J-S70006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN BENSON,

Appellant No. 2383 EDA 2014

Appeal from the Judgment of Sentence October 19, 2011

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0005154-2010

BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED December 18, 2015

Appellant, John Benson, appeals nunc pro tunc from the judgment of 

sentence imposed pursuant to his jury conviction of criminal attempt to 

commit murder of the first degree, aggravated assault, robbery, 

endangering the welfare of children, retail theft, and conspiracy to commit 

retail theft.1 We affirm.

We take the following factual and procedural background from our 

independent review of the record and the trial court’s March 9, 2012 opinion. 

On May 4, 2010, the Commonwealth charged Appellant with the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 901(a), 2702(a), 3701(a)(1)(ii), 4304(a)(1), 3929(a)(1), 

and 903(a)(1), respectively.
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aforementioned crimes, which arose from his robbery of the jewelry store 

owned by complainant, Yaniv Cohen. Appellant’s jury trial commenced on 

July 26, 2011.

The trial court described the testimony and evidence received at trial 

as follows:

Mr. [] Cohen . . . testified that at approximately 3:00 p.m. 

on February 27, 2010, he was in his store with only two other 

people, an employee named Mr. [Bouchaib] Chakir and an 

unidentified jewelry wholesaler, when he buzzed in [Appellant], 

accompanied by a woman [named Sheakia Stubbs,] and child, 

through the security door. (See N.T. Trial, 7/26/11, at 84-87, 

166). Mr. Cohen attended to them, then Mr. Chakir took over 

when Mr. Cohen went to speak with the wholesaler. (See id. at 

88-90). Shortly afterwards, Mr. Cohen buzzed the door to 

permit the woman to exit. Instead of leaving, the woman 

remained, holding the door open. (See id. at 90, 159-60). He 

then saw [Appellant] run out the door with Mr. Chakir in pursuit. 

Noticing that rings were missing from the case, Mr. Cohen also 

gave chase, catching up with them soon after. (See id. at 92-

94, 161-62).

Mr. Cohen testified that as he approached [Appellant], who 

was carrying the child, asking him to return the missing rings, 

[Appellant “slice[d] [him and] cut [him] with the knife.”] (Id. at 

99; see id. at 98). [When Appellant then “tried to stab [him] 

again[,]” (id. at 98),] Mr. Cohen retreated across the street still 

asking for the return of the rings, at which time [Appellant] 

“dropped the child and ran away.” (Id. at 94; see id. at 98[-

100], [] 165). Mr. Cohen then took the child to the nearby 

police mini station. After reporting the robbery, thinking he had 

sustained a small cut, Mr. Cohen returned to his store to secure 

his merchandise. (See id. at 101-02, 118, 133, 151).

At the insistence of the [p]olice, Mr. Cohen was taken to 

Thomas Jefferson University Hospital for treatment where he 

learned of the seriousness of his wound testifying, “I understand 

that [] I was very, very close to [] dead. I was very, very 

close[.]” (Id. at 104; see also N.T. Trial, 8/01/11, at 49). At 

trial, Mr. Cohen displayed a permanent scar, approximately six 
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inches in length, running along the left side of his throat. (See

N.T. Trial, 7/26/11, at 106-07, 125; Exhibit C-8).

Mr. Cohen testified that he later determined that 

approximately 15 to 18 rings, valued at $70,000 to $80,000, 

were taken from the case. (See N.T. Trial, 7/26/11 at [129]). 

The rings were never recovered. (See id. at 130).

Mr. [] Chakir testified that on February 27, 2010, he was 

in the store when [Appellant] came in asking to see a ring. 

[Appellant] was accompanied by a woman and a child. (See id.

at 175, 177). When Mr. Chakir unlocked the display case to 

show [Appellant] a ring of interest to him, there was no one else 

in the store standing near it. He testified [Appellant] then 

dropped the ring on the floor behind the counter. As Mr. Chakir 

bent down to pick it up, [Appellant] reached over the open 

showcase and removed numerous rings from their display 

platforms. (See id. at 178-79, 190-91, 196, 211). When Mr. 

