J-S05007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALBERT LABOY ARROYO                        :
                                               :
                       Appellant               :   No. 527 MDA 2019

        Appeal from the Judgment of Sentence Entered January 10, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0004471-2018


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

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 21, 2020

        Appellant, Albert Laboy Arroyo, appeals from the judgment of sentence

entered following his conviction of aggravated assault.1 We affirm.

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

               Carlos Lara, [Appellant’s] next-door neighbor, testified that
        on August 4, 2018 at approximately 6:00 p.m., he was sitting on
        his porch playing music. [Bench Trial, January 10, 2019, Notes of
        Testimony, pp. 8-10]. He had just come home from work and had
        consumed a couple of beers. [N.T., 1-10-19, p. 20]. [Appellant]
        started to play his own music next door, and the two men
        exchanged words. Mr. Lara testified that [Appellant] told him to
        “get in the street” so that the two men could fight physically. Mr.
        Lara suggested they go inside to fight, so he went down the stairs
        and turned down a shared walkway to open his door, and at that
        point felt something hit his head from behind. [N.T., 1-10-19, pp.
        11-13]. Mr. Lara described his injury as feeling very “hot” and
        painful, and he tried to stop the bleeding with a towel. Prior to
        being struck, he recalled [Appellant] telling [Appellant’s] brother,
        who was also present, that “with this hit I’m gonna leave him
____________________________________________


1   18 Pa.C.S. § 2702(a)(1).
J-S05007-20


     blind.” [N.T., 1-10-19, p. 33]. Mr. Lara was taken by ambulance
     to the hospital, where he received staples and stitches. He does
     not recall losing consciousness, but felt very weak and dizzy. Mr.
     Lara was out of work for approximately one month and testified
     that his vision is still blurry. [N.T., 1-10-19, pp. 12-18, 23].

            Officer Stephen Marte of the Harrisburg City Police
     Department testified that when he arrived at Mr. Lara’s residence
     on the evening in question, the ambulance was already on
     location. He observed Mr. Lara getting loaded into the ambulance
     and there was a pool of blood on the porch and a towel around
     Mr. Lara’s head with a lot of blood on it. [N.T., 1-10-19, p. 35-
     36]. He also noted a blood trail in the alleyway. [N.T., 1-10-19,
     p. 38]. Officer Marte spent a very short time with Mr. Lara before
     he was taken to the hospital, and was able to question him about
     who did this. Mr. Lara responded that it was his neighbor. Officer
     Marte knocked on [Appellant’s] door with no answer, and
     observed a broken piece of what looked like a cane, which he left
     at the scene as it had no blood on it. [N.T., 1-10-19, p. 38]. When
     Officer Marte arrived at the hospital, Mr. Lara was in bed, was not
     able to speak, and was wearing a neck brace and a wrap around
     his head. |N.T., 1-10-19, p. 39].

           Officer Marte called [Appellant’s] residence and identified
     himself as an officer investigating a potential assault, and that he
     would like to speak to him. [Appellant] agreed to talk to him and
     they met on [Appellant’s] porch. Officer Marte Mirandized him
     and asked if he was still willing to talk. [Appellant] explained that
     he was defending his little brother on the evening in question -
     that Mr. Lara was insulting his brother and an argument ensued.
     [Appellant] admitted to Officer Marte that he picked up a stick and
     struck Mr. Lara with it. [N.T., 1-10-19, pp. 41-42]. [Appellant]
     also claimed to have gotten rid of the stick. [N.T., 1-10-19, p.
     42].    Officer Marte observed photographs (Commonwealth’s
     exhibits 1 through 16) and testified that they reflected an accurate
     depiction of the injuries sustained to Mr. Lara’s head. [N.T., 1-
     10-19, pp. 47-48].

