J-S36043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JUAN VAZQUEZ                               :
                                               :
                       Appellant               :       No. 2314 EDA 2017

             Appeal from the Judgment of Sentence June 12, 2017
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000859-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED SEPTEMBER 27, 2018

        Appellant, Juan Vazquez, appeals from the judgment of sentence

entered in the Monroe County Court of Common Pleas, following his jury trial

convictions for aggravated assault, simple assault, recklessly endangering

another person, and endangering the welfare of a child.1 We affirm.

        In its opinion filed October 26, 2017, the trial court accurately set forth

the relevant facts and procedural history of this case. Therefore, we have no

reason to restate them.

        Appellant raises four issues for our review:

           WHETHER THE COURT’S LEGAL CONCLUSIONS WERE
           ERRONEOUS IN DENYING [APPELLANT’S] SUPPRESSION
           MOTION?

           WHETHER THE COURT ABUSED ITS DISCRETION IN
____________________________________________


1   18 Pa.C.S.A. §§ 2702(a)(1); 2701(a)(1); 2705; 4304(a)(1), respectively.
J-S36043-18


           ALLOWING EXPERT TESTIMONY FROM [DETECTIVE WEBBE]
           WITHOUT AN EXPERT REPORT?

           WHETHER THE COURT ABUSED ITS DISCRETION IN
           ALLOWING   ADMISSION  OF AN   INFLAMMATORY
           PHOTOGRAPH OF VICTIM?

           WHETHER THE COURT ABUSED ITS DISCRETION IN
           SENTENCING [APPELLANT]?

(Appellant’s Brief at 7).2

        “Our standard of review in addressing a challenge to a trial court’s denial

of a suppression motion is limited to determining whether the factual findings

are supported by the record and whether the legal conclusions drawn from

those facts are correct.”       Commonwealth v. Williams, 941 A.2d 14, 26

(Pa.Super. 2008) (en banc) (internal citations omitted).

           [W]e may consider only the evidence of the prosecution and
           so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

Id. at 27.      Regarding custodial interrogations requiring the issuance of

Miranda3 warnings:

           Statements made during custodial interrogation are
           presumptively involuntary, unless the accused is first
           advised of [his] Miranda rights. Custodial interrogation is
           “questioning initiated by law enforcement officers after a
____________________________________________


2 For purposes of disposition, we have re-ordered Appellant’s third and fourth
issues.

3   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                           -2-
J-S36043-18


       person has been taken into custody or otherwise deprived
       of his freedom of action in any significant way.” Miranda,
       supra at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. [T]he
       Miranda safeguards come into play whenever a person in
       custody is subjected to either express questioning or its
       functional equivalent. Thus, [i]nterrogation occurs where
       the police should know that their words or actions are
       reasonably likely to elicit an incriminating response from the
       suspect. [I]n evaluating whether Miranda warnings were
       necessary, a court must consider the totality of the
       circumstances. In conducting the inquiry, we must also
       keep in mind that not every statement made by an
       individual during a police encounter amounts to an
       interrogation. Volunteered or spontaneous utterances by an
       individual are admissible even without Miranda warnings.

          Whether a person is in custody for Miranda purposes
          depends on whether the person is physically denied of
          [his] freedom of action in any significant way or is
          placed in a situation in which [he] reasonably believes
          that [his] freedom of action or movement is restricted
          by the interrogation. Moreover, the test for custodial
          interrogation does not depend upon the subjective
          intent of the law enforcement officer interrogator.
          Rather, the test focuses on whether the individual
          being interrogated reasonably believes [his] freedom
          of action is being restricted.

                                *    *    *

          Said another way, police detentions become custodial
          when, under the totality of the circumstances, the
          conditions and/or duration of the detention become so
          coercive as to constitute the functional equivalent of
          arrest.

       Thus, the ultimate inquiry for determining whether an
       individual is in custody for Miranda purposes is whether
       there [was] a formal arrest or restraint on freedom of
       movement of the degree associated with a formal arrest.
       Under the totality of the circumstances approach, the
       following factors are relevant to whether a detention has
       become so coercive as to constitute the functional
       equivalent of a formal arrest: the basis for the detention; its

                                    -3-
J-S36043-18


          length; its location; whether the suspect was transported
          against his…will, how far, and why; whether restraints were
          used; whether the law enforcement officer showed,
          threatened or used force; and the investigative methods
          employed to confirm or dispel suspicions.

Williams, supra at 30-31 (some internal citations and quotation marks

omitted).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Jonathan

Mark, we conclude Appellant’s issues merit no relief. The trial court opinions

comprehensively discuss and properly dispose of the questions presented.

(See Opinion in Support of Order Denying Suppression Motion, filed October

20, 2015, at 1-2; Trial Court Opinion, filed October 26, 2017, at 14-27)

(finding: (1) Detective Lenning credibly testified that police expressly

informed Appellant he was not under arrest and was free to leave at any time;

detective’s testimony was supported by recording of interview; interview was

voluntary, brief in duration, took place in hotel conference room, and Appellant

left after interview; police did not threaten or coerce Appellant and did not

arrest Appellant until seven days after interview; under these circumstances,

Appellant was not subject to custodial interrogation requiring Miranda

warnings; (2) detective conducted forensic analysis of Appellant’s wife’s4 cell

phone and information extracted from cell phone; Commonwealth provided


____________________________________________


4 The trial court refers to Victim’s mother as Appellant’s wife, but the record
is unclear as to their marital status.

                                           -4-
J-S36043-18


extraction report and related data to defense counsel during discovery;

detective did not prepare expert report, so there was no expert report

Commonwealth was obligated to provide to defense; Appellant did not file

motion asking court to order expert to prepare report, per Pa.R.Crim.P. 573;

given lack of defense motion and fact that Commonwealth gave defense

complete cell phone extraction record, court did not abuse its discretion by

allowing detective to testify as expert; (3) Appellant objected to admission of

photograph of his son hooked up to medical apparatus based on general

relevancy and undue prejudice grounds; photograph at issue is single

depiction of how Appellant’s son appeared in hospital; given facts and

circumstances of case, Commonwealth’s evidence, defense theories, and

elements of crimes charged, photograph was relevant; photo demonstrated

testimony and other exhibits which described Victim’s medical condition,

evaluation and treatment; photograph was not unduly inflammatory, and

court properly overruled Appellant’s objection as probative value outweighed

any prejudicial effect; (4) Appellant’s claim in concise statement stating only

that court “abused its discretion at sentencing” is grossly insufficient to

preserve sentencing challenge; moreover, court considered pre-sentence

investigation (“PSI”) report and all evidence prior to imposing sentence; court

explained on record reasons for imposing aggravated range sentence; court

imposed sentence consistent with protection of public, gravity of offense in

relation to its impact on community, and rehabilitative needs of Appellant;


                                     -5-
J-S36043-18


court had benefit of PSI report, so court was aware of all relevant mitigating

and aggravating factors;5 court did not abuse sentencing discretion6).

Accordingly, we affirm on the basis of the trial court’s opinions.

       Judgment of sentence affirmed.

       Judge Dubow joins this memorandum.

       Judge Kunselman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/18




____________________________________________


5 We depart only from the trial court’s statement that the failure to consider
mitigating factors when imposing an aggravated sentence does not raise a
substantial question. See Commonwealth v. Felmlee, 828 A.2d 1105
(Pa.Super. 2003) (en banc) (holding substantial question exists where
appellant alleges sentencing court imposed sentence in aggravated range
without adequately considering mitigating factors).

