J-S55001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES ROBERT HILL                          :
                                               :
                       Appellant               :   No. 192 WDA 2018

             Appeal from the Judgment of Sentence August 18, 2014
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0009750-2013


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 31, 2019

        James Robert Hill (Appellant) appeals from the judgment of sentence

entered after a jury found him guilty of attempt to commit homicide 1 and

related offenses.      Appellant claims that the trial court erred in admitting

evidence of his prior unrelated criminal sentence, denying his motion to

suppress a statement he gave police, and allowing certain cross-examination

of him by the Commonwealth. Appellant also asserts that the evidence was

insufficient to establish attempt to commit homicide; that two of his sentences

should have merged; and his aggregate sentence was excessive.             Upon

review, we affirm.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 901(a), 2501(a).
J-S55001-19


     The trial court summarized the evidence presented at trial as follows:

           On April 11, 2013, at approximately 1:30 a.m., [City of
     Pittsburgh police officers] observed a Chevrolet Malibu traveling
     at a high rate of speed [in the Homewood neighborhood] of
     Pittsburgh. After observing the vehicle fail to stop at a posted
     stop sign, officers attempted to initiate a traffic stop on the
     vehicle, at which time the vehicle fled at a high rate of speed
     before ultimately crashing into a wall[.]

           As officers approached the vehicle with weapons drawn,
     they gave verbal commands to the operator, later identified as
     Appellant . . . to show his hands. As Officer Morgan Jenkins
     approached [Appellant’s] vehicle, [Appellant] exited the vehicle
     and . . . shove[d and pinned Officer Jenkins to the door] before
     attempting to reenter his vehicle. . . . Other officers then
     intervened and attempted to extricate [Appellant] from his
     vehicle, at which time [Appellant] became combative, punching
     and shoving the officers. Officers attempted to employ a Taser to
     subdue [Appellant, but] were unsuccessful, and [Appellant] was
     able to escape. During the initial struggle with [Appellant], Officer
     Michelle Auge sustained multiple injuries, including two . . .
     fractured fingers and an orbital bone fracture.

     [Appellant] fled the scene on foot with officers giving chase.
     Officer Jenkins and Officer Auge eventually located [Appellant] on
     a wooded hillside near Chaucer Street. Officer Jenkins gave chase
     down the hillside while Officer Auge remained at the top of the
     hill. Moments later, Officer Auge heard gunshots and observed
     muzzle flashes coming from [Appellant’s] position. Officer Auge
     then heard Officer Jenkins shout, “I’m hit!” Officer Auge then fired
     three . . . rounds at [Appellant] from her position atop the hillside.

           When assisting officers arrived, they found Officer Jenkins
     and [Appellant] at the base of the wooded hillside. . . . Officers
     also discovered a 9mm semiautomatic handgun lying on the
     ground next to [Appellant].




                                     -2-
J-S55001-19


Trial Court Opinion, 5/17/19, at 2-3.2

        Officer Jenkins sustained two gunshots, a “graze” to his left tricep and

a shot to his left armpit. As a result of the latter, Officer Jenkins suffered a

permanent spinal cord injury and became paraplegic. N.T. Trial, 8/12/14, at

99, 109-110, 144, 149.3          Appellant was shot “five or six times” and was

transported to the hospital where, following surgery, he gave a recorded

statement to police. Id. at 438-439 (testimony of Appellant).

        Appellant was charged with one count each of attempt to commit

homicide, aggravated assault-serious bodily injury, aggravated assault-bodily

injury to a police officer (aggravated assault-police), assault of a law

enforcement officer, resisting arrest, persons not to possess firearms, firearms

not to be carried without a license, duties at stop signs, and fleeing or

attempting to elude officer.4

        Appellant filed a pre-trial motion to suppress the statement he made to

police at the hospital, averring that his waiver of Miranda5 rights was not


____________________________________________


2Appellant adopts this same recitation of facts. See Appellant’s Brief at 11-
13.

3The notes of testimony of the suppression hearing, four-day jury trial, and
guilty plea and sentencing hearing, are included in one transcript, dated
August 12 through 18, 2014. For ease of discussion, we cite the transcript
with the first date.

