J. A19011/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
PAUL BURKE,                             :          No. 1636 EDA 2015
                                        :
                       Appellant        :


        Appeal from the Judgment of Sentence, February 20, 2015,
               in the Court of Common Pleas of Pike County
            Criminal Division at No. CP-52-CR-0000264-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 12, 2016

     Paul Burke appeals from the February 20, 2015 judgment of sentence

entered in the Court of Common Pleas of Pike County after a jury convicted

him of aggravated assault, terroristic threats, simple assault, recklessly

endangering another person, and harassment.1 The trial court imposed an

aggregate sentence of 8½ to 17 years’ imprisonment. We affirm.

     The record reflects that in the early morning hours of May 5, 2014,

appellant’s wife, the victim, got out of bed, took her dog out, and proceeded

to make coffee when appellant began calling for her. (Notes of testimony,

11/12/14 at 37.)       When the victim went to the bedroom, appellant



* Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 2702(a)(1),        2706(a)(1),    2701(a)(2),   2705,   and
2709(a)(1), respectively.
J. A19011/16


complained that “[e]verybody hates him.” (Id.) When the victim tried to

comfort him, he reached for a muscle relaxant, and the victim called him a

“baby” for doing so. (Id. at 38.) Appellant angrily responded, “[H]ow dare

you say that to me,” and threw the pill bottle at the victim. He then told the

victim that he wanted to end his life because no one likes him and that

“everybody can go on with their happy old life” without him. (Id. at 39.)

The victim testified that at this point, she became somewhat aggravated and

told appellant that she “really [doesn’t] have a life with [appellant.]” (Id.)

         Appellant then “flew off the bed,” “flipped two heaters,” and “with both

fists started pounding [the victim] in every direction.”        (Id. at 39-40.)

Appellant began the assault by punching the victim in the face with closed

fists.   The victim was unable to count how many times appellant punched

her in the face with closed fists, but estimated “ten whatever.” (Id. at 40.)

At that point, the victim ripped appellant’s shirt “by accident” when she

attempted to get away from him. (Id. at 41.) The victim testified that this

upset appellant because he said it was his “best New York [] shirt.” (Id.)

Appellant then “head-butted” the victim, ripped open both shirts that she

was wearing, and choked her. (Id. at 41, 44.) The victim then felt warm

blood coming down into her bra.         (Id. at 41.)   The victim testified that

during this incident, she was on the floor in the fetal position attempting to

block appellant from striking her, at which time appellant repeatedly struck

the right side of her torso, down to her right kidney. (Id. at 43.)



                                       -2-
J. A19011/16


     At this point, appellant got up, left the bedroom, and then returned

with a 12-inch chef’s knife. (Id. at 41, 52.) As the victim was on the floor,

appellant stood over her, raised the knife high above her, and stated that he

was going to kill the victim, their children, and his parents.   (Id. at 42.)

Appellant then lowered the knife to within 3 inches of the victim’s heart.

(Id. at 53.) The victim then told appellant to “just go.” (Id. at 42.) He

then put the knife down and retreated. (Id.) The victim managed to leave

the residence and drive to the police station. (Id. at 45.) Police called an

ambulance, which transported the victim to a hospital. (Id. at 62, 96.) The

victim suffered a fractured nose and multiple abrasions, lacerations, and

bruises to her face, neck, and torso. (Id. at 48-52.)

     The record further reflects that after imposition of sentence, appellant

filed a timely post-sentence motion and a timely supplemental post-sentence

motion. Following a hearing, the trial court denied appellant’s post-sentence

motions. This timely appeal followed.

     Appellant raises the following issues for our review:

           1.    Did the trial court commit reversible error by
                 refusing to give a requested instruction on
                 self-defense where the evidence presented by
                 [appellant] warranted the instruction?

           2.    Did the sentencing court err by applying the
                 deadly weapon enhancement to [appellant’s]
                 conviction for aggravated assault where he did
                 not use a deadly weapon during the alleged
                 assault?




                                    -3-
J. A19011/16


              3.   Was the evidence insufficient to support
                   [appellant’s] aggravated assault conviction
                   where he did not cause, or attempt to cause,
                   serious bodily injury?

Appellant’s brief at 5.

