J-A23002-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
WILLIAM HUGHES,                            :
                                           :
                   Appellant               :          No. 1779 WDA 2013

        Appeal from the Judgment of Sentence entered on July 16, 2013
              in the Court of Common Pleas of Allegheny County,
                 Criminal Division, No. CP-02-CR-0009919-2012

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 24, 2015

        William Hughes (“Hughes”) appeals from the judgment of sentence

imposed after he was convicted of three counts of aggravated assault and

one count each of criminal conspiracy and criminal mischief.1 We affirm.

        In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly set forth

the facts underlying this appeal, which arises out of an assault on John

Hrabolowski (“Hrabolowski”) and John Szwaczkowski (“Szwaczkowski”),

perpetrated by Hughes and his co-defendant, Sherryl Feli (“Feli”). See Trial

Court Opinion, 10/21/14, at 4-8. We adopt the trial court’s recitation herein

by reference. See id.

        Following the assault, the Commonwealth charged Hughes with one

count each of criminal conspiracy, criminal mischief and aggravated assault

– serious bodily injury (hereinafter “aggravated assault – SBI”), and two

1
    See 18 Pa.C.S.A. §§ 2702(a)(1), (4); 903(a)(1); 3304(a)(5).
J-A23002-15

counts of aggravated assault – deadly weapon used (hereinafter “aggravated

assault    –   DW”),   pertaining   to   his   assaults   upon   Hrabolowski   and

Szwaczkowski, respectively.

      The matter proceeded to a non-jury trial, after which the trial court

found Hughes guilty on all counts.2            On July 16, 2013, the trial court

imposed an aggregate sentence of 7½ to 15 years in prison, followed by ten

years of probation.     Hughes filed a post-sentence Motion, which the trial

court denied.      Hughes thereafter timely filed a Notice of Appeal, and a

Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.

      On appeal, Hughes presents the following issues for our review:

          1. Did the trial court err in convicting [] Hughes of the
             offenses against [] Hrabolowski (counts one and two,
             aggravated assault [– SBI, and aggravated assault –
             DW),] when the evidence was insufficient to sustain a
             conviction at these counts and in spite of the weight of
             the evidence when [] Hughes did not have physical
             contact with [] Hrabolowski?

          2. Did the trial court err in convicting [] Hughes of criminal
             conspiracy [], when the evidence was insufficient to
             sustain [this] conviction [] and in spite of the weight of
             the evidence, when no evidence suggested that []
             Hughes directed [] Feli in her actions against []
             Hrabolowski?

          3. Did the trial court err in sentencing [] Hughes to a term
             of incarceration that was manifestly excessive and
             without consideration of [] Hughes’[s] rehabilitative
             needs?

Brief for Appellant at 3.


2
 The trial court found Feli guilty of essentially the same charges as Hughes.
She also filed a direct appeal, docketed before this panel at 1672 WDA 2013.

                                    -2-
J-A23002-15

      Hughes first challenges the sufficiency of the evidence supporting his

convictions of (1) aggravated assault – SBI; and (2) aggravated assault –

DW, concerning his assault of Hrabolowski.        Id. at 8-10.    Hughes also

argues, in a single sentence, that both of these convictions are against the

weight of the evidence. Id. at 10. We will address Hughes’s challenges to

each of these convictions separately.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply … 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 [that of] 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 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      Our standard in reviewing a weight of the evidence claim is as follows:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge

                                  -3-
J-A23002-15

      has had the opportunity to hear and see the evidence presented,
      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. One of the least assailable reasons for granting
      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

      Relief on a weight of the evidence claim is reserved for
      extraordinary circumstances, when the [fact-finder’s] verdict is
      so contrary to the evidence as to shock one’s sense of justice
      and the award of a new trial is imperative so that right may be
      given another opportunity to prevail. On appeal, [an appellate]
      Court cannot substitute its judgment for that of the [fact-finder]
      on issues of credibility, or that of the trial judge respecting
      weight. Our review is limited to determining whether the trial
      court abused its discretion[.]

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and

quotation marks omitted).

      Hughes first challenges his conviction of aggravated assault – DW,

pertaining to Hrabolowski,3 arguing that he cannot be properly convicted of

this offense based upon a theory of accomplice liability.4       See Brief for

Appellant at 10 (emphasizing that “Hughes never interacted with []

Hrabolowski during the physical altercation[,]” and asserting that “no


3
  Hughes does not challenge his conviction of aggravated assault – DW
pertaining to Szwaczkowski.
4
 Though Hughes does not specifically so state, his argument implies that he
does not believe he was properly convicted as Feli’s accomplice/co-
conspirator. We discuss separately Hughes’s challenge to his conviction of
conspiracy to commit aggravated assault.

                                  -4-
J-A23002-15

testimony was presented at trial to suggest that [] Hughes was directing []

Feli in any way[.]”). Hughes argues that the evidence was insufficient, and

this conviction was against the weight of the evidence, because the bicycle

lock used by Feli to strike Hrabolowski on his forearms was not a “deadly

weapon” under the statutory definition of this term.     Id.   Hughes asserts

that “[t]he bicycle lock used by [] Feli cannot be considered a deadly

weapon, as it was not used to inflict serious bodily injury or in a manner that

might have resulted in a risk of serious bodily injury or death. … Hughes

should not be liable for [] Feli’s own actions toward [] Hrabolowski.” Id.

      The Crimes Code provides that a person is guilty of aggravated assault

– DW if he or she “attempts to cause or intentionally or knowingly causes

bodily injury[5] to another with a deadly weapon[.]”            18 Pa.C.S.A.

§ 2702(a)(4) (footnote added).      A “deadly weapon” is defined as “[a]ny

firearm, whether loaded or unloaded, or any device designed as a weapon

and capable of producing death or serious bodily injury, or any other 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.A. § 2301 (emphasis added). In discussing what constitutes a deadly

weapon, in the context of application of the deadly weapon enhancement for

sentencing purposes, this Court observed as follows:

      “[I]tems not normally classified as deadly weapons can become
      so based upon their use under particular circumstances.”