Chakir stood up, he noticed an empty space in the showcase and 

[Appellant] fleeing out the door that was still being held open by 

the woman. (See id. at 180, 198-99, 203).

Mr. Chakir testified that he then ran after them. (See id.

at 180). When he caught up with them several doors away, 

[Appellant] was carrying the child and the woman was carrying 

shopping bags. [Appellant] turned to Mr. Chakir telling him to 

“go away or I’m going to shoot you.” (Id.; see id. at 181-82, 

184, 205). At the end of the block they parted ways, with Mr. 

Chakir continuing to follow [Appellant] down a small street. 

(See id. at 183, 185, 211).

Mr. Chakir testified that after Mr. Cohen caught up “we 

were running after him and then my boss started to catch him 

with his hand, and he just, I like saw bleeding, blood and all the 

stuff there.” (Id. at 183). Mr. Chakir called 911 and continued 

to follow [Appellant]. On encountering a police officer, they both 

pursued [Appellant] until losing sight of him. (See id. at 185).

* * *

Detective Robert Spaduccini[, the assigned investigator in 

this matter, arrested Appellant and Ms. Stubbs on March 1, 

2010. (See N.T. Trial, 8/01/11, at 18)]. [He] took a statement 

from Ms. Stubbs immediately after her arrest in which she 
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admitted going into Mr. Cohen’s jewelry store. Detective 

Spaduccini testified that she told him that while they were in the 

store an altercation broke out and they left. Once outside they 

were confronted by a man from the store wanting to know where 

the rings were. After that she and [Appellant] split up and she 

went home without her son. (See id. at 42-43). When he 

asked her if [Appellant] told her about the attack on Mr. Cohen, 

she answered, “Yes. He said he hit him, like [] with a razor.” 

(Id. at 44).

(Trial Court Opinion, 3/09/12, at 3-6) (record citation formatting and some 

punctuation provided).

On August 2, 2011, the jury convicted Appellant of the aforementioned 

charges. On October 19, 2011, the court sentenced him to an aggregate 

term of not less than thirty nor more than seventy-two years’ incarceration. 

On November 18, 2011, Appellant timely appealed, and, on January 24, 

2012, he filed a timely Rule 1925(b) statement of errors complained of on 

appeal pursuant to the court’s order. See Pa.R.A.P. 1925(b). The trial court 

filed a Rule 1925(a) opinion on March 9, 2012. See Pa.R.A.P. 1925(a). On 

May 22, 2012, this Court dismissed the appeal for Appellant’s failure to file a 

brief.

On August 10, 2012, Appellant filed a timely petition pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On October 

2, 2013, appointed counsel filed an amended petition seeking reinstatement 

of Appellant’s right to file a post-sentence motion and direct appeal nunc pro 

tunc. On May 30, 2014, the Commonwealth filed a motion to dismiss in 

which it consented to Appellant’s request to have his direct appeal rights 
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reinstated, but objected to the reinstatement of his right to file postsentence motions nunc pro tunc. On July 28, 2014, the court entered an 

order reinstating Appellant’s right to file an appeal nunc pro tunc, and 

denying his request to file a post-sentence motion nunc pro tunc. Appellant 

timely appealed on August 12, 2014.2

Appellant raises five questions for our review:

1. Whether the evidence was sufficient to establish beyond a 

reasonable doubt that [Appellant] was guilty of robbery rather 

than retail theft?

2. Whether the trial [court] erred in failing to grant a motion 

for judgment of acquittal on the charge of attempted murder 

where the evidence failed to show malice or a specific intent to 

kill?

3. Whether the trial [court] committed error by failing to 

reinstate [Appellant’s] right to file a Post Sentence Motion 

challenging the sentence imposed when he received an 

aggregate sentence of [thirty] to [seventy-two] years[’] 

incarceration?

