J-S35023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

THOMAS A. BOCCUTO,

                            Appellant                No. 1621 EDA 2015


      Appeal from the Judgment of Sentence Entered February 9, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0001780-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 14, 2016

       Appellant, Thomas A. Boccuto, appeals from the judgment of sentence

of 4½ to 9 years’ incarceration, followed by four years’ probation, imposed

after he was convicted of aggravated assault, simple assault, and recklessly

endangering another person (REAP). We affirm.

       Appellant was convicted of the above-stated offenses after the victim

in this case, Christine Rios, testified that Appellant pushed her to the ground

and jumped on her leg, fracturing Ms. Rios’ tibia bone.       Ms. Rios’ injury

required surgery to repair, she was hospitalized for four days, and she had

to wear a cast on her leg for months.1

____________________________________________


1
   For a detailed recitation of the facts of this case and the evidence
presented at Appellant’s trial, see Trial Court Opinion (TCO), 7/20/15, at 2-
4.
J-S35023-16



      Following a non-jury trial, the court convicted Appellant of aggravated

assault, simple assault, and REAP.     On February 9, 2015, Appellant was

sentenced to a term of 4½ to 9 years’ incarceration for aggravated assault,

and a consecutive term of two years’ probation for REAP. His simple assault

conviction merged with his aggravated assault offense for sentencing

purposes.

      Appellant filed an untimely post-sentence motion on February 21,

2015. That motion was denied on February 24, 2015. Appellant then filed a

timely notice of appeal on March 2, 2015. He also complied with the court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal, which the court deemed as timely (after granting Appellant’s

request for an extension of time to file that statement).      The trial court

issued an opinion on July 20, 2015. Herein, Appellant raises four issues for

our review:

      A. Was the court’s sentence manifestly excessive?

      B. Was [Ms.] Rios credible?

      C. Did the misstatement of facts by the prosecutor in her closing
      statement amount to prosecutorial misconduct?

      D. Was there sufficient evidence to convict Appellant?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      After reviewing the record in this case, we conclude that Appellant has

waived his first three claims for our review.     Initially, Appellant’s second

issue is a challenge to the weight of the evidence, as he acknowledges in the

argument portion of his brief. See Appellant’s Brief at 18 (stating issue “B”

                                     -2-
J-S35023-16



as, “Appellant’s conviction was contrary to the weight of the evidence”)

(unnecessary capitalization omitted). This claim, and Appellant’s first issue

challenging the discretionary aspects of his sentence, are required to be

preserved in a timely-filed, post-sentence motion.          See Pa.R.Crim.P.

720(A)(1) (“[A] written post-sentence motion shall be filed no later than 10

days after imposition of sentence.”); Pa.R.Crim.P. 607(A) (stating that a

claim that verdict was against weight of evidence must be raised before trial

court orally or in a written motion prior to sentencing, or in a post-sentence

motion); Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super.

2004) (“It is well settled that an [a]ppellant’s challenge to the discretionary

aspects of his sentence is waived if the [a]ppellant has not filed a post-

sentence motion challenging the discretionary aspects with the sentencing

court.”) (citations omitted). Here, Appellant’s post-sentence motion was due

by Thursday, February 19, 2015, yet he did not file his motion until February

21, 2015. Therefore, his claims challenging the weight of the evidence and

discretionary aspects of his sentence are waived for our review.

      In any event, even if Appellant’s first two issues had been properly

preserved, we would find those claims meritless for the reasons set forth in

the trial court opinion authored by the Honorable Giovanni O. Campbell of

the Court of Common Pleas of Philadelphia County. See TCO at 6-10. After

reviewing the certified record, the briefs of the parties, and the applicable

law, it is clear that Judge Campbell’s opinion thoroughly and accurately




                                     -3-
J-S35023-16



disposes of Appellant’s first two claims.      See id.     Thus, we adopt his

reasoning as our own regarding those issues.

      In Appellant’s third issue, he argues that the prosecutor committed

misconduct by stating, in her closing argument, that “[t]here’s nothing in the

medical records from the doctor that [Ms. Rios] was drinking that day.” N.T.

Trial, 10/31/14, at 87. Appellant argues that there was “an indication in the

medical records that [Ms.] Rios admitted to drinking and taking PCP [the]

same day of the incident.” Appellant’s Brief at 23. According to Appellant,

the   prosecutor   intentionally   misrepresented   this   fact   to   the   court,

constituting prosecutorial misconduct.

