J-S80017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ISAAC CARMICHAEL                           :
                                               :
                      Appellant                :   No. 433 EDA 2016

            Appeal from the Judgment of Sentence January 8, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008846-2013


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                            FILED FEBRUARY 09, 2018

        Appellant, Isaac Carmichael, appeals from the judgment of sentence

entered on January 8, 2016, after a jury found him guilty of aggravated

assault1 and assault of a law enforcement officer.2 We affirm.

        In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court set

forth the relevant facts of this case as follows:

              The charges subject to this appeal arise from an incident
        occurring on June 2, 2013 near the intersection of 6th & South
        Streets in Philadelphia. At that time, [Appellant] and a group of
        three (3) individuals who did not know him were involved in an
        altercation during which [Appellant] pulled a gun and fired shots
        in the direction of these persons. He then fled on foot. Police


____________________________________________


1   18 Pa.C.S. § 2702(a)(1).

2   18 Pa.C.S. § 2702.1(a).
J-S80017-17


     officers on patrol nearby heard the shots and proceeded to the
     area.

           One of the officers responding to the sound of the
     gunshots was Sgt. Dominick Cole of the Philadelphia Police
     Department, who testified that upon hearing the shots, he and
     his fellow officers proceeded to the direction from where [the
     gunshots] had come. Upon arriving at the above intersection, he
     was directed by bystanders as to the direction [Appellant] had
     fled on foot. While in pursuit, he heard more shots being fired
     and continued in the direction of the sounds.

            As he approached the area of the gunshots, Sgt. Cole
     testified that he:

           ... observed a male running on the sidewalk. I
           identified myself as a police officer, the guy
           continued to run. I continued to identify myself.
           Then he turned around, haphazardly turned around,
           fired one shot. I jumped off my bike, took cover
           behind a vehicle. The guy continued to run. As he
           kept running, I then jumped back on my bike,
           followed the gentleman down the street approaching
           the intersection of 8th and Kater. At this time, I
           radioed, back up was in route. We cornered the
           suspect because the officers were coming eastbound
           and I was coming westbound. At that time, the
           gentleman put the gun -- he took the gun and
           attempted to put it in his book bag, in which he was
           tackled. He was brought and tackled to the ground,
           and I pulled the gun out of the book bag, which was
           still -- the gun was still warm when I pulled the gun
           out of the book bag, and we handcuffed him and
           then did the rest of the police work that we normally
           do after an incident of that nature.

           N.T., 06-16-2015, P. 63.

           While in pursuit of [Appellant], Sgt. Cole, who was in his
     police uniform, yelled “Stop. Police” at least two times. In
     explaining this situation in further detail, Sgt. Cole stated that he
     took cover behind a car after he heard the second shot. In
     regard to [Appellant’s] actions at that time, Sgt. Cole testified:


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            A That was after the second shot I heard. That was
            after the second shot.
            Q Okay. At the point when you took cover behind the
            car, did you see [Appellant] pointing a gun at you?
            A Well, I don’t know if he was pointing a gun at me,
            but he kind of haphazardly turned and took a shot.
            Q Okay. How far away from you was [Appellant]
            when he fired that shot?
            A Not even -- it was just a car length. Because he
            was on the sidewalk, I was on my bicycle and we
            were almost, like, parallel. So it was not even a car
            length behind him.
            Q Okay. After that shot, were there any more
            gunshots?
            A No.
            Q Okay. Did you return fire? Did you discharge your
            firearm?
            A No.

            N.T., 06-16-2015, P. 70.

            Certain aspects of this incident [were] captured on security
      camera video which [was] admitted into evidence without
      objection and shown to the jury. In explaining to the jury what
      the video showed as it related to Sgt. Cole’s pursuit of
      [Appellant], he stated that “right before [Appellant] gets to the
      tree is where he turns and shoots because it’s - that particular
      part of Kater Street is really dark because of the tree, and that’s
      where he turns and he fires the shot. That’s where I see the
      muzzle flash and I get off my bike and take cover behind the
      car[] not a car length from [Appellant].”

