J.A22036/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

GAIL L. SCHNEIDER, :

:

Appellant : No. 1593 MDA 2013

Appeal from the Judgment of Sentence June 24, 2013

In the Court of Common Pleas of Luzerne County 

Criminal Division No(s).: CP-40-CR-0003729-2010

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

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 16, 2015

Appellant, Gail L. Schneider, appeals from the judgment of sentence 

entered in the Luzerne County Court of Common Pleas following a jury trial 

and her convictions for arson endangering persons,1arson endangering 

property,2reckless burning endangering personal property,3criminal 

mischief,4and arson of inhabited building.5 Appellant contends the trial 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3301(a)(1)(i).

2 18 Pa.C.S. § 3301(c)(2).

3 18 Pa.C.S. § 3301(d)(2).

4 18 Pa.C.S. § 3304(a)(1).
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court erred in (1) denying her motion in limine to preclude the 

Commonwealth from introducing evidence pursuant to Pa.R.E. 404(b); (2) 

denying a request for a cautionary jury instruction; (3) allowing the 

Commonwealth to present an improper closing argument; (4) finding the 

evidence sufficient; (5) finding the verdict was not against the weight of the 

evidence; (6) denying the motion for judgment of acquittal; and (7) 

imposing a manifestly excessive sentence. Appellant also contends counsel 

was per se ineffective for failing to object during the Commonwealth’s 

closing argument. We affirm. 

The facts established at the jury trial were as follows: David Basala, a 

former firefighter and freelance photographer/videographer testified that he 

went to the location of the fire to take a video of it.6 N.T., 4/15/13, at 5-7. 

He heard about the fire on the dispatch radio. Id. at 6. He took a video of 

the fire and turned it over to the Pennsylvania State Police at Hazelton. Id. 

at 8. He reviewed the video prior to his testimony and it accurately depicted 

the fire he videotaped the night of the incident. Id.

Allen Culp was staying with his fiance on the night of the fire in a 

building next to the site of the fire. Id. at 11. He could see the rear 

stairway of the building engulfed in flames. Id. at 13. He and another 

 

5 18 Pa.C.S. § (a)(1)(ii).

6 The fire took place at the Lantern Lane Building located in Conyngham, 

Pennsylvania. Id. at 11.
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gentleman entered the building, although there was no light, to see if there 

were people inside the building. Id. at 15. He had to exit the building due 

to the conditions. Id. at 16-17. 

Barbara Reese,7a ninety-five year old former resident of the Lantern 

Lane Building, lived on the second floor of the building at the time of the 

fire. Id. at 27. She described the stairway she accessed to reach her 

apartment. Id. at 28. There was a chair on the landing. Id. The top door 

of the stairway was kept locked. Id. The bottom door by the parking lot 

was never locked. Id. Ms. Reese knew Appellant. Id. at 29. She was 

awakened by the fire alarm and called 9-1-1. Id. at 30-31. She exited her 

apartment from a window and climbed a ladder to get onto the roof. Id. at 

32. The firemen on the scene came to her assistance. Id. Her 9-1-1 call 

was played for the jury. Id.

Nellie Stratts, a ninety-four year old resident of the building at the 

time of the fire, woke after hearing an alarm and saw smoke pouring into 

her apartment. Id. at 43. She called 9-1-1 and checked on her neighbors. 

Id. She heard someone say to get down on her knees and crawl to the front 

of the building. Id. at 44. She was carried out of the building. Id.

 

7 There were three other tenants in the building, Jeffrey Antolick, Nicole 

Buak and Nellie Stratts. N.T., 4/15/13, at 153. There were four commercial 

tenants in the building, Falvello Law Firm, Richard Grovich, DMD, Navigate 

Financial Advisors, and M & L Trucking. Id. at 596-97.
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Richard Bognar, a volunteer fireman and paid EMT for the Medic Unit 

of Butler Township and Conyngham Borough, arrived at the scene and 

described heavy smoke throughout the building. Id. at 59, 61. He and 

another firefighter rescued Ms. Reese from the roof. Id. at 64. All persons 

were accounted for and he ordered all firefighters out of the building. Id. at 

65. The alarm came in at 2:30 a.m. and they were still putting water on the 

fire at 9:00 a.m. Id. He had been a fireman for approximately thirty years. 