418 Pa.C.S.A. §§ 2702(a)(1), (3), 2702.1(a), 5104, 6105(a)(1), 6106(a)(1);
75 Pa.C.S.A. §§ 3323(b), 3733(a).

5   Miranda v. Arizona, 384 U.S. 436 (1966).

                                           -3-
J-S55001-19


knowing, voluntary or intelligent because of the effects of his post-surgery

pain medication.   Also prior to trial, the Commonwealth sought to present

evidence that approximately one year earlier, while Appellant was serving part

of a 3 to 6 year sentence at a halfway house, he unlawfully left that facility,

and an arrest warrant was issued for his escape. The Commonwealth averred

that this evidence was relevant to show Appellant’s motive to flee and elude

police on the night of the shooting.

      The trial court heard both parties’ motions on August 12, 2014. The

court permitted evidence of Appellant’s prior bad act, including, over

Appellant’s objection, the length of the prior sentence (3 to 6 years). The

court also denied Appellant’s suppression motion, allowing the Commonwealth

to introduce the statement he gave to police at the hospital. Ultimately at

trial, however, the Commonwealth did not present evidence of Appellant’s

statement.

      Following the suppression hearing, the case proceeded immediately to

the jury trial; the charge of persons not to possess firearms was severed to

be heard by the trial court. The Commonwealth called 14 witnesses, including

Officers Jenkins and Auge, experts in the field of firearms and neurosurgery,

and the supervisor at the halfway house from which Appellant escaped. The

Commonwealth played a “dash cam video” taken from Officers Jenkins and

Auge’s patrol car, which showed their pursuit of Appellant’s car, Appellant

driving through one stop sign, and Appellant assaulting both officers when he


                                       -4-
J-S55001-19


exited his car. See N.T. Trial, 8/12/14, at 81-82, 85. Dr. Robert Levine, an

expert in firearms and tool marks, opined that two cartridge casings recovered

from the scene were discharged from the 9 mm semiautomatic handgun found

near Appellant.    Id. at 346.     Dr. Levine further testified that the bullet

removed from Officer Jenkins’ spinal canal was a 9 mm caliber and could have

been fired from the gun found near Appellant. Id. at 350.

      Appellant testified in his own defense to the following: he acknowledged

that he had a gun and ran from Officers Jenkins and Auge. N.T. Trial, 8/12/14,

at 427. However, he denied driving through a stop sign and striking either

officer.   Id. at 429, 442, 444.    Appellant testified that as he ran into the

wooded area, he intended to discard his gun but stumbled, at which point he

was shot in the chest. Id. at 431-434, 454-455. Appellant tried to run again,

but collapsed and “passed out.” Id. at 436-437. When he woke up, he was

being “kicked in [his] back” by an officer and Appellant passed out again. Id.

at 438. When Appellant next awoke, he was in the hospital.         Id. at 438.

Appellant denied pointing his gun at anyone and repeatedly denied shooting

his gun at all.   Id. at 437, 440, 460-461, 467-468, 473-474, 476, 478.

Instead, Appellant stated on cross-examination, Officer Jenkins wanted to

shoot and kill him during the traffic stop but did not want to be recorded doing

so on the dash cam; Officer Jenkins thus waited until they were in the woods

before shooting him; it was Officer Auge who accidentally shot Officer Jenkins;

and the bullet removed from Officer Jenkins during surgery was switched with


                                      -5-
J-S55001-19


another bullet. Id. at 449-451, 489.

        The jury found Appellant guilty of all charges.        Additionally, the trial

court found Appellant guilty of persons not to possess firearms. N.T. Trial,

8/12/14, at 539. Appellant waived a presentence investigation report, and

the case proceeded immediately to sentencing, on August 18, 2014. The trial

court sentenced Appellant, who was then 25 years old, to an aggregate term

of 30 years and 9 months to 61½ years’ imprisonment, which included

multiple consecutive sentences.6

        Appellant filed an untimely post-sentence motion on October 31, 2014,7

and a pro se petition under the Post Conviction Relief Act8 (PCRA) on June 22,

2015. The trial court denied the PCRA petition, but upon remand following an

appeal to this Court, the trial court appointed current counsel and reinstated

Appellant’s    post-sentence      and    direct   appeal   rights   nunc   pro   tunc.

