J-S01009-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MISAEL JOSUE MARTINEZ-RIVERA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1193 MDA 2020

Appeal from the Judgment of Sentence Entered January 29, 2020

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0001593-2019

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED: APRIL 16, 2021

Misael Josue Martinez-Rivera appeals from the judgment of sentence,

entered in the Court of Common Pleas of Berks County, following a nonjury

trial in which he was convicted of three counts of simple assault;

1

two counts 

each of recklessly endangering another person (REAP),2terroristic threats,3

and harassment;

4 and one count each of possession of an instrument of crime 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 2701(a)(1); § 2701(a)(3).

2 18 Pa.C.S.A. § 2705.

3 18 Pa.C.S.A. § 2706(a)(1).

4 18 Pa.C.S.A. § 2709(a)(1).
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(PIC)5 and persons prohibited from possessing a firearm.6 After careful 

review, we affirm.

On September 26, 2019, Martinez-Rivera was in the home of Luz 

Sanchez Aponte in Reading, Pennsylvania, assisting with housecleaning and 

other general chores. Aponte was pregnant with Martinez-Rivera’s child, but

the two were not in a committed relationship7 and did not live together. On

that date, Aponte was watching television with four of her minor children via 

connection to a Microsoft Xbox. Although the Xbox was normally kept in her 

son J.R.’s room, because, when left there, it was apparently left turned on at 

all times, Aponte had moved it to the family room after receiving an excessive

electric bill from the utility company.

At approximately 4:30 p.m., Juan Rodriguez, Aponte’s adult son, 

returned to Aponte’s home from the grocery store and proceeded up the stairs 

to the second floor where his bedroom was located. Rodriguez heard his 17-

year-old brother, J.R., leave his own room on the same floor and proceed 

down the stairs to the first floor where Aponte and her four other children 

were watching television. J.R. announced that he was going to bring the Xbox 

upstairs to his own room, which was met with resistance from his siblings. 

____________________________________________

5 18 Pa.C.S.A. § 907(b).

6 18 Pa.C.S.A. § 6105(a)(1).

7 Aponte testified at trial that she and Martinez-Rivera began a romantic 

relationship, which included living together, in November of 2019, a few weeks 

after the incident. N.T. Nonjury Trial, 1/14/20, at 97. 
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Aponte verbally reprimanded J.R. and, in response, J.R. punched Aponte’s 

pregnant stomach. See N.T. Nonjury Trial, 1/14/20, at 86. Martinez-Rivera

then admonished J.R., reminding him to treat his mother with respect. Id. at 

87.

Rodriguez, hearing the commotion, exited his room and proceeded to 

the top of the stairs. From his vantage point, Rodriguez observed MartinezRivera, who was in the middle of the staircase, “tap” or “just touch[]” the back 

of J.R.’s head with a “metal rod,” which was also described at trial as a “little 

metal beam” or “stick,” as he descended the last few stairs. Id. at 12-13, 36, 

47, 50, 87, and 104. Rodriguez then placed Martinez-Rivera in a headlock or 

chokehold. Id. at 13, 47, 87, and 105. At that point, Martinez-Rivera kicked 

J.R. in the chest, which caused J.R. to fall down the stairs. Id. at 14. J.R. 

quickly returned up the staircase and continued to scuffle with Martinez-Rivera 

while Rodriguez fought him from the other side. Aponte testified that she 

joined the scuffle on the stairs when Rodriguez placed Martinez-Rivera in the 

chokehold. Id. at 84, 87, 104. At some point, J.R. kicked Martinez-Rivera 

down the stairs, which caused all four individuals to fall down the stairs 

together; the males continued to fight in the living room. Rodriguez and J.R. 

were both on top of Martinez-Rivera while he was kicking and thrashing. Id.

at 15-16. Aponte testified that she was able to avoid injury when everyone 

fell down the stairs because Martinez-Rivera “went and put his hand [] down 

to hold me and I f[e]ll onto his hand.” Id. at 87, 103-04.
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At that point, the physical fight ended and Aponte ordered Rodriguez 

and J.R. to leave her home. Rodriguez and J.R. proceeded back up the stairs

towards their bedrooms to pack up their belongings. Shortly thereafter, J.R. 

entered Rodriguez’s bedroom followed by Martinez-Rivera. Martinez-Rivera 

was holding a black .9mm firearm and “pistol whipped” J.R. in the left upper 

back, from behind, using the firearm. Id. at 16-17, 19. As a result of the 

strike, J.R. dropped down to the bed, which was on the floor in the middle of 

the room. Martinez-Rivera brandished the firearm, pointed it at both 

Rodriguez and J.R., and threatened that he was going to hurt or kill them if 

they hurt their mother, Aponte. Id. at 19, 20, 22, 37. Martinez-Rivera then 

fired a single shot while holding the firearm in his right hand. The bullet

pierced the closet door and then entered the frame of the same closet door

that was located on his left-hand side in Rodriguez’s bedroom. Id. at 20, 23. 