6 Appellant also complains the court essentially “double counted” factors that
are elements of the crimes at issue to aggravate Appellant’s sentence.
Nevertheless, Appellant did not preserve this claim at sentencing or in his
post-sentence motion, so it is waived. See Commonwealth v. Griffin, 65
A.3d 932 (Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013)
(explaining objections to discretionary aspects of sentence are waived if they
are not raised at sentencing hearing or in timely filed post-sentence motion).

                                           -6-
                                          :,_vru�r U�IIYJI I� dflU \,;:11cu1u11y HI idlll VIJIIIU)U:; l""lt::-' 1 li::11 IVIUllUfl.�UI


                                                                                    Circulated 09/06/2018 03:03 PM




           COURT OF COMMON PLEAS OF MONROE COUNTY
                 FORTY·THIRD JUDICIAL DISTRICT
               COMMONWEALTH OF PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIA

             v.                                                 NO. 859 CR 2015

Juan Ramel Vazquez,

             Defendant

                                        Order

      AND NOW, this      zo"   day of October, 2015, after hearings on Defendant's

omnibus pre-trial motion and upon consideration of the briefs and arguments of
                       --- ··-------····--··-------·---------------------1

counsel, the record and file in this case, and the applicable law, the Court FINDS,

CONCLUDES, and ORDERS as follows:

      1.     Defendant's motion to suppress all statements he made to the police

during his interview at a hotel is DENIED. Defendant contends that the circumstances

of his interview with the police amounted to a custodial interrogation and that the

failure of police to read him Miranda Warnings and obtain a written Miranda waiver

should result in. suppression of his statements. However, Detective Lenning credibly

testified, and the recording of the interview submitted as Commonwealth's Exhibit 1

confirmed, that Defendant was expressly informed that he was not under arrest and

that he was free to leave at any time. The interview was voluntary. It took place in a

hotel conference room. Following the conclusion of the interview Defendant left the

room and was not detained. Defendant was neither threatened nor coerced and the

interview was not long. Defendant was not arrested until seven days after the

interview. Under these circumstances, and considering the other evidence of record,
                                              �_UIUl:jl UtjllYll l\:j i:UIU \,;lldl1Llll\:j Ill t";:11 L urr1rr1uu:, t"ltj- I lldl lVIVllVll.fJUI




 we find that the interview did not rise to the level of custodial interrogation and the

 police were not required to give Defendant Miranda warnings.

        2.     Defendant's request for habeas corpus relief is DENIED. At the

 preliminary hearing the Commonwealth introduced sufficient evidence to establish a

 prima facie case against Defendant regarding the charges filed.

        3.     Defendant's motion for modification and reduction of bail is DENIED.

        4.     Defendant's motion for a budget to engage an expert witness is

 GRANTED. A budget of ONE THOUSAND FIVE HUNDRED ($1,500) DOLLARS for a

 medical or child abuse expert is APPROVED. A copy of bills submitted for payment by

---1he---expert-in---this-matter-shall-be-made-available-to-the-6eurt-Admit11stl'at-0r-aAe-sAall----

 be charged to the respective line item budget. In the event that any investigative task

 shall incur a cost or expense in excess of the initial approved fee, Defense Counsel

 shall file a petition and show cause why such additional investigation is warranted.

 Defense Counsel must confer with the Trial Judge and said conference shall be ex

 parte. Failure to confer with the Trial Judge as indicated above may cause this Court

 to disqualify said cost of expense for payment.

        5.     The above case is placed on the December 1, 2015 Trial Term.

               Defense counsel and the assistant district attorney assigned to this case

 shall attend an in person meeting on the 18th day of November, 2015, at 12:30 o'clock

 p.m. in Courtroom No. 1 for the purpose of discussing any and all outstanding issues

 in this matter, including, but not limited to, settlement negotiations. Defendant shall be

 present in the Monroe County Courthouse and available for conference with Defense

 counsel at the time of counsel's in person meeting.


                                              2
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             The Defendant along with defense counsel and the assistant district

attorney assigned to this case shall appear for a final status conference on November

25, 2015, at 12:30 p.m. in Courtroom No. 1 of the Monroe County Courthouse,

Stroudsburg, Pennsylvania. This is a mandatory appearance.

              A guilty plea tendered after the final status conference, must be to the

Criminal Information.

             Jury selection in the above captioned matter shall commence on

December 1, 2015, at 8:30 a.m. In Courtroom No. 3 of the Monroe County

Courthouse, Stroudsburg, Pennsylvania, and counsel and Defendant are attached

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                                                                                                Circulated 09/06/2018 03:03 PM




                COURT OF COMMON PLEAS OF MONROE COUNTY
                      FORTY�THIRD JUDICIAL DISTRICT
                    COMMONWEALTH OF PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIA :
                                                                   NO. 859 CRIMINAL 2015
                  v.
                                                                   APPEAL DOCKET NO.
JUAN VASQUEZ,                                                          2314 EDA 2017

                  Defendant




         OPINION IN SUPPORT OF ORDER PURSUANT TO Pa. R.A.P. 1925(a)

         Following the denial of his post-sentence motion for reconsideration of

sentence, Defendant filed an appeal from the judgment of sentence entered in this

case. After the appeal was filed, we directed Defendant to file a concise statement of

errors complained of on appeal pursuant to Pa.RAP. 1925(b). Defendant complied,

and we now file this opinion in accordance with Pa.RAP. 1925(a).1

                         FACTUAL AND PROCEDURAL BACKGROUND

         Defendant was arrested and charged with Aggravated Assault, Simple Assault,

Recklessly Endangering Another Person (REAP), and Endangering the Welfare of a

Child (EWOC), stemming from an incident in which Defendant shook and seriously

and permanently injured his infant son. It was the second time his son had sustained

similar injuries.




I
 This opinion is being filed long after its due date. Frankly, the matter slipped through the cracks. I apologize for
any inconvenience or delay caused by the late filing.

                                                          1
                                               I_VtJIIIIUll 111 vUtJtJUII UJ v1u,:,1 tJUf!;Uc:Ult lU l"'i:l.r..M.r-. 1::,L:J\i:IJ.tJU




      Defendant filed an Omnibus Pre-trial Motion on August 12, 2015 in which he

sought, among other things, suppression of statements he made to police officers. By

order dated October 20, 20151 the suppression motion was denied.

      Trial commenced on March 13, 2017 and ended on March 171 2017. The

Commonwealth called eight witnesses, including the paramedic who transported the

unresponsive child to the hospital and Debra Esernio-Jenssen, M.D., a board certified

pediatrician and child abuse pediatrician, and submitted 49 exhibits, including

substantial medical records regarding the child's injuries, treatment, and progress.

Defendant called four witnesses, including two character witnesses, and took the

stand himself. At the conclusion of the trial, the jury convicted Defendant of all

charges.

      After the verdict was accepted, we entered an order scheduling a sentencing

hearing and directing our Probation Department to prepare a Pre-Sentence

Investigation ("PSI") report. The report was made available to counsel for both parties

prior to sentencing.

       On June 12, 2017, the sentencing hearing was convened, as scheduled. At the

conclusion of the hearing, Defendant was sentenced to an aggregate period of

incarceration of not less than 88 months nor more than 228 months, a sentence in the

aggravated range.

       Defendant did not contest any of the information contained in the PSI report.

Before sentence was imposed, Defendant's attorney addressed the Court. He did not

request a specific length of sentence, but urged the Court to take into consideration

Defendant's lack of a prior criminal record, history of gainful employment, and family



                                           2
                                               I_UJJIIIIUII Ill '"'UJJfJUll UI UJUtH JJUll>Udlll lU rd.r\,M.r.1::r..:o\d),fJU




circumstances and support - matters which he considered to be mitigating factors.

