J. S17006/15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

Appellee : 

: 

 v. : 

 : 

JULIE C. RIGGS, : 

 : 

 Appellant : No. 348 WDA 2014 

Appeal from the Order January 24, 2014 

In the Court of Common Pleas of Cambria County 

Criminal Division No(s).: CP-11-CR-0000850-2012 

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ. 

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 13, 2015 

Appellant, Julie C. Riggs, appeals pro se from the judgment of 

sentence entered in the Cambria County Court of Common Pleas following 

her jury convictions of resisting arrest and disorderly conduct.1 She avers 

(1) the evidence was insufficient; (2) the verdict was against the weight of 

the evidence; (3) trial counsel was ineffective for unduly influencing her not 

to testify at trial; and (4) the trial court acted with bias in imposing a 

sentence in the aggravated range. We affirm. 

The trial court summarized the evidence adduced at the jury trial: 

On St. Patrick’s Day . . . March 17, 2012, at 2:17 a.m., all 

on-duty Johnstown Police Officers responded to a large 

 

*

 Former Justice specially assigned to the Superior Court. 

1

 18 Pa.C.S. §§ 5104, 5503(a)(4). 
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fight/disturbance outside the Coney Island restaurant in 

downtown Johnstown. Several persons were . . . yelling 

outside of the restaurant, and various people were fighting 

inside the restaurant. Approximately 75 persons were onscene, and numerous persons were detained by the 

Johnstown Police. 

Trial Ct. Op., 4/4/14, at 5-6.2

The court summarized the trial testimony of the arresting officer, 

Reginald Floyd, as follows: 

Upon arriving on-scene, Officer Floyd was instructed . . . to 

guard 3 individuals who were being detained, with their 

hands on the restaurant’s outside wall. While watching 

these individuals, [Appellant] nudged into/bumped 

into/utilized blunt force on Officer Floyd’s lower back, 

causing him to take 2-3 steps toward the restaurant wall. 

Floyd turned around, and confronted [Appellant] by 

stating, “hey you bumped into me.” [Appellant] responded 

“oh well,” and leaned into her vehicle to retrieve 

something. 

Id. at 6. 

Our review of the trial transcript reveals the following testimony by 

Officer Floyd. When Appellant replied “[O]h, well,” he said “[Y]ou know 

what, get your fat ass in the car and get out of here, call it a night. 

[Appellant] said, no, I’m not going anywhere, I’m going back into Coney 

Island.” N.T. Trial, 10/10/13, at 94. Officer Floyd testified, “I said, [O]kay, 

 

2

 At the sentencing hearing, the trial court recalled there were “30 to 70 

people that were obviously under the influence of alcohol or some other 

substance,” “people were banging on the windows of the Coney Island 

Restaurant,” it was “a near riot situation,” and there were “maybe four or 

five police officers” to handle or control the crowd. N.T. Sentencing, 

12/17/13, at 7, 8. 
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just get in the restaurant and get out of here because I was somewhat 

concerned about the three people I had detained because . . . that was my 

original mission.” Id. at 95. However, Appellant was swearing, was 

“demonstrative,” and yelled, “Eff you, you don’t know who you’re eff-ing 

dealing with, you’re an eff-ing peon, you don’t know, better Google my 

name[, and] you apparently don’t know who I am.” Id. at 95-96. 

Officer Floyd believed Appellant should not go into the restaurant 

because he did not know what would happen with the large crowd who had 

been drinking. Id. At that point, Officer Floyd told Appellant she was under 

arrest, grabbed her left wrist, and put on one handcuff. Id. Appellant 

“pull[ed] back and started fighting.” Id. at 96. The officer told her to stop 

resisting, warned her he would use pepper spray if she did not stop, and 

“pulled her forward and swept her front leg.” Id. at 96. Appellant fell on 

“her knees still resisting.” Id. Officer Floyd “gave her a couple more 

warnings, stop, you’re going to be pepper sprayed,” but Appellant did not 

stop and the officer did pepper spray her. Id. Officer Floyd was concerned 

because a person who has on one handcuff and is pulling away presents “a 

dangerous situation,” as the handcuff could become a weapon. Id. at 97. 

At trial, the officer apologized for his “fat ass” remark and acknowledged it 

“was very unprofessional.” Id. at 105. 

