ran
     from [Appellant] and the victim screamed “No. He’s about to kill
     my brother.”

           After Mr. Felix fled, [Appellant] stood the victim up,
     continuing to strangle her neck. The victim’s father and mother
     then came downstairs into the basement. As they entered the
     basement, they saw that Baby Christian was awake and crying.
     The victim’s father asked [Appellant] “what are you doing?” and
     the victim asked her mother to get the baby. Seeking her
     baby’s safety, the victim implored [Appellant] “don’t, do
     anything. My mother is just gonna get the baby and go. . . I’ll
     go wherever you want to go . . . Just let them go.” The victim’s
     parents then retrieved baby Christian and took him upstairs.

            Once the victim’s parents went upstairs, [Appellant] pulled
     the victim into the basement bathroom, and closed the bathroom
     door. In shock, the victim sat down by the tub and begged
     [Appellant] “Let’s go for the ride. Let’s go so we could talk.” In
     response, [Appellant] said “it was already too late.” Still holding
     his gun and blocking the bathroom door, [Appellant] told the
     victim “one of us is not gonna leave here alive.” [Appellant]
     later stated that he was also going to commit suicide.

           Meanwhile, as the victim was being held hostage at
     gunpoint in the basement, Mr. Felix called 911. On the 911 call,
     the victim’s father can be heard pleading “Please, please,
     somebody come before somebody dies.” Officers Shawn Willis of
     the Philadelphia Police Department and his partner were
     dispatched to the scene following the 911 call. Officer Willis
     approached the house and met with the victim’s father, who told
     the officer that his daughter was in the basement with

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     [Appellant] and that [Appellant] had a gun. As Officer Willis
     walked up to the house, he immediately heard a gunshot and
     backed away from the door. Officer Willis was then informed by
     Mr. Felix that [Appellant] was in the basement with a gun and
     fired at him. Officer Willis called for backup from SWAT and
     secured the outside of the house. Numerous officers of the
     Philadelphia Police Department were dispatched to the house,
     including a six member SWAT team and two detectives.

            When the SWAT team arrived, it secured the first and
     second floors of the house. The SWAT team then tried to talk to
     [Appellant] through the floor of the first floor until the hostage
     negotiators, Detectives [Joseph] Cremen and [Adam] McGuigan,
     arrived. Detectives Cremen and McGuigan arrived at the house
     at approximately 12:05 a.m. and initially spoke with the victim’s
     family to get a layout of the house. At approximately 12:35
     a.m., the detectives entered the house through the front door
     and began to speak (along with SWAT) to [Appellant] through
     the floor. Eventually, [Appellant] responded “What, what do you
     want?” and Detective Cremen tried to get [Appellant] to agree to
     speak with him on a cell phone.           In the course of this
     conversation, [Appellant] (a military veteran) learned that
     Detective McGuigan had been in the marines.               Agitated,
     [Appellant] screamed “Fuck the Marines, I hate the Marines.”

           After speaking with [Appellant] through the floor for
     another approximately forty minutes, [Appellant] agreed to
     speak with Detective Cremen on his cellphone and was willing to
     allow the victim to leave the basement. Detective Cremen asked
     the victim to come out and she responded, “No. He’s gonna hurt
     himself if I leave.”     At approximately 1:23 a.m., Detective
     Cremen spoke with [Appellant] on his cell phone for
     approximately five minutes.      Now more open to Detective
     Cremen’s questions, [Appellant] explained to Detective Cremen
     that he was upset that he and the victim were breaking up.
     Approximately five minutes into the phone call, however,
     [Appellant] abruptly disconnected the line. Detective Cremen
     tried to call [Appellant] back but, while the phone was ringing,
     [Appellant] refused to answer.

           Approximately five minutes later, at 1:28 am., the victim
     walked upstairs and was escorted by members of the SWAT
     team and Detective McGuigan out of the house. Within a minute
     after the victim got upstairs, [Appellant] shot himself. The

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     SWAT team tried to contact [Appellant] to see if he was hurt, but
     [Appellant] did not respond. At that point, the SWAT team went
     down into the basement.       Once downstairs, SWAT Officer
     Frederick Buck saw that [Appellant] was slumped down and
     announced that [Appellant] was down. In response, [Appellant]
     screamed “Don’t come the fuck down here. I still have a gun.”

