J-S44021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOEL SENESTANT,

                            Appellant                   No. 1311 EDA 2015


             Appeal from the Judgment of Sentence March 27, 2015
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0015924-2013, CP-51-CR-0015925-
                                      2013


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED SEPTEMBER 01, 2017

        Appellant, Joel Senestant, appeals from the judgment of sentence

entered following his convictions of one count each of aggravated assault,

firearms not to be carried without a license, possession of an instrument of

crime, intimidation of a witness, retaliation against a witness, and

possession of a firearm by prohibited person.1 We affirm.

        The trial court set forth the underlying facts of this case as follows:

              Facts supporting the verdicts of guilty stemmed from
        events beginning October 24, 2013 when a shooting occurred on
        the 800 Block of North 66th Street in Philadelphia. Specifically,
        Philadelphia Police Officer John Rubino responded to a radio call
        for a person with a gun and a person shot on the highway. (N.T.
____________________________________________


1
   18 Pa.C.S. §§ 2702(a)(1), 6106(a)(1), 907, 4952(a)(1), 4953, and
6105(a)(1), respectively.
J-S44021-17


     01/23/2015, pp. 151-152). Upon arriving at 878 North 66th
     Street, Officer Rubino came into contact with the victim Vernon
     Oliver sitting inside his residence at 878 North 66th Street,
     profusely bleeding from his lower left leg. (N.T. 01/23/2015,
     pgs. 151-152). During the investigation Officer Rubino learned
     that Mr. Oliver was approached by a black male, around five-
     foot-eight, glasses, wearing a gray hoodie. This male pulled out
     a handgun and started shooting multiple times at Mr. Oliver as
     he fled in fear into his residence. Mr. Oliver was transported to
     Hospital of the University of Pennsylvania by medics and treated
     for his leg injuries and loss of blood. Id.

           Detective Deayoung Park credibly testified that he arrived
     on scene after uniformed Philadelphia police officers secured the
     scene where he recovered three fire cartridge casing (FCC) for a
     .22 caliber firearm. After leaving the crime scene, Detective
     Park had a brief opportunity to speak with Mr. Oliver at the
     hospital. Mr. Oliver stated to Detectives that he had recognized
     the male who shot him. Detective Park further testified that
     Mr. Oliver was obviously in so much pain, he told Mr. Oliver
     follow-up would continue at the police station the next day.
     (N.T. 01/23/2015, pgs. 164-168).

           Mr. Oliver again indicated that he recognized the male who
     shot him as someone from the neighborhood, named “Joel.” He
     further explained that “Joel” was the same man whom he had
     had an argument with on October 23, 2013, the night before the
     shooting. (N.T. 01/23/2015, pg. 168). During trial, Philadelphia
     Police Officer James Little testified that he responded to the area
     of 878 North 66th Street in Philadelphia on October 23, 2013.
     Earlier that evening there had been a radio call for a person with
     a gun. (N.T. 01/23/2015, pg. 159). Upon arriving on location,
     Officer Little had not found a victim. Id. On that same night in
     question, October 23, 2013, Officer Rubino also responded to a
     radio call in the same area of the 800 block of North 66 th Street.
     (N.T. 01/23/2015, pg. 148).            Specifically, Officer Rubino
     responded to the same general area of 66th and Leeds Street for
     a robbery in progress. The complainant on that night was a
     white male, who told officers he had been robbed by
     approximately 10 black males for his Xanax pills[.]           (N.T.
     01/23/2015, pg. 148). Mr. Oliver further verified the occurrence
     of a robbery on October 23, 2013 when he testified at trial on
     January 23, 2015.


