J-A05029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GREGORY SPECTOR                            :
                                               :
                      Appellant                :   No. 514 EDA 2016

           Appeal from the Judgment of Sentence September 9, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012822-2013

BEFORE:      DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                                FILED MARCH 22, 2018

       Gregory Spector (Appellant) appeals from the judgment of sentence

entered after a jury convicted him of attempted murder, attempted theft by

unlawful taking (attempted theft), attempted receipt of stolen property,

aggravated assault, conspiracy, possessing an instrument of crime (PIC),

simple assault, recklessly endangering another person (REAP), and robbery.1

We affirm Appellant’s convictions, but vacate his judgment of sentence and

remand for resentencing only.

       The trial court summarized the facts of this case as follows:

          On July 21, 2013, [Appellant] contacted the complainant,
____________________________________________


* Former Justice specially assigned to the Superior Court.

1  18 Pa.C.S.A. §§ 901(a), 2502, 3921(a), 3925(a), 2702(a)(1), 903(a),
907(a), 2701(a), 2705, and 3701(a)(1)(i).
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     Sardor Bolyaganov [(Victim)], through Craigslist to purchase a
     Samsung Galaxy S3 cell phone. [Appellant] and [Victim] agreed
     to meet around 4:00 p.m. at Ferndale and Kentwood St[reets] in
     Philadelphia to conduct the transaction. [Appellant], who was
     purchasing the phone for his wife, arrived with her at that
     location. They agreed upon a price of $290 and completed the
     transaction. Later that afternoon, after having the phone service
     activated, [Appellant’s] wife, Ashley Spector, noticed that the
     phone began to cut out and indicate that there was no service.
     [Appellant] called AT&T around 6:30 p.m. that evening to report
     the issue and was told that the phone’s IMEI number was
     coming back as being stolen. Appellant then contacted [Victim]
     to return the phone and get his money back. [Victim] told
     Appellant that he could give him back $200 [because] he spent
     $90 in the time since the initial transaction. They agreed to
     meet at the same location around 9:30 p.m.

         [Appellant], along with his father, the co-defendant at trial
     Lonnie Spector, left their residence in Bucks County to meet with
     [Victim]. [Appellant] had in his possession his personal handgun
     along with an extra magazine. While driving, [Appellant] called
     911 to report what had occurred and for officers to accompany
     them to meet [Victim]. Following the initial call to 911 at 9:45
     p.m.[, Appellant] contacted 911 twice more, at 10:06 p.m. and
     10:23 p.m.[,] to alert them to their location and to see when
     officers were coming to meet them. At the same time, [Victim]
     was in contact with [Appellant] asking where he was and
     threatening to leave. Eventual[ly, Appellant] and his father grew
     impatient and left their location where they were waiting for
     police to arrive at around 10:30 p.m.

        When they arrived at Ferndale and Kentwood St., [Victim]
     was waiting in his car with his wife at the time, Olena Sirko
     [(Sirko).   Appellant] and [Victim] exited their vehicles, and
     [Victim] gave [Appellant] the $200.       [Appellant] then told
     [Victim] that he was [not] getting the phone back and
     aggressively started to yell at [Victim.    Appellant’s] father,
     Lonnie[,] then exited the vehicle and ran over to the other two
     men and stated that he was an undercover cop. Lonnie then
     grabbed [Victim] and they began to wrestle and both
     eventual[ly] fell to the ground. At the same time [Appellant]
     began taking pictures of [Victim’s] license plate. [Appellant]
     th[e]n tried to grab [Victim] and was thrown backwards.
     [Victim] and Lonnie got up and continued to punch and push

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       each other. At this point[,] Lonnie was against his car with
       [Victim] facing him and with [Victim’s] back to [Appellant.
       Appellant] then removed his handgun and from a distance of five
       or six feet fired twice toward [Victim’s] back. Appellant did not
       say anything before firing. [Victim] immediately fell to the
       ground. [Appellant] then walked over to [Victim] and pointed
       his gun at him. [Victim] was not in possession of any weapon at
       any point on that day.