4. Whether the sentence imposed by the court was illegal 

where he was sentenced on both [r]obbery and [c]onspiracy (to 

commit [r]etail [t]heft), and sentenced on [a]ttempted [m]urder 

which lacked sufficient evidence, or where the sentences should 

merge where the charges arose from one incident?

5. Whether the sentence imposed by the trial court was an 

illegal sentence in violation of Pennsylvania Constitution (Pa. 

Const. art. I, § 13), when the U.S. Constitution (U.S. Const. 

amend. VIII), 42 Pa.C.S.[A.] § 9721, and 42 P[a].C.S.[A.] § 

____________________________________________

2 Appellant filed a timely Rule 1925(b) statement on September 29, 2014. 

See Pa.R.A.P. 1925(b). He filed an untimely supplemental Rule 1925(b) 

statement on October 1, 2014. The court filed an opinion on January 30, 

2015 supplementing its March 9, 2012 opinion. See Pa.R.A.P. 1925(a). 
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9781(d) where the sentence imposed was excessive and not 

accurately based on [Appellant’s] prior record or his prospect of 

rehabilitation, as balanced against the need to protect society?

(Appellant’s Brief, at 3).3

In Appellant’s first issue, he challenges the sufficiency of the evidence 

to establish the crime of robbery. (See id. at 3, 13). This issue is waived 

and would not merit relief.

It is well-settled that:

when challenging the sufficiency of the evidence on appeal, the 

Appellant’s 1925 statement must “specify the element or 

elements upon which the evidence was insufficient” in order to 

preserve the issue for appeal. [Commonwealth v.] Williams, 

959 A.2d [1252,] 1257 [(Pa. Super. 2008)] (quoting 

Commonwealth v. Flores, 921 A.2d 517, 522-23 (Pa. Super. 

2007)). . . . Here, Appellant . . . failed to specify which elements 

he was challenging in his 1925 statement . . . . While the trial 

court did address the topic of sufficiency in its opinion, we have 

held that this is “of no moment to our analysis because we apply 

Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a 

selective manner dependent on an appellee’s argument or a trial 

court’s choice to address an unpreserved claim.” Id. at 1257 

(quoting Flores at 522-23). 

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal 

denied, 3 A.3d 670 (Pa. 2010).

In the case before us, Appellant’s Rule 1925(b) statement does not 

identify which element or elements of robbery the Commonwealth allegedly 

____________________________________________

3 The Commonwealth has not filed a brief in this matter, although we 

granted two extensions to do so.
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failed to prove. (See Statement of Matters Complained of on Appeal, 

9/29/14, at 1-2 ¶ 2). Specifically, his statement claims that:

the evidence was [not] sufficient to establish beyond a 

reasonable doubt that [Appellant] was guilty of robbery . . . 

where he was not seen taking the rings or display, he was never 

seen with the jewelry or display cases, the items were not 

recovered from him, and where the co-defendant’s statement 

indicated that neither she nor [Appellant] removed jewelry from 

the store[.] 

(Id.). Accordingly, because his Rule 1925(b) statement fails to identify 

which specific elements the Commonwealth allegedly failed to prove, 

Appellant’s challenge to the sufficiency of the evidence is waived. See 

Gibbs, supra at 281.

Moreover, even if Appellant had not waived his sufficiency claim, it 

would not merit relief. Appellant argues that “[his] illegal act constituted a 

[r]etail [t]heft and not a [r]obbery.” (Appellant’s Brief, at 14). We disagree.

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying [the above] test, 

we may not weigh the evidence and substitute our judgment for 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

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

part or none of the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation 

omitted).

Pursuant to 18 Pa.C.S.[A.] § 3701(a)[(1)](ii), “a person is 

guilty of robbery if, in the course of committing a theft, he: . . . 

(ii) threatens another with or intentionally puts him in fear of 

immediate serious bodily injury.” The law of this Commonwealth 

defines serious bodily injury as “bodily 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.] When 

reviewing a judgment under this subsection, this Court will look 

to the nature of the defendant’s threats, and not to the 

subjective state of mind of the victim. 