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J-S44021-17


            While Mr. Oliver was an extremely reluctant witness, the
     trial court determined that his prior recorded statements to
     police officers about the robbery were credible and corroborated.
     Specifically, the Commonwealth confirmed through Mr. Oliver’s
     previous statements to police that he had earlier witnessed a
     group of black males surrounding and talking to the “white
     dude.” (N.T. 01/23/2015, pg. 72). Mr. Oliver further recalled
     seeing the police canvasing the area. About fifteen minutes
     after the police left the area, Mr. Oliver took his dog for a walk
     and asked some young guys in the area about what happened.
     Id. He further testified that while walking his dog he noticed
     some blue-shaped pills on the ground. After he bent down to
     pick the pills up, a black male wearing glasses and a hoodie
     walked up stating “give me money for my pills.”              (N.T.
     01/23/2015, pgs. 73-74). Mr. Oliver testified that during the
     verbal exchange with this black male, he recognized him to be
     Joel from the neighborhood. Id. After arguing over whose pills
     were on the ground, Mr. Oliver smacked [Appellant’s] hands off
     of him because [Appellant] attempted to grab Mr. Oliver while
     screaming for his money. Additionally, Mr. Oliver’s statements
     to police corroborated that the man whom he had an altercation
     over Xanax pills with on October 23, 2013, was the same
     person, [Appellant], who shot him in the lower left leg on
     October 24, 2013.        Id.   The entire testimony established
     [Appellant] to be the individual involved on both nights in
     question.

           Detective Park also testified that after Mr. Oliver left
     Southwest Detectives on October 25, 2013, Mr. Oliver contacted
     detectives regarding a number of threatening phone calls he
     received on his cell phone. Detective Park convinced Mr. Oliver
     to report the threats to him to Detectives from the Southwest
     Division on October 30, 2013. In this second interview, Mr.
     Oliver reported that he received two blocked phone calls after
     leaving a CVS pharmacy to fill his prescription on October 25,
     2013. Mr. Oliver stated to Detective Park that he recognized the
     voice to be that of [Appellant]. Mr. Oliver stated that [Appellant]
     threatened him during the two phone calls.            In the first
     telephone call, he remembered [Appellant] saying: “You know
     why I shot you.” Within the second phone call [Appellant]
     stated: “You lucky I didn’t get you coming from the CVS.” (N.T.
     01/23/2015, pp. 173-176).




                                    -3-
J-S44021-17


            Southwest Detectives searched the incoming phone
      records of [Mr.] Oliver’s phone and discovered two incoming
      calls to [Mr.] Oliver’s telephone recorded from the number
      (484)-751-[****] one minute apart from each other. Pursuant
      to a duly authorized search warrant for [Appellant’s] residence,
      detectives recovered a blue pre-paid Cricket cellular telephone
      and a black iPhone. Since it was a pre[-]paid cell phone,
      subscriber information could not be found in the database
      detectives use when searching for information pertaining to a
      specific phone. Detective Park, however, testified that a name
      must be associated with a pre[-]paid cell phone, and in this
      instance, the name “Bad man” was listed for the Cricket cell
      phone. Upon further investigation it was determined that the
      number associated with the Cricket cell phone recovered from
      [Appellant’s] house matched the repeated incoming calls to
      [Mr.] Oliver. (N.T. 01/23/2015, pp. 179-185).

Trial Court Opinion, 4/8/16, at 5-8.

      In addition, the trial court summarized the procedural history of this

case as follows:

            The underlying case stems from the November 23, 2015
      arrest of [Appellant] for shooting Vernon Oliver in front of the
      victim’s residence in the 800 Block of North 66th Street in
      Philadelphia on October 24, 2015, and for subsequently
      repeatedly threatening the same shooting victim. Following
      arraignment, preliminary hearing and filing of charging Bills Of
      Information the charges docketed under CP-51-CR-0015924-
      2013 included Criminal Attempt-Murder §901 §§A, Felony First
      Degree, Aggravated Assault, §2702 §§A1 Felony First Degree,
      Possessing Instrument of Crime §907 §§A, Misdemeanor First
      Degree, and enumerated Violations of the Uniform Firearms Act
      including offenses under §6105 §§A1- Carrying A Firearm as a
      Prohibited Person, Felony Second Degree; F-2, §6106 §§A1-
      Firearms Not To Be Carried Without License, Felony Third
      Degree; §6108 Carrying Firearm Public Street In Philadelphia,
      Misdemeanor First Degree. The charges of Intimidation of a
      Witness, §4952 §§A1, Felony First Degree, and Retaliation
      Against a Witness, §4953§§A, Felony Third Degree were
      docketed under CP-51-CR-0015925-2013.         All charges were
      consolidated for a jury trial.


