J-A02025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAYMOND J. LEE                             :
                                               :
                       Appellant               :   No. 78 MDA 2018

            Appeal from the Judgment of Sentence August 10, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0005822-2016


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                                  FILED JUNE 07, 2019

        Appellant, Raymond J. Lee, appeals from the August 10, 2017 Judgment

of Sentence entered in the Lancaster County Court of Common Pleas following

his jury conviction of Aggravated Assault and Conspiracy to Commit

Aggravated Assault.1 Appellant challenges the sufficiency and weight of the

evidence in support of his Aggravated Assault conviction, the discretionary

aspects of his sentence, and the trial court’s denial of his Motion for a Mistrial.

After careful review, we affirm.

        The Commonwealth charged Appellant with the above crimes following

a violent altercation in the early morning hours of December 25, 2015, in

which Appellant and his co-defendants, Francisco Camacho (“Camacho”),


____________________________________________


1   18 Pa.C.S. §§ 2702(a)(1) and 903, respectively.
J-A02025-19



Joshua Ellis (“Ellis”), Anthony Maglietta (“Maglietta”), and Alexander

Rodriguez-Cruz (“Crus”), violently assaulted the victim, Shaliek Rivera (the

“victim”), and left him seriously injured.2

       The relevant facts, as gleaned from the record, including the Notes of

the Testimony, are as follows. Maglietta owned Molly’s Pub and Carry-Out, a

bar and bottle shop located on the corner of Shippen and Chestnut Streets in

Lancaster. Ellis, Cruz, and Appellant worked for Maglietta as security guards

at Molly’s Pub. Just before 1:00 AM on December 25, 2015, Appellant, Ellis,

Maglietta, and Cruz, were outside of Molly’s Pub, when the victim approached

the group.      The victim greeted Ellis, and Appellant approached them.3

Appellant and the victim engaged in a short conversation during which

Appellant became “animated” and proceeded to strike the victim violently on

the head, while Cruz, Maglietta, and Ellis stood behind Appellant, watching the

assault. The strike immediately rendered the victim unconscious and prone.

The victim remained unconscious and convulsing, lying partially in Shippen

Street, for approximately 10 minutes.            Eventually, the victim regained

____________________________________________


2 The jury also convicted Ellis, Maglietta, and Cruz of the same offenses. They
have filed direct appeals of their Judgments of Sentence which are pending at
Docket Numbers 1854 MDA 2017; 1869 MDA 2017; and 1845 MDA 2018,
respectively. On May 12, 2017, Camacho entered an open guilty plea to one
count of Robbery, 18 Pa.C.S. § 3701(a)(1)(v), at Docket No. CP-36-CR-806-
2016, for which the trial court sentenced him on August 10, 2017, to a term
of one to five years’ incarceration. Camacho did not file a direct appeal from
his Judgment of Sentence.

3 Trial testimony indicated that Ellis and the victim were friends and had been
roommates.

                                           -2-
J-A02025-19



consciousness, stood up, and began to wander around, stumbling. The victim

stumbled to a residence next door to Molly’s Pub, which belonged to Maglietta,

in an attempt to get help. Appellant, Cruz, Maglietta, and Ellis proceeded to

run after the victim.

      Appellant then grabbed the victim and threw him back to the ground,

whereupon he punched and kicked the victim. The victim remained on the

ground for an extended period of time, during which someone picked the

victim’s pockets.

      The victim roused himself again and then attempted to enter a nearby

vehicle.   Appellant, in the presence of Cruz, Ellis, and Maglietta, again

thwarted the victim’s efforts to obtain help and sanctuary, by removing the

victim from the vehicle. The men placed the victim over a brick planter next

to the Carry-Out and all proceeded to beat, kick, and punch the victim into

unconsciousness. When the men finished beating the victim, Appellant carried

him to an area not far from Molly’s Pub and left him there.        The victim

eventually stumbled back to Molly’s Pub and fell down across the street from

Molly’s Pub.   The victim laid there for approximately 20 minutes before

Appellant, Ellis, Maglietta, and Cruz carried him to a secluded area behind

Maglietta’s truck. The victim laid there, again unconscious, for approximately

another 30 minutes before he regained consciousness, and wandered,

disoriented, back across the street.    Appellant, Ellis, Maglietta, and Cruz

refrained from assaulting the victim any further, but they did not provide him

with any assistance.

