J-S24024-19

                                   2019 PA Super 278


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEONARD KNOX                               :
                                               :
                       Appellant               :   No. 884 EDA 2018

             Appeal from the Judgment of Sentence March 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011694-2015


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

OPINION BY McLAUGHLIN, J.:                         FILED SEPTEMBER 12, 2019

        Leonard Knox appeals from the judgment of sentence entered following

his jury trial convictions for third-degree murder and possessing instruments

of crime (“PIC”).1 Knox challenges the denial of his motion to suppress, the

sufficiency and weight of the evidence, and the discretionary aspects of his

sentence. We affirm.

        Following the shooting death in November 2014 of Knox’s stepbrother,

Desmond Sinkler (“victim”), Knox accompanied Philadelphia police to a police

station. The officers read him his Miranda2 rights, and he signed a form

waiving them and gave a statement. They subsequently charged Knox in the


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502(c) and 907, respectively.

2   Miranda v. Arizona, 384 U.S. 436 (1966).
J-S24024-19



killing. Between December 2014 and September 2017, the court found Knox

incompetent to stand trial five times. However, in August 2016, correctional

officers observed that Knox “communicated effectively, appropriately and

directly with other inmates and on the phone with relatives.” N.T. Sentencing,

3/2/18 at 18. Mental health evaluators determined that Knox was competent

to stand trial and had been malingering with respect to his mental health.

      Knox then filed a motion in December 2017 to suppress his statement

to the police, alleging that he did not knowingly waive his Miranda rights

because he was mentally ill and could not properly understand the rights he

was waiving. Motion to Suppress, filed 9/24/17. The Commonwealth

presented the following unchallenged evidence at the suppression hearing.

      On the day after the shooting, Detective John Harkins and Detective

James Burns went to Knox’s address. N.T. Suppression, 12/15/17 at 9. Knox

willingly went to the Homicide Unit with police and they informed him of his

Miranda rights, reading them from a standard form. Id. at 11-16. Detective

Harkins testified that Knox expressed that he understood his rights and was

willing to talk with the detectives without an attorney present. Id. at 16-17.

He then told Detective Harkins that he was inside the bar when somebody

broke his window and was not present when the shooting occurred. Id. at 20.

      While Knox was at the Homicide Unit, officers executed a search warrant

on his home and car and found bloody clothing in his bedroom. Id. at 23-24.

Detective Harkins confronted Knox with this new information, and Knox told

him he “did it and he agreed to tell the truth.” Id. at 24. Knox then changed

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his story, apologized for not being truthful, and was read his Miranda rights

again. Id. at 33. He again waived his right to an attorney and gave a

statement claiming self-defense.

      During both instances of questioning, Knox repeatedly asserted that he

understood the Miranda rights that he was waiving and initialed forms

indicating as much. Id. at 27-29. During questioning, Detective Harkins

offered him bathroom breaks, food, and water. Id. 37-38. Detective Harkins

explicitly asked Knox if he had any difficulty understanding him during the

questioning and Knox answered in the negative. The detective testified that

he asked, “Leonard, I also notice at times that you speak with a pronounced

stutter. Do you have any difficulty understanding me?” Id. at 46. He said that

Knox replied, “No, I just stutter a lot sometimes.” Id.

      Detective Harkins also asked Knox if he was under the influence of any

drugs, alcohol, or prescription medication during the questioning. Knox

responded: “I take prescription medicine. I take something for acid reflux, and

I take Lizapan for bipolar disorder. I can understand you fine, though.” Id. at

32.

      The trial court determined that Knox had made a knowing, intelligent,

and voluntary waiver. Id. at 50-55. The court consequently denied the motion

to suppress and the case proceeded to trial.

      The evidence at trial was as follows. In November 2014, Knox and the

victim drove separately to a bar where the victim worked. On the way, Knox

picked up a woman named Sophia. When they arrived at the bar, the victim

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purchased a drink for Sophia, while Knox had his own drink. Knox and Sophia

eventually returned to Knox’s car. At that time, the bar was closed but some

people remained inside. Outside, three gunshots rang out and the bar’s

occupants ran outside and found the victim bleeding on the ground. Medical

practitioners at Temple University Hospital pronounced the victim dead at

2:58 a.m. Officer Raymond Andrejczak, who testified as an expert in ballistics

identification, said that the three bullets found in the victim were 32-caliber

bullets. N.T. Trial, 12/18/17 at 264.

