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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DESHAWN KINSLER, : No. 767 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, January 31, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0010639-2012

BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 10, 2015

Deshawn Kinsler appeals from the judgment of sentence of 

January 31, 2014, following his conviction of two counts of aggravated 

assault and one count each of carrying firearms on public streets or public 

property in Philadelphia in violation of the Uniform Firearms Act (“VUFA”)

and possessing an instrument of crime (“PIC”).1 We affirm the convictions 

but vacate the judgment of sentence and remand for resentencing. 

The trial court, sitting as finder-of-fact in this matter, has summarized 

the facts as follows:

On June 7th, 2012, on the 1500 block of 

North 24th Street in Philadelphia, at roughly 9:15 PM, 

Alphonso Miles testified he was watching television 

when he heard a loud crowd of people outside of his 

home. Miles stepped outside to see what was 

 

1 18 Pa.C.S.A. §§ 2702, 6108, & 907, respectively.
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causing the commotion, and saw Appellant and 

Joseph Donaldson III arguing. All three men are 

associated with rival gangs — Miles and Donaldson 

are members of The Waterboys, who operate within 

the Blumberg Projects, while Appellant is a member 

of the Buckboys, who are based on the 1800 block of 

Bucknell Street. Appellant is also associated with a 

subgroup within the Waterboys [sic] called The 

Hitout Boys.

Miles testified that as he stepped out onto his 

front porch, Appellant produced a gun and fired 

three to five times. Miles was struck by two bullets 

— one in the inside of his right knee and one in his 

left forearm. He was bandaged by his mother, and 

brought to the hospital by police. Donaldson was 

struck by a single bullet on his left forearm and was 

taken to Hahnemann Hospital by a passing car. Both 

were treated for their wounds and survived.

Detective Rocks testified that on the evening of 

June 27, 2012, Appellant was involved in a second 

gunfight, this time sustaining a gunshot wound to his 

right arm. A female was also injured in that 

gunfight. This separate shooting allegedly involved 

himself and Joseph Donaldson III again. After 

officers arrived and began to provide aid to 

Appellant, it was discovered Appellant was wanted 

for the June 7 shooting, and he was subsequently 

arrested. Donaldson was eventually arrested for the 

June 27th shooting.

At trial, the Commonwealth used social media 

evidence to establish the gang affiliations of 

Appellant and Donaldson, along with photographic 

evidence related to the shooting. They produced 

Facebook, Instagram, and Twitter posts, along with 

photographs posted to social media which had 

photographs of Donaldson’s injuries and Appellant 

flashing gang signs and posing in front of 

gang-related graffiti. Appellant posted “FREE ME N 

THE REST OF MY HIT OUT BOYZ N BUCK BOYZ,” 

among other gang-related posts to Facebook while 

Donaldson posted “The Blum stands tall” to Twitter 
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along with a picture of the view from his hospital 

room on July 8, 2012. Also on July 8th, he posted 

multiple pictures of the gunshot wound with the 

caption “Bullet shot to the 4arm in & out. I’m 

around tho.”

Trial court opinion, 8/22/14 at 2-3 (citations to the transcript omitted).2

Following a bench trial, appellant was found guilty of the above 

offenses. On January 31, 2014, appellant was sentenced to mandatory 

minimum sentences of 5 to 10 years’ incarceration for each count of 

aggravated assault, to be run concurrently.3 The trial court also imposed 

consecutive sentences of 1 to 2 years for PIC and 2 to 7 years for VUFA, for 

an aggregate sentence of 8 to 19 years’ incarceration. 

On February 11, 2014, appellant filed a post-sentence motion for 

reconsideration of sentence, which was denied the same day. A timely 

notice of appeal was filed on February 26, 2014. Subsequently, appellant 

retained new counsel, Donald Chisholm, II, Esq., who also filed notice of 

appeal on March 11, 2014. On March 21, 2014, the trial court ordered 

appellant to file a concise statement of errors complained of on appeal within 

21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. (Docket #14.) 

On April 14, 2014, this court granted prior counsel, William C. 

Montoya, Esq.’s motions for leave to withdraw as counsel and to withdraw 

 

2 The trial court’s opinion is unpaginated; page numbers are by our own 

count.

3 42 Pa.C.S.A. § 9712 (“Sentences for offenses committed with firearms”).
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the February 26, 2014 appeal as duplicative. (Docket #16.) On April 25, 

2014, appellant filed a Rule 1925(b) statement. (Docket #15.) The trial 

court filed a Rule 1925(a) opinion on August 22, 2014, addressing the issues 

raised in appellant’s concise statement.4

Appellant presents the following issues for this court’s review on 

appeal:

[1.] WHETHER THE COURT ERRE[]D IN 

SENTENCING DEFENDANT TO TWO (2) TO 

SEVEN (7) YEARS ON A MISDEMEAN[]OR OF 

THE FIRST DEGRE[E][?]