                                    -3-
J-A02025-19



       The victim then proceeded to wander to a house on Chestnut Street

whereupon the residents inside alerted the police. At first, the police took the

victim into custody on suspicion of public drunkenness but then, upon realizing

that the victim was seriously injured, called EMS to transport the victim to the

hospital as a trauma patient.

       The victim sustained serious injuries from the assaults including

bleeding, swelling, and bruising of his brain, and a fractured nose.         He

remained unconscious in the hospital for approximately one week following

the attack. The victim also had bone fragments in his ear, which affected his

equilibrium and prevented him from moving on his own for two or three

months. At the time of trial, he continued to suffer from short-term memory

loss and had no recollection of the attack.

       Lancaster Police obtained videotaped footage of the incident from

Molly’s Pub’s security cameras and from the Lancaster Community Safety

Coalition, a group that has installed security cameras around Lancaster City.4,

5




____________________________________________


4 One security camera belonging to the Lancaster Community Safety Coalition
is located at the intersection of Chestnut and Shippen Street, across from
Molly’s Pub.

5 The Commonwealth also charged Maglietta with one count of Tampering with
Evidence, 18 Pa.C.S. § 4910(1), in connection with Maglietta’s attempt to
tamper with and/or conceal the images of the incident recorded by the
cameras at Molly’s Pub. The jury convicted Maglietta of that charge, but the
trial court subsequently granted Maglietta’s Motion for Judgment of Acquittal
as to that conviction.

                                           -4-
J-A02025-19



       The Commonwealth charged the men as co-conspirators. On March 17,

2016, the Commonwealth filed a Notice of Intent to Consolidate. On June 13,

2016, Cruz filed a Pretrial Motion to Sever, which the court denied.

       A three-day joint jury trial commenced on May 22, 2017.              The

Commonwealth presented the testimony of Police Officer Herbert Watson,

Detective Sergeant John Duby, Sergeant Michael John Gerace, and Sergeant

Ronald William Breault, III, all from the Lancaster City Police Department. The

victim also testified. In addition, the court admitted the videotaped footage

of the incident into evidence.         Maglietta testified on his own behalf and

presented the testimony of one character witness. Appellant presented the

testimony of a witness to the crime—his son, Jobe Lee. Neither Cruz nor Ellis

presented any evidence or testimony.

       On May 25, 2017, the jury convicted Appellant of Aggravated Assault

and Conspiracy. The trial court ordered a Pre-Sentence Investigation (“PSI”)

Report.    On August 10, 2017, after consideration of the PSI Report and

argument of counsel, the trial court sentenced Appellant to an aggregate term

of ten to twenty years’ incarceration, and ordered Appellant to pay $7,786.37

in restitution.6

       Appellant filed a timely Post-Sentence Motion in which he challenged the

sufficiency and weight of the evidence, the court’s denial of his Motion for a

____________________________________________


6 Appellant’s sentence was comprised of one term of ten to twenty years’
incarceration for his Aggravated Assault conviction and a concurrent term of
four to eight years’ incarceration for his Conspiracy conviction.

                                           -5-
J-A02025-19



Mistrial, and the discretionary aspects of his sentence.           On December 11,

2017, the trial court denied Appellant’s Post-Sentence Motion.

       This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following three issues on appeal:

       1. Did the sentencing court manifestly abuse its discretion in
          imposing an above the aggravated range sentence constituting
          the maximum sentence permissible by law and a disparate
          sentence compared to similarly situated co-defendants which
          was so manifestly excessive as to constitute an abuse of
          discretion without considering any mitigating factors presented
          by counsel at the time of [Appellant’s] sentencing?

       2. Did the trial court err when it denied [Appellant’s] [M]otion for
          [M]istrial following the admission of highly prejudicial evidence
          during testimony of a co[-]defendant?

       3. Did the trial court err when it denied [Appellant’s] Post-
          Sentence Motion arguing that the verdict was against both the
          weight and sufficiency of the evidence?

Appellant’s Brief at 6.

