J-S60034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE L. GONZALEZ

Appellant No. 299 MDA 2014

Appeal from the Judgment of Sentence August 28, 2013

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0000176-2013

BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2014

Jose Gonzalez (“Appellant”) appeals the judgment of sentence imposed 

on August 28, 2013, following his conviction for attempted murder1and two 

counts of aggravated assault.2 After careful review, we affirm.

The trial court summarized the trial testimony and procedural history 

as follows:

On April 8, 2012, Magdalena Cruz (hereafter “Cruz”) 

resided at 228 Brookside Apartments in the City of Lebanon, 

Pennsylvania. Until roughly 2:00 a.m. on April 8, Cruz partied 

with friends at the Woofer Magoos Bar in downtown Lebanon. 

Among other people who partied together were Tiffany Koziara, 

Chris Malandra, Anthony DeJesus, Derek DeJesus and 

[Appellant]. When the bar closed, the group reconvened their 

____________________________________________

1 18 Pa.C.S. § 901(a).

2 18 Pa.C.S. § 2702(a)(1) & (4).
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party at Cruz’s home. Wanda Colon, Larry Graves and Jose 

Martinez (hereafter “Victim”) attempted to join the party.

Shortly after [] the arrival of Colon, Graves and Victim, an 

argument ensued between Cruz and Victim over a cell phone. 

Cruz became frustrated and slapped Victim in the face. Anthony 

DeJesus and Derek DeJesus then began fighting with Victim near 

the top of a staircase. Graves attempted to intervene. At this 

point, a shot was fired and Victim fell to the bottom of the stairs. 

While lying at the bottom of the stairs, Victim looked up and saw 

[Appellant] holding a silver gun.

Following the shooting, Wanda Colon and Anthony DeJesus 

drove Victim to the hospital. They dropped him off in the front 

of the hospital and then drove away. At the time, Victim was 

breathing profusely. He was also paralyzed.

Cruz remained at her apartment and cleaned up blood and 

other evidence. The rest of the individuals at the party 

scattered. No one called the police. No one even advised staff 

at the hospital what had occurred.

Police were called to the Good Samaritan Hospital 

Emergency Room by hospital staff. Police arrived and were 

advised that Victim had been shot and was fighting for his life. 

Initially, police had no leads with respect to how, where or when 

the shooting occurred or whether anyone had witnessed it.

As of April 2012, Destiny Gonzalez was the fiancée of 

Victim. Ms. Gonzalez expected Victim to return home shortly 

after 2:00 a.m. When he did not arrive, Ms. Gonzalez attempted 

to reach Victim using his cell phone. Chris Malandra and Tiffany 

Koziara were in possession of Victim’s cell phone. When Ms. 

Gonzalez called, Mr. Malandra and Ms. Koziara advised Ms. 

Gonzalez to call the Good Samaritan Hospital.

Police were able to piece together from Victim’s family that 

Victim may have been attending a party at Cruz’s apartment. 

Sergeant Jonathan Hess, Detective Keith Ulrich and Officer Ryan 

Margot responded to Cruz’s apartment. Sgt. Hess observed a 

red stain on the door and floor mat. Officer Margot noticed what 

he believed to be blood on the baby gate at [sic] the stairwell.

Through investigation, police were able to learn the names 

of people reported to have been at Cruz’s party during the early 

morning of April 8, [2012]. Seven of the ten people reported to 
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be present at the party were interviewed. It became quickly 

apparent to police that those who attended the party wanted to 

protect the culprit. For example, Cruz attempted to clean the 

crime scene. She also denied [Appellant] was even at the party 

at her house. When police attempted to speak to Tiffany 

Koziara, she would not answer the door to her home. When 

they eventually were able to speak to Ms. Koziara, she was not 

cooperative. Similarly, Anthony DeJesus told police that he did 

not even remember being at the party at Cruz’s house. His 

brother Derek also denied being present at the party.

When Victim was medically able, Sgt. Hess conducted an 

interview. Victim was initially uncooperative. However, he later 

gave Sgt. Hess a full recorded statement. In that statement, he 

identified [Appellant] as the person he saw holding a silver gun 

immediately after he had been shot. At trial, Victim testified 

that he was “one hundred percent certain” that [Appellant] was 

the person holding the gun.

