J-S20021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

REYNALDO FIGUEROA-ARDON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 122 EDA 2023

Appeal from the Judgment of Sentence Entered November 9, 2022,

in the Court of Common Pleas of Montgomery County,

Criminal Division at No(s): CP-46-CR-0001840-2021.

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 14, 2023

Reynaldo Figueroa-Ardon appeals from the judgment of sentence 

imposed after the trial court found him guilty of multiple offenses. Upon 

review, we affirm.

The trial court summarized the facts as follows:

On Wednesday, March 10, 2021, at approximately 8:00 a.m., 

Whitemarsh Police Officer (now Corporal), Matthew Stadulis, 

received a call from his in-house dispatcher. Officer Stadulis was 

informed that there was a suspicious male checking car doors on 

Mulberry Lane in Whitemarsh Township, Montgomery County. 

Officer Stadulis arrived on scene and observed [Ardon], wearing 

a green sweatshirt with orange hoodie, exiting the neighborhood 

of Mulberry Lane and Ridge Pike. Officer Stadulis parked and 

exited his patrol vehicle. Officer Stadulis approached [Ardon] and 

asked for his identification, which [Ardon] was unable to provide. 

[Ardon] was uncooperative with Officer Stadulis and appeared as 

if he was going to run away, so Officer Stadulis grabbed the 

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* Retired Senior Judge assigned to the Superior Court.
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[Ardon's] right arm with his right hand. In response, [Ardon]

pulled a handgun out of his waistband and placed it inches away 

from Officer Stadulis' face. [Ardon] then pulled the trigger. The

hammer came back, but the gun did not fire. [Ardon] repeated 

this act about three (3) more times while pointing the weapon at 

Officer Stadulis' face. Officer Stadulis then attempted to wrest the 

handgun from [Ardon’s] hand, causing them to fall into traffic and 

roll around on the eastbound lane of Ridge Pike, a four lane arterial 

road. Officer Stadulis repeatedly banged [Ardon’s] hand along the 

pavement until he was finally able to dislodge the firearm. Officer 

Stadulis then continued to try and get control of [Ardon], but [he]

continued to resist arrest. [Ardon] also attempted to repeatedly 

grab Officer Stadulis' gun from his gun belt. Finally, Officer 

Stadulis was able to flip [Ardon] face down onto the street and 

apply sufficient pressure that the [Ardon] stopped fighting.

Officer Stadulis maintained pressure on [Ardon] until Detective 

Sergeant James Cotter, Detective Stephen Kerns, and Detective 

Richard Zadroga arrived and were able to place [Ardon] in 

handcuffs. 

[Ardon] was then transported to the Whitemarsh Police Station 

from the scene. Detectives, Stephen Kerns and Richard Zadroga, 

provided [Ardon] with his Miranda rights prior to asking him any 

questions regarding the incident. [Ardon] acknowledged his

Miranda rights and waived them. During the interview, Detective 

Kerns asked [Ardon] a series of questions. Specifically, Detective 

Kerns asked [Ardon] what he did with the gun after he pulled it 

out, to which [Ardon] replied that "[I] tried to shoot him." 

Detective Kerns then asked Appellant where he tried to shoot him 

or where did he point the gun, to which [Ardon] replied "I pointed 

it at his head." Detective Kerns then asked [Ardon] did he pull 

the trigger and did he know if he pulled the trigger more than 

once, to which t[he] replied that he pulled the trigger "like three 

or four times." Detective Kerns then asked [Ardon] what 

happened after the gun did not go off to which [Ardon] replied 

that they were "fighting". 

Detective Anthony Caso works for the Montgomery County 

Detective Bureau and on March 10, 2021, was informed by his 

Lieutenant of the arrest made in Whitemarsh Township. Detective 

Caso met with Detective Sergeant Cotter when he arrived at the 

station, who provided him with an overview of what happened. 

Detective Caso then reviewed the statements of Officer Stadulis

and [Ardon]. Detective Caso also spoke to Detective Kerns in 
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order to be fully up to speed on all of the available information. 

Detective Caso also met with [Ardon] to see if he would be willing 

to do a demonstration of what occurred. Detective Caso and 

Detective Kerns walked [Ardon] into the interview room and

showed [Ardon] the Whitemarsh Police Department's Miranda 

Warnings, which was the exact copy that Detective Kerns and 

Detective Zadroga had previously provided him.

Detective Caso and Detective Kerns then advised [Ardon] that the 

interview was being recorded with both sound and video. 

Detective Caso used a "toy gun" and had [Ardon] demonstrate 

how he tried to shoot Officer Stadulis, by pointing the gun "right 

up to his face" and pulling the trigger "like three or four times." 

Trial Court Opinion, 2/1/23, at 2-4 (citations omitted).

