J-S20033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellee

v.

JERONE ANDRE MOORE

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 820 MDA 2017

Appeal from the Judgment of Sentence April 10, 2017

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0003215-2015

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 10, 2018

Appellant, Jerone Andre Moore, appeals from the judgment of sentence 

entered in the Luzerne County Court of Common Pleas, following his jury trial 

convictions of attempted murder and kidnapping.1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

Appellant and Victim met on October 3, 2014. Appellant took Victim to a party 

on the evening of October 4, 2014, at the home of Chloe Isaacs, Appellant’s 

friend. Following the party, Appellant and Victim returned to Victim’s 

apartment, where they engaged in consensual sexual intercourse. In the early 

morning hours of October 5, 2014, Ms. Isaacs and another party guest, Emily 

Evelock, went to Victim’s apartment, looking for a stolen iPhone. Ms. Isaacs,

____________________________________________

1 18 Pa.C.S.A. §§ 901 and 2901(a)(3), respectively. 
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Ms. Evelock, and Appellant forced Victim into Ms. Isaacs’ car, and they drove 

back to Ms. Isaacs’ apartment. 

Ms. Isaacs, Ms. Evelock, and two other female party guests stripped 

Victim and placed her inside a plastic garbage bag. They beat Victim and 

stubbed out cigarettes on her face. Appellant and Nygee Taylor then 

transported Victim from Ms. Isaacs’ kitchen into the attic and stuffed Victim

inside a garbage barrel. After about four hours, Appellant, Mr. Taylor, and 

Darnell Evans placed Victim inside the trunk of Ms. Isaacs’ car, and drove to 

the woods.

Appellant and Mr. Taylor led Victim, from behind, into the woods. 

Appellant tried to cut Victim with a razor blade, but Victim blocked it with her 

hand. Next, using Mr. Evans’ knife, Appellant slashed Victim’s neck. Victim 

played dead. Once her attackers were gone from the scene, she sought aid 

at a nearby house. 

Appellant’s jury trial began on February 21, 2017. Ms. Isaacs testified,

over a defense objection, that Mr. Taylor had criticized Appellant for going into 

a store after the crime with Victim’s blood still on his hands. The court 

additionally admitted into evidence a text message sent from Appellant’s 

phone to his girlfriend on October 6, 2014, one day after the incident. The 

message read, “A lot of shit went down bae n its bad I need to leave [sic].” 

On February 24, 2017, the jury convicted Appellant of attempted murder and 

kidnapping. 
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Following Appellant’s conviction, the court ordered a presentence 

investigation (“PSI”) report. On April 6, 2017, the Commonwealth filed a 

motion to amend the PSI report to increase Appellant’s prior record score from 

three to five, based on Appellant’s prior conviction of manslaughter in New 

York2 and to apply the deadly weapon enhancement. 

On April 10, 2017, the court sentenced Appellant to an aggregate term 

of twenty-six (26) to sixty (60) years’ incarceration. Appellant filed a timely 

post-sentence motion on April 13, 2017, which the court denied on May 9, 

2017. On May 16, 2017, Appellant timely filed a notice of appeal. The court 

ordered Appellant on May 18, 2017, to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely 

complied on June 5, 2017. 

Appellant raises six issues for our review:

(1) WHETHER THE TRIAL COURT ERRED BY ADMITTING 

CHLOE ISSACS’ HEARSAY TESTIMONY UNDER THE COCONSPIRATOR EXCEPTION TO THE HEARSAY RULE, PA.R.E. 

803(25)(E)?

(2) WHETHER THE TRIAL COUT ERRED WHEN IT 

DETERMINED THAT [APPELLANT]’S PREVIOUS NEW YORK 

STATE CONVICTION WAS EQUIVALENT TO 

PENNSYLVANIA’S THIRD DEGREE MURDER STATUTE 

THEREBY MAKING [APPELLANT]’S PRIOR RECORD SCORE 5 

INSTEAD OF 3?

(3) WHETHER THE TRIAL COURT ERRED BY ADMITTING 

TEXT MESSAGES INTO EVIDENCE WHEN THE 

COMMONWEALTH DID NOT AUTHENTICATE THE TEXT 

____________________________________________

2 N.Y. Penal Law § 125.20. 
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MESSAGES AS BEING SENT BY [APPELLANT] UNDER PA.R.E. 

901? 

(4) WHETHER THE JURY’S DETERMINATION THAT THE 

VICTIM SUFFERED SERIOUS BODILY INJURY WAS 

SUPPORTED BY INSUFFICIENT EVIDENCE SINCE NO 

MEDICAL EXPERT TESTIFIED, NO TREATING PHYSICIAN 

TESTIFIED, ...VICTIM’S INJURIES WERE NOT LIFE 

THREATENING, AND THERE WAS NO EVIDENCE TO PROVE 

THAT...VICTIM’S SCAR WAS PERMANENT?

(5) WHETHER THE JURY’S DETERMINATION THAT...VICTIM 

SUFFERED A SERIOUS BODILY INJURY WAS AGAINST THE 

WEIGHT OF THE EVIDENCE SINCE NO MEDICAL EXPERT 

TESTIFIED, NO TREATING PHYSICIAN TESTIFIED, 

...VICTIM’S INJURIES WERE NOT LIFE THREATENING, AND 

THERE WAS NO EVIDENCE TO PROVE THAT...VICTIM’S SCAR 

WAS PERMANENT?

(6) WHETHER THE SENTENCING STRUCTURE IN 18 

PA.C.S.A. § 1102(C) IS UNCONSTITUTIONAL UNDER 

APPRENDI V. NEW JERSEY, 530 U.S. 466[, 120 S.CT. 

2348, 147 L.ED.2D 435] (2000) AND WHETHER THE TRIAL 

COURT IMPERMISSIBLY PERFORMED A LEGISLATIVE 

FUNCTION BY ADDING THE SERIOUS BODILY INJURY 

QUESTION TO THE VERDICT SLIP IN AN ATTEMPT TO 

REMEDY THE UNCONSTITIONALITY OF 18 PA.C.S.A. § 

1102(C)?