             Officer Cole did concede on cross-examination that when
      he ducked behind the car, he was in the street and [Appellant]
      was on the sidewalk and they were separated by a row of cars
      and he did not see where the shot went. Redirect-examination
      revealed that, Sgt. Cole stated that he had yelled “Stop. Police”
      a minimum of at least two times before [Appellant] turned and
      fired a shot towards him from a car length away.

Trial Court Opinion, 2/3/17, at 4-7 (internal footnotes omitted).




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       At the conclusion of Appellant’s trial, the jury found Appellant guilty of

aggravated assault and assault of a law enforcement officer at trial court

docket number CP-51-CR-0008846-2013.3 On December 8, 2015, the trial

court sentenced Appellant to a term of ten to twenty years of incarceration

on the conviction for assault of a law enforcement officer.          The trial court

sentenced Appellant to a term of five to ten years of incarceration on the

aggravated assault count to be served concurrently with the sentence for

assault of a law enforcement officer. Both the Commonwealth and Appellant

filed post-sentence motions.

       Following a hearing on January 8, 2016, the trial court granted the

Commonwealth’s post-sentence motion to reconsider Appellant’s sentence

and imposed the mandatory minimum sentence of twenty years with the

statutory maximum sentence of forty years of incarceration on the assault of

a law enforcement officer conviction.            The trial court did not disturb the

concurrent five-to-ten-year sentence imposed on the aggravated assault

____________________________________________


3 Appellant was tried on charges filed at trial court docket numbers CP-51-
CR-0008842-2013, CP-51-CR-0008843-2013, CP-51-CR-0008845-2013, and
CP-51-CR-0008846-2013. The jury found Appellant not guilty of all charges
at CP-51-CR-0008842-2013 and CP-51-CR-0008843-2013. The jury found
Appellant guilty of three Violations of the Uniform Firearms Act (“VUFA”), 18
Pa.C.S. §§ 6101-6127, and not guilty of aggravated assault and assault of a
law enforcement officer at CP-51-CR-0008845-2013, involving police officer
Matthew White. However, while these matters were tried jointly, Appellant
only appealed at trial court docket number CP-51-CR-0008846-2013 on the
convictions of aggravated assault and assault of a law enforcement officer
involving Sergeant Dominick Cole.



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conviction.    The trial court denied Appellant’s post-sentence motions, and

Appellant filed a timely appeal.4 Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       On appeal, Appellant raises the following issues for this Court’s

consideration:

       I.     Was the evidence insufficient to sustain guilty verdicts on
              the charges of aggravated assault and assault of law
              enforcement officer related to complainant Sergeant
              Dominick Cole?

       II.    Did the court err by interpreting the assault on law
              enforcement officer statute as requiring the mandatory
              minimum sentence of not less than 20 years to not more
              than 40 years?

       III.   Were the verdicts on the charges of aggravated assault
              and assault of law enforcement officer related to
              complainant Sergeant Dominick Cole against the weight of
              the evidence?

____________________________________________


4 Appellant was not required to file an additional post-sentence motion after
the trial court modified the judgment of sentence on January 8, 2016,
because the weight of the evidence and the propriety of the mandatory
minimum were the issues argued by the parties before the trial court at the
post-sentence motions hearing.        The Miscellaneous section under the
Comment to Pa.R.Crim.P. 720 provides, in relevant part, as follows:

       Once a sentence has been modified or reimposed pursuant to a
       motion to modify sentence under paragraph (B)(1)(a)(v) or Rule
       721, a party wishing to challenge the decision on the motion
       does not have to file an additional motion to modify sentence in
       order to preserve an issue for appeal, as long as the issue was
       properly preserved at the time sentence was modified or
       reimposed.

Pa.R.Crim.P. 702, cmt.



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Appellant’s Brief at 5 (full capitalization omitted).

      In his first issue on appeal, Appellant challenges the sufficiency of the

evidence underlying his convictions. Our standard of review is as follows:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa. Super. 2008)

(internal citations and quotation marks omitted).

