J-S30010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TRAVIS MICHAEL MAGASH                      :
                                               :
                       Appellant               :   No. 1561 WDA 2019

      Appeal from the Judgment of Sentence Entered September 16, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0003435-2018


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

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 23, 2020

        Travis Michael Magash (Appellant) appeals from the judgment of

sentence imposed after he was convicted of aggravated assault, strangulation,

simple assault, and harassment.1 Upon review, we affirm.

        In the early morning hours of June 16, 2018, Appellant assaulted his

paramour (Victim). Trial Court Opinion, 12/5/19, at 2-3. The Victim testified

that upon returning home from work, Appellant demanded they have sexual

intercourse. Id. at 3. When the Victim refused, Appellant threw a “tantrum.”

Id. Appellant became violent and punched the Victim in the face multiple

times. Id. At some point, the altercation moved to the floor. Id. Appellant

placed his hands around the Victim’s neck, continuously tightening his grip.
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*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702(a)(1), 2718(a)(1), 2701(a)(1), and 2709(a)(1).
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Trial Court Opinion, 12/5/19, at 3. As a result, the Victim lost consciousness.

Id.

       The Victim reported the assault to police and Appellant was charged with

the above crimes. On May 15, 2019, the case proceeded to trial, with the

aggravated assault, strangulation, and simple assault charges tried by a jury,

and the harassment charge, a summary offense, presented to the trial court.

Appellant was convicted of all charges. On September 16, 2019, the trial court

sentenced Appellant to an aggregate 9 to 30 years of imprisonment. 2

Appellant did not file post-sentence motions, but filed this timely appeal. Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

       Appellant presents three issues for review:

       [1.] Did the [t]rial [c]ourt err in denying Appellant’s motion to
       continue the matter in order to allow sufficient time for the review
       of approximately forty (40) letters written by the Appellant to the
       [V]ictim, when said letters were voluminous and were not
       provided to trial counsel until the morning of trial?

       [2.] Did the [t]rial [c]ourt [o]rder an illegal sentence when it
       sentenced Appellant to a consecutive term when the offenses of
       [a]ggravated [a]ssault and [s]trangulation should have merged
       for the purposes of sentencing?

       [3.] Did the [t]rial [c]ourt abuse its discretion in sentencing
       Appellant to an excessive prison term?

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2The trial court determined that Appellant’s simple assault conviction merged
with his aggravated assault conviction for sentencing purposes.          N.T.,
9/16/19, at 23. No further sentence was imposed for Appellant’s harassment
conviction. Id.

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Appellant’s Brief at 4.

      In his first issue, Appellant challenges the trial court’s denial of the oral

motion for continuance he made on the morning of trial. Appellant sought a

continuance after the Commonwealth, prior to opening arguments, turned

over approximately 40 letters Appellant wrote to the Victim while incarcerated.

Appellant’s Brief at 10. Appellant contends the trial court abused its discretion

in denying his request because Appellant “was compelled to alter his entire

defense strategy and outlook of the case on the morning of trial, based upon

voluminous evidence that he had not previously seen.” Id. at 13.

      The Pennsylvania Rules of Criminal Procedure provide that a trial court

“may, in the interests of justice, grant a continuance, on its own motion, or

on the motion of either party.” Pa.R.Crim.P. 106(A). “Appellate review of a

trial court’s continuance decision is deferential.” Commonwealth v. Norton,

144 A.3d 139, 143 (Pa. Super. 2016) (citation omitted). “The grant or denial

of a motion for a continuance is within the sound discretion of the trial court

and will be reversed only upon a showing of an abuse of discretion.” Id.

      [This] Court has observed that trial judges necessarily require a
      great deal of latitude in scheduling trials. Not the least of their
      problems is that of assembling the witnesses, lawyers, and jurors
      at the same place at the same time, and this burden counsels
      against continuances except for compelling reasons. However,
      the trial court exceeds the bounds of its discretion when it denies
      a continuance on the basis of an unreasonable and arbitrary
      insistence upon expeditiousness in the face of a justifiable request
      for delay. Accordingly, we must examine the reasons presented
      to the trial court for requesting the continuance, as well as the
      trial court’s reasons for denying the request.