      On the night of the shooting, the victim’s cousin, Termaine Heard-

Blackwell, informed police at the hospital that Knox owned a .32-caliber

revolver. Id. at 205-206. Blackwell testified that the victim did not carry a

gun. Id. at 216. The victim’s girlfriend, Trayeisha Smith, testified that she was

at Knox’s home the night before the shooting and she witnessed Knox remove

a revolver from his pants. N.T. Trial, 12/19/17 at 53. She also testified that

Knox had carried a gun in the past. Id. Knox’s sister, Sarah Knox, testified

that Knox did not carry a gun. Id. at 172.

      The medical examiner, Dr. Albert Chu, testified that the victim suffered

from three fatal gunshot wounds in the chest. N.T. Trial, 12/18/17 at 138-

144. There were also wounds to the victim’s forearm, thigh, and lower jaw.

Id. at 144-146. Dr. Chu noted that there was no evidence of a close-range

shot. Id. at 141-142.

      Knox did not testify. The Commonwealth admitted into evidence Knox’s

statement to police, in which he claimed he shot the victim in self-defense as

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the victim kicked out the front window of his car and attempted to assault

him. Id. at 92-103. In that statement, Knox claimed that he pulled the gun

from the victim’s waistband and shot the victim with the victim’s own gun. Id.

       The jury found Knox guilty of third-degree murder and PIC. The trial

court sentenced Knox to 20 to 40 years’ incarceration for third-degree murder

and imposed no further penalty for the PIC conviction. Knox filed a post-

sentence motion, which the trial court denied, and this timely appeal followed.

       Knox raises the following claims on appeal:

          (1) Did the trial court err in denying the motion to suppress
          [Knox’s] statement?

          (2) Was the evidence insufficient to sustain a conviction for
          Third-Degree Murder and Conspiracy to Commit Robbery?[3]

          (3) Were the verdicts for both counts against the clear
          weight of the evidence?

          (4) Did the trial court abuse its discretion by sentencing
          [Knox] to twenty (20) to forty (40) years[’] imprisonment?

Knox’s Br. at 5.

I.     Motion to Suppress

       Knox contends that the suppression court erred in denying his motion

to suppress. He claims that because he was found incompetent one month

after his statement to police, “[i]t is clear that [Knox] did not properly

understand his Constitutional rights[,]” and therefore the trial court should
____________________________________________


3 Knox was not charged with, nor convicted of, conspiracy to commit robbery
and he does not mention such a charge elsewhere in the brief. Knox evidently
intended to say the evidence was insufficient to sustain a conviction for PIC
since that is what he was charged with and what he argued.

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have suppressed his written statement. Knox’s Br. at 12. He thereby claims

that his Miranda waiver was not valid. Id. at 11. Knox also asserts that the

trial court “exhibited clear prejudice against [him].” Id. at 12.

      Our standard of review of the denial of a motion to suppress is limited

to determining if the record supports the suppression court’s factual findings

and if the legal conclusions drawn from those facts are correct. See

Commonwealth v. Hoppert, 39 A.3d 358, 361 (Pa.Super. 2012) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)). Here, the

Commonwealth prevailed before the suppression court, so “we may consider

only the evidence of the Commonwealth and so much of the evidence for the

defense as remains uncontradicted when read in the context of the record as

a whole.” Jones, 988 A.2d at 654. Where the record supports the suppression

court’s factual findings, “we are bound by these findings and may reverse only

if the court’s legal conclusions are erroneous.” Id.

      When determining the validity of a Miranda waiver, we employ a two-

step inquiry. We first ask whether the waiver was voluntary in the sense of

being the result of an intentional choice on the part of a defendant who was

not subject to undue government pressure. Commonwealth v. Mitchell, 105

A.3d 1257, 1268 (Pa. 2014) (citing Commonwealth v. Logan, 549 A.2d 531,

537 (Pa. 1988) (opinion announcing the judgment of the Court)). If we

conclude the waiver was voluntary, we then ask if the defendant was aware

of the nature of the choice that he made by giving up his Miranda rights, i.e.,

whether it was knowing and intelligent. Id. Knox does not challenge the

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voluntariness of his statement in his brief. Thus, we will consider only whether

it was knowing and intelligent.

      The burden is on the Commonwealth to prove by a preponderance of

the evidence that a Miranda waiver was knowing and intelligent. See

Commonwealth v. Lukach, 163 A.3d 1003, 1011 (Pa.Super. 2017). There

is no per se rule that a defendant is incapable of knowingly and intelligently

waiving   his   rights   whenever   he   asserts   a   mental   disability.   See

Commonwealth v. Sepulveda, 55 A.3d 1108, 1136 (Pa. 2012) (citing

Logan, 549 A.2d at 537).