On March 10, 2021, after waiving his Miranda 1rights, Ardon provided 

a second videotaped confession to Detective Anthony Caso. See id. at 4.

Following a bench trial on August 11, 2022, the court found Ardon guilty

of attempted homicide, aggravated assault, and related charges.2

On November 9, 2022, the trial court sentenced Ardon to an aggregate 

term of incarceration of 27 to 54 years. In particular, the court sentenced 

Ardon to 10 to 20 years’ incarceration on the aggravated assault conviction. 

Ardon filed a post-sentence motion, which the trial court denied. 

Ardon filed this timely appeal. Ardon and the trial court complied with 

Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Ardon raises the following two issues:

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1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 18 Pa.C.S.A. § 2501, 901, and 2702(a)(2). 
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I. Was the imposition of a 10 to 20 year sentence for [a]ggravated

[a] an illegal sentence in that the facts cited by the court

supporting the charge, i.e. [Ardon’s] striking of the officer while 

in the middle of Ridge Pike and attempting to escape, amounted 

to no more than a violation of 18 Pa.C.S. §2702(a)(3) (attempt to 

cause bodily injury to a police officer) for which the statutory 

maximum was a 5 to 10 year sentence?

II. Is [Ardon’s] sentence illegal in that the lower court violated

[his] 5th amendment right to remain silent by basing its sentence, 

in part, on [his] post-arrest silence as it stated, “He had never 

once came to the court and said: I did this. I was wrong. I hurt 

this hero and his family. I'm sorry. Those words are nowhere. And 

that shows to me something that's important. This lack of 

consciousness. Indeed, a lack of conscience. And that's scary on 

so many levels” and “He is a poor candidate for rehabilitation. The 

first step in rehabilitation is acceptance of responsibility.” 

Ardon’s Brief at 4 (citations to transcript omitted).

In his first issue, Ardon claims that the trial court imposed an illegal 

sentence because “the facts . . . were insufficient to establish the crime of 

[a]ggravated [a]ssault (F1) under 18 Pa.C.S. § 2702(a)(2). Rather, such facts

were only sufficient to establish the element of [a]ggravated [a]ssault (F2)”

under 18 Pa.C.S. § 2702(a)(3) – an offense which carried a statutory 

maximum of 5 to 10 years[’] imprisonment.” Ardon’s Brief at 11. Specifically, 

Ardon argues that the “mere striking of an officer while attempting to escape 

or evade arrest is insufficient to establish the requisite intent to cause serious 

bodily injury. . .” and only shows intent to cause bodily injury. Therefore, 

according to Ardon, he should be resentenced to only 5 to 10 years

incarceration. Ardon’s Brief at 16-17. 
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As the Commonwealth observes, Ardon’s first issue challenges the 

sufficiency of the evidence regarding his aggravated assault conviction rather 

than the legality of his sentence.

3 4 We agree and will review it as such.

Our scope and standard of review when considering challenges to the 

sufficiency of the evidence are as follows:

Because a determination of evidentiary sufficiency presents a 

question of law, our standard of review is de novo and our scope 

of review is plenary. In reviewing the sufficiency of the evidence, 

we must determine whether the evidence admitted at trial and all 

reasonable inferences drawn therefrom, viewed in the light most 

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3 The trial court interpreted this issue as a challenge to the weight of the 

evidence because Ardon raised a weight claim in his post-sentence motion. 

However, the court claimed that it was waived because Ardon’s Rule 1925(b) 

did not articulate it as such and did not adequately identify his issue to enable 

the court to address it. Notwithstanding this, the court addressed it as a 

weight claim in its Rule 1925(a) opinion. 

4 The Commonwealth contends that Ardon did not identify in his Rule 1925(b) 

statement which element(s) the Commonwealth failed to establish and 

consequently, he waived this claim. Commonwealth’s Brief at 8. We disagree. 

We acknowledge that:

If [an] appellant wants to preserve a claim that the evidence was 

insufficient, then the 1925(b) statement needs to specify the 

element or elements upon which the evidence was insufficient. 

This Court can then analyze the element or elements on appeal. 

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008). Here, 

however, Ardon claims that the evidence only supported a finding that he was 

guilty of attempting to cause bodily injury. The primary difference between 

the two statutes is bodily injury as opposed to serious bodily injury. 

Consequently, we conclude that this claim sufficiently identifies the element 

he believes was not satisfied. Thus, we decline to find waiver.

 
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favorable to the Commonwealth as verdict winner, were sufficient 

to prove every element of the offense beyond a reasonable 

doubt. [T]he facts and circumstances established by the 

Commonwealth need not preclude every possibility of innocence. 

It is within the province of the fact-finder to determine the weight 

to be accorded to each witness's testimony and to believe all, part, 

or none of the evidence. The Commonwealth may sustain its 

burden of proving every element of the crime by means of wholly 

circumstantial evidence. Moreover, as an appellate court, we may 

not re-weigh the evidence and substitute our judgment for that of 

the fact-finder.

Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa. Super. 2017) 

(citations and quotation marks omitted).

Under 18 Pa. C.S.A. § 2702(a)(2), a person is guilty of aggravated

assault if he “attempts to cause or intentionally, knowingly or recklessly

causes serious bodily injury to any of the officers, agents, employees or 

other persons enumerated in subsection (c) or to an employee of an agency,

company or other entity engaged in public transportation, while in the

performance of duty.” 18 Pa. C.S.A. § 2702(a)(2) (emphasis added). Serious 

bodily injury is “[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. To sustain a conviction for aggravated assault, the Commonwealth 

need not show that serious bodily injury actually occurred, but only that the 

defendant attempted to cause serious bodily injury to another person. 

Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001). An 

“attempt” exists when “the accused intentionally acts in a manner which 

constitutes a substantial or significant step toward perpetuating serious bodily 
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injury upon another.” Id. (citation and quotation omitted).

Under 18 Pa.C.S.A. 2702(a)(3), a person is guilty of aggravated assault if he 

“attempts to cause or intentionally or knowingly causes bodily injury to any 

of the officers, agents, employees or other persons enumerated in subsection 

(c), in the performance of duty.” 18 Pa.C.S.A. § 2702(a)(3) (emphasis 

added). 

Here, the evidence showed that, during his struggle with Officer 

Stadulis, Ardon repeatedly attempted to grab the officer’s handgun. This 

occurred after Ardon had already tried to shoot Officer Stadulis in the head. 

This is sufficient to establish that Ardon intended to cause serious bodily 

injury. See Commonwealth v. Stevenson, 894 A.2d 759, 774 (Pa. Super. 

2006), overruled on other grounds by Commonwealth v. Hicks, 208 A.3d 

916 (Pa. 2019) (stating that by attempting to take hold of the officer’s 

handgun during the arrest struggle, the defendant took a significant and 

substantial step towards inflicting serious bodily injuries upon the officers). 

Ardon also engaged in a fight with Officer Stadulis in the middle of a 

road with heavy vehicular traffic while trying to wrestle his gun from him.

From this, the trial court could reasonably infer that Ardon engaged in such 

conduct so as to attempt to cause or intentionally cause serious bodily injury 

to Officer Stadulis. Ardon’s conduct constituted much more than the mere 

striking of an officer while attempting to escape or evade arrest.

Thus, viewing the evidence in the light most favorable to the 

Commonwealth, we conclude that there was sufficient evidence to sustain 
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Ardon’s conviction for aggravated assault under Section 2702(a)(2), serious 

bodily injury. 

In his second issue, Ardon claims that the trial court imposed an illegal 

sentence because the court violated Ardon’s Fifth Amendment right to remain 

silent before sentencing. Specifically, he claims that the court improperly 

considered his failure to accept responsibility for his conduct, i.e., an 

impermissible factor to rely on when sentencing a defendant. Ardon therefore 

maintains that his sentence should be vacated, and this matter remanded for 

resentencing. Ardon’s Brief at 13, 17. 

Ardon again misconstrues his issue as one involving the legality of his 

sentence. Although Ardon argues that his sentence is inappropriate based on 

constitutional grounds, the factors considered by a court to fashion a sentence 

pertain to the discretionary aspects of sentence. 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to appellate review as of right. Commonwealth v. Sierra, 752 

A.2d 910, 912 (Pa. Super. 2000). This Court has explained that, to reach the 

merits of a discretionary sentencing issue, we must conduct a four-part 

analysis to determine: 

(1) whether the appeal is timely; (2) whether [a]ppellant 

preserved his issue; (3) whether [a]pellant's brief includes a 

concise statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of sentence [in 

accordance with 2119(f)]; and (4) whether the concise statement 

raises a substantial question that the sentence is appropriate 

under the sentencing code. . . . [I]f the appeal satisfies each of 

these four requirements, we will then proceed to decide the 

substantive merits of the case.
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Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014) 

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)). 

Here, Ardon timely filed his appeal. However, Ardon did not preserve 

his issue as required under Colon. Although Ardon filed a post-sentence 

motion challenging the discretionary aspects of his sentence, he did not claim 

that the trial court relied on an impermissible factor when it sentenced him. 

Instead, Ardon claimed that the sentence was excessive and did not fully 

account for his mitigating factors, which he does not raise on appeal. “To 

preserve an attack on the discretionary aspects of sentence, an appellant must 

raise his issues at sentencing or in a post-sentence motion. Issues not 

presented to the sentencing court are waived and cannot be raised for the first 

time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. 

Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a) (stating that 

“[i]ssues not raised in the trial court are waived and cannot be raised for the 

first time on appeal”). Consequently, Ardon waived his sentencing claim, and 

we will not consider it.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/14/2023