J-S44021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOEL SENESTANT,

Appellant No. 1311 EDA 2015

Appeal from the Judgment of Sentence March 27, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015924-2013, CP-51-CR-0015925-

2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 01, 2017

Appellant, Joel Senestant, appeals from the judgment of sentence 

entered following his convictions of one count each of aggravated assault, 

firearms not to be carried without a license, possession of an instrument of 

crime, intimidation of a witness, retaliation against a witness, and 

possession of a firearm by prohibited person.1 We affirm.

The trial court set forth the underlying facts of this case as follows:

Facts supporting the verdicts of guilty stemmed from 

events beginning October 24, 2013 when a shooting occurred on 

the 800 Block of North 66th Street in Philadelphia. Specifically, 

Philadelphia Police Officer John Rubino responded to a radio call 

for a person with a gun and a person shot on the highway. (N.T. 

____________________________________________

1

 18 Pa.C.S. §§ 2702(a)(1), 6106(a)(1), 907, 4952(a)(1), 4953, and 

6105(a)(1), respectively.
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01/23/2015, pp. 151-152). Upon arriving at 878 North 66th

Street, Officer Rubino came into contact with the victim Vernon 

Oliver sitting inside his residence at 878 North 66th Street, 

profusely bleeding from his lower left leg. (N.T. 01/23/2015, 

pgs. 151-152). During the investigation Officer Rubino learned 

that Mr. Oliver was approached by a black male, around fivefoot-eight, glasses, wearing a gray hoodie. This male pulled out 

a handgun and started shooting multiple times at Mr. Oliver as 

he fled in fear into his residence. Mr. Oliver was transported to 

Hospital of the University of Pennsylvania by medics and treated 

for his leg injuries and loss of blood. Id.

Detective Deayoung Park credibly testified that he arrived 

on scene after uniformed Philadelphia police officers secured the 

scene where he recovered three fire cartridge casing (FCC) for a 

.22 caliber firearm. After leaving the crime scene, Detective 

Park had a brief opportunity to speak with Mr. Oliver at the 

hospital. Mr. Oliver stated to Detectives that he had recognized 

the male who shot him. Detective Park further testified that 

Mr. Oliver was obviously in so much pain, he told Mr. Oliver 

follow-up would continue at the police station the next day. 

(N.T. 01/23/2015, pgs. 164-168).

Mr. Oliver again indicated that he recognized the male who 

shot him as someone from the neighborhood, named “Joel.” He 

further explained that “Joel” was the same man whom he had 

had an argument with on October 23, 2013, the night before the 

shooting. (N.T. 01/23/2015, pg. 168). During trial, Philadelphia 

Police Officer James Little testified that he responded to the area 

of 878 North 66th Street in Philadelphia on October 23, 2013. 

Earlier that evening there had been a radio call for a person with 

a gun. (N.T. 01/23/2015, pg. 159). Upon arriving on location, 

Officer Little had not found a victim. Id. On that same night in 

question, October 23, 2013, Officer Rubino also responded to a 

radio call in the same area of the 800 block of North 66th Street. 

(N.T. 01/23/2015, pg. 148). Specifically, Officer Rubino 

responded to the same general area of 66th and Leeds Street for 

a robbery in progress. The complainant on that night was a 

white male, who told officers he had been robbed by 

approximately 10 black males for his Xanax pills[.] (N.T. 

01/23/2015, pg. 148). Mr. Oliver further verified the occurrence 

of a robbery on October 23, 2013 when he testified at trial on 

January 23, 2015.
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While Mr. Oliver was an extremely reluctant witness, the 

trial court determined that his prior recorded statements to 

police officers about the robbery were credible and corroborated. 

Specifically, the Commonwealth confirmed through Mr. Oliver’s 

previous statements to police that he had earlier witnessed a 

group of black males surrounding and talking to the “white 

dude.” (N.T. 01/23/2015, pg. 72). Mr. Oliver further recalled 

seeing the police canvasing the area. About fifteen minutes 

after the police left the area, Mr. Oliver took his dog for a walk 

and asked some young guys in the area about what happened. 

