J-S54009-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

BERNARD SALMOND,

                          Appellant                   No. 3151 EDA 2014


             Appeal from the Judgment of Sentence June 20, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009618-2012


BEFORE: BOWES, PANELLA, AND FITZGERALD, *JJ.

MEMORANDUM BY BOWES, J.:                         FILED NOVEMBER 16, 2015

       Bernard Salmond appeals from the judgment of sentence of eighteen

to thirty-six years incarceration that the trial court imposed after a jury

convicted him of third-degree murder and conspiracy to commit murder. We

affirm.

       The certified record supports the trial court’s summary of facts.

             On April 10, 2008, Kenneth Wiggins and [Appellant’s]
       brother, Quentin Salmond [(“Quentin”)], were betting on a game
       of dice. N.T. 3/18/14 at 220-221. During the betting, there was
       an altercation over a bet which prompted Wiggins to take money
       from Quentin. N.T. 3/18/14 at 221-222, 251; 3/19/14 at 141.

             Two days later, on April 12, 2008, at approximately 12:30
       p.m., Wiggins went into the Skyline Restaurant, which he was
       known to frequent. N.T. 3/18/14 at 161, 238. As Wiggins
       entered the restaurant, a car driven by [Appellant], with Quentin
       and Jamil Banks as passengers, pulled up and parked on
       Woodlawn Road, near the intersection with Chew Road. N.T.

*
    Former Justice specially assigned to the Superior Court.
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       3/18/14 at 95-96, 162. [Appellant] was driving a blue Lincoln
       Continental, with PA license plate GXW5380. N.T. 3/18/14 at
       106. Quentin, dressed in an Islamic khimar[1] and sunglasses to
       hide his identity, and Banks exited the vehicle and walked up the
       street towards the Skyline Restaurant. N.T. 3/18/14 at 97, 162,
       168, 259; 3/19/14 at 182. [Appellant] remained in the car,
       parked, with the engine running. N.T. 3/18/14 at 99-100. Joan
       Hill witnessed [Appellant] park the car and also noticed Quentin,
       who appeared to Hill to be a male wearing female headwear.
       Believing that a robbery was about to happen, Hill called 911.
       N.T. 3/18/14 at 100.

             Quentin remained outside the restaurant while Banks went
       inside and purchased a soda, presumably scouting for Wiggins.
       N.T. 3/18/14 at 1620163. Banks then exited the restaurant and
       returned to where Quentin was standing outside. N.T. 3/18/14 at
       163-164. Shortly thereafter, Wiggins left the restaurant and
       began walking up the street when he was confronted by Quentin
       and Banks. N.T. 3/18/14 at 130, 164; 3/19/14 at 182-183.
       After being shot, Wiggins attempted to flee the scene but
       collapsed on the far side of the street. N.T. 3/18/14 at 164,
       255. Quentin and Banks ran back to the car in which [Appellant]
       was waiting, and the three fled the scene. N.T. 3/19/14 at 183.
       Medical personnel arrived on scene and transported Wiggins to
       the hospital, where he was later pronounced dead. N.T. 3/18/14
       at 129, 257-258.

             Police recovered two fired cartridge casings and a
       Mountain Dew soda bottle from the scene of the shooting. N.T.
       3/18/14 at 81, 166. Police also recovered the surveillance
       cameras from the Skyline Restaurant, which had recorded the
       entire encounter. N.T. 3/18/14 at 155-156. A .32 caliber bullet
       was recovered from Wiggins’ body. N.T. 3/19/14 at 12-13. As
       the casings found at the scene were not .32 caliber, police
       determined that two guns had been fired outside of the
       restaurant, one .22 caliber semi-automatic and one .32 caliber
       revolver. N.T. 3/19/14 at 12-14, 18-19.
____________________________________________


1
  A khimar is a two-piece garment consisting of a long cape covering the
entire body and a head covering that also can be pulled up to hide the
mouth.