Commonwealth v. Kubis, 978 A.2d 391, 397-98 (Pa. Super. 2009) (case 

citations omitted). Further, “[a]n act shall be deemed ‘in the course of 

committing a theft’ if it occurs in an attempt to commit theft or in flight after 

the attempt or commission.” 18 Pa.C.S.A. § 3701(a)(2).

In the present case, in finding the evidence sufficient to support 

Appellant’s robbery conviction, the trial court observed:

There is little doubt, from the testimony of both Mr. Cohen 

and Mr. Chakir, that the attack occurred while both men were in 

pursuit of [Appellant]. . . . Mr. Chakir testified that immediately 

after the theft he pursued [Appellant] out of the store and 

continued to maintain contact with him until after Mr. Cohen was 

attacked. Similarly, after he caught up, Mr. Cohen also 

continued to maintain contact with [Appellant] until after he was 

attacked.

* * *

Whether or not Mr. Cohen or Mr. Chakir saw [Appellant’s] 

weapon is irrelevant. It is clear from the record that [Appellant] 
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attacked Mr. Cohen with a weapon that struck a vital part of his 

body. The jury’s specific finding that [Appellant] inflicted serious 

bodily injury makes it abundantly clear that the Commonwealth 

met its burden. [Appellant’s] [sufficiency challenge] is further 

weakened by Mr. Cohen’s testimony that [Appellant] “tried to 

stab me again” after the initial attack. (N.T. Trial, 7/26/11, at 

98). Not only did Mr. Cohen sustain serious bodily injury, but he 

was aware of [Appellant’s] continued threat to inflict further 

injury.

(Trial Ct. Op., 3/09/12, at 11-12) (record citation formatting provided).

After our independent review of the record, we agree with the trial 

court’s finding that the evidence was sufficient to sustain Appellant’s robbery 

conviction. See Harden, supra at 111; Kubis, supra at 397-98. 

Appellant’s first issue would lack merit.

In his second claim, Appellant argues that the trial court erred in 

denying his motion for judgment of acquittal on the charge of attempted 

murder. (See Appellant’s Brief, at 17-19). Specifically, Appellant maintains 

that, “[w]hile the act of swinging a cutting object at an individual which 

resulted in . . . arguably serious bodily injury and clearly an aggravated 

assault, the act does not rise to attempted murder in the absence of malice 

or specific intent to kill.” (Id. at 18). Appellant’s claim lacks merit.4

____________________________________________

4 Appellant appears to confuse the legal theories of sufficiency and weight of 

the evidence. (See Appellant’s Brief, at 17-18). However, it is clear from 

the record and the remainder of Appellant’s argument on this issue that it is 

his intent to challenge the sufficiency of the evidence, not its weight. (See

id. at 18-19; see also N.T. Trial, 8/01/11, at 66-67 (Appellant’s oral motion 

for judgment of acquittal challenging sufficiency of evidence to support 

attempted murder charge)). Moreover, we note that, even if Appellant had 

(Footnote Continued Next Page)
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Our standard of review of a trial court’s denial of a motion for 

judgment of acquittal is as follows: “A motion for judgment of acquittal

challenges the sufficiency of the evidence to sustain a conviction on a 

particular charge, and is granted only in cases in which the Commonwealth 

has failed to carry its burden regarding that charge.” Commonwealth v. 

Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014), appeal denied, 95 A.3d 276 

(Pa. 2014) (citation omitted).

Here, Appellant was convicted of criminal attempt to commit murder of 

the first degree. “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.A. § 901(a). Pursuant to section 

2502(a) of the Crimes Code, “[a] criminal homicide constitutes murder of 

the first degree when it is committed by an intentional killing.” 18 Pa.C.S.A. 

