J-S10023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ANDY LEE CHILCOTE                       :
                                         :
                   Appellant             :   No. 1618 MDA 2019


       Appeal from the Judgment of Sentence Entered June 7, 2017,
            in the Court of Common Pleas of Franklin County,
          Criminal Division at No(s): CP-28-CR-0001116-2016.


 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ANDY LEE CHILCOTE                       :
                                         :
                   Appellant             :   No. 1619 MDA 2019


       Appeal from the Judgment of Sentence Entered July 26, 2017,
            in the Court of Common Pleas of Franklin County,
          Criminal Division at No(s): CP-28-CR-0001147-2016.


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                           FILED MAY 22, 2020



      Andy Lee Chilcote appeals from the judgments of sentence entered

following his convictions in these cases. In the first case, 1618 MDA 2019,

Chilcote claims that there was insufficient evidence to sustain his conviction
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for aggravated assault by prisoner.            Additionally, in that case, and in the

second case, 1619 MDA 2019, Chilcote claims that his sentences were too

harsh. Upon review, we affirm the sentences in both cases.1

       On March 31, 2016, Chilcote was arrested and charged with DUI,

recklessly endangering another person (3 counts), indecent exposure, and

disorderly conduct (1619 MDA 2019).2 Because no bail was set, Chilcote was

committed to the Franklin County Jail.

       On April 12, 2016, Chilcote attended court for a preliminary hearing in

his DUI case and returned to the jail later that day. Correctional Officer Alvino

Donato, along with Correctional Officer Samuel LaSorsa, were called to

transport Chilcote from the booking center to the Restricted Housing Unit in

the jail. Upon arriving at the RHU, the officers placed Chilcote in a shower

room and directed him to undress to be fitted for a suicide smock; Chilcote

refused and became irate. Chilcote called out Donato’s name twice, and then

spit in Donato’s face. Although the shower door was closed at the time, the

door had a screen in it. Chilcote’s spit traveled through the screen and landed

on Donato’s lower lip and right forearm. Donato was standing one to two feet


____________________________________________


1 This Court consolidated these appeals because they involved the same
defendant and issues. Chilcote filed separate notices of appeal in compliance
with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).

2 75 Pa.C.S.A. § 3802(d)(2) and 18 Pa.C.S.A. §§ 2705, 3127(a), and
5503(a)(3).




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from the door. Chilcote was charged with aggravated assault by prisoner and

harassment (1618 MDA 2019).3

        Separate trials were held on these cases with the assault case being

tried first. On these charges, a jury convicted Chilcote on the assault charge;

the trial court found him guilty of harassment.        The trial court sentenced

Chilcote to 27-84 months of incarceration for the assault and 45-90 days of

incarceration for the harassment.

        On the earlier charges, a jury convicted Chilcote of REAP (3 counts),

indecent exposure, and disorderly conduct; the trial court found him guilty of

DUI. The trial court then sentenced Chilcote to an aggregate sentence of 57-

114 months of incarceration on these charges. The sentence in this case was

to run consecutively to the sentence in Chilcote’s assault case, resulting in a

total aggregate sentence of 85 to 201 months of incarceration.

        After Chilcote filed two Post Conviction Relief Act petitions in each case,

the PCRA court reinstated Chilcote’s post-sentence and direct appeal rights in

both cases. Chilcote then filed a post-sentence motion in both cases, which

the trial court denied. Chilcote filed these timely appeals which are now before

us.    Both the trial court and Chilcote complied with Pennsylvania Rule of

Appellate Procedure 1925.

        Chilcote raises the following issues on appeal:

        1) In 1618 MDA 2019, the trial court erred by finding that there
           was sufficient evidence to support [Chilcote’s] conviction for
____________________________________________


3   18 Pa.C.S.A. §§ 2703.1 and 2709(a)(1).

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           aggravated [assault by prisoner] because it was not shown that
           any spit that may have come out of his mouth and may have
           hit [] Donato was done intentionally.