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           [Appellant] had obtained the car that he used in the
     murder from Charles Hayward, who sold the vehicle to
     [Appellant] but never transferred the title. N.T. 3/19/14 at 26-
     28, 42, 183-84. Because [Appellant] feared that police would
     trace the car to [him through] Hayward, . . . [Appellant]
     instructed two associates, Shawn Pina and Tyree Fisher, to burn
     the vehicle. N.T. 3/19/14 at 184. The vehicle was found on April
     14, 2008, two days after the shooting, when fire department
     personnel responded to a report of a vehicle . . . fire near Chew
     Street and 10th Street in Philadelphia. N.T. 3/20/14 at 21-22.

Trial Court Opinion, 1/22/15, at 2-4 (footnotes omitted).

     On March 21, 2014, a jury convicted Appellant of third-degree murder

and criminal conspiracy to commit murder.        The trial court imposed two

concurrent terms of eighteen to thirty-six years imprisonment.       Appellant

filed a post-sentence motion that challenged the weight of the evidence and

the discretionary aspects of his sentence.     This timely appeal followed the

denial of post-trial motions.   Appellant’s ensuing Rule 1925(b) statement

included, inter alia, the foregoing challenges to the weight of the evidence

and the discretionary aspects of sentencing.

     Appellant presents the following questions for our review:

     I.     Is the appellant entitled to an arrest of judgment with
     regard to his convictions for murder of the third degree and
     criminal conspiracy since the evidence is insufficient to sustain
     the verdict as the Commonwealth failed to prove the appellant’s
     guilt of these crimes beyond a reasonable doubt?

     II.   Is the appellant entitled to a new trial with regard to his
     convictions for murder of the third degree and criminal
     conspiracy since the verdicts of guilt are against the weight of
     the evidence?



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      III. Is the appellant entitled to a new trial as a result of the
      trial court’s denial of a motion for a mistrial based upon juror
      misconduct?

      IV.   Is the appellant entitled to be resentenced since the trial
      court’s aggregate sentence of 18 to 36 years for murder [in] the
      third degree and criminal conspiracy is contrary to the
      appellant’s character, history and condition and is therefore,
      excessive and unreasonable?

Appellant’s brief at 5.

      Appellant’s first issue challenges the sufficiency of the evidence that

the Commonwealth adduced at trial.        Generally, “[o]ur standard when

reviewing the sufficiency of the evidence is whether the evidence at trial,

and reasonable inferences derived therefrom, when viewed in the light most

favorable to the Commonwealth as verdict winner, are sufficient to establish

all elements of the offense beyond a reasonable doubt.” Commonwealth

v. Love, 896 A.2d 1276, 1283 (Pa.Super. 2006). The Commonwealth may

sustain its burden of proof based entirely on circumstantial evidence.

Commonwealth v. Laird, 988 A.2d 618, 624 (Pa. 2010).           “[A]ny doubt

about the defendant’s guilt is to be resolved by the fact finder 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. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

      The Pennsylvania Crimes Code defines the varying degrees of murder

as follows:




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     (a) Murder of the first degree.--A criminal homicide constitutes
     murder of the first degree when it is committed by an intentional
     killing.

     (b) Murder of the second degree.--A criminal homicide
     constitutes murder of the second degree when it is committed
     while defendant was engaged as a principal or an accomplice in
     the perpetration of a felony.

     (c) Murder of the third degree.--All other kinds of murder shall
     be murder of the third degree. Murder of the third degree is a
     felony of the first degree.

18 Pa.C.S. § 2502.

     As developed by case law, the elements of third-degree murder are (1)

a killing (2) with legal malice (3) but without the specific intent to kill

required in first-degree murder. Commonwealth v. Thompson, 106 A.3d

742, 657 (Pa.Super. 2014). Additionally,

     Malice is defined as: wickedness of disposition, hardness of
     heart, cruelty, recklessness of consequences, and a mind
     regardless of social duty, although a particular person may not
     be intended to be injured[.] Malice may be found where the
     defendant consciously disregarded an unjustified and extremely
     high risk that his actions might cause serious bodily injury.
     Malice may be inferred by considering the totality of the
     circumstances.

Id. (quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super.

2011)).