          [Victim] was transported to Aria Hospital-Torresdale around
       11:00 p.m. He had a single bullet wound to his back with no
       exit point and was in shock. The bullet shattered the T10
       vertebra and also damaged the T9 vertebra.             He was
       immediately paralyzed from the navel down and will likely be
       confined to a wheelchair for the rest of his life.

Trial Court Opinion, 11/1/16, at 2-4 (citations to notes of testimony

omitted).

       On April 24, 2015, a jury found Appellant guilty of the aforementioned

crimes.     The trial court deferred sentencing for the preparation of a pre-

sentence investigation report.           On September 9, 2015, the trial court

sentenced Appellant to an aggregate term of 17 to 35 years of incarceration.

Pursuant to the court’s sentencing order, Appellant’s aggregate sentence

was comprised of the following terms, all to be served consecutively: 10 to

20 years for attempted murder, 2½ to 5 years for PIC; 1 to 3 years for

REAP, 2½ to 5 years for attempted theft, and 1 to 2 years for conspiracy. 2

____________________________________________


2  The court imposed a sentence of 1 to 2 years of incarceration on the
conspiracy charge at Count 12. Sentencing Order, 9/5/15. As we will
discuss infra, the trial court further imposed sentences on eight additional
counts of conspiracy (Counts 3, 10, 11, 12, 13, 14, 15, and 16); each of
these were to run concurrently with his other sentences.



                                           -3-
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Sentencing Order, 9/9/15.             The sentences for Appellant’s remaining

convictions either merged or were ordered to be served concurrently with

the above-referenced sentences. See id.

       The trial court summarized the subsequent procedural history as

follows:

         Appellant filed a timely Motion for Reconsideration of
       Sentence and Motion for a New Trial on September 18, 2015 and
       September 21, 2015 respectively. The post-sentence motions
       were denied by operation of law on January 19, 2016.

           Appellant filed a timely appeal on February 16, 2016. This
       court entered an Order pursuant to Pa.R.A.P. [1925(b)] on
       February 19, 2016. Appellant, through new appellate counsel,
       filed a Motion for Issuance of a New Order on April 1, 2016, [3]
       which was granted. He then timely filed his response on April
       25, 2016.

Trial Court Opinion, 11/1/16, at 1-2.

       On appeal, Appellant presents the following issues for our review:

       [1.] Was not the evidence insufficient as a matter of law to
       sustain the Commonwealth’s burden of proving that the shooting
       was not committed in self-defense and/or in defense of
       Appellant’s father, Lonnie Spector?

       [2.] Was not the evidence insufficient to sustain the attempted
       murder conviction where the jury was not instructed on malice in
       the context of reducing circumstances that would have negated
       it?

       [3.]   Was not the evidence insufficient to prove the crimes of
____________________________________________


3  According to Appellant’s motion, his counsel never received service of the
trial court’s original Rule 1925(b) order and thus was unable to submit a
timely Rule 1925(b) statement without the issuance of a new order. See
Motion for Issuance of a New Order, 4/1/16.



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      robbery and attempted theft and attempted theft by receiving
      stolen property?

      [4.] Did not the lower court abuse its discretion in failing to
      give a cautionary instruction to the jury or grant a mistrial when
      the prosecution misrepresented the law as it pertained to self-
      defense and defense of another person in closing argument?

      [5.] Should not this Court grant discretionary review of the
      sentence imposed, and thereupon vacate [Appellant’s] judgment
      of sentence as excessive and clearly unreasonable?

      [6.] Should not the Court vacate illegally imposed sentences on
      charges for which Appellant was not arraigned, or were in
      violation of statute or were otherwise subject to merger?

Appellant’s Brief at 11.

      First, Appellant argues that the evidence was insufficient to prove that

he did not act in self-defense or defense of another. Appellant contends that

the evidence reveals he possessed the reasonable belief that both he and his

father were in danger of death or serious bodily injury when he shot Victim.

