J-S52023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT PAUL BOLTZ, SR.

                        Appellant                   No. 298 MDA 2017


         Appeal from the Judgment of Sentence January 26, 2017
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0000648-2016


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                      FILED OCTOBER 03, 2017

     Robert Paul Boltz appeals from the judgment of sentence, entered in

the Court of Common Pleas of Berks County, following his conviction for

aggravated assault and related offenses. After careful review, we affirm.

     The trial court summarized the facts of this case as follows:

     During the evening hours of January 30, 2016, [Boltz’s]
     estranged wife, [Lynda Boltz], was present inside of her
     residence located at 54 School Road, Mohrsville, Berks County,
     Pennsylvania. At that time, [Lynda] Boltz’s boyfriend, James
     Wosochlo, arrived at [her] [r]esidence to have dinner [].
     Wosochlo was operating a red Chevrolet Silverado and parked in
     the driveway []. After dinner, Lynda Boltz and [] Wosochlo were
     in [the] bedroom when they heard a noise outside coming from
     the rear portion of the [r]esidence. [] Wosochlo and Lynda Boltz
     then exited the [r]esidence to determine the source of the noise.
     [] Wosochlo and Lynda Boltz came into contact with [Boltz]
     outside of the residence. [Boltz] testified that he was there to
     see his dog, Mandy. [Boltz] told [] Wosochlo that “[Lynda Boltz]
     is my wife” and that “this is my house.” Boltz was in possession
     of a knife and attempted to stab [] Wosochlo in the
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      chest/stomach area but was blocked by [] Wosochlo. The knife
      was long and silver in color and at least six inches [] in length.
      The blade of the knife was approximately four inches [] in
      length. [] Wosochlo took the knife away from [Boltz] and threw
      it aside. During the altercation, [] Wosochlo sustained a scratch
      on his arm. [] Wosochlo secured [Boltz’s] arms and moved him
      to the front of the [r]esidence so [Boltz] would leave the
      property. [Boltz] threatened to sue [] Wosochlo if he suffered
      any injuries and referenced his prior back surgery. [Boltz] was
      shouting at [] Wosochlo and said “this is my house, that is my
      wife, I guess you’ve been fucking her for the past year and a half
      because I haven’t been getting any. I know where you live. I
      know where you work. I know you have a Mexican girlfriend.” []
      Wosochlo released [Boltz] who then left the residence and the
      altercation concluded. The knife was recovered by Pennsylvania
      State Police Trooper Dominic Marino. After [Boltz] had left the
      [r]esidence, [] Wosochlo observed damage to his [v]ehicle. []
      Wosochlo noticed that the words “[fuck] you” were scratched
      into the paint on the back of his [v]ehicle. He also saw that the
      anti-lock braking system [] lines were cut and all four of his tires
      were slashed. Trooper Marino also observed this damage. []
      Wosochlo’s [v]ehicle had new tires and was in good condition
      when he arrived at the [r]esidence. [] Wosochlo testified that the
      paint on the [v]ehicle was also in good condition other than one
      scratch.

Trial Court Opinion, 4/10/17, at 3-4.

      On January 26, 2017, the court sentenced Boltz to 3½ to 10 years’

imprisonment in a state correctional facility.    On February 1, 2017, Boltz

filed a post-sentence motion, which the trial court denied by order dated

February 6, 2017. Boltz filed a timely appeal, after which both he and the

trial court complied with Pa.R.A.P. 1925. Boltz presents the following issues

for our review:

      1. Whether the guilty verdicts for aggravated assault, simple
      assault, recklessly endangering another person (REAP), criminal
      mischief and harassment were against the weight of the
      evidence?


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      2. Whether the trial court abused its discretion in imposing an
      aggregate sentence of 3½ to 10 years, where such sentence was
      manifestly excessive and clearly unreasonable, where the
      sentence was contrary to the fundamental norms underlying the
      Sentencing Code.

Brief of Appellant, at 9 (reworded for clarity).

      Our standard of review in challenges to a trial court’s verdict as

against   the   weight   of   the   evidence   is   necessarily   limited.    See

Commonwealth v. Young, 692 A.2d 1112, 1114 (Pa. Super. 1997). “The

determination of whether to grant a new trial because the verdict is against

the weight of the evidence rests within the discretion of the trial court, and

we will not disturb that decision absent an abuse of discretion.”              Id.

(citations omitted).     “A claim that the evidence presented at trial was

contradictory and unable to support the verdict requires the grant of a new

trial only when the verdict is so contrary to the evidence as to shock one’s

sense of justice.” Id. (citations omitted).

      Boltz first claims his physical disabilities limited his ability to engage in

physical activity, including fighting, for purposes of his aggravated assault

and related convictions, and that the Commonwealth presented no forensic

or circumstantial evidence proving he had a knife.        Thus, Boltz avers, his

convictions for aggravated assault, simple assault, REAP and harassment

were against the weight of the evidence. A person is guilty of aggravated

assault, simple assault, REAP or harassment if he:

      § 2702. Aggravated Assault.



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              (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; [or]

              (4) attempts to cause or intentionally or knowingly
              causes bodily injury to another with a deadly weapon[.]1

                                          ***

       § 2701 (a)(1), (3). Simple Assault.