                                       -4-
J-S44021-17


            On January 20, 2015, jury selection began before the
     Honorable Anne Marie B. Coyle[,] Judge of the Court of Common
     Pleas for the First Judicial District. After several jurors were
     selected, Pierre LaToure, Esquire, as trial counsel for [Appellant],
     raised an untimely objection to the method which the trial court
     had prioritized available randomly selected jurors based upon
     the prospective juror written responses on their completed
     written questionnaire forms. Although the trial court did not
     agree to the belated objection, the trial court gave [Appellant]
     more benefit than due and granted [Appellant’s] requested
     remedy. This Court dismissed all previously selected jury panel
     members, and began the selection process anew before any
     panel was sworn.        Inexplicably, after this Court granted
     [Appellant’s] motion, [Appellant], by and through his counsel,
     orally moved for this [c]ourt’s recusal on January 22, 2015
     alleging judicial bias without supporting basis. Hearing zero
     legitimate reason for this request, this [c]ourt properly denied
     the Motion for Recusal.      An entirely new jury panel was
     empaneled without any further claim of judicial bias.

           On January 28, 2015, the jury entered verdicts of guilty to
     the charges of Aggravated Assault, § 2702 §§ A1 (F1), Firearms
     Not To Be Carried Without A License, 18 § 6106 §§ A1 (F3),
     Possession of an Instrument of Crime, 18 § 907 §§ A1 (M1),
     Intimidation of a Witness, § 4952 §§ A1 (F3), and Retaliation
     Against a Witness, §4953 §§ A (F3). The jury returned [a]
     verdict of not guilty to Criminal Attempt-Murder § 901 §§ A (F1).
     Pursuant to agreement of the parties, the bifurcated offense of
     Possession of Firearm By Prohibited Person under 18 §6105 A1
     (F2) was incorporated into the record and the trial court
     recorded the corresponding verdict of guilty to this charge
     consistently with the jury verdicts. Subsequent to the entry of
     the verdicts, on January 28, 2015, this [c]ourt directed that
     comprehensive sentencing evaluations and mental health
     assessments to be completed of [Appellant] via authorized
     investigators and evaluators of the Court of Common Pleas Trial
     Division Adult Probation and Parole Department and scheduled
     the sentencing hearing for March 27, 2015.

           On March 27, 2015 this Court incorporated into the record
     all relevant data concerning [Appellant] from the completed
     Presentence      Investigation  Reports     and   Mental    Health
     Assessments. A full and fair sentencing hearing was conducted
     with all parties given the opportunity to be heard. After carefully

                                    -5-
J-S44021-17


     assessing all material sentencing factors including the required
     imposition of the applicable mandatory sentencing requirements
     for this individual, and the calculated sentencing guideline
     recommendations, this Court imposed the following sentences
     under CP-51-CR-0015924-2013 relative to the shooting of [Mr.]
     Oliver:

                Count 2: 18 Pa.C.S.A. § 2702 §§A1-
          Aggravated Assault (F1): State term of confinement
          for a minimum of 10 years to maximum 20 years;
          and

                Count 3: 18 Pa.C.S.A. § 6105 §§A1-Possession
          Of Firearm Prohibited (F2): State term of
          confinement for a minimum of 4 years to maximum
          of 10 years state term [of] confinement to run
          consecutively to confinement imposed for Count 2;
          and

                Count 4: 18 Pa.C.S.A. § 6106 §§A1-Firearms
          Not To Be Carried Without A License (F3): State term
          of confinement for a minimum period of 3 years and
          a maximum a period of 7 years to run consecutively
          to confinement imposed for Count 3; and

                Count 6: 18 Pa.C.S.A. § 907 §§A-Possession
          Instrument of Crime- No further penalty-Merged with
          Count 4.