This case proceeded to a jury trial on October 10, 2013, on the 

charges of resisting arrest, a misdemeanor of the second degree, and 
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disorderly conduct, a misdemeanor of the third degree. The Commonwealth 

called three witnesses: (1) Officer Floyd, (2) Lawrence Burke, one of the 

people being detained by Officer Floyd when the incident with Appellant 

occurred; and (3) Daniel Hockenberry, an eyewitness to the incident. 

Appellant did not testify, but presented the testimony of Brenda Shaffer, an 

employee at the Coney Island restaurant on the night in question. The jury 

found Appellant guilty of both charges, and the trial court subsequently 

found her not guilty of harassment. We note that at trial, Appellant was 

represented by privately retained counsel, Thomas Dickey, Esq. 

On December 17, 2013, the trial court convened a sentencing hearing. 

The court indicated its intention to impose a sentence in the aggravated 

range, and Appellant’s counsel strenuously argued against jail time. The 

court did impose an aggravated-range sentence as follows: (1) for resisting 

arrest, imprisonment of three days to twelve months, with parole after three 

days, and (2) for disorderly conduct, twelve months’ probation, to run 

concurrently. 

On December 27, 2013, Appellant filed a timely, counseled postsentence motion. On the same day, Attorney Dickey filed a petition to 

withdraw from representation, averring Appellant wished to pursue claims 

that he provided ineffective assistance. The court granted counsel leave to 

withdraw on January 3, 2014. On January 27th, the court denied Appellant’s 

post-sentence motion. We note Appellant did not make any claim before the 
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trial court of counsel’s ineffective assistance, either in her post-sentence 

motion or after the court allowed Attorney Dickey to withdraw.3 Appellant 

filed a pro se timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) 

statement of matters complained of on appeal. As stated above, Appellant 

proceeds pro se in this appeal. 

Appellant’s first two issues challenge the sufficiency and weight of the 

evidence, and include a multitude of sub-claims. In the statement of the 

facts section in her appellate brief, Appellant alleges she “was advised 

against her wishes not to testify by her counsel so her account of the facts of 

the case are not on the appeal record for review.”4 Appellant’s Brief at 7. 

She then presents her account of the incident, which differs from Officer 

Floyd’s trial testimony.5 Id. We cannot consider this version of the facts, 

 

3

 As we discuss infra, however, she raised the claim for the first time in her 

Pa.R.A.P. 1925(b) statement. 

4

 Appellant also avers she “filed a civil suit in March 2014 related to this 

criminal case,” and that “[h]er sworn factual background statements . . . can 

be found by reviewing 3:14-v-00046-KRG-KAP RIGGS v. FLOYD et al, 

Docket No. 8, Amended Complaint.” Appellant’s Brief at 7. These 

documents are not included in the certified record in this appeal, and 

therefore we do not review them. 

5

 Appellant avers the following in her appellate brief. When she and a friend 

entered the Coney Island restaurant, the “fighting and chaos [were] already 

over,” “[t]he officers had the scene under control and patrons continued to 

go in and out of the restaurant.” Appellant’s Brief at 7. When Officer Floyd 

said she had bumped into him, Appellant said, “I’m sorry Sir, I didn’t realize 

I had.” Id. at 8. Officer Floyd, however, “angrily replied, ‘Well you did!,” 

and Appellant apologized again, turned, and walked away “to avoid any 

further confrontation.” Id. Officer Floyd “yelled in her direction, ‘Hey Fat 
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however, because it is not a part of the certified record. See Pa.R.A.P. 

1921, note (“An appellate court may consider only the facts which have been 

duly certified in the record on appeal.”). Instead, we review only the 

evidence adduced at trial. 

Appellant’s first issue on appeal is the sufficiency of the evidence to 

establish resisting arrest and disorderly conduct. She presents two 

arguments in support, which we address seriatim. First, Appellant claims 

the resisting arrest conviction cannot stand because the underlying arrest for 

disorderly conduct was unlawful. She contends there was no evidence 

suggesting she “had the intent of having any contact with Officer Floyd let 

along being disorderly or causing any type of commotion to commit a 

crime.” Appellant’s Brief at 15. Appellant further avers “Officer Floyd 

conveniently omitted in the Affidavit of Probable Cause [attached to the 

criminal complaint] that he called [her] a ‘Fat Ass’ twice,” and that had he 

 

Ass!,’” Appellant turned and asked “in an offended tone, ‘What did you just 

call me?’,” and the officer again called her “a Fat Ass.” Id. Appellant told 

him “his comments were uncalled for,” and the officer immediately grabbed 

and twisted her left wrist, “leg swept her” foot, causing her to fall on her 

knee and both forearms and causing her cell phone to fall and break. Id. at 

9. “Without warning . . . Officer Floyd pepper sprayed [her] eyes and chest 

area.” Id. Appellant screamed “You’re getting sued for this!,” and the 

officer “replied, ‘You’re under arrest!’” Id. at 9. 