      Appellant first challenges the trial court’s refusal to instruct the jury on

self-defense. “In reviewing a challenge to the trial court’s refusal to give a

specific jury instruction, it is the function of this Court to determine whether

the record supports the trial court’s decision.”           Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1257 (Pa.Super. 2014) (en banc), appeal

denied, 104 A.3d 1 (Pa. 2014) (citations omitted). “It has long been the

rule in this Commonwealth that a trial court should not instruct the jury on

legal principles which have no application to the facts presented at trial.”

Id. (citations omitted).

      With respect to the issue of self-defense, this court has previously

noted that:

              The use of force against a person is justified when
              the actor believes that such force is immediately
              necessary for the purpose of protecting herself
              against the use of unlawful force by the other
              person. See 18 Pa.C.S.[A.] § 505(a). When a
              defendant raises the issue of self-defense, the
              Commonwealth bears the burden to disprove such a
              defense beyond a reasonable doubt. While there is
              no burden on a defendant to prove the claim, before
              the defense is properly at issue at trial, there must
              be some evidence, from whatever source, to justify a
              finding of self-defense. If there is any evidence that
              will support the claim, then the issue is properly
              before the fact-finder.



                                      -4-
J. A19011/16


Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa.Super. 2006) (citation

omitted; brackets in original omitted).

       Here, the record reflects that appellant took the stand in his own

defense. Appellant testified that while he was in bed that morning, and for

reasons unknown to him, the victim grabbed and ripped his shirt while

simultaneously calling him an “S.O.B.” (Notes of testimony, 11/13/14 at 23-

25.)   Because appellant was “mad that she grabbed [his] shirt,” appellant

grabbed the victim’s shirt and ripped it intentionally. (Id. at 25-26.) At that

point, according to appellant, the victim fell backwards off the bed while

appellant was “attached to her,” and the two “collided on the floor.” (Id. at

30.) Appellant claimed that during this collision, a fan fell over and hit the

victim in the face and “put a mark on her cheek.” (Id. at 35.) Appellant

denied striking the victim’s face and again claimed that the victim’s facial

injuries were caused by the falling fan. (Id. at 36.)

       Appellant further explained that a zipper on the victim’s shirt caused

the injuries to the victim’s neck. (Id. at 43-44.) Appellant denied choking

the victim.   (Id. at 51.)   He also denied striking her 20 to 30 times with

closed fists. (Id.) Appellant further denied holding a chef’s knife over the

victim and threatening to kill her and other family members. (Id. at 51-52.)

Appellant only admitted to grabbing and ripping the victim’s shirt. (Id. at

52.)




                                     -5-
J. A19011/16


       Appellant further testified that the lumps on the victim’s head were

caused when the fan and “other items” fell. (Id. at 71.) He stated that the

bruises on the victim’s torso were “probably” caused when he and the victim

“fell on the shoes,” and that the bruise on the victim’s lower back was

caused “when she fell off the bed onto a pile of shoes and tapes.” (Id. at

73.)

       The record fully supports the conclusion that there was no evidence of

self-defense presented at trial. Additionally, the record clearly demonstrates

that appellant’s defense was that he did not cause the victim’s injuries;

rather, his defense was that the victim’s injuries were caused by falling

bodies, a falling fan, and other falling items. Because the legal principles of

self-defense had no application to the facts presented at trial, the trial court

properly refused to instruct the jury on self-defense.

       Appellant next complains that the trial court abused its discretion when

it applied the deadly weapon enhancement to appellant’s aggravated assault

conviction.    Appellant alternatively complains that the trial court failed to

provide sufficient reasons to justify appellant’s sentence on his aggravated

assault conviction, which was in the aggravated range.

       Appellant challenges the discretionary aspects of his sentence.

              [T]he proper standard of review when considering
              whether    to    affirm   the    sentencing    court’s
              determination is an abuse of discretion. . . . [A]n
              abuse of discretion is more than a mere error of
              judgment; thus, a sentencing court will not have
              abused its discretion unless the record discloses that


                                      -6-
J. A19011/16


            the     judgment       exercised      was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted; brackets in original).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e 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).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).


                                      -7-
J. A19011/16


      Here, the record reflects that appellant filed a timely notice of appeal,

properly   preserved    his    sentencing    issues   in   a    timely   petition    for

reconsideration of his sentence, and included a Pa.R.A.P. 2119(f) statement

in his brief. Therefore, we must now determine whether appellant raises a

substantial question.

