J-A02043-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY M. MCGOFF 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 224 MDA 2018

Appeal from the Judgment of Sentence March 7, 2017

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

No(s): CP-35-CR-0000433-2015

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 25, 2019

Appellant Timothy M. McGoff appeals from the judgment of sentence 

following his jury trial convictions for two counts each of attempted homicide, 

aggravated assault with a deadly weapon, aggravated assault, simple assault, 

recklessly endangering another person, terroristic threats, and one count each 

of theft by unlawful taking, unauthorized use of a motor vehicle, disorderly 

conduct, reckless driving, and driving under the influence.

1

 Appellant asserts 

that the evidence was insufficient to convict him of two counts of attempted 

homicide, and one count of aggravated assault with a deadly weapon and 

aggravated assault. Additionally, Appellant asserts that the Commonwealth 

____________________________________________

1 18 Pa.C.S. §§ 901, 2501, 2702(a)(4), 2702(a)(1), 2701(a)(3), 2705, 

2706(a)(1), 3921(a), 3928, 5503(a)(1), 3736, and 3802(a)(1), respectively.
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impermissibly used evidence of his prior bad acts and that his sentence is 

excessive. We affirm.

The trial court summarized the relevant factual background of this 

matter as follows:

Leslie Bacinelli testified that she had been in a relationship with 

[Appellant] for approximately thirteen years and they had two 

children, Colin, who was seven years old at the time of the 

incident, and Thomas, [who] was one year old. Leslie stated that 

she had ended her relationship with [Appellant] in August of 2014 

and relocated from their shared home to her parents’ home. She 

and [Appellant] maintained a mutual custody agreement wherein 

[Appellant] had visitation every other weekend from Friday 

evening until Sunday evening, as well as two weekdays. Leslie 

stated that in August of 2014, she reconnected with Craig Hoover, 

a high school friend who had moved to New Hampshire, and she 

entered into a relationship with Craig in September 2014. Craig 

similarly had two children, daughters who were then ages fourteen 

and eleven. Craig and his daughters were planning to visit Leslie 

the week of January 3, 2015, when [Appellant] had custody of 

their children. Leslie asserted that [Appellant] had plans on Friday, 

so he arranged to pick up the children on Saturday instead of 

Friday. Leslie stated that when her older son Colin realized that 

Craig and his daughters were in town, he preferred to stay with 

Leslie. Leslie testified that this resulted in a telephone 

conversation with [Appellant] about Colin’s preference; in 

response, [Appellant] made disparaging remarks about her. After 

the conversation ended, [Appellant] called back to speak to Colin. 

She recalled that [Appellant] was very pleasant while speaking to 

Colin; nevertheless, when she returned to the phone, [Appellant]

stated that she could have the kids tonight “because after today 

and after tonight it’s not going to matter much to you anyway.”

Leslie’s statements were corroborated by photographs showing 

that she texted [Appellant] that morning to inform him that Colin 

did not want to leave. The Commonwealth introduced additional 

photographs of text messages from [Appellant] after the phone 

conversation had ended. Leslie testified that she and Craig and 

their respective children continued their day. At approximately 

6:15 p.m., [Appellant] sent another unprovoked text message 

stating, “You had to go to New Hampshire to find a man because 
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everyone around here knows how gross you are inside. Scumbag

boyfriend has no idea.” Leslie explained that she returned to her 

parents’ house with Craig and the children before she and Craig 

left to purchase a Red Box movie and ice cream at Bill’s 

Supermarket at approximately 7:45-7:50 p.m. Leslie then 

testified in detail regarding the events of the night.

She recalled leaving with Craig in his vehicle [to go to the 

supermarket] and not seeing any other vehicles on Quicktown 

Road. Craig turned left onto Aberdeen Road and they noticed a 

vehicle’s headlights appear behind them. Craig pulled over and let 

the vehicle behind them pass. As they reached the bottom of 

Aberdeen Road, at the intersection of Aberdeen and Reservoir 

streets, Leslie noticed the same vehicle in [a] dirt pull-off section. 

They continued on the route to Bill’s Supermarket with the vehicle 

still following. Leslie testified that they entered the plaza and 

parked in front of the Red Box movie rental. At the same time, 

Leslie received text messages from [Appellant] stating that he 

wanted to say goodnight to the kids and asked why she would not 

let him. She testified that she told him that she was out getting a 

movie and to call her parent’s house because the kids were home. 