(Appellant’s Brief at 7-8).3 

Preliminarily, “to preserve their claims for appellate review, appellants 

must comply whenever the trial court orders them to file a Statement of 

[Errors] Complained of on Appeal pursuant to [Rule] 1925. Any issues not 

raised in a [Rule] 1925(b) statement will be deemed waived.” 

Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) 

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3

Issues reordered for purposes of disposition. 
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(quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 

(1998)). Instantly, Appellant did not raise his third appellate issue, which 

challenges the admission of a text message into evidence, in his Rule 1925(b) 

statement. Consequently, Appellant’s third issue is waived. See id. 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable David W. 

Lupas, we conclude Appellant’s issues one and two merit no relief. The trial 

court opinion comprehensively discusses and properly disposes of the 

questions presented. (See Trial Court Opinion, filed November 27, 2017, at 

3-5, 12-14) (finding: (1) preponderance of evidence convinced court there 

was conspiracy between Appellant and declarant, Mr. Taylor, for purposes of 

admitting evidence, when Commonwealth offered Ms. Isaacs’ testimony 

regarding Mr. Taylor’s statement; additionally, Mr. Taylor made declarations

during conspiracy, in course of concealing evidence, and in furtherance of 

common design of evading capture; Ms. Isaacs’ testimony about Mr. Taylor’s 

statement met co-conspirator exception to hearsay rule; (2) court allowed 

amendment of Appellant’s prior record score to include Appellant’s New York 

conviction for first-degree manslaughter because New York’s first-degree 

manslaughter offense is sufficiently similar to Pennsylvania’s third-degree 

murder offense). Accordingly, as to Appellant’s first and second issues, we 

affirm based on the trial court opinion. 

In his fourth and fifth issues combined, Appellant argues the 
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Commonwealth presented insufficient evidence for a jury to find Victim 

sustained a serious bodily injury. Appellant contends the verdict that Victim 

was in substantial risk of death shocks one’s sense of justice and is against 

the weight of the evidence. Appellant avers no medical expert or treating 

physician testified, Victim’s injuries were not life threatening, and there was 

no evidence to prove Victim’s neck scar was permanent. Appellant concludes 

this Court should grant him a new trial or vacate his sentence. We disagree. 

The following principles apply to challenges to the sufficiency of the 

evidence:

The standard we apply in reviewing the sufficiency of the 

evidence 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 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).
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Our standard of review for a challenge to the weight of the evidence is 

as follows:

The 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 lower court’s 

verdict if it is so contrary to the evidence as to shock one’s 

sense of justice. Moreover, where the trial court has ruled 

on the weight claim below, an appellate court’s role is not 

to consider the underlying question of whether the verdict 

is against the weight of the evidence. Rather, appellate 

review is limited to whether the trial court palpably abused 

its discretion in ruling on the weight claim. 

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) 

(internal citations omitted).

Under the Crimes Code, “[a] person commits an attempt 

when with intent to commit a specific crime, he does any 

act which constitutes a substantial step towards the 

commission of the crime.” 18 Pa.C.S.A. § 901(a). A person 

may be convicted of attempted murder if he takes a 

substantial step toward the commission of a killing, with the 

specific intent in mind to commit such an act. See 18 

Pa.C.S.A. §§ 901, 2502. The substantial step test broadens 

the scope of attempt liability by concentrating on the acts 

the defendant has done and does not any longer focus on 

the acts remaining to be done before the actual commission 

of the crime. The mens rea required for first-degree 

murder, specific intent to kill, may be established solely 

from circumstantial evidence. [T]he law permits the fact 

finder to infer that one intends the natural and probable 

consequences of his acts. 

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008), appeal 

denied, 600 Pa. 760, 967 A.2d 958 (2009) (most internal citations and 
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quotation marks omitted). 

The Crimes Code defines “serious bodily injury” 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.A. § 2301. See also Commonwealth v. Reid, 

867 A.2d 1280, 1284 (Pa.Super. 2005), appeal denied, 586 Pa. 725, 890 A.2d 

1058 (2005) (noting slashed throat constituted serious bodily injury). 

Instantly, Appellant and company took Victim into the woods; Appellant

slashed Victim’s neck and scalp with a knife and left her to die. Appellant’s 

slashing of Victim’s neck and leaving the scene created a substantial risk of 

Victim’s death. See 18 Pa.C.S.A. § 2301; Reid, supra. Therefore, the 

Commonwealth presented sufficient evidence to sustain the jury’s finding of 

serious bodily injury. See Jones, supra. Additionally, the jury’s finding of 

serious bodily injury did not shock the court’s conscience. Thus, the court 

properly denied Appellant’s weight of the evidence claim. See Champney,

supra. 

In his sixth issue, Appellant argues the Commonwealth did not notify 

Appellant of its intent to prove serious bodily injury, a fact that increases the 

statutory maximum penalty for a crime and must be proved beyond a 

reasonable doubt, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 

2348, 147 L.Ed.2d 435 (2000). Appellant submits serious bodily injury is a 

sentence enhancer that the legislature and Section 1102(c) do not allow a trial 
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court to present to a jury. Appellant analogizes to Commonwealth v. 

Valentine, 101 A.3d 801 (Pa.Super. 2014), appeal denied, 633 Pa. 749, 124 

A.3d 309 (2015), which declared Sections 9712 and 9713 unconstitutional 

under Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 

314 (2013), because each statute required proof at sentencing of a fact that 

could increase the mandatory minimum sentence. Appellant avers Section 

1102 intended a judge to decide serious bodily injury at sentencing, even 

though the statute does not contain a-proof-at-sentencing subsection. 

Appellant maintains the court impermissibly performed a legislative function 

when it allowed the verdict slip to include serious bodily injury. Appellant 

concludes this Court should vacate his judgment of sentence and remand for 

resentencing in accordance with the twenty (20) year statutory maximum for 

attempted murder without serious bodily injury. We disagree. 

A challenge to the legality of a sentence is a question of law. 

Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa.Super. 2017) (en banc). 