Commonwealth v. Hill, 184 WDA 2016 (Pa. Super. June 14, 2017)

(unpublished memorandum).

        Appellant filed a timely post-sentence motion on October 20, 2017,

which the trial court denied on January 19, 2018. Appellant filed a timely


____________________________________________


6 Appellant also pled guilty to escape under a different trial docket, 2013-
05910, for which the court sentenced him to 21 to 42 months’ imprisonment,
to run concurrently with the sentences in this case.

7 See Pa.R.Crim.P. 720(A)(1) (written post-sentence motion shall be filed no
later than 10 days after imposition of sentence).

8   42 Pa.C.S.A. §§ 9541-9546.

                                           -6-
J-S55001-19


notice of appeal and both he and the trial court have complied with

Pennsylvania Rule of Appellate Procedure 1925.         On appeal, Appellant

presents seven issues for our review:

     I. Did the Trial Court err or abuse its discretion when, over
     objection, it allowed Appellant’s prior sentences of three to six
     years on unrelated crimes to be admitted into evidence at trial,
     said evidence being unduly prejudicial and not relevant to the
     charges in the instant matter?

     II. Did the Trial Court err or abuse its discretion when it denied a
     motion to suppress Appellant’s statement taken while Appellant
     was at the hospital recovering from surgery, was on pain
     medication, and where Appellant was unable to make a knowing,
     intelligent and voluntary waiver of his Miranda rights due to being
     in pain and under the influence of narcotics?

     III. Did the Trial Court err or abuse its discretion when it, over
     objection, allowed cross examination of the Appellant when
     Appellant was asked if he believed Officer Morgan Jenkins had lied
     to the jury, testimony that was beyond the witness’s capacity and
     was a question for the jury?

     IV. Did the Commonwealth present sufficient evidence to prove
     beyond a reasonable doubt the charge of Criminal Attempt-
     Criminal Homicide and specifically that the Appellant had the
     specific intent to kill Officer Jenkins?

     V. Did the Trial Court err in imposing sentences for both the
     conviction for the charge of assault on a law enforcement officer
     and on the conviction for aggravated assault when these
     convictions should have merged for sentencing?

     VI. Did the trial court err or abuse its discretion in imposing a
     manifestly excessive and unreasonable sentence in the aggregate
     of thirty years and nine months to sixty-one and one-half years?

     VII. Did the Trial Court err or abuse its discretion when denying
     Appellant’s motion to modify or reduce sentence and failing to
     adequately consider the sentencing code set forth at 42 Pa.C.S.A.
     § 9721, et seq., in fashioning a harsh sentence of consecutive
     periods of incarceration for a period in the aggregate of thirty

                                    -7-
J-S55001-19


        years nine months to sixty-one and one-half years?

Appellant’s Brief at 7-8.

        Appellant first asserts that the trial court erred in admitting evidence of

his prior 3 to 6-year sentence.9 He acknowledges the Commonwealth’s intent

to establish motive with evidence of his escape from the halfway house, but

maintains that the length of his prior sentence was not relevant to motive.

Appellant contends that this evidence only caused the jury to speculate on the

seriousness of his prior crime and to “make assumptions [as to] his bad

character.” Appellant’s Brief at 20. We disagree.

        This Court reviews the admission of evidence for an abuse of discretion.

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa. Super. 2015) (en banc).

“An abuse of discretion is not a mere error in judgment but, rather, involves

bias,    ill   will,   partiality,   prejudice,   manifest   unreasonableness,   or

misapplication of law.” Id.

        “Evidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person

acted in accordance with the character.” Pa.R.E. 404(b)(1); see also Cox,



____________________________________________


9 Appellant also avers that the trial court erred in admitting evidence of his
arrest warrant for escape. Appellant’s Brief at 19. However, Appellant did
not raise this claim before the trial court — nor does he claim on appeal that
he did. See Pa.R.A.P. 2117(c) (statement of the case shall specify state of
the proceedings where question sought to be reviewed was raised).
Accordingly, this claim is waived. See Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on appeal.”).