[Appellant] replied, “Did, scumbag.” She and Craig then picked 

out a movie and went into the supermarket. Upon leaving, Leslie 

noticed the same vehicle she thought was following them parked 

a few spaces away. She testified that she did not think anything 

of it because it was the only supermarket in the area. They then 

went to Dunkin Donuts and noticed the same vehicle. She and 

Craig decided to travel off of their planned route to test if the 

vehicle was following them. Craig then drove toward Jubilee Road, 

a dark road without much traffic. The vehicle followed, and Leslie 

recalled the statements made by [Appellant] earlier, suspecting 

that [Appellant] was in the vehicle. Leslie called her father and the 

police. Leslie testified that the vehicle continued to follow. Leslie 

testified that she did not return home because she did not want 

to place the children in danger. Meanwhile, Leslie called 911 and 

arranged to meet Officer [Matthew] Cianfichi at North Pocono 

Intermediate School. Leslie testified that Craig drove through a 

vehicle wash stall to turn around, as the other vehicle went 

through the stall next to them, revved the engine, struck their 

vehicle, and pushed them into the oncoming traffic lane. Craig 

straightened out his vehicle, however [Appellant, who was in the 

other vehicle] revved the engine and struck them a second time; 

Leslie testified that the violent impact caused her to flail forward. 

Their vehicle veered off the road as [Appellant’s] vehicle passed 
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them, turned around and [Appellant] drove his vehicle directly into 

Leslie’s side of the vehicle. The impact pinned Craig’s side of the 

vehicle against the guardrail and the airbag went off. 

After crashing into the guardrail Craig’s door was jammed shut. 

Leslie testified that [Appellant] approached Craig’s side of the 

vehicle, pounded on the roof and screamed, “Fuck.” Leslie 

identified [Appellant] by his voice. She then kicked open the 

dented passenger door and exited the vehicle. Leslie stated that 

she saw [Appellant] standing under the streetlight with a knife in 

his hand and threaten[]: “I’m going to fucking kill both of you.”

She ran but [Appellant] grabbed her by the ponytail, grabbed her 

face with his left hand, and used the knife to slice her face from 

lip to cheek. Again she attempted to run, but he continued to grab 

her ponytail, yank her head and threaten: “Say goodbye, this is 

your last fucking breath.” As [Appellant] dropped Leslie, he cut 

her sweatshirt and turned his attention to Craig and the three of 

them fell to the ground in a struggle. Leslie testified that 

[Appellant] yelled: “I’m going to fucking kill both of you.” She 

observed [Appellant] chase Craig around [a parked vehicle 

nearby] about three times before Craig fell. Leslie testified that 

she observed [Appellant] with the knife in his hand when chasing 

Craig toward the entrance of I-380. In support of her testimony, 

Leslie identified the knife that [Appellant] cut her with, as well as 

the scarf and sweatshirt she was wearing. Leslie testified that as 

a result of the incident her facial injuries required surgical repair 

at the hospital. 

Victim Craig Hoover corroborated Leslie’s testimony[.]

* * *

Affiant [Officer] Cianfichi of the Moscow Borough Police 

Department testified that on January 3, 2015, he responded to a 

call at the Market Street Inn in Moscow for the report of a stolen 

vehicle. Officer Cianfichi corroborated that Ryan Butler’s 2002 

Buick Rendezvous SUV was stolen. While speaking with Ms. 

Butler, Officer Cianfichi received a dispatch call regarding a female 

being followed near North Pocono Intermediate School. Shortly 

thereafter, Officer Cianfichi received another call that the same 

female was now being run off the road by another vehicle. Office 

Cianfichi responded to the scene and observed a white Subaru and 

a gold Buick SUV crashed at the intersection of 690 and the I-380 

ramp. Officer Cianfichi testified that the Subaru had front end 

damage and a deployed airbag, trunk pushed in and frame 
J-A02043-19

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damage; the Buick had front end damage, a missing bumper and 

a damaged headlight. Officer Cianfichi noted that the white 

Subaru was pushed into the guardrail with the passenger side door 

open. During the investigation, Officer Cianfichi determined that 

Craig owned the white Subaru and Ryan Butler owned the gold 

Buick. Officer Cianfichi testified that upon arrival[,] witnesses 

were screaming and pointing at the two men on the on ramp. 

Officer Cianfichi stated that he held [Appellant] at taser-point until 

Officer [Stephen] Price arrived. The officers recovered a bloody 

knife from [Appellant’s] pocket. Officer Cianfichi testified then he 

placed him the backseat of the police vehicle and Mirandized[2]

[Appellant]. Officer Cianfichi recalled that [Appellant] admitted 

“you got me” and that he was going to kill Leslie and Craig. Officer 

Cianfichi stated that [Appellant] further admitted that he stole the 

gold Buick from the Market Street Inn. Officer Cianfichi also 

testified that [Appellant] disclosed that there was a loaded rifle 

and soda bottles [filled] with gasoline on the front seat of the 

stolen Buick. The Commonwealth produced the rifle seized in the 

investigation and [it was] admitted . . . into evidence.

Officer Cianfichi testified that in the course of his investigation he 

executed a search warrant on [Appellant’s] cell phone. 