            As the SWAT team approached [Appellant], [Appellant]
     was on his hands and knees in the basement bathroom with his
     gun in his hands.       Officer Buck demanded repeatedly for
     [Appellant] to drop the gun but [Appellant] refused and pointed
     the gun at the SWAT team, which was now in the basement
     bedroom. Two gunshots were then fired, one gunshot from
     [Appellant’s] gun and the other gunshot from Officer Buck’s M4
     rifle. [Appellant] was arrested, rendered emergency medical
     assistance, and transported to the hospital. [Appellant] suffered
     a gunshot wound to the right chest and a posterior wound to his
     head. In total, prior to [Appellant’s] arrest while the Detectives
     were at the scene, [Appellant] was barricaded in the basement
     for approximately an hour and a half.

           Later that evening, Detective Cremen interviewed
     [Appellant] in the hospital.   [Appellant] waived his Miranda
     rights and signed a statement.     In that signed statement,
     [Appellant] was asked: “Did you put out the weapon and point it
     at Emanuella during the argument?” [Appellant] responded:
     “Yes, because she didn’t want me to kill myself.” [Appellant]
     also admitted in the signed statement to shooting his gun five
     times.

            In the basement, the police recovered [Appellant’s] picture
     identification, cell phone, gun holster, and 9mm Ruger pistol.
     From inside the pistol, the police recovered four cartridges; one
     cartridge was recovered from the chamber of the gun and three
     were recovered from the magazine.           After searching the
     basement, the police also recovered six fired cartridge casings
     (FCCs) and one bullet. Officer Robert Stott of the Firearms
     Identification Unit concluded to a reasonable degree of scientific
     certainty that the six FCCs and bullet were fired from
     [Appellant’s] 9mm Ruger pistol. The hospital personnel removed
     a second nine millimeter bullet from [Appellant]. At trial, the
     Commonwealth and [Appellant] agreed that [Appellant] fired his
     pistol six times in the basement.


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             After [Appellant] was arrested but before his trial, the
      victim took Rayanna and Christian to visit [Appellant] in jail. In
      that visit, [Appellant] told the victim that he was sorry for what
      he did. While [Appellant] was in jail, [Appellant] also sent Mr.
      Felix multiple letters. In those letters, [Appellant] apologized to
      Mr. Felix for what he did and asked Mr. Felix to testify that
      [Appellant] did not shoot at him. Prior to the trial, Mr. Felix
      ripped up all but one of the letters and threw them in the trash.
      In the final letter, which Mr. Felix did not throw away,
      [Appellant] wrote “I have mailed off a few letters with prepaid
      return envelopes, but I have not received an answer as to the
      letters.”

            On the date that [Appellant] took the victim and her
      children hostage, the Commonwealth of Pennsylvania had not
      issued him a license to carry a firearm. In 2010, [Appellant] was
      issued a license to carry a concealed weapon or firearm by the
      state of Florida.

Trial Court Opinion, 6/25/15, at 4–10 (internal citations to the record

omitted).

      Following Appellant’s jury trial that culminated on May 8, 2014, the

trial court sentenced Appellant on October 31, 2014, to four and one-half to

nine years in prison for aggravated assault with consecutive terms of six to

twelve months in prison for simple assault, unlawful restraint, and terroristic

threats.    The court also imposed consecutive prison terms of nine to

eighteen months for PIC and twenty-one to forty-two months for each count

of endangering the welfare of a child. Thus, the aggregate sentence was ten




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years, three months to twenty and one-half years of imprisonment.1           No

further penalty was imposed for the remaining offenses.