      We determine whether an appellant raises a substantial question on a

case-by-case basis.      Commonwealth v. Swope, 123 A.3d 333, 338

(Pa.Super. 2015) (citation omitted).         “A substantial question exists only

when an 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.” Id. (citation omitted).

            In determining whether a substantial question exists,
            this Court does not examine the merits of whether
            the sentence is actually excessive. Rather, we look
            to whether the appellant has forwarded a plausible
            argument that the sentence, when it is within the
            guideline   ranges,     is   clearly  unreasonable.
            Concomitantly,      the     substantial     question
            determination does not require the court to decide
            the merits of whether the sentence is clearly
            unreasonable.

Id. at 340 (citation omitted).

      Appellant’s issues raise substantial questions.          See Commonwealth

v. Rhoades, 8 A.3d 912, 916 (Pa.Super. 2010) (“application of the deadly

weapon     enhancement        presents   a   substantial   question”);     see      also

Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.Super. 2008) (an


                                         -8-
J. A19011/16


allegation that the court failed to state adequate reasons on the record for

imposing an aggravated-range sentence raises a substantial question).

      Appellant first complains that the trial court erred when it applied the

deadly weapon enhancement when “[n]o reasonable reading of the facts and

the record in this case could support a finding that [appellant] used a deadly

weapon when he allegedly committed the aggravated assault on his wife.”2

(Appellant’s brief at 18.)

      A court shall consider the deadly weapon enhancement “[w]hen the

court determines that the offender possessed a deadly weapon during the

commission of the current conviction offense . . . .”           204 Pa.Code

§ 303.10(a)(1). The deadly weapon enhancement defines a deadly weapon

as “[a]ny device, implement, or instrumentality designed as a weapon or

capable of producing death or serious bodily injury where the court

determines that the offender intended to use the weapon to threaten or

injure another individual.” Id. at § 303.10(a)(1)(iii).




2
  In reviewing the record, we note that in his Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, appellant contended that the
deadly weapon enhancement could not be applied because the jury did not
return a finding that appellant used a deadly weapon. (Concise statement of
matters complained of on appeal, 6/23/15; Docket #43.)             Although
appellant abandoned this argument in his brief, we note that sentencing
challenges involving sentence enhancements do not implicate Alleyne v.
United States,        U.S.     , 133 S.Ct. 2151 (2013), which requires that
any fact that increases a mandatory minimum sentence must be found by a
jury beyond a reasonable doubt. See Commonwealth v. Ali, 112 A.3d
1210 (Pa.Super. 2015).


                                     -9-
J. A19011/16


      Here, the trial court sentenced appellant on the low end of the

aggravated range with respect to appellant’s aggravated assault and

terroristic threats convictions. The record reflects that in so doing, the trial

court considered, among other things, the presentence investigation report,

appellant’s significant criminal record, appellant’s attempt to shift blame,

and appellant’s lack of remorse.        (See notes of testimony, 2/20/15 at

28-30; see also trial court opinion, 7/30/15). The record also establishes

that during the course of appellant’s assault of the victim, he made

terroristic threats while he held a 12-inch chef’s knife over her head,

threatened to kill her, and then placed the knife 3 inches from her heart.

(See notes of testimony 11/12/14 at 41-42, 52-53.)        Therefore, appellant

used a deadly weapon during the course of the assault incident. 3           We,

therefore, find no abuse of discretion.

      Appellant next claims that the trial court failed to state adequate

reasons on the record for imposing an aggravated-range sentence.            The

record belies appellant’s contention.

      The record reflects that the victim testified at the sentencing hearing,

as did appellant and two witnesses who testified on appellant’s behalf. Prior

to imposing sentence, the trial court stated that it had the benefit of a

pre-sentence investigation report and noted that it had also presided over


3
  While at sentencing the Commonwealth appears to have separated the
deadly weapon enhancement from the aggravated assault charge, it agrees
with the trial court’s application of the enhancement in this appeal.


                                     - 10 -
J. A19011/16


appellant’s trial. (Notes of testimony, 2/20/15 at 28.) The trial court further

stated   that   it   reviewed   and    considered   appellant’s   pre-sentence

memorandum, letters offered on his behalf, and the victim’s testimony at

the sentencing hearing. Id. The trial court then stated:

            THE COURT: . . . . I’ve heard a lot of statements
            and testimony today about matters from the past
            including [appellant’s] marriage with the victim,
            some of which maybe [sic] true, some of which may
            not be true, but what the Court’s heard little about
            today is what actually happened on the day in
            question which was determined by the jury and
            those convictions stand as the determination of facts
            in this case as the Court instructed the jury.

