J-S60034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSE L. GONZALEZ

                            Appellant                No. 299 MDA 2014


            Appeal from the Judgment of Sentence August 28, 2013
               In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000176-2013


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 22, 2014

        Jose Gonzalez (“Appellant”) appeals the judgment of sentence imposed

on August 28, 2013, following his conviction for attempted murder 1 and two

counts of aggravated assault.2 After careful review, we affirm.

        The trial court summarized the trial testimony and procedural history

as follows:

              On April 8, 2012, Magdalena Cruz (hereafter “Cruz”)
        resided at 228 Brookside Apartments in the City of Lebanon,
        Pennsylvania. Until roughly 2:00 a.m. on April 8, Cruz partied
        with friends at the Woofer Magoos Bar in downtown Lebanon.
        Among other people who partied together were Tiffany Koziara,
        Chris Malandra, Anthony DeJesus, Derek DeJesus and
        [Appellant]. When the bar closed, the group reconvened their
____________________________________________


1
    18 Pa.C.S. § 901(a).
2
    18 Pa.C.S. § 2702(a)(1) & (4).
J-S60034-14


     party at Cruz’s home. Wanda Colon, Larry Graves and Jose
     Martinez (hereafter “Victim”) attempted to join the party.

           Shortly after [] the arrival of Colon, Graves and Victim, an
     argument ensued between Cruz and Victim over a cell phone.
     Cruz became frustrated and slapped Victim in the face. Anthony
     DeJesus and Derek DeJesus then began fighting with Victim near
     the top of a staircase. Graves attempted to intervene. At this
     point, a shot was fired and Victim fell to the bottom of the stairs.
     While lying at the bottom of the stairs, Victim looked up and saw
     [Appellant] holding a silver gun.

           Following the shooting, Wanda Colon and Anthony DeJesus
     drove Victim to the hospital. They dropped him off in the front
     of the hospital and then drove away. At the time, Victim was
     breathing profusely. He was also paralyzed.

           Cruz remained at her apartment and cleaned up blood and
     other evidence.     The rest of the individuals at the party
     scattered. No one called the police. No one even advised staff
     at the hospital what had occurred.

            Police were called to the Good Samaritan Hospital
     Emergency Room by hospital staff. Police arrived and were
     advised that Victim had been shot and was fighting for his life.
     Initially, police had no leads with respect to how, where or when
     the shooting occurred or whether anyone had witnessed it.

           As of April 2012, Destiny Gonzalez was the fiancée of
     Victim. Ms. Gonzalez expected Victim to return home shortly
     after 2:00 a.m. When he did not arrive, Ms. Gonzalez attempted
     to reach Victim using his cell phone. Chris Malandra and Tiffany
     Koziara were in possession of Victim’s cell phone. When Ms.
     Gonzalez called, Mr. Malandra and Ms. Koziara advised Ms.
     Gonzalez to call the Good Samaritan Hospital.

           Police were able to piece together from Victim’s family that
     Victim may have been attending a party at Cruz’s apartment.
     Sergeant Jonathan Hess, Detective Keith Ulrich and Officer Ryan
     Margot responded to Cruz’s apartment. Sgt. Hess observed a
     red stain on the door and floor mat. Officer Margot noticed what
     he believed to be blood on the baby gate at [sic] the stairwell.

           Through investigation, police were able to learn the names
     of people reported to have been at Cruz’s party during the early
     morning of April 8, [2012]. Seven of the ten people reported to

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J-S60034-14


     be present at the party were interviewed. It became quickly
     apparent to police that those who attended the party wanted to
     protect the culprit. For example, Cruz attempted to clean the
     crime scene. She also denied [Appellant] was even at the party
     at her house.     When police attempted to speak to Tiffany
     Koziara, she would not answer the door to her home. When
     they eventually were able to speak to Ms. Koziara, she was not
     cooperative. Similarly, Anthony DeJesus told police that he did
     not even remember being at the party at Cruz’s house. His
     brother Derek also denied being present at the party.

            When Victim was medically able, Sgt. Hess conducted an
     interview. Victim was initially uncooperative. However, he later
     gave Sgt. Hess a full recorded statement. In that statement, he
     identified [Appellant] as the person he saw holding a silver gun
     immediately after he had been shot. At trial, Victim testified
     that he was “one hundred percent certain” that [Appellant] was
     the person holding the gun.