      Our review of the trial transcript reveals that Appellant did not, at any

point, object to the prosecutor’s remark or request a mistrial based on this

purported misconduct.      Therefore, this issue is waived.       See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”); see also Commonwealth v. Ali, 10

A.3d 282, 293 (Pa. 2010) (“The failure to raise a contemporaneous objection

to a prosecutor’s comment at trial waives any claim of error arising from the

comment.”) (citation omitted).

      In Appellant’s fourth claim, he contends that the evidence was

insufficient to sustain his convictions. The thrust of Appellant’s argument is

that Ms. Rios’ testimony that Appellant pushed her to the ground and

stomped on her leg should not have been believed by the court, “given the

severe unreliability of her account….” Appellant’s Brief at 26. An attack on a

                                      -4-
J-S35023-16



witness’ credibility goes to the weight of the evidence, not the sufficiency.

See Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997)

(stating “credibility determinations are made by the fact finder and …

challenges thereto go to the weight, and not the sufficiency, of the

evidence”).    As stated, supra, the opinion by Judge Campbell adequately

addresses     Appellant’s   weight-of-the-evidence    claim,   and   thoroughly

discusses the basis for the court’s credibility determination in favor of Ms.

Rios and against Appellant. See TCO at 6-9. Considering that assessment,

in conjunction with the court’s summary of the evidence presented at trial

(which Appellant does not dispute), and Judge Campbell’s general analysis of

the sufficiency of the evidence to support Appellant’s convictions, we

conclude that Appellant’s sufficiency argument is meritless for the reasons

set forth by Judge Campbell.     See TCO at 2-4 (setting forth the evidence

presented at trial); 5-6 (rejecting Appellant’s sufficiency of the evidence

challenge); 6-9 (rejecting Appellant’s challenge to Ms. Rios’ credibility).

      We do note, however, that Judge Campbell did not specifically address

Appellant’s simple assault conviction, instead focusing only on how the

evidence proved that Appellant committed aggravated assault and REAP.

See id. at 6. This omission is not problematic, as “[n]umerous cases state

that simple assault is a lesser included offense of aggravated assault” and

REAP. Commonwealth v. Ferrari, 593 A.2d 846, 849 (Pa. Super. 1991);

Commonwealth v. Brunson, 938 A.2d 1057, 1061-62 (Pa. Super. 2007)

(concluding “simple assault is a lesser included offense of [REAP] since the

                                      -5-
J-S35023-16



elements of simple assault are necessarily included in the offense of

[REAP].”).   Therefore, because Judge Campbell adequately explained why

the evidence was sufficient to convict Appellant of aggravated assault and

REAP, his analysis is also necessarily adequate to demonstrate that the

evidence was sufficient to convict Appellant of simple assault.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




                                     -6-
                                                                              Circulated 05/20/2016 09:10 AM




                          IN THE COURT OF COMMON PLEAS
                 FOR THE FIRST JUDICIAL DISTRJCT OF PENNSYLVANIA
                             TRIAL DIVISION - CRJMINAL

 COMMONWEALTH                                         CP-51-CR-0001780-2014

        v.                                                                          FILED
                                                                                      JUL 2 0 2015
 THOMAS BOCCUTO
                                                                               Criminal Appeals Unit
                                  MEMORANDUM OPINION                        First Judicial District of PA
 CAMP BELL, J.                                                                        July ;; (, , 2015

 Procedural Histon•

        Defendant Thomas Boccuto was charged with Aggravated Assault (18 Pa. C. S. § 2702

 (A)- F2), Simple Assault (18 Pa. C. S. § 2701 -Iv12), and Recklessly Endangering Another

Person (18 Pa. C. S. § 2705 - M2) (REAP).

        October 31, 2014, the case proceeded to trial before this Court, sitting without a jury.

Defendant was convicted of all charges. Sentencing was deferred for a presentence investigation

and mental health evaluation.

       New counsel for Defendant entered her appearance on January 8, 2015.

       On February 9, 20 I 5, Defendant was sentenced to 4Y2 - 9 years on the Aggravated

Assault conviction, followed by two years probation on the REAP. The Simple Assault merged

with the Aggravated Assault for the purposes of sentencing.

       An untimely post-sentence motion was filed on February 21, 2015. The post-sentence

motion was denied on February 24, 2015.
                                                                                                                 ,0    niomasA-
                                                                                              14 cornrn. v. soccu, .
       A timely Notice of Appeal was filed on March 2, 2015.                 CP-51-CR-00017::oraodUIII opln\O(I




                                                                                   \\\\\\\\\\II\\\1\\11\\\\\
                                                                                             7321405591
            On March 11, 2015, an order directing the filing of a Pa.R.A.P. I 925(b) statement was

 entered.