           [Appellant] testified at trial, and denied having been
     involved in the assault. Specifically, he stated that on the day in
     question he had been in the hospital all day, where he was being
     treated for dehydration. He got home at around 6:30 and, while
     his mom was preparing dinner, they heard an argument outside.
     Upon stepping outside, [Appellant] saw … Mr. Lara laying on the

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       floor.[2] [Appellant] testified that they tried picking him up, but
       he started screaming so they let him go and Mr. Lara left. [N.T.,
       1-10-19, pp. 51-52].        [Appellant] stated that Officer Marte
       contacted him about his next-door neighbor and he agreed to
       meet with him. [Appellant] testified that he told Officer Marte that
       some argument went down with his next door neighbor and,
       before anything else was said, Officer Marte put handcuffs on him
       and told him it was for the safety of both of them. [Appellant]
       said he was booked after that and was never Mirandized. [N.T.,
       1-10-19, pp. 53-55].

Trial Court Opinion, 6/25/19, at 1-3.

       In an information filed on November 8, 2018, Appellant was charged

with one count of aggravated assault. On January 10, 2019, at the conclusion

of a nonjury trial, Appellant was convicted of the sole criminal charge, and the

trial court immediately sentenced Appellant to serve a term of incarceration

of eight to twenty years.         Appellant filed a timely post-sentence motion

challenging the discretionary aspects of sentencing, which was denied on

March 7, 2019. This timely appeal followed. Both Appellant and the trial court

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

       Appellant presents the following issues for our review:

            I. WAS NOT THE EVIDENCE INSUFFICIENT TO SUSTAIN A
       CONVICTION FOR AGGRAVATED ASSAULT UNDER 18 Pa.C.S.
       §2702(a)(1) WHEN THE COMPLAINANT DID NOT SUFFER
       SERIOUS BODILY INJURY AND WHEN THE EVIDENCE WAS
       INSUFFICIENT TO SHOW THAT [APPELLANT] ATTEMPTED TO
       CAUSE SERIOUS BODILY INJURY?

            II. DID NOT THE COURT ABUSE ITS DISCRETION IN
       IMPOSING A JAIL SENTENCE OF 8 YEARS TO 20 YEARS BECAUSE:
____________________________________________


2 Contrary to his confession to the police, Appellant alleged that Mr. Lara had
fallen in a drunken stupor, which caused his injuries. N.T., 1/10/19, at 52.

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          (A) THE COURT IMPROPERLY APPLIED THE “DEADLY-
      WEAPON-USED”     ENHANCEMENT   OF   THE   SENTENCING
      GUIDELINES AND IMPROPERLY ASSIGNED AN OFFENSE GRAVITY
      SCORE OF 11; AND

           (B) THE IMPOSITION OF A SENTENCE OF 8 TO 20 YEARS
      WAS CLEARLY UNREASONABLE, SO MANIFESTLY EXCESSIVE AS
      TO CONSTITUTE AN ABUSE OF DISCRETION, AND INCONSISTENT
      WITH THE PROTECTION OF THE PUBLIC, THE GRAVITY OF THE
      OFFENSES, AND [APPELLANT’S] REHABILITATIVE NEEDS?

Appellant’s Brief at 5 (capitalization in original).

      Appellant first argues that there was insufficient evidence to support his

conviction of aggravated assault.        Appellant’s Brief at 19-31.    Initially,

Appellant contends that the Commonwealth failed to present evidence that

the complainant sustained serious bodily injury.       Id. at 22-29.   Appellant

claims that the evidence was “at most” sufficient to prove that he caused

“bodily injury.”     Id. at 22.      In addition, Appellant asserts that the

Commonwealth failed to establish that Appellant attempted to cause serious

bodily injury to the victim. Id. at 29-31.

      Our standard of review is well established:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that as a matter of law no probability of fact may
      be drawn from the combined circumstances. The Commonwealth

                                       -4-
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      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      Aggravated assault is defined in the crimes code, in relevant part, as

follows:

      § 2702. Aggravated assault.

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

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

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 (emphases added).