      Our Supreme Court’s decision in Logan is instructive. In Logan, the

Court concluded that regardless of the appellant’s mental illness, the

circumstances surrounding his confession showed that the waiver was “the

product of a free, unconstrained, and rational choice of its maker.” Logan,

549 A.2d at 537. The circumstances in Logan included that Logan was advised

of his Miranda rights twice, he gave a full statement, which he reviewed and

signed, and there was no evidence of police coercion. Id. at 536-37. Logan

was able to do all of this even though he had a mental illness.

      Here, the circumstances of Knox’s confession, as demonstrated by the

evidence at the suppression hearing, show that it was “the product of a free,

unconstrained, and rational choice of [Knox].” See id. at 537. While he was

found incompetent to stand trial approximately one month after giving his

statement, the record does not establish that at the time he waived his

Miranda rights he was incapable of understanding his rights and the

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consequences of waiving those rights. The only evidence of record at the

suppression hearing about Knox’s condition at the time of the Miranda waiver

is the testimony of Detective Harkins, who did not testify to any apparent

difficultly Knox was having during the interview. To the contrary, Detective

Harkins testified that Knox twice told him that he was not having any difficulty

understanding him. N.T. Suppression, at 32, 46. Detective Harkins in fact said

he read Knox his Miranda warnings twice, and Knox put his initial after each

warning, asserting that he understood his Miranda rights. Id. at 27-31.

       The fact that Knox was later found incompetent to stand trial is not

dispositive of the question of his mental condition at the time he waived his

Miranda rights, or of whether the waiver was knowing and intelligent. The

Commonwealth’s evidence at the suppression hearing supported the finding

that Knox’s waiver was proper. Accordingly, the trial court did not err. See

Logan, 549 A.2d at 537.4

       Knox also asserts that the trial court erred in denying the suppression

motion because “the court put weight on the ‘opinion’ of prison correction

officers.” Knox’s Br. at 11. This claim is meritless, as the record from the

suppression hearing does not indicate that the trial court relied on the

malingering determination in its decision to deny the motion to suppress.
____________________________________________


4 See also Commonwealth v. Mitchell, 902 A.2d 430, 452 (Pa. 2006)
(affirming finding that Miranda waiver was knowing, intelligent, and
voluntary, despite defendant’s psychotic conditions, where defendant
presented no evidence at suppression hearing regarding his mental health,
and police testified that defendant said he was in full control of his faculties
when he gave his statement).

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      Knox also claims that the court erred in denying his suppression motion

because “[t]he trial court exhibited clear prejudice” towards him, seemingly

because the court found as a fact that Knox was malingering. Id. at 12. This

argument is waived because he did not raise it at the trial court level in a

recusal motion or otherwise. Pa.R.A.P. 302(a). Moreover, the fact that the trial

court ruled against Knox on this issue is not evidence of bias or prejudice. See

Commonwealth v. Travaglia, 661 A.2d 352, 367 (Pa. 1995) (“simply

because a judge rules against a defendant does not establish any bias on the

part of the judge against that defendant”). We affirm the trial court’s denial

of Knox’s motion to suppress.

II.   Sufficiency of the Evidence

      Knox maintains that the evidence was insufficient to sustain his

convictions because his self-defense theory was never contradicted and the

jury found him not guilty of the firearm charges. His argument is meritless.

      When reviewing a challenge to the sufficiency of the evidence, we “must

determine whether the evidence admitted at trial, and all reasonable

inferences drawn therefrom, when viewed in a light most favorable to the

Commonwealth as verdict winner, support the conviction beyond a reasonable

doubt.” Commonwealth v. Feliciano, 67 A.3d 19, 23 (Pa.Super. 2013)

(quoting Commonwealth v. Stokes, 38 A.3d 846, 853-854 (Pa.Super.

2011)). “Where there is sufficient evidence to enable the trier of fact to find

every element of the crime has been established beyond a reasonable doubt,

the sufficiency of the evidence claim must fail.” Id. (quoting Stokes, 38 A.3d

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at 853). This standard applies equally where the Commonwealth’s evidence is

circumstantial. Commonwealth v. Patterson, 180 A.3d 1217, 1229

(Pa.Super. 2018).