                                           -8-
J-S55001-19


115 A.3d at 337 (“Evidence of a defendant’s prior criminal activity is

inadmissible to demonstrate his bad character or criminal propensity.”).

However, such “evidence may be admissible for another purpose, such as

proving motive[.] In a criminal case this evidence is admissible only if the

probative value of the evidence outweighs its potential for unfair prejudice.”

Pa.R.E. 404(b)(2).     To show motive, “there must be a specific ‘logical

connection’ between the other act and the crime at issue which establishes

that the [instant crime] grew out of or was in any way caused by the prior set

of facts and circumstances.” Cox, 115 A.3d at 337. “[T]he purpose of this

rule is . . . to preclude the inference that because [the defendant] has

committed other crimes[,] he was more likely to commit that crime for which

he is being tried.” Id.

      As stated above, the trial court allowed evidence of Appellant’s prior 3

to 6 year sentence to show motive, where Appellant “was the subject of an

active arrest warrant in connection with his escape from custody while serving

[that] sentence.” Trial Court Opinion, 5/17/19, at 6. At trial, Richelle Griffith,

a supervisor at the halfway house, testified that an inmate may be “pre-

released” to the halfway house, meaning he is transferred from prison before

completing his minimum sentence. N.T. Trial, 8/12/14, at 254-255. Upon

reaching his minimum sentence, a halfway house “resident” may be eligible

for review by the parole board. Id. at 256. Appellant was “pre-released” to

the halfway house in November 2011, and his minimum term of 3 years should


                                      -9-
J-S55001-19


have been completed in May 2012. Id. at 255-256. Appellant, however, left

the facility without permission on April 5, 2012, and an arrest warrant was

issued for him that same day. Id. at 258, 260.

      Supervisor Griffith’s testimony about Appellant’s minimum sentence

established the context of his release from state prison to the halfway house,

and showed why Appellant leaving the facility was unlawful. As the trial court

noted, the evidence showed that Appellant “was allowed to serve a portion of

[his] sentence in alternative housing” but he escaped and was thus the subject

of an arrest warrant. N.T. Trial, 8/12/14, at 10. This evidence was relevant

and had a logical connection to the Commonwealth’s theory as to why, on

April 11, 2013 — almost exactly one year later — Appellant fought and fled

when the officers initiated the traffic stop in this case. See Pa.R.E. 404(b)(2);

Cox, 115 A.3d at 337. Accordingly, the court did not abuse its discretion in

permitting this evidence. See id. at 336.

      Next, Appellant alleges that the trial court erred in denying his motion

to suppress the statement he made to police. He cites his suppression hearing

testimony that he woke “up to detectives in his room and feeling as though

he were on pain medication,” and that he could not remember whether he was

advised of his Miranda rights. Appellant’s Brief at 22. Appellant maintains

that he was incapable of knowingly and voluntarily waiving his rights.

      As the Commonwealth points out, it did not introduce Appellant’s

statement into evidence at trial, and nothing in Appellant’s brief suggests that


                                     - 10 -
J-S55001-19


it did. See Commonwealth Brief at 17 (explaining that Appellant told police

that he had no recollection of events and thus did not inculpate himself). Thus,

Appellant’s present challenge to the trial court’s suppression ruling is moot.

      In his third issue, Appellant avers that the trial court erred in allowing

the Commonwealth to ask him, on cross-examination, whether Officer Jenkins

was lying when he testified that Appellant fired a gun. Appellant maintains

that this “testimony . . . was beyond [his] capacity,” as Appellant could only

testify as to what he saw, and additionally, Officer Jenkins’ truthfulness was a

question for the jury. Appellant’s Brief at 23-24. Appellant concludes that he

is entitled to a new trial. We disagree.

      We first set forth the challenged cross-examination:

            [Commonwealth:] You heard without any doubt or
      uncertainty from Officer Morgan Jenkins that you are the person
      that shot him, that you shot him, you hit him twice, and you shot
      at him . . . at least four times?

            A. I never shot anybody.

            Q. I’m saying that you heard him testify?

            A. Yes, I heard him testify to that.

            Q. So Officer Morgan Jenkins is lying to this jury?

            [Appellant’s counsel:] Objection to the question.
      Beyond the witness’s capacity. That is a question for the
      jury.