Id. at 69. He had responded to hundreds, thousands of fires. Id. He 

ranked this fire within the top ten. Id. 

Joel Michael Mummie, a volunteer fireman for twenty-four years, 

stated it was one of the worst fires he had seen. Id. at 73, 80. “It was a 

situation where it was just an act of God that nobody got killed.” Id. at 80.

Shawn Hilbert was qualified as an expert in the area of fire 

investigation and determination of origin and cause and testified for the 

Commonwealth. Id. at 97. He arrived at the scene on the date of the fire 

at 7:08 a.m. Id. at 102. He met with the property owner, Kenneth 

Temborski. Id. at 103. The owner stated he had not performed any recent 

electrical work on the property. Id. He took numerous photographs of the 

property. Id. at 106. There was extensive damage in the area where the 

chair that Ms. Reese mentioned was located. Id. at 122-23. The extensive 

damage in this area led him to believe that this was the origin of the fire. 

Id. at 123. There was greater damage in the area where the chair was 
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located. Id. at 131. The damage to the floor joists indicated that the fire 

was burning in a downward fashion. Id. at 135. He stated the 

fire was caused by human hands introducing a competent 

ignition source, such as an open-flame device, matches, a 

lighter, anything that produces a flame and placing the 

flame in direct contact with combustible materials, namely, 

the straight-leg wooden chair with the associated 

polyurethane cushions on it and igniting that on fire, and 

the fire then progressed from there, and resulted in the 

damage that you all saw today.

Id. at 155.

Paul Savage was a senior fire and explosion consultant for Project 

Time and Cost Forensic Consulting Service and also testified for the 

Commonwealth. Id. at 268. He was recognized by the court as an expert in 

the area of fire investigation, and specifically, the determination of origin 

and cause. Id. at 272, 274. He went to the scene of the fire on September 

8, 2010. Id. at 277. The first floor of the building sustained “water damage 

from the firefighting effort . . . but there was very little fire damage 

anywhere on the first floor or the ceilings or any of the devices, electrical 

devices or anything in the entire first floor.” Id. at 280. He believed that he 

was dealing with a fire that originated on the second floor. Id. at 281. He 

stated:

The more I walked back and forth, up and down the 

hallway . . . you couldn’t get away from the fact that the 

burn patterns that came from the most severe to less 

severe came from in that stairway on the landing area and 

traveled either up through the roof and into the common 

roof over the second floor before it collapsed . . . . 

Everything─the burn patterns that you are so used to 
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seeing and so trained to see, would send you right back 

into that landing way all the time; so, I knew I was looking 

[sic] this had to be the area based on the most severe 

damage . . . .

 * * *

The only thing that I was told is that there is a chair 

upstairs in that landing, and it’s basically just used for 

tenants of the second floor to come and go. . . . That was 

the most common way they would come and go. They 

would go in this downstairs door, which I told [sic] was not 

a locking door . . . .

Id. at 288, 290.

He eliminated electrical wires as the cause of the fire. Id. at 293-308, 

315. Examining a photograph of the area, he stated: “The greatest damage 

to the floor joist is further out towards the wall where this chair is reported 

to be back in that corner or somewhere along that back wall. For that 

reason, and other burn patterns in that room, and the lack of damage on 

that wire that I did not feel when I was there─it’s my belief that that area of 

damage is from fire effect and fire travel, not fire cause.” Id. at 309.

He took samples of the debris in the building and submitted them to a 

certified lab for analysis. Id. at 316. The report indicated that they were 

negative for ignitable or flammable liquids. Id. at 317. He opined as follows 

as to the cause of the fire:

My opinion is that based on my scene observations and 

the lack of some things which was [sic] failures in electrical 

components, burn patterns at the scene, burn patterns in 

that second floor, understanding that there was a chair 

apparently similar to what we have here in the courtroom 
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that was in that corner as a fuel package in that corner, 

and nothing else there as a heat source . . . .