5
  Bodily injury is defined as “[i]mpairment of physical condition or
substantial pain.” 18 Pa.C.S.A. § 2301.

                                  -5-
J-A23002-15

      Commonwealth v. Rhoades, 2010 PA Super 204, 8 A.3d 912,
      917 (Pa. Super. 2010) (intact glass bottle qualified as a deadly
      weapon).      We found many examples in our cases: ...
      Commonwealth v. Scullin, 414 Pa. Super. 442, 607 A.2d 750
      (Pa. Super. 1992) (tire iron thrown at victim was a deadly
      weapon); Commonwealth v. Cornish, 403 Pa. Super. 492, 589
      A.2d 718, 721 (Pa. Super. 1991) (fireplace poker used to strike
      victim constitutes a deadly weapon); Commonwealth v.
      Brown, 402 Pa. Super. 369, 587 A.2d 6, 7 (Pa. Super. 1991)
      (saw used to stab victim was a deadly weapon);
      Commonwealth v. Chapman, 365 Pa. Super. 10, 528 A.2d
      990 (Pa. Super. 1987) (straightedge razor placed at the face of
      an individual is a deadly weapon).

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1268 (Pa. Super. 2014)

(en banc).6

      Concerning accomplice liability, the Crimes Code provides that “[a]

person is legally responsible for the conduct of another person when he is an

accomplice of such other person in the commission of the offense.”        18

Pa.C.S.A. § 306(b)(3). Section 306 defines an accomplice, in relevant part,

as follows:

      A person is an accomplice of another person in the commission
      of an offense if:

         (1) with the intent of promoting or facilitating the
         commission of the offense, he:

              (i) solicits such other person to commit it; or

              (ii) aids or agrees or attempts to aid such other
              person in planning or committing it[.]




6
  In Buterbaugh, the Court noted that “[t]he Crimes Code provides an
almost verbatim definition of deadly weapon as the one set forth in the
Sentencing Guidelines[.]” Buterbaugh, 91 A.3d at 1268.

                                    -6-
J-A23002-15

Id. § 306(c)(1).     “[These] requirements may be established wholly by

circumstantial evidence. Only the least degree of concert or collusion in the

commission of the offense is sufficient to sustain a finding of responsibility

as an accomplice. No agreement is required, only aid.” Commonwealth v.

Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citation omitted). “[P]roof of a

criminal partnership is almost invariably extracted from the circumstances

that attend its activities.” Id. at 755-56 (citation omitted).

      In its Opinion, the trial court addressed Hughes’s claims and the

applicable law, concluding that the evidence was sufficient to sustain

Hughes’s conviction, as Feli’s co-conspirator and accomplice, of aggravated

assault – DW.      See Trial Court Opinion, 10/21/14, at 15-17; see also

Buterbaugh, supra (collecting cases ruling that objects not normally

classified as deadly weapons became so based upon their use under

particular circumstances). We agree and affirm based upon the trial court’s

Opinion with regard to Hughes’s sufficiency challenge.           See Trial Court

Opinion, 10/21/14, at 15-17.

      Concerning Hughes’s claim that his conviction of aggravated assault –

DW was against the weight of the evidence, he has failed to develop his

claim in any meaningful fashion, and, therefore, we could deem it waived.

See Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (stating that

“[w]here an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.” (citation

                                  -7-
J-A23002-15

omitted)); Pa.R.A.P. 2119(a).       Nevertheless, we discern no abuse of

discretion by the trial court in rejecting Hughes’s weight of the evidence

claim. See Trial Court Opinion, 10/21/14, at 16. The trial court’s verdict is

not so contrary to the evidence as to shock our collective sense of justice.

See Sanchez, supra.

      Next, Hughes challenges the sufficiency and weight of the evidence

supporting his conviction of aggravated assault – SBI, advancing the same

arguments that he did in the above-discussed claim. See Brief for Appellant

at 8-10. Hughes additionally argues that “[a]lthough [Feli’s] action[s in

striking Hrabolowski on the arms with her bike lock] caused some injury, []

Hrabolowski testified that he did not seek medical treatment for this injury,

thereby indicating that he did not believe his injury serious enough that

there was a substantial risk of permanent disfigurement or impairment.” Id.

at 10. Though Hughes does not explicitly raise this argument, he appears to

challenge the trial court’s finding that Feli, his accomplice, had inflicted, or

attempted to inflict, “serious bodily injury” upon Hrabolowski, a requisite

element of the offense. Id.

      A person is guilty of aggravated assault – SBI if she “attempts to

cause serious bodily injury[7] to another, or causes such injury intentionally,

knowingly    or   recklessly   under    circumstances   manifesting    extreme


7
  “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.A. § 2301.

                                  -8-
J-A23002-15

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

(footnote added). “Aggravated assault [– SBI] does not require proof that

serious bodily injury was inflicted[,] but only that an attempt was made to

cause such injury. Where the victim does not sustain serious bodily injury,

the Commonwealth must prove that the appellant acted with specific intent

to cause serious bodily injury.” Commonwealth v. Lewis, 911 A.2d 558,

564 (Pa. Super. 2006) (citations omitted); see also 18 Pa.C.S.A. § 901(a)

(providing that “[a] person commits an attempt when, with intent to commit

a specific crime, [s]he does any act which constitutes a substantial step

toward the commission of that crime.”).

           “A person acts intentionally with respect to a material
     element of an offense when … it is [her] conscious object to
     engage in conduct of that nature or to cause such a result ….”
     18 Pa.C.S. § 302(b)(1)(i). As intent is a subjective frame of
     mind, it is of necessity difficult of direct proof. The intent to
     cause serious bodily injury may be proven by direct or
     circumstantial evidence.

Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (citations to

case law and internal quotation marks omitted).             “[A] determination of

whether an appellant acted with intent to cause serious bodily injury must

be determined on a case-by-case basis.” Commonwealth v. Dailey, 828

A.2d 356, 360 (Pa. Super. 2003); see also id. (observing that, “depending

on the other circumstances, even a single punch may be sufficient.”).

     In the instant case, it is undisputed that Hrabolowski did not suffer

“serious   bodily   injury”   under   the   statutory   definition   of   this   term.




                                      -9-
J-A23002-15

Accordingly, the relevant inquiry is whether Feli attempted and intended to

inflict serious bodily injury upon Hrabolowski. See Matthew, supra.

     In its Opinion, the trial court addressed Hughes’s claims and concluded

that (1) the evidence was sufficient to establish that Feli had attempted and

intended to inflict serious bodily injury upon Hrabolowski; (2) the verdict as

to this count was not against the weight of the evidence; and (3) therefore,

Hughes could properly be convicted of aggravated assault – SBI as Feli’s

accomplice. See Trial Court Opinion, 10/21/14, at 18-20. The trial court’s

analysis is supported by the record and the law, and we affirm on this basis

with regard to Hughes’s claims. See id.