       In his first issue, Appellant claims the trial court abused its discretion in

imposing a sentence “above the aggravated range,” which was “disparate

compared      to   similarly    situated       co-defendants,”   without   adequately

considering mitigating factors.7 Id. at 18.




____________________________________________


7 The court sentenced Appellant to a statutory-maximum ten to twenty year
term of incarceration.

                                           -6-
J-A02025-19



      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa. Super. 2000).

      Prior to reaching the merits of a discretionary sentencing issue, we must

determine whether: (1) appellant has filed a timely notice of appeal; (2) the

issue was properly preserved at sentencing or in a motion to reconsider and

modify sentence; (3) appellant’s brief has a fatal defect; and (4) there is a

substantial question that the sentence is not appropriate under the Sentencing

Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

      Here, Appellant filed a timely Notice of Appeal. Our review of Appellant’s

Motion for Reconsideration of Sentence indicates that he preserved his claim

that the court abused its discretion in imposing an aggravated-range

sentence. Appellant has also included a separate Pa.R.A.P. 2119(f) Statement

in his Brief to this Court.   We, thus, consider whether the issue Appellant

preserved raises a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa. Super. 2003) (citation omitted). A substantial question

exists “only when the appellant advances a colorable argument that the

sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Sierra, supra at 912-13 (citation

and quotation omitted).

                                     -7-
J-A02025-19



      “We have held that a substantial question is raised where an appellant

alleges the sentencing court erred by imposing an aggravated range sentence

without consideration of mitigating circumstances.”      Commonwealth v.

Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012).           Similarly, a claim that

insufficient reasons existed to support an upward departure from the

sentencing guidelines raises a substantial question.      Commonwealth v.

Kearns, 150 A.3d 79, 85 (Pa. Super. 2016).            A claim of an alleged

“unexplained disparity between [an appellant’s] sentence and that of a co-

defendant” also raises a substantial question. Commonwealth v. Cleveland,

703 A.2d 1046, 1048 (Pa. Super. 1997).       Thus, we proceed to review the

merits of Appellant’s claim that his aggravated range sentence was excessive

and an abuse of the court’s discretion.

      After a careful review of the parties’ arguments and the record, we

conclude that this issue warrants no relief, and we adopt the comprehensive

Opinion of the Honorable Merrill M. Spahn, Jr. as to this issue as our own.

See Trial Ct. Op., 5/15/18, at 8-12 (detailing its extensive consideration of

Appellant’s PSI report; mental health report; age; prior criminal history;

positive employment history; educational history; family background; difficult

upbringing; involvement in the community; the severity of the crime; the

principal role Appellant played in the crime; and rehabilitative needs when

fashioning Appellant’s individualized sentence, and concluding that Appellant’s

sentence did not violate the fundamental norms underlying the sentencing

process). See also N.T. Sentencing, 8/10/17, at 13-21.

                                     -8-
J-A02025-19



       In his second issue, Appellant challenges the trial court’s denial of his

Motion for Mistrial based on the court’s admission of allegedly prejudicial

evidence of Appellant’s alleged gang involvement.        Appellant’s Brief at 23.

Appellant has not specified the precise testimony he alleges was prejudicial;

rather he identifies the evidence only as “testimony of his co[-]defendant and

an officer’s rebuttal testimony who each testified to numerous uncharged bad

acts, alleged crimes including gang involvement and activity in which

[Appellant] was alleged to be involved.”8 Id.

       Before we reach the merits of this issue, we must consider whether

Appellant has preserved it for appeal.

       The Pennsylvania Rules of Evidence require that, in order to advance a

claim of error in a ruling to admit or exclude evidence, a party must make a

specific and timely objection. See Pa.R.E. 103(a)(1). “We have long held

that ‘[f]ailure to raise a contemporaneous objection to the evidence at trial

waives that claim on appeal.’” Commonwealth v. Tha, 64 A.3d 704, 713

(Pa. Super. 2013) (citing, among others, Pa.R.A.P. 302(a)).