Id. He further testified that while walking his dog he noticed 

some blue-shaped pills on the ground. After he bent down to 

pick the pills up, a black male wearing glasses and a hoodie 

walked up stating “give me money for my pills.” (N.T. 

01/23/2015, pgs. 73-74). Mr. Oliver testified that during the 

verbal exchange with this black male, he recognized him to be 

Joel from the neighborhood. Id. After arguing over whose pills 

were on the ground, Mr. Oliver smacked [Appellant’s] hands off 

of him because [Appellant] attempted to grab Mr. Oliver while 

screaming for his money. Additionally, Mr. Oliver’s statements 

to police corroborated that the man whom he had an altercation 

over Xanax pills with on October 23, 2013, was the same 

person, [Appellant], who shot him in the lower left leg on 

October 24, 2013. Id. The entire testimony established 

[Appellant] to be the individual involved on both nights in 

question.

Detective Park also testified that after Mr. Oliver left 

Southwest Detectives on October 25, 2013, Mr. Oliver contacted 

detectives regarding a number of threatening phone calls he 

received on his cell phone. Detective Park convinced Mr. Oliver 

to report the threats to him to Detectives from the Southwest 

Division on October 30, 2013. In this second interview, Mr. 

Oliver reported that he received two blocked phone calls after 

leaving a CVS pharmacy to fill his prescription on October 25, 

2013. Mr. Oliver stated to Detective Park that he recognized the 

voice to be that of [Appellant]. Mr. Oliver stated that [Appellant] 

threatened him during the two phone calls. In the first 

telephone call, he remembered [Appellant] saying: “You know 

why I shot you.” Within the second phone call [Appellant] 

stated: “You lucky I didn’t get you coming from the CVS.” (N.T. 

01/23/2015, pp. 173-176).
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Southwest Detectives searched the incoming phone 

records of [Mr.] Oliver’s phone and discovered two incoming 

calls to [Mr.] Oliver’s telephone recorded from the number 

(484)-751-[****] one minute apart from each other. Pursuant 

to a duly authorized search warrant for [Appellant’s] residence, 

detectives recovered a blue pre-paid Cricket cellular telephone 

and a black iPhone. Since it was a pre[-]paid cell phone, 

subscriber information could not be found in the database 

detectives use when searching for information pertaining to a 

specific phone. Detective Park, however, testified that a name 

must be associated with a pre[-]paid cell phone, and in this 

instance, the name “Bad man” was listed for the Cricket cell 

phone. Upon further investigation it was determined that the 

number associated with the Cricket cell phone recovered from 

[Appellant’s] house matched the repeated incoming calls to 

[Mr.] Oliver. (N.T. 01/23/2015, pp. 179-185).

Trial Court Opinion, 4/8/16, at 5-8.

In addition, the trial court summarized the procedural history of this 

case as follows:

The underlying case stems from the November 23, 2015 

arrest of [Appellant] for shooting Vernon Oliver in front of the 

victim’s residence in the 800 Block of North 66th Street in 

Philadelphia on October 24, 2015, and for subsequently 

repeatedly threatening the same shooting victim. Following 

arraignment, preliminary hearing and filing of charging Bills Of 

Information the charges docketed under CP-51-CR-0015924-

2013 included Criminal Attempt-Murder §901 §§A, Felony First 

Degree, Aggravated Assault, §2702 §§A1 Felony First Degree, 

Possessing Instrument of Crime §907 §§A, Misdemeanor First 

Degree, and enumerated Violations of the Uniform Firearms Act 

including offenses under §6105 §§A1- Carrying A Firearm as a 

Prohibited Person, Felony Second Degree; F-2, §6106 §§A1-

Firearms Not To Be Carried Without License, Felony Third 

Degree; §6108 Carrying Firearm Public Street In Philadelphia, 

Misdemeanor First Degree. The charges of Intimidation of a 

Witness, §4952 §§A1, Felony First Degree, and Retaliation 

Against a Witness, §4953§§A, Felony Third Degree were 

docketed under CP-51-CR-0015925-2013. All charges were 

consolidated for a jury trial.
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On January 20, 2015, jury selection began before the 