Sgt. Hess testified that he wanted to interview [Appellant], 

but he and his fellow officers could not locate him. Sgt. Hess 

spoke with [Appellant’s] mother and his brothers. Police also 

spoke with informants. They contacted the Pennsylvania State 

Police Fugitive Task Force and the United States Marshal’s 

Service. Unfortunately, [Appellant’s] whereabouts remained 

unknown for nine months.

[Appellant] was finally apprehended on January 10, 2013. 

When questioned, [Appellant] denied that he was even at the 

party where the shooting occurred.

During their investigation, police learned that [Appellant] 

and Hasaan Hargett were Facebook friends. Police obtained a 

Facebook post dated April 18, 2012. That post referenced a 

“hammer” that [Appellant] had given to Mr. Hargett. [Appellant] 

messages [sic] Mr. Hargett and stated: “I felt safe knowing you 

had it because I know you wouldn’t let it go in the wrong hands 

but now that you don’t got it, I am not safe anymore?” Mr. 

Hargett responded that he had disposed of the “hammer” “with 

additional waste.” Det. Ulrich testified that he was familiar with 

street terminology and that the term “hammer” refers to a gun. 

At trial, Mr. Hargett initially denied getting rid of anything for 

[Appellant]. He later acknowledged that he had discarded a bag 

that had been given to him by [Appellant].
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At trial, Victim identified [Appellant] as the person who 

shot him.1 In addition, the District Attorney’s Office presented 

the Facebook communications sent by [Appellant] to Hasaan 

Hargett that, fairly interpreted, revealed that Hargett disposed of 

a gun on behalf of [Appellant]. The District Attorney also 

presented evidence that [Appellant] abruptly left Lebanon after 

the shooting.2

1 Specifically, the Victim said that [Appellant] was holding 

a gun immediately after he was shot. No one else was 

seen with a gun.

2 To be sure, inconsistent and obviously misleading 

testimony was presented from Magdelina [sic] Cruz, 

Lawrence Graves, Tiffany Koziara, Anthony DeJesus and 

Derek DeJesus. When evaluating issues pertaining to 

weight and sufficiency of evidence, this [c]ourt did not 

afford much weight to the testimony of the aforesaid 

individuals.

On August 9, 2013, a jury convicted [Appellant] of all 

counts lodged against him. Sentencing occurred on August 28, 

2013. As a result, this [c]ourt sentenced [Appellant] to a period 

of imprisonment of between 20 and 40 years.

Trial Court Post-Sentence Motion Opinion, January 9, 20143(“Trial Court 

Opinion”), pp. 1-6 (record citations and capitalizations omitted).

On September 9, 2013, Appellant filed post-sentence motions raising: 

(1) a sufficiency of the evidence claim; (2) two claims relating to the trial 

court’s denial of Appellant’s motion in limine regarding the circumstances of 

Appellant’s flight/arrest; (3) a claim that the trial court improperly instructed 

____________________________________________

3 By Order dated March 6, 2014, the trial court forwarded the trial court file 

to this Court, noting that its January 9, 2014 opinion addressed Appellant’s 

matters complained of on appeal. Accordingly, we will treat the trial court’s 

January 9, 2014 opinion as its Pa.R.A.P. 1925(a) opinion.
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the jury on whether Appellant’s flight could be considered as consciousness 

of guilt; (4) a claim that the trial court improperly precluded Appellant from 

drawing a link in his closing argument between Anthony DeJesus’ 

aggravated assault conviction and a defense claim that Anthony DeJesus 

may have been the shooter; (5) a weight of the evidence claim; and (6) a 

discretionary aspects of sentence claim. The trial court denied Appellant’s 

post-sentence motions on January 9, 2014. Thereafter, Appellant filed a 

timely notice of appeal and complied with the trial court’s order to file a 

statement of matters complained of on appeal.