       Appellant was convicted of assault of a law enforcement officer and

aggravated assault. Those crimes are defined, in relevant part, as follows:

      Assault of law enforcement officer

      (a) Assault of a law enforcement officer in the first
      degree.--A person commits a felony of the first degree who
      attempts to cause or intentionally or knowingly causes bodily
      injury to a law enforcement officer, while in the performance of
      duty and with knowledge that the victim is a law enforcement
      officer, by discharging a firearm.


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      (b) Penalties.--Notwithstanding section 1103(1) (relating to
      sentence of imprisonment for felony), a person convicted under
      subsection (a) shall be sentenced to a term of imprisonment
      fixed by the court at not more than 40 years.

18 Pa.C.S. § 2702.1(a)-(b).

      Aggravated Assault

      (a) Offense defined.--A person is guilty of aggravated assault
      if he:

              (1)   attempts to cause serious bodily injury to
                    another, or causes such injury intentionally,
                    knowingly or recklessly under circumstances
                    manifesting extreme indifference to the value
                    of human life;

              (2)   attempts to cause or intentionally, knowingly
                    or recklessly causes serious bodily injury to
                    any of the officers, agents, employees or other
                    persons enumerated in subsection (c) or to an
                    employee of an agency, company or other
                    entity engaged in public transportation, while
                    in the performance of duty[.]

18 Pa.C.S. § 2702(a)(1)-(2).

      Appellant avers that the Commonwealth failed to prove the “attempt”

element of assault of a law enforcement officer and aggravated assault.

Appellant’s    Brief   at   12.   Specifically,   Appellant   claims   that   the

Commonwealth did not prove attempt because there was no evidence that

Appellant “intended” to injure Sergeant Cole.          Id.    This argument is

specious.

      The attempt element from Section 2702.1 “requires a showing of some

act, albeit not one actually causing bodily injury, accompanied by an intent


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to inflict bodily injury upon a law enforcement officer by discharging a

firearm.” Commonwealth v. Landis, 48 A.3d 432, 446 (Pa. Super. 2012)

(citing 18 Pa.C.S. §§ 901(a) and 2702.1(a)).      Similarly, “[f]or aggravated

assault purposes, an ‘attempt’ is found where an ‘accused who possesses

the required, specific intent acts in a manner which constitutes a substantial

step   toward   perpetrating   a   serious   bodily   injury   upon   another.’”

Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (citation

omitted).    “An intent ordinarily must be proven through circumstantial

evidence and inferred from acts, conduct or attendant circumstances.” Id.

(citation omitted). “Serious bodily injury has been defined as bodily 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.” Id. (internal citations and quotation marks omitted).

       The trial court concluded that Sergeant Cole’s testimony provided

sufficient evidence to support Appellant’s convictions:

       [Sergeant Cole’s] testimony clearly supports the fact that
       [Appellant] knew that he was shooting at a police officer in the
       performance of his duties. Sgt. Cole stated that he identified
       himself as an officer when he commanded [Appellant] to stop
       several times. After making such pronouncement, [Appellant],
       instead of stopping as commanded, turned and pointed the gun
       in the direction of the officer, discharged the same and required
       Sgt. Cole to take cover. These uncontroverted facts satisfy the
       elements with sufficient evidence to support the convictions. See
       Commonwealth v. Thompson, 739 A.2d 1023, 1028-1029
       (Pa. 1999) (evidence sufficient to establish aggravated assault
       where defendant fired shots at victim even though they did not
       hit the victim). [Appellant’s] claim is without merit.


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            The evidence supported the reasonable inference that
     [Appellant] while fleeing from the scene of the crime
     intentionally discharged the weapon in the direction of one of the
     officers in pursuit. Sgt. Cole was about a car length from the
     [Appellant] when he was fired at. Fortunately, the bullet missed
     him, however, it does not negate [Appellant’s] attempted
     actions. The fact that [Appellant] was running and the manner in
     which he fired the same is irrelevant, as he intentionally pointed
     the weapon towards the pursuing officer from a short distance
     away. The fact that they were separated by a row of cars due to
     their respective positions is irrelevant, as Sgt. Cole stated he
     took cover after the shot was fired. Hence, he could have been
     struck by the bullet.