     As it relates to criminal conspiracy conviction,

     A person is guilty of conspiracy with another person or persons
     to commit a crime if with the intent of promoting or facilitating
     its commission he:




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     (1) agrees with such other person or persons that they or one or
     more of them will engage in conduct which constitutes such
     crime or an attempt or solicitation to commit such crime; or

     (2) agrees to aid such other person or persons in the planning or
     commission of such crime or of an attempt or solicitation to
     commit such crime.

     ....

     (e) Overt act.--No person may be convicted of conspiracy to
     commit a crime unless an overt act in pursuance of such
     conspiracy is alleged and proved to have been done by him or by
     a person with whom he conspired.

18 Pa.C.S. § 903 (a) and (c). Thus, the elements of criminal conspiracy are

(1) an agreement to commit or aid others in committing a crime; (2) shared

criminal intent; and (3) an overt act in furtherance of the agreement. See

Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa.Super. 2005).

     As a practical matter, conspiracies are commonly established through

circumstantial evidence.   We previously stated, “Proof of a conspiracy is

almost always extracted from circumstantial evidence. The Commonwealth

may present a ‘web of evidence’ linking the defendant to the conspiracy

beyond a reasonable doubt. The evidence must, however, rise above mere

suspicion or possibility of guilty collusion.” Commonwealth v. Vargas, 108

A.3d 858, 873 (Pa.Super 2014) (en banc) (quoting Commonwealth v.

Hennigan, 753 A.2d 245, 253 (Pa.Super. 2000)).           Additionally, “The

conduct of the parties and the circumstances surrounding such conduct may




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create a web of evidence linking the accused to the alleged conspiracy

beyond a reasonable doubt.” Bricker, supra at 1017.

      Herein, Appellant asserts generally that the Commonwealth failed to

adduce sufficient evidence to establish his identity as the driver of the

vehicle that transported the shooters to Chew Avenue or his participation in

the incident that resulted in the victim’s death. Appellant’s brief at 21. As it

relates to the murder conviction, he contends that the evidence does not

demonstrate that he “engaged in any conduct that exhibited his intent to kill

the victim or cause the victim serious bodily injury that resulted in death.”

Id. Finally, in reference to the conspiracy conviction, he maintains that the

evidence does not sustain the finding that he entered into an agreement to

kill the victim. Id. We address these components seriatim.

      During the jury trial, the Commonwealth presented the testimony of

Joan Hill, a local business owner who observed Appellant and his

codefendants stop in a blue Lincoln Continental with license tag No.

GXW5380 in front of her office at the intersection of Woodlawn Road and

Chew Avenue.     N.T., 3/18/14, at 96, 106.    Two males exited the vehicle.

Id. 95-96. One of the males was dressed like a woman in an Islamic khimar

and sunglasses. Id. at 96, 97. The driver remained in the vehicle with its

engine idling. Id. at 99. As one of the men’s attire and his obvious attempt

to conceal his identity alarmed her, she called 911 to report the suspicious

activity that she observed. Id. at 100, 102. Several minutes later, Ms. Hill

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J-S54009-15



heard gunshots discharged on Chew Avenue and called 911 a second time.

Id. at 104, 105. Following the murder, she spoke with police at her office

and described the vehicle and the men that she observed earlier that day.

Id. at 107.

     The exterior surveillance video recovered from the Skyline Restaurant

confirms much of Ms. Hill’s testimony. See Commonwealth’s Exhibit C-64.

The video depicted the blue Lincoln traveling down Chew Avenue and turning

left onto Woodlawn Road out of the camera’s perspective.                   Id.   Ninety

seconds after the car traveled out of frame, Appellant’s two codefendants,

one of whom wore a khimar, re-emerged into frame. Id. The pair walked

toward the Skyline Restaurant, and stepped into a vestibule near the

entrance of the restaurant.        Id.    A different segment of video recorded

several   minutes   later    showed      the   victim   exiting   the    restaurant   at

approximately   11:39       a.m.   and    walking   down    Chew        Avenue   toward

Woodlawn Road. Id. After the victim passed the vestibule, the assailants

emerged individually, followed the victim a short distance, and shot him.