Appellant further states she was transported to the police garage and then 

the hospital “to have her eyes flushed out” and be checked for other injuries. 

Id. at 9. An officer asked her to take a blood alcohol level test, but 

Appellant refused because “she landed on both forearms and they were 

badly bruised and lacerated.” Id.
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not called her this inappropriate name, “the altercation never would have 

taken place.” Id. We find no relief is due. 

This Court has stated: 

[O]ur standard of review of sufficiency claims requires that 

we evaluate the record “in the light most favorable to the 

verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence.” 

“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.” 

Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (citations 

omitted). 

In assessing the trial court’s ruling [on a post-sentence 

motion], we must “review[ ] the trial court’s exercise of 

discretion, not the underlying question of whether the 

verdict is against the weight of the evidence.” The factfinder is free to believe all, part, or none of the evidence; 

an appellate court will not make its own assessment of the 

credibility of the evidence. “The trial court will only award 

a new trial when the jury’s verdict is so contrary to the 

evidence as to shock one’s sense of justice.” In turn, we 

will reverse a trial court’s refusal to award a new trial only 

when we find that the trial court abused its discretion in 

not concluding that the verdict was so contrary to the 

evidence as to shock one’s sense of justice. In effect, “the 

trial court’s denial of a motion for a new trial based on a 

weight of the evidence claim is the least assailable of its 

rulings.” 

Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super. 2013) (citations 

omitted). 

Appellant was convicted under the following subsection of the 

disorderly conduct statute: “A person is guilty of disorderly conduct if, with 
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intent to cause public inconvenience, annoyance or alarm, or recklessly 

creating a risk thereof, he: . . . (4) creates a hazardous or physically 

offensive condition by any act which serves no legitimate purpose of the 

actor.” See 18 Pa.C.S. § 5503(a)(4). 

Inherent in the act of physically attempting to impede a 

law enforcement officer from carrying out his or her official 

duties in the public arena is the risk of creating a condition 

hazardous or physically offensive in nature. [W]e have 

held, ‘the reckless creation of a risk of public alarm, 

annoyance or inconvenience is as criminal as actually 

causing such sentiments.’” 

Commonwealth v. Love, 896 A.2d 1276, 1286 (Pa. Super. 2006) (citation 

omitted). 

The Pennsylvania Crimes Code defines resisting arrest as follows: 

A person commits a misdemeanor of the second degree if, 

with the intent of preventing a public servant from

effecting a lawful arrest or discharging any other duty, the 

person creates a substantial risk of bodily injury to the 

public servant or anyone else, or employs means justifying 

or requiring substantial force to overcome the resistance. 

18 Pa.C.S. § 5104. “[A] lawful arrest is an element of the crime of resisting 

arrest,” and “the lawfulness of an arrest depends on the existence of 

probable cause to arrest the defendant.” Rahman, 75 A.3d at 504 

(citations omitted). “Probable cause to arrest exists when the facts and 

circumstances within the police officer’s knowledge and of which the officer 

has reasonably trustworthy information are sufficient in themselves to 

warrant a person of reasonable caution in the belief that an offense has been 

committed by the person to be arrested. Probable cause justifying a 
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warrantless arrest is determined by the totality of the circumstances.” 

Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa. Super. 2013) (citations 

omitted). 

In the instant appeal, we disagree with Appellant’s claim that “[t]here 

is no reference anywhere in the record that suggests [she] had the intent of 

. . . causing any type of commotion to commit a crime.”6 Appellant’s Brief at 

16. At trial, Officer Floyd clearly testified that although he made an 

“unprofessional” comment to Appellant, he initially told her to leave and “call 

it a night.” N.T. Trial at 94, 105. Appellant refused and stated she would 

instead return inside the restaurant. Id. at 94. Officer Floyd agreed, 

stating, “[O]kay, just get in the restaurant and get out of here.” Id. at 95. 