Honorable Anne Marie B. Coyle[,] Judge of the Court of Common 

Pleas for the First Judicial District. After several jurors were 

selected, Pierre LaToure, Esquire, as trial counsel for [Appellant], 

raised an untimely objection to the method which the trial court 

had prioritized available randomly selected jurors based upon 

the prospective juror written responses on their completed 

written questionnaire forms. Although the trial court did not 

agree to the belated objection, the trial court gave [Appellant] 

more benefit than due and granted [Appellant’s] requested 

remedy. This Court dismissed all previously selected jury panel 

members, and began the selection process anew before any 

panel was sworn. Inexplicably, after this Court granted 

[Appellant’s] motion, [Appellant], by and through his counsel, 

orally moved for this [c]ourt’s recusal on January 22, 2015 

alleging judicial bias without supporting basis. Hearing zero 

legitimate reason for this request, this [c]ourt properly denied 

the Motion for Recusal. An entirely new jury panel was 

empaneled without any further claim of judicial bias.

On January 28, 2015, the jury entered verdicts of guilty to 

the charges of Aggravated Assault, § 2702 §§ A1 (F1), Firearms 

Not To Be Carried Without A License, 18 § 6106 §§ A1 (F3), 

Possession of an Instrument of Crime, 18 § 907 §§ A1 (M1), 

Intimidation of a Witness, § 4952 §§ A1 (F3), and Retaliation 

Against a Witness, §4953 §§ A (F3). The jury returned [a] 

verdict of not guilty to Criminal Attempt-Murder § 901 §§ A (F1). 

Pursuant to agreement of the parties, the bifurcated offense of 

Possession of Firearm By Prohibited Person under 18 §6105 A1 

(F2) was incorporated into the record and the trial court 

recorded the corresponding verdict of guilty to this charge 

consistently with the jury verdicts. Subsequent to the entry of 

the verdicts, on January 28, 2015, this [c]ourt directed that 

comprehensive sentencing evaluations and mental health 

assessments to be completed of [Appellant] via authorized 

investigators and evaluators of the Court of Common Pleas Trial 

Division Adult Probation and Parole Department and scheduled 

the sentencing hearing for March 27, 2015.

On March 27, 2015 this Court incorporated into the record 

all relevant data concerning [Appellant] from the completed 

Presentence Investigation Reports and Mental Health 

Assessments. A full and fair sentencing hearing was conducted 

with all parties given the opportunity to be heard. After carefully 
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assessing all material sentencing factors including the required 

imposition of the applicable mandatory sentencing requirements 

for this individual, and the calculated sentencing guideline 

recommendations, this Court imposed the following sentences 

under CP-51-CR-0015924-2013 relative to the shooting of [Mr.] 

Oliver:

Count 2: 18 Pa.C.S.A. § 2702 §§A1-

Aggravated Assault (F1): State term of confinement 

for a minimum of 10 years to maximum 20 years; 

and

Count 3: 18 Pa.C.S.A. § 6105 §§A1-Possession 

Of Firearm Prohibited (F2): State term of 

confinement for a minimum of 4 years to maximum 

of 10 years state term [of] confinement to run 

consecutively to confinement imposed for Count 2; 

and

Count 4: 18 Pa.C.S.A. § 6106 §§A1-Firearms 

Not To Be Carried Without A License (F3): State term 

of confinement for a minimum period of 3 years and 

a maximum a period of 7 years to run consecutively 

to confinement imposed for Count 3; and

Count 6: 18 Pa.C.S.A. § 907 §§A-Possession 

Instrument of Crime- No further penalty-Merged with 

Count 4.