       The trial court summarized the events giving rise to this claim as follows:

       By way of backgrounds, during his opening remarks, counsel for
       [] Maglietta told the jury that [] Maglietta owned Molly’s Pub and
       hired [] Ellis and [Appellant] one year prior to the instant assault.
       Counsel for [] Maglietta continued by stating that [] Maglietta only
       subsequently learned that the individuals he had hired were
____________________________________________


8 Although Appellant claims that he “raised an oral Motion in Limine prior to
trial, specifically asking the trial court to preclude such testimony,” he does
not indicate where he placed an objection to the admission of this testimony
on the record at trial. Appellant’s Brief at 23-25.

                                           -9-
J-A02025-19


      members of a gang and they started to wear their gang-related
      colors instead of their work uniforms. Counsel for [] Maglietta
      claimed that [] Maglietta was previously beaten by these
      individuals and only minimally participated in this assault, based
      on a fear for his own life.

      In rebuttal, the Commonwealth elicited testimony from Sergeant
      Michael Gerace, without objection, regarding a photograph from
      [Appellant’s] Facebook account depicting two co-defendants
      eating a meal together, in which one was wearing a black t-shirt
      with red letters, SMM, on the front and the other was wearing a
      red t-shirt.    Again, without any objection, Sergeant Gerace
      testified that the significance was that the letters on the shirt
      stand for Sex, Money, Murder and the red coloring of the other
      shirt was indicative of the representative set of the Bloods group
      or street gang in which they associate. The Commonwealth
      sought to publish [the photograph] to the jury and did so without
      any objection.     Sergeant Gerace further testified, in direct
      response to a cross-examiniation question posed by counsel for
      co-defendant [] Ellis, that [] Ellis was in a gang at the time of the
      assault.

      In considering [Appellant’s] claims in this regard, it must be
      initially noted that [Appellant] failed to seek pre-trial severance of
      his trial from that of the co-defendants and failed to offer a timely
      objection to the admission of such challenged evidence at trial.
      Only upon the completion of Sergeant Gerace’s lengthy testimony
      did counsel for [Appellant] request a mistrial and severance as a
      result of the admission of such testimony regarding alleged gang
      activity and involvement.

Trial Ct. Op. at 12-13 (citations to the Notes of Testimony omitted).

      Our review of the Notes of Testimony confirms that Appellant did not

preserve this claim by lodging a timely objection at trial to the admission of

the evidence he vaguely refers to in his Brief. Appellant has, thus, waived this

issue for appellate review.




                                     - 10 -
J-A02025-19



       In his final issue, Appellant challenges the sufficiency and weight of the

evidence in support of his Aggravated Assault conviction.9, 10

       “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review

claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.

Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and

citations omitted).       “Further, a conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility

of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence.” Id. “In conducting this review, the appellate court

may not weigh the evidence and substitute its judgment for the fact-finder.”

Id.

       Under Pennsylvania law, “a person is guilty of aggravated assault if he

. . . attempts to cause serious bodily injury to another, or causes such injury
____________________________________________


9 Although Appellant purports to challenge the weight and sufficiency of the
evidence in support of both his Aggravated Assault and Conspiracy
convictions, Appellant has presented argument in his Brief pertaining only to
his Aggravated Assault conviction. Thus, we address the sufficiency and the
weight of the evidence in support of this conviction alone.

10 We note with displeasure that the argument section of Appellant's Brief
combines his sufficiency and weight of the evidence challenges into a single
claim. See Appellant's Brief at 25-28. For the sake of clarity, we regard and
discuss these challenges as separate claims.

                                          - 11 -
J-A02025-19



intentionally, knowingly[,] or recklessly under circumstances manifesting

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

Intent to cause serious bodily injury can be proven by wholly circumstantial

evidence, and may be inferred from acts or conduct, or from attendant

circumstances. Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super.

2008). As applied to the offense of Aggravated Assault, “serious bodily injury”

is defined as “[b]odily injury which creates a substantial risk of death or which

causes serious, permanent disfigurement, or protracted loss or impairment of

the function of any bodily member or organ.” 18 Pa.C.S. § 2301.

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

crime, he does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa.C.S. § 901(a).11 “As intent is a subjective

frame of mind, it is of necessity difficult of direct proof. Intent can be proven

by direct or circumstantial evidence; it may be inferred from acts or conduct

or from the attendant circumstances.” Commonwealth v. Miller, 172 A.3d

632, 641 (Pa. Super. 2017) (citations and quotation marks omitted).