§ 2502(a). An intentional killing is a “[k]illing by means of poison, or by 

lying in wait, or by any other kind of willful, deliberate and premeditated 

killing.” 18 Pa.C.S.A. § 2502(d). First degree murder requires “malice and 

specific intent to kill on the part of the defendant.” Commonwealth v. 

Sanchez, 907 A.2d 477, 486 (Pa. 2006), cert. denied, 551 U.S. 1106 

(2007) (citation omitted). 

(Footnote Continued) _______________________

intended to raise a weight claim, it would have been waived for his failure to 

file a post-sentence motion. See Commonwealth v. Barnhart, 933 A.2d 

1061, 1066 (Pa. Super. 2007); see also Pa.R.Crim.P. 607(A).
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It is well-settled that:

Malice under the law comprehends not only a particular illwill, but every case where there is wickedness of disposition, 

hardness of heart, cruelty, recklessness of consequences, and a 

mind regardless of social duty, although a particular person may 

not be intending to be injured. . . . Otherwise stated, malice may 

be found where the defendant has consciously disregarded an 

unjustified and extremely high risk that [his] conduct might 

cause death or serious injury to another.

Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008), appeal 

denied, 964 A.2d 1 (Pa. 2009) (citations and quotation marks omitted). 

Further:

[s]pecific intent may be inferred from the use of a deadly 

weapon on a vital part of the victim’s body. . . . [T]he period of 

reflection required for premeditation to establish the specific 

intent to kill may be very brief; in fact the design to kill can be 

formulated in a fraction of a second. Premeditation and 

deliberation exist whenever the assailant possesses the 

conscious purpose to bring about death. . . .

Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009), cert. denied, 

560 U.S. 909 (2010) (citations and quotation marks omitted).

Here, the evidence established that Appellant slit the left side of Mr. 

Cohen’s throat while fleeing from the scene of the robbery. Based on the 

above well-settled law, this evidence was sufficient to prove that Appellant 

“consciously disregarded an unjustified and extremely high risk that [his] 

conduct might cause death or serious injury to another,” Geiger, supra at 

90, and his “[s]pecific intent may be inferred from the use of a deadly 

weapon on a vital part of the victim’s body.” Rivera, supra at 1220. 

Accordingly, the trial court properly denied Appellant’s motion for judgment 
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of acquittal of his attempted murder conviction. See Emanuel, supra at 

894. Appellant’s second issue lacks merit.

In his third claim, Appellant maintains that the PCRA court erred by 

denying his petition alleging ineffectiveness of counsel, resulting in it “failing 

to reinstate his right to file a [p]ost [s]entence [m]otion[.]” (Appellant’s 

Brief, at 19).5 Specifically, Appellant argues that “[t]he PCRA court’s denial 

was improper where trial counsel failed to adequately represent [him], i.e., 

provided ineffective assistance of counsel, by failing to file a timely 

post[-]sentence motion to preserve Appellant’s appellate claims.” (Id. at 

21) (emphasis added).

It is well-settled that, “as a general rule, claims of ineffective 

assistance of counsel will not be entertained on direct appeal.” 

Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (citation 

omitted). 

As the law currently stands, a valid waiver of PCRA review 

is a prerequisite to appellate review of ineffectiveness claims on 

direct appeal. Because our Supreme Court and this Court en 

banc have instructed that ineffectiveness claims are generally 

____________________________________________

5 Appellant’s third through fifth issues were raised in his untimely 

supplemental Rule 1925(b) statement. (See Supplemental Rule 1925(b) 

Statement, 10/01/14, at 1). However, Rule 1925(b) provides, in pertinent 

part, that “[i]n extraordinary circumstances, the judge may allow for the 

filing of a Statement or amended or supplemental Statement nunc pro tunc.” 

Pa.R.A.P. 1925(b)(2). Here, because Appellant’s issues were raised in his 

PCRA petition, the court addressed the claims raised in his supplemental 

statement. (See Trial Court Opinion, 1/30/15, at 12-13). Therefore, we will 

not deem these issues waived on this basis.
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not reviewable on direct appeal, before reviewing such a claim 

on direct appeal it is incumbent upon this Court to determine 

whether a defendant expressly, knowingly and voluntarily 

waived his or her right to PCRA review. . . .