            [Commonwealth:] I guess I disagree. He said —

            [Appellant’s counsel:] May we approach?

            [Commonwealth:] He is saying one thing.

                                     - 11 -
J-S55001-19



           THE COURT: Proceed.

           [Commonwealth:] You would agree that Sergeant [Charles]
     Henderson[, a responding officer] is also lying when he told this
     jury that he saw you trying to reach for the gun when you were
     on the ground?

           [Appellant:] Yes.

See N.T. Trial, 8/12/14, at 460-461 (emphases added).

     The Pennsylvania Supreme Court has stated:

     On cross-examination, an attorney is entitled to question the
     witness about subjects raised during direct examination as well as
     any facts tending to refute inferences arising from matters raised
     during direct testimony. Similarly, an attorney may discredit a
     witness by cross-examining the witness about omissions or acts
     that are inconsistent with his testimony. However, the scope and
     limits of cross-examination is [sic] vested in the trial court’s
     discretion and that discretion will not be reversed unless the trial
     court has clearly abused its discretion or made an error of law.

Commonwealth v. Ogrod, 839 A.2d 294, 322 (Pa. 2003) (citations omitted).

     Appellant’s argument ignores that on direct examination, he testified

that Officer Jenkins and other officers wrongly accused him of firing his gun

at someone. See N.T. Trial, 8/12/14, at 440. Thus, the Commonwealth’s

question — as to whether Officer Jenkins, as well as Sergeant Henderson, lied

about the events — not only related to Appellant’s direct-examination

testimony, but corroborated it. See Ogrod, 839 A.2d at 322. Furthermore,

Appellant does not claim any prejudice where, again, the elicited testimony

was consistent with Appellant’s own theory of the case. Accordingly, the trial

court did not abuse its discretion in permitting the cross-examination. See


                                    - 12 -
J-S55001-19


id.

      In his fourth issue, Appellant challenges the sufficiency of the evidence

for his conviction of attempt to commit homicide — specifically, the element

of intent.    Appellant acknowledges that specific intent to kill may be

established by the use of a deadly weapon to injure a vital part of the body.

However, he maintains the evidence in this case only showed that he “fired a

couple shots in the woods, in the dark while fleeing from the police.”

Appellant’s Brief at 26.    Appellant further contends that although Officer

Jenkins suffered paralysis, his arm and armpit — where he was shot — were

not vital parts of the body. Appellant is not entitled to relief.

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

determine:

      [w]hether 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. [W]e 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.
      . . . Moreover, in applying the above test, the entire record must
      be evaluated and all evidence actually received must be
      considered. Finally, the [trier] of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Fortson, 165 A.3d 10, 14-15 (Pa. Super. 2017) (citation

omitted).

      This Court has explained:

      “A person commits an attempt when, with the intent to commit a

                                      - 13 -
J-S55001-19


      specific crime, he does any act which constitutes a substantial step
      towards the commission of that crime.” 18 Pa.C.S.[A.] § 901(a).

            “For a defendant to be found guilty of attempted
            murder, the Commonwealth must establish specific
            intent to kill.” Therefore, “[i]f a person takes a
            substantial step toward the commission of a killing,
            with the specific intent in mind to commit such an act,
            he may be convicted of attempted murder.” “The
            Commonwealth may establish the mens rea required
            for first-degree murder, specific intent to kill, solely
            from circumstantial evidence.” Further, our Supreme
            Court has repeatedly determined that “[t]he use of a
            deadly weapon on a vital part of the body is sufficient
            to establish the specific intent to kill.”

Fortson, 165 A.3d at 15 (some citations omitted). Additionally:

      [I]n the trial of a person for attempting to commit murder, “the
      fact that that person was armed with a firearm, used or attempted
      to be used, and had no license to carry the same, shall be evidence
      of that person’s intention to commit the offense.” 18 Pa.C.S. §
      6104.

Id.

      We consider Officer Jenkins testimony in the light most favorable to the

Commonwealth. He testified that as he pursued Appellant on foot through the

woods, he shined his flashlight on Appellant and observed him carrying a gun.

N.T. Trial, 8/12/14, at 89-94.      Appellant fell while Officer Jenkins was

approximately 10 feet away and shining his flashlight on Appellant. Id. at 94.