At trial, Rodriguez testified that J.R. was “in the line of fire” but not “directly” 

in it, since J.R. was “laying on [] the bed, but the closet’s higher.” Id. at 23.

After Martinez-Rivera fired the shot, he and Rodriguez began arguing,

and Martinez-Rivera swung at Rodriguez using the firearm. Rodriguez testified 

that he was able to grab hold of the weapon, “reverse it,” and push MartinezRivera out of the room, which caused Martinez-Rivera to fall on top of the 

television stand on his way out the door. Id. at 21-22. Martinez-Rivera 

continued to possess the firearm after he left Rodriguez’s room. Id. at 38. 

Rodriguez then spent fifteen minutes packing his belongings before taking an 

Uber to a friend’s house. Id. at 24-25, 42, 49-51. From there, Rodriguez 
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called his aunt and uncle, recounted what transpired, and showed them his 

injuries, which included a bruise and abrasion on his forehead. Id. at 25. J.R. 

also sustained scratch-marks to his face, hand, and back. Id. at 32. 

Rodriguez’s aunt and uncle called the police and reported the incident.

When police arrived two to three hours later at Rodriguez’s friend’s 

house, Rodriguez turned over a spent brass bullet casing that his younger 

brother had discovered in Rodriguez’s bed after Martinez-Rivera fired the shot 

into the closet and was forced out of the room. Id. at 33-34, 66. Police 

observed and photographed Rodriguez’s and J.R.’s physical injuries at the 

friend’s house. Id. at 66, 69. Police then proceeded to Aponte’s home, where 

they received her consent to search the property. Id. at 70, 75. In 

Rodriguez’s bedroom, police observed broken furniture—evidence of an 

altercation—and the bullet hole in the door and frame of the closet. Id. at 71. 

Police recovered a bullet fragment lodged in the frame of the door opposite 

the entry hole, id. at 71-72, and discovered “wet” spackle in the “exit wound” 

hole caused by the bullet. Id. at 73, 79. When police questioned MartinezRivera at the scene, he confirmed there was an altercation regarding J.R. 

wanting to take the Xbox upstairs, described Rodriguez and J.R. as 

misbehaved children, and stated there was pushing, shoving, and that he was 

placed in a chokehold. Id. at 74. When questioned specifically about the 

firearm, Martinez-Rivera claimed that he never went up the stairs to 

Rodriguez’s bedroom with a gun. Id. at 75. Police did not recover any firearm 

from the home, but did recover a magazine for a weapon from Rodriguez’s 
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bedroom closet, which Rodriguez testified belonged to his now-deceased 

stepfather who previously stored it in his bedroom. Id. at 29-31, 93-94.

On April 26, 2019, Martinez-Rivera was charged with four counts each 

of aggravated assault,8 and simple assault; two counts each of REAP, 

terroristic threats, and harassment; and one count each of PIC, and person 

prohibited from possessing a firearm. Martinez-Rivera waived his right to a 

jury trial and the matter proceeded to a bench trial on January 14, 2020. At 

the conclusion of trial, as noted above, the court found Martinez-Rivera guilty 

on all counts, except for the four counts of aggravated assault and one count 

of simple assault that was charged pursuant to subsection 2701(a)(1) of the 

Crimes Code.9 On January 29, 2020, the court sentenced Martinez-Rivera to 

an aggregate sentence of five to seventeen years’ incarceration, followed by 

two years’ probation.10

On January 31, 2020, Martinez-Rivera’s trial counsel, Daniel Nevins, 

Esquire, filed a petition to withdraw his representation due to MartinezRivera’s wish to proceed with new counsel on appeal. The court granted the 

____________________________________________

8 18 Pa.C.S.A. § 2702(a)(1); § 2702(a)(4).

9 The court found Martinez-Rivera guilty of committing simple assault on 

Counts 11, 13, and 14, and found him not guilty on Count 12. Counts 11 and 

12 were charged pursuant to subsection 2701(a)(1) and Counts 13 and 14 

pursuant to subsection 2701(a)(3).

10 The court’s sentence was imposed as follows: 4 to 15 years’ incarceration 

for his violation of section 6105; 5 years’ probation on each count of terroristic 

threats and PIC; 1 to 2 years’ incarceration on each count of REAP; and 2 

years’ probation on each count of simple assault. 
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petition to withdraw after a hearing on February 7, 2020 and then appointed 

the Berks County Public Defender’s Office to represent Martinez-Rivera. On 

February 19, 2020, Martinez-Rivera filed both a counseled request to file a 

post-sentence motion nunc pro tunc, and an untimely motion for postsentence relief. The court denied both motions on February 21, 2020. 

