J-A14019-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

BARTHOLOMEW PALUMBO

                         Appellant                     No. 141 EDA 2017


           Appeal from the Judgment of Sentence June 23, 2016
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0003180-2015


BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.

MEMORANDUM BY BOWES, J.:                              FILED AUGUST 17, 2017

      Bartholomew Palumbo appeals from the judgment of sentence of

twelve to twenty-four years incarceration imposed following his convictions

for   attempted   homicide,   aggravated   assault,    terroristic   threats,   and

recklessly endangering another person. We affirm.

      On August 20, 2015, Appellant visited the home of his on-again/off-

again girlfriend, Alexandra Swartz.   Appellant became angry after seeing

text messages between Swartz and another man.            The two engaged in a

verbal argument that evening. The next day, Appellant returned to Swartz’s

home.    Appellant again brought up the messages, chastising Swartz and

telling her not to talk to this man again. Swartz asked Appellant to leave; in

response, he grabbed Swartz by the neck and threw her to the floor, injuring
J-A14019-17



her leg. Appellant told her “it’s going to get worse” if she called the police,

and left her home.

        Appellant returned to Swartz’s house at approximately eleven p.m.

Observing that Appellant’s eyes were bloodshot, Swartz asked if he was

high.    Appellant confirmed that he was, and said that he would leave.

Swartz suggested that he was in no condition to drive, and watched

television with him in the living room. Appellant again brought up the text

messages, and became increasingly upset. He then punched her in the face

four times with a closed fist. Swartz felt and saw gushing blood. Appellant

stated, “See what you’re making me do?” and dragged her to a door leading

to the basement. Appellant stated, “Now you’re f---ing dead,” and threw her

down the steps.    Swartz crashed into an air conditioner unit sitting at the

base of the stairs. Appellant grabbed Swartz and dragged her to the other

side of the basement, repeating that she was going to die. Appellant placed

a towel in Swartz’s mouth and tried to gag her. Swartz pretended to have a

seizure by shaking for approximately one minute, then stayed motionless in

an effort to play dead. Appellant backed away and said, “Oh my God, I f---

ing killed her. I’m sorry, Alex.” Appellant stayed for a minute or two, then

ran upstairs and closed the door.

        Swartz heard Appellant walking around upstairs. At some point, she

heard the kitchen door leading outside shut.     Swartz crawled to the steps

and was able to pull herself to the kitchen. Swartz was unaware how long

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she stayed in the basement, but noticed it was daytime when she made it

upstairs.   Swartz observed Appellant outside through a window.         He came

back inside and exclaimed, “Oh my God, you’re alive.” Appellant then called

911, informing the operator that Swartz had a seizure and fell down the

stairs.

       City of Bethlehem police officers and emergency medical personnel

arrived almost simultaneously.         Officer James Smith noticed that Swartz’s

face was covered in blood.           While paramedics tended to Swartz, Officer

Smith asked Appellant what had happened. Appellant indicated that Swartz

had suffered a seizure. Officer Smith then spoke to Swartz, who whispered,

“He did this to me.”        Officer Smith arrested Appellant and escorted him

outside. Appellant exclaimed, “I shouldn’t have let her beat the shit out of

me.” Swartz was taken to the hospital where she was determined to have

suffered an orbital wall fracture, a bilateral nasal fracture, and a left anterior

maxillary1 fracture.

       Appellant was taken to the City of Bethlehem police department where

he waived his rights and gave a statement to Detective James Ruvolo at

10:08 a.m, which was videotaped and played to the jury. In this statement,

Appellant claimed that Swartz was verbally hostile, and attacked him

____________________________________________


1
  The treating physician described the maxilla “as the nonmoving part of
your jaw.” N.T., 5/3/16, at 210.



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multiple times that evening. He stated that Swartz injured her ankle during

one of these incidents, and he applied ice to the ankle on the couch.       At

some point, Appellant claimed that Swartz asked to go to the basement for

an unspecified reason. He assisted her to the steps, where she fell due to

her ankle injury. Appellant claimed that she hit the air conditioner and had

a seizure in the basement. Appellant indicated that he called 911 from the

basement, and ran upstairs to let the authorities inside.      Appellant denied

striking Swartz.