Although the officer repeatedly ordered Appellant to drop his gun, Appellant

“rotate[d] his shoulder” and pointed his gun directly at Officer Jenkins. Id. at

95. Officer Jenkins again yelled “drop the gun” and fired his gun twice at

Appellant. Id. at 96. The officer saw the muzzle flash and Appellant returned


                                     - 14 -
J-S55001-19


fire. Id. Officer Jenkins retreated by walking backwards, all while firing his

gun, and was shot in the left tricep. Id. at 98. Officer Jenkins continued

shooting, but was then shot in the left armpit and “dropped to the ground

immediately.” Id. at 99. Additionally, Officer Auge testified that she saw two

sets of muzzle flash, indicating two people shooting guns. Id. at 170. Officer

Auge could determine which actor was Officer Jenkins because of his

flashlight, and she heard Officer Jenkins yelling commands. Id.

      The trial court summarized that the evidence showed that Appellant

knowingly and intentionally shot Officer Jenkins. Trial Court Opinion, 5/17/18,

at 9. Appellant’s claim that he could not see where he was firing ignores both

officers’ testimony that Officer Jenkins shined a flashlight and that his gunfire

caused muzzle flashes. Appellant’s contention that he did not shoot at vital

parts of the officer’s body is also meritless, as the jury was free to find that

the officer’s tricep and armpit were close to his torso and vital organs. See

Fortson, 165 A.3d at 15. Finally, it was undisputed that Appellant did not

have a license to carry the firearm, and thus, pursuant to 18 Pa.C.S.A. § 6104,

his firing of the gun at Officer Jenkins was evidence of Appellant’s intent to

commit homicide. See id. The jury was free to believe all, part, or none of

the testimony and weigh the credibility of witnesses. See id. In light of the

foregoing, Appellant’s sufficiency challenge is meritless.

      Appellant’s fifth claim on appeal is that the trial court erred in not

merging his sentences for assault of a law enforcement officer, 18 Pa.C.S.A.


                                     - 15 -
J-S55001-19


§ 2702.1(a),10 and aggravated assault/police, 18 Pa.C.S.A. § 2702(a)(3).11

He reasons that all of the elements of the latter are included in the former.

No relief is due.

       “A claim that crimes should have merged for sentencing purposes raises

a challenge to the legality of the sentence. Therefore, our standard of review

is de novo and our scope of review is plenary.” Commonwealth v. Nero, 58

A.3d 802, 806 (Pa. Super. 2012) (citation omitted). Our 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 § 9701 (emphasis added).


____________________________________________


10 A person commits assault of a law enforcement officer if he “attempts to
cause or intentionally or knowingly causes bodily injury to a law enforcement
officer, while in the performance of duty and with knowledge that the victim
is a law enforcement officer, by discharging a firearm.” 18 Pa.C.S.A. §
2702.1(a).      The court imposed a sentence of 240 to 480 months’
imprisonment on this count, to be served concurrently with Appellant’s 240 to
480 month sentence for attempted homicide.

11 “A person is guilty of aggravated assault if he . . . attempts to cause or
intentionally or knowingly causes bodily injury to any of the officers, agents,
employees or other persons enumerated in subsection (c), in the performance
of duty[.]” 18 Pa.C.S.A. § 2702(a)(3). The court imposed a sentence of 27
to 54 months’ imprisonment on this count, to be served consecutive to
Appellant’s attempted homicide sentence. We further note that the court did
not impose any sentence on Appellant’s conviction of aggravated assault-
serious bodily injury, finding that it merged with this sentence.


                                          - 16 -
J-S55001-19


     The trial court and the Commonwealth aptly point out that the

convictions at issue pertained to two different victims. Trial Court Opinion,

5/17/18, at 12; Commonwealth Brief at 30.        Appellant was convicted of

assault of a law enforcement officer for shooting Officer Jenkins, but his

aggravated assault/police conviction was based on his striking Officer Auge.