Instead of leaving, however, Appellant was “demonstrative” and yelled, “Eff 

you, you don’t know who you’re eff-ing dealing with, you’re an eff-ing peon, 

you don’t know, better Google my name[, and] you apparently don’t know 

who I am.” Id. at 95-96. It was at this point that Officer Floyd placed 

Appellant under arrest. Id. at 96. 

We emphasize, as the trial court did, the context in which this 

exchange occurred. At the time, all members of the Johnstown police 

 

6

 Appellant further avers, “No one in their [sic] right mind would purposely 

bump into an officer for no reason or respond ‘Oh well’ if the officer told 

them they [sic] bumped into him.” Appellant’s Brief at 16. However, that 

was exactly the testimony of Officer Floyd; he testified that Appellant 

“bumped into [him], nudged [him] from the rear,” with enough force to 

cause him to lose his balance and take three steps forward. N.T. Trial, at 

92. 
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force—four or five officers, according to the trial court—were called to 

respond to fights and intoxicated behavior at a crowded restaurant on the 

night of St. Patrick’s Day. Appellant’s own witness, Brenda Shaffer—who 

was the person who called the police—testified that “[t]he crowd” of 

“[d]runks” had become “really out of hand and banging on the window.” Id. 

at 142. While Appellant was yelling and swearing at Officer Floyd, he was 

watching three people who were being detained against a wall; indeed, he 

had told her to leave because he was “concerned about the three people 

[he] had detained because . . . that was [his] original mission.” Id. at 95. 

Furthermore, we note Appellant also wholly ignores the testimony of 

the Commonwealth’s other witnesses, which corroborated that of Officer 

Floyd. Lawrence Burke was one of the individuals being detained by Officer 

Floyd when Appellant bumped into the officer. He testified to the following. 

When Appellant brushed into Officer Floyd, the officer asked her twice where 

she was going, and she did not respond. Appellant “turned around and was 

like, f--- you.” N.T. Trial at 33. They argued for “a good two minutes,” and 

Appellant was yelling. Id. at 35, 36. Burke thought the officers “were 

trying to get her to calm . . . down but it got so out of control.” Id. at 36. 

The officers told Appellant “to get on the ground” but she refused, and “she 

was resisting for a good minute and a half . . . yelling back at the police like, 

no, I’m going to.” Id. at 36-37. Burke also testified he had been drinking 

alcohol, and eventually pleaded to public drunkenness and disorderly 
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conduct. Id. at 23, 37. 

Furthermore, Daniel Hockenberry testified to the following. He was 

not drinking alcohol, and arrived at Coney Island sometime after 2:00 a.m. 

to eat. Id. at 73. At that time, he knew Officer Floyd and recognized him 

outside the restaurant. Id. at 75-76. Hockenberry saw a woman “trying to 

talk” to Officer Floyd, and “Officer Floyd instructed her to go back to her car” 

a few times. Id. at 76-77. “They had words, and the next thing 

[Hockenberry knew,] she was face-first into the sidewalk.” Id. at 77. One 

officer tried to handcuff her, but “she was kicking.” Id. “Officer Floyd 

maced her and they got the handcuffs on her.” Id.

Finally, we reject Appellant’s request, despite her repeated claims that 

her attorney unduly influenced her to not testify, to consider her account of 

the events. Her version of the facts is not a part of the record and therefore 

not before this Court to consider. Instead, the jury, as finder of fact, was 

free to believe all, part, or none of the evidence presented at trial, and this 

Court cannot re-assess the credibility of the witnesses. See Olsen, 82 A.3d 

at 1049. 

In light of the foregoing, we disagree with Appellant’s contention that 

the record is devoid of evidence suggesting she intended to “be[ ] disorderly 

or caus[e] any type of commotion to commit a crime.” See Appellant’s Brief 

at 16. Her claims that she “simply went to her car to get her cell phone to 

make a call,” and that no altercation would have occurred if Officer Floyd 
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had not “called her an inappropriate name” ignores the testimony by Officer 

Floyd that after he told her twice to leave, she yelled and swore at him. See 

id. Appellant’s argument also ignores the testimony of Burke and 

Hockenberry. After evaluating the record in the light most favorable to the 

Commonwealth, we hold the evidence was sufficient for the jury to find 

Appellant recklessly created a risk of public annoyance or alarm and 

hazardous or physically offensive condition without any legitimate purpose. 