       Following a jury trial, Appellant was convicted of all charges and, on

June 23, 2016, the judge imposed the aforementioned sentence. Appellant

filed timely post-sentence motions, which were denied.2 Appellant raises the

following matters for our review.

       I. Whether the trial court erred in failing to conclude that the
       defendant is entitled to a new trial for the following reasons:

              a.     The trial court failed to instruct the jury on
                     self-defense

              b.     The trial court improperly admitted a graphic
                     color photograph depicting the victim's injuries

              c.     The trial court improperly denied Defendant's
                     Motion for Mistrial, and

              d.     The improper statements by the attorney for
                     the Commonwealth during her closing?
____________________________________________


2
  The post-sentence motion was docketed July 5, 2016. The tenth day was
Sunday, July 3, 2016. Monday was the Fourth of July holiday. Therefore,
the post-sentence motion was timely.



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      II. Whether the trial court erred in failing to conclude that the
      maximum possible sentence given by the court was
      unreasonable and excessive given the number of mitigating
      factors, including defendant's minimal prior record, and the lack
      of aggravating factors?

Appellant’s brief at 3.

      Appellant first claims that the trial court erred in failing to issue an

instruction for self-defense.     This contention is largely based upon

Appellant’s testimony at trial, which we briefly review. Appellant repeated

the statement he gave to detectives in many respects, including the

allegation that Swartz was the aggressor. However, he added that when the

two were sitting on the couch, he informed Swartz he would not see her

again due to her physical attacks, verbal abuse, and drug use. He told her

that she was an addict and an unfit mother.          Appellant related what

happened next:

      And I should not have said that. It was stupid of me, number
      one, and it was rude, but it was the truth. And she went nuts.
      Absolutely nuts.

      Q. What do you mean by that?

      A. She hopped right on top of me and just starts throwing
      punches, scratch[ing], anything you can think of, she’s throwing
      at me.

      Q. And what were you doing?

      A. I went like this. As soon as she comes at me, I just went like
      this. As she’s coming forward, we go 50/50. She’s coming at
      me. I’m like this. She goes right into my forearm. I kid you
      not, she goes right into my forearm.



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         Her—she cracks her nose. . . .

N.T., 5/4/16, at 71. Appellant claimed that he intended to take Swartz to

the hospital to treat her broken nose. However, she continued her attack

and accidentally fell down the steps in the process:

         . . . . And we’re right by the stairs. I run and she’s still, like, on
         me, like, trying to pull me down, trying to hit me. And I’m just
         like, stop. And we go down the stairs.

         We’re like – I grab the railing. She’s – she’s on me and I’m
         holding the railing. She just obviously, like, lets go because she
         is falling and she’s holding onto me for support. So she goes
         down. She goes down, like, seven stairs.

Id. at 74.     Appellant maintained that Swartz hit the air conditioner at the

bottom of the steps and had a seizure.           On cross-examination, Appellant

attributed     the   inconsistencies   between    his   testimony   and   his     police

statement to sleep deprivation, hunger, shock, and fatigue.           “I was not in

the proper state of mind . . . I was up 30 hours and I was in total shock

when I heard the word homicide. I mean, that just blew me away. I could

not process that. I was in full panic attack mode.” Id. at 91.

         Appellant asserts that the trial court erred when it denied his request

for a self-defense instruction, arguing his “entire defense was based on the

claim that he was attacked by Alexandra Swartz and that her injuries

occurred when [Appellant] raised his arms in self-defense and Ms. Swartz’s

face made contact with [Appellant]’s forearm and elbow.” Appellant’s brief

at 17.