(N.T., 06/12/2017, pp. 3-4). In addition, Defendant's parents and wife, the mother of

the child-victim, spoke briefly on Defendant's behalf. Defendant elected not to speak

on his own behalf.

       The assistant district attorney also addressed the Court. She asked that we

consider sentencing Defendant to 108 to 276 months, pointing out that the victim is the

Defendant's own son, the injuries the child sustained are lasting injuries, and the

reason behind Defendant shaking his son was that the child would not "burp." (N.T.                                      1




06/12/2017, p. 11).

       Before announcing the sentence, we explained our reasoning and informed

Defendant of the facts, information, and documents on. which the sentence is based.

Specifically, we advised Defendant that the sentence was based on the record and file

in this case, the evidence presented at trial, the comprehensive PSI report that had

been prepared by our Probation Offlce, the statements made by Defendant's attorney,

his wife and parents, his attorney, and the assistant district attorney during the

sentencing hearing, and the applicable sentencing laws, rules, and guidelines. We

then stated our reasons on the record. (N.T., 06/12/2017, pp. 16-21; PSI Report).

       Subsequently, Defendant filed a post-sentence motion. The motion raised only

sentencing issues. Specifically, Defendant challenged the discretionary aspects of

sentencing, including the length of his sentence which he felt was excessive, and

questioned the amount of restitution. (Defendant's Motion to Reconsider Sentence,

filed June 22, 2017).




                                           3
                                                  ,_vp1111v11 Ill ,:,u1,1pu1L UI VIIJO:,f j.lUISUi:1111 \U t"cl,l"<.l'\.t".1:1..:0\cl).fJIJ




       On June 29, 2017, we issued an order denying Defendant's motion. Defendant

then filed this appeal.

                                      DISCUSSION

       On appeal, Defendant assigns five errors, the last two of which we have

renumbered to correspond to the order in which we will address them:

              a.      Whether the verdict was against the weight and/or
              sufficiency of the evidence presented at trial.

              b.      Whether the Court erred in denying Defendant's pre-
              trial Motion to Suppress his statement.

              c.    Whether the Court erred in allowing testimony at trial
              of a Commonwealth's expert witness, despite the failure of
              the Commonwealth to provide an expert report for the
              witness.

              d.      Whether the Court erred in allowing into evidence at
              trial an overly prejudicial and inflammatory photograph of
              the victim in this matter.

              e.    Whether     the   Court       abused             its       discretion               at
              sentencing.

(Defendant's Rule 1925(b) Statement, filed August 15, 2017, ,J4 (a)- (e)).

       1.     Defendant Waived his Weight and Sufficiency of the Evidence Claims. In
              the Alternative, the Claims Lack Merit

       In his first assignment of error, Defendant asserts boilerplate sufficiency and

weight of the evidence claims. Neither claim holds water.

              a.      Sufficiency of the Evidence

       It is well-settled that boilerplate assignments of error will not preserve a

challenge to the sufficiency of the evidence. As our Superior Court recently stated:

               Pennsylvania Rule of Appellate Procedure 1925(b)
               provides, inter alia, "Issues not included in the Statement
               and/or not raised in accordance with the provisions of this

                                              4
                                                             I_UfJIIIIUII Ill .;)Ul)fJVIL VI UIU\:1 fJUlt;Ui:IIIL lU r-c:1.r../"\.r-.1:,�0\d/,fJU




                 paragraph (b)(4) are waived." Pa.R.A.P.1925(b)(4)(vii). In
                 Commonwealth v. Garland, 63 A.3d 339 (Pa. Super. 2013),
                 this Court found the appellant had waived his sufficiency of
                 the evidence claim where his 1925(b) statement simply
                 averred the evidence was legally insufficient to support the
                 convictions and in doing so reasoned:

                        In order to preserve a challenge to the sufficiency
                        of the evidence on appeal, an appellant's Rule
                        1925(b) statement must state with specificity the
                        element or elements upon which the appellant
                        alleges that the evidence was insufficient. "Such
                        specificity is of particular importance in cases
                        where, as here, the appellant was convicted of
                        multiple crimes each of which contains numerous
                        elements that the Commonwealth must prove
                        beyond a reasonable doubt." Here, as is evident,
                        [the a]ppellant ... failed to specify which elements
                        he was challenging in his -Rule 1925(b)
                        statement.. .. Thus, we find [his] sufficiency claim
                        waived on this basis.

                 Id. at 344 (citations omitted).

Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016) (footnote omitted).

        In this case, Defendant was convicted of four different crimes and sentenced on

three of them. He did not specify the element or elements of the crimes he is

challenging. Instead, he averred simply that "the verdict was against the weight and/or

sufficiency of the evidence presented at trial." This conclusory boilerplate is grossly

inadequate to preserve a challenge to the sufficiency of the evidence. Defendant

waived his sufficiency claim. Stiles, Garland.

         In the alternative, if Defendant is found to have preserved his sufficiency

challenge, his claim lacks merit. The evidence amply supports the verdict.2



2
  As indicated in the text, there was ample evidence to sustain the verdict as to all charges. However, since waiver
is clear, this section is being presented in the alternative. Accordingly, only a summary of the facts and law which
demonstrate that the evidence was sufficient to support the verdict as to all four charges will be presented.

                                                         5
                                                  ,_VfJIIIIUll Ill .;,UfJfJUll UI VIUl:ll f.lUl::iUIOIII IU ri.."·"·r.1::i,01i.J.f.lU




       The standard of review upon a challenge to the sufficiency of the evidence is

well settled:

                       The standard we apply in reviewing the sufficiency
                of the evidence is whether viewing all the evidence
                admitted at trial in 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 [this] 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 the weight of the evidence
                produced, is free to believe all, part or none of the
                evidence.

Commonwealth v. Distefano, 782 A.2d 574, 582 (Pa. Super. 2001 )(citations and

quotation marks omitted).

       The existence of inconsistencies in the testimony of a witness does not alone

render evidence insufficient to support a verdict. Com. v. Lyons, 833 A.2d 245, 258

(Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2004). It is the province of the

trier of fact to pass upon the er.edibility of witnesses and the weight to be accorded the

evidence produced. In      re   T.B., 11 A.3d 500, 504 (Pa. Super 2010); Com.                                  v. A. WC.,
951 A.2d 1174 (Pa. Super. 2008). While passing upon the credibility of witnesses, the

trier of fact is free to believe all, part, or none of the evidence.                           Commonwealth v.

Dupre, 866 A.2d 1089 (Pa. Super. 2005).


                                              6
                                                          1_vµ1111u11 111 .::>UIJIJUll UJ VJUt:U IJUl:IUIHll lU n:1.1"\ •rc.r', 1::,�;;>\cl).IJUI




                  In this easel Defendant was found guilty of Aggravated Assault, Simple Assault,

          REAP, and EWOC.

                  A person commits Aggravated Assault when 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                                        11




          Pa.C.S.A. § 2702. "Serious bodily injury is' "[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. § 2301.

                  A person commits the separate crime of Simple Assault when he "attempts to

___, __c_aus_e_o.Lintentionally,-knowingly-or- recklessly Gauses-booi1y-iAjury-to-another-f!--1-

          Pa.C.S.A. § 2701. "Bodily injury" is "impairment of physical condition or substantial

          pam."

                  A person commits REAP when he "engages in conduct which places or may

          place another person in danger of death or serious bodily injury." 18 Pa.C.S.A § 2705.