       On November 1, 2014, Appellant filed a post-sentence motion, and on

November 3, 2014, he filed an amended post-sentence motion.            The trial

court denied the motions on November 10, 2014. Appellant filed this timely

appeal, and the trial court ordered the filing of a statement pursuant to

Pa.R.A.P. 1925.        Appellant, however, filed an untimely Rule 1925(b)

statement.     “[W]here, as here, the trial court has addressed the issues

raised in an untimely Rule 1925(b) statement, we need not remand and may

address the issues on their merits.”           Commonwealth v. Veon, 109 A.3d

754, 762 (Pa. Super. 2015), appeal granted in part on other grounds, 121

A.3d 954 (Pa. 2015).

       Appellant raises the following issues in his brief on appeal:

          A. Did the trial court violate 42 Pa.C.S.§ 9765 by entering an
             illegal sentence for both aggravated assault and simple
             assault where the convictions were based upon the same
             criminal act and therefore merged for sentencing
             purposes?

          B. Did the trial court violate 204 Pa.Code § 303.10(a)(3) and
             improperly apply the deadly weapon enhancement to
             Appellant Brown’s conviction for possession of an
             instrument of crime during sentencing?


____________________________________________


1
  The trial court incorrectly described the maximum aggregate sentence as
twenty-one and one-half years. Trial Court Opinion, 6/25/15, at 2; N.T.,
10/31/14, at 38.



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          C. Did the jury improperly convict Appellant Brown where
             there was insufficient evidence of his intent to cause
             serious bodily injury in support of the aggravated assault
             conviction?

          D. Did the jury improperly convict Appellant Brown where the
             verdict was contrary to the weight of the evidence at trial?

Appellant’s Brief at 3 (full capitalization omitted).      We will address the

sufficiency and weight-of-the-evidence issues first and conclude with the

sentencing issues.

       Appellant asserts that the record evidence of his intent to cause

serious bodily injury is insufficient to support his conviction for aggravated

assault.2 In reviewing a sufficiency challenge, “we must decide whether the

evidence admitted at trial, and all reasonable inferences drawn therefrom in

favor of the Commonwealth, as verdict winner,” are sufficient to support all

elements of the offense.        Commonwealth v. Hitcho, 123 A.3d 731, 746

(Pa. 2015).     The trial court, sitting as the finder of fact, is free to believe

some, all, or none of the evidence. Commonwealth v. Cousar, 928 A.2d

1025 (Pa. 2007); Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa.
____________________________________________


2
   As noted by the trial court, “[b]ecause [Appellant] does not challenge the
sufficiency of the ‘attempt element,’ but only the ‘intent’ element, a
challenge to the ‘attempt element’ has not been preserved on appeal . . . .”
Trial Court Opinion, 6/25/15, at 17 n.12 (citing Commonwealth v. Garang,
9 A.3d 237, 244–245 (Pa. Super. 1010)) (“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”); see also
Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa. Super. 2006)
(addressing the “attempt element” and the “intent element” of attempted
aggravated assault under 18 Pa.C.S. § 2702(a)(1) separately).



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Super.     2015),       appeal   denied,       119      A.3d   351   (Pa.   2015).       “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”        Commonwealth v. Roberts, ___ A.3d ___, ___, 2016 PA

Super      22,    at    *5    (Pa.    Super.     filed    February   2,     2016)    (quoting

Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super. 2010)). As

an appellate court, we may not re-weigh the evidence and substitute our

judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d

994 (Pa. Super. 2015).

         Appellant was convicted of aggravated assault under 18 Pa.C.S.

§ 2702(a)(1), which provides as follows:

         Aggravated assault

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

                 (1) attempts to cause serious bodily injury to
                 another, or causes such injury intentionally,
                 knowingly or recklessly under circumstances
                 manifesting extreme indifference to the value of
                 human life;

18 Pa.C.S. § 2702(a)(1). “Serious bodily injury” is defined 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. § 2301. “The intent to cause serious bodily

injury     may         be    proven    by      direct     or   circumstantial       evidence.”

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012).