I didn’t see anything else that was going to be a 

competent heat source to start this fire in the area that I’m 

considering . . . . [T]his is an incendiary fire and it started 

by human hands with a manually contacted open flame, be 

it, a match or lighter igniting other combustibles . . . . It 

could be paper, cardboard, any of those type properties. 

Whether they’re at the scene and used or whether 

somebody brings them into the scene to ignite them to 

cause for [sic] this fire, those items are ignited at or about 

or on top of this chair as a cause for this fire.

Id. at 317-18. 

Appellant presented John Michael Agosti, President and Owner and Fire 

analyst for John Michael Agosti and Associates. Id. at 357. He testified as 

an expert in the field of fire investigation and determination of cause and 

origin. Id. at 368. He disagreed with Corporal Hilbert’s opinion as to the 

cause of the fire. Id. at 381. Corporal Hilbert’s opinion was not based on 

any physical evidence that he had “or on sound fire science preference 

books, and he did not conclusively rule out accidental causes . . . .” Id. 

Because he did not exclude out accidental causes, “[i]t should be an 

undetermined cause.” Id. He continued:

We have a lot of undetermined fires across the United 

States. Approximately 30 percent of all fires are 

undetermined. There’s a reason they’re undetermined. 

They started from something; but, the reason they’re 

undetermined is because the fire may well have destroyed 

any evidence to support what the cause was; so you can’t 

come up with a cause, if you can’t prove that it was this, 

that or the other.
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So, as far as Corporal Hilbert, his cause is a human 

being taking a match or a lighter and igniting the chair. 

We don’t have any information or witnesses of a human 

being in that stairwell. We don’t have the lighter or the 

match, and we don’t even have the chair. So he has no 

physical evidence or proof that that ignition scenario took 

place; yet, we have electrical components, numerous 

electrical components in that concealed floor space that 

were not properly eliminated; and, we know electricity is a 

competent ignition source. We have actually five breakers 

tripped; so, we know those circuits were energized. They 

were flowing electricity.

Id. at 381-82. He agreed with some of Mr. Savage’s opinions, but not his 

opinion as to cause and origin for exactly the same reasons as he disagreed 

with Corporal Hilbert. Id. at 382-83.

On cross-examination by the Commonwealth, he stated he was not 

aware if Appellant made any efforts to get into the building and examine it 

while it was still standing. Id. at 487. When he conducted the test burn on 

the polyurethane foam, he did not use the Scientific Method. Id. at 489. He 

stated: “I think I described in my report that I conducted a non-scientific 

test just for observation to develop some observations of the polyurethane 

foam.” Id. When using Scientific Methods to do investigations, you test 

hypotheses and use deductive reasoning. Id. The best way to investigate 

origin and cause of a fire is the Scientific Method. Id. at 525.

Nicole Laura Buak, a resident of the building, testified that the chair 

was located on the landing at the top of the stairwell. Id. at 602. The door 

at the bottom of the stairwell was never locked. Id. at 604. Appellant lived 

in the apartment next to her. Id. She had previous problems with 
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Appellant. Id. at 605-06. She testified regarding an incident that occurred 

on September 8, 2009. She looked out of her window at approximately 

11:45 p.m. and saw Appellant outside of the apartment building near her car 

in the parking lot. Id. at 606. Appellant was screaming and cursing on her 

cell phone. Id. A policeman approached her and told her to go home and 

be quiet. Id. 

Appellant came back to her apartment and the yelling and cursing 

continued and Ms. Buak called the police. Id. at 607. The same officer 

returned and Ms. Buak went to speak with him. Id. The Officer told Ms. 

Buak to return to her apartment and he went to approach Appellant. Id. 