                  "A parent) guardian or other person supervising the welfare of a child under 18

          years of age, or a person that employs or supervises such a person, commits [EWOC]

          if he knowingly endangers the welfare of the child by violating a duty of care,

          protection or support." 18 Pa.C.S.A. § 4304.

                  With respect to these crimes, the trier of fact may find the requisite criminal

          intent, knowledge, or recklessness from circumstantial evidence. See Comm v. Moore,

          395 A.2d 1328 (Pa. Super. 1978).

                  Viewed in light of the applicable standards, the evidence presented at trial in

          this case demonstrated that Defendant shook his three-month old son so violently that


                                                      7
                                                                       1_vv11uu11 111 .:>uµt,.1u1< v1 v1ue1 t,.1u1�uc11111v rc1.r\.r..r.   "'""l"l·fJ\J




                  the child lost consciousness, became unresponsive, and sustained severe injuries,

                  including traumatic brain injury and bleeding, that were initially life-threatening and are

                  permanent in nature. As a result, the child is now severely and globally

                  developmentally delayed and, while he has made some progress, will unfortunately

                  ·never be normal. At the time of the incident, Defendant was alone with his son and

                  was responsible for his care. Defendant shook his son with sufficient force to cause

                  serious injuries because the child was crying for a long period of time because he

                  could not burp.

                              In slightly more expanded terms, the child became unconscious as a result of

-------1i---=be=n=g                 n �
                i --'s=h..,_, a=k=e�- b fendant.--Wher1---emergenGy-respendeFs-arr-ived-on-scene;-
                          �




                   Defendant's son was non-responsive, was in cardiac and respiratory arrest, and

                  suffered hypoxia and hypocarbia. The child had a Glasgow Coma Score of three out of

                  a possible fifteen, the lowest score possible. (N.T., 03/13/2017, pp. 61-63 and Exhibit

                   1 ).

                              Dr. Esernio-Jenssen testified at length about the injuries the child sustained, his

                   hospitalization, his medical condition from the date of injury through the present, and

                   the effect the injuries have had and will continue to have on the child. She also

                   reviewed and explained voluminous medical records regarding the substantial

                   treatment the child has received since his release from the hospital, starting with his

                   long stay in an inpatient rehabilitation facility and continuing with his extensive

                   outpatient assessments and treatments. In broad overview, the child was hospitalized

                   for an extended period. Examination and diagnostic testing revealed that, in the

                   incident that gave rise to these charges, the child sustained numerous injuries,



                                                                   8
                                                 I_UfJIIIIVII Ill �UfJfJVIL VI UIUt::I fJUl:iUcHII tlJ r"d,r'\,/'"\,I'", I :,.:O\<'/·fJU




including acute retinal hemorrhages and subdural hemorrhages, seizures, and loss of

grey-white matter differentiation. The testing and examinations also revealed

subacute, or older, hemorrhages. The acute injuries were initially life threatening; the

effects are unquestionably permanent.

       Dr. Esernio-Jenssen also testified extensively about acute brain injury, shaken

baby syndrome, the effects of brain bleeds, and other matters relevant to the injuries

that Defendant's son suffered and how he received them. The bottom line, Dr.

Esernio-Jenssen testified, is that Defendant's son sustained severe traumatic brain

injury that is permanent in nature and that has had and will continue to have severe



normal and will always be neurologically devastated from the abusive head trauma

sustained.

              From all of the review of the current records ... it supports
              unfortunately that [the child's] brain trauma caused
              significant adverse effects for him. He is not normal. He
              may make some small strides in his development but he
              will never be normal.
                      A typical two-year-old can run, can jump. A typical
              two-year-old can feed themselves. They're speaking in two
              to four word phrases. They can scribble. They can pick out
              objects. They can put toys - a circle into a circle hole, a
              square into a square hole. They can do a puzzle. They
              comprehend. They can follow two-step commands ....
                      [The child] can't do - [the child] can't do any of that.
              And ... his deficits and his impairments are only going to
              become more and more evident as he ages ....
                      [The child] will never be normal. I'm hoping he'll
              continue to make some developmental improvement but he
              will always be neurologically devastated from his abusive
              head trauma.

(N. T., 3/15/2017, pp. 200-201 ). Dr. Esernio-Jenssen also explained that Defendant's

son suffers and will continue to suffer from a "small head." Specifically, after significant

                                             9
                                                 I_UjJIIIIUII 111 ,:JUfJfJUll UI UIUt:I fJUl:,Ul:Oll lU l"'i:l,r\,M.I"'. l::lt:O\ct/.fJU




brain trauma, the brain doesn't develop anymore and stops growing, whereas the rest

of the body continues to grow at a normal rate of speed. Finally, Dr. Esernio-Jenssen

testified that the child's injuries were caused by trauma, a kind that required adult

force, and noted that nether the history given by the family nor medical testing and

evaluation supported any type of accidental trauma. (N.T., 03/15/2017, pp. 136).

      Defendant did not contest the fact that he was alone with and the caretaker for

his son when the child was injured. However, he denied any intentional or reckless

conduct. Instead, Defendant claimed that the child snapped his head back while

choking, causing the injuries in question. (N.T., 03/16/2017, pp. 195-200). Dr. Esernio-



could not have snapped his head back-and-forth in the manner described by

Defendant, and would not have the neck strength to cause the extent of injuries

suffered. (N.T., 3/15/2017, pp. 199-200).

       Defense counsel vigorously cross-examined the Commonwealth's witnesses,

including Dr. Eseernio-Jenssen. He also called several defense witnesses, including

two character witnesses, Defendant's wife, who is the Mother of the child victim, and

the child's former pediatrician. A theory that prior medical conditions were responsible

for the injuries and the child's condition was floated. In addition, Defendant testified on

his own behalf. However, the jury obviously credited the Commonwealth's evidence

and was not persuaded by Defendant's version of how his son was injured or the

character witnesses.

       Even the broad summary of the trial evidence recited above demonstrates that

the evidence presented by the Commonwealth, when read in light of the applicable



                                            10
                                                         I_UJJIIIIUII   111 �UJJJJUIL UI UIUt,I   JJUl:SUi:tlll IU r-i:t.r"../"\.t". ltlLO\i:tJ.JJU




standards, was sufficient to establish the elements of the crimes of which Defendant

was convicted. The jury heard and observed the witnesses, saw the exhibits, and by

their verdict demonstrated that they believed the Commonwealth's witnesses and

evidence. There is no basis in fact or in law to disturb the jury's findings and verdict.



              b.       we;ght of the Evidence

       A challenge to the weight of the evidence, like a challenge to the sufficiency of

the evidence, must be properly raised and preserved. In this regard, Pa. R.Crim.P.

607, entitled "Challenges to the Weight of the Evidence," provides, in pertinent part:

                                                                  ht.o.. _.f__..ht L.l e...__
              (A) A claim that the verdict was agains1.tb.e_weig1.....                                                                                1----

              evidence shall be raised with the trial judge in a motion for
              a new trial:

              (1) orally, on the record, at any time before sentencing;

              (2) by written motion at any time before sentencing: or

              (3) in a post-sentence motion.

Pa. R.Crim.P. 607(A). A weight claim that is not properly raised in the trial court in

accordance with Rule 607 before an appeal is filed is waived. See Commonwealth                                                              v.

Kinney, 157 A.3d. 968 (Pa. Super. 2017); Commonwealth v. Thompson, 93 A.3d 478

(Pa. Super. 2014); Commonwealth v Holley, 945 A.2d 241 (Pa. Super. 2008), app.

den., 959 A.2d 928 (Pa. 2009).