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      It is well-settled that “[i]f a defendant introduces evidence of self-

defense, the Commonwealth bears the burden of disproving the self-defense

claim beyond a reasonable doubt.”      Commonwealth v. Houser, 18 A.3d

1128, 1135 (Pa. 2011) (citation omitted).         “A jury charge on self-defense

must be given upon request in a criminal prosecution where the jury would

have possible basis for it.”   Commonwealth v. La, 640 A.2d 1336, 1346

(Pa.Super. 1994) (citation omitted).     We find no error, as the jury would

have no possible basis to find self-defense.

      Self-defense is defined by statute. “The use of force upon or toward

another person is justifiable when the actor believes that such force is

immediately necessary for the purpose of protecting himself against the use

of unlawful force by such other person on the present occasion.” 18 Pa.C.S.

§ 505(a).     As is evident from this language, a claim of self-defense

necessarily entails using force. While the passive act of raising one’s arms

to prevent blows constitutes self-defense in a colloquial sense, we hold that

it does not qualify as such in the legal sense.

      In support of his claim, Appellant relies upon Commonwealth v.

Mayfield, 585 A.2d 1069 (Pa.Super. 1991) (en banc), and Commonwealth

v. McFadden, 587 A.2d 740 (Pa.Super. 1991), a case applying Mayfield.

We examine each in turn. In Mayfield, this Court found that the trial court

erroneously failed to issue a self-defense instruction. Therein, the testimony

presented by the prosecution and the defendant, as here, substantially

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differed. The parties agreed that the victim, John Maurer, was driving his

vehicle down a narrow road and was unable to pass another vehicle, driven

by Ernest Miller, traveling in the opposite direction.   The Commonwealth’s

version established that Maurer, frustrated with the situation, approached

Miller, which resulted in a verbal altercation.    Id. at 1075-76.    Mayfield

exited Miller’s vehicle during the dispute and struck the victim. Following a

scuffle, Mayfield pulled out a knife, lunged at Maurer, and stabbed him in the

chest. Id. at 1076.

      Mayfield, on the other hand, claimed that Maurer forcibly pulled him

from the vehicle. Mayfield agreed that he pulled out a knife, but stated he

did so to defend himself.   Significantly, Mayfield explicitly denied stabbing

the victim. Id. The trial court refused to issue a self-defense instruction.

The Commonwealth asked this Court to affirm on the theory that Mayfield’s

failure to concede that he actually stabbed the victim precluded any finding

of self-defense.

      We disagreed.    The Mayfield Court agreed that refusing to admit

using force would preclude a self-defense claim, but differentiated the denial

of employment of force from a denial of causation.

      [W]e do not find that appellant has denied the use of deadly
      force, but merely has denied causing the injury to Maurer once
      he pulled his knife. Under the Commonwealth's theory, even if
      appellant had testified that in defense of himself he lunged at
      Maurer with the full intent to cause injury but did not know that
      he in fact hit his mark, he still would not be entitled to a charge
      on self-defense because he did not admit the actual injury.

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       However, such an argument ignores that it was not the injury to
       the victim that the jury was instructed to focus on, but rather
       the actions or conduct of appellant which led to the injury,—that
       is his use of deadly force. We find appellant's testimony that he
       pulled the knife in preparation to use it against the victim in
       defense of himself to be a sufficient showing of a use of deadly
       force to at least put the question of self-defense before the jury.

Id. at 1077. We ordered a new trial for the failure to issue the instruction.

       Likewise, in McFadden, supra we determined that a victim’s denial of

intentional causation did not preclude a self-defense instruction.     Therein,

Linda McFadden was convicted of aggravated assault for shooting her ex-

husband. McFadden testified that the victim attacked her and grabbed a gun

that was in the room. McFadden stated that she also grabbed the gun, and,

in the ensuing struggle, she obtained possession of the firearm and

discharged it. However, she denied intentionally shooting the victim, instead

stating that her hands may have slipped. Id. at 744. Applying Mayfield,

we held that, accidental injury notwithstanding, McFadden was entitled to a

self-defense charge.3

       Appellant claims that the same principles applied to his conviction, in

that his refusal to admit that he caused the injury did not preclude a self-

defense instruction. We find that both cases are distinguishable. Mayfield

____________________________________________


3
  Technically, the panel concluded that there was arguable merit to a claim
that counsel was ineffective for failing to request that instruction, and
remanded for a hearing regarding whether counsel had a basis for failing to
request it.