She again heard noise outside and saw Appellant in the parking lot near her 

car. Id. at 608. Ms. Buak and her fiancé, Leo DeLucca, exited the 

apartment and “noticed the word, die, was scribed into our front door.” Id.

at 608, 614. They exited the building and went to the car. Id. at 610. Her 

fiancé noticed there was a scratch on the vehicle. Id. at 611. Ms. Buak 

gave a statement to the police. Id. at 612. Appellant was cited for the 

incident. Id. at 613. Leo DeLucca also testified about the incident at trial 

corroborating the same facts. See id. at 618-23.

Kenneth John Temborski, the owner of the building, testified. Id. at 

623, 624. At the time of the fire, there were four commercial tenants in the 

building and four residential tenants. Id. at 625. He did upgrades to the 

property since he purchased it. Id. at 626. There was new carpeting and 
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new windows. Id. He installed new appliances, microwaves, stoves and 

refrigerators. Id. at 626-27. He lived about 300 yards from Lantern Lane 

and could see the back of the building from his windows. Id. at 630. 

Appellant was a tenant in the building for approximately ten months until 

September of 2009 when she was evicted.8 Id. at 635, 636. The reason for 

the eviction was the incident with Nicole Buak. Id. at 636.

Mr. Temborski inspected the apartment after she vacated it and “there 

was substantial damage to the apartment. The cabinet doors were kicked 

in. There was dog feces all over the walls, on the carpets, and holes 

punched in─kicked in the walls of the closets, like, in the drywall.” Id. at 

637. He informed Appellant that he would be keeping her security deposit 

and she filed a landlord/tenant complaint. Id. Appellant filed a 

landlord/tenant complaint. Id. The outcome of the hearing was in his favor. 

Id. at 645. Following the hearing, Mr. Temborski testified “[s]he was very 

dissatisfied; and when we were ready to walk out of the courtroom she said, 

This ain’t over.” Id. at 646.

Matthew Rishkofski, owner of Bandt’s Roadhouse, a bar/ restaurant in 

Berwick, asked Appellant to leave the bar on the night of September 4, 

 

8 We note that the Commonwealth asked Mr. Temborski why Appellant was 

only a tenant for ten months and he responded “There were several 

complaints─” The Commonwealth asked for sidebar and informed the court 

they were not looking for that answer and asked to redirect the witness with 

a leading question. Id. at 635-36. The court agreed and the sidebar 

concluded. Id. at 636.
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2010. Id. at 665. She was angry and left at approximately 11:00 p.m. Id.

at 666.

Eugene Rafalli, a police officer, testified that on the evening of 

September 4th into September 5th, he was at a bar, Cuz-N-Joe’s Bar and 

Pub in Conyngham, across the road from the Lantern Lane Building. Id. at 

667. He was not in his capacity as a police officer at the time. Id. at 669. 

He had told one of the troopers that had interviewed him in this case that 

Appellant did not appear intoxicated. Id.

Brittany Platukas-Heimo, an employee at the bar on that date, testified 

that Appellant had frequented the bar several times and they had talked. 

Id. at 674. She did not remember exactly what she told the police on the 

night of the incident, three years ago. Id. at 676. The police report 

indicated that she told them Appellant appeared intoxicated. Id. she 

testified that she did not remember but that Appellant “was acting a little 

strange.” Id.

Joan Nevedal, at the time of the incident, was employed by the 

Pennsylvania State Police as an intelligence analyst. Id. at 710. She was 

assigned to the computer crime unit. Id. She testified “as an expert in the 

area of computer forensic examination.” Id. at 713. She examined 

Appellant’s Sony Vaio desktop computer. Id. at 715. There were two 

general arson searches on Appellant’s computer. Id. at 717. They were 

“arson lighter fluid and how to blow up a car.” Id. 
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She also analyzed Appellant’s Apple iPhone. Id. at 724. In response 

to the text, “I told you [Mr. Temborski] was a douche. He needs a good 

beating. I wish I could give him [sic] myself. I have too much to lose.” Id.

at 727. Appellant responded: “Well, paybacks are a bitch. I’m holding onto 

the apartment key as he owes me dollar signs. [H]e will not reimburse me 

monies that are due and owing to me, six days worth. So he’ll get his keys 

when I’m good and ready to give them back.” Id.