           Sgt. Hess testified that he wanted to interview [Appellant],
     but he and his fellow officers could not locate him. Sgt. Hess
     spoke with [Appellant’s] mother and his brothers. Police also
     spoke with informants. They contacted the Pennsylvania State
     Police Fugitive Task Force and the United States Marshal’s
     Service.   Unfortunately, [Appellant’s] whereabouts remained
     unknown for nine months.

           [Appellant] was finally apprehended on January 10, 2013.
     When questioned, [Appellant] denied that he was even at the
     party where the shooting occurred.

           During their investigation, police learned that [Appellant]
     and Hasaan Hargett were Facebook friends. Police obtained a
     Facebook post dated April 18, 2012. That post referenced a
     “hammer” that [Appellant] had given to Mr. Hargett. [Appellant]
     messages [sic] Mr. Hargett and stated: “I felt safe knowing you
     had it because I know you wouldn’t let it go in the wrong hands
     but now that you don’t got it, I am not safe anymore?” Mr.
     Hargett responded that he had disposed of the “hammer” “with
     additional waste.” Det. Ulrich testified that he was familiar with
     street terminology and that the term “hammer” refers to a gun.
     At trial, Mr. Hargett initially denied getting rid of anything for
     [Appellant]. He later acknowledged that he had discarded a bag
     that had been given to him by [Appellant].



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J-S60034-14


             At trial, Victim identified [Appellant] as the person who
       shot him.1 In addition, the District Attorney’s Office presented
       the Facebook communications sent by [Appellant] to Hasaan
       Hargett that, fairly interpreted, revealed that Hargett disposed of
       a gun on behalf of [Appellant].        The District Attorney also
       presented evidence that [Appellant] abruptly left Lebanon after
       the shooting.2
          1
            Specifically, the Victim said that [Appellant] was holding
          a gun immediately after he was shot. No one else was
          seen with a gun.
          2
             To be sure, inconsistent and obviously misleading
          testimony was presented from Magdelina [sic] Cruz,
          Lawrence Graves, Tiffany Koziara, Anthony DeJesus and
          Derek DeJesus.    When evaluating issues pertaining to
          weight and sufficiency of evidence, this [c]ourt did not
          afford much weight to the testimony of the aforesaid
          individuals.

             On August 9, 2013, a jury convicted [Appellant] of all
       counts lodged against him. Sentencing occurred on August 28,
       2013. As a result, this [c]ourt sentenced [Appellant] to a period
       of imprisonment of between 20 and 40 years.

Trial Court Post-Sentence Motion Opinion, January 9, 20143 (“Trial Court

Opinion”), pp. 1-6 (record citations and capitalizations omitted).

       On September 9, 2013, Appellant filed post-sentence motions raising:

(1) a sufficiency of the evidence claim; (2) two claims relating to the trial

court’s denial of Appellant’s motion in limine regarding the circumstances of

Appellant’s flight/arrest; (3) a claim that the trial court improperly instructed

____________________________________________


3
  By Order dated March 6, 2014, the trial court forwarded the trial court file
to this Court, noting that its January 9, 2014 opinion addressed Appellant’s
matters complained of on appeal. Accordingly, we will treat the trial court’s
January 9, 2014 opinion as its Pa.R.A.P. 1925(a) opinion.




                                           -4-
J-S60034-14



the jury on whether Appellant’s flight could be considered as consciousness

of guilt; (4) a claim that the trial court improperly precluded Appellant from

drawing       a    link   in   his   closing   argument   between   Anthony   DeJesus’

aggravated assault conviction and a defense claim that Anthony DeJesus

may have been the shooter; (5) a weight of the evidence claim; and (6) a

discretionary aspects of sentence claim.             The trial court denied Appellant’s

post-sentence motions on January 9, 2014.                 Thereafter, Appellant filed a

timely notice of appeal and complied with the trial court’s order to file a

statement of matters complained of on appeal.

      Appellant raises the following issues for our review:

      I. Did the Commonwealth fail to present sufficient evidence at
      trial that:

                 Appellant was at Brookside apartments on April 8, 2012,
                  and that Appellant was the person who shot Jose Martinez?

                 Appellant was guilty of Attempted Homicide?

      II. Did the Trial Court erred [sic] by:

                 Denying Appellant’s Motion In Limine to exclude the
                  circumstances of Appellant’s arrest on January 10, 2013,
                  and by instructing the Jury that Appellant’s alleged flight
                  was consciousness of guilt[?]