Appellant raises the following issues for our review:

I. Did the Commonwealth fail to present sufficient evidence at 

trial that:

 Appellant was at Brookside apartments on April 8, 2012, 

and that Appellant was the person who shot Jose Martinez?

 Appellant was guilty of Attempted Homicide?

II. Did the Trial Court erred [sic] by:

 Denying Appellant’s Motion In Limine to exclude the 

circumstances of Appellant’s arrest on January 10, 2013, 

and by instructing the Jury that Appellant’s alleged flight 

was consciousness of guilt[?]

 Instructing [d]efense [c]ounsel that he could not in his 

closing arguments draw a direct link between the fact that 

Anthony DeJesus had been convicted of an aggravated 

assault involving a handgun and that Anthony DeJesus 

may have been the shooter[?]

III. Did the Jury place too great a weight on the testimony that 

Appellant was at 228 Brookside [A]partments on April 8, 2012, 

specifically, the testimony of Lawrence Graves, Magdelina [sic] 

Cruz, and Jose Martinez[?]
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IV. Did the Sentencing Court err in sentencing the Appellant to 

the top of the standard range for his minimum sentence at 

Action Number CP-38-CR-175-2013 and running that sentence 

consecutively to the sentence imposed at Action Number CP-38-

CR-176-2013 when the Appellant had a prior record score of 

zero and had only two (2) misdemeanor juvenile adjudications, 

and did the Sentencing Court consider improper facts when 

molding Appellant’s sentence[?]

Appellant’s Brief, p. 4.

Appellant first argues that the Commonwealth failed to prove that he 

committed the crime of attempted murder. See Appellant’s Brief, pp. 10-

13. Specifically, Appellant claims the Commonwealth failed to prove that he 

was at 228 Brookside Apartments and that he was the shooter. Id. He is 

incorrect.

When examining a challenge to the sufficiency of evidence, this Court’s 

standard of review is as follows:

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 

[trier] of fact while passing upon the credibility of witnesses and 
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the weight of the evidence produced, is free to believe all, part 

or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal 

denied, 32 A.3d 1275 (Pa.2011).

The Crimes Code provides:

(a) Definition of attempt.–A person commits an attempt 

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

which constitutes a substantial step toward the commission of 

that crime.

18 Pa.C.S. § 901. “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.” Commonwealth v. Jackson, 955 

A.2d 441, 444 (Pa.Super.2008) (internal citations and quotations omitted). 

“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.” Id. “[A]ttempted murder requires an intent to bring about that 

result described by the crime of murder (i.e., the death of another).” 

Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.2004). “The 

mens rea required for first-degree murder, specific intent to kill, may be 

established solely by circumstantial evidence.” Jackson, 995 A.2d at 444. 

“The law permits the fact finder to infer that one intends the natural and 

probable consequences of his acts.” Id. “The offense of attempt to kill is 

completed by the discharging of a firearm at a person with the intent to kill, 
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despite the fortuitous circumstances that no injury is suffered.” 

Commonwealth v. Mapp, 335 A.2d 779, 781 (Pa.Super.1975) (necessary 

intent found for attempted murder where defendant shot at victim and 

missed). Additionally, our Supreme Court has repeatedly determined that 

“[t]he use of a deadly weapon on a vital part of the body is sufficient to 

establish the specific intent to kill” required for a first degree murder 

conviction. See Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.2007); 

Commonwealth v. Cousar, 928 A.2d 1025, 1034 (Pa.2007) (“a specific 

intent to kill may be inferred from the use of a deadly weapon on a vital part 

of a victim’s body.”). Further, evidence of flight is admissible for the 

purpose of establishing guilty knowledge. Commonwealth v. Gooding, 

649 A.2d 722, 726 (Pa.Super.1994) (citing Commonwealth v. Jones, 319 

A.2d 142, 149 (Pa.1974)).

Here, the trial court explained its rejection of Appellant’s sufficiency of 

the evidence claim as follows:

Although this [c]ourt believes that Graves lied at trial and that 

his written statement to police was in fact accurate, we 

nevertheless will not consider today the testimony of Graves or 

even of Cruz. In fact, the evidence that we will rely upon to 

reject [Appellant’s] challenge to [the] . . . sufficiency of [the] 

evidence is as follows:

(1) Victim testified that immediately after he was shot, he saw 

a gun in the hand of [Appellant]:

Q. Jose, as you are sitting here today are you certain 

that when you were shot that the person you saw holding 

the gun was [Appellant]?