This Court imposed the following sentences under CP-51-

CR-0015925-2013 for separate charges stemming from the 

subsequent threats and intimidation of the shooting victim:

Count 1: 18 Pa.C.S.A. § 4952 §§A1-

Intimidation Witness/Victim-Refrain From Reporting 

(F1): State term of confinement for a minimum 

period of 5 years and a maximum a period of 10 

years to run consecutively to confinement imposed 

under CP-51-CR-0015924-2013 Count 4; and

Count 2: 18 Pa.C.S.A. § 4953 §§A-Retaliation 

Witness/Victim (F3): State term of confinement for a 

minimum period of 3 years six months and a 

maximum a period of 7 years to run consecutively to 
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confinement imposed under CP-51-CR-0015925-

2013 Count 1.

The aggregate sentences for the charges related to the 

shooting event was a period of state confinement from a 

minimum of 17 years to a maximum of 37 years. The aggregate 

sentence for the crimes related to the subsequent threatening 

intimidation of [Mr.] Oliver was a period of state confinement 

from a minimum of 81⁄2 years to a maximum of 17 years. Thus, 

the total sentence for all offenses was a period of state 

confinement from a minimum of 251⁄2 years to a maximum of 59 

years. The remaining charges were Nolle Prossed. The 

conditions of the sentences imposed included stay away from the 

victim and payment of fines and costs.

Trial Court Opinion, 4/8/16, at 1-4.

Appellant did not file post-sentence motions. On April 20, 2015, 

Appellant filed this timely appeal. Both Appellant and the trial court have 

complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Did the trial judge show such bias against [Appellant] 

during jury selection that she should have recused herself?

2. Was the evidence presented at trial sufficient to show 

that [Appellant] intentionally, knowingly or recklessly under 

circumstances manifesting extreme indifference to the value of 

human life caused or attempted to cause serious bodily injury to 

the complainant?

3. Did the trial court abuse its discretion by:

a. sentencing defendant in the aggravated 

range for Retaliation Against a Witness without 

identifying any aggravating factors?

b. sentencing defendant to an aggregate 

sentence of 306 to 648 months without considering 

the particular circumstances of the offense and the 

character of [Appellant] or referring to [Appellant’s] 
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prior criminal record, age, personal characteristics, 

and potential for rehabilitation?

c. failing to consider any mitigating factors?

Appellant’s Brief at 5-6.

Appellant first argues that the trial court erred in refusing to recuse 

itself. Appellant’s Brief at 15-23. Appellant asserts that the trial court’s 

conduct during the jury selection process evidenced an intent to increase the 

chances of Appellant’s conviction.

The standard of review for the recusal of judges is as follows:

Our standard of review of a trial court’s determination not 

to recuse from hearing a case is exceptionally deferential. We 

recognize that our trial judges are “honorable, fair, and 

competent,” and although we employ an abuse of discretion 

standard, we do so recognizing that the judge himself is best 

qualified to gauge his ability to preside impartially.

The party who asserts that a trial judge should 

recuse bears the burden of setting forth specific 

evidence of bias, prejudice, or unfairness. 

“Furthermore, a decision by the trial court against 

whom the plea of prejudice is made will not be 

disturbed absent an abuse of discretion.”

Commonwealth v. Postie, 110 A.3d 1034, 1037 (Pa. Super. 2015) 

(quoting Commonwealth v. Harris, 979 A.2d 387, 391-392 (Pa. Super. 

2009)) (citations omitted).

The trial court thoroughly addressed this issue of the request for 

recusal as follows:

In the instant case, Pierre LaToure, Esquire, as 

[Appellant’s] trial attorney, motioned for this court’s recusal 

after this [c]ourt reluctantly granted [Appellant’s] requested 
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remedy to dismiss the previously agreed upon and selected 

jurors. The originally stated reason for the request to dismiss 

jury panelists was rooted in an untimely objection to the 

[c]ourt’s acknowledged and accepted practice of prioritizing 

prospective jurors. As both attorneys were aware, this [c]ourt 

divided the packet of 40 random prospective panelists sent from 

the jury room pool into priority “A” and “B” list based upon 

previously recorded written responses on the jury questionnaire 

form that indicated the level of a panelist’s willingness and ability 

to fairly serve as a juror. Copies of the questionnaire sheets, 

which reflected the divided groups, are given to both parties 

through their counsel to review before and during jury selection 

process. No objection was raised by either party or their 

respective counsel as to the trial court’s method until most of the 

prospective panel members had been selected as agreed upon 

jurors and the “B” list members were no longer available.

