J-S12018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TIMOTHY JONES,

Appellant No. 700 EDA 2014

Appeal from the Judgment of Sentence Entered on October 8, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0011990-2012

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 24, 2015

Appellant, Timothy Jones, appeals from the judgment of sentence 

entered on October 8, 2013, in the Philadelphia County Court of Common 

Pleas. We affirm.

The relevant facts of this matter were set forth by the trial court as 

follows:

[The charges filed against Appellant] arose out of a bar 

fight between Appellant and the decedent, Dijon Bowie 

(“Bowie”), also known as “Shiz”. On February 11, 2012, at 1:11 

A.M. a fight broke out between Appellant and Bowie inside of 

Whisper’s Inn bar located at the 7600 block of Ogontz Avenue in 

Philadelphia. Whisper’s Inn had a series of working surveillance 

cameras inside of the establishment. The fight lasted 

approximately 10-15 seconds before Terrence L. Stratton 

(“Stratton”), a patron at the bar, and other patrons of the bar 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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interceded and separated the two men, leading Bowie outside 

while Appellant was held inside. A patron of the bar that night 

attempted to block Appellant from exiting the building, however, 

Appellant went outside briefly before returning into the bar to 

retrieve items that fell from his person during the altercation. 

Appellant then exited the bar again to confront Bowie, who was 

still standing outside of the bar.

Outside of Whisper’s Inn, Bowie taunted the Appellant to 

continue the fight. Appellant drew a gun, pointed it at Bowie, 

and put it back in his pocket. Bowie taunted the Appellant again,

at which point, Appellant shot Bowie one (1) time in the neck 

and ran towards 76th Avenue. After Bowie was shot, Stratton, 

who had exited Whisper’s Inn directly after Appellant had 

retrieved his belongings, reentered the bar and yelled for the 

bartender to call the police because someone had been shot. 

Bowie was still breathing when police arrived on the scene at 

1:15 A.M. Bowie was transported to Albert Einstein Medical 

Center, where he was later pronounced dead at 1:29 A.M. by Dr. 

Salzman. Bowie’s cause of death was determined to be a single 

gunshot wound to the neck, and the manner of death was 

homicide.

Stratton and two other patrons of Whisper’s Inn were seen 

leaving the scene in a cream-colored Ford Taurus and were 

taken into custody later that night for questioning in connection 

with the shooting. After multiple attempts to locate Appellant, he 

was assigned to the Fugitive Unit on February 13, 2012. The 

dissemination of a wanted poster and coordinated efforts with 

U.S. Marshals nationwide lead to Appellant’s arrest on May 23, 

2012 in Rose Hall, North Carolina.

Trial Court Opinion, 9/23/14, at 3-4.

On August 12, 2013, the Appellant, Timothy Jones, was 

found guilty, by a jury sitting before [the trial] Court, of one (1) 

count each of Third Degree Murder, a felony of the first degree; 

Firearms not to be Carried Without a License, a felony of the 

third degree; Possession of Instruments of Crime, a 

misdemeanor of the first degree; and Carrying Firearms in Public 

in Philadelphia, a misdemeanor of the first degree. Appellant 

completed a waiver trial by stipulation for Persons not to Possess 

Firearms, a felony of the second degree; and was found guilty by 

[the trial] Court.
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On October 8, 2013, [the trial] Court sentenced the 

Appellant to twenty to forty (20-40) years [of] incarceration for 

the Third Degree Murder, plus five to ten (5-10) years [of] 

incarceration for the Persons not to Possess Firearms, plus three 

to six (3-6) years [of] incarceration for the Firearms not to be 

Carried Without a License, plus two to four (2-4) years [of] 

incarceration for Possession of Instruments of Crime, all to run 

consecutively. No further penalty was assessed on the Carrying 

Firearms in Public in Philadelphia charge. On October 16, 2013, 

Appellant filed a timely Post Sentence Motion which was denied 

by operation of law on February 18, 2014.

On March 4, 2014, the Appellant filed a Notice of Appeal. 