Thus, our standard of review is de novo and our scope of review is plenary. 

Id. 

The sentence for attempted murder is as follows:

§ 1102. Sentence for murder, murder of unborn child 

and murder of law enforcement officer

* * *

(c) Attempt, solicitation and conspiracy.—

Notwithstanding section 1103(1) (relating to sentence of 

imprisonment for felony), a person who has been convicted 
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of attempt, solicitation or conspiracy to commit murder, 

murder of an unborn child or murder of a law enforcement 

officer where serious bodily injury results may be 

sentenced to a term of imprisonment which shall be fixed by 

the court at not more than 40 years. Where serious bodily 

injury does not result, the person may be sentenced to a 

term of imprisonment which shall be fixed by the court at 

not more than 20 years. 

18 Pa.C.S.A. § 1102(c) (emphasis added).

The Commonwealth must give a defendant notice that it seeks to prove 

serious bodily injury in order for the 40-year maximum sentence for attempted 

murder to apply. Barnes, supra. “Serious bodily injury is a fact that must 

be proven before a maximum sentence of [40] years may be imposed for 

attempted homicide.” Id. at 117. See also Commonwealth v. Johnson, 

910 A.2d 60 (Pa.Super. 2006), appeal denied, 592 Pa. 766, 923 A.2d 1173 

(2007) (stating jury has sole responsibility to find beyond reasonable doubt 

whether serious bodily injury resulted from attempted murder). 

Instantly, the Commonwealth filed an amended criminal information on 

February 10, 2017, which stated:

AMENDED INFORMATION

COUNT 1 – Criminal Attempt to Murder of the 1st Degree –

18 Pa.C.S.A. [§] 901(a) – 18 [Pa.]C.S.A. [§] 2502(a) –

(Homicide 1) 

[Appellant] committed an attempt when, with intent to 

commit the crime of Murder of the 1st Degree, 18 Pa.C.S.A. 

[§] 2502(a), [Appellant] did an act which constituted a 

substantial step toward the commission of the aforesaid 

crime causing serious bodily injury to [Victim] with a knife.

(Amended Criminal Information, filed February 10, 2017, at 1). Before 
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deliberation, the court instructed the jury as follows:

THE COURT: [Appellant] has been charged with attempted 

murder. To find [Appellant] guilty of this offense, you must 

find that the following three elements have been proven 

beyond a reasonable doubt.

First, that [Appellant] did a certain act. And in this case, it’s 

alleged he cut someone with a knife.

Second, that at the time of this alleged act, [Appellant] had 

the specific intent to kill [Victim]; that is, he had a fully 

formed intent to kill and he was conscious of his own 

intentions. 

And third, that the act constituted a substantial step toward 

the commission of the killing [Appellant] intended to bring 

about.

* * *

If you are satisfied that the three elements of attempted 

murder have been proven beyond a reasonable doubt, you 

should find [Appellant] guilty; otherwise, you must find 

[Appellant] not guilty of this crime.

You will see later when I give you the verdict slip, you’ll be 

asked to consider something else. If, and only if you should 

find [Appellant] guilty of attempted murder beyond a 

reasonable doubt. If and only if you find [Appellant] guilty 

of the attempted murder of [Victim], you must answer the 

following question: Do you, the jury, find beyond a 

reasonable doubt that [Appellant’s] attempt to commit 

murder caused serious bodily injury to [Victim]?

Let me define for you what serious bodily injury is. Serious 

bodily injury is bodily injury that creates a substantial risk 

of death or that causes serious permanent disfigurement or 

protracted loss or impairment of the function of any bodily 

member or organ.

(N.T., 2/24/17, at 662-64). The jury completed the verdict slip as follows:

VERDICT SLIP
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AND NOW, this 24[th] day of February, 2017, we the 

jury...find [Appellant], as follows:

CRIMINAL ATTEMPT TO COMMIT MURDER OF THE 

FIRST DEGREE

On the charge of criminal attempt to commit murder of the 

first degree, we find [Appellant]:

GUILTY _____X_____

NOT GUILTY ___________

If and only if you find [Appellant] guilty of the Attempted 

Murder of [Victim] answer the following question: Do you 

the Jury find beyond a reasonable doubt that [Appellant’s] 

attempt to commit murder caused Serious Bodily Injury to 

[Victim]?

YES _____X_____

NO ___________

(Verdict Slip, February 24, 2017, at 1). 

The record demonstrates the Commonwealth gave adequate notice to 

Appellant of its intent to prove serious bodily injury in the amended criminal 

information. See Barnes, supra. Additionally, the court properly instructed 

the jury on the elements of serious bodily injury, and the jury found beyond 

a reasonable doubt that Appellant’s attempted murder caused serious bodily 

injury to Victim. See id.; Johnson, supra. Therefore, the court’s imposition 

of the 40-year maximum sentence did not violate Apprendi. Accordingly, we 

affirm the judgment of sentence.
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/10/2018
Circulated 07/23/2018 10:18 AM

11TH JUDICIAL DISTRICT OF PENNSYLVANIA 

COMMONWEAL TH OF PENNSYLVANIA 

. JERONE MOORE 

Defendant I Appellant 

OPINION 

BY: THE HONORABLE DAVID W. LUPAS 

I. FACTS AND PROCEDURAL HISTORY: 

IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

CRIMINAL DIVISION 

NO. 3215 of 2015 

On November 12, 2015, the Luzerne County District Attorney filed a ten (10) count 

Information docketed to number 3215 of 2015 charging the above named Defendant with 

Attempt Criminal Homicide, 18 Pa.C.S.A. §901, Criminal Conspiracy, 18 Pa.C.S.A. 

§903(a)(1), Aggravated Assault, 10 Pa C.S.A. §2702{a)(1); Kidnapping, 18 Pa. C.S.A. 

§2901(a)(3) and other related offenses.1 Subsequent to a jury trial commencing on 

February 21, 2017, the Defendant was _found guilty of Count One (1) Criminal Attempt to 

Commit Homicide and Count Four (4) Kidnapping.2 A Pre-Sentence Investigation was 

ordered to be completed by the Luzerne County Adult Probation and Parole Department, 

! • . 

and a sentencing date was scheduled. 