Id. Both assailants fled toward Woodlawn Road and disappeared around the

corner where the Lincoln had passed several minutes earlier. Id.

     The Commonwealth also presented the testimony of Charles Hayward,

the registered owner of the blue Lincoln Continental.             Mr. Hayward stated

that he grew up with Appellant, whom he identified in the courtroom, in the

Germantown section of Philadelphia and had remained friends with him.

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J-S54009-15



N.T., 3/19/14, at 24-25.       Mr. Hayward explained that he sold the blue

Lincoln to Appellant during February 2008, but he neglected to transfer the

title or registration into Appellant’s name.              Id. 26-28, 29.    Appellant

stipulated that the vehicle’s tag number was GXW5380.                 Id. at 28.   The

Commonwealth presented Mr. Hayward with the verbatim signed statement

that he provided to police during their investigation of the murder. Id at.

33.   Exhibit C-39.    Although Mr. Hayward’s trial testimony challenged the

accuracy    of   certain   portions   of    the   prior    verbatim   statement,   the

Commonwealth used the statement as evidence that Quentin had informed

Mr. Hayward of an incident where he had been robbed at gun point while

gambling with the victim, Kenny Wiggins, on Chew Avenue. N.T., 3/19/14,

at 45-48.    Mr. Hayward further explained that it was Appellant’s inquiry

about the gambling incident that led to the revelation that the victim had

been involved in the robbery. Id. at 48. Mr. Hayward stated, “[Appellant]

asked him, Quentin[,] who was up there and he, Quentin, said[,] Kenny and

them.” Id. at 48. Following the interview, Mr. Hayward identified Appellant

and Quentin from photographs supplied by police and he identified Quentin

as one of the assailants in a still frame taken from surveillance video. Id. at

57-58.

      Next, the Commonwealth presented the testimony and the signed

verbatim statement Robert Bluefort gave to police.             Appellant confided to

Bluefort his role in the murder, and Bluefort assisted Appellant in selecting a

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location to set the Lincoln Continental ablaze to avoid its discovery by police.

N.T., 3/18/14, at 286, 290. Mr. Bluefort’s verified statement, which Bluefort

challenged at trial, outlined Appellant’s confession to his involvement in the

murder committed by Quentin and Banks. Id. at 286. Appellant confided

that, after the trio observed the victim near the Skyline Restaurant, he

pulled the Lincoln over so the two assailants could exit. Quentin and Banks

waited for the victim to remerge from the restaurant, and, following a brief

exchange, Quentin shot the victim in the stomach.        Id. at 286-287.    The

assailants ran back to the Lincoln, and Appellant sped away. Id. at 287.

        As it relates to Appellant’s attempt to destroy the automobile, Mr.

Bluefort’s statement indicated that “[Appellant] was paranoid about the

police finding the car[,] so he told . . . Tyree Fisher and [Shawn Pina] to

burn it.”   Id. at 290.     Bluefort continued that he helped Appellant find a

suitable location to set the car ablaze. Id. Thereafter, Appellant gave the

key to Fischer and one or two days after the murder, they received

confirmation that the car had been set on fire.         Id.   For the next two

months, Appellant remained at Bluefort’s home to “[lay] low . . . from police

and [because] he was worried about retaliation.” Id. at 291.

        The preceding evidence is sufficient to prove beyond a reasonable

doubt    that   Appellant    committed   third-degree   murder   and   criminal

conspiracy.     The surveillance video captured an image of Appellant’s blue

Lincoln Continental driving past the Skyline Restaurant and turning abruptly

                                      - 10 -
J-S54009-15



onto Woodlawn Road immediately before the two assailants emerged from

that location and prepared to ambush the victim.          Ms. Hill identified

Appellant’s blue Lincoln Continental as the car that the two gunmen alighted

from on Woodlawn Road immediately prior to the murder, and she recorded

the vehicle’s license number.