            The jury could reasonably conclude that from these
     actions, [Appellant] acted with a reckless disregard of
     consequences of his actions and that he consciously disregarded
     an unjustified and extremely high risk that his actions might
     cause death or serious bodily injury; at the very least, if the
     bullet had, in fact, hit Sgt. Cole. Such conduct could reasonably
     anticipate death or that serious bodily injury would likely and
     logically result. See Commonwealth v. McClendon, 874 A.2d
     1223, 1229 (Pa.Super.2005).

            Additionally, the evidence supported the reasonable
     inference that [Appellant] intended that the discharging of his
     gun in the direction of the officers would result in the charging
     officers to ending their pursuit or buy him additional time to flee
     as they took cover. In either of these scenarios, the officers, and
     in particular Sgt. Cole, could have suffered bodily injury, and a
     subsequent fact-finder could conclude this was [Appellant’s]
     intent in discharging the firearm. See Commonwealth v.
     Holley, 945 A.2d 241, 247 (Pa.Super.2008) (holding that, in
     determining whether the Commonwealth proved intent to cause
     bodily injury, a fact-finder is free to conclude the accused
     intended the natural and probable consequences of his actions to
     result therefrom); Commonwealth v. Rosado, 454 Pa.Super.
     17, 684 A.2d 605, 608 (1996) (“The fact that the accused
     misapprehended the circumstances, thereby making it
     impossible for him to commit the crime undertaken, is not a
     defense to an attempt crime.”). Simply put, “a gun is a lethal
     weapon; pointing it towards a person, and then discharging it,
     speaks volumes as to one’s intention.” Commonwealth v. Hall,
     574 Pa. 233, 830 A.2d 537 (2003). This is particularly true

                                    -9-
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      where a suspect discharges his firearm in an attempt to elude
      arrest. See Hall, supra. Thus, based on the evidence presented
      at trial, the Commonwealth demonstrated sufficient evidence
      that [Appellant] discharged his weapon in an attempt to inflict
      bodily injury upon known law enforcement officers in
      performance of their duties.

Trial Court Opinion, 2/3/17, at 8-9 (emphasis in original).

      We discern no error in the trial court’s conclusion.      Sergeant Cole

testified that he identified himself as a police officer and directed Appellant

to stop.   N.T., 6/16/15, at 63.    Thus, it was reasonable for the jury to

conclude that Appellant was aware that Sergeant Cole was a law

enforcement officer.   The testimony also revealed that Appellant fired his

weapon causing Sergeant Cole to take cover during the pursuit. Id.         The

fact that Appellant was shooting while Sergeant Cole was pursuing him, and

the fact that Sergeant Cole had to take cover during the shooting, allowed

the jury to conclude that Appellant was shooting at him.      Pursuant to our

standard of review, these facts established that Appellant took a substantial

step in creating a substantial risk of death or serious bodily injury, thereby

establishing the elements of Sections 2702 and 2702.1. Landis, 48 A.3d at

446; Fortune, 68 A.3d at 984. Accordingly, we conclude that the evidence

was sufficient to establish Appellant’s guilt of assault of a law enforcement

officer and aggravated assault.

      Appellant next argues that the trial court erred in its interpretation of

the crime of assault of a law enforcement officer and the concomitant




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penalty statute as requiring a mandatory minimum sentence of not less than

twenty years.5 Appellant’s Brief at 24. We disagree.

        It is well settled that penal statutes are to be strictly construed.   1

Pa.C.S. § 1928(b)(1). Where ambiguity exists in the language of a penal

statute, that ambiguity should be resolved in favor of lenity, i.e., the

language should be interpreted in the light most favorable to the accused.

Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (internal citations

omitted).     The interpretation of a statute implicates a question of law,

therefore, our scope of review is plenary, and our standard of review is de

novo.     Commonwealth v. Andrews, 173 A.3d 1219 (Pa. Super. 2017)

(citation omitted).