        2) In 1618 MDA 2019, the trial court abused its discretion in
           sentencing [Chilcote] to the top of the standard range for
           [Chilcote’s] minimum at 27 months based on the evidence
           presented, which [Chilcote] does not believe justifies a ‘top of
           the standard range’ sentence.

        3) In 1619 MDA 2019, the trial court abused its discretion in
           sentencing [Chilcote] when the sentence was disproportionate
           to [Chilcote’s] conduct, as his sentenced minimums on the
           charges were all at the top of the standard range and run
           consecutive to each other and to [the sentence imposed in]
           1618 MDA 2019.

Chilcote’s Brief at 8-9.

        Chilcote’s first issue challenges the sufficiency of evidence in his assault

case.    When analyzing whether the evidence was sufficient to support a

conviction, this Court must “view the evidence in the light most favorable to

the Commonwealth as the verdict winner in order to determine whether the

jury could have found every element of the crime beyond a reasonable doubt.”

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019). “The evidence

established at trial need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012).                    “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.” Commonwealth

v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (en banc). Additionally, this



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Court cannot “re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id. A challenge to the sufficiency of the evidence presents

a pure question of law and, as such, our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Jacoby, 170 A.3d 1065,

1076 (Pa. 2017).

      Chilcote argues that the evidence was insufficient to sustain his

conviction for aggravated assault by prisoner. Specifically, he contends that

the Commonwealth failed to show that he intentionally or knowlingly spit on

Donato. Chilcote’s Brief at 11-12.

      The crime of aggravated harassment by prisoner is defined as follows:

      A person who is confined in or committed to any local or county
      detention facility, jail or prison or any State penal or correctional
      institution or other State penal or correctional facility located in
      this Commonwealth commits a felony of the third degree if he,
      while so confined or committed ... intentionally or knowingly
      causes or attempts to cause another to come into contact with
      blood, seminal fluid, saliva, urine or feces by throwing, tossing,
      spitting or expelling such fluid or material.

18 Pa.C.S.A. § 2703.1. “As intent is a subjective frame of mind, it is . . .

difficult of direct proof.   Intent can be proven by direct or circumstantial

evidence; it may be inferred from acts or conduct or from the attendant

circumstances.” Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super.

2017) (citations and quotation marks omitted).

      Based upon our review of the record, we conclude that the

Commonwealth presented sufficient evidence to demonstrate that Chilcote

intentionally or knowingly caused or attempted to cause his spit to come into

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contact with Donato. The trial court aptly summarized the evidence presented

which established the elements of the offense of aggravated assault by

prisoner and, particularly, that Chilcote’s actions were intentional or knowing:

      The Commonwealth established that [Chilcote] was an inmate at
      the Franklin County Jail, and that [Chilcote] was in an irate state,
      said Officer Donato’s name twice right before spitting, [from which
      the jury could infer that Chilcote did so to get Donato’s attention
      and Donato’s face would be facing Chilcote when he spit], and
      refusing to comply with the correctional officers’ directions is
      circumstantial evidence of [Chilcote’s] intent, i.e., that he
      intended to spit on Officer Donato or that [Chilcote] was aware it
      was almost certain that his spit would land on Officer Donato.
      Finally, Officer Donato’s testimony that the spit landed on his
      lower lip and his arm is sufficient to prove contact with the saliva.

Trial Court Opinion, 8/2/17, at 7-8 (footnote omitted). Chilcote angrily calling

Donato’s name twice to draw his attention is circumstantial evidence of

Chilcote’s intentions, and sufficient to show that Chilcote acted intentionally

or knowingly. He wanted Donato to look at him when he spit.

      Chilcote argues that the evidence showed that he suffered from mental

infirmities, which precluded him from realizing his actions.        According to

Chilcote, because of his illness, he did not recall the incident, but, if he did

spit on the officer, he did not mean to.

      It is the province of the jury as the trier of fact to determine issues of

credibility. Furthermore, the fact finder is free to believe all, part, or none of

the evidence.    Commonwealth v. Tate, 401 A.2d 353, 354 (Pa. 1979).

Despite Chilcote’s testimony, the jury credited the Commonwealth’s witnesses

and evidence, which it was free to do.