          A motion for extension of time to file the Rule l 925(b) statement was filed on April 1,

 2015.

         A Statement pursuant to Pa.R.A.P. 1925(b) was filed on April 28, 2015.

         An order granting the motion for extension of time to file the Rule 1925(b) statement is

 being filed contemporaneous with this opinion.

 Factual History

         Christine Rios testified that she dated Defendant. N. T. 10/31/14, p. 12. On January 21,

2014, Ms. Rios had spent the night at Defendant's house, but left to prepare for work in the late

afternoon. N.T. 10/31/14, pp. 12-14, 27-28. As she walked to the bus stop, Defendant came up

behind Ms. Rios and pushed her to the ground. N.T. 10/31(14, pp. 14, 31-32. Defendant then

jumped on Ms. Rios' leg, putting his whole body weight on the leg. N.T. 10/31/14, pp. 15-16,

38. Ms. Rios heard a crack and she started crying. N.T. 10/31/14, pp. 16, 35-36. As she went to

call a family member for assistance, Defendant snatched Ms. Rios' phone from her hand. N.T.

10/31/14, pp. 16-17. Ms. Rios hobbled back to Defendant's house. N.T. 10/31/14, p. 35.

Defendant's uncle then came to the door and told Defendant to call an ambulance. N.T.

10/31/14, pp. 17-18.

         An ambulance came and transported Ms. Rios to Temple hospital. N.T. 10/31/14, p. 20.

She was admitted to the hospital where she underwent surgery to her leg and remained for four

days. N.T. 10/31/14, pp. 20-21, 37. She was placed in a hard cast, then a soft cast, then a boot.

At the time of trial she was in a boot and using crutches. N.T. 10/31/14, pp. 21-22.

                                                   2
         Dr. Joseph Miles Sewards, an orthopedic surgeon who was Ms. Rios' treating physician,

 was qualified as an expert in orthopedics. N. T. 10/31/14, p. 42-46. Dr. Sewards testified that

 Ms. Rios suffered a spiral fracture to her distal tibia. N.T. I 0/3 I/14, pp. 45-47. Dr. Sewards

 further testified that the injury suffered by Ms. Rios, a fracture of the tibia, would take a

 considerable amount of force. N. T. 10/31/14, p. 49. He also testified that it would be rare to

 have a spiral fracture of the tibia from a simple fall. N.T. 10/31/14, p. 49. Dr. Seward offered an

 opinion to a reasonable degree of medical certainty that Ms. Rios had been assaulted and that a

 significant amount of force was used on her leg, resulting in a fracture. N.T. 10/31/14, p. 49.

        Rodolpho Duprey, Defendant's uncle, testified that he was home watching a movie on

 the afternoon of January 21, 2014. N.T. 10/31/14, pp. 55-56. Mr. Duprey testified that he saw

 Mr. Rios and Defendant leave the house and then returned a short time later. He testified that

Ms. Rios' pants were down, she was complaining about her leg hurting, she smelled of alcohol

and her speech was slurred. N.T. 10/31/14, pp. 57-59. Mr. Duprey testified that he told

Defendant to call for an ambulance, because he didn't want to be financially responsible. N.T.

10/31/14, pp. 59-60. He did not see anything outside and he did not see how Ms. Rios was

injured. N.T. 10/31/14, pp. 60-61.

        Defendant testified as follows: Ms. Rios had been drinking since the morning of January

215\ and that he saw her drink two "40's" of malt liquor. N.T. 10/31/14, p. 66. They left the

house to go shopping, and on the way back to the house they got into an argument about

Defendant having slapped a bottle of malt liquor out of Ms. Rios' hand, causing it to break. N.T.

10/31/14, pp. 67-68. They separated then met back up at a bar, where the argument continued.

N.T. 10/31/14, p. 69. Ms. Rios fell and Defendant picked up her phone. She started to get on a

                                                  3
 bus then got back off to get her phone.    N. T. I 0/31/14, pp. 69-70.   Ms. Rios then pulled down her

 pants and continued   to walk, demanding    her phone.   N.T. 10/31/14, p. 70. Ms. Rios demanded

 her phone from Defendant, then started attacking him, "clocking"         him in the mouth.   N.T.

 10/31/14,p.   71. She struck him several times, but he had no injuries.      N.T.10/31/14,pp.       77-78.