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noted that merely wielding a knife is in itself the use of deadly force.     Id.

(citing Commonwealth v. Jones, 332 A.2d 464 (Pa.Super. 1974)).

Mayfield      discussed   Commonwealth         v.   Gonzalez,   483   A.2d   902

(Pa.Super. 1984), which held that an admission by the defendant that he

pointed a gun was sufficient to constitute self-defense even though he

denied that he attempted to fire the weapon. In Gonzalez, the gun never

fired and therefore the crime did not involve actual injury.          Gonzalez

distinguished that situation from cases in which a self-defense instruction

was properly refused for failing to concede injury:

         First, we note that in Powers and Gray, supra, the defendants
         were trying to raise inconsistent defenses. In those cases, the
         defendants maintained that they did not participate in the
         stabbings, yet they requested a charge on self-defense. The
         Appellant in this case differs because he does admit that he held
         a gun pointed at the officers. While Appellant denies that he
         attempted to shoot the revolver, the mere act of pointing a gun
         at an individual is sufficient conduct to constitute an assault.

Id. at 904 (citations omitted). Applying Gonzalez, we concluded that the

mere fact Mayfield pulled a knife was itself legally significant as a use of

force.

         Here, however, Appellant explicitly denied using any force whatsoever.

His purported act of self-defense was purely passive.            By definition,

Appellant did not concede “us[ing] . . . force upon or toward” Swartz. See

18 Pa.C.S. § 505(a).       Accepting Appellant’s version of events as true, the

injuries sustained by Swartz were accidental or self-inflicted, and, if so,



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there was no use of force that required legal justification.          McFadden is

likewise distinguishable, as therein the defendant did not deny that she

caused the injury by firing the gun, i.e. she agreed that the gun was the

force that caused the injury. Thus, while a self-defense instruction may be

issued even where the injuries are said to be accidental, the key in

McFadden was that the defendant agreed with the prosecution regarding

how the injuries occurred.         Herein, Appellant presented an alternative

scenario that was entirely incompatible with Swartz’s testimony and did not

involve any active use of force.          As our Supreme Court explained in

Commonwealth        v.   Harris,    665    A.2d    1172     (Pa.   1995),    in   such

circumstances “a defense of self-defense . . . is mutually exclusive of the

defense of accident or mistake.”      Id. at 1175.        Therefore, the trial court

properly refused to issue the self-defense instruction.

      Appellant’s next issue involves the admission of a color photograph

depicting the victim’s injuries. This photograph was taken by Officer Emily

Falko while Swartz was in the ambulance awaiting transport to the hospital.

The picture shows Swartz’s face covered in blood.             Appellant lodged an

objection, complaining that the photograph was inflammatory.

      We employ an abuse of discretion standard in reviewing the admission

of photographs. Commonwealth v. Haney, 131 A.3d 24, 37 (Pa. 2015). A

trial court must determine if the photograph is inflammatory, and, if so,

whether    the   photograph    has     essential    evidentiary     value.        See

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Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011) (en banc).

“This Court has interpreted inflammatory to mean the photo is so gruesome

it would tend to cloud the jury's objective assessment of the guilt or

innocence of the defendant.” Id. (citation omitted). We have reviewed the

photograph and find that it does not meet this standard.      “The fact that

blood is visible does not necessarily require a finding that a photograph is

inflammatory.”   Commonwealth v. Lewis, 567 A.2d 1376, 1382 (Pa.