      In determining that Appellant’s challenge to the sufficiency of the

evidence lacked merit, the trial court offered the following conclusion:

      As recognized by the [trial court as] fact-finder, Mr. Lara was the
      victim of a surprise blow to the head from behind, by an
      instrument that caused serious bodily injury. [Mr. Lara’s] bleeding
      was excessive, he needed staples in his head, and his testimony
      reflects on-going issues with his vision. Viewing the evidence in
      the light most favorable to the Commonwealth, there was
      sufficient evidence of record to sustain [Appellant’s] conviction for
      aggravated assault.

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Trial Court Opinion, 6/25/19, at 7.

      Our review of the record reflects that Mr. Lara testified that during an

altercation with Appellant, he was struck on the head from behind.

N.T.,1/10/19, at 12-14. Mr. Lara explained that he was taken to the hospital

by ambulance, where he received staples and stitches to the crown of his

head. Id. at 15-16. In addition, Mr. Lara stated at trial that his vision remains

blurry. Id. at 15.

      Under the totality of the circumstances, the evidence presented at the

trial on January 10, 2019, viewed in the light most favorable to the

Commonwealth as the verdict winner, established that Mr. Lara was struck on

the head on August 4, 2018, and required medical attention. At Appellant’s

trial five months later, Mr. Lara expressed that his vision remains blurry. This

supports the fact finder’s conclusion that Mr. Lara has suffered a protracted

loss or impairment of the function of any bodily member or organ, which

satisfies the definition of a serious bodily injury beyond a reasonable doubt.

18 Pa.C.S. § 2301. Hence, Appellant’s contrary claim fails.

      In light of the fact that the Commonwealth established that Mr. Lara

suffered a serious bodily injury, we need not address Appellant’s alternate

claim that the Commonwealth failed to prove that Appellant attempted to

cause serious bodily injury to Mr. Lara.      See Appellant’s Brief at 29-31.

Accordingly, Appellant’s claim that the Commonwealth failed to present

sufficient evidence to support his conviction of aggravated assault lacks merit.

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       In his second issue, Appellant argues that the trial court abused its

discretion in imposing his sentence.           Appellant’s Brief at 32-36. Appellant

presents a two-fold claim. First, he contends that the trial court improperly

applied the deadly-weapon-used enhancement and incorrectly calculated his

offense gravity score.3 Id. at 32-34. Next, Appellant asserts that his sentence

was manifestly excessive and inconsistent with sentencing factors. Id. at 34-

36.

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). An appellant challenging the discretionary

aspects of his sentence must invoke this Court’s jurisdiction by satisfying a

four-part test:

____________________________________________


3 We observe that a “misapplication of the Sentencing Guidelines constitutes
a challenge to the discretionary aspects of sentence.” Commonwealth v.
Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en banc). Thus, this Court has
regarded challenges to the application of the deadly weapon enhancement in
the Sentencing Guidelines as challenges to the discretionary aspects of the
sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 915-916 (Pa.
Super. 2010) (treating allegation that the trial court erred in applying the
deadly weapon enhancement as a challenge to the discretionary aspects of
sentencing). Likewise, the calculation of an offense gravity score implicates
the discretionary aspects of sentencing. Commonwealth v. Sunealitis, 153
A.3d 414, 421 (Pa. Super. 2016) (quoting Archer, 722 A.2d at 210-211)
(addressing claim that the trial court erred in calculating offense gravity score
as a challenge to the discretionary aspects of sentencing). Accordingly, a
challenge to the application of the deadly weapon enhancement and a
challenge to the calculation of the offense gravity score cannot be appealed
as a matter of right and are subject to waiver. Archer, 722 A.2d at 210-211.


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      [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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

      Pennsylvania Rule of Appellate Procedure 302(a) provides 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). 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. 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. Reeves, 778 A.2d at 692-693; see also Commonwealth v.

Parker, 847 A.2d 745, 752 (Pa. Super. 2004) (holding challenge to

                                       -8-
J-S05007-20


discretionary aspect of sentence was waived because appellant did not object

at sentencing hearing or file post-sentence motion).