      In conducting this analysis, we do not weigh the evidence and substitute

our judgment for that of the fact-finder. See Commonwealth v. Snyder,

870 A.2d 336, 350 (Pa.Super. 2005). Additionally, the Commonwealth’s

evidence need not preclude every possibility of innocence in order to prove

guilt beyond a reasonable doubt. Id. The fact-finder is free to believe all, part,

or none of the evidence. Id.; Commonwealth v. Mollett, 5 A.3d 291, 313

(Pa.Super. 2010).

            A.    Third-Degree Murder

      Knox asserts that the evidence is insufficient to a support third-degree

murder conviction because he acted in self-defense and the Commonwealth

did not contradict Knox’s claim of self-defense. Knox’s Br. at 14. To sustain a

conviction of third-degree murder, the Commonwealth must prove that the

defendant killed another person with malice. Commonwealth v. Hardy, 918

A.2d 766, 774 (Pa.Super. 2007). Malice is defined as “exhibiting an ‘extreme

indifference to human life.’” Commonwealth v. Ludwig, 874 A.2d 623, 632

(Pa. 2005) (quoting Commonwealth v. Young, 431 A.2d 230, 232 (Pa.

1981)) (emphasis removed). A fact-finder may find malice not only in an

intentional killing, “but also in an unintentional homicide where the perpetrator

‘consciously disregarded an unjustified and extremely high risk that his actions

might cause death or serious bodily injury.’” Id. (quoting Young, 431 A.2d at

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232) (emphasis removed). A fact-finder may also infer malice “from the use

of a deadly weapon upon a vital part of the victim’s body.” Commonwealth

v. Thomas, 54 A.3d 332, 335-336 (Pa. 2012); accord Commonwealth v.

Briggs, 12 A.3d 291, 307 (Pa. 2011) (holding that the use of a deadly weapon

on the victim’s chest was sufficient to prove malice).

      Here, the Commonwealth presented sufficient evidence to prove,

beyond a reasonable doubt, that Knox acted with malice when he fatally shot

the victim in a vital part of his body, i.e., his chest. Briggs, 12 A.3d at 307.

First, Knox admitted to shooting and killing the victim. N.T. Trial, 12/19/17 at

101. Second, the medical examiner, Dr. Chu, testified that the three fatal

shots were to the victim’s chest. N.T. Trial, 12/18/17 at 138-144. Last,

shooting the victim three times in the chest was sufficient evidence of Knox’s

extreme indifference to the victim’s life. Thomas, 54 A.3d at 336.

      Regarding Knox’s claim that the Commonwealth failed to disprove self-

defense, we disagree. “If a defendant introduces evidence of self-defense, the

Commonwealth bears the burden of disproving the self-defense claim beyond

a reasonable doubt.” Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa.

2011). The use of force against a person is justified “when the actor believes

that such force is immediately necessary for the purpose of protecting himself

against the use of unlawful force” by the other person. 18 Pa.C.S.A. § 505(a).

A self-defense claim thus entails three elements:

         (1) [Defendant] reasonably believed that he was in
         imminent danger of death or serious bodily injury and that


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         it was necessary to use deadly force against the victim to
         prevent such harm;

         (2) [Defendant] was free from fault in provoking the
         difficulty which culminated in the slaying; and

         (3) [Defendant] did not violate any duty to retreat.

Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (quoting

Commonwealth v. Samuel, 590 A.2d 1245, 1247-48 (Pa. 1991)).

      As above, Knox’s self-defense claim consisted of his statement to police.

He said that he was sitting in his car when the victim kicked out the driver’s

side window, and while still sitting in the car, he took the victim’s gun from

the victim’s waistband and shot him.

      The Commonwealth presented sufficient evidence to disprove this claim

beyond a reasonable doubt. First, it presented the testimony of Dr. Chu, who

said that the victim had gunshot wounds to the back of the thigh. When asked

whether it would be possible for a car’s occupant to shoot somebody in the

back of the leg who was kicking out one of the car’s windows, Dr. Chu

responded that it was highly improbable:

         I have a hard time seeing how that could be. If he’s kicking
         with that leg, the right leg, and he’s being shot from
         someone in the car, I kind of have a hard time seeing how
         he would get a wound in the back of the leg, unless it’s some
         weird karate kick or something.

N.T. Trial, 12/18/17 at 159-160. Dr. Chu also testified that the victim had no

additional injuries that would be consistent with kicking out the window, and

there was no stippling found on victim’s body, which would have indicated a

close-range shooting. Id. at 167-168.