              (1) attempts to cause or intentionally, knowingly, or
              recklessly causes bodily injury to another; [or]

              (3) attempts by physical menace to put another in
              fear of imminent serious bodily injury[.]

                                          ***

       § 2705. Recklessly endangering another person.

       A person commits a misdemeanor of the second degree if he
       recklessly engages in conduct which places or may place
       another person in danger of death or serious bodily injury.

                                          ***
       § 2709. Harassment.

       (a) Offense defined.--A person commits the crime of harassment
       when, with intent to harass, annoy or alarm another, the person:

              (1) strikes, shoves, kicks or otherwise attempts or
              threatens to do the same[.]

18 Pa.C.S.A. §§ 2701(a)(1), (3), 2702(a)(2), (4), 2705 and 2709 (emphasis

added).

____________________________________________


1
  Deadly weapon is defined as a “device designed as a weapon and capable
of producing death or serious bodily injury[.]” 18 Pa.C.S.A. § 2301.



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      On January 30, 2016, at approximately 10 p.m., Boltz, dressed in

camouflage hunting gear, approached the rear of Linda Boltz’s residence

armed with a knife.    See N.T. Jury Trial, 11/14/16, at 77-80.      Wosochlo

went to the rear of the residence to investigate sounds of what he believed

was a person shifting his or her weight in the snow.       Shortly thereafter,

Wosochlo encountered Boltz outside of the residence, at which time Boltz

was holding an object Wosochlo could not immediately identify.      Boltz then

lunged at Wosochlo’s torso area while holding an object in his right hand.

Specifically, Wosochlo testified that he saw Boltz “go for [his] stomach with

something,” in a lunging motion.    Id. at 80.   Wosochlo was able to block

Boltz’s lunging motion, at which time his hand came in contact with a hard

object; Wosochlo then realized that the object in Boltz’s right hand was “a

big knife.” Id. at 81. After a struggle, Wosochlo was able to disarm Boltz

and escort him off the property surrounding Linda Boltz’s residence. Police

later recovered a “butterfly knife” from the scene, which was later identified

by Wosochlo as being the knife Boltz used to attack him. Id. at 86.

      Boltz’s assertion that his physical condition inhibited or limited his

ability to attack or threaten Wosochlo with a knife is irrelevant. A conviction

for any of the foregoing charges does not require more than an attempt.

See 18 Pa.C.S.A. §§ 2701(a)(1), (3), 2702(a)(2), (4), 2705 and 2709.

Boltz’s attempts at stabbing Wosochlo in the torso, however futile, placed

Wosochlo in imminent danger of serious bodily injury.            Further, the

Commonwealth’s evidence included the actual physical knife Boltz possessed

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on January 30, 2016, and the jury accepted Wosochlo’s and Linda Boltz’s

testimony that Boltz attempted to stab Wosochlo. See Commonwealth v.

Mucci, 143 A.3d 399, 409 (Pa. Super. 2016) (finder of fact, while passing

upon the credibility of witnesses and weight of evidence produced, is free to

believe all, part, or none of evidence).       Additionally, Boltz avers the

Commonwealth presented no circumstantial evidence linking him to the

knife. However, the record reflects the Commonwealth presented photos of

damage to Wosochlo’s Chevy Silverado, including images of tires slashed by

a knife and graphic language scratched into the paint of the vehicle.

Commonwealth v. Devalos, 779 A.2d 1190, 1193 (Pa. Super. 2001)

(Commonwealth may sustain its burden of proving every element of crime

beyond reasonable doubt by relying wholly on circumstantial evidence).

Therefore, we find the jury’s verdict is not so contrary to the evidence as to

shock our collective sense of justice. Young, supra.

      We now turn to Boltz’s challenge of the trial court’s discretionary

aspects of his sentence.     Our standard of review in challenges to the

discretionary aspects of a sentence is limited.     See Commonwealth v.

Sims, 728 A.2d 357, 359 (Pa. Super. 1999). “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.” Id. (citations

omitted). “[W]e will only entertain a challenge to the discretionary aspects

of sentencing if a substantial question exists as to the appropriateness of the

sentence.”   Id.   “[I]n order to establish a substantial question, appellant

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must show actions by the sentencing court inconsistent with the Sentencing

Code or contrary to the fundamental norms underlying the sentencing

process.”    Commonwealth v. Gaddis, 639 A.2d 462, 469 (Pa. Super.

1994).

         An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test:

      We conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P.
      902 and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa. Super. 2006).

      Boltz’s brief includes a Rule 2119(f) concise statement of reasons

relied on for allowance of appeal; however, review of the record reveals he

failed to raise these issues at sentencing or in a post-sentence motion. The

failure to raise this type of issue in a post-sentence motion or at sentencing

results in its waiver on appeal.   See Commonwealth v. Griffin, 65 A.3d

932, 936 (Pa. Super. 2013) (challenges to discretionary aspects of sentence

waived if not raised during sentencing or in post-sentence motions).

Therefore, further analysis of Boltz’s last claim on appeal is unnecessary, as

he has waived this issue.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2017




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