Defendant pushed Ms. Rios and she fell back. N.T. 10/31/14,         pp. 71, 75, 78. Defendant then

helped Ms. Rios back to his house, where he called for an ambulance.          N.T. 10/31/14, pp. 72, 75.

Defendant denied stomping on Ms. Rios' leg. N.T. 10/31/14,          p. 75.

         Evidence of Defendants    reputation as a peaceful,   truthful, law-abiding citizen was

presented by stipulation. N.T. 10/31/14, p. 79.

        At sentencing the Court heard from Defendant's grandfather and mother, and there was

allocution by Defendant. A victim impact statement was presented, and the Defendant's FBI

extract was placed in evidence. The parties agreed that Defendant's Prior Record Score was 0,

and his Offense Gravity Score was 11, yielding a Sentencing Guideline Range of 36 to 54, plus

or minus 12. N.T. 2/9/15, p. 26.

        In imposing sentence of 4 Y2 - 9 years (54-108 months), the Court stated:

        I've considered the arguments of both counsel, the modified presentence report, the
        sentencing guidelines in this case ... I've considered many things in particular. One
       category would tend to mitigate because of the defendant's history of mental health
       problems, including six admissions to Friends Hospital while in Philadelphia. As
       aggravators, there are many things to consider: Disturbing comments that the defendant's
       made -- for which we don't even have to accept the conunents in the presentence report,
       they were apparent in the course of trial -- that indicate a disturbing -- it's disturbing the
       way the defendant seems to look at life. The circumstances of the offense, the impact on
       the victim I've also considered. I accept as Commonwealth Exhibit C-2 a copy of an
       unsigned letter from Ms. Rios...     Most of its contents were stated during the course of
       trial, so I find no problem with its foundation. This sentence is intended to protect the
       public not only from actions that show this level of carelessness and malice on the part
       of the defendant, but also given the numerous contacts the defendant has had with Iav. 1

                                                   4
         enforcement out of state for battery, narcotics, and theft offenses. This sentence is also
         intended to address the rehabilitative needs of the defendant.

 N.T. 2/9/15, pp. 26-27.

 Discussion

        Defendant claims three errors: 1) the evidence was insufficient; 2) the verdict was

 against the weight of the evidence; and 3) the sentence was manifestly excessive.

        1. The evidence was sufficient to support the convictions.

        A claim challenging the sufficiency of the evidence presents a question of law.

 Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). In a claim challenging the

 sufficiency of the evidence, we must determine whether the evidence is sufficient to prove every

 element of the crime beyond a reasonable doubt. Commonwealth v. O'Brien, 2007 PA Super 3 85,

939 A.2d 912, 913 (Pa.Super.2007).    We "must view evidence in the light most favorable to the

Commonwealth as the verdict winner, and accept as true all evidence and all reasonable

inferences therefrom upon which, if believed, the fact finder properly could have based its

verdict." Commonwealth v. Williams, 2013 PA Super 172, 79 A.3d 609, 617 (Pa. Super. 2013).

Moreover, our Supreme Court has instructed:

        [T]he 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. 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 the weight of
       the evidence produced, is free to believe all, part or none of the evidence.
       Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007).

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013). In addition, "[t]he


                                                 5
 Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we

 must evaluate the entire trial record and consider all evidence received against the defendant."

 Commonwealth v. Williams, 73 A.3d 609, 617 (Pa. Super. 2013) (citations and internal

 quotations omitted).

         Here, the evidence established that Defendant pushed Ms. Rios to the ground, then

jumped on her leg with his full weight, causing serious injury to her leg. That the injury was not

 the result of a simple fall was corroborated by expert testimony.

         The evidence was sufficient to prove the crime of Aggravated Assault, in that it

demonstrated that Defendant caused serious bodily injury to Ms. Rios intentionally and

knowingly. 18 Pa.C.S. § 2702(a)(l ). Likewise, the evidence was sufficient to prove the crime of

Reckless Endangerment of Another Person, in that Defendant recklessly engaged in conduct

which placed Ms. Rios in danger of serious bodily injury. 18 Pa.C.S. § 2705.

        2. The verdict was not against the weight of the evidence.

        Defendant asserts that the verdict was against the weight of the evidence and a new trial

is necessary in the interests of justice.

        The Supreme Court has explained:

                 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.
        Commonwealth v. Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (Pa. Super. 1984). Thus,
        the trial court is under no obligation to view the evidence in the light most favorable to
        the verdict winner. Tibbs, 457 U.S. at 38 n. 11. [footnote omitted) An allegation that the
        verdict is against the weight of the evidence is addressed to the discretion of the trial
        court, Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (Pa. 1994). 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. Thompson, supra. A trial
       judge must 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

                                                 6
         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." Id.