When the notes of testimony became available, [the trial] Court 

ordered the Appellant, pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(b) to file a self-contained and 

intelligible statement of errors complained of on appeal on March 

25, 2014. On April 9, 2014, counsel filed a timely 1925(b) 

Statement of Errors Complained of on Appeal[.]

Trial Court Opinion, 9/23/14, at 1-2.

On appeal, Appellant raises the following issues for this Court’s 

consideration:

[1.] Did the trial court commit an abuse of discretion by refusing 

to give the jury a concealment charge?

[2.] Did the trial court commit an abuse of discretion and impose 

an excessive sentence by ordering that the sentences imposed 

on the weapons offenses be served consecutively to one another 

and the sentence imposed on the murder charge?

[3.] Did the trial court committ [sic] an abuse of discretion in 

imposing a sentence outside the applicable sentencing guidelines 

range on the PIC charge because the court failed to provide 

reasons for exceeding the applicable sentencing guidelines range 

in violation of the applicable law?

Appellant’s Brief at 4 (full capitalization omitted). 
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In his first issue, Appellant argues that the trial court erred when it 

refused to instruct the jury on flight and concealment. Our scope and 

standard of review for a challenge to a trial court’s jury instruction is as 

follows:

In reviewing a challenge to the trial court’s refusal to give a 

specific jury instruction, it is the function of this Court to 

determine whether the record supports the trial court’s decision. 

In examining the propriety of the instructions a trial court 

presents to a jury, our scope of review is to determine whether 

the trial court committed a clear abuse of discretion or an error 

of law which controlled the outcome of the case. A jury charge 

will be deemed erroneous only if the charge as a whole is 

inadequate, not clear or has a tendency to mislead or confuse, 

rather than clarify, a material issue. A charge is considered 

adequate unless the jury was palpably misled by what the trial 

judge said or there is an omission which is tantamount to 

fundamental error. Consequently, the trial court has wide 

discretion in fashioning jury instructions. The trial court is not 

required to give every charge that is requested by the parties 

and its refusal to give a requested charge does not require 

reversal unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) 

(citation omitted). Additionally, a jury instruction regarding a particular 

defense is not warranted where the evidence does not support the 

instruction. Commonwealth v. Walker, 36 A.3d 1, 15 (Pa. 2011). A trial 

court may instruct the jury on flight and concealment when a person knows 

that he is a suspect in a crime and conceals himself, because such conduct is 

evidence of consciousness of guilt, which may along with other proof form 

the basis from which guilt may be inferred. Commonwealth v. Bruce, 717 
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A.2d 1033, 1039 (Pa. Super. 1998) (citing Commonwealth v. Hartey, 40, 

621 A.2d 1023, 1029 (Pa. Super. 1993)).

Appellant complains that the trial court should have instructed the jury 

on this issue because his defense was that he was not the shooter. 

Appellant alleges that Mr. Terry Stratton, an individual who attempted to 

break up the fight inside the bar and who asked the bartender to call an 

ambulance after the shooting, was actually the perpetrator. Appellant avers 

that Mr. Stratton, who was wearing a reversible vest on the night of the 

shooting, chose to invert the vest upon leaving the area. Appellant’s Brief at 

12. This, Appellant claims, reveals Mr. Stratton’s attempt to flee and 

conceal his identity from police. Id. at 17. Additionally, Appellant argues 

that his request for this jury instruction was supported by the testimony of a 

witness who claimed that it was Mr. Stratton who killed the victim. Id. at 

17. 

Appellant cites to Commonwealth v. Milligan, 693 A.2d 1313 (Pa. 

Super. 1997) as support for his claim that the court erred in refusing to give 

the flight and concealment instruction. Appellant’s Brief at 13. In Milligan, 

police were dispatched to a traffic accident. Upon arriving at the scene, the 

responding officer observed a single car with heavy front-end damage. The 

officer noted that there was damage to the windshield that was consistent 

with the driver’s head striking it. Moreover, the officer testified that there 

were two indentations in the windshield indicating that there was at least
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one other person in the car. The officer testified that he saw Mr. Milligan 

sitting across the street from the accident with lacerations to his mouth and 

head. However, bystanders told the officer that another individual had left 

the scene of the accident. During the minutes spent waiting for an 

ambulance, Mr. Milligan told the officer that he was a passenger in the 

damaged car. During this conversation, the officer noticed that Mr. Milligan 

smelled of alcohol, had slurred speech, and had bloodshot eyes. While Mr. 