Accordingly, the Commonwealth introduced photographs of text 

messages between [Appellant] and Leslie. Officer Cianfichi 

additionally testified that he drove the route the victims reported 

taking and tracked it with his odometer at approximately 19.7 

miles. He stated that Officer Price collected Leslie’s scarf, as well 

as statement from Leslie and Craig. Officer Cianfichi explained 

that the cut mark on Leslie’s sweatshirt went unnoticed, but when 

she brought the sweatshirt to the police station, it was tagged and 

put into evidence. Officer Cianfichi related that .22 caliber bullets 

and a lighter [from Appellant’s pockets] were provided to him by 

Sergeant [Bill] Morgan. Officer Cianfichi further described the 

procedure of collecting and preserving evidence at the Moscow 

Borough Police Department.

[Appellant] presented several character witnesses. The Appellant 

admitted that he stole the Buick SUV and that he drove the stolen 

vehicle on January 3, 2015. He admitted that he followed Craig’s

vehicle. [Appellant] also admitted to texting Leslie while following 

Craig’s vehicle. Nevertheless, he admitted that he broke his 

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966).
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pursuit to retrieve a rifle, bullets, and gasoline from his home. 

Ultimately, he resumed following Craig and Leslie after seeing 

them at Bill’s Supermarket. [Appellant] described his mindset as 

angry and livid and wanting to physically confront Craig Hoover. 

He admitted to intentionally hitting Craig’s vehicle with the stolen 

Buick SUV multiple times. [Appellant] further admitted to exiting 

the vehicle with his knife in his hand. [Appellant] stated that Craig 

pushed Leslie at him which caused them to fall. At this point, 

[Appellant] claimed that he picked up the knife and put it in his 

pocket. [Appellant] admitted to running after Craig with the 

intention of physically fighting him. When he saw the police lights, 

[Appellant] was pursuing Craig. [Appellant] agreed that he spoke 

to Sergeant Morgan, but denied admitting any intent. Additionally, 

[Appellant] conceded that he may have said “I’m going to fucking 

kill you.”

Trial Ct. Op., 5/11/18, at 3-7, 12-15 (citations and footnote omitted). Based 

upon these facts, Appellant was charged with the aforementioned offenses. 

Appellant’s case proceeded to a jury trial beginning on November 15, 

2016. During the third day of trial, the Commonwealth informed the trial court 

and Appellant’s counsel that it had obtained a 2006 Pennsylvania State Police 

report documenting an incident between Appellant and Ms. Bacinelli. N.T. 

Trial, 11/17/16, at 4. In the 2006 incident, Appellant had allegedly threatened 

to, among other things, kill Ms. Bacinelii and stab her then-boyfriend in the 

neck with a three-inch knife. Id. at 5. 

The Commonwealth sought to use the 2006 report as a basis to question 

Appellant’s character witnesses on their awareness of the incident. Id. 

Initially, the Commonwealth acknowledged that it obtained the report midtrial and had it obtained the report earlier, the Commonwealth would have 

filed a motion to have the report admitted under Pennsylvania Rule of 
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Evidence 404(b)3 during the Commonwealth’s case-in-chief. Id. at 4. The 

Commonwealth, however, posited an alternative argument: if Appellant’s 

counsel opened the door during his cross-examination of Ms. Bacinelli, then 

the Commonwealth would be able to redirect Ms. Bacinelli with the contents 

of the report. Id. at 5. 

Appellant’s counsel maintained that because Appellant was not arrested, 

let alone convicted, as a result of the 2006 incident, no character witness 

would even be aware of the report. Id. at 6-7. Counsel then objected 

generally on the basis that the Commonwealth was aware that Appellant’s 

defense strategy was grounded in character and it was “preposterous and 

completely unfair” that the Commonwealth would be permitted to use the 

report to impeach Appellant’s character witnesses. Id. at 9. The 

Commonwealth reiterated that if Appellant’s counsel “opens the door on cross” 

on Ms. Bacinelli, then it should have the ability to redirect her on the 2006 

report. Id. at 10. The court observed that if counsel “opens the door to 

____________________________________________

3

In pertinent part:

(3) Notice in a Criminal Case. In a criminal case the prosecutor 

must provide reasonable notice in advance of trial, or during trial 

if the court excuses pretrial notice on good cause shown, of the 

general nature of any such evidence the prosecutor intends to 

introduce at trial.

Pa.R.E. 404(b)(3).
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question, he opens the door.” Id. The court however, deferred its ruling. Id.

at 11. 

Later, mid-trial, at sidebar and out of the jury’s presence, Appellant’s 

counsel requested clarification of the court’s ruling:

[Appellant’s counsel]: Yes, I want a clarification on the [c]ourt’s

ruling on the 2006 state police report.

THE COURT: We’ll wait to see if the door gets opened and make a 

determination then. As to the character witnesses, there will be 

not allowed any cross on that.

[Appellant’s counsel]: So only if I open the door on crossexamination?

THE COURT: Correct.

[Appellant’s counsel]: Otherwise, inadmissible.