      In his second issue, Hughes argues that the evidence was insufficient

to sustain his conviction of criminal conspiracy to commit aggravated

assault, and the verdict as to this count was against the weight of the

evidence. See Brief for Appellant at 11-12. According to Hughes,

     [a]lthough it was established that [] Hughes and [] Feli were in a
     relationship together and were riding their bicycles together to a
     shared destination at the time this incident occurred, no
     evidence established a “unity of criminal purpose” between
     them. … No evidence presented at trial suggested that []
     Hughes had any connection to [] Feli’s actions other than his
     presence at the time of the incident.

Id. (paragraph break omitted) (citing Commonwealth v. Thomas, 65 A.3d

939, 945 (Pa. Super. 2013) (rejecting the defendant’s sufficiency challenge

concerning his conviction of conspiracy to commit aggravated assault where

the relationship between the defendant and his four co-conspirators, their




                                 - 10 -
J-A23002-15

conduct during the assault, and overall circumstances established that they

had “acted with a ‘unity of criminal purpose.’”)).

      “To sustain a conviction for criminal conspiracy, the Commonwealth

must establish that the defendant (1) entered into an agreement to commit

or aid in an unlawful act with another person or persons, (2) with a shared

criminal intent[,] and (3) an overt act was done in furtherance of the

conspiracy.” Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super.

2000) (citation omitted); see also 18 Pa.C.S.A. § 903(a).

      The essence of a criminal conspiracy is a common
      understanding, no matter how it came into being, that a
      particular criminal objective be accomplished.     Therefore, a
      conviction for conspiracy requires proof of the existence of a
      shared criminal intent. An explicit or formal agreement to
      commit crimes can seldom, if ever, be proved and it need not
      be, for proof of a criminal partnership is almost invariably
      extracted from the circumstances that attend its activities.
      Thus, a conspiracy may be inferred where it is demonstrated
      that the relation, conduct, or circumstances of the parties, and
      the overt acts of the co-conspirators[,] sufficiently prove the
      formation of a criminal confederation. The conduct of the parties
      and the circumstances surrounding their conduct may create a
      web of evidence linking the accused to the alleged conspiracy
      beyond a reasonable doubt. Even if the conspirator did not act
      as a principal in committing the underlying crime, he is still
      criminally liable for the actions of his co-conspirators in
      furtherance of the conspiracy.

Knox, 50 A.3d at 755 (citation omitted). Stated differently, an “agreement

to commit an unlawful act … may be proved inferentially by circumstantial

evidence, i.e., the relations, conduct or circumstances of the parties or overt

acts on the part of the co-conspirators.”     Thomas, 65 A.3d at 943 (Pa.

Super. 2013) (citation omitted).



                                   - 11 -
J-A23002-15

      As discussed above, the evidence was sufficient to sustain the trial

court’s finding that Feli possessed the requisite intent to commit aggravated

assault – SBI on Hrabolowski.      Accordingly, for purposes of determining

whether Hughes can properly be convicted as Feli’s co-conspirator, we limit

our discussion to whether the circumstantial evidence established an

agreement between Feli and Hughes to assault Hrabolowski.                 See

Hennigan, supra.

      Here, the trial court addressed Hughes’s challenge to his conspiracy

conviction in its Opinion, concluding that the circumstantial evidence was

sufficient to establish a criminal understanding between Feli and Hughes.

See Trial Court Opinion, 10/21/14, at 11-13. We agree with the trial court’s

analysis and conclusion, which is supported by the record, and affirm on this

basis with regard to Hughes’s sufficiency challenge to his conspiracy

conviction. See id. Moreover, the verdict on this count was not so contrary

to the evidence as to shock one’s sense of justice; the rationale in the trial

court’s Opinion concerning Hughes’s weight challenge establishes that the

court properly exercised its discretion in rejecting this claim. See id. at 14;

see also Sanchez, supra.

      Finally, Hughes asserts that the sentencing court abused its discretion

by imposing an excessive sentence and failing to consider (1) his

rehabilitative needs (and, particularly, his mental health issues and

independent steps taken in pursuit of rehabilitation); and (2) the fact that

Hughes’s prior convictions that were used to compute his prior record score

                                 - 12 -
J-A23002-15

occurred several years before the instant assaults. See Brief for Appellant

at 13-15.

         Hughes’s claim challenges the discretionary aspects of his sentence,

from which there is no absolute right to appeal. See Commonwealth v.

Hill, 66 A.3d 359, 363 (Pa. Super. 2013).             Rather, where, as here, the

appellant has preserved the discretionary sentencing claim for appellate

review by raising it in a timely post-sentence motion, the appellant must (1)

include in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence,

pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial

question that the sentence imposed is not appropriate under the Sentencing

Code. Hill, 66 A.3d at 363-64.

         Here, Hughes’s brief does not contain a Rule 2119(f) statement, and

the Commonwealth has objected to this defect. See Commonwealth’s Brief

at 34.         Accordingly, this issue is waived.           See Commonwealth v.

Robinson, 931 A.2d 15, 19, 22 (Pa. Super. 2007) (en banc) (finding waiver

of the appellant’s discretionary aspects of sentencing claim because he had

failed    to    include   a   Rule   2119(f)    statement    in   his   brief,   and   the




                                       - 13 -
J-A23002-15

Commonwealth objected to this defect).8

      Accordingly, because we conclude that the trial court did not abuse its

discretion, or commit an error of law, in rejecting Hughes’s challenges to the

weight and sufficiency of the evidence, and his sentencing challenge is

waived, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015




8
  Even if we did not find waiver, we would determine that Hughes’s challenge
to his sentence lacks merit based upon the reasoning advanced by the trial
court in its Opinion. See Trial Court Opinion, 10/21/14, at 20-25 (stating,
inter alia, that the sentencing court did, in fact, consider the age of Hughes’s
prior convictions, and that the sentence imposed was within the standard
range of the sentencing guidelines); see also Commonwealth v. Moury,
992 A.2d 162, 171 (Pa. Super. 2010) (stating that “where a sentence is
within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.”).

                                 - 14 -
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                                                                                  Circulated 09/04/2015 02:11 PM




    IN THE COURT OF COMMON PLEAS FIFfH JUDICIAL DISTRICT
              ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,                                    CRIMINAL DIVISION

           v.

WILLIAM HUGHES,                                                  CC No. 201209919

     Defendant.


COMMONWEALTH OF PENNSYLVANIA,

           v.