Additionally, Appellant asserts that neither his nor his father’s conduct prior

to the shooting “could be construed as a provocation manifesting an

intention to cause death or serious bodily injury” to Victim. Id. at 23.

      In reviewing a challenge to the sufficiency of the evidence, our

standard of review is as follows:

         As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a


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      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

          The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. Accordingly, [t]he fact that the
      evidence establishing a defendant’s participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant’s crimes beyond a reasonable doubt,
      the appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).   Importantly, “the jury, which

passes upon the weight and credibility of each witness’s testimony, is free to

believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,

33 A.3d 602, 607 (Pa. 2011).

      A defendant has no burden to prove that he acted in self-defense or

defense of another.   Commonwealth v. Torres, 766 A.2d 342, 345 (Pa.

2001). Instead, “the Commonwealth bears the burden to disprove such a

defense beyond a reasonable doubt.” Id.

      To prevail on a justification defense, there must be evidence of the

following:

      a) the actor was free from fault in provoking or continuing the
      difficulty which resulted in the use of deadly force; b) the actor
      must have reasonably believed that he was in imminent danger
      of death or serious bodily injury, and that there was a necessity
      to use such force in order to save himself or others therefrom;

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      and c) the actor did not violate any duty to retreat or to avoid
      the danger.

                                *     *     *

      The Commonwealth sustains [its] burden if it establishes at least
      one of the following: 1) the accused did not reasonably believe
      that he was in danger of death or serious bodily injury; or 2) the
      accused provoked or continued the use of force; or 3) the
      accused had a duty to retreat and the retreat was possible with
      complete safety.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014); see also

18 Pa.C.S.A. §§ 505, 506.

      We conclude that the Commonwealth sufficiently disproved Appellant’s

claim of self-defense and defense of others. Both Victim and his wife, Olena

Sirko, testified that Appellant and his father were the verbal and physical

aggressors of the altercation. N.T., 4/13/15, at 77-84; N.T., 4/14/15, at 48-

49, 113-14.   Both Victim and Ms. Sirko stated that when Victim met with

Appellant and his father to return their money, it was Appellant and his

father who began yelling and cursing at Victim because he did not have the

full $290 to return to them. Id. Likewise, Victim and Ms. Sirko testified that

it was Appellant’s father who first shoved and grabbed Victim, which was the

impetus of the physical altercation that led to the shooting. Id.

      Thus, the evidence, viewed in the light most favorable to the

Commonwealth as the verdict winner, establishes that the Commonwealth

presented evidence that Appellant and his father, Lonnie, were not free from

fault in provoking the difficulty that culminated in the use of force.     See



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Smith, 97 A.3d at 787. Although Appellant argues that he and his father

were not the aggressors, the jury was free to believe the testimony of Victim

and Ms. Sirko.    See Ramtahal, 33 A.3d at 607.        Accordingly, Appellant’s

first issue does not merit relief.

      Second, Appellant argues that the “evidence was insufficient to sustain

the attempted murder conviction where the jury was not instructed on

malice in the context of reducing circumstances that would have negated it.”

Appellant’s Brief at 27. Although he attempts to frame his second issue as a

challenge to the sufficiency of the evidence, Appellant actually argues that

the trial court erred in failing to instruct the jury on imperfect self-defense.

See id. at 27-34. For several reasons, this claim fails.

      Appellant, in his concise statement of errors complained of on appeal,

omitted any claim that the trial court erred in failing to instruct the jury on

imperfect self-defense.    Regarding Rule 1925(b), our Supreme Court has

stated:

         Our jurisprudence is clear and well-settled, and firmly
      establishes that: Rule 1925(b) sets out a simple bright-line rule,
      which obligates an appellant to file and serve a Rule 1925(b)
      statement, when so ordered; any issues not raised in a Rule
      1925(b) statement will be deemed waived; the courts lack the
      authority to countenance deviations from the Rule’s terms; the
      Rule’s provisions are not subject to ad hoc exceptions or
      selective enforcement; appellants and their counsel are
      responsible for complying with the Rule’s requirements; Rule
      1925 violations may be raised by the appellate court sua sponte,
      and the Rule applies notwithstanding an appellee’s request not
      to enforce it; and, if Rule 1925 is not clear as to what is required
      of an appellant, on-the-record actions taken by the appellant
      aimed at compliance may satisfy the Rule. We yet again repeat