Martinez-Rivera filed a timely notice of appeal on February 26, 2020. Both he 

and the court complied with Pa.R.A.P. 1925. On March 19, 2020, MartinezRivera filed a motion in this Court to remand to the trial court to file a postsentence motion. On July 28, 2020, we granted that motion with instructions 

for Martinez-Rivera to file post-sentence motions nunc pro tunc within ten 

days of our order.

On September 4, 2020, Martinez-Rivera filed a request to file a nunc pro 

tunc post-sentence motion and contemporaneously filed a motion for postsentence relief seeking modification of his sentence based on the claim that 

the court failed to consider his mitigating circumstances. On September 8, 

2020, the court granted Martinez-Rivera’s request to file a nunc pro tunc postsentence motion and, by separate order, denied the motion seeking 

modification.

Martinez-Rivera filed a second notice of appeal on September 14, 2020;

and he and the court again complied with Rule 1925. The court issued an 

opinion on October 2, 2020, incorporating its previous April 14, 2020 opinion, 

and recommending we affirm Martinez-Rivera’s judgment of sentence.
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On appeal,11 Martinez-Rivera presents the following issues for our 

review:

1. Whether the evidence presented at trial was insufficient to

support a guilty verdict for simple assault, 18 Pa.[C].[S].A. § 

2701(a)(1).

2. Whether the evidence presented at trial was insufficient to

support a guilty verdict of simple assault, 18 Pa.[C].[S].A. § 

2701(a)(3).

3. Whether the evidence presented at trial was insufficient to 

support a guilty verdict of [REAP], 18 Pa.[C].[S].A. § 2705.

4. Whether the trial court abused its discretion by imposing a

sentence of 5-17 years of imprisonment.

5. Whether the sentence of 4-15 years[’] imprisonment for 

possessing a firearm was illegal.

Appellant’s Brief, at 17-18.

Rivera’s first three issues challenge the sufficiency of the evidence. Our 

standard of review for challenges to the sufficiency of the evidence is wellsettled:

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable to 

____________________________________________

11 On September 14, 2020, Martinez-Rivera filed a notice of appeal stating 

that his appeal is “from the [j]udgment of [s]entence in this matter on January 

29, 2020[,] and from the denial of the [p]ost-[s]entence [m]otion entered in 

this matter on September 8, 2020.” Notice of Appeal, 9/14/20 (emphasis 

added). Although dated September 8, 2020, the court’s order denying 

Martinez-Rivera’s post-sentence motion was not filed until September 10, 

2020. Thus, Martinez-Rivera’s appeal properly lies from the January 29, 2020 

judgment of sentence, made final by the court’s September 10, 2020 denial 

of his post-sentence motion. See Commonwealth v. Shamberger, 788 

A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted) (“In a 

criminal action, appeal properly lies from the judgment of sentence made final 

by the denial of post-sentence motions.”); see also Commonwealth v. 

Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995).
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the verdict winner[,] giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence. Evidence 

will be deemed sufficient to support the verdict when it establishes 

each material element of the crime charged and the commission 

thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. Any doubt about the defendant’s guilt is 

to be resolved by the fact[-]finder unless the evidence is so weak 

and inconclusive that, as a matter of law, no probability of fact 

can be drawn from the combined circumstances.

The Commonwealth may sustain its burden by means of wholly 

circumstantial evidence. Accordingly, the fact that the evidence 

establishing a defendant’s participation in a crime is circumstantial 

does not preclude a conviction where the evidence[,] coupled with 

reasonable inferences drawn therefrom[,] overcomes the 

presumption of innocence. Significantly, we may not substitute 

our judgment for that of the fact[-]finder; thus, so long as the 

evidence adduced, accepted in the light most favorable to the 

Commonwealth, demonstrates the respective elements of a 

defendant’s crimes beyond a reasonable doubt, the appellant’s

convictions will be upheld. 

Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013) 

(internal citations, quotation marks, and brackets omitted). Finally, the trier 

of fact, while passing upon the credibility of witnesses, is free to believe all, 

part, or none of the evidence. Commonwealth v. Fortson, 165 A.3d 10, 

14–15 (Pa. Super. 2017).

Martinez-Rivera first challenges the sufficiency of the evidence to 

sustain his conviction for simple assault under subsection 2701(a)(1). 

Martinez-Rivera cites to our decision in In Interest of J.L., 475 A.2d 156 (Pa. 

Super. 1984), wherein we found that the defendant’s intentional elbow strike 

to her two-year-old nephew did not constitute simple assault where the

nephew did not cry out or demonstrate evidence of pain because,
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[w]ithin the confines of the family, it is difficult to attach 

criminality to the pushing, shoving, slapping, elbowing, hairpulling, perhaps even punching and kicking, that not infrequently 

occur between siblings or other members of the same family.