       Here, Defendant did not raise his weight claim in or before his post sentence

motion. He raised it, or attempted to raise it, for the first time in his Rule 1025(b)

statement. In addition, the weight claim, like the sufficiency claim, is conclusory

boilerplate that does not even attempt to specify how the verdict was against the

weight of the evidence. For both reasons, the weight claim is waived.
                                                    11
                                                                                 I_UIJIIIIVII HI .::>UIJIJVll UI UIUtil IJUl:IU�III LU   l"'�·"·"·l"', l'1.<0\<l),tJU




                           Alternatively, the weight claim is bootless.3 A challenge to the weight of the

                  evidence, in contrast to a challenge to the sufficiency 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 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,
-----'------fl-------rtairl_facts-ar-e---So-clear:IY-Of-Qreater-Weigt:lt-that-te--igAere,-----·1-----
                    them or to give them equal weight with all the facts is to
                     deny justice.

                   Widmer, 744 A.2d at 751-752 (internal citations, footnote, and quotation marks

                   omitted).        Accordingly, trial courts possess only narrow authority to reverse a jury

                   verdict on a weight of the evidence challenge.

                                    The general rule in this Commonwealth is that a weight of
                                    the evidence claim is primarily addressed to the discretion
                                    of the judge who actually presided at trial. There is, of
                                    course, some tension between the power of trial courts to
                                    overturn jury verdicts premised upon weight claims, and the
                                    bedrock principle that questions of credibility are
                                    exclusively for the fact-finder. Accordingly, the authority for
                                    the trial judge to upset a verdict premised upon a weight
                                    claim is narrowly circumscribed. A trial judge cannot grant
                                    a new trial because of a mere conflict in testimony or
                                    because the trial judge on the same facts would have
                                    arrived at a different conclusion. Instead, a new trial should
                                    be granted only in truly extraordinary circumstances, i.e.,
                                    when the jury's verdict is so contrary to the evidence as to
                                    shock one's sense of justice and the award of a new trial is


                   3
                    Since waiver is clear, this section is being presented in the alternative. Accordingly, only a summary of the facts
                   and law which demonstrate that Defendant's weight claim lacks merit will be presented.

                                                                            12
                                                                ,_v1,11111u11 111 .:>UIJl)Ull UI VIUt:I IJUl::iUi:llll IU rcj .rv, M.r. '""O\i:1).1,JUI




                             imperative so that right may be given another opportunity to
                             prevail.

               Armbruster v. Horowitz, 813 A.2d 698, 702-703 (Pa. 2002) (internal citations and

               quotation marks omitted; emphasis in original).

                       The appellate standard of review on a claim that the verdict or adjudication was

               against the weight of the evidence:

                            is very narrow. The determination of whether to grant a
                            new trial because the verdict is against the weight of the
                            evidence rests within the discretion of the trial court, and
                            we will not disturb that decision absent an abuse of
                            discretion. Where issues of credibility and weight of the
                            evidence are concerned, it is not the function of the
                            appellate court to substitute its judgment based on a cold
______
         11,               �re_c-rcLfoLthat..of-the-tr:ial-Gour-t-,-lhe-wei�ht--te-be-aeeorded-----,
                                  o
                            conflicting evidence is exclusively for the fact finder, whose
                            findings will not be disturbed on appeal if they are
                            supported by the record. A claim that the evidence
                            presented at trial was contradictory and unable to support
                            the verdict requires the grant of a new trial only when the
                            verdict is so contrary to the evidence as to shock one's
                            sense of justice.

               Commonwealth v. Lyons, supra at 259 (quoting Commonwealth v. Griffin, 453 Pa.

               Super. 657, 684 A:2d 589, 596 (1996) (internal citations omitted)).

                   ·   In this case, the evidence presented by the Commonwealth is summarized

               above. As noted, the evidence was unquestionably sufficient to support the verdict.

                       As to the weight of the evidence, at trial Defendant disputed the prosecution's

               evidence and cross-examined all of the Commonwealth's witnesses, including and

               especially Dr. Esernio-Jenssen. In addition, Defendant testified and provided an

               alternate theory as to how his son's injuries occurred. He also called character

               witnesses, the mother of his son, and the child's former pediatrician. The jury judged

               the credibility of all witnesses and weighed the evidence.                           By its verdict, the jury

                                                           13
                                                                      1_vp1111u11 111.:>UfJfJUIL UI VIUt:01 fJUl:;Uc:HIL LU r-d.l"\,f'\,l", 1::1.<:0\d/,fJUI




                     obviously believed the Commonwealth's evidence and rejected the evidence and

                     arguments presented by Defendant, including his alternate theory of injury and his

                     attack on the credibility of Dr. Esernio-Jenssen. Doing so was squarely within the jury's

                     province. Under the facts and circumstances of this case, the verdict does not shock

                     the conscience and there is not even a hint that justice has been denied.

                              Simply, Defendant's weight claim, like his sufficiency challenge, does not hold

                     water.

                              2.    The Denial of Defendant's Suppression Motion Was Proper.

                              In his second assignment of error, Defendant generally alleges that we erred in

------··-=e
          d =nc.i , ying his motion to supp[e_s_s .. .Ihia.claim.also.lacks.merit.                                                                         1



                              Our findings and reasons for denying the motion to suppress are stated in the

                     order we issued on October 20, 2015. We incorporate that order into this opinion by

                     reference. To what is stated in the order, we add only the following:

                              Our determination that Defendant was not subject to a custodial interrogation

                     was based, in part, on our finding that the police detective credibly testified that the

                     subject interview was voluntary and that Defendant was informed that he was not

                     under arrest and was free to leave at any time. It is within the suppression court's sole

                     province as factfinder to pass on the credibility of witnesses and the weight to be given

                     to their testimony. Commonwealth v. Griffin, 785 A.2d 501, 505 (Pa. Super. 2001 ). The

                     suppression court is free to believe all, some or none of the evidence presented at the

                     suppression hearing. Id.; Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.

                     2003). On appeal in this case, we reaffirm our finding that the detective was credible




                                                                 14
                                                               I_UIJIIIIVII Ill �UµiJUIL UI uru�, put suaru LU r-c<.l'\,/"\.r-. r�<:O\dJ.µu,




              and note that his testimony was supported by the recording of the interview that was

              submitted as an exhibit at the suppression hearing.

                     For the reasons stated in our October 29, 2015 order, as amplified herein,

              Defendant's general challenge to the suppression ruling lacks merit.

                     3.     Expert Testimony Was Properly Allowed

                     In his third assignment of error, Defendant contends that we erred in allowing

              the Commonwealth to call a county detective as an expert to testify about text

              messages and information extracted from the cell phone of Defendant's wife on the

              basis that the detective did not prepare an expert report. This claim also lacks merit.

______,.,__          eaJ�.Cr:imJ�-�513-provides-trie---Commonwealth---shall-f.;)ermit-the-9efeREiaAt.!s--

              attorney to inspect and copy any results or reports of scientific tests, export opinions,

              and written or recorded reports with the possession or control of the attorney for the

              Commonwealth. Pa.R.Crim.P. 573 (B)(1)(e). The rule goes on to state under

              "Discretionary" disclosure that if an expert whom the attorney for the Commonwealth

              intends to call in any proceeding has not prepared a report of examination the Court,

              upon motion, may order the expert to prepare, and the attorney for the Commonwealth

              disclose, a report stating the subject matter on which the expert will testify.