          This Court imposed the following sentences under CP-51-
     CR-0015925-2013 for separate charges stemming from the
     subsequent threats and intimidation of the shooting victim:

                Count 1: 18 Pa.C.S.A. § 4952 §§A1-
          Intimidation Witness/Victim-Refrain From Reporting
          (F1): State term of confinement for a minimum
          period of 5 years and a maximum a period of 10
          years to run consecutively to confinement imposed
          under CP-51-CR-0015924-2013 Count 4; and

               Count 2: 18 Pa.C.S.A. § 4953 §§A-Retaliation
          Witness/Victim (F3): State term of confinement for a
          minimum period of 3 years six months and a
          maximum a period of 7 years to run consecutively to

                                  -6-
J-S44021-17


            confinement imposed        under   CP-51-CR-0015925-
            2013 Count 1.

            The aggregate sentences for the charges related to the
      shooting event was a period of state confinement from a
      minimum of 17 years to a maximum of 37 years. The aggregate
      sentence for the crimes related to the subsequent threatening
      intimidation of [Mr.] Oliver was a period of state confinement
      from a minimum of 8½ years to a maximum of 17 years. Thus,
      the total sentence for all offenses was a period of state
      confinement from a minimum of 25½ years to a maximum of 59
      years.    The remaining charges were Nolle Prossed.        The
      conditions of the sentences imposed included stay away from the
      victim and payment of fines and costs.

Trial Court Opinion, 4/8/16, at 1-4.

      Appellant did not file post-sentence motions.           On April 20, 2015,

Appellant filed this timely appeal.    Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

            1. Did the trial judge show such bias against [Appellant]
      during jury selection that she should have recused herself?

            2. Was the evidence presented at trial sufficient to show
      that [Appellant] intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life caused or attempted to cause serious bodily injury to
      the complainant?

            3. Did the trial court abuse its discretion by:

                   a. sentencing defendant in the aggravated
            range for Retaliation Against a Witness without
            identifying any aggravating factors?

                 b. sentencing defendant to an aggregate
            sentence of 306 to 648 months without considering
            the particular circumstances of the offense and the
            character of [Appellant] or referring to [Appellant’s]

                                       -7-
J-S44021-17


                prior criminal record, age, personal characteristics,
                and potential for rehabilitation?

                      c. failing to consider any mitigating factors?

Appellant’s Brief at 5-6.

          Appellant first argues that the trial court erred in refusing to recuse

itself.    Appellant’s Brief at 15-23.    Appellant asserts that the trial court’s

conduct during the jury selection process evidenced an intent to increase the

chances of Appellant’s conviction.

          The standard of review for the recusal of judges is as follows:

                 Our standard of review of a trial court’s determination not
          to recuse from hearing a case is exceptionally deferential. We
          recognize that our trial judges are “honorable, fair, and
          competent,” and although we employ an abuse of discretion
          standard, we do so recognizing that the judge himself is best
          qualified to gauge his ability to preside impartially.

                The party who asserts that a trial judge should
                recuse bears the burden of setting forth specific
                evidence   of   bias,  prejudice,    or   unfairness.
                “Furthermore, a decision by the trial court against
                whom the plea of prejudice is made will not be
                disturbed absent an abuse of discretion.”

Commonwealth v. Postie, 110 A.3d 1034, 1037 (Pa. Super. 2015)

(quoting Commonwealth v. Harris, 979 A.2d 387, 391-392 (Pa. Super.

2009)) (citations omitted).