      Two of Appellant’s acquaintances, Hayward and Bluefort, informed

police that Appellant implicated himself in the murder. Hayward explained

that the murder was in retaliation for a prior armed robbery committed

against Quentin. Bluefort detailed the particulars of his role in the murder

and the disposal of the vehicle, and discussed Appellant’s attempt to hide

from police and potential retribution from the victim’s associates. Thus, we

reject Appellant’s claim that the Commonwealth failed to establish his

identity as the person driving the blue Lincoln Continental when the murder

was committed.

      Likewise, the evidence sustains the requisite agreement to support

criminal conspiracy and the intent element of third-degree murder. Initially,

we   observe   that the   foregoing evidence   adduced    at the   jury   trial

demonstrates that Appellant conspired with Quentin and Banks to shoot the

victim as retribution for his role in an armed robbery against Quentin two

days prior to the murder.       The entire episode was accomplished with

Appellant’s aid and assistance.   Appellant drove the two assailants to the

murder scene in his automobile, and waited with an idling engine while

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J-S54009-15



Quentin and Banks ambushed the victim by shooting him in the chest at

close range and returned to the waiting vehicle.       Then he drove the trio

away.     Thereafter, he engaged in a futile attempt to destroy his car and

remove it from any connection to the crime.          Hence, the evidence was

sufficient for the jury to infer that Appellant and his co-conspirators entered

an agreement to kill the victim. Bricker, supra at 1017 (conduct of parties

and circumstances surrounding conduct may create web of evidence linking

accused to alleged conspiracy beyond reasonable doubt).

        Having established the conspiracy to shoot the victim in retaliation for

his crimes against Quentin, we next conclude that the jury could infer the

malice element of third-degree murder from the totality of the circumstances

and the assailants’ use of a deadly weapon on the victim’s chest, a vital part

of the victim’s body.     See Vargas, supra (quoting Commonwealth v.

Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002) (en banc) (“Once there is

evidence of the presence of a conspiracy, conspirators are liable for acts of

co-conspirators committed in furtherance of the conspiracy. Even if the

conspirator did not act as a principal in committing the underlying crime, he

is still criminally liable for the actions of his co-conspirators taken in

furtherance of the conspiracy.”)); Commonwealth v. Ventura, 975 A.2d

1128 (Pa.Super. 2009) (malice may be inferred from use of deadly weapon

on vital part of victim’s body).    As the evidence contained in the certified




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record is sufficient to sustain the jury verdicts for criminal conspiracy and

third-degree murder, no relief is due.

      Appellant’s next issue challenges the weight of the evidence. The trial

court’s belief that the verdict is not against to weight of the evidence and

that a new trial is not warranted in the interest of justice is one of the least

assailable reasons for a trial court to deny a new trial. Commonwealth v.

Widmer, 744 A.2d 745, 753 (Pa. 2000). It is well established that appellate

review of a weight claim is limited to determining whether the trial court

abused   its   discretion   rather   than   review   the   weight   claim   itself.

Commonwealth v. Best, 120 A.3d 329 (Pa.Super. 2015).                 A new trial

should only be awarded if the jury’s verdict is so contrary to the evidence as

to shock one’s sense of justice. Thompson v. City of Philadelphia, 493

A.2d 669, 672 (Pa. 1985).

      Appellant argues that the testimony of Robert Bluefort, whom he

styles as the sole incriminating witness, “was so unreliable, incredible,

conjectural and contradictory that no probability of fact can reasonably be

drawn from his testimony.”       Appellant’s brief at 34.     He highlights Mr.

Bluefort’s criminal history involving dishonesty as well as the facts that the

witness might have been involved in the case, was motivated to provide

false information, and avoided prosecution as an accessory in this case or

other crimes that he allegedly committed. He also challenges the witness’s

purported inability to remember key facts that were essential to his cross-

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examination. In sum, Appellant opined, “[r]eliance on Bluefort’s testimony

renders the jury’s verdict speculative and conjectural.” Id. at 35.

      In rejecting Appellant’s weight claim, the trial court outlined the

relevant evidence that the Commonwealth adduced during the jury trial and

determined that “[t]he evidence . . . plainly established that [Appellant]

committed the crimes for which he was convicted.”          Trial Court Opinion,

1/22/15, at 9.      Specifically, it found that Bluefort’s statements were

substantially corroborated by testimony presented by Ms. Hill and Mr.