1989). Herein, the depiction of blood is not gruesome and would not tend to

cloud the jury’s objective assessment.

     Moreover, even if this photograph were inflammatory, it had essential

evidentiary value.   As the Commonwealth observed at trial, the other

pictures published to the jury were taken after Swartz had been treated and

cleaned.   Thus, the photo was necessary for the jury to properly evaluate

Appellant’s claim that Swartz inflicted the injuries upon herself by running

into his hands and elbow.

     We next address Appellant’s claim that the trial court improperly

denied his request for a mistrial following prejudicial comments made by

Appellant’s brother, David Palumbo, who testified in Appellant’s defense.

Specifically, on cross-examination, Mr. Palumbo indicated that Appellant was

previously on house arrest.

     Q. And the whole time you’re just in your room though?

     A. Yeah.

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      Q. But you know what he’s doing around the rest of the house
      though; right?

      A. He was at home for about six months on house arrest, this
      past year and half. Like—

      Q. Okay. That’s not what I’m asking you. I’m asking you on
      August 21st.

N.T., 5/4/16, at 138-39.

      Appellant moved for a mistrial at sidebar, which the trial court denied.

Appellant declined the trial court’s offer to issue a cautionary instruction.

We begin by noting our standard of review.

      It is well-settled that the review of a trial court's denial of a
      motion for a mistrial is limited to determining whether the trial
      court abused its discretion. An abuse of discretion is not merely
      an error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will ... discretion is abused. A trial court may grant a
      mistrial only where the incident upon which the motion is based
      is of such a nature that its unavoidable effect is to deprive the
      defendant of a fair trial by preventing the jury from weighing
      and rendering a true verdict. A mistrial is not necessary where
      cautionary instructions are adequate to overcome prejudice.

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014). We find

no abuse of discretion. In the context of mistrials based on references to

prior criminal activity, we have observed:

      The admission of testimony from which a jury could infer past
      criminal conduct has been held to be reversible error. Reversal
      is not warranted, however, unless the record indicates that
      prejudice resulted from the testimony.             Mere “passing
      references” to criminal activity do not necessitate the granting of
      a mistrial unless prejudice results from the reference.


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Commonwealth v. Bruner, 564 A.2d 1277, 1287 (Pa.Super. 1989)

(citations omitted). The challenged reference was passing in nature and was

not prejudicial. As the trial judge indicated, the jury may well have simply

assumed that Appellant was on house arrest as a condition of bail for the

instant crimes, and therefore did not refer to past conduct. Additionally, this

reference would not prejudice the jury.      See Commonwealth v. Morris,

519 A.2d 374, 378 (Pa. 1986) (allusion to prior crime of carrying a firearm

without a permit “is not of such a heinous nature as to highly inflame a

jury.”).   Moreover, the remark was made by Appellant’s brother and was

non-responsive to the prosecutor’s question.    “The nature of the reference

and whether the remark was intentionally elicited by the Commonwealth are

considerations relevant to the determination of whether a mistrial is

required.”   Commonwealth v. Valerio, 712 A.2d 301, 303 (Pa.Super.

1998) (quoting Commonwealth v. Coburn, 485 A.2d 502 (Pa.Super.

1984)). Accordingly, we find no abuse of discretion.

      Appellant’s fourth claim is that he should have been granted a new

trial because the prosecutor made improper statements during her closing.

This claim has been waived, as Appellant did not object to the comments.

“[Stafford] also argues that the prosecutor made improper reference to Mr.

Weisbrod's testimony about prior drug use in his closing argument. Because

he made no objection to these remarks at that time, we deem any error




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made waived.”       Commonwealth v. Stafford, 749 A.2d 489, 496, n.5

(Pa.Super. 2000).

      In an attempt to avoid waiver, Appellant claims that the trial court

should have declared a mistrial on its own. “The arguments of counsel for

the Commonwealth were so clearly improper that the Court should have

acted sua sponte and declared a mistrial, or at the very least given a

cautionary instruction.” Appellant’s brief at 26.