. . . In the absence of a criminal or malicious intent, such 

intrafamily spats will not support criminal prosecution.

Id. at 157. Martinez-Rivera concludes that the simple assault statute never 

contemplated his “fatherly tap of reproach” with the metal pole to fall within 

the ambit of its proscribed criminal conduct. Appellant’s Brief, at 40-41. 

Moreover, Martinez-Rivera argues that any act he committed on the stairs 

after Rodriguez placed him in a headlock or chokehold was “warrantable selfdefense.” Id. We agree with this analysis; nevertheless, for the reasons 

stated below, we affirm Martinez-Rivera’s conviction under subsection 

2701(a)(1) because the Commonwealth proved beyond a reasonable doubt 

that Martinez-Rivera “pistol whipped” J.R. on his back, under circumstances 

demonstrating his intent to cause J.R. bodily injury or substantial pain. 

Under subsection 2701(a)(1), a person is guilty of simple assault if he 

or she “attempts to cause or intentionally, knowingly or recklessly causes 

bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1). Bodily injury requires 

an “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 

2301. “The Commonwealth need not establish that the victim actually 

suffered bodily injury; rather, it is sufficient to support a conviction if the 

Commonwealth establishes an attempt to inflict bodily injury. This intent may 

be shown by circumstances which reasonably suggest that a defendant 

intended to cause injury.” Commonwealth v. Richardson, 636 A.2d 1195, 

1196 (Pa. Super. 1994).
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To show an “attempt” to inflict bodily injury, it must be shown that 

the actor had a specific intent to cause bodily injury[.] A person 

acts intentionally with respect to a material element of an offense 

if “it is his conscious object to engage in conduct of that nature or 

to cause such a result.” 18 Pa.C.S.A. § 302(b)(1)(i). 

Id. (some internal citation, quotation marks, and brackets omitted).

Moreover, our Supreme Court has previously instructed that a 

defendant’s use of force may be justified. Specifically,

[t]he use of force against a person is justified when the actor 

believes that such force is immediately necessary for the 

purpose of protecting himself against the use of unlawful force by 

the other person. See 18 Pa.C.S.[A.] § 505(a). When a 

defendant raises the issue of self-defense, the Commonwealth 

bears the burden to disprove such a defense beyond a reasonable 

doubt. . . . If there is any evidence that will support the claim, 

then the issue is properly before the fact[-]finder.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001) (some citations 

omitted).

In its Rule 1925 opinion, the trial court found that:

Both [Martinez-Rivera]’s use of a metal pole to hit J.R. on the back 

of the head and [his] later kicking J.R. down the stairs would 

evince a finding that [Martinez-Rivera] acted with the intent to 

cause J.R. bodily injury. [W]e also find that in hitting J.R. on the 

head with a metal pole and kicking J.R. down the stairs, [MartinezRivera] acted, at least, with the requisite recklessness to support 

a conviction of simple assault[.]

Trial Court Opinion, 4/14/20, at 9.

Here, we agree with Martinez-Rivera that neither the tap with the metal 

pole, nor his kicking J.R. down the stairs, can form the basis of his conviction 

under subsection 2701(a)(1). Every witness who testified at trial referred to 

Martinez-Rivera’s strike of J.R.’s head with the metal rod as a “tap.” N.T. 
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Nonjury Trial, 1/14/20, at 13, 36, 47, 87, 104. The Commonwealth did not 

demonstrate that J.R. suffered “bodily injury,” “impairment of physical 

condition” or “substantial pain.” See In Interest of J.L., supra;

12 18

Pa.C.S.A. §§ 2701(a)(1), 2301. Moreover, we cannot infer from such a trifling 

touch that Martinez-Rivera’s conscious object was to engage in conduct of that 

nature or to cause J.R. any such injury.

13

 See Richardson, supra; 18 

Pa.C.S.A. § 302(b)(1)(i). See also In Interest of J.L., supra; cf. 

Commonwealth v. Duck, 171 A.3d 830, 837-38 (Pa. Super. 2017) (finding 

evidence of simple assault sufficient where victim suffered visible injury to 

head when defendant pushed him “really hard” or “slammed [him] to the 

floor” during verbal argument); Commonwealth v. Wertelet, 696 A.2d 206, 

211 (Pa. Super. 1997) (“[P]hysical affronts that do not result in ‘bodily injury,’ 

and therefore do not constitute a simple assault, would likely be addressable 

under the summary offense of harassment which specifically includes conduct 

where the actor ‘strikes, shoves, kicks or otherwise subjects him to physical 

contact.’”).