On April 6, 2017 the Commonwealth filed a Motion seeking to amend the presentence investigation report taking issue with the Defendant's prior record score and 

I The Commonwealth subsequently filed two .. Amended Infoanations on September 22, 2016 and February 10, 2017. 

2 The Commonwealth withdrew Counts two (2) and three {3) at the conclusion of the evidentiuy portion of the trial .. 

(N.T. p. 586) See also (N.T. p. 639-640) · 

1 
seeking the application of the deadly weapon sentencing enhancement citing 204 Pa. 

Code § 303.1 O(a)(2)(iii). The Commonwealth asserted that the Defendant's actual prior 

record score was five (5) and the Pre-Sentence Investigation report which represented 

the Defendant's prior record score at three (3) was erroneous. The Defendant, through 

his counsel, filed a brief in opposition to the Commonwealth's Motion on April 7, 2017. 

Defendant sought a sentence relying on the prior record of three (3); a statutory maximum· 

limit of twenty (20} years for count one (1) and no application of the deadly weapon 

sentencing enhancement. Arguments were entertained at the sentencing hearing and 

after careful· consideration of the parties' briefs, the arguments of counsel and relevant 

legal authority, we ruled on the issues finding that the deadly weapon enhancement did 

apply to count one (1); that the statutory maximum for count one (1) was forty (40) years 

of incarceration and that the Defendant's prior record score was five (5)3. (N.T. 

Sentencing p. 17-18). 

A sentencing hearing commenced on April 10, 2017, when the Defendant was 

sentenced on Count 1 to a term of imprisonment in a state correctional institution of not 

less than twenty (20) years to no more than forty (40) years. On Count 4, the Defendant 

was sentenced to a term of imprisonment of six (6) years to twenty (20) years to run 

consecutive to the sentence on Count 1. (Sentencing N.T. page 27) The Defendant was 

subsequently advised by this Court of his post-sentence rights before. the hearing 

concluded. (Sentencing N.T. pages 29-30) 

3 Counsel for the Commonwealth with appropriate candor conceded that the deadly weapon sentencing enhancement 

did not apply to count four (4) kidnapping and therefore we considered that request to have been withdrawn. (N.T. 

Sentencingp. 12) 

2 
On April 13, 2017, the Defendant, through his counsel, filed Post Sentence 

Motions. By Order dated May 9, 2017 we denied Defendant's Post-Sentence Motions. 

On May 16, 2017, the Defendant filed a Notice of Appeal. This Court ordered, on May 

18, 2017, that the Defendant file a Concise Statement of Errors Complained of on Appeal 

pursuant to Pa.RAP. 1925(b) and requested the Commonwealth to respond thereto. 

The Defendant's Rule 1925(b) Statement was submitted on June 5, 2017, and the 

Commonwealth's response, following an Order granting an extension of time within which 

to file a response, was filed on June 26, 2017. For the reasons set forth below, we believe 

the Defendant's allegations of error are without- merit and, therefore, the verdict and 

judgment of sentence should be affirmed. 

II. LAW AND DISCUSSION: 

Counsel raises eleven (11) issues on appeal as outlined in the Defendant's 

Concise Statement of Matters Complained of on Appeal. Some of the allegations of error 

are factually and legally related. Therefore, we will discuss some of the alleged errors 

under one subsection. 

A. Evidentiary Issues 

The Defendant alleges that we erred in allowing Chloe Issacs to testify to a 

statement made by Nygee Taylor, a co-defendant. Over a Defense Objection, the witness 

testified that Nygee Taylor admonished the Defendant for apparently having entered a 

retail store soon after the attempted killing with the victim's blood on his hands and his 

currency. (N.T. p. 286) Counsel for the Commonwealth proffered that the statement was 

made in furtherance of the conspiracy and we overruled Defendant's objection. 

3 
It is well settled that the admission of evidence is within the sound discretion of 

the trial court and determinations of admissibility will not be reversed on appeal absent 

a clear abuse of discretion. Commonwealth v. Chmiel, 738 A.2d 406, 414 (1999) cert. 

denied. 528 US 1131 (2000). An abuse of discretion is not merely an error of judgment. 

Commonwealth v. Allburn, 721 A.2d 363, 366 (Pa._ Super 1998) An abuse of discretion 

occurs where the record demonstrates that "the court; in reaching a conclusion, 

overrides or misapplies the law, or exercises its judgment in a manifestly unreasonable 

manner which is the result of partiality, prejudice, bias or ill will." ,lg,_ 

In the present case the statement of Nygee Taylor is plainly hearsay. Our analysis 

does not end there however because. counsel for the Commonwealth· asserted that a 

hearsay exception, particularly, the co-conspirator hearsay exception pursuant to Pa. R. 

Evid. 803(25)(e), authorized the admission of the statement. 

· Pennsylvania Rule of Evidence 802 provides that, "Hearsay is not admissible 

except as provided by these rules, by other rules prescribed by the Pennsylvania 

Supreme Court, or by statute." Pa R.E. 802. Hearsay is an out-of-court statement 

offered to prove the truth of the matter asserted in the statement. Commonwealth v. 

Laich, 566 Pa. 19, 25, 777 A.2d 1057, 1060·(2001) citing Commonwealth v. Puksar, 

559 Pa. 358, 740 A.2d 219, 225 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 

L.Ed.2d 42 (2000). 

We note that the party seeking to offer hearsay bears the burden of proof and 

must persuade the court that the hearsay statement is admissible against the party 

opponent. Harris v. Toys 11RII Us-Penn. Inc., 880 A.2d 1270, Super.2005, appeal denied 

895 A.2d 1262, 586 Pa. 770. The co-conspirator exception to the hearsay rule requires: 

4 
(1) the existence of a conspiracy between the declarant and the defendant must be 

demonstrated by a preponderance of the evidence, (2) the statements must be shown 

to have been made during the course of the conspiracy, and (3) they must have been 

made in furtherance of the common des1gn.' Commonwealth v. Johnson, 838 A.2d 663, 

576 Pa. 23, Sup.2003, reargument denied, certiorari denied 125 S.Ct. 617, 543 U.S. 

1008, 160 L. Ed.2d 471. See also Pa. R. E. 803(25)(E). 