SHERRYL FELI,

                        Defendant.
                                                                 OPINION OF THE COURT

                                                                 Honorable Beth A. Lazzara
                                                                 Allegheny County Courthouse
                                                                 436 Grant Street
                                                                 Pittsburgh, PA 15219

                                                                 Counsel of Record:

                                                                 For the Defendants:

                                                                 A. Kayleigh Shebs, Esq.
                                                                 Counsel for William Hughes

                                                                 Daniel J. Eichinger, Esquire
                                                                 Counsel for Sherryl Feli


                                                                 For the Commonwealth:
           v'd AiNOO) AN3H931W
              N.DISliliG 1'ttlir'il::D                           Office of the District Attorney
          S€.lB083't! HffiOJ :W ... dJ'1                         of Allegheny County
                                                                 400 Allegheny County
           S .,c., : (,., ,,ud l "'7   1 ... 1 ...,
                                       .I. ••.ill
                                                      • • ,, •
                                                      'HIH,      Courthouse
                                                                 Pittsburgh, PA 15219
                   fJ311:1
                                                                                                   1
                          (   :
                                                                       Circulated 09/04/2015 02:11 PM




     IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT
               ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,                       CRIMINAL DIVISION

               v.

WILLIAM HUGHES,                                     CC No. 201209919

               Defendant.



COMMONWEALTH OF PENNSYLVANIA,

               v.

SHERRYL FELI,                                       CC No. 201209920

                        Defendant.


                                  OPINION OF THE COURT


      This matter involves two defendants,            William Hughes and Sherryl

Feli. Both Defendants were charged with three (3) counts of

aggravated     assault and one (1) count of criminal conspiracy.            William

Hughes was also charged with criminal mischief.              Count 1 at each

information charged aggravated            assault pursuant to 18 Pa. C.S.A.

§2702(a)(l),        alleging the infliction   of serious bodily injury, or an

attempt to do so, on victim John Hrabolowski.             The second and third

counts in each information           charged aggravated    assault pursuant to 18

Pa. C.S.A. §2702(a)( 4 ), alleging that the Defendants caused bodily

injury to the victims, John Hrabolowski           (Count 2) and John

                                                                                                                i
                                                                                        2               \.__   _)
                                                                Circulated 09/04/2015 02:11 PM




Szwaczkowski (Count 3), with a deadly weapon. The criminal

conspiracy count alleged that the Defendants agreed that they would

commit the crime of assault on the victims.1      Finally, Defendant

Hughes was charged with criminal rnlschler', alleging that he

intentionally damaged the property of John Hrabolowski.



           The Defendants waived their right to a jury trial and proceeded

non-jury before this court. On the day of trial, March 7, 2013, they

were adjudged guilty at all counts.      The Defendant Sherryl Feli was

sentenced on May 23, 2013 to not less than twenty-four (24) months

nor more than forty-eight ( 48) months of imprisonment at count 1,

followed by a consecutive period of probation of seven (7) years, and

to no further penalty on the remaining counts. William Hughes was

sentenced on July 16, 2013 to not less than seven and one half (7 112)

years nor more than fifteen (15) years of imprisonment at count 1, to

five (5) years probation at count 2, to become effective upon his

parole from the sentence at count 1, and to a consecutive term of

eight (8) years probation at count 3. No further penalty was imposed

on the remaining counts.       Both parties filed post-sentence motions

which were denied. Notices of Appeal were timely filed and, pursuant




1
    18 Pa. C.S.A. § 901.
2
    18 Pa. C.S.A.. § 3304.


                                                                                3            \
                                                                                                 ··--- )
                                                               Circulated 09/04/2015 02:11 PM




to this court's Order, Concise Statements of Errors Complained of on

Appeal were filed by both Defendants.



      Defendant Hughes challenged the weight and sufficiency of the

evidence as to Count 1, Count 2 and Count 4.        Defendant Feli

challenged the sufficiency and weight of the evidence as to all counts.

Both also contended that the sentences imposed constituted an abuse

of discretion.    Before turning to these claims, it is necessary to review

the evidence, taken in the light most favorable to the Commonwealth

as the verdict winner.



      John Hrabolowski testified that on March 26, 2012, as he parked

his car outside the Lawrenceville post office, he was verbally

confronted by a man he later identified as Defendant Hughes. (N .T. 9-

11, 14-15).      Hughes made a derogatory comment about Mr.

Hrabolowski's parking. (N.T. 15, 37). After Defendant Hughes made

his comment to Mr. Hrabolowski, Mr. Hrabolowski proceeded into the

post office. (N.T. 15-16).    As he was in the post office, Mr. Hrabolowski

observed Defendant Hughes turn his bicycle around and head towards

his vehicle. (N.T. 17, 40). As Mr. Hrabolowski left the post office and

walked back towards his vehicle, he saw Defendant Hughes grab his

heavy steel, D-shaped bicycle lock, approach his vehicle and strike his



                                                                                4
                                                             Circulated 09/04/2015 02:11 PM




driver side view mirror, breaking it. (N.T. 17-18, 39-40).   Mr.

Hrabolowski asked Defendant Hughes why he broke his mirror. (N.T.

18). In response to the question, and as Mr. Hrabolowski approached

Hughes, Defendant Hughes got off his bike and began swinging the

lock at Mr. Hrabolowski, coming within two (2) to three (3) feet of

him, before leaving the area. (N.T. 18-19).



      Mr. Hrabolowski immediately called the police and reported what

had happened. (N.T. 19-20, 41). Although he was told to wait for the

police to arrive, Mr. Hrabolowski decided to drive to his nearby

apartment to have his roommate accompany him when he spoke with

the police. (N.T. 20-21, 44-45).    As he was heading home, Mr.

Hrabolowski was again confronted by Defendant Hughes, who got off

his bicycle and again approached Mr. Hrabolowski, waving his bicycle

lock at him. (N.T. 44-46).



      Mr. Hrabolowski picked up his roommate, the second victim,

John Szwaczkowski, at their home and then headed back towards the

post office. (N.T. 22-23, 47-48).   As he was driving towards the post

office, he saw the Defendants on their bicycles. (N.T. 24, 48).     Mr.

Hrabolowski stopped his car, opened the car door, and had his leg out

to exit, while telling the Defendants that they needed to stay where



                                                                              5
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they were because the police were on their way. (N.T. 23-26).        As Mr.

Hrabolowski was telling the Defendants to remain until the police

arrived, Defendant Hughes began approaching him, again swinging the

bike lock. (N.T. 26, 98-101).   As Defendant Hughes got closer to the

vehicle, Mr. Szwaczkowski, who had previously exited the car and had

been standing next to the open passenger door, came around the back

of the vehicle to tell Mr. Hrabolowski to remain in the vehicle. (N.T.

26-27, 70-71, 101). Before he moved to the driver's side of the

vehicle, Mr. Szwaczkowski saw that both Defendants had bike locks in

their hands. (N.T. 70, 98-101).