____________________________________________

12 Although not J.R.’s parent or guardian, we agree that Martinez-Rivera was 

acting in locus parentis when he tapped J.R.’s head in rebuke for punching 

Aponte’s pregnant stomach. See Appellant’s Brief, at 43. Moreover, we note 

that Martinez-Rivera, the father of the child in Aponte’s womb, see N.T. 

Nonjury Trial, 1/14/20, at 96, helped to clean around her house, id., and that, 

although he was living at a nearby shelter, he had been visiting with Aponte 

at her house with her for almost one month. Id. at 10.

13 Here, this universally testified to “tap,” even when accepted in the light 

most favorable to the Commonwealth as verdict winner, see Rahman, supra, 

cannot support a criminal assault conviction. See Wertelet, infra; see 

also Commonwealth v. Kirkwood, 520 A.2d 451, 454 (Pa. Super. 1987).
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Additionally, we agree with Martinez-Rivera that once Rodriguez placed 

him in a headlock, Martinez-Rivera was acting in self-defense, at least until 

Rodriguez and J.R. released him from the living room floor and retreated 

upstairs to gather their belongings.

In Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012), our Supreme 

Court set forth the elements that must be present to establish a claim of selfdefense: (1) the defendant reasonably believed that he was in 

imminent danger of death or serious bodily injury and that it was necessary 

to use force against the victim to prevent such harm; (2) the defendant was 

free from fault in provoking the difficulty which culminated in the force used; 

and (3) the defendant did not violate any duty to retreat. Id. at 740. The 

Court additionally clarified that the Commonwealth may successfully disprove 

the defendant’s self-defense claim by showing any one of the following: (1) 

that the defendant was not free from fault in provoking or continuing the 

difficulty; (2) that the defendant did not reasonably believe that he was in 

imminent danger of death or great bodily harm and that it was necessary to

use force in order to save himself; or (3) that the defendant violated a duty 

to retreat or avoid the danger. Id. at 740-41.

Here, the Commonwealth never met its burden of disproving selfdefense, see Torres, supra; therefore, we conclude that Martinez-Rivera’s 

kicking J.R. down the stairs constituted such defense. Our review of the record 

reveals that J.R.’s announcement that he was taking the Xbox upstairs to his 

room in defiance of his mother’s command, and his subsequent punch to his 
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mother’s pregnant stomach, provoked the altercation on the stairs. MartinezRivera’s tap—an act of parental rebuke, see supra, n.12—cannot be viewed 

as an instigation, continuation, or escalation of criminal violence. See supra, 

n.13; see also Mouzon, supra at 740; In Interest of J.L., supra. 

Moreover, once placed in Rodriguez’s headlock from behind, and attacked 

from the front by J.R., it was reasonable for Martinez-Rivera to believe that 

he was in imminent danger of great bodily harm and that it was necessary to 

use force to protect himself. See Mouzon, supra. Finally, we note that 

Martinez-Rivera’s position within the confines of a stairwell flanked by the two

six-foot tall, 150-pound brothers, as well as his position on the living room 

floor when the brothers remained on top of him, afforded him no opportunity 

to retreat or avoid danger, until the brothers disengaged from the physical 

fight. Id. at 740-41. Indeed, at trial, the Commonwealth conceded that the 

stairwell combat was mutual. See N.T. Nonjury Trial, 1/14/20, at 116 (“Your 

Honor, I would agree with [defense counsel] that with the sequence of events 

that occurred on the stairwell, there was clearly some type of altercation that, 

at the very least, [Rodriguez, J.R., and Martinez-Rivera] were, to some 

degree, equally involved in this altercation.”) (emphasis added).

Nevertheless, we find additional evidence the Commonwealth adduced 

at trial was sufficient to sustain Martinez-Rivera’s conviction under subsection 

2701(a)(1) beyond a reasonable doubt. The Commonwealth proffered 

evidence that Martinez-Rivera pistol whipped J.R. on his left upper back in 

Rodriguez’s room, after the brothers had retreated upstairs to gather their 
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belongings after the fight on the stairs. See N.T. Nonjury Trial, 1/14/20, at 

16-17; 19. With the initial brawl having concluded, and Martinez-Rivera 

possessing a substituted choice of implement—a firearm is a heavier and more 

threatening object than a “little metal beam” or “stick”—Martinez-Rivera’s 

intent to attempt to cause bodily injury or substantial pain could be inferred 

from his striking J.R.’s back with the pistol, especially where there was 

evidence adduced at trial that J.R. fell down onto the bed as a result of the 

strike and sustained an injury to that part of his body.