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      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence to sustain Chilcote’s conviction for aggravated assault by

prisoner. Accordingly, Chilcote’s first issue entitles him to no relief.

      Chilcote’s second issue challenges the discretionary aspects of the

sentence imposed for his aggravated assault by prisoner conviction.         This

Court has explained that, to reach the merits of a discretionary sentencing

issue, we must conduct a four-part analysis to determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issue; (3) whether Appellant's brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence [in accordance
      with 2119(f)]; and (4) whether the concise statement raises a
      substantial question that the sentence is appropriate under the
      sentencing code. . . . [I]f the appeal satisfies each of these four
      requirements, we will then proceed to decide the substantive
      merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013

      Here, Chilcote satisfied the first two requirements under Colon. As to

the third element, Chilcote did not include a concise statement of reasons

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

“[w]here an appellant fails to comply with Pa.R.A.P 2119(f) and the

Commonwealth objects, the issue is waived for purposes of review.”

Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa. Super. 2004).

Because the Commonwealth did not submit a brief, and therefore did not


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object, we may overlook the deficiency. “[I]n the absence of any objection

from the Commonwealth, we are empowered to review claims that otherwise

fail to comply with Rule 2119(f). . . .” Commonwealth v. Bonds, 890 A.2d

414, 418 (Pa. Super. 2005), appeal denied, 906 A.2d 537 (2006). Moreover,

this deficiency does not impede our ability to discern the reason for his appeal.

Accordingly, we next determine whether Chilcote has raised a substantial

question for our review.

      An appellant raises a “substantial question” when he “sets forth a

plausible argument that the sentence violates a provision of the [S]entencing

[C]ode or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation

omitted).   “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Commonwealth v. Goggins, 748

A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920

(2000).

      Chilcote first claims that his sentence was too harsh. Chilcote’s Brief at

12. Specifically, he claims that it was overly harsh because, compared to

other incidents involving this offense, the circumstances surrounding his

offense were mild. Therefore, he claims a sentence at the high end of the

standard range was not justified. Id. at 13-14.

      “[A] bald assertion that a sentence is excessive does not itself raise a

substantial question justifying this Court's review of the merits of the

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underlying claim.” Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.

2012) appeal denied, 62 A.3d 378 (2013). However, Chilcote claims that the

trial court failed to consider the gravity of his offense in rendering its sentence.

When imposing a sentence, a trial court should “follow the general principle

that the sentence imposed should call for total confinement that is consistent

with section 9725 (relating to total confinement) and 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.A. § 9721. Chilcote makes a “plausible argument” the trial court

failed to adhere to this sentencing requirement.

      Chilcote further claims that the trial court based Chilcote’s sentence on

his extensive criminal history, which the prior record score already considered.

Chilcote’s Brief at 13. Claims that a sentencing court double-counted factors

already considered in the sentencing guidelines raise a substantial question.

See Commonwealth v. Watson, 2020 PA Super 28 at 10 (Pa. Super. 2020).

      We conclude that both of Chilcote’s reasons for review raise a substantial

question for our consideration. Accordingly, we will address the merits of his

claim.

      Our standard of review of a sentencing claim is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing court, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion, which in this context, is not
      shown merely to be an error in judgment; rather the appellant
      must establish by reference to the record, that the sentencing
      court ignored or misapplied the law, exercised its judgment for


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       reasons of partiality, prejudice, bias or ill will, or arrived at a
       manifestly unreasonable decision.

Commonwealth v. Shull, 148 A.3d 820, 832 (Pa. Super. 2016)

       In reviewing Chilcote’s sentencing claims in this case, we first note that

the trial court had the benefit of a PSI report and considered it. Notably, a

PSI report aids a court in determining the circumstances of the offense, and

considers circumstances beyond the record as well. See Commonwealth v.

Martin, 351 A.2d 650, 657 (Pa. 1976). Our Supreme Court “has determined

that where the trial court is informed by a pre-sentence report, it is presumed

that   the   court   is   aware   of   all   appropriate   sentencing   factors   and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa. Super. 2009) (citation omitted).