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Id. (citations omitted). Further:

      A bald allegation of an insufficient amount of time to prepare will
      not provide a basis for reversal of the denial of a continuance
      motion. Instead, an appellant must be able to show specifically
      in what manner he was unable to prepare his defense or how he
      would have prepared differently had he been given more time.
      We will not reverse a denial of a motion for continuance in the
      absence of prejudice.

Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (citations

omitted).

      In this case, the trial court reasoned:

            At no time did [Appellant] deny authorship of the letters. As
      indicated in the record, [Appellant] knew he was going to trial. As
      the author of the letters, [Appellant] should have known of the
      contents of the letters. Only portions of eight (8) letters were
      used and the record demonstrates that [Appellant] was not
      disadvantaged because they were used in his cross-examination
      of the Victim. Additionally, counsel for [Appellant] produced and
      cross-examined the [V]ictim about letters the [V]ictim had sent to
      [Appellant]. None of the letters were sent out with the jury.
      [Appellant] does not specify how the court’s denial of the
      continuance request to review [Appellant’s] letters to the [V]ictim
      impacted the trial or caused prejudice to [Appellant].

            As [Appellant] did not specify what prejudice he suffered by
      the denial of the continuance request to review the letters, it is
      not for this court to speculate or guess as to what that prejudice
      might be. As [Appellant] has not identified nor demonstrated any
      prejudice suffered as a result of the denial of a continuance to
      review the letters he had written, it was not an abuse of discretion
      to deny the continuance request made by [Appellant].

Trial Court Opinion, 12/5/19, at 14 (citations and footnote omitted).

      We discern no abuse of discretion. As the trial court stated, Appellant

has not denied writing the letters, or their authenticity. See Appellant’s Brief

at 4. Thus, Appellant knew of the letters’ existence and their content prior to

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the Commonwealth presenting them at trial.          Further, Appellant did not

articulate any prejudice from the court’s denial of a continuance. To the extent

Appellant may have been disadvantaged by the introduction of the letters,

such disadvantage would be attributable to Appellant. This issue does not

merit relief.

      Appellant next challenges the legality of his sentence, arguing that his

convictions of aggravated assault and strangulation should have merged for

sentencing purposes. See Appellant’s Brief at 15-19. “A claim that the trial

court imposed an illegal sentence by failing to merge sentences is a question

of law. Accordingly, our standard of review is plenary.” Commonwealth v.

Williams, 958 A.2d 522, 527 (Pa. Super. 2008) (citing Commonwealth v.

Snyder, 870 A.2d 336, 349 (Pa. Super. 2005).

      The Sentencing Code provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. “As our Supreme Court has explained, the mandate of

Section 9765 is clear. It prohibits merger unless two distinct facts are present:

1) the crimes arise from a single criminal act; and 2) all of the statutory

elements of one of the offenses are included in the statutory elements of the

other.” Commonwealth v. Taylor, 61 A.3d 1043, 1046 (Pa. Super. 2013)

(citation omitted).   “The preliminary consideration is whether the facts on

which both offenses are charged constitute one solitary criminal act. If the

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offenses stem from two different criminal acts, merger analysis is not

required.” Commonwealth v. Healey, 836 A.2d 156, 157-58 (Pa. Super.

2003) (citation omitted).

      Appellant was convicted of both aggravated assault and strangulation.

“A person is guilty of aggravated assault if he . . . attempts to cause serious

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

recklessly under circumstances manifesting extreme indifference to the value

of human life[.]” 18 Pa.C.S.A. § 2702(a)(1).

      With regard to strangulation:

      (a) Offense defined.--A person commits the offense of
      strangulation if the person knowingly or intentionally impedes the
      breathing or circulation of the blood of another person by:

            (1) applying pressure to the throat or neck . . .

18 Pa.C.S.A. § 2718(a)(1).

      Appellant argues that the two crimes should merge because his repeated

punching of the Victim’s face is insufficient to support a conviction of

aggravated assault, and therefore the strangulation of the Victim constitutes

a solitary criminal act on which both convictions of aggravated assault and

strangulation were based.    See Appellant’s Brief at 19 (“[T]he aggravated

assault and strangulation charges resulted from the same criminal act: the

choking of [Victim].”). We disagree.