                 Instructing [d]efense [c]ounsel that he could not in his
                  closing arguments draw a direct link between the fact that
                  Anthony DeJesus had been convicted of an aggravated
                  assault involving a handgun and that Anthony DeJesus
                  may have been the shooter[?]

      III. Did the Jury place too great a weight on the testimony that
      Appellant was at 228 Brookside [A]partments on April 8, 2012,
      specifically, the testimony of Lawrence Graves, Magdelina [sic]
      Cruz, and Jose Martinez[?]


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J-S60034-14


      IV. Did the Sentencing Court err in sentencing the Appellant to
      the top of the standard range for his minimum sentence at
      Action Number CP-38-CR-175-2013 and running that sentence
      consecutively to the sentence imposed at Action Number CP-38-
      CR-176-2013 when the Appellant had a prior record score of
      zero and had only two (2) misdemeanor juvenile adjudications,
      and did the Sentencing Court consider improper facts when
      molding Appellant’s sentence[?]

Appellant’s Brief, p. 4.

      Appellant first argues that the Commonwealth failed to prove that he

committed the crime of attempted murder.       See Appellant’s Brief, pp. 10-

13. Specifically, Appellant claims the Commonwealth failed to prove that he

was at 228 Brookside Apartments and that he was the shooter. Id. He is

incorrect.

      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

      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
      [trier] of fact while passing upon the credibility of witnesses and



                                     -6-
J-S60034-14


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

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

      The Crimes Code provides:

      (a) Definition of attempt.–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. § 901. “A person may be convicted of attempted murder if he

takes a substantial step toward the commission of a killing, with the specific

intent in mind to commit such an act.” Commonwealth v. Jackson, 955

A.2d 441, 444 (Pa.Super.2008) (internal citations and quotations omitted).

“The substantial step test broadens the scope of attempt liability by

concentrating on the acts the defendant has done and does not any longer

focus on the acts remaining to be done before the actual commission of the

crime.”   Id.   “[A]ttempted murder requires an intent to bring about that

result described by the crime of murder (i.e., the death of another).”

Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.2004). “The

mens rea required for first-degree murder, specific intent to kill, may be

established solely by circumstantial evidence.” Jackson, 995 A.2d at 444.

“The law permits the fact finder to infer that one intends the natural and

probable consequences of his acts.” Id. “The offense of attempt to kill is

completed by the discharging of a firearm at a person with the intent to kill,



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J-S60034-14



despite    the    fortuitous    circumstances   that   no   injury   is   suffered.”

Commonwealth v. Mapp, 335 A.2d 779, 781 (Pa.Super.1975) (necessary

intent found for attempted murder where defendant shot at victim and

missed).    Additionally, our Supreme Court has repeatedly determined that

“[t]he use of a deadly weapon on a vital part of the body is sufficient to

establish the specific intent to kill” required for a first degree murder

conviction. See Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.2007);

Commonwealth v. Cousar, 928 A.2d 1025, 1034 (Pa.2007) (“a specific

intent to kill may be inferred from the use of a deadly weapon on a vital part

of a victim’s body.”).         Further, evidence of flight is admissible for the

purpose of establishing guilty knowledge.        Commonwealth v. Gooding,

649 A.2d 722, 726 (Pa.Super.1994) (citing Commonwealth v. Jones, 319

A.2d 142, 149 (Pa.1974)).

      Here, the trial court explained its rejection of Appellant’s sufficiency of

the evidence claim as follows:

      Although this [c]ourt believes that Graves lied at trial and that
      his written statement to police was in fact accurate, we
      nevertheless will not consider today the testimony of Graves or
      even of Cruz. In fact, the evidence that we will rely upon to
      reject [Appellant’s] challenge to [the] . . . sufficiency of [the]
      evidence is as follows:

      (1) Victim testified that immediately after he was shot, he saw
      a gun in the hand of [Appellant]:

              Q.   Jose, as you are sitting here today are you certain
           that when you were shot that the person you saw holding
           the gun was [Appellant]?

             A.     Yes, hundred percent.


                                         -8-
J-S60034-14


      (2) Following the shooting, [Appellant] abruptly left Lebanon
      County. He told a close friend that he likely would never return.

      (3) In a Facebook exchange, [Appellant] confirmed that he
      had given a “hammer” to hold and/or dispose for him. Police
      testified that the term “hammer” refers on the streets to a gun.