Commonwealth v. Baker, 72 A.3d 652, 665-66 (Pa. Super. 2013), appeal 

denied, 86 A.3d 231 (Pa. 2014) (citations and footnote omitted).

In this case, Appellant moved for reinstatement of his right to file 

post-sentence motions in his PCRA petition, alleging ineffectiveness of trial 

counsel. (See PCRA Petition, 8/10/12, at 3; Amended PCRA Petition, 

10/02/13, at unnumbered pages 4-9). He has not, at any time, waived his 

right to PCRA review. Accordingly, we are precluded from reviewing 

Appellant’s third issue in this direct appeal. See Baker, supra at 665-66.

Appellant’s fourth claim of error is that “the sentence imposed by the 

court was illegal where . . . the sentences should merge [because] the 

charges arose from one incident[.]” (Appellant’s Brief, at 21; see id. at 21-

23).6 He specifically argues, “where the robbery statute provides for the 

infliction of serious bodily injury, he cannot be sentenced on both robbery 

and attempted murder.” (Id. at 23). Appellant’s fourth issue lacks merit.

In reviewing an illegal sentence claim, [t]he issue . . . is a 

question of law and, as such, our scope of review is plenary and 

____________________________________________

6 Appellant also again contends that the jury wrongly convicted him of 

robbery and attempted murder, thus making his sentence illegal. (See

Appellant’s Brief, at 22-23). Because we already concluded that the 

evidence was sufficient to establish these crimes, we will not address this 

allegation.
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our standard of review is de novo. Section 9765 of our Judicial 

Code provides:

No crimes shall merge for sentencing purposes 

unless the crimes arise from a single criminal act and 

all of the statutory elements of one offense are 

included in the statutory elements of the other 

offense. Where crimes merge for sentencing 

purposes, the court may sentence the defendant 

only on the higher graded offense.

42 Pa.C.S.A. § 9765. This Court has assessed a merger issue by 

examining whether the charges arose out of a single set of facts 

and whether all the statutory elements of one offense coincide 

with the statutory elements of the other offense.

Commonwealth v. Lomax, 8 A.3d 1264, 1267-68 (Pa. Super. 2010) (case 

citations and quotation marks omitted).

As previously stated by the Pennsylvania Supreme Court:

The elements of robbery as applied to this case . . . are[] 

infliction of serious bodily injury while committing a theft and the 

elements of attempted murder are taking a substantial step 

toward an intentional killing. Once again, the crimes do not 

merge, for robbery requires proof of a theft, which attempted 

murder does not; and attempted murder requires taking a 

substantial step toward an intentional killing, which robbery does 

not.

Commonwealth v. Belsar, 676 A.2d 632, 635 (Pa. 1996) (citation 

omitted); see also Commonwealth v. Ward, 856 A.2d 1273, 1276 (Pa. 

Super. 2004) (observing that “attempted murder [does] not merge into 

robbery for sentencing purposes.”) (citation omitted). 

Here, in pertinent part, the trial court imposed consecutive standard 

range sentences for attempted murder and robbery. (See Trial Ct. Op., 

1/30/15, at 15). Because the two charges do not merge for sentencing 
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purposes, see Belsar, supra at 635, the trial court did not commit an error 

of law in imposing separate sentences on the robbery and attempted murder 

conviction. See Lomax, supra at 1267.7

In Appellant’s fifth and final issue, he alleges that “[t]he sentence of 

[thirty] to [seventy-two] years imposed by the court was excessive[.]” 

(Appellant’s Brief, at 26). This claim is waived and would not merit relief.

Appellant’s issue challenges the discretionary aspects of his sentence, 

which “must be considered a petition for permission to appeal.” 