 Commonwealth v. fiVidmer, 560 Pa. 308, 319-320, 744 A.2d 745, 751-752 (Pa. 2000). Further:

        The decision of whether to grant a new trial on the basis of a challenge to the weight of
        the evidence is necessarily conunitted to the sound discretion of the trial court due to the
        court's observation of the witnesses and the evidence. Brown, 538 Pa. 410, 648 A.2d
         1177. A trial court should award a new trial on this ground only when the verdict is so
        contrary to the evidence as to shock one's sense of justice. Commonwealth v. Whitney,
        511 Pa. 232, 512 A.2d 1152 (Pa. 1986). A motion alleging the verdict was against the
        weight of the evidence should not be granted where it merely identifies contradictory
        evidence presented by the Commonwealth and the defendant.

 Commonwealth v. Chamberlain, 612 Pa. 107, 133-134,         30 A.3d 381, 396 (Pa. 2011).

        Defendant argues that Ms. Rios was incredible because her medical records demonstrate

 drug and alcohol use earlier on the day of the incident, which she denied, and further that her

testimony about the lighting was inconsistent with the time of day. Defendant's Rule 1925(b)

Statement,~~ 6-7.

        In her testimony on cross-examination, Ms. Rios testified that she had not been drinking

before 5 p.m. on the day of theincident, and that she had not taken any drugs, N.T. 10/31/14, p.

30. We observed her demeanor, and particularly noted the genuineness of her denial of drug use.

N.T. 10/31/14, p. 30. Defense counsel did not examine her on the notation in the medical

records, which were in evidence, nor did he direct the court to any contrary evidence in the

medical records and there was no testimony about the contents of the medical records.

Defendant also did not allege drug use by Ms. Rios in his testimony.

       In his l 925(b) Statement, Defendant points to a notation in the medical records stating

that Ms. Rios "admits to EtOH [alcohol) and PCP use earlier in the day." This notation does not

                                                  7
  appear in the nurse's notes, or anywhere else in the records.            To the contrary, the history sections

  of the various documents,           including the same page, notes a denial of street drug use. Exhibit C-

  l, unnumbered      p. 16.     See also C-1, pp. 13, 47, 137. Likewise, all the assessments           indicate that

 Ms. Rios was alert and oriented, and make no mention of issues with her speech, contrary to the

 testimony of Defendant.          See e.g. C-1, unnumbered      page 13. There is also no mention in the

 hospital triage/admission        notes a smell of alcohol, contrary to the testimony         of Mr. Duprey.

           \\Te found Ms. Rios' testimony credible, and do not find that this anomalous entry in the

 medical records, even if correct and developed            at trial, undermines    the credibility   of that

 testimony.    Moreover, we did not find the testimony of Defendant               or his uncle regarding Ms.

 Rios' intoxication       credible.    The medical records support Ms. Rios' testimony that she was not

 impaired and contradict the testimony           of Defendant   and his uncle in that regard.

          Without regard to whether or not Ms. Rios was candid in her testimony                  about drug or

alcohol use, we found her testimony about the manner in which the injuries were inflicted by

Defendant     credible.     Further, the medical records corroborate       her version of events in the form of

prior consistent statements           by Ms. Rios. Pa.R.E. 613(c).    Her version of the events contained        in

those medical records (C-1, pp. 47) is also admissible            as a statement made for and reasonably

pertinent to her medical treatment           and diagnosis, and described the cause and source of the

injury.   Pa.R.E. 803(4).

          As to the question of lighting during these late afternoon events, Ms. Rios adequately                 and

thoroughly    addressed this completely         collateral issue in her testimony.     N.T. 10/31/14> p. 34.

There is no inconsistency,        and if even if some slight inconsistency        regarding   the lighting at 4 or 5

p.m., was present,    it is on an issue of no moment or relevance to the relevant evidence or the

                                                          8
  issues presented. To reiterate, Ms. Rios was credible, Defendant and his uncle were not.

         In sum, the verdict was not contrary to the credible evidence and our sense of justice is

 not shocked by the verdict.

         3. The sentence imposed did not constitute an abuse of discretion.

         Pennsylvania's Sentencing Guidelines are merely advisory. "They set forth a series of

 recommendations that based on the type of crime, the defendant's criminal history, and the

 existence of any aggravating or mitigating factors, suggest a range of minimum sentences. . ..