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        the principle first stated in Lord that must be applied here:
        “[I]n order to preserve their claims for appellate review,
        [a]ppellants must comply whenever the trial court orders them
        to file a Statement of Matters Complained of on Appeal pursuant
        to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b)
        statement will be deemed waived.” [Commonwealth v. Lord,
        719 A.2d 306, 309 (Pa. 2011)].

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

Therefore, because Appellant failed to preserve this issue in his Rule 1925(b)

statement, he has waived it.

        Appellant has also waived this issue because he never requested that

the trial court instruct the jury on imperfect self-defense or otherwise

objected to the trial court’s instruction for attempted murder.        See N.T.,

4/21/15, at 3-56. A “defendant’s failure to request a specific instruction will

waive     any   claim   that   the   instruction    should   have   been   given.”

Commonwealth v. Corley, 638 A.2d 985, 990 (Pa. Super. 1994); see also

Pa.R.Crim.P. 647(C) (“No portions of the charge nor omissions from the

charge may be assigned as error, unless specific objections are made

thereto before the jury retires to deliberate.”).

        Moreover, even if Appellant had properly raised and preserved this

issue, he would not have been entitled to a charge on imperfect self-

defense. Our Supreme Court has held that “a trial court shall only instruct

on an offense where the offense has been made an issue in the case and

where the trial evidence reasonably would support such a verdict.”

Commonwealth v. Bond, 985 A.2d 810, 821 (Pa. 2009) (quotations and



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citations omitted).     To prevail on a claim of imperfect self-defense, a

defendant must have possessed “an unreasonable rather than a reasonable

belief that deadly force was required to save the actor’s life.           All other

principles of justification under 18 Pa.C.S.[A.] § 505 must [be satisfied.]”

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (quotations

and citations omitted). Therefore, “if the defendant was not free from fault,

neither self-defense nor imperfect self-defense is a viable defense.” Id. at

1124-25.      As   we   discussed   above    in   Appellant’s   first   issue,   the

Commonwealth presented evidence that neither Appellant nor his father

were free from fault in provoking the altercation that eventually led to

Victim’s shooting.      Accordingly, even if it were properly preserved,

Appellant’s second issue would be meritless.

      Third, Appellant argues that the evidence was insufficient to sustain

his convictions of robbery and attempted theft. Appellant contends that the

Commonwealth failed to present evidence demonstrating that he caused

serious bodily injury to Victim while attempting to commit a theft.

      The jury found Appellant guilty of robbery pursuant to Section

3701(a)(1)(i), which states that “[a] person is guilty of robbery if, in the

course of committing a theft, he . . . inflicts serious bodily injury upon

another.” See 18 Pa.C.S.A. § 3701(a)(1)(i). Importantly, “[a]n act shall be

deemed ‘in the course of committing a theft’ if it occurs in an attempt to

commit theft[.]” 18 Pa.C.S.A. § 3701(a)(2). “A person is guilty of theft if


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he unlawfully takes, or exercises unlawful control over, movable property of

another with intent to deprive him thereof.”    18 Pa.C.S.A. § 3921(a).    “A

person commits an attempt when, with intent to commit a specific crime, he

does any act which constitutes a substantial step toward the commission of

that crime.” 18 Pa.C.S.A. § 901(a).

      Here, there is no dispute that Appellant caused serious bodily injury to

Victim.   Appellant, however, asserts that there was no evidence that he

attempted to commit a theft because even though he refused to return the

phone to Victim after Victim returned his money, he intended to turn the

phone over to police so that they could return it to its rightful owner. This

Court, however, has rejected “self-help” or “claim of right” as a defense to

theft. Commonwealth v. Dombrauskas, 418 A.2d 493, 497 (Pa. Super.