Milligan gave conflicting statements regarding who was in the car, he twice 

denied that he was driving. Subsequently, in follow-up questions, the officer 

again asked if Mr. Milligan was driving, and Mr. Milligan answered in the 

affirmative. The officer opined that Mr. Milligan’s speech pattern and the 

content of his speech were due to intoxication and not injury. Milligan, 693 

A.2d at 1315-1316, 1318.

However, there was also testimony which established that prior to 

reaching the accident scene, the officer received a dispatch informing him 

that an individual was leaving the scene. The defense presented testimony 

from a man named Joseph Oliver. Mr. Oliver testified that prior to the 

accident, he and Robert Smith were passengers in the car. Mr. Oliver 

testified that after he got out, Mr. Smith and Mr. Milligan drove off, and Mr. 

Smith was driving. Mr. Oliver also testified that on the day following the 

accident, he saw Mr. Smith and noticed that Mr. Smith had severe cuts to 

his face. Finally, Mr. Oliver stated that, during this meeting with Mr. Smith, 
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Mr. Smith confessed that he had been driving Mr. Milligan’s car at the time 

of the accident, but he fled because he knew the police were coming. 

Milligan, 693 A.2d at 1318.

At trial, Mr. Milligan requested the trial court to give the jury the flight 

and concealment instruction regarding the driver who had fled. The trial 

court refused to give this instruction, and following Mr. Milligan’s conviction, 

he appealed to this Court. In addressing the issue on appeal, a panel of this 

Court stated as follows:

[I]t would appear that, once a defendant properly introduces 

evidence that someone else fled the crime scene, the trial court 

is duty bound to instruct the jury concerning the significance of 

this evidence. See [Commonwealth v. Birch, 644 A.2d 759, 

762 (Pa. Super. 1994)]. This decision is also compatible with 

Pennsylvania’s Suggested Standard Jury Instruction on flight, 

which, to a great extent, is neutral in its application to a 

defendant or another party. The suggested instruction reads, in 

pertinent part, as follows:

Generally speaking when a crime has been 

committed and a person thinks he is or may be 

accused of committing it and he flees or conceals 

himself such flight or concealment is a circumstance 

tending to prove the person is conscious of guilt. 

Such flight or concealment does not necessarily show 

consciousness of guilt in every case. A person may 

flee or hide for some other motive and may do so 

even though innocent. Whether the evidence of flight 

or concealment in this case should be looked at as 

tending to prove guilt depends upon the facts and 

circumstances of this case especially upon motives 

which may have prompted the flight or concealment.

Pa.S.S.J.I. (Crim) 3.14.
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Milligan, 693 A.2d at 1317-1318. This Court determined that the flight and 

concealment instruction is available to a defendant who is attempting to 

establish that a person other than himself is guilty. Id. at 1318. However, 

the failure to give this jury instruction does not require a new trial if the 

error is harmless. Id. at 1318.

Here, we are faced with a markedly different set of facts from those 

presented in Milligan. First, in the case at bar, the record reflects that after 

Mr. Stratton saw Appellant shoot Dijon Bowie, he did not flee. Rather, he 

went back inside the bar and asked the bartender to call an ambulance. 

N.T., Trial, 8/8/13, at 45; N.T., Trial, 8/7/13, at 167. While there was 

testimony that Mr. Stratton reversed his vest, there is no indication that he 

did so in an attempt to hide or conceal himself. Rather, Mr. Stratton, much 

like many of the other witnesses, left the area after there were gunshots and 

police arrived. We cannot conclude that the evidence supported the 

accusation that Mr. Stratton fled and concealed himself, a prerequisite for 

the instruction. Milligan, 693 A.2d at 1317-1318; Sandusky, 77 A.3d at 

667. Thus, the record did not support the instruction. Walker, 36 A.3d at 

15.