THE COURT: Correct. Now, that could be reopened depending on 

what happens with the witnesses.

[Appellant’s counsel]: Yeah, of course.

Id. at 79.

Later, Appellant’s character witnesses testified without the 

Commonwealth referring to the 2006 report or Appellant’s counsel “opening 

the door.” Then Appellant himself testified, implying it was an accident. Id.

at 233. After the close of Appellant’s direct examination, the following sidebar 

occurred outside of the jury’s presence:

[Commonwealth]: Your Honor, I think the fact that [Appellant] is 

almost saying that this was like an accident or some sort that I 

have the ability to—he has opened the door to the 2006 [report].

THE COURT: Yeah.
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[Appellant’s counsel]: Your Honor, there is no evidence he knew 

about that.

THE COURT: Absolutely. I agree it is allowed.

[Commonwealth]: So I just want to be able to know that I am 

able to cross on that.

[Appellant’s counsel]: Your Honor, there is no evidence that he 

knew about this. You said it was only if I opened the door through 

cross of her[, i.e., the victim].

THE COURT: No, I said or other [sic] way of opening the door. . . 

.

Id. at 234-35. 

Subsequently, the trial court stated that if Appellant denies knowledge 

of the 2006 incident, the Commonwealth could not use the report to impeach 

him:

THE COURT: The way in which you use that if [Appellant] denies 

it you can’t use the collateral piece.

[Commonwealth]: No, I understand.

THE COURT: Do you understand that?

[Commonwealth]: Right, I understand that.

THE COURT: It can be done in regard to was there an incident and 

when it was, but you can’t give him the [2006 report] and have 

him read it because that—

[Commonwealth]: No, no.

[Appellant’s counsel]: If I may renew my objection, . . . he is going 

to say that and this is the problem. I haven’t had time to even 

talk—[Appellant] is being told this, he has heard this for the first 

time today so, your Honor, unfair surprise. If he is going to use 

it, we need to recess for the today [sic] so I can talk to him about 

this.

* * *
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THE COURT: The door opened itself. I told you if the door opened 

it was going to be allowed.

[Appellant’s counsel]: Your Honor, but I need to renew my 

objection again. They had this case for two years.

THE COURT: Right. That’s already been answered. I told you that 

once that the door was opened.

Id. at 237-39.

During the Commonwealth’s cross-examination of Appellant, the 

following exchange occurred, after Appellant again confirmed the incident was 

an accident:

[Commonwealth]. You ever threaten[ed] Leslie before?

[Appellant]. Never.

[Commonwealth]. Never, ever?

[Appellant]. Not that I recall.

[Commonwealth]. How about Leslie or any of her boyfriends?

[Appellant]. Not that I recall.

[Commonwealth]. Not that you recall. Do you remember a 2006 

incident in March, St. Patrick’s Day weekend, parade weekend in 

2006, where you are calling her over and over and over again and 

leaving voicemails?

[Appellant]. I don’t.

[Commonwealth]. You don’t recall that – you don’t recall tell[ing] 

her boyfriend and telling her that he was going to – you were 

going to stick a three-inch blade in her neck?

[Appellant]. No.

[Commonwealth]. And that “F” you, you’re are [sic] a dead man 

–

[Appellant]. No.
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[Commonwealth]. – to her then boyfriend in 2006? You don’t 

recall that incident whatsoever?

[Appellant]. No. Who was her boyfriend in 2006?

[Commonwealth]. I’m asking you.

[Appellant]. I have no idea.

[Commonwealth]. I ask the questions here, sir.

[Appellant]. I’m sorry.

[Commonwealth]. You don’t recall that at all?

[Appellant]. I’m trying to recollect. I don’t.

[Commonwealth]. You don’t remember Pennsylvania State Police 

Officer –

[Appellant’s counsel]: Okay. Asked and answered.

THE COURT: Asked and answered. Move on.

[Appellant’s counsel]: Objection, your Honor, sidebar.

(Discussion held at sidebar as follows:)

[Appellant’s counsel]: Your Honor, I want a mistrial for 

prosecutorial misconduct. He just said with a piece of paper in his 

hand, You don’t remember a Pennsylvania State police officer?”

And he knows damn well that it says in the report that a police –

a state police officer never talked to [Appellant] so he knows that 

–

THE COURT: He doesn’t know that. That’s not the way it reads. 

In fact, in there it reads at the end it says the father says he is 

going to have him contact the state police.

[Appellant’s counsel]: And he says we couldn’t find [Appellant], 

we never got in touch with him.

THE COURT: Denied.

Id. at 263-66. Under the circumstances and the court’s prior ruling, given 

Appellant’s denial, the Commonwealth never introduced the 2006 report into 

evidence. See id.
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At the conclusion of the trial, the jury convicted Appellant of all counts. 

The trial court sentenced Appellant on March 7, 2017, to an aggregate 

sentence of 256 to 612 months’ incarceration. Appellant filed a timely postsentence motion on March 17, 2017, requesting modification of his sentence. 