        The statutes at issue provide, in relevant part, as follows:

        Assault of law enforcement officer

        (a) Assault of a law enforcement officer in the first
        degree.--A person commits a felony of the first degree who
        attempts to cause or intentionally or knowingly causes bodily
        injury to a law enforcement officer, while in the performance of
        duty and with knowledge that the victim is a law enforcement
        officer, by discharging a firearm.


____________________________________________


5 This issue presents a challenge to the legality of Appellant’s sentence. See
Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (stating
that a challenge to the application of a mandatory minimum sentence is a
non-waivable challenge to the legality of the sentence imposed).




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      (b) Penalties.--Notwithstanding section 1103(1) (relating to
      sentence of imprisonment for felony), a person convicted under
      subsection (a) shall be sentenced to a term of imprisonment
      fixed by the court at not more than 40 years.

18 Pa.C.S. § 2702.1(a) and (b).

      Sentences   for    offenses       committed       against     law
      enforcement officer

      (a) Mandatory sentence.--A person convicted of the following
      offense shall be sentenced to a mandatory term of imprisonment
      as follows:

      18 Pa.C.S. § 2702.1(a) (relating to assault of law enforcement
      officer)--not less than 20 years.

42 Pa.C.S. § 9719.1(a).

      Appellant avers that the trial court erred because the statutes at issue

do not include the word “minimum,” and therefore, the sentence required by

the statutes is ambiguous as the “not less than” language from 42 Pa.C.S. §

9719.1 could be read to constitute a maximum sentence. Appellant’s Brief

at 25-26. We discern no ambiguity. In Commonwealth v. O’Brien, 514

A.2d 618 (Pa. Super. 1986), our Court disposed of this argument and

concluded that the words “not less than” “unambiguously connote a

minimum term of imprisonment.” O’Brien, 514 A.2d at 620. “It strains all

notions of common sense to suggest that ‘not less than’ can reasonably be

interpreted as meaning ‘maximum.’” Id.

      We point out that O’Brien addressed mandatory minimum sentences

under 42 Pa.C.S. § 9718, and Section 9718 was subsequently held to be

unconstitutional.   See Alleyne v. United States, 570 U.S. 99 (2013) (a

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fact that increases a mandatory minimum sentence for crime is an element

of crime that must be submitted to a jury and proven beyond a reasonable

doubt).     However, 42 Pa.C.S. § 9719.1 does not suffer the same

constitutional infirmity. See Commonwealth v. Reid, 117 A.3d 777, 785

(Pa. Super. 2015) (“Section 9719.1 does not require proof of any additional

elements beyond those already required to convict a defendant of assault of

a law enforcement officer in the first degree under 18 Pa.C.S. §

2702.1(a).”). We conclude that this Court’s analysis of the “not less than”

language from Section 9718 in O’Brien is apt, and it is properly applied to

the “not less than” language of Section 9719.1.               Thus, Section 9719.1

mandates a twenty-year mandatory minimum sentence for a conviction of

assault of a law enforcement officer.

      Accordingly,    we    discern   no   error   of   law   in   the   trial   court’s

interpretation of the aforementioned statutes.            The minimum sentence

permitted was twenty years and the maximum sentence was capped at forty

years.    Thus, Appellant’s sentence of twenty to forty years was both

mandated and proper.

      Finally, Appellant alleges that the verdicts for assault of a law

enforcement officer and aggravated assault were against the weight of the

evidence. Appellant’s Brief at 36. After review, we conclude that Appellant

is entitled to no relief.