See 18 Pa.C.S. § 5503(a)(4); Rahman, 75 A.3d at 500; Love, 896 A.2d at 

1286. Thus, we do not disturb her conviction of disorderly conduct. 

Appellant’s sole challenge to the sufficiency of the evidence for 

resisting arrest is that her arrest was unlawful. We disagree. After 

reviewing the totality of the circumstances, we hold Officer Floyd had 

probable cause to arrest her for disorderly conduct. See Weaver, 76 A.3d 

at 565.

Appellant’s next argument against the sufficiency of the evidence is 

that her “language is protected by the First Amendment because no ‘fighting 

words’ were used and Officer Floyd was never threatened by [her] 

statements.” Appellant’s Brief at 16. This statement is a heading in 

Appellant’s argument section, and there is no further argument concerning 

the statements she made to Officer Floyd. Instead, the ensuing portion of 

her brief—six sentences in total—is comprised of statements of law. Id. at 

16-17. Without any further discussion, we find this claim waived. See
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Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) (noting 

failure to develop argument with citation to and analysis of relevant 

authority waives issue on review). 

Appellant’s second issue on appeal is that the jury’s verdict was 

against the weight of the evidence.7 Again, she advances several theories in 

support.8 First, she argues the “court abused its discretion by not allowing 

evidence of Officer Floyd’s prior acts of physical aggression.” Appellant’s 

Brief at 18. This claim pertains to an evidentiary ruling, and not the weight 

of the evidence, and this evidentiary challenge was not raised in Appellant’s 

pro se court-ordered Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in 

accordance with the provisions of this paragraph (b)(4) are waived.”). In 

the Rule 1925(b) statement, under the heading, “New Trial (Weight of the 

Evidence),” Appellant states in pertinent part: 

[Appellant] had concrete evidence she was not permitted 

to disclose to the jury about Reginald Floyd’s past history 

of lying under oath when he was testifying about his 

previous assault on a female citizen. The greater weight of 

the evidence showed Reginald Floyd to be the aggressor 

and to have acted wrongfully with respect to the offenses 

of which [Appellant] was convicted. 

 

7

 This issue is preserved for appellate review, as it was raised in Appellant’s 

post-sentence motion. See Pa.R.Crim.P. 607(A). 

8

 For ease of disposition, we have reordered the four arguments under 

Appellant’s weight of the evidence claim. 
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Appellant’s Concise Statement of Errors Complained of on Appeal, 3/26/14, 

at 5. Appellant only indirectly refers to the exclusion of evidence as a 

supporting argument for her main claim—that Officer Floyd was not credible. 

Accordingly, we agree with the Commonwealth that this issue is waived. See 

Pa.R.A.P. 1925(b)(4)(vii); Commonwealth’s Brief at 13-14. 

Second, Appellant alleges that between the affidavit of probable cause 

accompanying the criminal complaint and the suppression hearing, Officer 

Floyd made inconsistent statements as to when he placed her under arrest. 

Appellant fails to cite the place in the record where the alleged inconsistent 

statements were presented to the jury at trial. See Pa.R.A.P. 2117(c) 

(requiring statement of case to specify state of proceedings at which issue 

sought to be reviewed on appeal was raised), 2119(e) (requiring same of 

argument section of appellate brief). Nevertheless, this Court has gleaned 

the following. 

On appeal, Appellant cites the following statement in the affidavit of 

probable cause: “[Appellant] stated that if I continued to yell at [her,] she 

would file harassment charges. I then did inform [her she] was under 

arrest.” Appellant’s Brief at 18. This passage was read aloud at trial by 

Officer Floyd. N.T. Trial at 128-29. 

Appellant also cites Officer Floyd’s testimony at page 55 of the 

suppression hearing transcript. Her appellate brief omits some of the 

testimony; we set forth the complete passage, emphasizing the part missing 
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in Appellant’s brief: 

[Appellant] said, I’m not going in my car, I’m going back 

into Coney Island. So that’s when I said, you know 

what, get in Coney Island, get out of here. [She] 

continued to run [her] mouth, you don’t know who you’re 

messing with, blah, blah, blah, blah, blah, blah, blah. I 

said, at this point, you know what, you’re under arrest. 