       With respect to his Aggravated Assault conviction, Appellant baldly

claims that the Commonwealth failed to prove the element of “serious bodily

injury” because it “did not introduce any medical testimony or introduce any




____________________________________________


11“A person acts intentionally with respect to a material element of an offense
when . . . it is his conscious object to engage in conduct of that nature or to
cause such a result[.]” 18 Pa.C.S. § 302(b)(1)(i).

                                          - 12 -
J-A02025-19



medical records as to the alleged injuries sustained during the incident.”

Appellant’s Brief at 27.

      The trial court summarized the evidence offered by the Commonwealth

to prove that Appellant had caused the victim “serious bodily injury” as

follows:

      The Commonwealth presented evidence that [Appellant] was
      actively and principally involved in the assaults upon the Victim.
      Sergeant Michael John Gerace, a patrol sergeant with the
      Lancaster City Bureau of Police, where he has been employed for
      seventeen years, testified that during the investigation he
      reviewed surveillance footage from the Lancaster Community
      Safety Coalition of the assault in this matter. . . . Sergeant Gerace
      [testified that he] observed [Appellant] punch the victim on the
      left side of his face, had pushed the victim to the ground, and had
      further punched and kicked the victim in the face. Sergeant
      Gerace explained that the video footage showed [Appellant] scoop
      up the victim, while being followed by co-defendants [] Ellis and
      [] Rodriguez-Cruz. Sergeant Gerace described the victim, at this
      point [in] the assault as “a virtually unconscious body.” . . .

      [T]he Commonwealth [also] presented the testimony of Officer
      Herbert Watson of the Lancaster City Bureau of Police. Officer
      Watson testified that he observed serious injuries on the victim’s
      face and body so he called for an ambulance and [the victim] was
      treated as a trauma patient. Officer Watson further testified that
      the [v]ictim was having difficulty standing and communicating as
      a result of his injuries.

      At trial, the victim testified that he suffered multiple injuries,
      including black eyes, fragmented bones in his ears, injuries to his
      nose, pain to his ribs, bleeding on his brain, the inability to
      properly walk for several months, and lingering memory issues
      [a]s a result of this vicious and prolonged assault.

Trial Ct. Op. at 21-22.

      Following our review of the evidence, particularly the testimony of the

victim, we agree with the trial court that, when viewed in the light most


                                     - 13 -
J-A02025-19



favorable to the Commonwealth as verdict-winner, the Commonwealth

presented sufficient evidence from which the jury could reasonably conclude

that Appellant had caused the victim “serious bodily injury” and, thus,

committed the offense of Aggravated Assault. Moreover, Appellant has not

cited any authority for his argument that expert medical testimony or the

victim’s medical records were necessary to prove that the victim suffered

“serious bodily injury.” Appellant’s claim, therefore, fails.

      Last,   Appellant   challenges    the     weight   the   jury   gave   to   the

Commonwealth’s “weak” evidence of the victim’s serious bodily injury and its

reliance on “video evidence.” Appellant’s Brief at 28.

      When considering challenges to the weight of the evidence, we apply

the following precepts.   “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact.   Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

      Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

                                       - 14 -
J-A02025-19



“Because the trial judge 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 [or is not] against the weight of the

evidence.” Id. at 546. “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.” Id.

      Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (internal quotation

marks and citation omitted). As our Supreme Court has made clear, reversal

is only appropriate “where the facts and inferences disclose a palpable abuse

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations and emphasis omitted).

      “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014). For that reason, the trial court need not view the evidence in the light

most favorable to the verdict winner, and may instead use its discretion in

concluding whether the verdict was against the weight of the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa. 2000).




                                    - 15 -
J-A02025-19



      With respect to this issue, the trial court found that “it is quite apparent

that the jury resolved the relevant credibility issues in favor of the witnesses

presented by the Commonwealth[.]” Trial Ct. Op. at 24. It further found that

Appellant “has failed to demonstrate that the verdict in this matter served to

shock one’s sense of justice.” Id. We agree.