A. Yes, hundred percent.
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(2) Following the shooting, [Appellant] abruptly left Lebanon 

County. He told a close friend that he likely would never return.

(3) In a Facebook exchange, [Appellant] confirmed that he 

had given a “hammer” to hold and/or dispose for him. Police 

testified that the term “hammer” refers on the streets to a gun.

To be sure, significant additional information and evidence 

was presented to the jury. However, the three pieces of 

evidence outlined above, by themselves, are sufficient to support 

the jury’s verdict.

1925(a) Opinion, pp. 11-12 (record citation, footnote, and capitalizations 

omitted).

Viewed in the light most favorable to the Commonwealth as verdict 

winner, the trial court properly concluded that this evidence was sufficient to 

convict Appellant of attempted murder.

Appellant also claims the trial court erred in denying his motion for a 

new trial based on a weight of the evidence claim. See Appellant’s Brief, pp. 

15-16. Specifically, Appellant claims the jury placed too much weight on the 

testimony of Magalena Cruz and the victim that Appellant was at 228 

Brookside Apartments on April 8, 2012. Id. This claim lacks merit.

This Court’s review of weight of the evidence claims is governed by the 

following standard:

A motion for new trial on the grounds that the verdict is contrary 

to the weight of the evidence, concedes that there is sufficient 

evidence to sustain the verdict. Thus, the trial court is under no 

obligation to view the evidence in the light most favorable to the 

verdict winner. An allegation that the verdict is against the 

weight of the evidence is addressed to the discretion of the trial 

court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. A trial judge must 
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do more than reassess the credibility of the witnesses and allege 

that he would not have assented to the verdict if he were a 

juror. Trial judges, in reviewing a claim that the verdict is 

against the weight of the evidence do not sit as the thirteenth 

juror. Rather, the role of the trial judge is to determine that 

notwithstanding all the facts, certain facts are so clearly of 

greater weight that to ignore them or to give them equal weight 

with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal 

citations, quotations, and footnote omitted).

Stated differently, a court may award a new trial because the verdict is 

against the weight of the evidence only when the verdict is so contrary to 

the evidence as to shock one’s sense of justice,4“such that right must be 

given another opportunity to prevail.” Commonwealth v. Goodwine, 692 

A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight 

claim consists of a review of the trial court’s exercise of discretion, not a 

review of the underlying question of whether the verdict is against the 

weight of the evidence. Widmer, 744 A.2d at 753. When reviewing the 

____________________________________________

4 This Court has explained the notion of “shocking to one’s sense of justice” 

as follows:

When the figure of Justice totters on her pedestal, or when the 

jury's verdict, at the time of its rendition, causes the trial judge 

to lose his breath, temporarily, and causes him to almost fall 

from the bench, then it is truly shocking to the judicial 

conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004) 

(internal citations and quotations omitted).
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trial court’s determination, this Court gives the gravest deference to the 

findings of the court below. We review the court’s actions for an abuse of 

discretion. Id.

Simply stated, the jury’s verdict in this matter implicitly illustrates that 

the jury found the victim’s testimony that Appellant was at the scene of the 

crime and was holding the gun after the victim was shot to be credible and 

the testimony of the defense witnesses to the contrary to be incredible. The 

verdict also demonstrates that the jury found other evidence of guilt 

significant, including Appellant’s flight from Lebanon County, his statement 

to his friend that he would likely never return, and his Facebook post to 

Hasaan Hargett about the “hammer”. The trial court agreed with the jury’s 

assessment in denying Appellant’s post-sentence motion for a new trial 

based on the weight of the evidence. See Trial Court Opinion, pp. 10-12. 

Nothing about the verdict or the trial court’s reasoning shocks the 

conscience. Appellant’s weight of the evidence claim fails.