At the time the statement at.issue was offered, we were convinced by a 

preponderance of the evidence that there was a conspiracy between the Defendant and 

the declarant, Nygee Taylor. Additionally, we found that the declarations were made 

during the conspiracy and that they were made in the course of concealing evidence 

and in furtherance of the common design of evading capture. See Commonwealth v. 

Coccioletti, 493 Pa. 103, 113, 425 A.2d 387, 392 (1981). See also Commonwealth v. 

Cull, 656A.2d 476 (Pa.1995) and Commonwealth v. Haag, 562A.2d 289 (Pa. 1989)

4• 

Accordingly, we remain persuaded that the admission of the hearsay statement was 

authorized by both the Pennsylvania Rules of Evidence and relevant case law. 5 

The Defendant next complains that we erred in denying his motion for a mistrial. 

(N.T. p. 332) 

4 We found the facts of the present controversy analogous to Commonwealth v. fuag, 562 A.2d 289 (Pa. 1989). In 

Haag, a co-defendant asked a third party to destroy cash registe:r receipts for items used in the commission of the crime. 

It was then held that this statement was a continuation of the original conspiracy and the attempt to conceal the 

evidence was in furtherance of the conspiracy. Id. We likewise found that Nygee Taylot's statement which in essence 

directed the Defendant to conceal evidence of the crime, in this case bloody hands, was also made during the conspitacy 

and with the goal of avoiding detection thus furthering the conspitacy. 

5 We note that the hearsay statement likewise did not offend the Confrontation Clause of the United States Constitution 

because the statement was non-testimonial. See. Crawford v. Washington, 541 U.S. 36 (2004); See also Commonwealth 

v. Holton, 906 A.2d 1246 (Pa. Super. 2006) 

5 
This issue is waived. The Defendant's counsel did not object at the time the 

complained of inquiry was made in response to his cross examination questioning. (N.T. 

p. 323-324) Instead, defense counsel continued to cross examine the witness and only 

at the conclusion of the witness's testimony did counsel raise the objection. (N.T. p. 

326) In order to preserve an issue for appeal a timely and specific objection must be 

made. Commonwealth v. Tuc.ker, 143 A.3d 955, (Pa. Super. 2016) See also: 

Commonwealth v. Boring, 453 Pa Super. 600, 684 A.2d 561 (Pa. 1990) (Holding that a 

motion for a mistrial made subsequent to a sustained objection was untimely when 

deferred until the conclusion of the witness testimony a considerable length of time after 

the prejudicial remark occurred) In the present case, lik� Tucker, counsel failed to make 

his objection until after the completion of both direct and cross examination. 

Accordingly, his objection is untimely and this issue is waived. 

Defendant next alleges we erred in precluding reference to Nygee Taylor's guilty 

plea. (N.T. p. 333-336) We disagree. During the course of the trial in this matter, the 

Commonwealth made an oral motion in limine to preclude the admission of any 

evidence relative to the co-defendant Nygee Taylor's guilty plea. Following argument 

outside the presence of the jury, we granted Commonwealth's Motion in l.lrnine to 

exclude evidence of Nygee Taylor's guilty'plea finding the proffered evidence was 

' 

irrelevant. (N.T. p. Id.) 

It has been held by our Pennsylvania Supreme Court that 11it is well settled that 

the admission of evidence is within the sound discretion of the Trial Court." 

Commonwealth v. Collins, 888 A.2d 564, 577 (Pa. 2005). Additionally, determinations 

of admissibility will not be reversed on appeal absent a clear abuse of discretion. 

6 
Commonwealth v. Chmiel, 738 A.2d 406, 414 (1999) cert. denied. q28 US 1131 (2000). 

A trial court's ruling on.a motion in Iimine is "final, conclusive and binding at trial," unless 

the Commonwealth files an interlocutory appeal. Commonwealth v. Padilla, 923 A.2d 

1189, (Pa. Super. 2007).The standard of review for a trial court's ruling on motions in 

limine is abuse of discretion. Commonwealth v. Rosen, 42 A.3d 988 (Pa. 2012) An 

abuse of discretion. is not shown merely by an error in judgment. Rather, the Defendant 

must establish, by appropriate reference to the record, that the sentencing judge 

ignored or. misapplied the law, exercised his judgment for reasons of partiality, 

prejudice, bias, or ill-will, or arrived at a manifestly unreasonable decision. · 

Commonwealth v. Zurburg, 937 A.2d 1131 (Pa. Super. 2007). 

Rule 401 of the Pennsylvania Rules of Evidence states, "Relevant evidence means 

. . 

evidence having any tendency to make the existence of any fact that is of consequence 

to the determination of the action more probable or less probable than it would be without 

the evidence." Pa.RE. 401. Also, Rule 403 states, "Although relevant, evidence may be 

excluded if its probative value is outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence." Pa.RE. 403. 

We further note that aithough a defendant does indeed have a fundamental right 

to present defensive evidence, that right is not absolute. Such evidence is admissible 

provided that it is relevant and not excluded by an established evidentiary rule." 

Commonwealth v. Seibert, 2002 PA Super 15, 799 A.2d 54, 67 (Pa. Super. 2002) 

(internal quotation marks and citation omitted). See also Chambers v. Mississippi, 41 O 

U.S. 284, 93 S. Ct. .1038, ·35 L. Ed. 2d 297 (1973). Our Pennsylvania Supreme Court 

7 
has observed that an accused exercising his or her right to present evidence "must 

comply with established rules of procedure and evidence .... " Commonwealth v. 