      As Mr. Szwaczkowski was turned toward Mr. Hrabolowski to tell

him to remain in the car, Defendant Hughes struck Mr. Szwaczkowski

on the back of the head with the bike lock. (N.T. 28, 71-72, 102-103).

Mr. Szwaczkowski stumbled against the car and eventually fell to the

ground on the other side of the car. (N.T. 28, 72-73, 103-104).       As

Defendant Hughes stood over him with his bike lock, appearing ready

to strike him again, Mr. Hrabolowski grabbed Defendant Hughes' bike

lock in an effort to prevent Defendant Hughes from striking his friend

again. (N.T. 28, 73). As he was holding onto the bike lock in

Defendant Hughes' hands, Defendant Feli began to strike him on his

arms, attempting to break Mr. Hrabolowski's grip on Defendant



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                     .....
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Hughes' bike lock. (N.T. 28-30).     Mr. Hrabolowski testified that he

suffered bruising on his arms as a result of being struck by Defendant

Feli's bike lock. (N.T. 30-31).



      Defendant Hughes, as he straddled his bicycle, struck Mr.

Szwaczkowski in his ribs repeatedly with his front tire. (N.T. 32, 73,

105-108). Defendant Feli also used her bike lock to strike Mr.

Szwaczkowski in the shoulder, neck and head as he lay on the ground.

(N.T. 74-75, 109, 117).      As Mr. Szwaczkowski struggled to free

himself, he bit Defendant Hughes in the leg, after which the assault

abruptly stopped, and the Defendants fled the area on their bicycles.

(N.T. 32, 75-76, 108-109).



      John Szwaczkowski was taken from the scene by medics to

Mercy Hospital, where he was admitted for four ( 4) days, having

suffered a concussion, a laceration on his head that required four ( 4)

staples to close, five (5) broken ribs and other bruising. (N.T. 77-78).

Photographs of his injuries, taken while he was at the hospital, were

admitted into evidence. (See Commonwealth Exhibits 5-30).        This

court would also note that the injury to Mr. John Szwaczkowski's head

was clearly visible to, and easily noticed by, this court when Mr.

Szwaczkowski testified during the non-jury trial, a fact mentioned by



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the court during the sentencing of each Defendant. (See Hughes

Sentencing Transcript, 7-8;Feli Sentencing Transcript, 20).



      The Defendants testified that they were simply defending

themselves from the victims. (N.T. 142-144, 206-208).      Both

Defendants agreed that Defendant Hughes' bike lock was nine (9)

inches in length and made of metal and that Defendant Feli's lock was

seven (7) inches in length and also made of metal. (N.T. 152, 215).

Defendant Feli denied ever striking anyone with a bike lock, claiming

that her only involvement was when she punched Mr. Hrabolowski in

the arms because he would not let go of her bicycle. (N.T. 146-150).

Despite the Defendants' claims that they acted in self-defense, neither

Defendant Feli nor Defendant Hughes called the police until four ( 4)

days after this incident. (N.T. 149).



      Both Defendants challenged the sufficiency of the evidence and

the weight of the evidence.   Before turning to the specific offenses, the

court would note that the well-established test for a challenge to the

sufficiency of the evidence is whether the evidence, taken in the light

most favorable to the Commonwealth as verdict winner, establishes

each and every element of the offenses charged beyond a reasonable

doubt. Commonwealth v. Noel Matos Montalvo, 956 A.2d 926, 932



                                                                               8
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(Pa. 2008). The Commonwealth is entitled to all reasonable inferences

from the evidence, and it must be remembered that credibility

determinations are for the fact finder. A challenge to the credibility of

a witness is not a basis for a claim that the evidence was insufficient.

A fact-finder is free to believe some, all or none of the testimony of

any witness presented by either party and to accept or reject any

evidence submitted by either party. Commonwealth v. Cousar, 928

A.2d 1025, 1033 (Pa. 2007).



      When reviewing a claim that the verdict was against the weight

of the evidence, it must be remembered that "[t]he weight of the

evidence is exclusively for the finder of fact who is free to believe all,

part, or none of the evidence and to determine the credibility of the

witnesses. An appellate court cannot substitute its judgment for that of

the finder of fact. Thus, we may only reverse the jury's verdict if it is

so contrary to the evidence as to shock one's sense of justice."

Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001).



      When a judge sits as fact-finder in a non-jury trial:

      [A] judge's role ... is not equivalent to his or her role with
      respect to post-trial motions. During trial, the province of a
      trial judge sitting without a jury is to do what the jury is
      required to do, namely, consider all the evidence; reconcile
      contradictions and discrepancies in the testimony, if
      possible; dismiss what is incredible; and, from all that is


                                                                               9
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     presented, assemble a logical, continuous account which
     rings with verisimilitude, appeals to reason and convinces
     the judgment that the controverted event occurred in that
     and in no other manner. Commonwealth v. Lemons, 404
     Pa. 263, 268, 171 A.2d 785, 788 (1961). With respect to
     post-trial motions, however, the trial judge's role is to
     consider and rectify, if necessary, alleged trial errors.
     Commonwealth v. Nock, 414 Pa.Super. 326, 333, 606 A.2d
     1380, 1383 (1992). When considering a post-verdict
     motion in arrest of judgment or the granting of a new trial,
     "the trial court cannot alter the verdict based upon a
     redetermination of credibility or a re-evaluation of
     evidence." Id. at 334, 606 A.2d at 1384.

Commonwealth v. Johnson, 631 A.2d 639, 643 (Pa. Super. 1993).

Accordingly, in assessing a challenge to the weight of the evidence, a

judge may not revisit credibility determinations it made when

rendering its verdict and may not re-weigh the evidence.



                 COUNT 4- CRIMINALCONSPIRACY

      To sustain a conviction for criminal conspiracy, the

Commonwealth must prove, beyond a reasonable doubt, the presence

of the following elements: 1) an intent to commit or aid in an unlawful

act; 2) an agreement with a co-conspirator; and 3) an overt act in

furtherance of the conspiracy.   18 Pa. C.S.A. § 901.


      Because it is difficult to prove an explicit or formal
      agreement to commit an unlawful act, such an act may
      be proved inferentially by circumstantial evidence, i.e.
      the relations, conduct or circumstances of the parties
      or overt acts on the part of the co-conspirators.

Commonwealth v. Galinves, 786 A.2d 1004, 1010 (Pa. Super. 2001).


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      The Defendants contend that the evidence was insufficient to

establish the existence of a conspiratorial agreement.   They also claim

the verdict was against the weight of the evidence. Neither claim has

any merit.