Thereafter, because Appellant had obtained new counsel shortly before 

sentencing, counsel requested an extension of time to file additional postsentence motions. This trial court granted the request and ordered Appellant 

to file them by April 26, 2017. Appellant, however, filed post-sentence 

motions on May 2, 2017.

4

 

In his post-sentence motions, Appellant asserted that his sentence was 

excessive, the Commonwealth was permitted to cross-examine Appellant 

regarding the 2006 Pennsylvania State Police report improperly, and the 

evidence was insufficient to convict him of each offense. See Post-Sentence 

Mot., 5/2/17, at ¶¶ 27-31, 43-47, 54. The trial court conducted a hearing on 

the post-sentence motions on June 9, 2017. The post-sentence motions were 

denied by operation of law on December 28, 2017. Appellant filed a timely 

notice of appeal on January 26, 2018.

____________________________________________

4 The Commonwealth filed a response that did not acknowledge any 

untimeliness, and following a hearing, the trial court denied the motions by 

operation of law. Accordingly, we conclude Appellant timely appealed from 

the judgment of sentence following the denial of the post-sentence motions

by operation of law.
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After receiving an extension of time to file a Pa.R.A.P. 1925(b) 

statement, Appellant filed a timely concise statement of errors complained of 

on appeal, raising, among other issues, the following: 

a. The Trial Court erred in not granting a new trial based upon 

insufficiency of evidence. The verdict rendered in this matter is 

so contrary to the evidence presented that it shocks the sense of 

justice and requires the granting of a new trial imperative so that 

justice may be given another opportunity to prevail.

b. Moreover, the underlying convictions in this matter are against 

the weight of the evidence in that there was insufficient evidence 

to prove the Commonwealth's allegations and theory of the case. 

There was not sufficient evidence presented to enable the fact -

finder to find every element of each crime beyond a reasonable 

doubt.

Pa.R.A.P. 1925(b) Statement, 3/23/18, at ¶¶ 4-5. The trial court filed a 

responsive opinion under Pa.R.A.P. 1925(a). 

Appellant raises the following issues for our review:

1. Whether the Commonwealth presented insufficient evidence, 

as a matter of law, to support a verdict of guilty in relation to 

two (2) [c]ounts of [c]riminal [a]ttempt to [c]ommit [c]riminal 

[h]omicide, with respect to victims Leslie Bacinelli and Craig 

Hoover; one (1) count of [a]ggravated [a]ssault, with respect 

to victim Craig Hoover’ and one (1) count of [a]ggravated 

[a]ssault with a [d]eadly [w]eapon, with respect to victim Craig 

Hoover[.5]

2. Whether the trial court erred in allowing the Commonwealth to 

cross-examine the Appellant about prior bad acts via an alleged 

statement where he supposedly threatened to kill Leslie 

Bacinelli and her then boyfriend by sticking a 3-inch blade into 

her neck and kill[ing] her boyfriend; and then make reference, 

in front of the jury, to a 2006 State Police [r]eport and State 

____________________________________________

5

In his Rule 1925(b) statement, Appellant did not specify which elements he 

was challenging of any of the crimes for which he was convicted.
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Trooper after the Appellant denied any knowledge of the 

incident[.]

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

sentence at the highest end of the aggravated range of the 

Pennsylvania Sentencing Guidelines, by failing to consider the 

relevant sentencing criteria of the Pennsylvania Sentencing 

Code within 42 Pa.C.S. § 9721(b), failing to consider mitigating 

circumstances, and by failing to state sufficient reasons on the 

record for the sentence imposed[.]

Appellant’s Brief at 9-10.

In his first issue, with regard to Ms. Bacinelli, Appellant asserts that “the 

Commonwealth has failed to adequately establish sufficient evidence to prove 

the element of intent beyond a reasonable doubt.” Id. at 22. Additionally, 

Appellant argues that “the Commonwealth has failed to present sufficient 

evidence to credibly establish that the Appellant utilized a deadly weapon to 

inflict any injury on a vital part of the victim’s body.” Id. 

As to Mr. Hoover, Appellant asserts that the Commonwealth failed to 

present sufficient evidence of intent and “failed to establish sufficient evidence 

to prove beyond a reasonable doubt that the Appellant took any substantial 

step toward making an attempt to kill [Mr. Hoover].” Id. at 24-25. According 

to Appellant, “the evidence clearly shows that the Appellant only wanted to 

fight Mr. Hoover and did not have a specific intent to kill or any intent to kill 

for that matter.” Id. at 26. Additionally, Appellant argues that “the 

Commonwealth has failed to present sufficient evidence to credibly establish 

that he Appellant utilized a deadly weapon to inflict any injury on a vital part 

of the victim’s body.” Id.