            To be sure, significant additional information and evidence
      was presented to the jury.       However, the three pieces of
      evidence outlined above, by themselves, are sufficient to support
      the jury’s verdict.

1925(a) Opinion, pp. 11-12 (record citation, footnote, and capitalizations

omitted).

      Viewed in the light most favorable to the Commonwealth as verdict

winner, the trial court properly concluded that this evidence was sufficient to

convict Appellant of attempted murder.

      Appellant also claims the trial court erred in denying his motion for a

new trial based on a weight of the evidence claim. See Appellant’s Brief, pp.

15-16. Specifically, Appellant claims the jury placed too much weight on the

testimony of Magalena Cruz and the victim that Appellant was at 228

Brookside Apartments on April 8, 2012. Id. This claim lacks merit.

      This Court’s review of weight of the evidence claims is governed by the

following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. A trial judge must

                                     -9-
J-S60034-14


       do more than reassess the credibility of the witnesses and allege
       that he would not have assented to the verdict if he were a
       juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice, 4 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).            Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.        Widmer, 744 A.2d at 753.      When reviewing the

____________________________________________


4
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury's verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).




                                          - 10 -
J-S60034-14



trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

      Simply stated, the jury’s verdict in this matter implicitly illustrates that

the jury found the victim’s testimony that Appellant was at the scene of the

crime and was holding the gun after the victim was shot to be credible and

the testimony of the defense witnesses to the contrary to be incredible. The

verdict also demonstrates that the jury found other evidence of guilt

significant, including Appellant’s flight from Lebanon County, his statement

to his friend that he would likely never return, and his Facebook post to

Hasaan Hargett about the “hammer”. The trial court agreed with the jury’s

assessment in denying Appellant’s post-sentence motion for a new trial

based on the weight of the evidence. See Trial Court Opinion, pp. 10-12.

Nothing about the verdict or the trial court’s reasoning shocks the

conscience. Appellant’s weight of the evidence claim fails.

      Next, Appellant argues the trial court erred in denying his motion in

limine requesting the Commonwealth be precluded from discussing the

circumstances of Appellant’s arrest, including his flight following the

commission of the crime.     See Appellant’s Brief, pp. 13-14.      In a related

claim, Appellant suggests that the trial court erroneously charged the jury

regarding flight as consciousness of guilt. Id. Appellant is incorrect.

      In reviewing the grant or denial of motions in limine, this Court applies

an evidentiary abuse of discretion standard of review. Commonwealth v.

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J-S60034-14



Stokes, 78 A.3d 644, 654 (Pa.Super.2013). “An abuse of discretion will not

be found based on a mere error of judgment, but rather exists where the

court has reached a conclusion which overrides or misapplies the law, or

where the judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will.”    Commonwealth v. Alicia, 92 A.3d

753, 760 (Pa.2014).

      This Court has stated the well-established standard of review for

admission of evidence claims as follows:

      The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law. Thus, [this Court’s] standard of
      review is very narrow.        To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012).                Further, as

previously stated, evidence of flight is permissible for the purpose of

establishing   guilty   knowledge.          See   Gooding,   supra;   see   also

Commonwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa.Super.2005)

(“where evidence exists that a defendant committed a crime, knew he was

wanted, and fled or concealed himself, such evidence is admissible to

establish consciousness of guilt.”).

      Additionally, “[w]hen reviewing the propriety of a jury charge, an

appellate court examines the charge as a whole. The trial court has broad

discretion in formulating jury instructions, as long as the law is presented to

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J-S60034-14



the jury in a clear, adequate, and accurate manner.” Lukowich, 875 A.2d

at 1174 (internal citation omitted).

        Here, the trial court explained its decision to allow evidence of

Appellant’s flight following the crime as follows:

        In this case, [Appellant] abruptly left his home in Lebanon
        County. In communication [Appellant] had with Hasaan Hargett,
        [Appellant] indicated he might never be returning. [Appellant’s]
        abrupt relocation away from Lebanon County coincided to the
        day with the shooting that permanently paralyzed Victim. Under
        such circumstances, it was permissible for the jury to infer that
        [Appellant] had a guilty conscience. If in fact there were other
        possible explanations for [Appellant’s] flight, [Appellant] was at
        liberty to provide those explanations to the jury and we clearly
        communicated this to [Appellant’s] counsel.        Ultimately, we
        determined that it was for the jury to decide whether flight
        occurred and, if so, how flight should be considered.