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       Here, the testimony at trial established that when the victim refused to

take a ride with Appellant, he pointed his gun at the victim’s face.      N.T.,

4/23/14, at 84. He threatened the victim, stating, “We can do this the easy

way or the hard way.” Id. at 83. Appellant walked over to the victim and

put the gun to her right temple, touching her head. Id. at 85. Appellant

threatened to kill the victim and “everybody that was in the house.” Id. at

131.   These actions are clearly sufficient to show intent to inflict serious

bodily injury.

       As noted, Appellant has preserved only a challenge to the intent

element. “For aggravated assault purposes, an ‘attempt’ is found where the

accused, with the required specific intent, acts in a manner which constitutes

a substantial step toward perpetrating a serious bodily injury upon another.”

Martuscelli, 54 A.3d at 948. We reject Appellant’s self-serving explanation

that he intended only to commit suicide.       Such claim is contradicted by

Appellant’s threat to kill the victim and his action in pointing a loaded gun to

her head.    We have no hesitation in concluding that Appellant’s actions

illustrated his intent to cause serious bodily injury, and we conclude the

evidence was sufficient to sustain the conviction.

       Appellant also assails the weight of the evidence. Appellant preserved

this issue by filing a post-sentence motion for a new trial pursuant to

Pa.R.Crim.P. 607(A).     Post-sentence Motion, 11/1/14, at unnumbered 2;

Amended Post-sentence Motion, 11/3/14, at unnumbered 2.


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      “When the challenge to the weight of the evidence is predicated on the

credibility of trial testimony, our review of the trial court’s decision is

extremely limited.     Generally, unless the evidence is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, these

types of claims are not cognizable on appellate review.” Commonwealth v.

Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004). “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 against the

weight of the evidence.”     Commonwealth v. Champney, 832 A.2d 403,

408 (Pa. 2003).      “Rather, appellate review is limited to whether the trial

court palpably abused its discretion in ruling on the weight claim.”         Id.

(citing Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. Super. 2003))

(citations omitted).

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      has had the opportunity to hear and see the evidence presented,
      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. . . .

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).               “Thus, the

trial court’s denial of a motion for a new trial based on a weight of the

evidence claim is the least assailable of its rulings.”   Commonwealth v.

Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

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      Appellant, who raised the issue in his post-sentence motions, merely

reiterates on appeal the claim he made in his sufficiency-of-the-evidence

argument that his threats and interactions with the victim “demonstrated his

intent to commit suicide and not to cause serious bodily injury.” Appellant’s

Brief at 50. This claim is specious in light of his actions in threatening to kill

the victim and placing a gun to her temple. The trial court stated as follows:

             Three witnesses testified to what happened when
      [Appellant] took the victim and her children hostage in the
      basement: [Appellant], the victim, and Mr. Felix [Appellant’s
      brother].     [Appellant’s] weight of the evidence challenge
      therefore seems to be based on the premise that the jury should
      have believed [Appellant’s] story that he went over to the
      victim’s house solely for the purpose to kill himself but not to
      harm the victim and her children[,] over the victim’s and Mr.
      Felix’s account[s] that [Appellant] held the .victim hostage at
      gunpoint in her basement while he threatened to kill her and her
      family multiple times. (N.T. 04/23/14 at 61–139) (the victim’s
      testimony); (NT. 04/23/14 at 143–225) (Mr. Felix’s testimony);
      (N.T. 04/29/14 at 31–133) ([Appellant’s] testimony). Such a
      challenge is entirely improper in a weight of the evidence claim.
      It is well settled in a weight of the evidence claim that a court
      may not substitute its judgment as to the credibility of the
      witnesses for that of the trier of fact. See [Commonwealth v.]
      Gibbs, 981 A.2d [274] at 282 (Pa. Super. 2009). Thus, this
      Court properly denied [Appellant’s] weight of the evidence
      challenge.

Trial Court Opinion, 6/25/15, at 20.

      The trial court declined to grant Appellant a new trial. We agree that

the verdict was amply supported by competent evidence.                Appellant’s

argument is nothing more than a veiled attempt to have this Court re-weigh

the evidence and substitute our judgment for that of the jury, which is

wholly improper.    Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa.