Hayward, video surveillance, and the physical evidence surrounding the

shooting and the location of the burned vehicle. Thus, upon review of the

trial court’s reasoning, we find no basis to disturb the court’s finding that the

verdict was not contrary to the weight of the evidence. Stated plainly, the

jury was the ultimate arbiter of fact and, notwithstanding the potential flaws

in Bluefort’s credibility, the jury’s verdict was not so contrary to the evidence

as to shock one’s sense of justice. Appellant’s claim fails.

      Next, we confront Appellant’s argument that the trial court erred in

failing to grant his motion for mistrial based upon alleged juror misconduct.

We review the decision to grant or deny a mistrial for an abuse of discretion.

Commonwealth v. Begley, 780 A.2d 605, 624 (Pa. 2001).                    As our

Supreme Court explained, “The remedy of a mistrial is an extreme one that

is required only when an incident is of such a nature that its unavoidable

effect is to deprive the defendant of a fair and impartial trial by preventing

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the jury from weighing and rendering a true verdict.”            Id. at 624.

Additionally, “a mistrial is not necessary if a court's cautionary instructions

adequately cure any prejudice.” Id. at 624-625.

      The following facts are relevant. During a break on the second day of

trial, Juror Two informed the trial court that he believed that he had

observed a spectator, later identified as Appellant’s father, make a throat-

cutting gesture during Hayward’s testimony. He stated, “one of the people

present moved [his] right index finger across his neck.” N.T., 3/19/14, at

81.   The juror could not discern to whom the gesture had been directed.

The trial court conducted an extensive colloquy of each juror individually,

advised each that the incident had nothing to do with the trial, and asked

whether he or she could disregard it. All of the jurors except one had heard

about the incident from Juror Two, but none of the other jurors witnessed

the gesture.   When asked whether they could disregard the incident, only

Juror Seven said that it would be difficult to disregard.   Every other juror

testified unequivocally that he or she would have no problem disregarding it.

The trial court excused Juror Two and Juror Seven and replaced them with

alternates. Satisfied that the remaining jurors would abide by his statement

that the incident had nothing to do with the case and confident that they

could render a fair decision, the trial court denied Appellant’s motion for a

mistrial. Id. at 123.




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      Appellant asserts that he is entitled to a new trial because Juror Two’s

conduct in discussing with the other remaining jurors his observation of the

throat-slashing incident was prejudicial.    We disagree.   The reality is that

none of the empaneled jurors observed the gesture and all of the remaining

jurors avowed that they would not let the incident affect their ability to be

fair to both sides.   The trial court removed the juror who observed the

gesture and the single juror who indicated that the incident could affect his

view of the case.     The trial court conducted voir dire with the jurors

individually to insure their continuing impartiality and impart to them that

the information that he or she heard regarding the alleged gesture had

nothing whatsoever to do with the trial.     As the jury is presumed to have

followed the trial court’s instruction to disregard the incident, which each of

the empaneled jurors personally avowed to do, we cannot find that the trial

court abused its discretion in denying Appellant’s motion for a mistrial. See

Commonwealth v. Miller, 819 A.2d 504, 513 (Pa. 2002) (“The law

presumes that the jury will follow the instructions of the court”); and

Begley, supra at 624-25 (“a mistrial is not necessary if a court's cautionary

instructions adequately cure any prejudice.”).    As the trial court’s curative

actions removed any possibility of prejudice, a mistrial was not warranted.

      Next, we address Appellant’s argument challenging the discretionary

aspects of the judgment of sentence and for the following reasons, we find

that no relief is due.     Before we reach the merits of a discretionary

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sentencing issue, we must ascertain whether (1) a timely appeal was filed

from the judgment of sentence; (2) the issue was preserved during the trial

court proceedings; (3) the appellant complied with Pa.R.A.P. 2119(f); and

(4) the Rule 2119(f) statement reveals a substantial question that the

sentence was not appropriate under the sentencing code. Commonwealth

v. Lebarre, 961 A.2d 176, 178 (Pa.Super. 2008).