      Appellant essentially asks us to reassess the credibility of the

Commonwealth’s witnesses and to reweigh the testimony and evidence

presented at trial. We cannot and will not do so. Our review of the record

shows that the evidence is not tenuous, vague, or uncertain, and the verdict

was not so contrary to the evidence as to shock the court’s conscience.

Accordingly, we discern no abuse of discretion in the trial court’s denial of

Appellant’s weight claim.

      Judgment of Sentence affirmed. We direct the parties to attach a copy

of the trial court’s May 15, 2018 Opinion to any future filings.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/07/2019




                                     - 16 -
Circulated 05/10/2019 12:11 PM




         .... .,,,
                       '
                       z
                             -...
                             ;;;;
        ....                 -<
                                     C>
                            U1
                            -0
                            =:
                             ..
                            ..::·
                                    ---,
    '                �
                     ,J,>
                                                                                                         2_0pinion




of the instant offenses. The trial court ordered a Pre-Sentence Investigation and deferred sentencing

pending the completion of said report.

       The trial court sentenced Defendant on August 10, 2017 as follows:

               Count I - Aggravated Assault - Not less than ten ( 10) years nor more than twenty (20)

               years incarceration with Defendant being responsible for the costs of prosecution

               Count II - Nol prossed by the Commonwealth with costs placed on the County of

               Lancaster

               Count III - Criminal Conspiracy to Commit Aggravated Assault - Not less than four ( 4)

               years nor more than eight (8) years incarceration with Defendant being responsible for

               the costs of prosecution

       The sentences were imposed concurrent with one another. As such, the trial court imposed an

aggregate sentence of not less than ten ( 10) years nor more than twenty (20) years incarceration. The

court also set restitution in the amount of $7, 786.3 7 and indicated Defendant was not eligible for

participation in the RRRI initiative in light of the nature of the current offenses and noted that the

Commonwealth was unwilling to waive said ineligibility. (N.T., Sentencing, August 10, 2017 at pp. 21-

22).

       Defendant filed a timely Post-Sentence Motion on August 21, 2017 requesting a motion for a

new trial or judgment of acquittal. Defendant filed a Brief in Support of said motion on October 10,

201 7. The Commonwealth filed a Brief in Response thereto on October 2 7, 2017. The trial court

denied Defendant's Post-Sentence Motion by way of Court Order entered on December 11, 2017.

       On January 9, 2018, Defendant filed a timely Notice of Appeal to the Superior Court of

Pennsylvania. By way of Court Order dated January 12, 2018, Defendant was directed to file a Concise

Statement of Errors Complained of on Appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of



                                                      2
                                                                                                                2_0pinion




did not base its sentence solely on the seriousness of the offenses. At sentencing, the court did note that

it had concerns that the sentencing guidelines did not fully reflect or envision such a connected series of

assaults or the inhumanity undertaken by Defendant on December 25, 2015 and the court was reluctant

to deviate from the sentencing guidelines; however, the court believes that a sentence above the

aggravated range is appropriate and that any lesser sentence would depreciate the seriousness of

Defendant's conduct, which was a very lengthy continued course of violent assaults and not just one

isolated assault. (N.T., Sentencing Hearing, August 10, 2017 at p. 20). As such, there were, without

doubt, ample reasons noted to support the decision of this court to deviate beyond the aggravated range

of the sentencing guidelines. The sentence imposed in this case was not manifestly unreasonable, nor

was it the result of partiality, prejudice, bias, or ill-will. It was the result of extensive reflection upon all

considerations discussed above.

B.      DENIAL OF DEFENDANT'S MOTION FOR A MISTRIAL REGARDING THE
        INTRODUCTION OF GANG-RELATED TESTIMONY INTO EVIDENCE

        Next, Defendant raises a challenge to the court's denial of his motion for a mistrial regarding the

admission of certain evidence at trial related to gang involvement on the part of the perpetrators of the

instant assault.

        By way of background, during his opening remarks, counsel for Co-Defendant, Anthony

Maglietta, told the jury that Mr. Maglietta owned Molly's Pub and hired Mr. Ellis and Mr. Lee one year

prior to the instant assault. (N.T., Jury Trial II of Iv, May 23, 2017, at pp. 287-288). Counsel for Mr.