       Moreover, concerning the fourth part of our analysis, the question of

whether a particular issue constitutes a substantial question about the

appropriateness of sentence is a question to be evaluated on a case-by-case

basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

As to what constitutes a substantial question, this Court does not accept bald

assertions of sentencing errors.         Commonwealth v. Malovich, 903 A.2d

1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the

sentencing court’s actions violated the sentencing code. Id.

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

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

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

raise all of the instant challenges to the discretionary aspects of his sentence

in a post-sentence motion or at the time of sentencing. Specifically, in his

post-sentence motion, Appellant sought only a modification of the sentence,

which he claimed was excessive and unreasonable in light of his rehabilitative

needs.4 Post-Sentence Motion, 1/22/19 at 2. Likewise, Appellant challenged

____________________________________________


4In his post-sentence motion, Appellant presented the following argument in
an effort to achieve reconsideration of his sentence:

       9. Although the sentence was within the sentencing guidelines, a
       court may abuse its discretion in imposing such sentence if “the



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the application of the deadly weapon used enhancement at the time of

sentencing. N.T. (Sentencing), 1/10/19, at 2. Because these are the only

issues raised in the trial court, they are the only claims preserved for our

review. To the extent that Appellant presents another issue attempting to

challenge the discretionary aspect of sentencing, i.e. the calculation of his

offense gravity score, such claim is waived due to Appellant’s failure to present

it at the time of sentencing or in his post-sentence motion. Reeves, 778 A.2d

at 692-693. Thus, Appellant met the second part of the test only with regard

to his claims that the trial court abused its discretion in applying the deadly

weapon enhancement and in fashioning an excessive and unreasonable

sentence in light of his rehabilitative needs.

       With regard to the third requirement, we observe that Appellant

included in his appellate brief the necessary concise statement of the reasons

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore,

we next determine whether Appellant raises a substantial question requiring




____________________________________________


       case involves circumstances where the application of the
       guidelines would be clearly unreasonable.”          42 Pa.C.S.
       §9781(c)(2),      [Appellant’s] sentence was excessive and
       unreasonable and constitutes too severe a punishment in light of
       the rehabilitative needs of [Appellant]. The punitive measures
       inherent in the sentencing scheme could have been accomplished
       with a lesser sentence.

Post-Sentence Motion, 1/22/19, at 2.

                                          - 10 -
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us to review the discretionary aspects of the sentence imposed by the trial

court.

         In his Rule 2119(f) statement, Appellant argues that the trial court

abused its discretion by applying the deadly weapon used enhancement.

Appellant’s Brief at 15-16. We have stated that a challenge to the application

of the deadly weapon enhancement presents a substantial question.

Commonwealth v. Raybuck, 915 A.2d 125, 127 (Pa. Super. 2006).                 In

addition, Appellant contends the trial court abused its discretion by failing to

follow the requirements of the Sentencing Code, 42 Pa.C.S. § 9721(b),5 as it

allegedly ignored 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. Appellant’s Brief

at 15. We conclude that in this instance, Appellant has raised a substantial

question. See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.

2006) (concluding that the appellant raised a substantial question where it

was alleged that the trial court failed to consider the factors set forth in 42

Pa.C.S. § 9721(b)). Therefore, because Appellant raises substantial questions

in these two claims, we will address them on appeal.



____________________________________________


5 We note that the factors to be considered under 42 Pa.C.S. § 9721(b) include
the protection of the public, gravity of offense in relation to impact on victim
and community, and rehabilitative needs of the defendant.

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        It is undisputed that 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. Fullin, 892 A.2d at 847. In

this context, an abuse of discretion is not shown merely by an error in

judgment.     Id.   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.

        Indeed, the sentencing judge has broad discretion in determining the

proper penalty, and this Court accords the sentencing court great deference,

as it is the sentencing court that is in the best position to view the defendant’s

character, displays of remorse, defiance, or indifference, and the overall effect

and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (quotations and citations omitted).6         As previously stated, when




____________________________________________


6   The Walls Court instructed the following:

        In making this “unreasonableness” inquiry, the General Assembly
        has set forth four factors that an appellate court is to consider:

        (d) Review of the record.—In reviewing the record the appellate
        court shall have regard for:

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




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imposing a sentence, the sentencing court must consider “the protection of

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

the victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S. § 9721(b). As we have stated, “a court is required to

consider the particular circumstances of the offense and the character of the

defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).