     Herein, Appellant’s notice of appeal was filed timely.        Likewise,

Appellant raised his sentencing issue in a post-sentence motion and leveled

the challenge in his Rule 1925(b) statement.         Additionally, Appellant

included in his brief a concise statement of reasons for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).   Accordingly, we must determine whether

Appellant’s sentencing issue raises a substantial question.   “A substantial

question exists only when the appellant advances a colorable argument that

the sentencing judge's actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Buterbaugh,

91 A.3d 1247, 1266 (Pa.Super. 2014) (en banc) (quoting Commonwealth

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

     Appellant asserts that the judgment of sentence was manifestly

excessive and unreasonable. In Commonwealth v. Treadway, 104 A.3d

597, 599 (Pa.Super. 2014) (citation omitted), we reiterated, “Generally,

Pennsylvania law affords the sentencing court discretion to impose its

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sentence concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed.”         We further explained,

“[a]ny challenge to the exercise of this discretion ordinarily does not raise a

substantial question.” Id. (citations omitted).

      Instantly, Appellant’s position offers nothing more than the assertion

that, “A review of the record in this case clearly shows that the trial court’s

aggregate sentence of 18 to 36 years . . . [is] manifestly excessive [in that it

does] not [reflect] a proper consideration of the history, character and

condition of the [A]ppellant.”    Appellant’s brief at 50.    He bolsters this

position with the added assertion, “There is no evidence in this record with

regard to Appellant’s background that would warrant 18 to 36 years

sentences.” Id. at 51.

      It is well settled that bald allegations of excessiveness do not raise a

substantial question.    See Commonwealth v. Christine, 78 A.3d 1, 10

(Pa.Super. 2013) (en banc) (OISA), aff’d 2015 WL 6498828 (Pa. 2015)

(“generic claim that a sentence is excessive does not raise a substantial

question”). Moreover, we have consistently held that a trial court’s failure to

give greater weight to various purported mitigating factors does not present

a substantial question.    Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa.Super. 2013) (“inadequate consideration of mitigating factors does not

raise a substantial question”). We stress that Appellant does not allege that

the trial court failed to consider the noted factors. Indeed, when combined

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with a claim of manifest excessiveness, that assertion, as opposed to a

challenge to the weight the court assessed among the factors it considered,

may raise a substantial question. See Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa.Super. 2014) (“an excessive sentence claim—in conjunction

with an assertion that the court failed to consider mitigating factors—raises a

substantial question.”). Thus, we find Appellant’s bare contention that the

sentence was manifestly excessive because the trial court should have

weighed certain factors more heavily, does not raise a substantial

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

Accordingly, we do not address the merits of Appellant’s argument.

      Moreover, even to the extent that Appellant’s bare assertion could be

deemed to have arguably raised a substantial question, we would reject it.

The trial court fashioned the judgment of sentence in accordance with the

sentencing guidelines. Applying Appellant’s prior record and offense gravity

scores to the basic sentencing matrix, the court accurately determined that

the standard range for minimum terms of confinement for each offense was

between 120 months (ten years) and the statutory limit (forty years). N.T.,

6/20/14, at 9. Therefore, the trial court’s concurrently imposed sentences of

eighteen to thirty-six years incarceration were within the standard range of

the sentencing guidelines.




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      In addition to imposing standard range sentences, the trial court

fashioned the sentences with the benefit of the Presentence Investigation

report (“PSI”). Id. at 4. This Court has previously held that, absent more,

the imposition of a standard range sentence in combination with the

existence of a PSI report cannot be considered excessive or unreasonable.

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 546 (Pa.Super. 1995);

see also Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013);

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (same).

Herein, Appellant’s argument that a reconsideration of his “history, character

and condition” would reflect a more appropriate deliberation of the

appropriate sentencing factors is insufficient to overcome the presumption of

reasonableness created by the combination of the trial court’s consideration

of the PSI in conjunction with its imposition of a standard-range sentence.

See Appellant’s brief at 50. Thus, even if Appellant did raise a substantial

question, no relief is due.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015

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