1980).    We explained that “the proposition not only is lacking in sound

reason and logic, but it is utterly incompatible with and has no place in an

ordered and orderly society such as ours[.]”       Id.   Thus, “public policy

precludes the assertion of a claim of right defense to a charge of theft by

unlawful taking.” Id.

      The record reflects that after Appellant informed Victim that the phone

did not work because it was stolen, Appellant agreed to accept $200 in

exchange for returning the phone to Victim. N.T., 4/14/15, at 39-41. Upon

meeting with Victim and receiving his money, however, Appellant refused to

return the phone.   Id. at 45-47.     Once Appellant received the $200 from


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Victim and refused to return the phone, Appellant took a substantial step

towards unlawfully exercising control over the movable property of another.

      Therefore, the record, viewed in the light most favorable to the

Commonwealth, establishes that Appellant committed an attempted theft

while causing serious bodily injury to Victim. See Franklin, 69 A.3d at 722-

23. The evidence thus was sufficient to sustain Appellant’s convictions for

robbery and attempted theft, such that Appellant’s third issue does not

entitle him to relief.

      Fourth, Appellant challenges the trial court’s failure to give a

cautionary instruction to the jury or grant a mistrial when the prosecutor

allegedly misstated the law relating to self-dense during closing arguments.

Appellant’s Brief at 37-39.     Specifically, Appellant takes issue with the

prosecutor stating during closing argument that in order to prevail on a

claim of self-defense, a defendant must have “clean hands,” i.e. be free from

fault in provoking the altercation that led to the use of force.      Id. at 37.

Appellant also argues that the prosecutor inappropriately stated that the use

of force in defense requires a defendant to be in a “kill-or-be-killed

situation.” Id. at 38. Appellant maintains that these statements constituted

prosecutorial misconduct.

      The standard of review governing the denial of a motion for mistrial is

as follows:

      In criminal trials, declaration of a mistrial serves to eliminate the
      negative effect wrought upon a defendant when prejudicial

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     elements are injected into the case or otherwise discovered at
     trial. By nullifying the tainted process of the former trial and
     allowing a new trial to convene, declaration of a mistrial serves
     not only the defendant’s interest but, equally important, the
     public’s interest in fair trials designed to end in just judgments.
     Accordingly, the trial court is vested with discretion to grant a
     mistrial whenever the alleged prejudicial event may reasonably
     be said to deprive the defendant of a fair and impartial trial. In
     making its determination, the court must discern whether
     misconduct or prejudicial error actually occurred, and if so, . . .
     assess the degree of any resulting prejudice. Our review of the
     resulting order is constrained to determining whether the court
     abused its discretion.       Judicial discretion requires action in
     conformity with [the] law on facts and circumstances before the
     trial court after hearing and consideration. Consequently, the
     court abuses its discretion if, in resolving the issue for decision,
     it misapplies the law or exercises its discretion in a manner
     lacking reason.

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2015)

(quotations and citation omitted), appeal denied, 145 A.3d 724 (Pa. 2016).

     With respect to a claim of prosecutorial misconduct in a closing

argument, this Court has explained:

     [I]t is well settled that any challenged prosecutorial comment
     must not be viewed in isolation, but rather must be considered in
     the context in which it was offered. Our review of a prosecutor’s
     comment and an allegation of prosecutorial misconduct requires
     us to evaluate whether a defendant received a fair trial, not a
     perfect trial. Thus, it is well settled that statements made by the
     prosecutor to the jury during closing argument will not form the
     basis for granting a new trial “unless the unavoidable effect of
     such comments would be to prejudice the jury, forming in their
     minds fixed bias and hostility toward the defendant so they could
     not weigh the evidence objectively and render a true verdict.”
     Commonwealth v. Fletcher, [ ] 861 A.2d 898, 916 ([Pa.]
     2004). The appellate courts have recognized that not every
     unwise remark by an attorney amounts to misconduct or
     warrants the grant of a new trial. Additionally, like the defense,
     the prosecution is accorded reasonable latitude, may employ
     oratorical flair in arguing its version of the case to the jury, and

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     may advance arguments supported by the evidence or use
     inferences that can reasonably be derived therefrom. Moreover,
     the prosecutor is permitted to fairly respond to points made in
     the defense’s closing, and therefore, a proper examination of a
     prosecutor’s comments in closing requires review of the
     arguments advanced by the defense in summation.