Next, Appellant argues the trial court erred in denying his motion in 

limine requesting the Commonwealth be precluded from discussing the 

circumstances of Appellant’s arrest, including his flight following the 

commission of the crime. See Appellant’s Brief, pp. 13-14. In a related 

claim, Appellant suggests that the trial court erroneously charged the jury 

regarding flight as consciousness of guilt. Id. Appellant is incorrect.

In reviewing the grant or denial of motions in limine, this Court applies 

an evidentiary abuse of discretion standard of review. Commonwealth v. 
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Stokes, 78 A.3d 644, 654 (Pa.Super.2013). “An abuse of discretion will not 

be found based on a mere error of judgment, but rather exists where the 

court has reached a conclusion which overrides or misapplies the law, or 

where the judgment exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will.” Commonwealth v. Alicia, 92 A.3d 

753, 760 (Pa.2014). 

This Court has stated the well-established standard of review for 

admission of evidence claims as follows:

The admission or exclusion of evidence is within the sound 

discretion of the trial court, and in reviewing a challenge to the 

admissibility of evidence, we will only reverse a ruling by the 

trial court upon a showing that it abused its discretion or 

committed an error of law. Thus, [this Court’s] standard of 

review is very narrow. To constitute reversible error, an 

evidentiary ruling must not only be erroneous, but also harmful 

or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012). Further, as 

previously stated, evidence of flight is permissible for the purpose of 

establishing guilty knowledge. See Gooding, supra; see also

Commonwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa.Super.2005) 

(“where evidence exists that a defendant committed a crime, knew he was 

wanted, and fled or concealed himself, such evidence is admissible to 

establish consciousness of guilt.”). 

Additionally, “[w]hen reviewing the propriety of a jury charge, an 

appellate court examines the charge as a whole. The trial court has broad 

discretion in formulating jury instructions, as long as the law is presented to 
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the jury in a clear, adequate, and accurate manner.” Lukowich, 875 A.2d 

at 1174 (internal citation omitted).

Here, the trial court explained its decision to allow evidence of 

Appellant’s flight following the crime as follows:

In this case, [Appellant] abruptly left his home in Lebanon 

County. In communication [Appellant] had with Hasaan Hargett, 

[Appellant] indicated he might never be returning. [Appellant’s] 

abrupt relocation away from Lebanon County coincided to the 

day with the shooting that permanently paralyzed Victim. Under 

such circumstances, it was permissible for the jury to infer that 

[Appellant] had a guilty conscience. If in fact there were other 

possible explanations for [Appellant’s] flight, [Appellant] was at 

liberty to provide those explanations to the jury and we clearly 

communicated this to [Appellant’s] counsel. Ultimately, we 

determined that it was for the jury to decide whether flight 

occurred and, if so, how flight should be considered. 

Trial Court Opinion, pp. 15-16. 

We discern no abuse of discretion in the trial court’s admission of flight 

evidence. We further conclude that the trial court properly instructed the 

jury regarding its consideration of the evidence of flight.5 Accordingly, 

Appellant’s flight-related evidentiary and jury charge claims fail.

____________________________________________

5 At the end of the trial, the court instructed the jury:

Now in this case you heard some evidence that could possibly 

lead you to believe that [Appellant] fled after this crime 

occurred. It’s up to you to decide whether [Appellant] fled or he 

did not flee. That’s your decision. If you find that [Appellant] 

fled after the crime was committed, that is evidence of what the 

law terms consciousness of guilt. The law recognizes that people 

who are guilty will have a tendency to run away and flee after 

they commit something that they knew was wrong. And you can 

(Footnote Continued Next Page)
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Appellant also claims that the trial court erred by precluding defense 

counsel from drawing a direct link in closing between Anthony DeJesus’ 

aggravated assault and person not to possess firearms convictions and a 

suggestion that Anthony DeJesus was the shooter in this case. See

Appellant’s Brief, pp. 15. Appellant is again incorrect.