Additionally, while Mr. Michael Smalls testified that he thought Mr. 

Stratton may be the shooter because he believed the shooter had lighter 

skin than Appellant, N.T., Trial, 8/9/13, at 79, another eyewitness 

unequivocally identified Appellant as the shooter. Id. at 106. Absent from 
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the testimony in this matter is any evidence of Mr. Stratton’s flight or 

concealment that would support the requested jury instruction. For these 

reasons, we discern no error or abuse of discretion in the trial court refusing 

to provide the flight and concealment jury charge.1 

Next, Appellant claims that the trial court abused its discretion and 

imposed an excessive sentence by ordering Appellant to serve his sentences 

on the weapons offenses consecutively to one another and to the sentence 

imposed on the murder charge. Appellant’s claim challenges the 

discretionary aspects of his sentence. A challenge to the discretionary 

aspects of a sentence is a petition for permission to appeal, as the right to 

pursue such a claim is not absolute. Commonwealth v. Treadway, 104 

A.3d 597, 599 (Pa. Super. 2014). Before this Court may review the merits 

of a challenge to the discretionary aspects of a sentence, we must engage in 

the following four-pronged analysis: 

____________________________________________

1 However, even if we were to find that the instruction was warranted, we 

would conclude as this Court did in Milligan, that the error was harmless. 

Under the harmless error doctrine, the judgment of sentence will be affirmed 

in spite of the error where the reviewing court concludes beyond a 

reasonable doubt that the error did not contribute to the verdict. 

Commonwealth v. Moran, 104 A.3d 1136, 1150 (Pa. 2014) (citation 

omitted). “An error is harmless if it does not prejudice the defendant, or the 

effect on the jury is minimal.” Milligan, 693 A.2d at 1318 (citation 

omitted). There was testimony from several eyewitnesses and a video 

recording of Appellant and Bowie fighting inside the bar. Moreover, there 

were accounts from eyewitnesses who saw Appellant shoot and kill Bowie. 

Thus, even if the trial court had instructed the jury on flight and 

concealment with respect to Mr. Stratton, it would not have altered the 

testimony from eyewitnesses who saw Appellant commit the murder.
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[W]e conduct a four part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)). 

Additionally, “issues challenging the discretionary aspects of a sentence 

must be raised in a post-sentence motion or by presenting the claim to the 

trial court during the sentencing proceedings. Absent such efforts, an 

objection to a discretionary aspect of a sentence is waived.” 

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) 

(quoting Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011)).

We note that Appellant has met the first three parts of the four-prong 

test required prior to our review of the merits of a discretionary challenge to 

a sentence: Appellant timely filed an appeal; Appellant preserved the issue 

in a post-sentence motion;2and Appellant included a statement pursuant to 

Pa.R.A.P. 2119(f) in his brief. Thus, we assess whether Appellant has raised 

a substantial question.

____________________________________________

2 The Commonwealth argues that this claim was waived because Appellant 

failed to raise it in his post-sentence motion. Commonwealth’s Brief at 16. 

However, we are satisfied that Appellant’s post-sentence motion sufficiently 

challenges the consecutive nature of the sentences imposed, and we decline 

to find waiver. 
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A determination as to whether a substantial question exists is made on 

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 

2000). This Court will grant the appeal “only when the appellant advances a 

colorable argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” Id. at 

912-913.

It is well settled that bald claims of excessiveness due to the 

consecutive nature of sentences imposed will not raise a substantial 

question. Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 

2013). However, a defendant may establish a substantial question where 

the consecutive nature of the sentences results in an aggregate sentence 

that is clearly unreasonable. Id. “The key to resolving the preliminary 

substantial question inquiry is whether the decision to sentence 

consecutively raises the aggregate sentence to, what appears upon its face 

to be, an excessive level in light of the criminal conduct at issue in the case.” 

Treadway, 104 A.3d at 599 (quoting Commonwealth v. Mastromarino, 2 

A.3d 581, 587 (Pa. Super. 2010)). 

Here, Appellant alleges that the consecutive sentences imposed by the 

trial court result in an excessive sentence. Appellant’s Brief at 18. 