The following applies when we review the sufficiency of the evidence:
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A claim challenging the evidence is a question of law. Evidence 

will be deemed sufficient to support the verdict when it establishes 

each material element of the crime charged and the commission 

thereof by the accused, beyond a reasonable doubt. . . . When 

reviewing a sufficiency claim the court is required to view the 

evidence in the light most favorable to the verdict winner giving 

the prosecution the benefit of all reasonable inferences to be 

drawn from the evidence.

Commonwealth v. Nevels, __ A.3d __, __, 2019 WL 256097, at *6 (Pa. 

Super. Jan. 18, 2019) (ellipses in original and citation omitted). Further, “[i]n 

conducting our review, we consider all of the evidence actually admitted at 

trial and do not review a diminished record.” Id. (internal quotation marks 

and citation omitted).

In Pennsylvania, a criminal attempt occurs when a person, “with intent

to commit a specific crime, . . . does any act which constitutes a substantial 

step towards the commission of that crime.” 18 Pa.C.S. § 901(a). Criminal 

homicide is defined as follows: “A person is guilty of criminal homicide if he 

intentionally, knowingly, recklessly or negligently causes the death of another 

human being.” 18 Pa.C.S. § 2501(a). Accordingly, “if a person takes a 

substantial step toward the commission of a killing, with the specific intent in 

mind to commit such an act, he may be convicted of attempted 

murder.” Nevels, 2019 WL 256097, at *7 (citation omitted). Additionally, 

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

to establish the specific intent to kill.” Commonwealth v. Hilliard, 172 A.3d 

5, 12 (Pa. Super. 2017) (internal quotation marks and citation omitted).
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As to aggravated assault, “[a] person is guilty of aggravated assault if 

he . . . 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). Additionally, “[a] person is guilty of aggravated assault if he . . . 

attempts to cause or intentionally or knowingly causes bodily injury to another 

with a deadly weapon[.]” 18 Pa.C.S. § 2702(a)(4). Where attempted 

homicide and aggravated assault charges are based upon the same set of 

facts, proof of attempted homicide is “legally sufficient as a matter of law to 

support [a]ggravated [a]ssault.” Hilliard, 172 A.3d at 13 (addressing the 

Commonwealth’s burden of proof at the preliminary hearing stage).

Initially, we note that Appellant’s sufficiency of the evidence claims are 

waived for failure to properly preserve them in his Rule 1925(b) statement. 

See Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)

(holding that to challenge the sufficiency of the evidence, the 1925(b) 

statement must specify which elements of any crime the Commonwealth 

allegedly failed to sufficiently establish); see also Commonwealth v. Gibbs, 

981 A.2d 274, 281 (Pa. Super. 2009) (stating that “[s]uch specificity is of 

particular importance in cases where, as here, the [a]ppellant was convicted 

of multiple crimes each of which contains numerous elements that the 

Commonwealth must prove beyond a reasonable doubt”).

Even if Appellant had preserved his sufficiency challenges, his claims do 

not entitle him to relief. As the trial court noted, Appellant 
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was charged with two (2) [c]ounts of [c]riminal [a]ttempt –

[h]omicide, one of which was based upon the allegation that 

[Appellant] cut the face of Leslie Bacinelli from lip to cheek with a 

knife and then attempt to cut Leslie’s throat, but was unsuccessful 

due to the scarf she was wearing. This factual basis also served 

the basis for one of each of the charges of [a]ggravated [a]ssault 

and [a]ggravated [a]ssault with a [d]eadly [w]eapon. Here, the 

Commonwealth presented detailed and thorough testimony of 

Leslie Bacineli stating that [Appellant] followed the vehicle in 

which she was a passenger for a lengthy distance before violently 

ramming the vehicle multiple times, and ultimately cased a crash. 

Leslie further testified that [Appellant] grabbed her by her hair, 

held her face, and told her to “take [her] last fucking breath” 

before slicing her face from lip to cheek and subsequently 

attempting to cut her throat with a knife. . . . the totality of the 

testimony and evidence presented, viewed in light most favorable 

to the Commonwealth as verdict winner, is sufficient to establish 

the elements of attempted homicide.

* * *

Similarly, the [c]riminal [a]ttempt – [h]omicide, [a]ggravated 

[a]ssault, [and a]ggravated [a]ssault with a [d]eadly [w]eapon . 

. . charges as to Craig were based upon the allegation that after 

[Appellant] attempted to kill Leslie Bacinelli, he chased victim 

Craig Hoover with a knife expressly stating that his intention was 

to kill him. Again, the evidence, viewed in a light most favorable 

to the Commonwealth as verdict winner, is sufficient to establish 

each of the elements of the above-charges if believed by the jury. 

Leslie and Craig both extensively testified regarding the lengthy 

pursuit [Appellant] engaged in before ultimately violently 

ramming their vehicle multiple times, causing them to crash. Both 

Leslie and Craig testified that [Appellant] chased after Craig with 

a knew after attacking Leslie[.]