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation 

omitted). To preserve claims relating to the discretionary aspects of a 

sentence properly, an appellant must first raise them with the trial court. 

See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008), 

affirmed, 17 A.3d 332 (Pa. 2011).

Here, Appellant failed to file a post-sentence motion raising a 

challenge to the discretionary aspects of sentence in the trial court. 

Therefore, we deem Appellant’s claim waived. See id. 

Moreover, the issue would not merit relief. We observe that:

When challenging the discretionary aspects of the sentence 

imposed, an appellant must present a substantial question as to 

the inappropriateness of the sentence. Two requirements must 

____________________________________________

7 Moreover, we note for the sake of completeness that, for sentencing 

purposes, the trial court in fact did properly merge the attempted murder 

charge with the aggravated assault charge, and the robbery charge with the 

retail theft charge. (See N.T. Sentencing, 10/19/11, at 10-11).
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be met before we will review this challenge on its merits. First, 

an appellant must set forth in his brief a concise statement of 

the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence. Second, the appellant 

must show that there is a substantial question that the sentence 

imposed is not appropriate under the Sentencing Code. That is, 

[that] the sentence violates either a specific provision of the 

sentencing scheme set forth in the Sentencing Code or a 

particular fundamental norm underlying the sentencing process. 

We examine an appellant’s Pa.R.A.P. 2119(f) statement to 

determine whether a substantial question exists. Our inquiry 

must focus on the reasons for which the appeal is sought, in 

contrast to the facts underlying the appeal, which are necessary 

only to decide the appeal on the merits.

Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (citations 

omitted) (emphases in original).

In this case, Appellant filed a Rule 2119(f) statement, in which he 

alleges that the trial court failed to consider the guidelines and all relevant 

sentencing factors, resulting in a “grossly excessive” sentence. (Appellant’s 

Brief, at 10). This issue raises a substantial question. See 

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012), appeal 

denied, 63 A.3d 776 (Pa. 2013). 

Our standard of review of a sentencing challenge is well-settled:

Sentencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, an 

abuse of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.
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Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal 

denied, 63 A.3d 774 (Pa. 2013) (citation omitted). 

Additionally, “the guidelines have no binding effect, create no 

presumption in sentencing, and do not predominate over other sentencing 

factors—they are advisory guideposts that are valuable, may provide an 

essential starting point, and that must be respected and considered; they 

recommend, however, rather than require a particular sentence.” Id. at 

727-28 (citation and footnote omitted).

Here, in imposing sentence, the trial court observed:

. . . I reviewed the presentence report, I’ve considered the 

arguments of counsel, I’ve recalled the testimony from the trial 

in part by going through the exhibits I have in my file as well as 

my notes from the trial.

The driving factor behind this sentence is the attempted 

murder charge. He was found guilty of slashing that store 

owner’s throat, passing a sharp instrument close to his carotid 

artery, close to his windpipe. Somehow he did not die.

* * *

A serious injury, a serious wound, a serious act. I’ve gone 

through the other charges to see what sentence would be 

appropriate if [Appellant] were not charged with the attempted 

murder. And based on his prior record score and the 

seriousness of those individual charges, I’ve imposed─about to 

impose what I believe to be appropriate for each of those 

charges.

(N.T. Sentencing, 10/19/11, at 20-22).

Based on the trial court’s analysis, our independent review of the 

record, and the fact that the court had the benefit of a presentence report, 
J-S70006-15

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we discern no abuse of discretion on the part of the trial court in imposing 

an aggregate sentence of not less than thirty nor more than seventy-two 

years’ incarceration. See Glass, supra at 727; see also Commonwealth 

v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009), appeal denied, 987 

A.2d 161 (Pa. 2009) (“Our Supreme Court has determined that where the 

trial court is informed by a pre-sentence report, it is presumed that the court

is aware of all appropriate sentencing factors and considerations, and that

where the court has been so informed, its discretion should not be

disturbed.”) (citation omitted). Appellant’s fifth claim, even if not waived, 

would not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/2015