Trial Court Opinion, pp. 15-16.

        We discern no abuse of discretion in the trial court’s admission of flight

evidence.     We further conclude that the trial court properly instructed the

jury regarding its consideration of the evidence of flight. 5         Accordingly,

Appellant’s flight-related evidentiary and jury charge claims fail.
____________________________________________


5
    At the end of the trial, the court instructed the jury:

        Now in this case you heard some evidence that could possibly
        lead you to believe that [Appellant] fled after this crime
        occurred. It’s up to you to decide whether [Appellant] fled or he
        did not flee. That’s your decision. If you find that [Appellant]
        fled after the crime was committed, that is evidence of what the
        law terms consciousness of guilt. The law recognizes that people
        who are guilty will have a tendency to run away and flee after
        they commit something that they knew was wrong. And you can
(Footnote Continued Next Page)


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J-S60034-14



      Appellant also claims that the trial court erred by precluding defense

counsel from drawing a direct link in closing between Anthony DeJesus’

aggravated assault and person not to possess firearms convictions and a

suggestion that Anthony DeJesus was the shooter in this case.                  See

Appellant’s Brief, pp. 15. Appellant is again incorrect.

      At trial, Anthony DeJesus testified that he was then incarcerated for

convictions on two counts of aggravated assault and persons not to possess

firearms.   See N.T. 8/8&9/2013, p. 169.            Prior to closing arguments, the

Commonwealth moved the trial court to preclude defense counsel from

arguing that Anthony DeJesus, by virtue of his convictions, was more likely

than Appellant to have committed the crime in the instant matter. See N.T.

8/8&9/2013, pp. 203-207. The court granted the Commonwealth’s motion,

stating:

                       _______________________
(Footnote Continued)

      use [Appellant’s] flight as evidence of his guilty [conscience] if
      you find that he fled. However, the law also recognizes that
      there are other reasons beyond a reasonable doubt that could
      lead a person to try to avoid the police. You must consider all of
      the evidence. You must decide whether in fact this [Appellant]
      did flee and if you find that he fled whether he did so out of
      guilty [conscience] or for some other reason having nothing to
      do with this crime. But if you find that he did flee and you find
      that he did so because of a guilty [conscience] you can consider
      that as evidence in this case.

N.T. 8/8&9/2013, pp. 249-250. When read as a whole, this instruction
clearly, adequately, and correctly advised the jury that it could consider the
evidence of flight as demonstrating Appellant’s consciousness of guilt, but
that it was not required to do so.



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J-S60034-14


       I’m not going to let [defense counsel] draw a direct link between
       the firearms conviction and this event because the evidence does
       not establish any such link. So I’m not going to allow [defense
       counsel] to specifically say Anthony DeJesus did this because he
       did it in the past.

N.T. 8/8&9/2013, p. 206.

       Initially, we note that defense counsel did not lodge an objection to

the trial court’s ruling limiting the defense closing regarding the use of

Anthony DeJesus’ criminal record, and, accordingly, Appellant waived this

claim.     See Commonwealth v. Baumhammers, 960 A.2d 59, 84

(Pa.2008) (“the absence of a specific contemporaneous objections renders

the appellant’s claim waived.”).          Further, because no trial testimony or

evidence placed a weapon in Anthony DeJesus’ hands on the evening in

question, we agree with the trial court’s assessment that the evidence

presented did not warrant an argument relating in any way to Anthony

DeJesus’ prior convictions.        Additionally, because Pennsylvania’s Rules of

Evidence expressly state that “evidence of a crime, wrong, or other act is

not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character[,]”

such argument in closing would have been improper.               Pa.R.E. 404(b).

Accordingly, we discern no abuse of discretion in limiting defense counsel’s

use of Anthony DeJesus’ criminal convictions in his closing argument.6

____________________________________________


6
  We note that the trial court did not bar defense counsel from suggesting
that Anthony DeJesus, or any individual whom the evidence indicated was
(Footnote Continued Next Page)


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      Finally, Appellant claims the trial court erred in sentencing him to the

top of the standard range of the sentencing guidelines and running the

sentence consecutive to Appellant’s sentence in another matter.                  See

Appellant’s Brief, pp. 16-17.

      This claim raises a challenge to the discretionary aspects of Appellant’s

sentence.    “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”            Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011).                 Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Allen, 24 A.3d at 1064.