14

 See Richardson, 

supra; Rahman, supra; 18 Pa.C.S.A. § 2701(a)(1). See also 

Commonwealth v. Boettcher, 459 A.2d 806, 808-09 (Pa. Super. 1983) 

(evidence sufficient to sustain simple assault, aggravated assault, and REAP 

where defendant pistol whipped victim in face, which required stitches to heal, 

smacked victim on side of neck and back of head, and fired gun into air three 

times). 

Next, Martinez-Rivera challenges his REAP and simple assault 

convictions under subsection 2701(a)(3), citing to the Bennett principle. See 

Commonwealth v. Bennett, 303 A.2d 220, 221 (Pa. 1973) (finding evidence 

insufficient to sustain convictions where party having burden offers testimony 

which is so contradictory on essential issues that any finding by factfinder

would be mere guess). Martinez-Rivera claims that all of his convictions which 

____________________________________________

14 See N.T. Nonjury Trial, 1/14/20, at 31 (“Were you able to notice through 

your own senses, did [J.R.] have any injuries as a result of the altercation with 

[Martinez-Rivera]?” “Yeah, I think he had a couple marks on his back and 

on his face as well.”) (emphasis added).
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are founded on the fact that he possessed the gun must be reversed because 

“the only evidence” adduced at trial that Martinez-Rivera did so “arises from 

a single, interested witness’s testimony that is ‘incapable of reasonable 

reconciliation’ with the rest of the evidence presented at trial.” Appellant’s 

Brief, at 50 (quoting Commonwealth v. Farquharson, 354 A.2d 545, 550 

(Pa. 1976)). Martinez-Rivera argues 

the only evidence that the Commonwealth adduced in support of 

the fact that [Martinez-Rivera] had a gun with which he assaulted 

and endangered [Rodriguez and J.R.,] came in the form of 

[Rodriguez]’s testimony. . . . [Rodriguez] was a party to the 

quarrel, and in every other imaginable way directly and personally 

interested in the disposition of the present case. And 

[Rodriguez’s] testimony was incoherent, contradicted by all other 

objective evidence, riddled with materially significant internal 

inconsistencies, and sometimes demonstrably mendacious, all so 

as to render it unreliable or at the very least useless as a matter 

of law.

Appellant’s Brief, at 51. We disagree.

Under subsection 2701(a)(3), a person is guilty of simple assault if he

“attempts by physical menace to put another in fear of imminent serious bodily 

injury.” 18 Pa.C.S.A. § 2701(a)(3). “Serious bodily injury” is defined as that 

“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. “The elements which must be 

proven are intentionally placing another in fear of imminent serious bodily 

injury through the use of menacing or frightening activity. Intent can be 

proven by circumstantial evidence and may be inferred from the defendant’s 
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conduct under the attendant circumstances.” Commonwealth v. Reynolds, 

835 A.2d 720, 726 (Pa. Super. 2003) (citing Commonwealth v. Little, 614 

A.2d 1146, 1151 (Pa. Super. 1992)) (citations omitted). 

“A person commits the crime of [REAP] if he engages in conduct which 

places or may place another person in danger of death or serious bodily 

injury.” Commonwealth v. Hopkins, 747 A.2d 910, 915 (Pa. Super. 2000). 

“The mens rea for [REAP] is ‘a conscious disregard of a known risk of death 

or great bodily harm to another person.’” Id. at 916 (citing Commonwealth 

v. Peer, 684 A.2d 1077, 1080 (Pa. Super. 1996)).

Here, Rodriguez testified that Martinez-Rivera possessed a gun, used it 

to pistol whip J.R. in the back, flailed the firearm at both himself and J.R., 

pointed it at them while making threatening statements, and fired a shot into 

the closet while J.R. was “in the line of fire.” See N.T. Nonjury Trial, 1/14/20, 

at 16-23. Moreover, Rodriguez testified that during the confrontation with the 

firearm, he and Martinez-Rivera essentially wrestled over possession of the 

weapon when Rodriguez grabbed it and “reverse[d] it” on Martinez-Rivera. 

Id. at 21-22. We note that this evidence was sufficient to sustain each of the 

challenged convictions under sections 2701(a)(3) and 2705. See Reynolds, 

supra at 727 (finding evidence sufficient to sustain conviction for simple 

assault pursuant to subsection 2701(a)(3) where defendant pointed gun at 

victims and threatened their lives); Commonwealth v. Matthews, 870 A.2d 

924, 929 (Pa. Super. 2005) (“[I]n instances where the defendant draws a 

weapon, threatens to use it on the victim[,] and is prevented from doing so 
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by the physical intervention of another actor, we have found that the 

Commonwealth presented sufficient evidence to demonstrate that the 

appellant took a substantial step, with the required specific intent, to 

perpetrate a serious bodily injury upon another.”);

15 Hopkins, supra at 915-

16 (holding evidence sufficient to sustain REAP where defendant waived 

loaded and operable gun at victim and pistol whipped victim); In re Maloney, 

636 A.2d 671, 674-75 (Pa. Super. 1994) (concluding evidence sufficient to 

sustain REAP convictions where Commonwealth proffers evidence that 

defendant pointed loaded weapon at victim).