Specifically, Appellant argues that the sentence exceeded the aggravated 
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range for each sentence and the trial court failed to consider all relevant 

factors in imposing sentence. Id. at 19. We disagree.

The trial court sentenced Appellant to twenty to forty years of 

incarceration for third degree murder, five to ten years of incarceration for 

persons not to possess firearms, three to six years of incarceration for 

firearms not to be carried without a license, and two to four years of 

incarceration for possession of an instrument of crime. The trial court 

ordered all of these sentences to run consecutively, resulting in an 

aggregate sentence of thirty to sixty years of incarceration.

The record reflects that the sentences for third-degree murder and 

persons not to possess firearms were in the standard range of the 

Sentencing Guidelines. 204 Pa. Code §303.18; 204 Pa. Code §303.16. The 

sentences for firearms not to be carried without a license and possession of 

an instrument of crime were both beyond the aggravated range. 204 Pa. 

Code §303.16.3 

Thus, Appellant’s primary challenge, wherein he alleged that each 

sentence exceeded the aggravated range, is unfounded. Moreover, the 

record reflects that the trial court reviewed a pre-sentence investigation 

report (“PSI”). N.T., Sentencing, 10/8/13, at 3. It is well settled that when 

____________________________________________

3 While the Deadly Weapon Used Sentencing Enhancement applied to the 

murder conviction, that enhancement did not apply to Appellant’s other 

convictions. 204 Pa. Code §303.10.
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the sentencing court had the benefit of a PSI, it was aware of the relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors. Moury, 992 A.2d at 

171 (citation omitted). Therefore, Appellant’s secondary claim that the trial 

court failed to consider all relevant factors is meritless as well. Thus, 

Appellant’s claim of error is merely a bare challenge to the consecutive 

nature of the sentences imposed. While Appellant cites to Commonwealth 

v. Wilson, 946 A.2d 767 (Pa. Super. 2008), Commonwealth v. Dodge, 

957 A.2d 1198 (Pa. Super. 2008), Commonwealth v. Whitman, 880 A.2d 

1250 (Pa. Super. 2005), reversed on other grounds, 918 A.2d 115 (Pa. 

2007), Commonwealth v. Bauer, 604 A.2d 1098 (Pa. Super. 1992), 

reversed on other grounds, 618 A.2d 396 (Pa. 1993), Commonwealth v. 

Rizzi, 586 A.2d 1380 (Pa. Super. 1991), and Commonwealth v. Parrish, 

490 A.2d 905 (Pa. Super. 1985), as examples of cases where this Court 

found that consecutive sentences were excessive, none of those cases 

involved third degree murder and the use of a firearm on a public street. 

Here, the record of the sentencing hearing reflects that counsel for the 

Commonwealth summarized the facts of the case, Appellant and his father 

were given an opportunity to speak, and the trial court heard these 

statements and reviewed the PSI. We discern nothing unreasonable in an 

aggregate sentence of thirty to sixty years of incarceration under the facts of 

this case. Treadway, 104 A.3d at 599. Accordingly, because Appellant was 
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unable to support his claim of excessiveness due to the consecutive nature 

of the sentences with any support from the record establishing that the 

aggregate sentence was clearly unreasonable, we conclude that Appellant 

has failed to present a substantial question. Dodge, 77 A.3d at 1270.

In his third issue, Appellant argues that the trial court erred and 

abused its discretion when it sentenced him outside of the aggravated range 

of the Sentencing Guidelines for PIC without providing its reasons for doing 

so on the record. Appellant’s Brief at 27. As noted above, there are 

requirements for raising a challenge to the discretionary aspects of one’s 

sentence. Moury, 992 A.2d at 170. One of those prerequisites is 

preserving the challenge by raising it before the trial court. Cartrette, 83 

A.3d at 1042. Here, however, this issue is waived due to Appellant’s failure 

to present it to the trial court at the time of sentencing or in a post-sentence 

motion. Id. 

For the reasons set forth above, we conclude that Appellant is entitled 

to no relief. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judge Bowes joins the Memorandum.

Justice Fitzgerald Concurs in the Result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2015