[2.] WHETHER THE COURT ERRED IN ALLOWING A 

CUMULATION [SIC] OF PREJUDIC[I]AL AND OR 

IRRELEVANT EVIDENCE AT APPELLANT’S TRIAL 

PREVENTIN[]G HIS RIGHT TO A FAIR TRIAL[?] 

[3.] WHETHER THE COURT ERRED AND ABUSED 

ITS DISCRETION IN SENTENCING APPELLANT 

OUTSIDE THE ADVISORY SENTENCING 

GUIDELINES THUS CREATING AN 

UNNE[C]ESSARY AND UNDUE PUNISHMENT 

 

4 Both appellant and the trial court characterize his April 25, 2014 

Rule 1925(b) statement as timely filed. However, by our count, appellant’s 

concise statement was due on or before Friday, April 11, 2014, the 21st day 

after the trial court’s March 21, 2014 Rule 1925 order. There is nothing in 

the record to indicate that appellant was granted an extension of time within 

which to file his concise statement. It appears to this court that appellant’s 

Rule 1925(b) statement was untimely filed. However, the trial court 

addressed the issues raised in its Rule 1925(a) opinion and it is unnecessary 

to remand. See Commonwealth v. Thompson, 39 A.3d 335, 340 

(Pa.Super. 2012) (“When counsel has filed an untimely Rule 1925(b) 

statement and the trial court has addressed those issues we need not 

remand and may address the merits of the issues presented.”), citing 

Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009) 

(en banc). The untimely filing of a Rule 1925(b) statement is considered 

the equivalent of a complete failure to file; both represent per se

ineffectiveness of trial counsel. Id. at 432-433.
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FOR APPELLANT AFTER FAILING TO CONSIDER 

ALL RELEVANT FACTORS LAWFUL IN THE 

GUIDELINES?

Appellant’s brief at 5.5

In his first issue on appeal, appellant claims that the trial court’s 

sentence of 2 to 7 years’ imprisonment for VUFA is beyond the statutory 

maximum. “If no statutory authorization exists for a particular sentence, 

that sentence is illegal and subject to correction. An illegal sentence must 

be vacated.” Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa.Super. 2014).

VUFA was graded as a first-degree misdemeanor punishable by a 

maximum of 5 years’ imprisonment. See 18 Pa.C.S.A. § 1104(1) (“A person 

who has been convicted of a misdemeanor may be sentenced to 

imprisonment for a definite term which shall be fixed by the court and shall 

be not more than: (1) Five years in the case of a misdemeanor of the first 

degree.”). Therefore, appellant’s sentence for VUFA was illegal and must be 

vacated. Furthermore, as our decision upsets the trial court’s overall 

sentencing scheme, we will remand for complete resentencing.6

 

5 Additional issues raised in appellant’s concise statement and addressed by 

the trial court, including the weight of the evidence and waiver of his right to 

a jury trial, have been abandoned on appeal.

6 We also note that appellant received mandatory 5 to 10-year sentences for 

aggravated assault under 42 Pa.C.S.A. § 9712 (committing crimes of 

violence while in visible possession of a firearm). Section 9712 has been 

held unconstitutional following the United States Supreme Court’s decision in 

Alleyne v. United States, U.S. , 133 S.Ct. 2151, 186 L.Ed.2d 314 

(2013). See Commonwealth v. Ferguson, 107 A.3d 206 (Pa.Super. 

2015). Although no one raises the issue, it is axiomatic that the legality of 
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Next, appellant claims that the trial court erred in allowing evidence of 

his gang affiliation with the Buckboys. According to appellant, this evidence 

was irrelevant, prejudicial, and constituted improper character evidence. We 

disagree.

“The admission of evidence is in the sound discretion of the trial judge, 

and will not be disturbed on appeal absent a manifest abuse marked by an 

error of law.” Commonwealth v. Brown, 911 A.2d 576, 584 (Pa.Super. 

2006), appeal denied, 920 A.2d 830 (Pa. 2007), quoting Commonwealth 

v. Brennan, 696 A.2d 1201, 1203 (Pa.Super. 1997) (citations omitted).