At trial, Anthony DeJesus testified that he was then incarcerated for 

convictions on two counts of aggravated assault and persons not to possess 

firearms. See N.T. 8/8&9/2013, p. 169. Prior to closing arguments, the 

Commonwealth moved the trial court to preclude defense counsel from 

arguing that Anthony DeJesus, by virtue of his convictions, was more likely

than Appellant to have committed the crime in the instant matter. See N.T. 

8/8&9/2013, pp. 203-207. The court granted the Commonwealth’s motion, 

stating:

(Footnote Continued) _______________________

use [Appellant’s] flight as evidence of his guilty [conscience] if 

you find that he fled. However, the law also recognizes that 

there are other reasons beyond a reasonable doubt that could 

lead a person to try to avoid the police. You must consider all of 

the evidence. You must decide whether in fact this [Appellant] 

did flee and if you find that he fled whether he did so out of 

guilty [conscience] or for some other reason having nothing to 

do with this crime. But if you find that he did flee and you find 

that he did so because of a guilty [conscience] you can consider 

that as evidence in this case. 

N.T. 8/8&9/2013, pp. 249-250. When read as a whole, this instruction 

clearly, adequately, and correctly advised the jury that it could consider the 

evidence of flight as demonstrating Appellant’s consciousness of guilt, but 

that it was not required to do so.
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I’m not going to let [defense counsel] draw a direct link between 

the firearms conviction and this event because the evidence does 

not establish any such link. So I’m not going to allow [defense 

counsel] to specifically say Anthony DeJesus did this because he 

did it in the past.

N.T. 8/8&9/2013, p. 206. 

Initially, we note that defense counsel did not lodge an objection to 

the trial court’s ruling limiting the defense closing regarding the use of 

Anthony DeJesus’ criminal record, and, accordingly, Appellant waived this 

claim. See Commonwealth v. Baumhammers, 960 A.2d 59, 84 

(Pa.2008) (“the absence of a specific contemporaneous objections renders 

the appellant’s claim waived.”). Further, because no trial testimony or 

evidence placed a weapon in Anthony DeJesus’ hands on the evening in 

question, we agree with the trial court’s assessment that the evidence 

presented did not warrant an argument relating in any way to Anthony 

DeJesus’ prior convictions. Additionally, because Pennsylvania’s Rules of 

Evidence expressly state that “evidence of a crime, wrong, or other act is 

not admissible to prove a person’s character in order to show that on a 

particular occasion the person acted in accordance with the character[,]” 

such argument in closing would have been improper. Pa.R.E. 404(b). 

Accordingly, we discern no abuse of discretion in limiting defense counsel’s 

use of Anthony DeJesus’ criminal convictions in his closing argument.6

____________________________________________

6 We note that the trial court did not bar defense counsel from suggesting 

that Anthony DeJesus, or any individual whom the evidence indicated was 

(Footnote Continued Next Page)
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Finally, Appellant claims the trial court erred in sentencing him to the 

top of the standard range of the sentencing guidelines and running the 

sentence consecutive to Appellant’s sentence in another matter. See

Appellant’s Brief, pp. 16-17. 

This claim raises a challenge to the discretionary aspects of Appellant’s 

sentence. “Challenges to the discretionary aspects of sentencing do not 

entitle a petitioner to review as of right.” Commonwealth v. Allen, 24 

A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a 

discretionary challenge, an appellant must comply with the following 

requirements:

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

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, Pa.R.A.P. 2119(f); and (4) 

whether there is a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code.

Allen, 24 A.3d at 1064.

Appellant in the present case filed a timely notice of appeal, and 

preserved his issues in a motion for reconsideration of sentence. Further, 

(Footnote Continued) _______________________

present on the night in question, committed the crime. See N.T. 

8/8&9/2013, p. 203. The trial court merely precluded counsel from arguing 

that Anthony DeJesus’ prior convictions could be viewed as proof that he had 

committed the crime. See N.T. 8/8&9/2013, pp. 204-207.
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Appellant’s brief includes a concise statement of the reasons relied upon for 

allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p. 