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      The Commonwealth also presented evidence that the victim did not

carry a gun, as Knox claimed, and that, to the contrary, it was Knox who

carried a gun similar to the murder weapon. The victim’s cousin, Blackwell,

testified that the victim did not carry a gun but that Knox carried a .32-caliber

gun. N.T. Trial, 12/18/17 at 205-206, 216. Blackwell’s testimony in this regard

was corroborated by the testimony of the victim’s girlfriend establishing she

knew Knox carried a gun and saw him with a revolver the night before the

murder, and Officer Andrejczak’s testimony that the victim was shot with a

.32-caliber gun. Id. at 53, 264.

      Finally, the fact that Knox told police that he acted in self-defense only

after first giving what he concedes was a false story seriously undermined the

credibility   of   his   self-defense   claim.   A   similar   scenario   arose   in

Commonwealth v. Ward, 188 A.3d 1301 (Pa.Super. 2018). There, the

defendant told police three different stories regarding his lack of involvement

in the shooting before admitting to the shooting, but asserting self-defense.

This Court held that the jury could infer guilt from the defendant’s prior

attempts to conceal involvement. Ward, 188 A.3d at 1306; see also

Commonwealth v. Carbone, 574 A.2d 584, 589-90 (Pa. 1990) (finding

where physical and testimonial evidence negate defendant’s story, a jury may

consider the intent of defendant’s narrative to mislead police and indicative of

guilt). Viewing the evidence in the light most favorable to the Commonwealth

as verdict-winner, we conclude the evidence was sufficient to sustain third-




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degree murder and the Commonwealth sufficiently disproved Knox’s self-

defense claim.

            B.     PIC

      Knox maintains that the evidence was insufficient to sustain his PIC

conviction because he used the weapon in self-defense and did not have the

intent to employ it criminally. Knox’s Br. at 15. He also argues the evidence

was insufficient because the jury acquitted him of the firearm charges. Id.

      To sustain a PIC conviction, the Commonwealth must prove that the

defendant possessed an “instrument of crime with the intent to employ it

criminally.” 18 Pa.C.S.A. § 907(a).

      As discussed above, the Commonwealth disproved Knox’s self-defense

claim and therefore his claim that the evidence was insufficient because he

used the firearm in self-defense fails. The evidence sufficiently established

that Knox used a .32-caliber handgun with the intent to employ it criminally,

i.e., to shoot the victim.

      Knox’s argument that his not-guilty verdict for the firearm charges

fatally undermines his PIC conviction is also unavailing. An acquittal does not

constitute a finding that any particular element of the crime was unproven,

and inconsistency in the verdicts does not require the overturning of the

conviction. See Commonwealth v. Moore, 103 A.3d 1240, 1247 (Pa. 2014).

      This Court has consistently reaffirmed this doctrine:

         When an acquittal on one count in an indictment is
         inconsistent with a conviction on a second count, the court
         looks upon the acquittal as no more than the jury's

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         assumption of a power which they had no right to exercise,
         but to which they were disposed through lenity. Thus, this
         Court will not disturb guilty verdicts on the basis of apparent
         inconsistencies as long as there is sufficient evidence to
         support the verdict.

Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa.Super. 2005) (quoting

Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa.Super. 2004)).

Accordingly, the firearm acquittals are immaterial to the PIC conviction and

there was sufficient evidence to sustain a PIC conviction.

III. Weight of the Evidence

      Knox also challenges the weight of the evidence. In support of this

argument, Knox again relies on his self-defense theory and the jury’s not-

guilty verdicts for the firearm charges. He maintains that “no evidence was

presented to refute [Knox’s] statement that he killed his step-brother in self-

defense” and that the trial testimony that his window was not broken when

he left the bar substantiates his allegation that the victim kicked out his

window. Knox’s Br. at 15

      Our review of a weight claim is limited to reviewing the trial court’s

exercise of its discretion. Commonwealth v. Widmer, 744 A.2d 745, 753

(Pa. 2000) (citing Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.

1994)). We do not review de novo the underlying question of whether a verdict

was against the weight of the evidence. Id. The trial judge may not grant a

new trial on the basis of a weight claim because of a mere conflict in the

testimony or because the judge would have arrived at a different verdict. Id.

at 752. Rather, the trial court may only grant a new trial on the basis of a

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weight claim when the jury’s verdict is “so contrary to the evidence as to shock

one’s sense of justice.” Brown, 648 A.2d at 1189 (quoting Thompson v. City

of Phila., 493 A.2d 669, 672 (Pa. 1985)).