Belatedly, [Appellant], by and through his counsel, raised 

an objection and argued that it was unfair that the trial court 

included two prospective pool members into the “B” list because 

they answered they were less likely to believe the testimony of a 

police officer or law enforcement official solely based on that 

person’s job in law enforcement. Counsel for [Appellant] argued 

that since the [c]ourt included in the “A” list persons, who had 

answered in the affirmative to the written question: “Are you are 

more likely to believe the testimony of a police officer or law 

enforcement just because of that person’s job,” persons who had 

responded that they were less likely to believe police officers or 

persons in law enforcement just because of their position should 

have also been included in the “A” list.

This [c]ourt believed that [Appellant’s] objection to the 

method of jury selection was waived because it was untimely 

raised. This [c]ourt disagreed with [Appellant’s] assumption of 

the equality of the prospective juror’s reasoning for such 

differences in responses did not necessarily follow with respect 

to potential rehabilitation. This [c]ourt concluded from past 

experience that it was far often easier to rehabilitate a 

prospective juror who indicated affirmative respect or preference 

for law enforcement than a juror who began the questionnaire 

process with a bias against law enforcement. The prospective 

rehabilitative measure[s] are not equal because the human 

motivations for the opposing answers differ.
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As to the waiver issue, Defense counsel raised the 

objection after a full day of jury selection completed with the “A” 

and “B” method as described. He claimed that he had 

misunderstood this [c]ourt’s process. Ironically, only two 

additional prospective jurors would have been added to 

[Appellant’s] preference of “A” grouping. As all parties were 

aware those jurors were no longer available. In an abundance of 

caution, and to avoid any semblance of an appellate issue 

including ineffectiveness of counsel, this [c]ourt reluctantly 

granted [Appellant’s] Motion to strike the entire picked panel and 

begin the jury selection process anew.

[Appellant], by and through his attorney, immediately 

followed this [c]ourt’s granting of [Appellant’s] requested 

remedy with a Motion For Recusal of this [c]ourt citing a bald 

allegation of judicial bias. This Motion For Recusal was properly 

denied on January 22, 2015 as a blatant attempt [at] forum 

shopping. The record reflects no legitimate basis for counsel's 

argument about judicial bias. This [c]ourt properly conducted 

the voir dire process with a brand new panel of forty prospective 

jurors with . . . no priority given beyond the number assigned in 

random order from the jury room. This [c]ourt no longer divided 

any jury group into “A” or “B” list order for inquiry.

This [c]ourt fairly conducted an individual colloquy of each 

potential juror with zero complaint of judicial bias. In short, this 

[c]ourt granted a motion by counsel for a new jury, dismissed an 

entire jury panel, and fairly conducted [] individual colloquies of 

forty new potential jurors employing no priority selection. 

Additionally, this argument fails because this [c]ourt was not the 

finder of fact in this jury trial.

Trial Court Opinion, 4/8/16, at 9-11.

Our review of the record fails to reflect any evidence presented by 

Appellant to establish that a conflict existed that would necessitate a recusal 

by Judge Coyle. Rather, Appellant’s assertion of a conflict warranting 

recusal is a baseless allegation. Accordingly, we discern no bias, prejudice, 

or unfairness on the part of Judge Coyle; nor is there any indication in the 
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record that she abused her discretion in denying Appellant’s recusal motion. 

Postie, 110 A.3d at 1037. Hence, Appellant’s first claim fails.

Appellant next argues that the Commonwealth did not present 

sufficient evidence to support his conviction of aggravated assault. 