Bracero, 515 Pa. 355, 363, 528 A.2d 936, 939 (1987) (quoting Chambers, 41.0 U.S. at 

In the present case, the Defendant was barred from presenting the jury with 

evidence of the co-defendant's guilty plea and sentence because that evidence was 

simply not relevant to any of the issu�s before the jury. Evidence is not relevant "unless 

the inference sought to be. raised by it bears upon a matter in issue and renders the 

desired inference. more probable than it would be without the evidence." Commonwealth 

v. Vallejo, 532 Pa. 558, 616 A.2d 974, 976 (Pa. 1992). The evidence proffered here, a 

. ' 

co-defendant's guilty plea, was represented by defendant's counsel to be relevant to 

establish that Defendant was not guilty because the co-defendant had admitted guilt.. 

(N.T. p. 334) One co-defendant's guilt does not create the inference of another's 

innocence in a case like the instant one where it was alleged that the Defendant and his 

co-defendant conspired to kill and did attempt to kill another human beinq. Nygee Taylor's 

guilty plea had no bearing on the issues being tried against Defendant. The proposed 

testimony/evidence was irrelevant. However, even if the evidence was deemed relevant, 

its probative value was clearly outweighed by the danger of unfair prejudice to the 

Commonwealth and confusion of the issues for the jury. Accordingly, Defendant's 

allegation of error is without merit. 

Defendant next alleges that we erred admitting a text message represented to be 

evidence of consciousness of guilt: We disagree. 

8 
We incorporate by reference our prior recitation of the relevant case law and 

statutory authority regarding the admission of relevant evidence. We further note that 

we did not instruct the jury on consciousness of guilt. The statement at issue was 

retrieved from what was representetj to be the Defendant's cellular telephone. (N.T. p. 

484-489) The item represented to be the Defendant's phone was admitted into evidence 

without objection .. (N.T. p 484) Defense counsel's subsequently made two objections 

regarding the statement, "A lot of shit went down bae nits bad I need to leave." (N.T. p. 

484-487) Defendant's first objection was as follows: 

Mr. Lampman: "Judge, 'I'm going to object to that based upon the fact that neither 

I nor the commonwealth know who this message is being sent to and what the context 

of the conversation is. I understand the Commonwe.alth is �ying that it was sent from 

my client's phone to someone; but again, I think context here matters." (N.T. p. 484) 

Ms. Sperazza: Your honor, the bestway that Trooper Urban can contextualize it 

is to say that it was sent on this time on this day. If he wants to argue the context of the 

admission, he can do that; but that doesn't.keep it from coming in. 

Mr. Lampman: Judge, I just - I'm not sure it's admissible. I don't know how--- 

Ms. Sperrazza: It was on his phone that was legally obtained in the search. 

Mr. Lampman: I'm not saying-I agree that he consented to having his phone 

searched, but I don't think it's an admission. 

Ms. Phillips: It is. 

Ms. Sperrazza: A lot of shit went down bae n its bad I need to leave. It 

consciousness of guilt. 

Mr. Lampman: No, I don't think it is. An9 he could be talking about something 

else. (N.T. p. 484-485) 

Subsequently the court allowed the Commonwealth to proceed to admit the 

proffered evidence. (N.T. p. 485) We note that the offense date for the Defendant's 

charges as alleged in the Criminal Information was October 5, 2014. The text message 

9 
at issue which the parties concede was sent from a telephone belonging to the 

. Defendant was sent on October 5th 2014. (N.T. p. 489); We allowed the evidence 

because we found the evidence to be relevant. Defense counsel's objection was that 

the context of the message was not better developed. We overruled his objection 

because demonstrating the context of an admission is not a prerequisite to admissibility. 

_ The proponent offering the evidence need only persuade the court that the evidence is 

relevant. Flight soon after a crime is relevant and may indicate consciousness of guilt. 

Commonwealth v. Bruce, 717 A.2d 1033, .1037-38 (Pa. Super 1998). We determined 

that the evidence was relevant and allowed the evidence to be presented. If there was 

an alternative context which could have explained away the inference the 

Commonwealth sought to create counsel was free to pursue that. 

Defense counsel's second objection to this line of questioning took issue with the 

witness' testimony that the Defendant was the source of the message. (N.T. p. 487) 

Defendant's allegation of error in his concise statement does address this objection so 

we decline to analyze the issue or write in support of our ruling. 

Defendant next alleges we erred "in limiting Mr. Moore's confrontation rights 

concerning Trooper Urban's investigation reports." We disagree. 

Defendant's counsel sought to introduce the statements of third parties through 

his questioning of a trooper with the Pennsylvania State Police who authored several 

reports in the course of his lnvestiqatlon, Following the �rguments of counsel at sidebar, 

we concluded that the purported evidence was hearsay without exception and 

consequently we deemed the evidence inadmissible. (N.T. p, 542) Pennsylvania Rule of 

Evidence 802 provides that, "Hearsay is not admissible except as provided by these· 

IO 
rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute." Pa 

RE. 802. Hearsay is an out-of-court statement offered to prove the truth of the matter 

asserted in the statement. Commonwealth v. Laich, 566 Pa. 19, 25, 777 A.2d 1057, 

1060 (2001) citing Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999), 

cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 42 (2.000). 

Testimonial statements of third parties made to law enforcement officers are 

hearsay and the officer memorializing the statement into a written report is not itself a 

hearsay exception. Commonwealth v. May, 898 A.2d 559 (Pa. 2006). The Defendant, 

who as the proponent offering the hearsay evidence bears 1he burden of proof, offered 

no exception to the prohibition against hearsay in response to the Commonwealth's 

objection. See Harris v. Toys "R" Us-Penn, los. 880 A.2d 1270, Super.2005, appeal 

denied 895 A.2d 1262, 586 Pa. 770. We further find no indication that the Defendant's 

confrontation rights were implicated or offended by our ruling. Counsel was free to call 

the witnesses whose testimony he sought to introduce. This issue is without merit and 

Defendant's appeal fails. 

Defendant next alleges the court abused its discretion by overruling 

Defendant's objection to his witness, the co-defendant Nygee Taylor invoking his Fifth 

Amendment privilege outside the presence of the jury. This allegation of error is 

meritless. An abuse of discretion is not shown merely by an error in judgment. Rather, 

the Defendant must establish, by appropriate reference to the record, that the 

sentencing judge ignored or misapplied the law, exercised his judgment for reasons of 

partiality, prejudice, bias, or ill-will, or arrived at a manifestly unreasonable decision. 