Maglietta continued by stating that Mr. Maglietta only subsequently learned that the individuals he had

hired were members of a gang and they started to wear their gang-related colors instead of their work

uniforms. (N.T., Jury Trial II oflV, May 23, 2017 at p. 288). Counsel for Mr. Maglietta claimed that

Mr. Maglietta was previously beaten by these individuals and only minimally participated in this assault,

based upon a fear for his own life. Id.


                                                       12
                                                                                                           2_0pinion




        "A person is legally accountable for the conduct of another person when ... (3) he is an

accomplice of such other person in the commission of the offense." 18 Pa. C.S.A. §306. "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: ... (ii) aids or agrees or attempts to aid such other person

in planning or committing it." 18 Pa.C.S.A. § 306; See, Commonwealth v. Vining, 744 A.2d 310, 321

(Pa. Super. 2000) (transcending mere association, accomplice liability requires active and purposeful

participation in criminal activity with others), appeal dismissed as improvidently granted, 774 A.2d

1246 (Pa. 2001).

               Section 903(a)(l) of the Crimes Code provides:

               § 903 Criminal Conspiracy

               (a) Definition of conspiracy-A person is guilty of conspiracy with another person
                   or persons to commit a crime if with the intent of promoting or facilitating its
                   commission he:

                   ( 1) agrees with such person or persons that they or one or more of them will
                        engage in conduct which constitutes such crime or an attempt or solicitation
                        to commit such crime;
                   ***
               (b) Scope of conspiratorial relationship. If a person guilty of conspiracy, as defined
               by subsection (a) of this section, knows that a person with whom he conspires to
               commit a crime has conspired with another person or persons to commit the same
               crime, he is guilty of conspiring with such other person or persons, to commit such
               crime whether or not he knows their identity.

18 Pa. C.S.A. § 903(a)(l), (b). To sustain a conviction for criminal conspiracy, the Commonwealth

must establish 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. Jones, supra. at 121. Additionally:

               Circumstantial evidence may provide proof of the conspiracy. The conduct of the
               parties and the circumstances surrounding such conduct may create a "web of
               evidence" linking the accused to the alleged conspiracy beyond a reasonable doubt.


                                                     20
                                                                                                                2_0pinion




        In Commonwealth v. Gray, 867 A.2d 560 (Pa. Super. 2005), the fact-finder concluded that that

the defendant inflicted serious bodily injury based on police observations of a number of puncture and

stab wounds on the victim and the parties' stipulation that the victim informed her doctor that she had

been stabbed in the arm with a knife and in the forehead and scalp with a screwdriver. Id. at 568.

There was no necessity for expert medical evidence to be introduced at trial to establish that these

wounds were inflicted by the defendant or constituted serious bodily injury.

        The trial court firmly believes that the totality of the evidence presented at trial established that

Defendant's actions supported his convictions of Aggravated Assault and Criminal Conspiracy to

Commit Aggravated Assault. Defendant directly physically assaulted the victim numerous times;

followed the victim with the co-defendants; and, left the victim lying unconscious for an extended time

without summoning medical attention. While there can never be a precise determination as to whether

this Defendant's blows resulted in the serious bodily injury suffered by the victim, there can simply be

no doubt that the totality of the actions of this Defendant, taken in concert with the actions of

accomplices and co-conspirators, unfortunately and unquestionably achieved such a result. Although

the Commonwealth was unable to present any direct evidence regarding any explicit agreement between

Defendant and his co-defendants, based upon the factual background established by the Commonwealth,

there can, again, be no doubt that such an agreement existed and was proven, by circumstantial

evidence, beyond a reasonable doubt. As noted above, Defendant: was present for the entirety of this

prolonged series of violent assaults upon the victim; was actively participating in and aiding his co-

conspirators during said assaults; was repeatedly directly physically punching and kicking the victim

during said assaults; and, was acting with a unified purpose with his co-conspirators.

       Therefore, upon consideration of the totality of the evidence presented at trial and for the reasons

as set forth above, the verdict in the instant matter is supported by sufficient evidence presented at trial.



                                                      23
 r-
 l>     r-,.._:,
 z
 )>
o»
,..,,
-i                  ::x:

        -0
c:                 0
:z:                c
-f                 ::0
                   .-i