Additionally, we note that, generally, the testimony of the victim 

identifying the defendant as the perpetrator of the crime, alone, is sufficient 

to sustain a conviction. See Commonwealth v. Johnson, 180 A.3d 474, 

478 (Pa. Super. 2018) (“A victim’s in-court testimony, identifying the 

defendant as the perpetrator of a crime, is[,] by itself[,] sufficient to establish 

the identity element of that crime.”); see also Commonwealth v. Reed, 

216 A.3d 1114, 1119 (Pa. Super. 2019) (“[T]he 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.”). Inasmuch as Martinez-

____________________________________________

15 We note that it was reasonable for the court to infer that Martinez-Rivera 

intended to inflict serious bodily injury under these circumstances because 

“the crucial factor is not how much time the attacker wastes in cruelly 

terrorizing his victim, but whether he was stopped short of the objective

[signaled] by his words or conduct.” Commonwealth v. Elrod, 572 A.2d 

1229, 1232 (Pa. Super. 1990).
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Rivera cites to the Bennett decision and its progeny for the proposition that 

a single witness’s testimony may not be sufficient to sustain convictions where 

that witness’s trial testimony was contradictory and would lead to jury 

surmise, we find those cases distinguishable from the facts sub judice.

In Bennett, the defendant was convicted based solely upon the 

testimony of her co-defendant, who was the actual perpetrator of the crime

involving a stolen vehicle. Bennett, supra at 220-21. The co-defendant in 

Bennett had contradicted himself in police statements multiple times and only 

acquiesced to Bennett’s involvement to benefit himself. Id. The Bennett

Court found that this sole witness’s testimony would only allow the jury to

arrive at a conviction based on mere conjecture.

Here, the Commonwealth’s case was not limited solely to Rodriguez’s 

testimony; it also consisted of other circumstantial evidence. Police observed 

broken furniture in Rodriguez’s bedroom, which corroborated that a physical 

struggle occurred in the room. Police also recovered a bullet fragment in the 

closet frame and observed a bullet hole in the closet door, which corroborated 

Rodriguez’s testimony about Martinez-Rivera’s position in the room when he 

fired the weapon. Police also recovered the brass bullet casing from 

Rodriguez, and observed the wet spackle, which evidenced the recency of the 

event and further corroborated Rodriguez’s testimony. Finally, all of 

Rodriguez’s testimony, aside from his observation of Martinez-Rivera 

possessing the firearm, was corroborated by the personal-knowledge 

testimony of the other witnesses at trial. Indeed, both J.R.—a younger sibling 
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with the same initials, who observed the altercation on the stairs from the 

living room—and Aponte confirmed that an altercation occurred on the stairs 

as a result of Martinez-Rivera’s tap to J.R.’s head with the metal rod; the three 

males fell down the stairs during the altercation; they continued to fight in the 

living room before Aponte ordered her sons out of her house; and the sons 

proceeded back upstairs to gather their belongings before riding an Uber to a 

friend’s house. Additionally, Rodriguez’s testimony lacked the type of selfserving characteristics that were at issue in the Bennett case: he testified 

that Martinez-Rivera merely tapped J.R., but that he himself retaliated by 

placing Martinez-Rivera in a headlock or chokehold. Moreover, Rodriguez did 

not immediately report the matter to police, but recounted the facts to his 

aunt and uncle first before they then proceeded to alert authorities. As a 

result of the above, we find the Bennett principle is inapplicable to this case 

and deem this issue to be meritless. 

Next, Martinez-Rivera challenges the discretionary aspects of his 

sentence. The right to challenge the discretionary aspects of one’s sentence

requires that the jurisdiction of this Court be properly invoked. We evaluate

whether we have jurisdiction over the discretionary claim via the following

four-part test:

(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, see Pa.R.A.P. 2119(f); and (4) whether there is a

question that the sentence appealed from is not appropriate under

the Sentencing Code. The determination of whether a particular
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issue raises a substantial question is to be evaluated on a caseby-case basis. Generally, however, in order to establish a

substantial question, the appellant must show actions by the

sentencing court inconsistent with the Sentencing Code or

contrary to the fundamental norms underlying the sentencing

process.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220-21 (Pa. Super. 2011)

(some internal citations, quotations marks, and footnotes omitted). 

Here, Martinez-Rivera filed a post-sentence motion for reconsideration 

of his sentence, followed by a timely notice of appeal. He has also included in 

his brief a Rule 2119(f) statement. See Appellant’s Brief, at 31-32. Therefore, 

we must determine whether Martinez-Rivera raises a substantial question. 