      Here, the jury was presented with Knox’s self-defense claim through his

second statement to police. The jury rejected this claim and found Knox guilty

of third-degree murder and PIC. As the trial court noted, such verdicts were

not objectively shocking, when compared to the substantial eyewitness and

forensic evidence presented at trial:

         [W]hatever value [Knox’s] self-defense claim had in the
         instant matter, such evidence is far outweighed by forensic
         evidence demonstrating that [Knox] was outside the car
         when he shot the victim and eyewitness testimony from
         Heard-Blackwell and Smith establishing that [Knox] owned
         and possessed the firearm used to murder the victim.

Trial Court Opinion, filed 5/17/18, at 13.

      Regarding the weight of the evidence as to his PIC conviction, Knox

maintains that “[t]he jury clearly believed that the firearm belonged to

decedent . . . as [Knox] was acquitted” of the firearm charges. Knox’s Br. at

16. As explained above, the jury’s not-guilty verdicts are immaterial to the

whether the PIC conviction was against the weight of the evidence. The trial

court did not abuse its discretion in denying Knox’s weight claim.

IV.   Discretionary Aspects of Sentence

      Knox contends that the trial court imposed an excessive sentence for

third-degree murder. He argues that the trial court improperly focused solely

on the seriousness of the offense. He also argues that the trial court exhibited

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bias towards him when it mentioned the mental health evaluator’s

determination that Knox was malingering with respect to his mental health.

      Before this Court may exercise jurisdiction over a challenge to the

discretionary aspects of a sentence, we must determine four things:

            (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. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014).

      Here, Knox has satisfied all four factors. His appeal is timely, he

preserved his claim in a post sentence motion, and his brief contains a 2119(f)

statement. He also presents a substantial question in claiming that the trial

court focused solely on the seriousness of the offense and that the court relied

on improper factors. Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa.Super.

2012) (en banc) (finding that allegations that the sentencing court focused

exclusively on the seriousness of the crime raises a plausible argument that

the court did not follow the requirements of section 9721 of Sentencing

Guidelines); see also Commonwealth v. Downing, 990 A.2d 788, 792

(Pa.Super. 2010) (holding that a claim that the court relied on improper factor

raises substantial question). We now address the merits of Knox’s clam.

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      When imposing a sentence, the trial court must take into account the

protection of the public, the gravity of the offense, the rehabilitative needs of

the defendant, and the provisions of the Sentencing Guidelines. See 42

Pa.C.S.A. § 9721(b). Sentencing is the responsibility of the trial court and we

will not disturb the sentence unless there is a manifest abuse of discretion.

See Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014). To

establish a manifest abuse of discretion, the appellant must show a

misapplication of the law, or partiality, prejudice, bias, or ill will that led to the

unreasonable decision. See Commonwealth v. Anderson, 830 A.2d 1013,

1018 (Pa.Super. 2003). Further, when the court had a Pre-Sentence

Investigation report (PSI), we presume that the court was aware of all relevant

sentencing factors. See Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa.Super. 2009).

      Knox fails to substantiate his claim that the sentencing court improperly

focused solely on the seriousness of the offense. The sentencing court heard

from two relatives of the victim who said that they forgave Knox, and it

reviewed the PSI. N.T. Sentencing, 03/02/18 at 11-24, 26-33, 46. The court

noted that it took the forgiveness of the victim’s family members into account.

Considering all mitigating factors and not relying solely on the seriousness of

the offense, the court rejected the Commonwealth’s recommendation for a

longer sentence. Id. at 49. The claim is meritless.

      Knox’s claim that the trial court considered improper factors in the form

of considering Knox’s malingering is also meritless. We give great deference

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to the trial court’s determination of competency because the trial court

personally observes the defendant. See Commonwealth v. Sanchez, 907

A.2d 477, 490 (Pa. 2006) (citing Commonwealth v. Chopak, 615 A.2d 696,

700 (Pa. 1992)). Further, when making a competency determination, the trial

court may resolve conflicts in the testimony of expert witnesses, accepting

one opinion over another where the record adequately supports it. Id. at 490.

      The trial court was well within its discretion in considering Knox’s

malingering having personally observed Knox on numerous occasions during

the multiple hearings that were held regarding his competency. See supra

Part I; see also Sanchez, 907 A.3d at 490. Additionally, a mental health

evaluator twice made the determination that Knox was malingering with

respect to his mental health. Knox’s malingering went to his character which

the trial court was required to consider for purposes of sentencing.    See

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002). The trial court

did not abuse its discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/19




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