          The trial court thoroughly addressed this issue of the request for

recusal as follows:

                In the instant case, Pierre LaToure, Esquire, as
          [Appellant’s] trial attorney, motioned for this court’s recusal
          after this [c]ourt reluctantly granted [Appellant’s] requested

                                         -8-
J-S44021-17


     remedy to dismiss the previously agreed upon and selected
     jurors. The originally stated reason for the request to dismiss
     jury panelists was rooted in an untimely objection to the
     [c]ourt’s acknowledged and accepted practice of prioritizing
     prospective jurors. As both attorneys were aware, this [c]ourt
     divided the packet of 40 random prospective panelists sent from
     the jury room pool into priority “A” and “B” list based upon
     previously recorded written responses on the jury questionnaire
     form that indicated the level of a panelist’s willingness and ability
     to fairly serve as a juror. Copies of the questionnaire sheets,
     which reflected the divided groups, are given to both parties
     through their counsel to review before and during jury selection
     process.    No objection was raised by either party or their
     respective counsel as to the trial court’s method until most of the
     prospective panel members had been selected as agreed upon
     jurors and the “B” list members were no longer available.

           Belatedly, [Appellant], by and through his counsel, raised
     an objection and argued that it was unfair that the trial court
     included two prospective pool members into the “B” list because
     they answered they were less likely to believe the testimony of a
     police officer or law enforcement official solely based on that
     person’s job in law enforcement. Counsel for [Appellant] argued
     that since the [c]ourt included in the “A” list persons, who had
     answered in the affirmative to the written question: “Are you are
     more likely to believe the testimony of a police officer or law
     enforcement just because of that person’s job,” persons who had
     responded that they were less likely to believe police officers or
     persons in law enforcement just because of their position should
     have also been included in the “A” list.

            This [c]ourt believed that [Appellant’s] objection to the
     method of jury selection was waived because it was untimely
     raised. This [c]ourt disagreed with [Appellant’s] assumption of
     the equality of the prospective juror’s reasoning for such
     differences in responses did not necessarily follow with respect
     to potential rehabilitation. This [c]ourt concluded from past
     experience that it was far often easier to rehabilitate a
     prospective juror who indicated affirmative respect or preference
     for law enforcement than a juror who began the questionnaire
     process with a bias against law enforcement. The prospective
     rehabilitative measure[s] are not equal because the human
     motivations for the opposing answers differ.


                                     -9-
J-S44021-17


            As to the waiver issue, Defense counsel raised the
      objection after a full day of jury selection completed with the “A”
      and “B” method as described.            He claimed that he had
      misunderstood this [c]ourt’s process.          Ironically, only two
      additional prospective jurors would have been added to
      [Appellant’s] preference of “A” grouping. As all parties were
      aware those jurors were no longer available. In an abundance of
      caution, and to avoid any semblance of an appellate issue
      including ineffectiveness of counsel, this [c]ourt reluctantly
      granted [Appellant’s] Motion to strike the entire picked panel and
      begin the jury selection process anew.

            [Appellant], by and through his attorney, immediately
      followed this [c]ourt’s granting of [Appellant’s] requested
      remedy with a Motion For Recusal of this [c]ourt citing a bald
      allegation of judicial bias. This Motion For Recusal was properly
      denied on January 22, 2015 as a blatant attempt [at] forum
      shopping. The record reflects no legitimate basis for counsel's
      argument about judicial bias. This [c]ourt properly conducted
      the voir dire process with a brand new panel of forty prospective
      jurors with . . . no priority given beyond the number assigned in
      random order from the jury room. This [c]ourt no longer divided
      any jury group into “A” or “B” list order for inquiry.

            This [c]ourt fairly conducted an individual colloquy of each
      potential juror with zero complaint of judicial bias. In short, this
      [c]ourt granted a motion by counsel for a new jury, dismissed an
      entire jury panel, and fairly conducted [] individual colloquies of
      forty new potential jurors employing no priority selection.
      Additionally, this argument fails because this [c]ourt was not the
      finder of fact in this jury trial.

Trial Court Opinion, 4/8/16, at 9-11.