              Pa.R.Crim.P. 573(B)(2)(b). Evidentiary rulings "are committed to the sound discretion

              of the trial court and will not be disturbed on appeal absent a clear abuse of

              discretion." Commonwealth v. Cohen, 605 A.2d 1212, 1218 (Pa. 1992). In addition, the

              admissibility of expert testimony is also within the sound discretion of the trial court.

              Commonwealth v. Petrovich, 648 A.2d 771, 772 (Pa. 1994); Com. v. Blasioli, 685 A.2d

              151, 166 (Pa. Super.1996), affd, 713A.2d 1117 (Pa.1998)



                                                          15
                                                                      I_VIJIIIIUII Ill .:IUfJf.lUII UI VfUt,I IJUl�Ui:UII IU r'cl.",f"\.f"", 1::1..:0\i:l).fJUI




                              In this case, the detective conducted a forensic analysis of the cell phone and

                    extracted information. The extraction report and related data were provided to counsel

                    for defendant during discovery. However, the expert did not prepare an expert report.

                    As a result, there was no report that the Commonwealth was obligated to provide.

                    (See N.T., 3/13/2017, pp. 93-97, 99-102, 108-09, 138).

                              Through discovery, Defendant was made aware that Commonwealth intended

                    to call this expert. Nonetheless, Defendant did not file a motion asking us to order that

                     a report be prepared. (Id.). Given the lack of such a motion and the fact that the

                     complete cell phone extraction report was provided to counsel for Defendant in

------it--=i= s �,'"'_we_dis.ce.rrLao_ecror:.in ..our:.permittingthe-de-teGt-ive-to-testify----as-an-expert:--··
            d =

                    This is especially true in this case since counsel for defendant was able to cross

                    examine the detective, we ensured that the detective was available for the remainder

                     of the trial in case counsel for Defendant wanted to recall him after further review of

                     records, Defendant has not alleged or demonstrated any prejudice resulting from the

                     lack of a report, and there was no violation of discovery or other rules of procedure or

                     court.

                              4.    Admission of the Challenged Photograph Was Proper

                              In his fourth assignment of error, Defendant maintains that we erred by

                     admitting a prejudicial and inflammatory photograph of his son into evidence.

                     Defendant does not provide an exhibit number or otherwise identify the specific

                     photograph to which his claim of error refers. Based on the objections made and

                     discussions held during trial, we believe and assume that this assignment of error

                     refers to Commonwealth Exhibit 8, which includes a photograph of Defendant's son, in



                                                                 16
                                                                 1_u1,11111v11 Ill <:>UfJIJVH VI UIUt:::r l,IUl�Ucllll LV r"tl,l'\.l'\,r", f�L;J\d/.lJU




              the hospital, hooked up to various medical apparatus and leads for monitors. The

              evidentiary challenge is baseless.

                    The admissibility of evidence is at the discretion of the trial court and only a

              showing of an abuse of that discretion, and resulting prejudice, constitutes reversible

              error. Commonwealth v. Malloy, 856 A.2d 767, 776 (Pa. 2004) (citing Commonwealth

              v. Freeman, 827 A.2d 385, 405 (Pa. 2003)). Evidence is relevant if it tends "to make
              the existence of any fact that is of consequence to the determination of the action

              more probable or less probable than it would be without the evidence." Pa.RE. 401.

              However, even if relevant, "evidence may be excluded if its probative value is

______    _o=u�tw=e�gi hed bµbadangecoLur-1fair-pr.eJud-ice.-GoAf1.1sioA--Of-tt-le---isst1es,er-mis·leadiflg- - · · ---
         11



              the jury, or by considerations of undue delay, waste of time, or needless presentation

              of cumulative evidence." Pa.RE. 403.

                     A determination of whether photographic evidence alleged to be inflammatory is

              admissible involves a two-step analysis. "First, the court must decide whether a

              photograph is inflammatory by its very nature. If the photograph is deemed

              inflammatory, the court must determine whether the essential evidentiary value of the

              photograph outweighs the likelihood that the photograph will improperly inflame the

              minds and passions of the jury." Malloy, 856 A.2d at 776 (quoting Commonwealth                                                      v.
              Baez, 554 Pa. 66, 720 A.2d 711, 726 (1998)); Freeman, 827 A.2d at 405 (images of

              victims' bodies with partially or totally obscured wounds were not "especially

              inflammatory" and were admissible to prove specific intent to kill). The availability of

              alternate testimonial evidence does not preclude the admission of allegedly




                                                            17
                                                               1_uµ1111v11111,;,uµµv1L UI UIUl:I µUl:jUl:IIIL tV   '""·"·l'\.r-, 1:,"-'\i:IJ.µU




             inflammatory evidence. Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003).

             Commonwealth v. Sanchez, 36 A.3d 24, 48-49 (Pa. 2011).

                   At trial, the Commonwealth sought to introduce the challenged photo, along

             with several other photographs, as part of its Exhibit 8. Counsel for defendant objected

             only to the photo which, as indicated, depicted Defendant's son hooked up to medical

             apparatus in the hospital. Specifically, counsel lodged a general relevancy objection

             and an equally general objection that the photo was unduly prejudicial. We overruled

             the objection and admitted the photograph, indicating that it was only one photo and

             that the photograph tracked with the testimony we had heard as well as the anticipated

            a prnffe.ce.cLtestimooy_of-Dh-Esemi0-JensseA-;-(-N-:--T--;,3�-3f-201--7-;-pp-:-1i4-8-1-51i:-We- ---
         __.n�d�,
______ 11_


             believe that the ruling was neither an error of law nor an abuse of discretion.

                    Even a cursory review of the photograph demonstrates that it is a single

             depiction of how Defendant's son appeared in the hospital. Given the facts and

             circumstances of this case, the evidence presented by the Commonwealth, the

             theories advanced by or on behalf of Defendant. and the elements of the crimes

             charged, the photograph was clearly relevant. In addition, the photo tracked with

             testimony and other exhibits which discussed the child's medical condition, evaluation,

             and treatment. Further, even a cursory glance demonstrates that the photo is not

             inflammatory. Our determination that the probative value of the photograph

             outweighed any prejudicial effect was not error

                    5.     The Sentence Imposed Was Proper Under the Facts and Circumstances
                                 and Defendant's Sentencing Challenge Lacks Merit

                    Finally, Defendant alleges that this Court "abused its discretion at sentencing."

             As written, this assignment of error is grossly insufficient to preserve a sentencing


                                                          18
                                                                    I_Uf,IIIIIUII Ill ,:)Uf,lf.lUIL UI VIUt:;I f.lUl:SUcllll lU t"cl.l"\.r\.t". 1::1,!;0\cl).f.lUI




                  challenge for appeal. However, based on his Post Sentence Motions, it appears

                  reasonable to conclude that Defendant intends to assert a challenge to the

                  discretionary aspect of his sentence by rekindling his contention that we abused our

                  discretion in imposing an aggravated range sentence and failing to properly apply what

                  Defendant believes are mitigating factors. If Defendant is deemed to have preserved

                  this issue, his sentencing challenge is bootless.

                         Sentencing is a matter within the sound discretion of the trial court. See

                  Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). In sentencing each particular

                  defendant, the sentencing court may select one or more options with regard to

______,,_��
          d t�e
            e =m�
                r n�
                   ing_tba.app.ropriate_sentence
                     i                           .. to.be imposed�Ibe-options-include-9uilt-without- -

                  further penalty, probation, partial confinement, or total confinement. Id.; 42 Pa.C.S. §

                  9721(a). The court must impose a sentence that is "consistent with the protection of

                  the public, the gravity of the offense as it relates to the impact on the life of the victim

                  and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S. §

                  9721(b). See Walls, 926 A.2d at 967-68; Commonwealth v. Dodge, 957 A.2d 1198,

                  1200 (Pa. Super. 2008) ("Dodge If'), appeal denied, 980 A.2d 605 (Pa. 2009).