See Dunphy, supra. 

We examine whether the appellant has raised a substantial question on 

a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. 

Super. 2007). “We cannot look beyond the statement of questions presented 

and the prefatory Rule 2119(f) statement to determine whether a substantial 

question exists.” Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. 

Super. 2018) (brackets omitted). 

In his Rule 2119(f) statement, Martinez-Rivera states that “the court

failed to consider mitigating factors, the rehabilitative needs of [MartinezRivera,] as well as protection of the public, gravity of the offense, and the 

impact on the life of [J.R. and Rodriguez] and the community.” Appellant’s 

Brief, at 32. Martinez-Rivera relies on our decision in Commonwealth v. 

Felmlee, 828 A.2d 1105 (Pa. Super. 2003), for the proposition that “[i]t is 

well-established that a sentencing court’s failure to consider mitigating factors 
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raises a substantial question.” Appellant’s Brief, at 32. We note that the 

Felmlee decision contains no such language. Indeed, in Felmlee, the 

appellant raised in his Rule 2119(f) statement the additional attendant 

circumstance that he was sentenced in the aggravated range of the sentencing 

guidelines. See Felmlee, supra at 1107 (“[A] claim that the court erred by 

imposing an aggravated range sentence without consideration of 

mitigating circumstances raises a substantial question.”) (emphasis added); 

compare Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) 

(citing Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003)) (“An 

allegation that the sentencing court failed to consider certain mitigating 

factors generally does not necessarily raise a substantial question.”).

Here, Martinez-Rivera has failed to state in his Rule 2119(f) statement 

that he was sentenced in the aggravated range. See Felmlee, supra at 

1107. As such, his claim fails to raise a substantial question. See Moury, 

supra; see also Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. 

Super. 2004) (“In order to raise a substantial claim [that the sentence within 

the guidelines was manifestly excessive], Appellant’s 2119(f) statement must 

sufficiently articulate ‘the manner in which the sentence violates either a 

specific provision of the sentencing scheme set for forth in the Sentencing 

Code or a particular fundamental norm underlying the sentencing process.’”) 
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(citation omitted). Therefore, we have no jurisdiction to hear MartinezRivera’s discretionary aspects of sentence claim.16

 See Dunphy, supra. 

Finally, Martinez-Rivera challenges the legality of his sentence for his 

conviction pursuant to section 6105. Generally, “claims pertaining to the 

legality of sentence are non-waivable, [and] may be leveled for the first time 

on appeal[.]” Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 

2018). Martinez-Rivera did not raise this issue in the trial court, but instead, 

raises this issue for the first time on appeal.

Our review of Martinez-Rivera’s claim reveals that, rather than a 

challenge to legality of sentence, it is better characterized as a challenge to 

the constitutionality of section 6105. See Appellant’s Brief, at 74 (“[Section 

6105] is not only constitutionally vague in the sense that it fails to give fair 

and clear notice of its meaning to the public[, but] it would strike most 

linguists and logicians as indecipherable.”). Constitutional void-for-vagueness 

claims must be preserved in the trial court and may not be raised for the first 

____________________________________________

16 Moreover, we note that, despite his claims to the contrary, the court did 

consider Martinez-Rivera’s mitigating factors and rehabilitative needs, as well 

as the protection of the public, gravity of the offense, and the impact on the 

life of the victims and the community. See N.T. Sentencing Hearing, 2/18/20, 

at 8 (“I’ve taken into account the evidence in this case, having been the trial 

judge [] as well as the finder of fact. I’ve reviewed the [presentence 

investigative report.]”); see also Commonwealth v. Devers, 546 A.2d 12, 

18 (Pa. 1988) (“Where pre-sentence reports exist, we shall continue to 

presume that the sentencing judge was aware of relevant information 

regarding the defendant’s character and weighed those considerations along 

with mitigating statutory factors. A pre-sentence report constitutes the record 

and speaks for itself.”). Finally, our independent review of the record reveals 

no indication that Martinez-Rivera was sentenced in the aggravated range.
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time on appeal. See Commonwealth v. Rouse, 191 A.3d 1, 5-6 (Pa. Super. 

2018) (holding phrase “illegal sentence” is term of art applicable to three types 

of claims and which does not include void-for-vagueness claims, which would 

be better characterized as challenges to legislature’s ostensible failure to 

provide adequate notice of penalty); Commonwealth v. Elrod, 572 A.2d 

1229, 1232 (Pa. Super. 1990) (party who fails to assert claim that terms of 

sentence were unconstitutional in trial court waives right to pursue that claim 

on appeal where sentencing judge was legislatively authorized to impose given 

sentence). Therefore, this issue is waived.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/16/2021