“In particular, the court should refer to the defendant’s prior criminal record,

his age, personal characteristics and his potential for rehabilitation.” Id.

       The following is the applicable enhancement as contained in the

sentencing guidelines:

       §   303.10.  Guideline              sentence   recommendations:
       enhancements

       (a) Deadly Weapon Enhancement.

                                          ***

              (2) When the court determines that the offender used
              a deadly weapon during the commission of the current
              conviction offense, the court shall consider the
              DWE/Used Matrix (§ 303.18). An offender has used a
              deadly weapon if any of the following were employed
____________________________________________


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

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

              (4) The guidelines promulgated by the commission.

       42 Pa.C.S. § 9781(d).

Walls, 926 A.2d at 963.

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              by the offender in a way that threatened or injured
              another individual:

                                     ***

                   (iii)    Any device, implement, or
                   instrumentality capable of producing
                   death or serious bodily injury.

204 Pa.Code § 303.10(a)(2).      In addition, a deadly weapon is defined as

“[a]ny … device or instrumentality which, in the manner in which it is used or

intended to be used, is calculated or likely to produce death or serious bodily

injury.”   18 Pa.C.S. § 2301.   Moreover, we have stated that “[i]tems not

normally considered deadly weapons can take on such status based upon their

use under the circumstances.” Commonwealth v. Rhoades, 8 A.3d 912,

917 (Pa. Super. 2010).

      Before the deadly weapon enhancement can be applied to a guideline

sentence, the sentencing judge must first determine whether the offender

used a deadly weapon during the commission of the conviction offense. 204

Pa.Code § 303.10(a)(2). See also 204 Pa.Code § 303.9(b). For purposes of

the deadly weapon enhancement, the term “used” is defined to mean that the

weapon was “employed by the offender in a way that threatened or injured

another individual.”    204 Pa.Code § 303.10(a)(2).      Thus, under section

303.10(a)(2), when the trial court determines that the offender used a

weapon during the commission of the offense, the guideline applies if the

offender used the weapon in a way that threatened or injured another

individual.

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      With regard to his claim that the deadly weapon used enhancement was

not applicable, Appellant again argues “there was insufficient evidence for the

court to apply the [enhancement].”       Appellant’s Brief at 32.   Specifically,

Appellant contends “the evidence was insufficient to prove that [Mr. Lara]

suffered ‘serious bodily injury’ as defined in 18 Pa.C.S. § 2301. A finding that

there was no actual infliction of a ‘serious bodily injury’ … negates application

of the Deadly Weapon (Used) Enhancement.” Id. at 33.

      As discussed in our disposition of Appellant’s first issue, we conclude

that Mr. Lara suffered a serious bodily injury when he was struck on the head

by Appellant.   This is in harmony with the trial court’s determination that

Appellant used a stick in a way that caused serious bodily injury, and the

deadly weapon used enhancement applies. Thus, the trial court did not abuse

its discretion when it employed the deadly weapon used enhancement of the

sentencing guidelines. Consequently, Appellant’s contrary claim lacks merit.

      Appellant also argues that the trial court abused its discretion in

imposing an excessive sentence. Appellant’s Brief at 34-36. Appellant asserts

that “the court focused solely on the nature of the criminal conduct and the

need to protect others[.]” Id. at 35.

      As we previously stated, it is undisputed that 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. Fullin, 892

A.2d at 847. Again, the appellant must establish, by reference to the record,


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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.      Appellate review with respect to a

sentence     within   the   guidelines   is    whether   the   sentence   is   “clearly

unreasonable.” 42 Pa.C.S. § 9781(c)(2). In addition, we observe that the

Sentencing Guidelines, applying the “deadly weapon used” matrix, reflect that

an offense gravity score of eleven and a prior record score of five suggest a

minimum sentence of incarceration of ninety to 108 months. 204 Pa.Code §

303.17(b).    Instantly, Appellant’s minimum sentence is ninety-six months,

which is within the standard suggested range.