                         ln general, a sentencing judge must consider pertinent facts and sentencing

                  factors and the force of the evidence and may not commit an error of law or inflict

                  punishment that exceeds statutory prescriptions. Commonwealth v. Youngkin, 427

                  A.2d 1356, 1369 (Pa. Super. 1981 ). In more specific terms, "[w]hen imposing a

                  sentence, a court is required to consider the particular circumstance of the offense and

                  the character of the defendant. ... In particular, the court should refer to defendant's

                  prior criminal record, his age, personal characteristics and his potential for



                                                               19
                                                       I_UfJIIIIUII 111.:0UIJfJUIL UI UIUt::I fJUl:SUcUll lU rc:1.1"\,l"\,r, 1,:,L:J\i:1).fJUI




                   Q.c,MNC\wQU m   iJ.                     \\.1 '2.. J 1 1 \ (Po. . �\J()er, 2.D\ o)
                                         mou�J q q 2 Pt· Lei
rehabilitation."        _                    .. (quoting Commonwealth v. Griffin, 804 A.2d 1,

10 (Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. den, 545 US

1148 (2005)).

       The court determines whether the sentence imposed should run consecutively

or concurrently with other sentences to which the defendant is subject. In this regard, it

is well-settled that the sentencing judge has discretion to impose a sentence

concurrently or consecutively to other sentences being imposed at the same time or to

sentences already imposed. See Commonwealth v. Mastromarino, 2 A.3d 581 (Pa.

Super. 2010) (and cases cited therein) and Commonwealth v. Marts, 889, A.2d 608

(Pa. Supe_L-2_QQ5.)_(.same).-See.a/so-42 Pa ... C..S.A. §9-7-2-1-{a).

       The court also determines whether aggravating circumstances exist.                                                              If

aggravating circumstances are present, "the court may impose an aggravated

sentence .... " 204 Pa. Code. § 303. 13(a). A sentencing judge "has wide discretion in

sentencing and can, on the appropriate record and for the appropriate reasons,

consider any legal factor in imposing a sentence in the aggravated range."

Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa. Super. 2005) (citation omitted).

See also Commonwealth v. Duffy, 491 A.2d 230, 233 (Pa. Super. 1985) (holding that a

sentencing judge may consider any legal factor in deciding whether a defendant

should be sentenced within the aggravated range).

       The sentencing judge must state his or her reasons for the sentence on the

record. 42 Pa.C.S.A. § 9721 (b). The judge may satisfy this requirement by stating or

demonstrating at time of sentencing that the judge has been informed of the reasons




                                                  20
                                                           I_UfJIIIIVII Ill .:>UfJfJVll VI UIUt:I fJUl::;Ualll ,v   ro.n. .r«, r.   1 :,LO\a/.fJU




           by the PSI report. Commonwealth v. Coss, 695 A.2d 831, 834 (Pa. Super. 1997); 42

           Pa.C.S.A. § 9721(b). When, as here, a PSI report exists, the law presumes that

                        the sentencing judge was aware of the relevant information
                        regarding the defendant's character and weighed those
                        considerations along with mitigating statutory factors. A
                        pre-sentence report constitutes the record and speaks for
                        itself. ... [Sentencing courts] are under no compulsion to
                        employ checklists or any extended or systematic definitions
                        of their punishment procedure. Having been fully informed
                        by the pre-sentence report, the sentencing court's
                        discretion should not be disturbed. This is particularly true
                        ... in those circumstances where it can be demonstrated
                        that the judge had any degree of awareness of the
                        sentencing considerations, and there we will presume also
                        that the weighing process took place in a meaningful
                        fashion. It would be foolish, indeed, to take the position
______ ,
      11
                         batJf_a_courUsJn_p.ossession-of-the-facts,jt-will-fail-te-appiy'-----t-
                        them to the case at hand.

           Commonwealth     v. Devers, 546 A.2d at 18. See also Moury, 992 A.2d at 171;

           Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006); Commonwealth v. Tirado,

           870 A.2d 362 (Pa. Super. 2005); Commonwealth v. Burns, 765 A.2d 1144, 1150-1151

           (Pa. Super. 2000). In this regard, a sentencing judge is not required, when giving the

           reasons for a particular sentence, to make a specific reference to the factors set forth

           in the Sentencing Code that were considered in deciding the sentence, but the record

           as a whole must reflect that the judge in fact considered the sentencing factors.

           Commonwealth    v.   Coulverson, 34 A.3d 135, 145-146 (Pa. Super. 2011).

                 When imposing a sentence within the guidelines that departs from the standard

           range, the sentencing judge must state on the record his or her reasons for the

           sentence in the aggravated or mitigated range. 204 Pa. Code § 303.13. See

           Commonwealth v. Garcia-Rivera, 983 A.2d 777 (Pa. Super. 2009); Commonwealth v.

           Hoover, 492 A.2d 443 (Pa. Super. 1985).


                                                      21
                                                             I_VjJIIIIUII Ill .:OUIJjJUll UI VIUt:1 jJUl::;Uc:1111 LU l"'d.".l"\.I"'. I :::I.C:OldJ.IJUI




                   While a sentencing judge may satisfy the requirement to state reasons for the

             sentence given in a variety of ways, the reasons must be articulated at the time

             sentence is imposed and may not be supplied later in an appeal opinion issued in

             accordance with Pa. R.A.P. 1925(a). See Commonwealth v. Giles, 449 A.2d 641 (Pa.

             Super. 1982) (and cases cited therein). Accordingly, the intent of a judge's given

             sentence is determined at sentencing, rather than after an appeal from the judgment of

            sentence has been taken. (Id.).

                   In sum, our sentencing laws establish a framework for sentencing. Within the

            established framework, trial courts have broad discretion in determining the range of

------, _Rermissible      confine_m_ent$_tb.at_be.s_t_ suits__the__ particular:_defendar:tt-ar:1d-tl'.le- --

            circumstances surrounding the event. See Commonwealth v. Moore, 617 A.2d 8, 12

            (Pa. Super. 1992).

                   The statutory and judicial standards of review are reflective of the type of

            discretion vested in sentencing courts. Statutorily, the Sentencing Code prescribes a

            slightly different standard of appellate review for sentences that are outside the

            guidelines as opposed to sentences that fall within guideline ranges. Sentences that

            fall within guideline ranges are subject the "clearly unreasonable" standard of 42 Pa.

            C.S.A. Section 9781(c)(2). while sentences that fall outside the guidelines are subject

            to the "unreasonable" standard of Section 9781 (c)(3). An "unreasonable" decision from

            the sentencing court would be one that is " 'irrational' or 'not guided by sound

            judgment.' " Walls, 926 A.2d at 963. See also Dodge II, 957 A.2d at 1200; 42 Pa.

            C.S.A. § 9781 (c)(2) and (3).




                                                        22
                                                                  I_UJJIIIIUII Ill �UJJf'UIL UI UIUt,1   pur suaru   tU r"d.r\,/"\,r", l:,L;J\dJ.JJU




                         Judicially, our Supreme Court has articulated the appellate standard of review

                  as follows:

              [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 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
------··-----�c��  o c�o�m�i
                     n       tantly_deler_entiaLstaadar:c.Lof_app_ellate_r_mliew..J,                                                                   ,
              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. Walls, 926 A.2d at 961 (internal citations, quotation marks, and

                  footnote omitted).