      Appellant reaches this conclusion by citing cases discussing the trial

court’s power to declare a mistrial sua sponte, even over objections by the

defendant, due to manifest necessity. A trial judge’s power to do so is well-

settled, and, where manifest necessity existed, the Commonwealth is not

barred from retrying the defendant. See Commonwealth v. Morris, 773

A.2d 192, 194 (Pa.Super. 2001). However, manifest necessity precedents

involve appellate review of whether the trial court’s exercise of that power

was proper; the cases do not set forth standards for when that power should

be employed in the first place.

      Appellant’s failure to appreciate the distinction between these two

concepts is evident from his statement that, “[I]t is well established that any

doubt relative to the existence of manifest necessity should be resolved in

favor of the defendant.” Appellant’s brief at 27. Although this recitation is

correct, it means that any doubt must be resolved in favor of a finding that

manifest necessity did not justify the mistrial, not that a trial judge should

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somehow err on the side of liberally declaring mistrials sua sponte.      Our

adversarial system properly places the burden to act on Appellant, who could

have requested a mistrial. He did not, and this claim was therefore waived.

      Appellant’s final issue asserts that the sentence was unreasonable and

excessive given the number of mitigating factors.      This claim involves the

discretionary aspects of his sentence, and appellate review of these claims is

by permission.   To determine if Appellant has invoked our jurisdiction, we

examine the following four criteria:

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing

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

      Appellant filed a timely notice of appeal and preserved the issue in a

post-sentence motion. He has also presented a substantial question, as he

argues that the trial court imposed the sentence due solely to the gravity of

the offense.   Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super.

2013) (allegation that trial court focused solely on the nature of the offense

presented a substantial question). However, the Commonwealth asks us to

find that the claim is waived, because Appellant’s brief is defective due to a

failure to strictly comply with Pa.R.A.P. 2119(f), which states:


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      (f) Discretionary aspects of sentence. An appellant who
      challenges the discretionary aspects of a sentence in a criminal
      matter shall set forth in a separate section of the brief a concise
      statement of the reasons relied upon for allowance of appeal
      with respect to the discretionary aspects of a sentence. The
      statement shall immediately precede the argument on the merits
      with respect to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f). See also Pa.R.A.P. 2111(a) (the statement of reasons to

allow appeal of discretionary aspects of sentence shall be distinctly entitled

and precede argument).

      We agree that the brief is defective since the Rule 2119(f) statement is

not separately titled nor does the statement immediately precede argument.

“Where an appellant fails to comply with Pa.R.A.P. 2119(f) and the

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

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

However, the third prong of our permissive appeal scheme refers to fatal

defects.   While Appellant’s brief does not strictly comply with the Rules of

Appellate Procedure, we do not find that the defects are fatal as our ability

to review the claim has not been impeded. Appellant’s brief references Rule

2119(f), sets forth a substantial question, and properly separates that

discussion from the merits of his claim. Thus, we proceed to examine the

merits of Appellant’s claim.

      Turning to this issue, we conclude that Appellant’s contention is

groundless. His assertion that the trial court imposed a sentence due solely

to the gravity of the offense is supported by attacking the sufficiency of the


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evidence.   “While the jury found that the offenses involved serious bodily

injury, the evidence related to same would suggest otherwise.” Appellant’s

brief at 30. The trial court obviously had no authority to override the jury’s

verdict, and Appellant does not claim the trial court utilized improper

guidelines. Appellant was convicted of attempted homicide and his sentence

was within the standard range, which the law views as appropriate under the

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

(Pa.Super. 2010). “In reviewing a challenge to the discretionary aspects of

sentencing, we evaluate the court's decision under an abuse of discretion

standard.” Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.Super.

2014) (quoting Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.

2013)).     Since Appellant makes no other attempt to challenge the

appropriateness of this sentence, we find no abuse of discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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