      While there was no direct evidence of a conspiratorial agreement

between the Defendants, the Commonwealth introduced sufficient

circumstantial evidence to support a conviction for conspiracy.    The

law is clear that:

      Circumstantial evidence can include, but is not limited
      to, the relationship between the parties, the knowledge
      of and participation in the crime, and the circumstances
      and conduct of the parties surrounding the criminal
      episode. Commonwealth v. French, 396 Pa.
      Super.436, 578 A.2d 1292, 1294 (1990). These factors
      may coalesce to establish a conspiratorial agreement
      beyond a reasonable doubt where one factor alone
      might fail. Id.

Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa. Super. 2013).



      While it is true that there was no evidence of an explicit or

stated agreement between the parties, the evidence clearly

established that they were jointly participating in this crime and that

there was a tacit understanding between them. The evidence proved

that there was an association between these Defendants and that they

were together before, during, and after the two (2) incidents involving



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                                                             Circulated 09/04/2015 02:11 PM




these victims.   The evidence also established that both had knowledge

of the offenses committed by the other conspirator.



      Defendant Feli was present when Defendant Hughes knocked the

mirror off of Mr. Hrabolowski's vehicle. (N.T. 17-18).   When the

Defendants encountered the victims again, Defendant Feli was present

when Defendant Hughes began the assault on the two (2) victims.

(N.T. 24-26).    She then joined him in the assault, striking John

Hrabolowski on the arms to break his grip on the bicycle lock Hughes

was using in the assault (N.T. 28-30) and then striking John

Szwaczkowski, the second victim, about the head and neck as he lay

on the ground attempting to defend himself from Defendant Hughes'

attack. (N.T. 74-75, 109, 117). Also, the Defendants left the scene of

the attack together. (N.T. 32-33). These facts were sufficient to

establish a criminal conspiracy between the Defendants in this matter,

with the object of that conspiracy being the assault on these victims.



      In Commonwealth v. French, 578 A.2d 1292, 1294 (Pa. Super.

1990), the Superior Court found the evidence sufficient to prove

conspiracy to commit aggravated assault where the appellant and a

group of relatives and friends approached the victim together, knocked

the victim to the ground, continued to beat the victim and attacked the



                                                                            12
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                                                             Po lcu,'\cl    Gi
police when they arrived.    Similarly, in Commonwealth v .· PoleA-,       27
A.3d 518, 519-520 (Pa. Super. 2011). The Superior Court affirmed a

finding that the evidence was sufficient to support an aggravated

assault conviction where the appellant and a group of individuals

approached the victims as a group, battered the victim's face,

knocking out a tooth, and fled the scene together.     In neither of those

cases was there evidence of a stated or explicit agreement; the

agreement was inferred from the circumstances.



      The facts in this case are markedly similar.   The Defendants

were together during the initial encounter between the victim and John

Hrabolowski. (N.T. 14-16).    They remained together when they

encountered him and the second victim a few minutes later (N.T. 24-

26), and both participated in the assaults on both victims, assisting

one another in doing so. (N.T. 28-30, 32, 73-75).     Both also fled the

scene of the attack together. (N.T. 32-33). This was sufficient to

prove the conspiratorial agreement and the required shared intent.

The actual assaults were clearly the overt acts. Accordingly, the

challenge to the sufficiency of the evidence as to the charges of

Criminal Conspiracy was properly rejected by this court.




                                                                                 13
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      Similarly, the challenge to the weight was also properly rejected.

This court's verdict turned on an assessment of the credibility of the

witnesses, an assessment that was unfavorable to the Defendants.              To

put it simply, where the testimony of the Defendants conflicted with

the testimony of the victims, this court believed the testimony of the

victims over that of the Defendants. This court is not only without the

power to revisit credibility determinations,   it would not, if it had that

power, change them. The court found the victims to be believable and

credible, whereas the testimony of the Defendants lacked that "ring of

truth" necessary for this court to believe their testimony.     The verdict

was not against the weight of the evidence as to the charge of criminal

conspiracy.



                             COUNTS 2 & 3

  AGGRAVATED ASSAULT- ASSAULT WITH A DEADLY WEAPON

      It is axiomatic that a defendant who is not a principal actor in

committing a crime may, nevertheless, be liable for the crime if he was

an accomplice of the principal actor. Commonwealth v. Bradley, 392

A.2d 688, 690 (Pa. Super. 1978). A defendant can also be liable for

the acts of another by virtue of their conspiracy. "Once the trier of

fact finds that there was an agreement and the defendant intentionally

entered into the agreement, that defendant may be liable for the overt



                                                                               14           r,               )
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                                                              Circulated 09/04/2015 02:11 PM




acts committed in furtherance of the conspiracy regardless of which

co-conspirator committed the act." Commonwealth v. Murphy, 844

A.2d 1228, 1238 (Pa. 2004).    Accordingly, either Defendant here can

be held criminally liable for the acts of the other Defendant if those

acts were done in furtherance of the criminal conspiracy.    Both

Defendants contend that the evidence was insufficient as to the

Aggravated Assault charges found at counts 2 and 3. Count 2 charged

Aggravated Assault -Assault with a Deadly Weapon as to John

Hrabolowski, while count 3 charged the same as with regard to John

Szwaczkowski.



      Turning first to Count 2, the evidence established that Defendant

Feli struck this victim several times on his arms with her heavy, metal

bicycle lock. (N.T. 28-30, 152).   Mr. Hrabolowski suffered pain and

bruising in the areas where he was struck. (N.T. 30-31). The lock

constituted a deadly weapon pursuant to Pennsylvania law, which

defines a deadly weapon as "[a]ny firearm, whether loaded or

unloaded, or any device designed as a weapon and capable of

producing death or serious bodily injury, or any other 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.A. § 2301 (emphasis added).        A



                                                                             15
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heavy blunt object, like a seven (7) inch long metal bicycle lock, is

capable of producing death or serious bodily injury.                           In this case, a

similar lock wielded by Defendant Hughes actually caused serious

bodily injury to John Szwaczkowski. (N.T. 77-78; Commonwealth

Exhibits 5-30).         Obviously, then, Defendant Feli's bike lock was

capable of doing the same to Mr. Hrabolowski.



         The evidence also established that, at minimum, the victim

suffered bodily injury.              He testified that he suffered substantial pain,

and he had bruising on his arms. (N.T. 30-31). In Commonwealth v.
                   q
Goins, 501 A.2d 27~ (Pa. Super. 1985), the Superior Court held that

bruising and scratching was sufficient to establish that the victim

                                 3
suffered bodily injury.              Accordingly, the evidence was sufficient to

prove the Defendant Feli guilty of this offense as a principal.                             The

verdict was also not against the weight of the evidence.