Id. (some quotations and citations omitted).

     Appellant takes issue with the following portions of the prosecutor’s

closing argument:

     [Commonwealth]:       So the law—as I was saying, the law
     recognizes justification.   And it’s, basically, reasonableness.
     What a reasonable person would do under the same
     circumstances. Now, the first thing is that the person—the
     defendants in this situation must have clean hands. They must
     have clean hands. They have to be free from fault in order to
     say yes, I was justified in using deadly force. That means that
     they can’t escalate the situation, nor can they continue the
     situation. That’s what that means.

                                *     *      *

            The second thing is they have to be in a killed-or-be-killed
     situation. Once again, [a] killed-or-be-killed situation.

N.T., 4/20/15, at 194, 196.

     Although Appellant’s claim that the prosecutor misstated the law

governing self-defense is tenuous at best, even assuming, arguendo, that

the prosecutor misstated the law during closing arguments, it did not

necessitate a mistrial.   Our Supreme Court has held that even where a

prosecutor has misstated law during closing arguments, a claim of

prosecutorial misconduct will nonetheless fail where the trial court correctly

instructs the jury on the law and cautions the jury “to take the law from him



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and not from the attorneys.” Commonwealth v. Travaglia, 661 A.2d 352,

361 (Pa. 1995).

      In this case, the trial court provided the jury with detailed and proper

instructions on the law relating to self-defense and defense of others. See

N.T., 4/21/15, at 89-94. Appellant did not object to these instructions. See

id. Additionally, the trial court instructed the jury that it was to develop its

understanding of the law only from the instructions of the court and not

counsel.   N.T., 4/20/15, at 199-200.         Therefore, we conclude that even

assuming, arguendo, that the prosecutor misstated the law relating to self-

defense, the trial court’s instructions to the jury cured any defect.

Accordingly, the trial court did not abuse its discretion in denying Appellant’s

request for a mistrial.

      Fifth, Appellant challenges the discretionary aspects of his sentence.

Appellant argues that his sentence of 17 to 35 years of incarceration is

“manifestly excessive” and “clearly unreasonable.” Appellant’s Brief at 39-

40. Appellant specifically contends that the trial court failed to consider his

rehabilitative needs, his minimal risk of recidivism, mitigating factors such as

his lack of a prior criminal history and his reputation in the community, and

otherwise fashion an individualized sentence.

      “The right to appellate review of the discretionary aspects of a

sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.


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2014), appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a

four-part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence.” Id. We conduct this four-part test to

determine whether:

      (1) the appellant preserved the issue either by raising it at   the
      time of sentencing or in a post[-]sentence motion; (2)          the
      appellant filed a timely notice of appeal; (3) the appellant    set
      forth a concise statement of reasons relied upon for            the
      allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and      (4)
      the appellant raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

      Here, Appellant preserved his discretionary aspects of sentencing claim

by raising it in a post-sentence motion.         See Appellant’s Motion for

Reconsideration of Sentence, 9/18/15. Appellant also filed a timely notice of

appeal and included in his appellate brief a concise statement of the reasons

relied upon for the allowance of his appeal pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f).     See Appellant’s Brief at 39-40.      Thus, we

must determine whether Appellant’s discretionary aspects of sentencing

claim raises a substantial question for our review.

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      Appellant argues, inter alia, that his sentence is excessive and that the

trial court failed to consider mitigating factors when it sentenced him. This

Court has held “that an excessive sentence claim—in conjunction with an

assertion that the court failed to consider mitigating factors—raises a

substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014) (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.

Super. 2005)).     Accordingly, we turn our attention to the merits of

Appellant’s sentencing claim.