See N.T. Suppression H’rg, 1/17/13, at 55 (emphasis added). Appellant 

next claims Officer Floyd “contradict[ed] himself a few questions later” with 

this testimony: 

. . . I looked at Coney Island, there was a large crowd of 

people, and [Appellant] was somewhat agitated. So at this 

point I made the decision that I cannot let [her] go into 

Coney Island. At that point, I told [her she was] under 

arrest and needed to stop.” 

Appellant’s Brief at 18 (quoting N.T. Suppression H’rg at 56). 

Our review of the trial transcript, however, reveals that neither of the 

suppression hearing passages was presented to the jury at trial. 

Accordingly, Appellant’s premise is incorrect; the jury did not hear the above 

suppression hearing testimony and thus any weight of the evidence 

challenge cannot be based on these statements. 

Appellant’s next argument in her weight of the evidence challenge is 

that “[t]he greater weight of the evidence shows that [her] acts and 

omissions . . . were justified for purposes of 18 Pa.C.S. § [5]503,” as “she 

could tell [Officer Floyd] was in an agitated state based on his conduct and 

words.” Appellant’s Brief at 20. Appellant avers she walked away from 

Officer Floyd, but “he continued to harass and follow her towards the 
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entrance of Coney Island,” and therefore her “actions were justified . . . 

because she was not the person who initiated the contact nor did she want 

it.” Id. Appellant’s next claim is that she was “unduly influenced not to 

testify,” and thus the jury only heard “the testimony of Officer Floyd, in 

which he painted [her] in a very negative light.” Id. We find no relief due. 

The jury heard the evidence presented and was free to believe all, 

part, or none of it. See Olsen, 82 A.3d at 1049. We thus also reject any 

claim based on Appellant’s account of the incident; as stated above, we 

cannot consider any alleged fact not included in the certified record. See

Pa.R.A.P. 1921, note. For all the foregoing reasons, we find no relief due on 

Appellant’s weight of the evidence claim. 

Appellant’s third issue on appeal is whether the trial court should 

“have granted a new trial due to ineffective assistance of counsel.” 

Appellant’s Brief at 21. She avers “[t]he following arguments were made in 

[her] Concise Statements of Errors Complained of on Appeal” and “have 

considerable merit.” Id. Appellant asserts trial counsel (1) unduly 

influenced her not to testify, despite her repeated statements that she 

wished to testify; (2) failed to investigate and subpoena certain witnesses 

about the alleged destruction or concealment of a videotape of the incident; 

and (3) failed to impeach two Commonwealth witnesses. 

We hold this issue is waived for failure to raise it before the trial 
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court.9 See 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.”). Furthermore, a 

claim of ineffective assistance of counsel should generally be deferred to 

collateral review under the Post Conviction Relief Act10 (“PCRA”). 

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). We note that 

Appellant may be precluded from PCRA review because of her relatively 

short sentence.11 See 42 Pa.C.S. § 9543(a)(1)(i) (stating that to be eligible 

for PCRA relief, petitioner must be currently serving sentence of 

imprisonment, probation or parole at time relief is granted). Nevertheless, 

the Pennsylvania Supreme Court clearly held that any review of a 

ineffectiveness claim before collateral review is within the trial court’s 

discretion. Holmes, 79 A.3d at 563 (“[W]e appreciate that there may be 

extraordinary circumstances where a discrete claim . . . of trial counsel 

ineffectiveness is apparent from the record and meritorious to the extent 

 

9

 As stated above, Appellant raised the ineffectiveness claim for the first 

time in her Rule 1925(b) statement. However, this inclusion does not 

preserve the issue for appeal, as at that point, the trial court had lost 

jurisdiction to hear any new claim or enter relief. See Pa.R.A.P. 1701(a) 

(stating general rule that after appeal is taken, trial court may no longer 

proceed further in matter). 

10 42 Pa.C.S. §§ 9541-9546. 

11 On December 17, 2013, the court imposed a maximum sentence of twelve 

months’ imprisonment with immediate probation and a concurrent term of 

twelve months’ probation. Assuming Appellant has not violated her 

probation or parole, the sentence would have expired on December 17, 

2014. 
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that immediate consideration best serves the interests of justice; and we 

hold that trial courts retain their discretion to entertain such claims.”).12 

Here, the court was not presented with any proper claim of ineffectiveness. 