Commonwealth v. Zurburg, 937 A.2d 1131 (Pa. Super. 2007). 

11. 
There is no mandatory procedure for invoking privilege though our Honorable 

Superior Court has indicated it is acceptable to conduct an in camera review outside the 

presence of the jury. Commonwealth v. Treat, 848 A.2d 147 (Pa. Super. 2004) See also 

Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1997). We brought the witness 

before the court outside the presence of the jury and following a hearing we determined 

that the witness both invoked Fifth Amendment privilege and that he was entitled to 

invoke that privilege.

6 (N.T. p. 579-582) See also Mitchell v. United States, 526 U.S. 314 

(1999). Because the jury may not intuit any inference from the purported witness's 

testimony, no legitimate purpose would be served by his invoking privilege in their 

presence. Thus, the hearing was conducted outside the presence of the jury because 

the testimony and argument on the issue was not relevant. to any issue before the jury. 

B. Sentencing Issues 

Defendant's concise statement raises a series of sentencing issues which we will 

analyze collectively. In sum the Defendant alleges that we erred by applying an 

erroneous prior record score; 'erred in applying the deadly weapon sentencing 

enhancement; sentenced the Defendant in excess of the statutory maximum sentence; 

erred by placing the issue of serious bodily injury on the verdict slip; and abused our 

discretion in sentencing the Defendant. We find each of these allegations to be 

meritless. 

6 Defendant's counsel conceded that his purported witness, Mr. Nygee Taylor could invoke Fifth Amendment privilege. 

(N'.T. p. 559-560) We presided over the guilty plea for the witness Nygee Taylor and after the conduct of a hearing and a 

careful review of the entire record in this matter we independently determined that Mr. Taylor was entitled to invoke 

privilege. 

12 
Noting that we are constrained to use the deadly weapon sentencing enhancement 

where the facts warrant its application, we found that the deadly weapon enhancement 

did apply to count one (1} because it was abundantly clear that a knife was used to inflict 

the injury ·upon the victim in the case. See Commonwealth v. Septak, 518 A.2d .1284 

(1986) (N.T. p. 199-201} 

The Defendant's· complaint relative to his prior record score also fails. The 

sentencing court must consider the sentencing_guidelines. 42 Pa. C.S.A. §9721(b); 204 

Pa. Code 303_. 1 (a). Judge Donahue writing for the court in Commonwealth v. Spenny 

succinctly presented the sentencing guideline calculation as follows: "To determine the 

· guidelines for each conviction, the trial court must establish the offense gravity score and, 

of relevance to this appeal, the defendant's prior record score. 204 Pa Code§ 303.2(a) 

The prior record score is based on the number and type of prior convictions the defendant 

has on his or her criminal record. 204 Pa. Code§ 303.4(a). Each prior conviction is given 

a point value ranging between one and four points. See generally 204 Pa. Code §§ 303. 7, 

303.15. Sections 303. 7 and 303.15 set forth a point value for every Pennsylvania criminal 

offense." Commonwealth v. Spenny, 128 A.2d 234, (Pa. Super 2015). 

The pre-sentence investigation report, hereinafter, PSI, represented that the 

Defendant's prior record score was three (3). The Commonwealth's Motion to amend the 

PSI which argued that Defendant's prior record .score was five (5) included exhibits 

marked "a", "b" and "c" which respectively identified the Defendant's relevant criminal 

history evidencing a conviction for "manslaughter in the 1st: with intent to cause serious 

physical injury," New York State's statute defining manslaughter in the first degree and 

13 
New York State's statute governing periods of incarceration for various grades of felonies. 

(Commonwealth's brief April 6, 2017). 

In Commonwealth v. Bolden, the Honorable Superior Court ·set forth the method 

tor calculating prior record score points for convictions outside Pennsylvania . 

.. Commonwealth v. Bolden, 532 A.2d 1172, (Pa Super 1987). Bolden requires a careful 

and independent analysis of the elements of the out of state conviction. Id. The next part 

of the analysis is to then compare the elements of the foreign conviction to an equivalent 

Pennsylvania offense. Id. Section 303.S(f) of the Pennsylvania Code codifies the rule set 

forth in Bolden. 204 Pa. Code 303.S(f). Exhibit "b" attached to the Commonwealth's 

motion to amend the PSI included a copy of New York State's statute for first degree 

manslaughter which read as follows: A person is guilty of manslaughter in the first degree 

when: (1) With intent to cause serious physical injury, he causes the death of such person 

or of a third person. Exhibit "b" Commonwealth's motion to amend PSI. 

Defendant's counsel argued that the New York conviction was equivalent to 

lnvoluntary manslaughter. (N.T. Sentencing p. 8) we· considered the parties' brJefs and 

arguments and we concluded that the Defendant's New York conviction was equivalent 

to Pennsylvania's third degree. murder statute. Pursuant to 204 Pa. Code § 303.15, third 

degree murder, 18 Pa. C.S.A §2502(c), warrants that four (4) prior record score points be 

assessed to the Defendant. Accordingly, Defendant's appeal fails. 

Defendant also alleges that the evidence was insufficient and that the verdict is 

against the weight of the evidence. Insofar as Defendant's concise statement references 

the arguments made in his Post Sentence motion which was filed on April 13, 2017, we 

are able to identify with sufficient specificity the issue he intends to raise, particularly, that 

14 
" '·, 

the jury's determination that the victim suffered serious bodily injury was based upon 

insufficient evidence. Having presided over the trial in this matter, we conclude that the · 

evidence presented was more than sufficient to enable the jury to determine that the 

victim sustainea a serious_ boa11y mJury. 

When reviewing a sufficiency of the evidence claim, a court examines all 

evidence and reasonable inferences there from in a light most favorable to the verdict 

winner, and then determines where the evidence is sufficient to enable a fact finder to 

determine that all elements of the offenses were established beyond a reasonable· 

doubt. Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 499 (Pa. 1Q97). 