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2011). Having reviewed the record in its entirety, we discern no abuse of

discretion with respect to the trial court’s rejection of Appellant’s weight-of-

the-evidence claim.

          Next, we address Appellant’s contention that the trial court imposed an

illegal    sentence   because    it   imposed    separate   consecutive   terms   of

imprisonment for aggravated assault and simple assault. Appellant asserts

the convictions were based upon the same criminal act and therefore

merged for sentencing purposes. In its Pa.R.A.P. 1925(a) opinion, the trial

court, with minimal discussion, agreed with Appellant and requested this

Court to vacate and remand for resentencing.

          A claim that sentences should have merged is “a non-waivable

challenge to the legality of the sentence.”        Commonwealth v. Lomax, 8

A.3d 1264, 1267 (Pa. Super. 2010) (citing Commonwealth v. Martz, 926

A.2d 514, 525 (Pa. Super. 2007)). Further, “[a] claim that the trial court

imposed an illegal sentence by failing to merge sentences is a question of

law.” Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa. Super. 2003)

(quoting Commonwealth v. Collins, 764 A.2d 1056, 1057 n.1 (Pa. 2001)).

Thus, although the trial court agreed that Appellant was entitled to relief on

this issue, this Court is not bound by the trial court’s conclusions of law.

Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa. Super. 2012) (When

reviewing “[a] claim that crimes should have merged for sentencing

purposes,” the “standard of review is de novo.”).


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     Section 9765 of our Judicial Code provides as follows:

     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. § 9765.    “The statute’s mandate is clear.   It prohibits merger

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

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

included in the statutory elements of the other.”        Commonwealth v.

Baldwin, 985 A.2d 830, 833 (Pa. 2009); accord Commonwealth v.

Wade, 33 A.3d 108 (Pa. Super. 2011) (42 Pa.C.S. § 9765 prohibits the

merger of sentences unless a strict two-part test is met; the convictions

must be based on a single criminal act, and all of the statutory elements of

one of the offenses must be included in the statutory elements of the other);

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) (same).

     The objective of the merger doctrine is to prevent a defendant from

being punished more than once for one criminal act.      Commonwealth v.

Davidson, 938 A.2d 198, 217 (Pa. 2007).           It is a rule of statutory

construction designed to determine whether the legislature intended for the

punishment of one offense to encompass that of another offense arising

from the same criminal act or transaction. Commonwealth v. Collins, 764

A.2d 1056, 1057 (Pa. 2001). Our Supreme Court has recognized:




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     The question of when sentences should merge is not an easy
     problem . . . .   Analytically, the problem concerns whether a
     single criminal plan, scheme, transaction or encounter, which
     may or may not include many criminal acts, may constitute more
     than one crime, and if it may constitute several crimes, whether
     each criminal conviction may be punished separately or whether
     the sentences merge.

Commonwealth v. Anderson, 650 A.2d 20, 21 (Pa. 1994). Our Supreme

Court explained:

     Our concern . . . is to avoid giving criminals a “volume discount”
     on crime. If multiple acts of criminal violence were regarded as
     part of one larger criminal transaction or encounter which is
     punishable only as one crime, then there would be no legally
     recognized difference between a criminal who robs someone at
     gunpoint and a criminal who robs the person and during the
     same transaction or encounter pistol whips him in order to effect
     the robbery. But in Pennsylvania, there is a legally recognized
     difference between these two crimes. The criminal in the latter
     case may be convicted of more than one crime and sentences for
     each conviction may be imposed where the crimes are not
     greater and lesser included offenses.

Id. at 22. See also Commonwealth v. Belsar, 676 A.2d 632, 634 (Pa.

1996) (merger not to be “volume discount” for multiple criminal acts).

     The instant record belies Appellant’s contention that these two crimes

merge for sentencing under these facts. See Anderson, 650 A.2d at 24 n.3

(“[A]ny merger analysis must proceed on the basis of its facts.”).        Our

review of the notes of testimony compels our conclusion that there was a

separate assault to the victim subsequent to and apart from the threat to

shoot the victim and the placement of the gun to the victim’s temple.