Pennsylvania Rule of Evidence 404 provides in relevant part:

Rule 404. Character Evidence; Crimes or Other 

Acts

* * *

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a 

crime, wrong, or other act is not 

admissible to prove a person’s 

character in order to show that on 

a particular occasion the person 

 

an appellant’s sentence is non-waivable and may even be raised by this 

court sua sponte. Id. at 213 n.4, citing Commonwealth v. Hurst, 532 

A.2d 865, 869 n.2 (Pa.Super. 1987) (providing that “illegality of sentence is 

not waivable and may be raised by this Court sua sponte”); 

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014) (“issues 

pertaining to Alleyne go directly to the legality of the sentence” (citation 

omitted)). On remand, the trial court is instructed to resentence appellant 

on the aggravated assault convictions without reference to any mandatory 

minimum sentencing statute.
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acted in accordance with the 

character.

(2) Permitted Uses. This evidence 

may be admissible for another 

purpose, such as proving motive, 

opportunity, intent, preparation, 

plan, knowledge, identity, absence 

of mistake, or lack of accident. In a 

criminal case this evidence is 

admissible only if the probative 

value of the evidence outweighs its 

potential for unfair prejudice.

Pa.R.E. 404(b).

Our Supreme Court has explained:

Evidence of a defendant’s prior criminal 

activity is inadmissible to demonstrate 

his bad character or criminal propensity. 

The same evidence may be admissible 

for various legitimate purposes, however, 

provided that its probative value 

outweighs the prejudicial effect likely to 

result from its admission, . . . and an 

appropriate limiting instruction is given. 

One such evidentiary purpose is . . . to 

demonstrate the defendant’s motive for 

committing the crime charged.

Commonwealth v. Collins, 70 A.3d 1245, 1252 (Pa.Super. 2013), appeal 

denied, 80 A.3d 774 (Pa. 2013), quoting Commonwealth v. Paddy, 800 

A.2d 294, 307 (Pa. 2002) (citations omitted). See also Commonwealth v. 

Reid, 811 A.2d 530, 550 (Pa. 2002), cert. denied, 540 U.S. 850 (2003) 

(“to be admissible as evidence of motive, the prior bad acts ‘must give 

sufficient ground to believe that the crime currently being considered grew 

out of or was in any way caused by the prior set of facts and 
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circumstances’”), quoting Commonwealth v. Schwartz, 285 A.2d 154, 158 

(Pa. 1971) (emphasis supplied).

Instantly, evidence that appellant and the victims were members of 

rival gangs went to motive. Appellant was a member of the Buckboys, while 

Miles and Donaldson were members of the Waterboys. It was established at 

trial that the Buckboys and the Waterboys are bitter rivals and fight each 

other over drug territory. This evidence helped establish a motive for the 

shooting. Collins, supra (evidence that murder defendant was involved in 

a drug distribution organization and that victims were involved in a rival 

organization was not improper evidence of prior bad acts, since it was 

relevant to show motive).

While appellant argues that the evidence of gang activity was highly 

prejudicial, we observe that this was a bench trial, not a jury trial. “Even if 

prejudicial information was considered by the trial court, a judge, as fact 

finder, is presumed to disregard inadmissible evidence and consider only 

competent evidence.” Commonwealth v. Fears, 836 A.2d 52, 71 n.19 

(Pa. 2003), citing Commonwealth v. Davis, 421 A.2d 179 (Pa. 1980). 

Indeed, the trial court remarked that, “I think as the trial judge I think I can 

use that for what it’s worth. So, I’ll allow it.” (Notes of testimony, 10/25/13 

at 70.) There is no merit here.

Finally, appellant challenges the discretionary aspects of sentencing, 

alleging that his aggregate sentence of 8 to 19 years’ imprisonment was 
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manifestly excessive and did not take into account his rehabilitative needs or 

various mitigating factors. As we are already remanding for complete 

resentencing, we need not address appellant’s discretionary sentencing 

claim.7

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/10/2015

 

7 We note that in his brief on appeal, appellant completely mischaracterizes 

the record. For example, in his Pa.R.A.P. 2119(f) statement, appellant 

claims that he had a prior record score of zero, did not possess a weapon, 

did not inflict any injury upon the victims, and had no infractions during his 

time spent in jail awaiting trial. (Appellant’s brief at 15-16.) In fact, the 

record indicates that appellant had a prior record score of 1; that he shot the 

two victims with a firearm; that both Donaldson and Miles were seriously 

injured and, without prompt treatment, might have died; and that while in 

jail awaiting trial, appellant incurred five infractions, including one classified 

as “critical” in which he used a weapon to inflict injury. (Notes of testimony, 

1/31/14 at 9-10.) The trial court also observed that after he was found 

guilty, appellant was flashing gang signs in the court’s direction. (Id. at 19-

22.) Later in his brief, appellant seems to be referring to a different 

defendant altogether, a “Mr. Branch.” (Appellant’s brief at 20.) Appellant’s 

brief is not reflective of careful and proficient appellate advocacy.