      Our standard of review for discretionary aspects of sentencing claims

is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Id. (quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.

Super. 2006)).

      Section 9721(b) of the Sentencing Code sets forth general sentencing

standards for trial courts and provides, in pertinent part:

         (b) General standards.—. . . the court shall follow the
      general principle that the sentence imposed should call for
      confinement 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. . . . In every case in which the court imposes a
      sentence for a felony or misdemeanor, modifies a sentence,

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     resentences an offender following revocation of probation,
     county intermediate punishment or State intermediate
     punishment or resentences following remand, the court shall
     make as a part of the record, and disclose in open court at the
     time of sentencing, a statement of the reason or reasons for the
     sentence imposed.

42 Pa.C.S.A. § 9721(b).

     Our review of the discretionary aspects of a sentence is confined by

the statutory mandates of 42 Pa.C.S.A. § 9781(c) and (d).          Subsection

9781(c) provides:

     The appellate court shall vacate the sentence and remand the
     case to the sentencing court with instructions if it finds:

           (1) the sentencing court purported to sentence
           within the sentencing guidelines but applied the
           guidelines erroneously;

           (2) the sentencing court sentenced within the
           sentencing guidelines but the case involves
           circumstances where the application of the guidelines
           would be clearly unreasonable; or

           (3) the sentencing court sentenced outside the
           sentencing   guidelines and  the  sentence   is
           unreasonable.

     In all other cases the appellate court shall affirm the sentence
     imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c). In reviewing the record, we must consider:

           (1) The nature and circumstances of the offense and
           the history and characteristics of the defendant.

           (2) The opportunity of the sentencing court to
           observe the defendant, including any presentence
           investigation.

           (3) The findings upon which the sentence was based.

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J-A05029-18



              (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

      We conclude that the trial court did not abuse its discretion in

sentencing Appellant. Appellant concedes that he received a sentence in the

standard guideline range.      Appellant’s Brief at 40.    Additionally, the trial

court had a presentence investigation report and acknowledged reviewing it.

Id. at 19.      “[W]here the sentencing court imposed a standard-range

sentence with the benefit of a pre-sentence report, we will not consider the

sentence excessive.”       Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.

Super. 2011). Additionally, “[i]n those circumstances, we can assume the

sentencing    court   was    aware   of   relevant   information   regarding   the

defendant’s    character    and   weighed    those   considerations   along    with

mitigating statutory factors.”       Id. (quotations and citations omitted).

Moreover, the sentencing transcript reflects that the trial court took into

consideration the sentencing standards enunciated in Section 9721(b) and

mitigating factors such as Appellant’s positive reputation as a community

volunteer and a volunteer firefighter.          See N.T., 9/9/15, at 87-94.

Therefore, there is no support for Appellant’s claim that his sentence was

excessive and that the trial court did not take into consideration certain

mitigating factors in sentencing him.       Accordingly, Appellant’ discretionary

aspects of sentencing claim does not entitle him to relief.

      Finally, Appellant challenges the legality of several of his sentences.

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Appellant first argues the trial court improperly sentenced him on eight

different counts of conspiracy to commit various crimes—Counts 3, 10, 11,

12, 13, 14, 15, and 16 in the sentencing order.        See Sentencing Order,

9/5/15. Appellant contends that he was only charged with and convicted by

the jury of one count of conspiracy—Count 3 on the criminal information.

See Information, 12/13/13. The Commonwealth concedes that Appellant’s

sentences for conspiracy at Counts 10 through 16 were improper and does

not object to vacating those judgments of sentence and leaving in place only

his sentence for conspiracy at Count 3.        Commonwealth’s Brief at 51-52;

see also Commonwealth v. Schilling, 431 A.2d 1088, 1092 (Pa. Super.

1981) (“[I]t is well-settled law that a defendant can only be convicted of

crimes with which he was charged in the indictment or information, or

lesser-included offenses of those crimes.”).