     We held, supra, that the Commonwealth presented sufficient evidence

of Appellant’s intent to inflict serious bodily injury and attempt to commit

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aggravated assault when he threatened to kill the victim and everyone in the

house and held the muzzle of his gun to the victim’s temple. The record also

reflects   sufficient   evidence    of   a     subsequent   assault    when   Appellant

thereafter grabbed the victim, knocking her to the ground, and began to

choke her.3 N.T., 4/23/14, at 87.

       This Court has held that simple assault is a lesser included offense of

aggravated assault. Commonwealth v. Feaser, 723 A.2d 197 (Pa. Super.

1999).     As such, where the charges are based upon the same conduct,

simple assault merges into aggravated assault. Thus, in the present case, if

the simple assault conviction and the aggravated assault conviction were

predicated upon the same criminal conduct or act, namely, Appellant’s act of

threatening to kill the victim and pointing the gun to her head, merger would

be dictated.    However, here, as the victim tried to flee, Appellant blocked

her way. N.T., 4/23/14, at 86. Appellant subsequently grabbed the victim

from behind, causing her to fall to the floor. Id. at 87. After the victim’s

daughter ran from the room, Appellant started choking the victim with his

arm around her neck.         Id. at 89. The victim stated that she thought she

“was gonna pass out” because she “couldn’t breathe.”                  Id. at 90.   Thus,



____________________________________________


3
   The jury’s guilty verdict of simple assault related to Emmanuella Felix, the
victim. N.T., 5/8/14, at 5. Appellant was found not guilty of simple assaults
relating to his son and daughter. Id. at 6, 7.



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while the aggravated and simple assaults occurred during the same criminal

episode, Appellant engaged in distinct acts that constitute separate assaults.

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

instructive. We stated therein:

            When considering whether there is a single criminal act or
      multiple criminal acts, the question is not “whether there was a
      ‘break in the chain’ of criminal activity.” [Commonwealth v.
      Robinson, 931 A.2d 15, 24 (Pa. Super. 2007)] (quoting
      Commonwealth v. Wesley, 860 A.2d 585, 592 (Pa. Super.
      2004)). This issue is whether “the actor commits multiple
      criminal acts beyond that which is necessary to establish the
      bare elements of the additional crime, then the actor will be
      guilty of multiple crimes which do not merge for sentencing
      purposes.” Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d
      632, 634 (1996) (quoting Commonwealth v. Weakland, 521
      Pa. 353, 555 A.2d 1228, 1233 (1989)).

Id. at 912.

      We have no reservation in concluding that Appellant engaged in at

least two separate criminal acts; one independently fulfilled the elements of

aggravated assault and one fulfilled the elements of simple assault. As in

Pettersen, “[a]lthough the time between the separate acts was relatively

short,” the assaults were committed differently to distinct parts of the

victim’s body. Pettersen, 49 A.3d at 912. When Appellant threatened to

kill the victim and everyone else in the house, placed the gun to her head

with the muzzle against her temple, he completed an attempt to commit

aggravated assault. When Appellant tussled with the victim, knocking her to

the ground and placed a choke-hold around her neck, he completed another

assault. See Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa. Super.

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2006) (evidence was sufficient to prove simple assault where the defendant

grabbed the victim from behind, began to choke him, and “us[ed] his much

heavier body to pin the victim to the ground”). “Appellant is not entitled to

a volume discount for these crimes simply because he managed to

accomplish all the acts within a relatively short period of time.” Pettersen,

49 A.3d at 912 (citing Anderson, 650 A.2d at 22).         Because the record

herein reflects that the aggravated assault and simple assault did not arise

from a single criminal act, the first prong of the merger test has not been

met, and the merger test fails. Consequently, we hold that Appellant was

not entitled to have his simple assault conviction merge with his aggravated

assault conviction for purposes of sentencing.

      We address Appellant’s final issue, that the trial court improperly

applied the deadly weapon enhancement to Appellant’s conviction for PIC.