       Additionally, we note that Chilcote does not claim that the trial court

departed from the sentencing guidelines and sentenced him in the aggravated

range. Instead, he only claims that his sentence was at the high end of the

standard range.      “Where a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

Sentencing Code.”         Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010).

       Furthermore, although it is impermissible for a court to consider factors

already included within the sentencing guidelines as the sole reason for

increasing or decreasing a sentence, the court may use information included



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in the guidelines to supplement other peripheral sentencing information.

Commonwealth v. Shugars, 895 A.2d 162, 171 (Pa. Super. 2006). From

our review of the record, it is clear that the trial court considered Chilcote’s

criminal history in relation to other relevant sentencing factors, such as his

claim that his mental state affected his behavior as well as the impact and

cost that his behavior has had on the community.          Moreover, the court

specifically noted that, based upon Chilcote’s presentence report, it could

incarcerate him for the maximum time allowed under the law. However, the

trial court imposed a lesser sentence than permitted.

      For these reasons, we conclude that the trial court did not abuse its

discretion when it sentenced Chilcote.

      Chilcote’s third issue challenges the discretionary aspects of his

sentence on his DUI and related convictions. The trial court claims, however,

that this issue is waived because Chilcote never had the sentencing transcript

prepared on those convictions. Trial Court Opinion, 10/31/19, at 2. We agree.

      We have stated:

      The fundamental tool for appellate review is the official record of
      the events that occurred in the trial court. To ensure that an
      appellate court has the necessary records, the Pennsylvania Rules
      of Appellate Procedure provide for the transmission of a certified
      record from the trial court to the appellate court. The law of
      Pennsylvania is well settled that matters which are not of record
      cannot be considered on appeal. Thus, an appellate court is
      limited to considering only the materials in the certified record
      when resolving an issue. In this regard, our law is the same in
      both the civil and criminal context because, under the
      Pennsylvania Rules of Appellate Procedure, any document which
      is not part of the officially certified record is deemed non-
      existent—a deficiency which cannot be remedied merely by

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      including copies of the missing documents in a brief or in the
      reproduced record. . . . Simply put, if a document is not in the
      certified record, the Superior Court may not consider it.

Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (citations

omitted).   “Our law is unequivocal that the responsibility rests upon the

appellant to ensure that the record certified on appeal is complete in the sense

that it contains all of the materials necessary for the reviewing court to

perform its duty.” Id. at 7; see also Pa.R.A.P. 1911(d) (stating that “[i]f the

appellant fails to take the action required by these rules and the Pennsylvania

Rules of Judicial Administration for the preparation of the transcript, the

appellate court may take such action as it deems appropriate, which may

include dismissal of the appeal.”). Thus, the failure by an appellant to ensure

that the original record for appeal contains sufficient information to conduct a

proper review constitutes a waiver of the issues sought to be examined. Id.

      Here, the trial court noted:

      [t]his court directed [Chilcote] to submit a transcript request form
      to the court administrator to insure preparation of the necessary
      transcript. As of the writing of this opinion, no transcript request
      form related to sentencing has been submitted to our court
      administrator.

      Further, this court specifically noted that the transcript of
      sentencing had not been prepared in this case in our Opinion
      denying [Chilcote’s] post-sentence motion. It is clear [Chilcote]
      is, and has been aware that the record is not complete to
      adequately review his claim.




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Trial Court Opinion, 10/31/19, at 2 (citations omitted). The trial court also

noted that Chilcote’s notice of appeal did not contain a request for the

transcript. Id. at 2.

      Our review of the original record in this case confirms that Chilcote did

not ensure that the sentencing transcript was transcribed and included in the

certified record. Although Chilcote provided a copy of the transcript in his

reproduced record, because it was not part of the certified record, the Superior

Court may not consider it. Preston, 904 A.2d at 7 (citing Commonwealth

v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005)). His sentencing claim on

case number 1619 MDA 2019 is therefore waived, and we are precluded from

considering it.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/22/2020




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