Appellant’s Brief at 24-28. Specifically, Appellant asserts that there was no 

evidence presented at trial of any statements made before or during the 

attack that might indicate an intent to inflict injury. Id. at 26. Appellant 

contends that “the intention of the shooter was far from obvious.” Id. at 27.

We analyze arguments challenging the sufficiency of the evidence 

under the following parameters:

Our standard when reviewing the sufficiency of the 

evidence is whether the evidence at trial, and all reasonable 

inferences derived therefrom, when viewed in the light most 

favorable to the Commonwealth as verdict-winner, are sufficient 

to establish all elements of the offense beyond a reasonable 

doubt. We may not weigh the evidence or substitute our 

judgment for that of the fact-finder. Additionally, the evidence 

at trial need not preclude every possibility of innocence, and the 

fact-finder is free to resolve any doubts regarding a defendant’s 

guilt 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. When evaluating the credibility and 

weight of the evidence, the fact-finder is free to believe all, part 

or none of the evidence. For purposes of our review under these 

principles, we must review the entire record and consider all of 

the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) 

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super. 

2006)).
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The crime of aggravated assault is set forth at 18 Pa.C.S. § 2702 and 

provides in relevant part as follows:

(a) Offense defined.—A person is guilty of aggravated assault 

if he:

(1) attempts to cause serious bodily injury to 

another, or causes such injury intentionally, 

knowingly or recklessly under circumstances 

manifesting extreme indifference to the value of 

human life. . . .

18 Pa.C.S. § 2702(a)(1). Serious bodily injury is defined 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. § 2301.

As we expressed in Commonwealth v. Fortune, 68 A.3d 980 (Pa. 

Super. 2013):

For aggravated assault purposes, an “attempt” is found where an 

accused who possesses the required, specific intent acts in a 

manner which constitutes a substantial step toward perpetrating 

a serious bodily injury upon another. An intent ordinarily must 

be proven through circumstantial evidence and inferred from 

acts, conduct or attendant circumstances.

Id., at 984 (citations omitted). In addition, the Court in Fortune

summarized the following:

The Pennsylvania Supreme Court in Commonwealth v. 

Alexander, 477 Pa. 190, 383 A.2d 887 (Pa. 1978) created a 

totality of the circumstances test to be used to evaluate whether 

a defendant acted with the necessary intent to sustain an 

aggravated assault conviction. In Commonwealth v. 

Matthew, 589 Pa. 487, 909 A.2d 1254 (2006), that Court 

reaffirmed the test and articulated the legal principles which 

apply when the Commonwealth seeks to prove aggravated 
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assault by showing that the defendant attempted to cause 

serious bodily injury. Specifically, the Court stated, in relevant 

part, that:

Alexander created a totality of the circumstances 

test, to be used on a case-by-case basis, to 

determine whether a defendant possessed the intent 

to inflict serious bodily injury. Alexander provided 

a list, albeit incomplete, of factors that may be 

considered in determining whether the intent to 

inflict serious bodily injury was present, including 

evidence of a significant difference in size or strength 

between the defendant and the victim, any restraint 

on the defendant preventing him from escalating the 

attack, the defendant’s use of a weapon or other 

implement to aid his attack, and his statements 

before, during, or after the attack which might 

indicate his intent to inflict injury. Alexander, at 

889. Alexander made clear that simple assault 

combined with other surrounding circumstances 

may, in a proper case, be sufficient to support a 

finding that an assailant attempted to inflict serious 

bodily injury, thereby constituting aggravated 

assault.

Matthew, 909 A.2d at 1257 (citation and quotation marks 

omitted). The Court indicated that our case law does not hold 

that the Commonwealth never can establish a defendant 

intended to inflict bodily injury if he had ample opportunity to 

inflict bodily injury but did not inflict it. Rather, the totality of 

the circumstances must be examined as set forth by Alexander.

Fortune, 68 A.3d at 984. In Commonwealth v. Hall, 830 A.2d 537, 542 

(Pa. 2003), our Supreme Court stated that in cases “[w]here the intention of 

the actor is obvious from the act itself, the finder of fact is justified in 

assigning the intention that is suggested by the conduct.”