9. Accordingly, we now determine whether Appellant has raised a 

substantial question for review and, if so, proceed to a discussion of the 

merits of the claim. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 

522 A.2d 17 (Pa.1987).

In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial 

court imposed an unreasonable sentence because it based the sentence 

solely on defendant’s lack of remorse at sentencing. See Appellant’s Brief, 

p. 9.7 Importantly, Appellant does not argue that the sentencing court relied 

upon any impermissible factors in sentencing, relied solely on the severity of 

the crime committed,8or sentenced him beyond statutory limits. Instead, 

____________________________________________

7 We note that the trial court sentenced Appellant in another matter, Docket 

CP-38-CR-175-2013, on August 28, 2013 as well. Appellant herein also 

claims that the trial court erred in deciding to run his 1 to 5 year sentence in 

the case consecutive to the 20 to 40 year sentence in the instant case. 

Because the trial court ordered Appellant to serve the sentence in this case 

first, no claim exists that the court erred in sentencing on this matter 

consecutive to another sentence. We note, however, that even if the 

sentence order was reversed, and the instant sentence were to be served 

consecutive to the 1 to 5 year sentence in Docket CP-38-CR-175-2013, such 

a claim would not raise a substantial question for our review. See 

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim 

that the consecutive nature of sentences violates the Sentencing Code fails 

to raise a substantial question for review). 

 

8 We note that a claim that a sentencing court relied solely on the severity of 

the crime raises a substantial question for review. Commonwealth v. 

Macias, 968 A.2d 773, 776 (Pa.Super.2009).
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he alleges that the sentencing court focused solely on his lack of remorse at 

the sentencing hearing in imposing sentence. Id. To the extent Appellant’s 

claim is that the trial court viewed his silence at sentencing as a lack of 

remorse and relied solely on that silence in sentencing, this claim does raise 

a substantial question for appellate review. See Commonwealth v. 

Bowen, 975 A.2d 1120 (Pa.Super.2009). We will therefore address the 

merits of Appellant’s discretionary aspects of sentencing claim.

If this Court grants appeal and reviews the sentence, the 

standard of review is well-settled: sentencing is vested in the 

discretion of the trial court, and will not be disturbed absent a 

manifest abuse of that discretion. An abuse of discretion 

involves a sentence which was manifestly unreasonable, or 

which resulted from partiality, prejudice, bias or ill will. It is 

more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006) 

(citations omitted).

Our review of the sentencing transcript reveals that the lower court did 

not abuse its discretion. Instead, the trial court imposed a sentence that 

was consistent with the protection of the public, took into account the 

gravity of the offense as it related to the impact on the life of the victim and 

on the community, and considered the Appellant’s rehabilitative needs, as 

required by 42 Pa.C.S. § 9721(b).
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At sentencing, the trial court explained it considered the presentence 

investigative report,9the nature of Appellant’s actions, the consequences of

Appellant’s actions (including the victim’s injuries), the efforts of Appellant 

and his friends to cover up the crime and thwart the police investigation, the 

continuing danger Appellant presents to society, the arguments of counsel, 

and the testimony received at the sentencing hearing. N.T. 8/28/2013, pp. 

7-14. Finally, the court sentenced Appellant to a standard range sentence 

within the statutory maximum.10 See Commonwealth v. Moury, 992 A.2d 

162, 171 (Pa.Super.2010) (“[W]here a sentence is within the standard range 

of the guidelines, Pennsylvania law views the sentence as appropriate under 

the Sentencing Code.”). We find no abuse of discretion.

Given the foregoing, Appellant’s claim that the trial court relied solely 

on his lack of remorse in sentencing fails.

Judgment of sentence affirmed. 

____________________________________________

9 We note that, where a sentencing court had the benefit of a presentence

investigation report, we can assume the sentencing court was aware of 

relevant information contained therein and weighed that information along 

with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171 

(Pa.Super.2010).

10 The upper level of the sentencing guidelines’ standard range for attempted 

murder involving serious bodily injury is the statutory limit regardless of an 

offender’s prior record score. See 204 Pa.Code § 303.16. The statutory 

maximums for first degree murder, second degree murder, and third degree 

murder are death sentence/life imprisonment, life imprisonment, and 40 

years, respectively. See 18 Pa.C.S. § 1102.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2014