                  The best the defense has to offer that I can
            hear today is that [appellant] has indicated to the
            Court I think on several occasions or at least
            attributed the words “What I can recall” and certainly
            the Court would note that there’s a significant
            criminal record dating back to 1990 through 2005
            and then leading up to the present offense. The
            Court finds that record to be inconsistent with what’s
            being represented about [appellant] here today.

                   It’s hard to understand in this instance and not
            having been the decider of the facts in the case, it’s
            hard for a Court to understand how someone in
            [appellant’s] position just didn’t walk away that day,
            but instead the victim ended up with some serious
            injuries, that certainly can be taken up on appeal if
            that’s something that’s chosen by [appellant], but
            I’m constrained by the jury’s determination on that
            issue and the Court agrees with it.

                   Instead of that, [appellant] made a conscious
            decision to engage in physical contact with the victim
            resulting in serious bodily injury. I’m being kind
            when I say I find the suggestions that the victim’s
            injuries were somehow the result of marital problems
            or whatever, I think that’s entirely inappropriate in


                                      - 11 -
J. A19011/16


            this matter.      The victim’s injuries didn’t occur
            because of her own actions or because the parties
            had marital problems, the injuries occurred because
            [appellant] inflicted them period.

Id. at 28-30.

      In its Rule 1925(a) opinion, the trial court aptly summarized the

above, as follows:

                  In this case, the Trial Court and the Sentencing
            Court were one in [sic] the same. As such, the
            Sentencing Court reaped the benefit of observing
            [a]ppellant’s demeanor during trial, placing this
            Court in a position from which to assess his
            character. This Court had the benefit of a pre-
            sentence      report,    [a]ppellant’s     Presentence
            Memorandum, and multiple letters offered on
            [a]ppellant’s behalf with which to determine his
            sentence. That this Court took the time to elaborate
            so during [a]ppellant’s sentencing is a clear
            indication that we considered [a]ppellant’s attempts
            to shift blame away from himself, his failure to
            accept responsibility for his actions, and his lack of
            remorse in sentencing [a]ppellant in the aggravated
            range.

Trial court opinion, 11/24/15 at 11.

      The record reflects that the trial court placed ample reasons on the

record for its imposition of sentence in the aggravated range.       Therefore,

this claim lacks merit.

      Appellant finally complains that the evidence was insufficient to

support his aggravated assault conviction.

            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


                                       - 12 -
J. A19011/16


            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 proof 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      Under the Crimes Code, a person may be convicted of aggravated

assault, a first-degree felony, if he “attempts to cause serious bodily injury

to another, or causes such injury intentionally, knowingly, or recklessly

under circumstances manifesting extreme indifference to the value of human

life.” 18 Pa.C.S.A. § 2702(a)(1); see also Commonwealth v. McClendon,

874 A.2d 1223, 1229 (Pa.Super. 2005). “For aggravated assault purposes,

an ‘attempt’ is found where the accused, with the required specific intent,

acts in a manner which constitutes a substantial step toward perpetrating a

serious bodily injury upon another.”    Commonwealth v. Martuscelli, 54

A.3d 940, 948 (Pa.Super. 2012) (citation omitted). The Crimes Code defines


                                     - 13 -
J. A19011/16


“serious bodily injury” as “[b]odily injury which creates a substantial risk of

death or which causes serious, permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A.

§ 2301.

         Here, the victim testified that appellant punched her in the face with

closed fists numerous times, “head-butted” her, choked her, and repeatedly

punched the right side of her torso, down to her right kidney. The record

further reflects that as a result of this assault, the victim suffered a fractured

nose and multiple abrasions, lacerations, and bruises to her face, neck, and

torso.      Viewing   this   evidence   in   the   light   most   favorable   to   the

Commonwealth as verdict winner, it was sufficient to enable the fact-finder

to find beyond a reasonable doubt that appellant attempted to cause serious

bodily injury to the victim and, therefore, sustain his aggravated assault

conviction.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/12/2016




                                        - 14 -