         Because Defendant Hughes, as a result of his involvement in the

criminal conspiracy to assault the victims and as Defendant Feli's

accomplice, is responsible for the crimes committed by his co-

conspirator in furtherance of their conspiracy, his challenge to the

sufficiency and weight of the evidence as to Count 2 is likewise without
3
  As the Court will set forth later in this Opinion, the evidence was also sufficient to establish that
Defendant Feli attempted to cause serious bodily injury to the victim Hrabolowski when she struck him
repeatedly with the bicycle lock.


                                                                                                          16
                                                                                                 Circulated 09/04/2015 02:11 PM




merit.        Her assault was in furtherance of the object of the

conspiratorial agreement, the assault of the victims.



           The evidence was also sufficient as to Count 3 as to Defendant

Feli both as a principal and as Defendant Hughes' co-conspirator.4

Because she was Defendant Hughes' accomplice and co-conspirator,

she could be found guilty of any act committed by Defendant Hughes

in furtherance of the conspiracy.                      Defendant Hughes struck John

Szwaczkowski in the head, causing a skull fracture and concussion and

leaving him with a visible indentation in his head. (N.T. 28, 71-72, 77-

78, 102-103; Hughes Sentencing Transcript 7-8; Feli Sentencing

Transcript 20).            Defendant Hughes also struck Mr. Szwaczkowski in the

ribs with his bicycle, breaking five of them. (N.T. 32, 73, 105-108, 77-

78). This was certainly sufficient to establish his guilt of aggravated

assault- assault with a deadly weapon and, because Defendant Feli

was his co-conspirator and/or accomplice, it was sufficient to establish

her guilt as well.



           Defendant Feli was also guilty as a principal for her conduct in

striking this victim as he lay on the ground. Though she denied

striking him with her lock, and Mr. Szwaczkowski admitted that he did


4
    Defendant Hughes did not challenge the verdict of guilty at this Count of his information.


                                                                                                              17
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not actually see her do so, the circumstantial evidence was sufficient

to prove that she did.    The victim testified that he was struck in his

back and around his head and neck as he lay on the ground. (N.T. 74-

75, 109, 117). The only other person present wielding a bike lock,

Defendant Hughes, could not have hit him as he and Mr. Hrabolowski

were struggling over control of his bike lock. (N.T. 28, 73). It was a

reasonable inference, therefore, that the blows Mr. Szwaczkowski felt

came from Defendant Feli.



                   COUNT 1- AGGRAVATED ASSAULT

      The Defendants both challenge the sufficiency and weight of the

evidence as to Count 1, which charged them with aggravated assault

under subsection (a)(l).     This required proof that the Defendants,

through their own actions or through the actions of another for whom

they would be legally responsible, attempted to cause, or intentionally,

knowingly or recklessly caused serious bodily injury to John

Hrabolowski.



      This victim, John Hrabolowski, was not as seriously injured as

John Szwaczkowski.       He reported bruises on his arms. (N.T. 30-31).

This was not sufficient to establish that he actually suffered serious

bodily injury.   The fact that the injury was caused by the Defendant



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Feli striking him, repeatedly, with the heavy bike lock, however, was

enough to prove an attempt to do so. The Superior Court in

Commonwealth v. Eddowes, 580 A.2d 769, 773 (Pa. Super. 1990),

observed:   "The fact that appellant did not cause any serious injury is

irrelevant, as the statute punishes attempts as well as completed

assaults. 18 Pa.C.S.A. § 2702(a)."



      To determine whether an assailant possessed the intent to inflict

serious bodily injury, the totality of the circumstances surrounding the

assault must be considered.   Commonwealth v. Alexander, 383 A.2d

887, 889 (Pa. 1978). Among the circumstances that can be considered

is whether an instrument capable of causing serious bodily injury was

used in the attack.   Here, a deadly weapon, as has been previously

discussed, namely, the bicycle lock, was used in the attack.



      In Eddowes, supra, the defendant slashed at the victim with a

knife, but did not cut him. That behavior was enough to justify his

conviction at this same statutory section. Here, the Defendant Feli

swung at, and actually struck, the victim with a weapon capable of

causing death or serious bodily injury. (N.T. 28-30).   She hit him

several times, according to the testimony. (N.T. 28-30).   In fact, she

did so after seeing her co-Defendant strike the other victim with the



                                                                             19
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bike lock in the head, knocking him to the ground and causing him to

bleed profusely. (N.T. 28). She actually witnessed the infliction of

serious bodily injury by the heavy bike lock that she wielded before

she used her nearly identical bike lock to strike repeatedly at John

Hrabolowski in his arms. She did this while he was simultaneously

engaged with her co-Defendant, trying to stop further attacks on his

roommate, Mr. Szwaczkowski. (N.T. 28-30). The court is satisfied that

her repeated blows, with a deadly weapon, were sufficient to prove

that her intent was to cause serious bodily injury.    As the evidence

was sufficient to prove her guilt as a principal for her acts in striking

the victim, it was likewise sufficient to prove her co-Defendant guilty

of the same offense as her co-conspirator and/or accomplice. The

court also does not believe that the verdict was against the weight of

the evidence as to either Defendant at this count.



                                SENTENCING

      Finally, both Defendants have challenged the sentences imposed

by this court. Trial courts have broad discretion in setting sentences.

Sentencing is a matter vested within the sound discretion of the

sentencing judge and will not be disturbed on appeal absent a

manifest abuse of discretion.    Com. v. Mouzon, 828 A.2d 1126, 1128

(Pa. Super. 2003). To constitute an abuse of discretion, the sentence



                                                                              20
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imposed must either exceed the statutory limits or be manifestly

excessive. Com. v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 2003).            An

abuse of discretion is not merely shown by an error in judgment, but

rather by establishing 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.

Mouzon, supra, at 1128. In determining whether a sentence is

manifestly excessive, the appellate court must give great weight to the

sentencing court's discretion, as the court is in the best position to

measure factors such as the nature of the crime, the defendant's

character, and the defendant's display of remorse, defiance or

indifference.   Com. v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997).