 [T]he range is merely a suggestion." Commonwealth v. Yuhasz, 923 A.2d 1111,         1119 (Pa. 2007).

        As the Supreme Court elaborated:

        [T)he guidelines have no binding effect, create no presumption in sentencing, and do not
        predominate over other sentencing factors- they are advisory guideposts that are valuable,
        may provide an essential starting point, and that must be respected and considered; they
        recommend, however, rather than require a particular sentence.

Commonwealth v. Walls, 926 A.2d 957, 964-965 (Pa. 2007). Moreover, "[t)here is no abuse of

discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment."

Commonwealth v.. Mouzon, 571 Pa. 419, 431, 812 A.2d 617, 624-625 (Pa. 2002).

        Here, the Court carefully considered the record before it, the pre-sentence reports,

Defendant's allocution and the guidelines. N.T. 2/9/15, pp. 26-27. The Court then imposed a

sentence within the standard range of the guidelines, albeit at the high end of that range.

       As the Court made clear during the sentencing hearing, the circumstances of the offense

were extremely troubling: "What I'm saying is that I already determined that he broke her leg by

stomping on it." N.T. 2/9/15, p. 8.




                                                 9
           Likewise, the circumstances      of this incident and Defendant's       prior history led this

                                                                                        1
    sentencing court to believe that Defendant is prone to assaultive conduct.

           The Superior Court has explained:

            It was not improper for the [ sentencing] judge to consider appellant's alleged
           '1

           involvement in other unlawful activity for which he was not charged, tried, or convicted."
           Id. We concluded that such conduct impacted on the proper sentencing factor of the
           protection of the public. See also Commonwealth v. Fries, 362 Pa. Super. 163, 523 A.2d
           1134, 1136 (Pa.Super. 1987) HNl 7 ("It is not improper for a court to consider a
           defendant's prior arrests which did not result in conviction, as long as the court
           recognizes the defendant has not been convicted of the charges.").

                   Not only does the caselaw authorize a sentencing court to consider unprosecuted
           criminal conduct, the sentencing guidelines essentially mandate such consideration when
           a prior record score inadequately reflects a defendant's criminal background. In 204 Pa.
           Code§ 303.S(d), Adequacy of the Prior Record Score, the sentencing guidelines provide
           that the court "may consider at sentencing previous convictions, juvenile adjudications or
           dispositions not counted in the calculation of the Prior Record Score, in addition to other
           factors deemed appropriate by the court." (emphasis added by citing court).

Commonwealth v. P.L.S., 894 A.2d 120, 131 (Pa. Super. 2006), Appeal denied by, Sub nom.

Commonwealth v. Schaffer, 906 A.2d 542 (Pa. 2006).

           Under all these circumstances, the sentenced imposed, which was within the standard

guideline range, was appropriate and necessary for the protection of the public, the gravity of the

offense, and the rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b).




I Evidence of Defendants reputation as a peaceful, truthful, law-abiding citizen was presented by stipulation. N.T.
I 0/31/14, p. 79. It turns out that Defendant reputation is for neither peacefulness, nor law-abidingness. See FBI
extract, Sentencing Exhibit C-1. Indeed, his mother, whose testimony was the subject of the stipulation, was aware
of his prior arrests, and behavior issues. N.T. 2/9/15, pp. 19-23. Only the serendipity of Defendant's conviction and
arrests having occurred in Florida permitted the false stipulation to character evidence.
                                                         10
Accordingly, the judgment of sentence should be affirmed.




                                     /




                                         11
  Commonwealth       v. Thomas Boccuto             Case Number: CP-5l-CR-1780-2014


                                       PROOF OF SERVICE

 I hereby certify that I am this day serving the foregoing upon the person(s), and in the
 maimer indicated above, which service satisfies the requirements of Pa.R.Crim.P .114:

 Defense Counsel/Party:

                         Jennifer Santiago, Esquire
                         Land Title Building
                         100 South Broad Street
                         Suite 133 I
                         Ph.iladelphia, Pennsylvania 19110

Type of Service:         ( ) Personal (X) First Class Mail

District Attorney:
                         Hugh Bums, Esquire
                         Office of the District Attorney
                         Three South Penn Square
                         Philadelphia, PA 19107


Type of Service          ( ) Personal (X) First Class Mail


Dated: July 20, 2015


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Vanessa A. Montone
Judicial Secretary to
Honorable Giovanni O. Campbell