Appellant’s final issue on appeal is a challenge to the discretionary 

aspects of her sentence. She first avers her sentence, which is in the 

aggravated range, is manifestly excessive. She maintains the suggested 

guideline ranges for both resisting arrest and disorderly conduct is twentyfive to fifty hours’ community service, and she received sentences of three 

days to twelve months’ imprisonment and twelve months’ probation. 

Appellant alleges the court based the sentence on “incorrect[ ] facts,” acted 

with bias, “had no justifiable or reasonable basis to sentence . . . outside the 

guidelines,” and “abus[ed] his authority to ‘punish and humiliate’ her.” 

Appellant’s Brief at 26. She further challenges the trial court’s statement 

that it was imposing three days’ imprisonment as a “reality check” for her. 

Id. We find no relief is due. 

We first consider whether Appellant has preserved her issue. This 

Court has stated: 

Before [this Court may] reach the merits of [a challenge to 

the discretionary aspects of a sentence], we must engage 

in a four part analysis to determine: (1) whether the 

appeal is timely; (2) whether Appellant preserved his 

issue; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of 

 

12 We emphasize we offer no opinion as to whether Appellant has a 

meritorious ineffectiveness claim. 
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appeal with respect to the discretionary aspects of

sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the 

concise statement raises a substantial question that the 

sentence is appropriate under the sentencing code. . . . 

[I]f the appeal satisfies each of these four requirements 

we will then proceed to decide the substantive merits of 

the case. 

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014) (some 

citations omitted), appeal denied, 95 A.3d 275 (Pa. 2014). This Court has 

held “an allegation of bias in sentencing implicates the fundamental norms 

underlying sentencing and . . . raises a substantial question.” 

Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011). 

Here, Appellant has filed a timely notice of appeal and preserved her 

claim in the post-sentence motion. See Antidormi, 84 A.3d at 759. In her 

appellate brief, Appellant includes the heading, “Statement of the Reasons to 

Allow an Appeal to Challenge the Discretionary Aspects of a Sentence.” 

Appellant’s Brief at 23. However, there is no separate Pa.R.A.P. 2119(f) 

statement, and instead Appellant includes only her argument. See Pa.R.A.P. 

2119(f). Nevertheless, the Commonwealth has not objected to the lack of a 

Rule 2119(f) statement, and thus we will not find waiver on this basis. See 

Antidormi, 84 A.3d at 759. Finally, Appellant’s claim that the court acted 

with bias raises a substantial question. See Corley, 31 A.3d at 297. 

Accordingly, we proceed to the merits of Appellant’s claim. 

This Court has stated: 

Sentencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed 
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on appeal absent a manifest abuse of discretion. In this 

context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, 

by reference to the record, that the sentencing court 

ignored or misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or arrived at 

a manifestly unreasonable decision. 

Antidormi, 84 A.3d at 760 (citation omitted). 

Appellant acknowledges the trial court’s statement of why it imposed a 

sentence in the aggravated range. Appellant’s Brief at 25. The court 

reviewed the pre-sentence investigation report and the sentencing 

guidelines. N.T. Sentencing, 12/17/13, at 11; Trial Ct. Op. at 3. At 

sentencing, Appellant maintained her innocence. N.T. Sentencing at 5, 14-

15. The court cited “unusual factors in this case,” including its dismissal of 

some of the charges based on the Commonwealth’s failure to sustain its 

burden of proof. Id. at 6. The court also considered Officer Floyd’s 

“attitude” and “unprofessional statement,” and acknowledged the officer’s 

comment “may have been a reason for [Appellant’s] actions,” “[b]ut it’s not 

a justification.” Id. at 6-7; see also id. at 12 (“I’m not here to make 

excuses for the police officer’s behavior or actions. I told you I think it’s 

wrong. It’s unprofessional.”). The court found, “In any event, the case 

went to trial, and the jury made [its] decision,” and “the fact remains that 

the jury did find [Appellant] guilty of the two charges.” Id. at 6. 

The court also stated, “[T]hrough all of the pretrial discussions and the 

suppression hearings, and all the other court dates and interaction that I had 
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with [Appellant’s] attorney, I never saw any remorse or contrition for what 

happened here.” Id. at 7; see also id. at 16. The court conceded this 

matter 

wasn’t the crime of the century, but depending on . . . 

what part of the testimonies you take, we had a St.