      Our review of the record fails to reflect any evidence presented by

Appellant to establish that a conflict existed that would necessitate a recusal

by Judge Coyle.     Rather, Appellant’s assertion of a conflict warranting

recusal is a baseless allegation. Accordingly, we discern no bias, prejudice,

or unfairness on the part of Judge Coyle; nor is there any indication in the


                                     - 10 -
J-S44021-17


record that she abused her discretion in denying Appellant’s recusal motion.

Postie, 110 A.3d at 1037. Hence, Appellant’s first claim fails.

      Appellant next argues that the Commonwealth did not present

sufficient   evidence   to   support   his   conviction   of   aggravated   assault.

Appellant’s Brief at 24-28. Specifically, Appellant asserts that there was no

evidence presented at trial of any statements made before or during the

attack that might indicate an intent to inflict injury.        Id. at 26. Appellant

contends that “the intention of the shooter was far from obvious.” Id. at 27.

      We analyze arguments challenging the sufficiency of the evidence

under the following parameters:

             Our standard when reviewing the sufficiency of the
      evidence is whether the evidence at trial, and all reasonable
      inferences derived therefrom, when viewed in the light most
      favorable to the Commonwealth as verdict-winner, are sufficient
      to establish all elements of the offense beyond a reasonable
      doubt.     We may not weigh the evidence or substitute our
      judgment for that of the fact-finder. Additionally, the evidence
      at trial need not preclude every possibility of innocence, and the
      fact-finder is free to resolve any doubts regarding a defendant’s
      guilt 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. When evaluating the credibility and
      weight of the evidence, the fact-finder is free to believe all, part
      or none of the evidence. For purposes of our review under these
      principles, we must review the entire record and consider all of
      the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.

2006)).




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      The crime of aggravated assault is set forth at 18 Pa.C.S. § 2702 and

provides in relevant part as follows:

      (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. . . .

18 Pa.C.S. § 2702(a)(1). Serious bodily injury is 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.” 18 Pa.C.S. § 2301.

      As we expressed in Commonwealth v. Fortune, 68 A.3d 980 (Pa.

Super. 2013):

      For 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. An intent ordinarily must
      be proven through circumstantial evidence and inferred from
      acts, conduct or attendant circumstances.

Id., at 984 (citations omitted).        In addition, the Court in Fortune

summarized the following:

             The Pennsylvania Supreme Court in Commonwealth v.
      Alexander, 477 Pa. 190, 383 A.2d 887 (Pa. 1978) created a
      totality of the circumstances test to be used to evaluate whether
      a defendant acted with the necessary intent to sustain an
      aggravated assault conviction.          In Commonwealth v.
      Matthew, 589 Pa. 487, 909 A.2d 1254 (2006), that Court
      reaffirmed the test and articulated the legal principles which
      apply when the Commonwealth seeks to prove aggravated

                                    - 12 -
J-S44021-17


     assault by showing that the defendant attempted to cause
     serious bodily injury. Specifically, the Court stated, in relevant
     part, that:

           Alexander created a totality of the circumstances
           test, to be used on a case-by-case basis, to
           determine whether a defendant possessed the intent
           to inflict serious bodily injury. Alexander provided
           a list, albeit incomplete, of factors that may be
           considered in determining whether the intent to
           inflict serious bodily injury was present, including
           evidence of a significant difference in size or strength
           between the defendant and the victim, any restraint
           on the defendant preventing him from escalating the
           attack, the defendant’s use of a weapon or other
           implement to aid his attack, and his statements
           before, during, or after the attack which might
           indicate his intent to inflict injury. Alexander, at
           889. Alexander made clear that simple assault
           combined with other surrounding circumstances
           may, in a proper case, be sufficient to support a
           finding that an assailant attempted to inflict serious
           bodily injury, thereby constituting aggravated
           assault.

     Matthew, 909 A.2d at 1257 (citation and quotation marks
     omitted). The Court indicated that our case law does not hold
     that the Commonwealth never can establish a defendant
     intended to inflict bodily injury if he had ample opportunity to
     inflict bodily injury but did not inflict it. Rather, the totality of
     the circumstances must be examined as set forth by Alexander.