      Appellant in the present case filed a timely notice of appeal, and

preserved his issues in a motion for reconsideration of sentence. Further,


                       _______________________
(Footnote Continued)

present on the night in question, committed the crime.             See N.T.
8/8&9/2013, p. 203. The trial court merely precluded counsel from arguing
that Anthony DeJesus’ prior convictions could be viewed as proof that he had
committed the crime. See N.T. 8/8&9/2013, pp. 204-207.



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Appellant’s brief includes a concise statement of the reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p.

9.    Accordingly, we now determine whether Appellant has raised a

substantial question for review and, if so, proceed to a discussion of the

merits of the claim.       Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki,

522 A.2d 17 (Pa.1987).

       In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial

court imposed an unreasonable sentence because it based the sentence

solely on defendant’s lack of remorse at sentencing. See Appellant’s Brief,

p. 9.7 Importantly, Appellant does not argue that the sentencing court relied

upon any impermissible factors in sentencing, relied solely on the severity of

the crime committed,8 or sentenced him beyond statutory limits. Instead,
____________________________________________


7
  We note that the trial court sentenced Appellant in another matter, Docket
CP-38-CR-175-2013, on August 28, 2013 as well. Appellant herein also
claims that the trial court erred in deciding to run his 1 to 5 year sentence in
the case consecutive to the 20 to 40 year sentence in the instant case.
Because the trial court ordered Appellant to serve the sentence in this case
first, no claim exists that the court erred in sentencing on this matter
consecutive to another sentence. We note, however, that even if the
sentence order was reversed, and the instant sentence were to be served
consecutive to the 1 to 5 year sentence in Docket CP-38-CR-175-2013, such
a claim would not raise a substantial question for our review.              See
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim
that the consecutive nature of sentences violates the Sentencing Code fails
to raise a substantial question for review).
8
  We note that a claim that a sentencing court relied solely on the severity of
the crime raises a substantial question for review. Commonwealth v.
Macias, 968 A.2d 773, 776 (Pa.Super.2009).




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he alleges that the sentencing court focused solely on his lack of remorse at

the sentencing hearing in imposing sentence. Id. To the extent Appellant’s

claim is that the trial court viewed his silence at sentencing as a lack of

remorse and relied solely on that silence in sentencing, this claim does raise

a substantial question for appellate review.        See Commonwealth v.

Bowen, 975 A.2d 1120 (Pa.Super.2009).          We will therefore address the

merits of Appellant’s discretionary aspects of sentencing claim.

            If this Court grants appeal and reviews the sentence, the
      standard of review is well-settled: sentencing is vested in the
      discretion of the trial court, and will not be disturbed absent a
      manifest abuse of that discretion.        An abuse of discretion
      involves a sentence which was manifestly unreasonable, or
      which resulted from partiality, prejudice, bias or ill will. It is
      more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

      Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion.   Instead, the trial court imposed a sentence that

was consistent with the protection of the public, took into account the

gravity of the offense as it related to the impact on the life of the victim and

on the community, and considered the Appellant’s rehabilitative needs, as

required by 42 Pa.C.S. § 9721(b).




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       At sentencing, the trial court explained it considered the presentence

investigative report,9 the nature of Appellant’s actions, the consequences of

Appellant’s actions (including the victim’s injuries), the efforts of Appellant

and his friends to cover up the crime and thwart the police investigation, the

continuing danger Appellant presents to society, the arguments of counsel,

and the testimony received at the sentencing hearing. N.T. 8/28/2013, pp.

7-14. Finally, the court sentenced Appellant to a standard range sentence

within the statutory maximum.10 See Commonwealth v. Moury, 992 A.2d

162, 171 (Pa.Super.2010) (“[W]here a sentence is within the standard range

of the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code.”). We find no abuse of discretion.

       Given the foregoing, Appellant’s claim that the trial court relied solely

on his lack of remorse in sentencing fails.

       Judgment of sentence affirmed.


____________________________________________


9
  We note that, where a sentencing court had the benefit of a presentence
investigation report, we can assume the sentencing court was aware of
relevant information contained therein and weighed that information along
with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).
10
   The upper level of the sentencing guidelines’ standard range for attempted
murder involving serious bodily injury is the statutory limit regardless of an
offender’s prior record score. See 204 Pa.Code § 303.16. The statutory
maximums for first degree murder, second degree murder, and third degree
murder are death sentence/life imprisonment, life imprisonment, and 40
years, respectively. See 18 Pa.C.S. § 1102.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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