Patrick’s Day evening[,] anywhere from 30 to 70 people 

that were obviously under the influence of alcohol or some 

other substance[, and] testimony that people were 

banging on the windows of the Coney Island Restaurant. I 

think we had maybe four or five police officers, and the 

part that got me the most was this. [Daniel Hockenberry, 

who] hadn’t been drinking said he saw all of this 

commotion[ and] the people up against the wall. He

wanted to go to the Coney Island, so he took a path

around the commotion and went into the Coney Island. 

If [Appellant] had done that, we wouldn’t be here 

today. 

Id. at 7. The court addressed Appellant: 

But you chose to go right into the middle of the fray 

when the police officers had three or four people up 

against the wall. And as I recall, . . . one of [those] people 

[had] a deadly weapon[, a knife.13] So we had a near riot 

situation, and instead of respecting the police, and 

respecting the situation, you aggravated the situation. So 

for those reason, I am going to go outside of the standard 

range. 

* * * 

[M]y departure is based on my conclusion that your 

conduct is different from the conduct of a defendant 

usually convicted of these two charges, the resisting arrest 

and the disorderly conduct. Other people avoided this 

confrontation. 

 

13 N.T. Trial at 41, 52. 
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This could have been a very, very, very—it was a very 

volatile situation, and it could have exploded. And quite 

frankly, . . . the police officers didn’t have the manpower 

to control it if it would have gone the other way. . . . 

Id. at 8-9; see also Trial Ct. Op. at 4 (citing court’s rationale at sentencing 

hearing). 

The court also stated its reason for its sentence, which included three 

days’ imprisonment: “I think, in my experience, that you need a reality 

check with your view relative to authority and how you act in society. I’m 

hoping that this three days does it. If it does, fine. If it doesn’t, it doesn’t.” 

N.T. Sentencing at 17. 

In light of the court’s thorough explanation for its sentence, we 

disagree with Appellant that it abused its discretion or acted with bias.14 

 

14 Appellant further argues the court acted with bias post-sentencing. For 

context, we note that at the December 17, 2013 sentencing hearing, the 

court directed Appellant to report to prison on December 20th at 9:00 a.m., 

and stated she would be released on December 23rd. N.T. Sentencing at 

17. On appeal, Appellant avers (1) on the day after the sentencing hearing, 

she was admitted to the hospital “for MRSA;” (2) the court “wanted to make 

sure she would be in jail during Christmas” and ordered her to report to jail 

within two hours of discharge; (3) she was discharged on December 23rd 

but did not report to prison because because her doctor instructed her “not 

to report to work or school until seen by the specialist because her incision 

could still be contagious and the dressing needed to be changed daily,” and 

because she wanted to consult with her attorney; and (4) the court “wanted 

her to spend Christmas in jail no matter what the consequences were” and 

issued a bench warrant. Appellant’s Brief at 26-27. Appellant further 

asserts she reported to prison on December 26th, and the following day, the 

court: (1) denied her motion for bond pending appeal; and (2) sentenced 

her to serve an additional four days for violating the court order, “which fell 

over the New Year’s holiday.” Id.; see Order, 12/27/13. Finally, Appellant 

directs this Court’s attention to a news article on the internet allegedly about 
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See Antidormi, 84 A.3d at 760. Instead, it considered Appellant’s presentence investigation report—which indicated she had no prior record—the 

sentencing guidelines, and the facts of this case. We reject her claim that 

the court was “not permitted to legally give ‘reality check’ jail sentences 

based on personal bias.” See Appellant’s Brief at 26. Instead, the court had 

authority to act under Sections 9721(b) and 9725(b) of the Sentencing 

Code. See 42 Pa.C.S. §§ 9721(b) (providing that when selecting from 

sentencing alternatives, court shall follow general principle that sentence 

should call for confinement that is consistent with defendant’s rehabilitative 

needs), 9725(b) (stating court shall impose total confinement if, having 

regard to nature and circumstances of crime and defendant’s character, 

defendant is in need of correctional treatment that can be provided most 

effectively by commitment to institution). Accordingly, we find no relief is 

due. 

Judgment of sentence affirmed. 

 

the trial judge “allow[ing] a rapist out of jail for 5-6 days to treat a skin 

infection, which did not require him to be hospitalized.” Appellant’s Brief at 

27. 

We find all of the above claims waived, as Appellant did not raise them 

before the trial court. See Pa.R.A.P. 302(a). 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/13/2015