This claim challenges the discretionary aspects of Appellant’s sentence. “A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal[.]” Commonwealth v. Rhoades, 8 A.3d

912, 916 (Pa. Super. 2010).     See also Commonwealth v. Buterbaugh,

91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc) (imposition of the deadly

weapon enhancement is a challenge to the discretion of the trial court, not

to the legality of the sentence); Commonwealth v. Archer, 722 A.2d 203,

211 (Pa. Super. 1998) (“[A]ny misapplication of the Sentencing Guidelines

constitutes a challenge to the discretionary aspects of sentence.”).


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       As Appellant recognizes, such a challenge is not subject to our review

as a matter of right. “An appellant must satisfy a four-part test to invoke

this Court’s jurisdiction when challenging the discretionary aspects of a

sentence,” by (1) preserving the issue in the court below, (2) filing a timely

notice of appeal, (3) including a Rule 2119(f) statement, and (4) raising a

substantial question for our review. Commonwealth v. Tejada, 107 A.3d

788, 797 (Pa. Super. 2015) (citation omitted); Commonwealth v. Austin,

66 A.3d 798, 808 (Pa. Super. 2013).

       Applying the four-part analysis to the instant case, we find that (1)

Appellant timely filed his notice of appeal on November 24, 2014; (2)

Appellant preserved the issue;4 and (3) Appellant has complied with

Pa.R.A.P. 2119(f) by including in his brief a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence.        Appellant’s Brief at 26–31.   Acknowledging that “the

____________________________________________


4
   We acknowledge the Commonwealth’s argument that Appellant failed to
preserve the issue, thereby depriving the trial court of the opportunity to
correct its error.       Commonwealth Brief at 13–16.          Indeed, the
Commonwealth advances only a waiver argument and fails to address the
merits of the issue. Herein, at the sentencing hearing, Appellant asserted
that the deadly weapon enhancement did not apply to any of the
convictions, thus preserving the issue. Commonwealth v. Swope, 123
A.3d 333, 337 (Pa. Super. 2015) (stating that before this Court can address
a discretionary challenge, an appellant must, inter alia, “preserve[] [the
issue] at sentencing or in a motion to reconsider and modify sentence.”).
Although Appellant’s argument was general rather than specific, and the
assertion of the claim could have been clearer and more succinct, we do not
find that the issue is waived.



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determination of what constitutes a substantial question must be evaluated

on a case-by-case basis,” Commonwealth v. Griffin, 65 A.3d 932, 935

(Pa. Super. 2013), we note that this Court has held that the application of

the deadly weapon enhancement presents a substantial question. See e.g.,

Rhoades, 8 A.3d 912.          We therefore proceed to address the merits of

Appellant’s claim.

      With respect to the question of whether the trial judge erred in finding

that the Deadly Weapon Enhancement applied to this case, we must

examine the controlling section of the Pennsylvania Code:

      § 303.10 Guideline sentence recommendations: enhancements

      (a) Deadly Weapon Enhancement.

                                       * * *

            (3) There shall be no Deadly Weapon Enhancement
            for the following offenses:

                     (i) Possessing Instruments of Crime

204 Pa.Code § 303.10(a)(3)(i).

      The use of the word “shall” evinces the mandatory nature of the

nonapplicability   of   the   enhancement      to   the   particular   crime.   See

Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007)

(stating “shall” evinces mandatory nature of notification); Commonwealth

v. Pleger, 934 A.2d 715, 720 (Pa. Super. 2007) (stating “shall” evinces a

mandatory obligation).




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      Because 204 Pa.Code § 303.10(a)(3)(i) forbids the application of the

deadly weapon enhancement to PIC, the court erred in its application herein.

Therefore, we must vacate the sentence in part and remand this matter for

resentencing. Commonwealth v. Devries, 112 A.3d 663, 671 (Pa. Super.

2015)   (holding   that   because   204   Pa.Code   §   303(a)(3)(ix)   forbade

application of the deadly weapon enhancement to any crime wherein

possession of a deadly weapon was an element, trial court erred in applying

it to escape as a felony of the third degree, and this Court must vacate the

sentence in part and remand for resentencing).

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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