                         Challenges to the discretionary aspects of sentencing do not entitle a defendant

                  to review as of right. In order to establish that review is warranted, the appellant must

                  demonstrate that there is a substantial question that the sentence appealed from is not

                  appropriate under the Sentencing Code. A substantial question exists only when the

                  defendant 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 of the sentencing process. See Commonwealth v. Mouzon,

                  812 A.2d 617, 627-628 (Pa. 2002) {plurality); Commonwealth v. Crump, 995 A.2d

                  1280, 1282 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010); Moury, supra;



                                                             23
                                                                      I_VIJIIIIUll 111 �UIJIJUll UI VIUt::I IJUl:SUi:1111 LU l""i:U'l../"\.I'". 1:7&0\�J.IJUI




                  Commonwealth v. Sien», 752 A.2d 910 (Pa. Super. 2000). These issues must be

                  examined and determined on a case-by-case basis.                         Commonwealth                      v.    Marts, 889

                  A.2d 608, 613 (Pa. Super. 2005).

                           The Superior Court has repeatedly held that allegations the trial court failed to

                  consider particular circumstances or factors in an appellant's case do not raise a

                  substantial question as they go to the weight accorded to various sentencing factors.

                  Commonwealth       v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013); accord Commonwealth

                  v.   Cannon, 954 A.2d 1222, 1228-29 (Pa. Super. 2008). In addition, the Superior Court

                  has held that an argument that the trial court failed to consider certain mitigating

______,.,_f=a=c=o= r �
                 t s�   n �ov Lof a lessersentence__do_e_s_oo_Lp.resenL_a_substar:rtiaLquestion_
                      i _f=a                                                                                                                                    _

                  appropriate for review. Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super.

                  2011); accord Commonwealth         v.   Moury, 992 A.2d 162, 171 (Pa. Super. 2010). See

                  also Commonwealth       v.   Down;ng, 990 A.2d 788 (Pa. Super. 2010); Commonwealth                                                  v.
                  Matrioni, 923 A.2d 444 (Pa. Super. 2007); Commonwealth                         v.    Pass, 914 A.2d 442 (Pa.

                  Super. 2006).

                           Additionally, it is now well-settled that the imposition of consecutive, rather than

                  concurrent, sentences generally does not raise a substantial question. Such a claim

                  may raise a substantial question in only the most extreme circumstances, such as

                  where the aggregate sentence is unduly harsh and prima facie appears excessive

                  considering the criminal conduct that occurred in the case, the nature of the crimes,

                  and the length of imprisonment. See Commonwealth v. Dodge, 77 A.3d 1263 (Pa.

                  Super. 2013) ("Dodge /If') (and cases cited therein), appeal denied, 91 A.3d 161 (Pa.




                                                                 24
2014); Commonwealth v. Mastromarino, supra (same); Commonwealth v. Moury,

supra (same). As the Superior Court stated in Dodge Ill:

                To make it clear, a defendant may raise a substantial
                question where he receives consecutive sentences within
                the guideline ranges if the case involves circumstances
                where the application of the guidelines would be clearly
                unreasonable, resulting in an excessive sentence;
                however, a bald claim of excessiveness due to the
                consecutive nature of a sentence will not raise a substantial
                question.

Dodge Ill, 77 A.3d at 1270 (emphasis in original; citations and footnote omitted).

       Application of these rules, standards, and guidelines to the facts of this case

demonstrates that any sentencing challenge Defendant is deemed to have preserved
                                                      --------------! --- --------

is meritless.

       Initially, we do not believe that Defendant will be able to establish the requisite

substantial question. Reduced to basics, Defendant baldly complains about receiving

an aggravated range sentence and contends that we failed to consider what he

believes are mitigating factors. Further, the consecutive individual sentences that

added up to an aggregate sentence in the aggravated range is not pn'ma facie

excessive or unduly harsh. Under the cases cited above, no aspect of Defendant's

challenge raises a substantial question.

       Alternatively, and additionally, the sentencing challenge is devoid of merit.

Before imposing sentence, we identified the evidence, facts, information, documents,

and reports, including the PSI, which we considered. We also explained our reasons

for imposing the sentence that Defendant now seeks to challenge. (N.T., 06/12/2017,

pp. 16-21. See also N.T., 06/21'/2017 (Post Sentence Motion Hearing), pp. 11-17). Our

on-record statements, coupled with the PSI report that we considered and

                                              25
                                                   I_UJJIIIIUll 111 �UJJJJUll UI UIUt::I JJUll>U<llll lU l"'<l,r"\.t'I.I"'. ll:l<C:.J\<1),JJUI




incorporated, are more than sufficient to explain the reasons for the sentences we

imposed, to document that we articulated reasons for the aggravated range sentence,

to demonstrate that we complied with applicable sentencing laws and regulations, to

show that in sentencing Defendant we acted well within our discretion, and to

adequately, properly, and fully address any sentencing issue that Defendant is

deemed to have properly preserved for appellate review.

       Defendant's claim that we ignored mitigating circumstances in imposing an

aggravated range sentence is without merit. Our on-record statements demonstrate

that, in fashioning Defendant's sentence, we strove to achieve a sentence that was

consistent witb_!be_pmtectio11_of_tbe_p_ub.lic,.Jbe_grav.ity_of_the-offer::ise-ir:u:elation----to-its-----

impact on the community, and the rehabilitative needs (and realities) of Defendant.

See 42 Pa.C.S.A. §9721(b). In doing so, we had the benefit of a comprehensive PSI

report which contained information about the crime that had been committed as well

as information -- favorable and unfavorable, mitigating and aggravating -- about

Defendant. At the sentencing hearing, we indicated an awareness of and an

appreciation for the information contained in the report regarding Defendant's

character and background and weighed those factors and the requisite statutory and

guideline provisions when deciding and announcing Defendant's sentence. In

balancing and weighing relevant factors, we weighed the factors which Defendant

characterizes as favorable and mitigating, including Defendant's lack of a prior record,

his history of employment, and his family support, against factors that are objectively

unfavorable and aggravating including, but not limited to, the fact that the victim was a

three-month old child who was the Defendant's son, medical evidence that showed the



                                              26
                                                                                   1_uµ1111u11 Ill .;,uµµu1L UI UIUtol fJUlliUi:Ull ,u l""i:l,".t"\.1"", l:,"'o\i:1/.µu,




           child had similar older injuries, the severity and longevity of the medical injuries

           sustained by the child, and other factors articulated during the sentencing hearing.

           Simply, we considered both favorable and unfavorable factors and imposed an

           individualized sentence that was warranted by the facts, circumstances, and history of

           this case.

                   For the reasons stated during the sentencing hearing, the hearing on

           Defendant's post-sentence motions, and in the PSI report, as well as those expressed

           herein, we remain convinced that the sentence we imposed was appropriate and

           justified under the circumstances of this case.

______11           F:_ o:. :r:. . .:a=ll:. . .:o:. .: f--=-h:t ._: e=- =s=--=e-'-r-=-e=s=o=
                                                                                       a -c. n'-=,s we believe.Jhatll.efendant's assigaments-0f-er:r-0r:...hav.e,-1---

           been waived or are meritless. Accordingly, the judgment of sentence should be

           affirmed.


                                                                                   BY THE COURT:




           DATE:



           Cc:     Superior Court of Pennsylvania
                   Jonathan Mark, J                                                                                                                       �
                                                                                                                                               Cterk o1 Coi;r'"s
                   Kimberly Metzger, Esq., Office of the lstnct Attorney
                                                                                                                                       OCT 26 '17 AMS:3:
                   Brian Gaglione, Esq., Counsel for Defendant




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