Thus, contrary to Appellant’s claim, these convictions did not arise from a

single criminal act, but rather separate acts committed in different places

(Appellant’s car and the hillside) against different people. See 42 Pa.C.S.A §

9701. The trial court thus did not err in not merging these sentences. See

also Commonwealth v. Yates, 562 A.2d 908, 911 (Pa. Super. 1989) (“[I]t

remains the law of this Commonwealth that the life and safety of each citizen

is to be protected individually.   There is no ‘two for one discount’ in the

Pennsylvania Crimes Code, and we will not permit criminals to imply one

through distortion of the common law merger doctrine.”).

     Appellant’s last two issues both challenge as excessive Appellant’s

aggregate sentence of 30 years and 9 months to 61½ years’ imprisonment.

We note that the trial court imposed the following sentences to run

consecutively: (1) 240 to 480 months for attempt to commit homicide; (2) 27

to 54 months for aggravated assault/police; (3) 42 to 84 months for carrying

a firearm without a license; and (4) 60 to 120 months for persons not to

possess firearms.

     Appellant alleges that the imposition of consecutive sentences was


                                    - 17 -
J-S55001-19


unduly harsh and essentially created a “life or near-life sentence.” Appellant’s

Brief at 30-31. While Appellant acknowledges that at sentencing the trial court

stated that it considered his rehabilitative needs, the protection of the public,

and the gravity of the offense, he contends that “the only specific reasons”

cited on the record were his prior criminal history and the impact on the

victims. Id. at 30-31, 33. However, Appellant maintains, his prior offenses

were already calculated into his prior record score. Appellant further claims

the court did not consider the nature and circumstances of the crime —

namely, that he “was acting in the heat of the moment[ while] being fired

upon by officers” — and that there was no mention of any mitigating factors.

Id. at 34. No relief is due.

      This Court has explained:

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

            . . . (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).

      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.

            The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          A substantial
      question exists “only when the appellant advances a colorable

                                     - 18 -
J-S55001-19


      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.”

            As to what constitutes a substantial question, this Court
      does not accept bald assertions of sentencing errors. An appellant
      must articulate the reasons the sentencing court’s actions violated
      the sentencing code.

                                 *     *      *

            An allegation that the sentencing court failed to consider
      certain mitigating factors generally does not necessarily raise a
      substantial question.

            “When imposing a sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant.” . . .

      . . . . The imposition of consecutive, rather than concurrent,
      sentences may raise a substantial question in only the most
      extreme circumstances, such as where the aggregate sentence is
      unduly harsh, considering the nature of the crimes and the length
      of imprisonment.

Commonwealth v. Moury, 992 A.2d 162, 170-171 (Pa. Super. 2010) (some

citations omitted).

      Following remand by this Court in his prior appeal, Appellant filed a

timely post-sentence motion and notice of appeal.      See Pa.R.A.P. 903(a);

Pa.R.Crim.P. 720(a); Moury, 992 A.2d at 170. Additionally, Appellant has

included a Rule 2119(f) statement in his brief. See Pa.R.A.P. 2119(f); Moury,

992 A.2d at 170. We thus consider whether Appellant has raised a substantial

question.

      To the extent that Appellant contends the trial court failed to consider,


                                     - 19 -
J-S55001-19


as a mitigating factor, that he “was acting in the heat of the moment [while]

being fired upon by officers,” such a claim does not raise a substantial

question. See Moury, 992 A.2d at 171. We note that Appellant does not

identify any specific, alleged mitigating factor. Additionally, although a claim

that the imposition of consecutive sentences for non-violent property crimes

may constitute a substantial question, no such argument may be raised here.

See Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013);

Moury, 992 A.2d at 171-72.

      Appellant’s convictions arose from his assaults of Officers Auge and

Jenkins, pointing a gun at Officer Jenkins despite the officer’s repeated

commands to drop his weapon and lay down, and his numerous shots fired at

Officer Jenkins which caused permanent injury and paralysis. Finally, even if

Appellant raised substantial questions, the trial court properly stated its

reasons for imposing a lengthy sentence: Appellant’s escalating propensity to

threaten people with firearms and his failure to be amenable to rehabilitation.

See N.T., 8/12/14, at 546-547. Accordingly, no relief is due.

      In sum, Appellant’s claims lack merit. We therefore affirm the judgment

of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




                                     - 20 -
J-S55001-19


Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/19




                          - 21 -