      Where an excessiveness claim is based on a court's sentencing

outside of the standard guideline ranges, an appellate court looks, at a

minimum, for an indication on the record that the sentencing court

understood the suggested sentencing range. Com. v. Rodda, 723 A.2d

212, 214 (Pa. Super. 1999). When the court so indicates, it may

deviate from the guidelines to fashion a sentence which takes into

account the protection of the public, the rehabilitative needs of the

defendant, and the gravity of the particular offenses as it relates to the

impact on the victim and the community, so long as the court also


                                                                             21
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                                                             Circulated 09/04/2015 02:11 PM




states the factual basis and specific reasons to deviate from the

guidelines.   Mouzon, supra, at 1128. Sentencing guidelines are merely

advisory, and the sentencing court may sentence a defendant outside

of the guidelines so long as it places its reasons for deviation on the

record.   Com. v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002).



      In setting a sentence, a court has discretion to run the sentence

concurrently with or consecutively to other sentences being imposed.

Mouzon, supra, at 1130. The Superior Court has expressed concern

that running sentences concurrently as a matter of habit can give a

defendant a "volume discount" for separate criminal acts. Com. v.

Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995).



      Defendant Hughes claims that his sentence was an abuse of

discretion because his prior record score was calculated using

convictions that occurred nine (9) and ten (10) years ago and because

the sentence did not "properly reflect the nature of the offense, the

impact on the victim or the rehabilitative needs of the defendant."

This claim is specious. How a prior record score is calculated is set by

statute and regulation.   (See 42 Pa. C.S.A. §9721 (b) and 204 Pa.

Code §303.1, et seq.) The age of the prior offenses that determine

the prior record score is not taken into account in determining that



                                                                            22            \.
                                                               Circulated 09/04/2015 02:11 PM




score. While a court may consider the age of the offenses that

resulted in the prior record score in determining what sentence to

impose, the Defendant's claim that the court erred in utilizing those

older convictions to calculate the prior record score is without merit.



         To the extent that the Defendant is claiming that the age of the

convictions warranted a lesser sentence, that claim is likewise without

merit.    These prior convictions were not offenses committed decades

ago, when the Defendant was barely an adult; having been born in

1978, he was in his mid to late-twenties when he committed those

offenses. They occurred less than ten (10) years prior to this violent

incident, and the court gave them proper consideration in formulating

the sentence.



         Defendant Hughes also generally complains that the sentence

was an abuse of discretion.     He does not explain with any specificity

why the sentence was supposedly an abuse of this court's broad

sentencing discretion.    Defendant Hughes simply states that the

sentence imposed did not "properly reflect the nature of the offense,

the impact on the victim or the rehabilitative needs of the defendant."

Simply mimicking the language of the sentencing code does not

provide the court with an explanation for "why" the sentence failed to



                                                                             23
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                                                             Circulated 09/04/2015 02:11 PM




comply with the sentencing code. In Commonwealth v. Bullock, 948

A.2d 818 (Pa. Super. 2008), the court held that, where the defendant

claimed that the sentence " ... was unduly harsh given the nature and

the circumstances of the case ... [and] was inconsistent with the

Sentencing Act which provides for the balancing of the welfare of the

community with the rehabilitative needs of the Appellant ... ," failed to

preserve, for appellate review, a challenge to the discretionary aspect

of the sentence. The Defendant's claim here similarly fails to explain

how the court abused its discretion.   Other than the incorrect claim

that the court should not have considered nine (9) and ten (10) year

old convictions in calculating his prior record score, Defendant Hughes

has cited to no specific provision of the sentencing act this court

supposedly violated.   Accordingly, the sentencing claims should be

considered waived.



      To the extent that the claims are not deemed waived, the court

set forth, at length, on the record, why it imposed the standard range

sentence it did. (Hughes' Sentencing Transcript, 24-28). The court

could very well have imposed standard range sentences at all but one

of the other counts, but, instead, imposed probationary sentences.

The court is satisfied that the sentence imposed on the Defendant

Hughes was the appropriate sentence given the severity of the



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                                                              Circulated 09/04/2015 02:11 PM




offenses, the impact on the victim and the rehabilitative needs of the

Defendant.



      Defendant Feli claims that court failed to properly consider the

factors required by the sentencing code. The record of the trial and

sentencing hearing belies this claim. The suggestion that Defendant

Feli had a "limited role" in the incident is contrary to the facts that the

Commonwealth established at trial.     While Defendant Feli described

her role as limited, this court, in rendering its verdict, concluded

otherwise. She struck both victims with her bicycle lock, hitting Mr.

Hrabolowski repeatedly in the arms and hitting Mr. Szwaczkowski in

his back, neck and head. She assisted her co-Defendant in his

assaults on both victims. The Defendant's insistence that she played a

"limited role" in these assaults when she spoke at the sentencing

hearing, contrary to the- evidence presented at trial and the verdicts

this court rendered, was a large factor in causing this court to impose

the sentence it did. The court explained:

      THE COURT: I've been tossing around sentences in my
      mind for the last two weeks for you. Some ranged from
      things that you would very much like, to some things you
      would not much like. My sort of final decision is I always
      need to hear what people say at the time of sentencing.
      And what you have said today, quite frankly, to me does
      not err on the side of giving you time served and letting
      you go back to Connecticut at this point in time. Because I
      don't think you fully realize what you did in this situation.
      I don't think you fully comprehend your actions here. You


                                                                             25                <.._)
                                                              Circulated 09/04/2015 02:11 PM




      weren't a puppet on a string. You weren't a programmed
      robot. You are a person who has free will, who is able to
      exercise that free will to do the right thing. And you failed
      to do that here today and on that day.

(Feli Sentencing Transcript, 23-24). The court properly considered this

Defendant's substantial role in this incident. (Feli Sentencing

Transcript, 19-24 ).



      The court also considered the impact on the victims and the

need for the protection of society, as well as the rehabilitative needs of

Defendant Feli. The harm to each victim was considered by the court

and mentioned by the court at the sentencing hearing. The court also

noted that it had received, read and considered several letters

provided on the Defendant's behalf.    The availability of rehabilitative

programs at the state prison was also discussed.



       The minimum sentence of incarceration imposed at Count 1,

twenty-four (24) months, was near the bottom of the standard range

of twenty-two (22) to thirty-six (36) months.    No other sentence of

incarceration was imposed on the other counts, even though some of

those involved a second victim. The court properly weighed the

statutory sentencing factors and imposed a sentence that was

consistent with the protection of society, the severity of the offense,

the impact of the offense on the victims and the rehabilitative needs of


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Defendant Feli. The court did not abuse its discretion when it imposed

sentence.



        Given that there was sufficient, credible evidence to support the

convictions of the Defendants as to all counts, and that this court

sentenced in the standard range for both Defendants after considering

the severity of the offenses, the impact on the victims, the protection

of society and the needs of the Defendants, this court's convictions

and sentences of both Defendants should be upheld.




                                            BY THE COURT:




Date:




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