      This Court has previously stated:

      The threshold question is whether [a]ppellant committed one
      solitary act. The answer to this question does not turn on whether


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      there was a “break in the chain” of criminal activity. Rather, the
      answer turns on whether the actor commits multiple
      criminal acts beyond that which is necessary to establish
      the bare elements of the additional crime. If so, then the
      [appellant] has committed more than one criminal act. This focus
      is designed to prevent defendants from receiving a ‘volume
      discount on crime’ of the sort described in our Supreme Court’s
      decision in [Commonwealth v. Anderson, 650 A.2d 20 (Pa.
      1994)]:

            If multiple acts of criminal violence were regarded as
            part of one larger criminal transaction or encounter
            which is punishable only as one crime, then there
            would be no legally recognized difference between a
            criminal who robs someone at gunpoint and a criminal
            who robs the person and during the same transaction
            or encounter pistol whips him in order to effect the
            robbery. But in Pennsylvania, there is a legally
            recognized difference between these two crimes. The
            criminal in the latter case may be convicted of more
            than one crime and sentences for each conviction may
            be imposed where the crimes are not greater and
            lesser included offenses.

Commonwealth v. Ousley, 21 A.3d 1238, 1243 (Pa. Super. 2011) (citations

omitted, emphasis added).

      The elements of aggravated assault and strangulation are distinct.

Appellant’s assault of the Victim, during which he both punched and choked

her, provided the factual basis for Appellant’s aggravated assault conviction.

See Criminal Information, 9/27/18.         Appellant’s choking of the Victim,

applying pressure to her throat and impeding her breathing, provided the

basis for Appellant’s strangulation conviction.      See id.     With aggravated

assault, Appellant committed criminal acts beyond that which were necessary

to establish the elements of strangulation, e.g., punching of Victim’s face. See

Ousley,   21   A.3d   at   1243;   see   also   18   Pa.C.S.A.    §   2718(a)(1);

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Commonwealth v. Frasier, 1453 MDA 2019, 2020 WL 1490937 (Pa. Super.

Mar.   27,   2020)     (non-precedential       decision)   (affirming   convictions   of

aggravated assault and strangulation where the factual basis for aggravated

assault included both the choking and punching of the victim).3 Accordingly,

the trial court did not err by imposing separate sentences on Appellant’s

aggravated assault and strangulation convictions. 000

       In his third issue, Appellant challenges the discretionary aspects of his

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.

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
       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).

       Appellant filed a timely notice of appeal and has included in his brief a

Rule 2119(f) concise statement.            See Appellant’s Brief at 7.       However,

____________________________________________


3“Non-precedential decisions filed after May 1, 2019, may be cited for their
persuasive value[.]” 210 Pa. Code § 65.37(B).

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Appellant has failed to preserve his discretionary claim because he did not

raise it at the time of sentencing or in a post-sentence motion.

        It is well settled that issues “not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Further,

“where the issues raised assail the trial court’s exercise of discretion in

fashioning the defendant’s sentence, the trial court must be given the

opportunity to reconsider the imposition of the sentence either through the

defendant raising the issue at sentencing or in a post-sentence motion.”

Commonwealth v. Cramer, 195 A.3d 594, 610 (Pa. Super. 2018) (citation

omitted).     “[T]he failure to do so results in waiver of those claims.”          Id.

(citations omitted). “Moreover, a party cannot rectify the failure to preserve

an    issue   by   proffering    it   in   response   to   a   Rule   1925(b)   order.”

Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469 (Pa. Super. 2017)

(citations and emphasis omitted). Finally, we will not overlook waiver simply

because the trial court substantively addressed the issue in its opinion. See

Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287-89 (Pa.

Super. 2004) (en banc).          In sum, because Appellant did not file a post-

sentence motion or challenge the trial court’s discretion at sentencing,4 his

third issue is waived.

        Judgment of sentence affirmed.


____________________________________________


4   See N.T., 9/16/19, at 1-24.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2020




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