Fortune, 68 A.3d at 984. In Commonwealth v. Hall, 830 A.2d 537, 542

(Pa. 2003), our Supreme Court stated that in cases “[w]here the intention of

the actor is obvious from the act itself, the finder of fact is justified in

assigning the intention that is suggested by the conduct.”

     The trial court addressed Appellant’s challenge to the sufficiency of the

evidence with the following apt discussion:


                                    - 13 -
J-S44021-17


             Applying the totality of the circumstances test from
      Alexander, as well as the holding from Matthew, [Appellant] in
      the instant case possessed the requisite specific intent to cause
      serious bodily injury. While the complainant, Mr. Oliver, talked
      with a friend outside [of] his house, [Appellant] purposefully
      approached him, shot at him multiple times, and in so doing
      caused serious injury to his lower left leg. On the night of
      October 23, 2013, [Appellant] and Mr. Oliver g[o]t into an
      argument over ownership of previously dropped Xanax pills in a
      botched robbery of another male.        [Appellant] demand[ed]
      payment for them. The two men scuffle[d], and Mr. Oliver ha[d]
      to push the hand of [Appellant] off of him in order to get away
      and continue to walk his dog home. On the following evening,
      October 24, 2013, [Appellant] approached Mr. Oliver again,
      aimed and fired multiple times from a [.]22 caliber handgun at
      close range, and striking him in the lower left leg as Mr. Oliver
      fled into his home. Within those critical moments, [Appellant]
      manifested an extreme disregard for [Mr.] Oliver’s life.

             [Appellant] confirmed that he had the prerequisite
      malicious intent when he shot at [Mr.] Oliver, and when he
      subsequently threatened him commenting that he should have
      finished him off outside the drug store. Thus, the totality of the
      evidence amply supports the conviction of Aggravated Assault.

Trial Court Opinion, 4/8/16, at 13-14.

      We have thoroughly reviewed the certified record before us on appeal,

and we agree with the trial court’s determination that the Commonwealth

presented sufficient evidence to establish beyond a reasonable doubt that

Appellant committed the crime of aggravated assault.                Accordingly,

Appellant’s contrary claim lacks merit.

      Appellant’s final argument is that the trial court abused its discretion in

fashioning his sentence. Appellant’s Brief at 29-35. Appellant claims that he

should not have been sentenced within the aggravated range for the crime

of retaliation against a witness, that the sentencing court failed to properly

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J-S44021-17


consider the statutory sentencing factors, and the court failed to consider

mitigating factors. Id. at 32-35.

      We note that our standard of review is one of abuse of discretion.

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.   Commonwealth v. Shugars, 895 A.2d 1270, 1275

(Pa. Super. 2006). It is well settled that there is no absolute right to appeal

the discretionary aspects of a sentence.     Commonwealth v. Hartle, 894

A.2d 800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.    Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

            [W]e conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, see Pa.R.Crim.P.
            [720]; (3) whether appellant’s brief has a fatal
            defect, Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).




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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

     Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to

modify    the   sentence   imposed.     Moury,   992   A.2d   at   170   (citing

Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)).                       In

Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial

court will be deemed preserved for appellate review. Reeves, 778 A.2d at

692. Applying this principle, the Reeves Court held that an objection to a

discretionary aspect of a sentence is waived if not raised in a post-sentence

motion or during the sentencing proceedings.      Id. at 692-693.    See also

Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004) (holding

challenge to discretionary aspect of sentence was waived because appellant

did not object at sentencing hearing or file post-sentence motion);

Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000) (same).

     Herein, the first requirement of the four-part test is met because

Appellant timely brought this appeal.      However, our review of the record

reflects that Appellant did not meet the second requirement because he did


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not raise a challenge to the discretionary aspects of his sentence in a post-

sentence motion or at the time of sentencing. Therefore, we are constrained

to conclude that Appellant’s issue challenging the discretionary aspect of his

sentence is waived, and we are precluded from addressing the merits of his

issue on appeal. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2017




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