Trial Ct. Op. at 24-25, 28. Because the trial court’s decision is supported by 

the record, we agree with the trial court that Appellant’s sufficiency of the 

evidence claims are without merit in light of the overwhelming evidence of his 

guilt. See Nevels, __ A.3d at __, 2019 WL 256097 at *6.
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In his second issue, Appellant challenges certain cross-examination by 

the Commonwealth as highly prejudicial. Appellant’s Brief at 33. Specifically, 

Appellant objects to the question, as quoted above: “Do you remember a 2006 

incident in March, St. Patrick’s Day weekend, parade weekend in 2006, where 

you are calling her over and over and over again and leaving voicemails?” 

N.T. Trial, 11/17/16, at 264. Appellant also asserts that the Commonwealth 

improperly “continued to cross-examine . . . Appellant by making reference to 

a Pennsylvania State Trooper.” Appellant’s Brief at 33.

In Appellant’s view, 

the trial court committed prejudicial error and erred as a matter 

of law in allowing the Commonwealth to utilize the 2006 

Pennsylvania State Police Report [because] the trial court did not 

perform the proper analysis to determine whether the evidence 

was relevant, and if relevant[,] the trial court never considered or 

balanced the factors as to whether the probative value of the 

evidence [was] outweighed by the danger of unfair prejudice.

Id. Additionally, Appellant argues that the trial court “indicated that no 

cautionary instruction or limiting instruction was required because the [police] 

report was not actually admitted into evidence. . . .” Without a limiting or 

cautionary instruction, Appellant claims the jury was unaware that they could 

not consider the form and content of the Commonwealth’s question[s 

regarding the report, including a question about a Pennsylvania State 

Trooper].” Id. at 35.

When we consider the admission of evidence at trial, we observe that 

it

is within the sound discretion of the trial court and will be reversed 

only upon a showing that the trial court clearly abused its 
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discretion. An abuse of discretion is not merely an error of 

judgment, but is rather the overriding or misapplication of the law, 

or the exercise of judgment that is manifestly unreasonable, or 

the result of bias, prejudice, ill-will or partiality, as shown by the 

evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (en 

banc) (citations and quotation marks omitted). 

“Relevance is the threshold for admissibility of evidence.” Id. at 358 

(citation omitted). In general, “[a]ll relevant evidence is admissible . . . . 

Evidence that is not relevant is not admissible.” Pa.R.E. 402. “The court may 

exclude relevant evidence if its probative value is outweighed by a danger of 

. . . unfair prejudice[.]” Pa.R.E. 403. When considering whether evidence 

may be unfairly prejudicial, “a cautionary jury instruction may ameliorate the 

prejudicial effect of the proffered evidence.” Tyson, 119 A.3d at 360. 

However, a trial court may decline to give a cautionary instruction where it 

would call unnecessary attention to a comment made by a prosecutor. 

Commonwealth v. Bracey, 831 A.2d 678, 683 (Pa. Super. 2003). 

Initially, we note that Appellant’s counsel did not object to the 

Commonwealth’s questioning of Appellant as to whether he remembered 

repeatedly threatening Ms. Bacinelli and her then-boyfriend in 2006. Further, 

Appellant’s counsel objected to the question referring to the Pennsylvania

State Trooper as “asked and answered,” which was sustained by the trial 

court. See N.T. Trial, 11/17/16, at 264-65. Soon after, Appellant’s counsel 

requested a mistrial, arguing that the State Police had not contacted Appellant 

about an incident in 2006. See id. at 265. The trial court denied the request 
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for a mistrial. See id. Accordingly, Appellant has failed to preserve his 

appellate issue that the question unfairly broadcasts the 2006 police report to 

the jury, allowing them to hear evidence that was more prejudicial than its

probative value. See Appellant’s Brief at 35; Pa.R.A.P. 302(a) (“Issues not 

raised in the lower court are waived and cannot be raised for the first time on 

appeal.”).

Appellant also argues that it was error for the trial court not to issue a 

cautionary instruction after the Commonwealth mentioned a Pennsylvania 

State Trooper in a question to Appellant on cross-examination. However, 

Appellant’s counsel did not request a cautionary instruction during trial. 

Additionally, the trial court chose not to issue a cautionary instruction because

“this would [have] cause[d] juror confusion and unnecessarily highlight[ed] 

the 2006 police report.” Trial Ct. Op., 5/11/18, at 39. Accordingly, this issue 

is waived, and even if it were preserved, we discern no error on the part of 

the trial court in not issuing a cautionary instruction. See Bracey, 831 A.2d 

at 683.

In his final issue, Appellant challenges discretionary aspects of his 

sentencing. Appellant asserts that 

[n]ot only did the trial court impose the highest aggravated range 

sentence for [the two counts of attempted homicide], but [the 

court] also chose to run both of those sentences consecutively 

despite Appellant’s lack of any criminal history. . . . [I]t appears 

as though the trial court failed to consider any mitigating 

circumstances on the record before imposing aggravated 

sentences in the top end of the range and also running both counts 

consecutive to each other. In running the sentences 
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consecutively, the failure to adequately consider mitigating 

circumstances was compounded.