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     In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

            A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Widmer, 560
     Pa.    308,    319,    744    A.2d    745,   751-[7]52     (2000);
     Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
     1189 (1994). A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Widmer, 560
     A.2d at 319-[3]20, 744 A.2d at 752. Rather, “the role of the
     trial judge is to determine that ‘notwithstanding all the facts,
     certain facts are so clearly of greater weight that to ignore them
     or to give them equal weight with all the facts is to deny
     justice.’” Id. at 320, 744 A.2d at 752 (citation omitted). It has
     often been stated that “a new trial should be awarded 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 imperative so
     that right may be given another opportunity to prevail.” Brown,
     538 Pa. at 435, 648 A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question
           of whether the verdict is against the weight of the
           evidence. Brown, 648 A.2d at 1189. Because the
           trial judge has had the opportunity to hear and see
           the evidence presented, an appellate court will give
           the gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial
           court’s determination that the verdict is against the
           weight of the evidence.          Commonwealth v.
           Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
           One of the least assailable reasons for granting or
           denying a new trial is the lower court’s conviction
           that the verdict was or was not against the weight of



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            the evidence and that a new trial should be granted
            in the interest of justice.

      Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
      added).

             This does not mean that the exercise of discretion by the
      trial court in granting or denying a motion for a new trial based
      on a challenge to the weight of the evidence is unfettered. In
      describing the limits of a trial court’s discretion, we have
      explained:

            The term “discretion” imports the exercise of
            judgment, wisdom and skill so as to reach a
            dispassionate conclusion within the framework of the
            law, and is not exercised for the purpose of giving
            effect to the will of the judge. Discretion must be
            exercised on the foundation of reason, as opposed to
            prejudice, personal motivations, caprice or arbitrary
            actions.   Discretion is abused where the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable
            or where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

      Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
      [11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      The threshold question for this Court is whether Appellant’s weight

issue has been preserved.      Pennsylvania Rule of Criminal Procedure 607

governs challenges to the weight of the evidence and provides, in relevant

part, as follows:



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     (A) A claim that the verdict was against the weight of the
     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).

     In his brief on appeal, Appellant purports to challenge the weight of

the evidence underlying his convictions for both aggravated assault and

assault of a law enforcement officer. In his post-sentence motion, however,

Appellant presented only a boilerplate challenge to the weight of the

evidence:

     5. [Appellant] alleges that the verdict was against the weight of
     the evidence to such a degree as to shock one’s conscience and
     sense of justice. [Appellant] reserves the right to amend and
     supplement this answer upon receipt of the notes of testimony
     from the trial.

Post-Sentence Motion, 12/10/15, at ¶5.

     It has long been the law in Pennsylvania that a boilerplate post-

sentence motion merely stating that the verdict was against the weight of

the evidence preserves no issue for appellate review unless the motion

specifies in what way the verdict was against the weight of the evidence.

Commonwealth v. Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983).

However, the record reflects that at the hearing on Appellant’s post-


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sentence motion, the trial court, faced with Appellant’s boilerplate motion,

sought to clarify Appellant’s claim. N.T., 1/8/16, at 4. Counsel informed the

trial court that Appellant was challenging only the weight of the evidence

with respect to the conviction for assault of a law enforcement officer. Id.

Thus, the only weight-of-the-evidence challenge before the trial court was

with respect to assault of a law enforcement officer; Appellant abandoned

his challenge to the weight of the evidence with respect to his conviction for

aggravated assault because he did not present it to the trial court, and the

trial court did not address it. Accordingly, we deem Appellant’s weight-of-

the-evidence challenge to his aggravated assault conviction waived on

appeal and will address only his challenge to the weight of the evidence as it

relates to the assault of a law enforcement officer conviction.

      As discussed above, the evidence against Appellant amply established

his guilt of assault of a law enforcement officer. Moreover, as the finder of

fact, the jury was free to credit the testimony as it saw fit, and it was free to

believe all, part, or none of the evidence, and to assess the credibility of the

witnesses.   Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. Super.

2004). Despite acquitting Appellant of other charges, the jury weighed the

evidence and returned a verdict of guilty on the charge of assault of a law

enforcement officer. Verdict Sheet, 6/18/15. In ruling on Appellant’s post-

sentence motion, the trial court concluded that there was nothing shocking

about the verdict, and it denied Appellant’s post-sentence motion.         N.T.,


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J-S80017-17


1/8/16, at 4-5; Order, 1/8/16.       After review, we discern no abuse of

discretion in the trial court’s denial of Appellant’s post-sentence motion.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/18




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