Only where the evidence offered to support the verdict is in contradiction to the 

physical facts, in contravention to human experience and the law of nature, is it deemed 

insufficient as amatter of law. Commonwealth v. Robinson, 817 A.2d. 1153, 1158 

(Pa.Super. 2003 quoting Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 

(1975)). The evidence must be viewed in the light most favorable to the Commonwealth 

as verdict winner, accept as true all the evidence and all reasonable inferences upon 

which, if believed, the jury could properly have based its verdict, and determine whether 

such evidence and inferences are sufficient in law to prove guilt beyond a reasonable 

doubt. Commonwealth v. Scatena, 508 Pa. 512, 498 A.2d 1314, 1317 (1985). After a 

careful review of the record, and having intently presided over the presentation of the 

evidence, we find no reason to doubt the jury's verdict. 

Complaints that a verdict is against the weight of the evidence concede that there 

is sufficient evidence to sustain the verdict. Commonwealth v. Widmer, 744 A.2d 745 

· (Pa. 2000) citing Commonwealth v. Whiteman, 485 A.2d 459 (1984). The weight of the 

15 
evidence is a question for the finder of fact. Commonwealth .v. Jackson, 485 A.2d 1102, 

1104 (1984). An appellate court "can only reverse the lower courts verdict if it is so 

contrary tothe evidence as to shock one's sense of justice." Commonwealth v. Whitney, 

512 A.2d 1152 {Pa. 1986). Defendant's post sentence motion filed. on April. 13, 2017 

properly submitted the issue to our discretion. Pa. R. Crim. 607 See also 

Commonwealth v. Widmer, 698 A.2d 211 (Pa. 1997). We denied Defendant's motion 

because the verdict did not shock our sense of justice. After a careful review of the 

entire record in this matter, our opinion has not changed. Accordingly, Defendant's 

motion fails. 

We also therefore found that the appropriate statutory maximum penalty for count 

one (1) was forty (40) years pursuant to 18 Pa. C.S. §1102(c) and 18 Pa. C.S. §2301 

which defines serious bodily injury. We instructed the jury as to what constitutes serious 

- 

bodily injury. (N.T. p. 664) The verdict slip in this case specifically asked the jury if they 

found beyond a reasonable doubt that the victim sustained a .serious bodily injury and 

they unanimously responded in the affirmative. The victim in this case testified that the 

Defendant cut her hand and her throatjN.T, 199�201) Consequently, we did not hesitate 

to sentence the Defendant to a maximum of forty (40) years of incarceration on count one 

(1) pursuant to 18 Pa. C.S. §1102(c}. 

Nor is the Defendant's sentence illegal pursuant to Alleyne v. United States, 133. 

S. Ct. 2151 (2013) or Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) 

. Neither of those cases stand for the proposition that 18 Pa. C.S. §1102(c) is rendered 

moot. The Legislature promulgated 18 Pa. C.S. §1102(c} and in the absence of authority 

suggesting otherwise we endeavor to give it effect. To that end, we placed the issue on 

16 
the verdict slip asking the jury if they found that the victim sustained a serious bodily injury 

beyond a reasonable doubt. 

Alleyne v. United States requires that any fact that increases the mandatory 

minimum is an element of the crime that must be submitted to the jury. Alleyne v. United 

States, 133 S. Ct. 2151 (2013). The Superior Court's Opinion in Valentine, reacting to the 

holding in Alleyne addresses 42 Pa C.S. §9712 and 42 Pa. C.S.A § 9713. These statutes 

are plainly distinguishable from 18 Pa. C.S. § 1102. Both of the statutes addressed in 

Valentine include a "proof at sentencing" requirement which directs how a court should 

proceed prior to imposing a mandatory minimum sentence. See 42 Pa. C.S. 9712(b) and 

42 Pa. C.S. 9713(c). The section pursuant to which the Defendant was sentenced, 18 Pa. 

C.S. §1102, does not require proof at sentencing like the statutes in the cases cited by 

Defendant. Consequently, the procedure we used to determine whether the victim 

sustained a serious bodily injury does not offend the Constitution or the holding in Alleyne. 

See Commonwealth v. Johnson, 910 A.2d 60 (Pa Super. 2006) Accordingl�. Defendant's 

appeal fails. 

Defendant also alleges that the court abused its discretion in sentencing him to 

twenty-six (26) to sixty (60) years of incarceration. Initially, we note that the sentences 

imposed were within the standard range of sentencing guidelines governing the abovereferenced crimes, and said sentences were an . appropriate exercise of the Court's 

discretion. Furthermore, the serious nature of the offenses and the impact of the crime 

on the victim were considered prior to imposition of sentence. The Defendant's actions 

as presented at trial are intolerable in a civilized society and a lengthy sentence is 

warranted.' 

17 
The Defendant's challenge to this Court's discretion in fashioning the sentences 

imposed on April 10, 20·17 does not present a substantial question permitting appellate 

review .of the discretionary aspects ofsentencing. Commonwealth v. McWilliams, 887 

A.2ct7M:f87 (Pa.Super. 2 

The law in this Commonwealth is clear. There is no absolute right to appeal the 

discretionary aspects of a sentence. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 

617 (2002). Rather, allowance of appeal will be permitted only. when the appellate court 

determines that there is a substantial question that the sentence is not appropriate under 

the Sentencing Code. · · The determination of what constitutes a substantial question is 

made on a case by case basis. Commonwealth v. McNabb, 819 A.2d 54 (Pa. Super. 

2003). A substantial question exists where an appellant sets forth a plausible argument 

that the sentence violates a particular provlslon of the Sentencing Code or is contrary to 

the fundamental norms underlying the sentencing process. Commonwealth v. Boyer, 856 

A.2d 149 (Pa. Super. 2004). Here, no such argument was posited by the Defendant. The 

Defendant's mere dissatisfaction with his sentence entitles him to no relief. 

For each of the reasons outlined above, the Defendant's allegations of error are 

without merit. Accordingly, the verdict and judgment of sentence should be affirmed. 

END OF OPINION 

18