Appellant’s Brief at 39-40. According to Appellant, his lack of a criminal record 

and his rehabilitative needs were mitigating circumstances that should have 

resulted in a shorter sentence. Id. at 42.

We note that an appeal challenging the discretionary aspects of 

sentencing is not an appeal as of right. Commonwealth v. Dunphy, 20 A.3d 

1215, 1220 (Pa. Super. 2011). 

To determine whether an appellant has properly preserved the 

discretionary aspects of sentencing for appellate review, we must 

conduct the following four part analysis: (1) whether appellant has 

filed a timely notice of appeal;(2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence;(3) whether appellant’s brief has a fatal defect; and (4) 

whether there is a substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code.

Id. (footnotes and citation omitted).

Here, Appellant filed a timely notice of appeal, preserved his sentencing 

challenges in a post-sentence motion, and included a Pa.R.A.P. 2119(f) 

statement in his brief. Accordingly, we turn to whether a substantial question 

exists in this matter.

We note that, “[g]enerally speaking, the court’s exercise of discretion in 

imposing consecutive as opposed to concurrent sentences is not viewed as 

raising a substantial question that would allow the granting of allowance of 

appeal.” Commonwealth v. Mastromarino, 2 A.3d 581, 586 (Pa. Super. 

2010) (citation omitted). However, “an excessive sentence claim—in 

conjunction with an assertion that the court failed to consider mitigating 
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factors—raises a substantial question.” Commonwealth v. Caldwell, 117 

A.3d 763, 770 (Pa. Super. 2015) (en banc) (citation omitted). Accordingly, 

Appellant presents a substantial question in this appeal.

Where a sentence is imposed within the guidelines, we may only reverse 

the trial court if we find that the circumstances of the case rendered the 

application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). 

Our review of the reasonableness is based upon the factors contained in 42 

Pa.C.S. § 9781(d),6 and the trial court’s consideration of the general 

sentencing standards contained in 42 Pa.C.S. § 9721(b).7 We note that a trial 

court has discretion whether to sentence a defendant to consecutive or 

concurrent sentences for multiple offenses. See Commonwealth v. Hill, 66 

____________________________________________

6 Section 9781(d) includes the following:

(d) Review of record.—In reviewing the record the appellate 

court shall have regard for:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

7 Section 9721(b) provides that the court must follow the general principal 

that “the sentence imposed should call for confinement that is consistent with 

the protection of the public, the gravity of the offense as it relates to the 

impact on the life of the victim and on the community, and the rehabilitative 

needs of the defendant.” 42 Pa.C.S. § 9721(b).
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A.3d 365, 370 (Pa. Super. 2013) (“[I]n imposing sentence, the trial judge may 

determine whether, given the facts of a particular case, a sentence should run 

consecutive to or concurrent with another sentence being imposed.”).

In fashioning a sentence, the trial court is required to consider the 

particular circumstances of the offense and the character of the defendant. 

See 42 Pa.C.S. § 9721(b); Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009). “[W]here the sentencing judge had the benefit of a 

pre-sentence investigation report [(PSI)], it will be presumed that he or she 

was aware of the relevant information regarding the defendant’s character 

and weighed those considerations along with mitigating statutory factors.” 

Ventura, 975 A.2d at 1135 (citation omitted). 

In this matter, while Appellant’s sentences were structured to be served 

consecutively, each sentence fell within the guideline range. The trial court 

was well aware of the nature and circumstances of the crimes involved, 

particularly since it had considered the PSI. See id. At sentencing, the trial 

court stated that it:

reviewed [Appellant’s] presentence report, looked over what [it] 

considered to be mitigating and aggravating factors. 

The district attorney has asked [the court to] go outside the 

guideline [range]. And the [c]ourt is not going to go outside but 

is going to sentence in the aggravated range. In regard to the 

attempted murder counts based on not only what [Appellant] has 

stated but the facts and circumstances surrounding this case 

including the time of planning it, the length of time over which it 

occurred, the miles driven and the multiple victims that this wasn’t 

something that just happened quickly.
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And it really will be with the victims and your children for a very, 

very long time because of your actions that night.

N.T. Sentencing, 3/7/17, at 33-34.

Accordingly, a review of the record reveals no basis to conclude that the 

trial court failed to consider or inappropriately weighed the lack of a criminal 

record or Appellant’s rehabilitative needs in light of the gravity of the offense 

and the impact on victims. On this basis, we cannot conclude that the 

consecutive aggravated range sentences imposed were “clearly 

unreasonable.” See 42 Pa.C.S. § 9781(c). Therefore, Appellant’s

discretionary aspects of sentencing claim entitles him to no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/25/2019