      Therefore, we vacate Appellant’s sentences for conspiracy at Counts

10 through 16 but do not disturb his sentence at Count 3.            Because

Appellant’s sentence of 1 to 2 years of incarceration for conspiracy was for

Count 12 and his sentence for conspiracy at Count 3 was ordered to be

served concurrently with his sentence for attempted murder, vacating

Appellant’s judgment of sentence at Count 12 has reduced Appellant’s

aggregate sentence and disrupted the trial court’s sentencing scheme.

      Furthermore, Appellant argues that we must vacate his sentences for

attempted theft and attempted receiving stolen property. Appellant asserts,


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inter alia, that his convictions of attempted theft and attempted receiving

stolen property merge with his conviction of robbery for purposes of

sentencing. The Commonwealth agrees that these convictions merge with

Appellant’s conviction of robbery for sentencing purposes. Commonwealth’s

Brief at 52.

      Thus, we vacate Appellant’s judgments of sentence for attempted theft

and attempted receiving stolen property.      Because Appellant received a

consecutive sentence of 2½ to 5 years of incarceration for his conviction of

attempted theft, vacating his judgment of sentence for that charge has also

reduced his aggregate sentence and disrupted the trial court’s sentencing

scheme.        Vacating Appellant’s sentence for attempted receiving stolen

property does not affect his aggregate sentence because the trial court

ordered it to be served concurrently with his sentence for attempted theft.

      Additionally, Appellant argues that his conviction of PIC merged with

his conviction of attempted murder for sentencing purposes because they

are both inchoate crimes. In support of this claim, Appellant cites Section

906 of the Pennsylvania Crimes Code, which provides as follows: “A person

may not be convicted of more than one of the inchoate crimes of criminal

attempt, criminal solicitation or criminal conspiracy for conduct designed to

commit or to culminate in the commission of the same crime.”          See 18

Pa.C.S.A. § 906. By the plain language of the statute, PIC is not included in

Section 906.      See Commonwealth v. Lee, 566 A.2d 1205, 1208 (Pa.


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Super. 1989) (holding that Section 906, which prohibits multiple convictions

of inchoate crimes, does not include PIC).               Accordingly, Appellant’s

conviction of PIC did not merge with his conviction of attempted murder for

sentencing purposes.

      Lastly, Appellant argues that we should vacate his judgment of

sentence for aggravated assault because that conviction merged with his

conviction of attempted murder for sentencing purposes.          Once again, the

Commonwealth      concedes     that   this   Court    should   vacate    Appellant’s

judgement of sentence for aggravated assault.           See Commonwealth v.

Anderson, 650 A.2d 20, 24 (Pa. 1994) (holding that the crimes of

aggravated    assault    and   attempted     murder    merge    for     purposes   of

sentencing). Because the trial court ordered Appellant’s aggravated assault

conviction to be served concurrently with his attempted murder conviction,

vacating his judgment of sentence for aggravated assault does not disrupt

the trial court’s sentencing scheme.

      In sum, we vacate Appellant’s sentences for conspiracy (Counts 10

through 16), attempted theft, attempted receiving stolen property, and

aggravated    assault,   and   remand     for   resentencing   because      vacating

Appellant’s sentences for conspiracy at Count 12 and attempted theft

reduces his aggregate sentence and consequently, disrupts the trial court’s

sentencing scheme. Commonwealth v. McCamey, 154 A.3d 352, 359 (Pa.

Super. 2017) (resentencing is required where an order from the Superior


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Court disrupts the sentencing scheme). To clarify, upon remand, the court

shall sentence Appellant for the following convictions:

      Count 1 – Criminal Attempt (Murder) – 18 Pa.C.S.A. §§ 901(a), 2502

      Count 4 – PIC – 18 Pa.C.S.A. § 907(a)

      Count 6 – REAP – 18 Pa.C.S.A. § 2705

      Convictions affirmed.     Judgment of sentence vacated.          As our

disposition addresses the issues raised in the Commonwealth’s February 26,

2018 Petition for Leave to File Substituted Brief filed, the Petition is denied

as moot.    Case remanded for resentencing consistent with this decision.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/18




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