      Our review of the record reflects that, at the conclusion of his nonjury

trial, Appellant elected to proceed immediately to sentencing, as reflected in

the following discussion:

      THE COURT: … Now, when do you want to schedule sentencing?

      [ASSISTANT DISTRICT ATTORNEY]: Your Honor, I’m prepared to
      move forward to sentencing. I don’t know about [defense
      counsel].

      [DEFENSE COUNSEL]: Your Honor, we may want - - may I have
      time to confer with my client, please?

      THE COURT: Sure. I mean, I can order a PSI if you want.

      [DEFENSE COUNSEL]: Yeah, we may.

      THE COURT: Whatever you want to do.

      [DEFENSE COUNSEL]: Thank you. Your Honor, [Appellant] has
      asked that we proceed with sentencing right away.


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      THE COURT: All right. Come on up.

N.T., 1/10/19, at 57-58.

      Appellant then attempted to challenge the application of the deadly

weapon enhancement. N.T. (Sentencing), 1/10/19, at 3. The trial court then

addressed Appellant’s claim by recounting the facts of the assault and the

harm perpetrated upon Mr. Lara. Id. at 4. The trial court concluded:

            We saw the injuries and the damage that was done. That
      also, then, equates to the mechanism in which it was done and
      the indifference to human life. A striking of the head in such a
      manner that it was, we look at the relative difference also in the
      height, weight, and size and fortitude of the two individuals, and
      actually even noting that he was -- that the victim was in a bit of
      an intoxicated state weakens him even further in this
      circumstance. So, yeah, I do believe that in fact you have made
      out your deadly weapon enhancement.

Id. Hence, the trial court was aware of the particular facts of the crime and

the gravity of the offense. However, we also observe that the trial court was

sitting as the finder of fact and had just completed hearing the evidence in

this one-day trial and rendered its verdict. Accordingly, the trial court heard

Appellant’s testimony offered in his defense immediately before rendering the

verdict. N.T., 1/10/19, at 51-57. Specifically, the trial court was apprised of

Appellant’s age and his history with Mr. Lara, who was his neighbor. Id. at

51-52. The trial court was also made aware that Appellant had been in the

hospital the day of the incident suffering from dehydration. Id. In addition,

Appellant alluded to the fact that he has a criminal history. Id. at 53.

      During cross-examination, Appellant offered the following testimony:


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      Q. [Appellant], you do live next to Mr. Lara, correct?

      A. Yeah. That’s my home plan, yeah.

      Q. And you lived there for a while, correct?

      A. No. I just got — I just got out of jail a week before that.

N.T., 1/10/19, at 54.

      With regard to the incident, contrary to his confession to police,

Appellant alleged that Mr. Lara had fallen down in a drunken stupor, which

caused his injuries. Id. at 52. Appellant made the following comments about

the incident:

      A. … That’s — like I said, that’s not the first time. It happened a
      lot of time[s]. We see that victim laying down. We try and pick
      him up. He, like, nah, nah, nah. Start screaming. So we just left
      him there, give up. Because every time I try to help, he just
      screaming, keep screaming. So I just, look, I’m just goin’ to let
      him go, and bounce.

      Q. So you just left?

      A. I just left.

                                     ***

      Q. So the victim just had these injuries, this bloody mess, and
      you never called the ambulance or anything, correct?

      A. Correct.

Id. at 56-57.

      This testimony, offered immediately prior to the verdict and sentencing,

granted the trial court the ability to understand the circumstances of the

offense and the history and characteristics of Appellant, and is reflective of


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Appellant’s character and need for rehabilitation.     In light of these facts

presented to the trial court, we cannot conclude that the trial court abused its

discretion in fashioning a minimum sentence within the Sentencing Guidelines,

or that the sentence was clearly unreasonable. Hence, Appellant’s claim lacks

merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2020




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