The trial court addressed Appellant’s challenge to the sufficiency of the 

evidence with the following apt discussion:
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Applying the totality of the circumstances test from 

Alexander, as well as the holding from Matthew, [Appellant] in 

the instant case possessed the requisite specific intent to cause 

serious bodily injury. While the complainant, Mr. Oliver, talked 

with a friend outside [of] his house, [Appellant] purposefully 

approached him, shot at him multiple times, and in so doing 

caused serious injury to his lower left leg. On the night of 

October 23, 2013, [Appellant] and Mr. Oliver g[o]t into an 

argument over ownership of previously dropped Xanax pills in a 

botched robbery of another male. [Appellant] demand[ed] 

payment for them. The two men scuffle[d], and Mr. Oliver ha[d] 

to push the hand of [Appellant] off of him in order to get away 

and continue to walk his dog home. On the following evening, 

October 24, 2013, [Appellant] approached Mr. Oliver again, 

aimed and fired multiple times from a [.]22 caliber handgun at 

close range, and striking him in the lower left leg as Mr. Oliver 

fled into his home. Within those critical moments, [Appellant] 

manifested an extreme disregard for [Mr.] Oliver’s life.

[Appellant] confirmed that he had the prerequisite 

malicious intent when he shot at [Mr.] Oliver, and when he 

subsequently threatened him commenting that he should have 

finished him off outside the drug store. Thus, the totality of the 

evidence amply supports the conviction of Aggravated Assault.

Trial Court Opinion, 4/8/16, at 13-14.

We have thoroughly reviewed the certified record before us on appeal, 

and we agree with the trial court’s determination that the Commonwealth 

presented sufficient evidence to establish beyond a reasonable doubt that 

Appellant committed the crime of aggravated assault. Accordingly, 

Appellant’s contrary claim lacks merit.

Appellant’s final argument is that the trial court abused its discretion in 

fashioning his sentence. Appellant’s Brief at 29-35. Appellant claims that he 

should not have been sentenced within the aggravated range for the crime 

of retaliation against a witness, that the sentencing court failed to properly 
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consider the statutory sentencing factors, and the court failed to consider 

mitigating factors. Id. at 32-35.

We note that our standard of review is one of abuse of discretion. 

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. Commonwealth v. Shugars, 895 A.2d 1270, 1275 

(Pa. Super. 2006). It is well settled that there is no absolute right to appeal 

the discretionary aspects of a sentence. Commonwealth v. Hartle, 894 

A.2d 800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the 

discretionary aspects of a sentence, the appeal should be considered a 

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 

155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[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).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)).

Objections to the discretionary aspects of a sentence are generally 

waived if they are not raised at the sentencing hearing or in a motion to 

modify the sentence imposed. Moury, 992 A.2d at 170 (citing 

Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). In 

Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we 

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d 

790 (Pa. Super. 1995), wherein this Court observed that, although 

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions 

as optional, the rule expressly provides that only issues raised in the trial 

court will be deemed preserved for appellate review. Reeves, 778 A.2d at 

692. Applying this principle, the Reeves Court held that an objection to a 

discretionary aspect of a sentence is waived if not raised in a post-sentence 

motion or during the sentencing proceedings. Id. at 692-693. See also 

Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004) (holding 

challenge to discretionary aspect of sentence was waived because appellant 

did not object at sentencing hearing or file post-sentence motion); 

Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000) (same).

Herein, the first requirement of the four-part test is met because 

Appellant timely brought this appeal. However, our review of the record 

reflects that Appellant did not meet the second requirement because he did 
J-S44021-17

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not raise a challenge to the discretionary aspects of his sentence in a postsentence motion or at the time of sentencing. Therefore, we are constrained 

to conclude that Appellant’s issue challenging the discretionary aspect of his 

sentence is waived, and we are precluded from addressing the merits of his 

issue on appeal. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/1/2017