The parties stipulated that surveillance video dated September 4, 2010 

from the PNC Bank shows Appellant’s vehicle passing the PNC Bank on Main 

Street in Conyngham at 1:58 a.m. on September 5, 2010. Id. at 751.

James Surmick, a Pennsylvania State Police trooper, testified. Id. at 

752. He went to the scene of the incident on September 5, 2010. Id. at 

754. He interviewed Appellant at the station house. Id. at 759. She told 

the trooper that she was not in Conyngham on the night of the fire, “without 

a doubt.” Id. at 760, 764. Appellant told him she had a white Honda. Id.

at 762. She had gone to two bars in the Berwick area on the night of 

September 4th. Id. at 763. She left Bandt’s Roadhouse sometime between 

one and one-thirty and he believed she said she went home. Id. She said 

she learned about the fire from local media. Id. at 764.

The trooper had interviewed the bartenders of Cuz-N-Joe’s in 

Conyngham and they indicated they knew Appellant. Id. at 764. They 

indicated that on the night of the fire she had been in the bar. Id. at 764-
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65. He confronted Appellant with this information and “[s]he admitted to 

lying, and she said she had lied because she was scared.” Id. at 765. She 

said she did not go near the Lantern Lane building that night. Id. She went 

to her pet grooming shop to drop off boxes. Id. The video from PNC Bank, 

shows Appellant “departing Conyngham on Main Street, and this PNC Bank is 

just down the street from the Cuz-N-Joe bar and from Lantern Lane, and it 

shows her departing Conyngham at 1:58 in the morning on September the 

5th.” Id. at 770.

Appellant testified that she did not set the fire at Lantern Lane. Id. at 

824. She stated that she was scared of being accused of the fire because of 

her past relationship with Ms. Buak and Mr. Temborski and the eviction. Id. 

at 825. She was angry with Mr. Temborski because she felt he was cheating 

her out of her money. Id. at 840. When she heard that the Conyngham fire 

was ruled arson, she looked up arson in the Conyngham area on her iPhone 

and computer. Id. at 877. She stated that she didn’t “want to know how to 

blow up a car. [She] was curious.” Id. at 878. She left the bar at 2:00 

a.m. Id. at 882.

The trial court summarized the procedural history of this case as 

follows:

On April 24, 2013, the jury returned verdicts of guilty on 

all counts. A Pre-Sentence Investigation (PSI) was 

ordered to be completed by the Luzerne County Adult 

Probation and Parole Department, and a sentencing date 

was scheduled.
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A sentencing hearing commenced on June 24, 2013, 

with the Commonwealth presenting the testimony of six 

witnesses, and [Appellant] presenting the testimony of two 

witnesses for this [c]ourt’s consideration. . . . [Appellant 

was sentenced] to an aggregate term of incarceration of 

fourteen (14) to twenty eight (28) years in a state 

correctional institution. [Appellant] was subsequently 

advised by this [c]ourt of her post-sentence rights before 

the hearing concluded.

On July 3, 2013, [Appellant] filed a Motion for PostSentence Relief, and the Commonwealth filed a response 

thereto on July 8, 2013. By Order of August 14, 2013, we 

denied [Appellant’s] Motion for Post-Sentence Relief and 

again advised her of her appellate rights.

Trial Ct. Op., 12/17/13, at 1-2 (unpaginated). This timely appeal followed. 

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal and the trial court filed a responsive opinion.

Appellant raises the following issues for our review:

I. The trial court erred in admitting non-relevant and 

prejudicial evidence by denying [Appellant’s] motion in 

limine and response to the Commonwealth’s 404(B) notice 

to preclude any and all computer and iPhone searches 

related to arson that were in unallocated clusters and could 

not be dated and by allowing testimony at trial related to 

the searches on her compter and iPhone that specifically 

mentioned how to “blow up a car” and accelerants[.]

II. The trial court erred in denying [Appellant’s] request for 

a cautionary instruction to the jury regarding the questions 

asked of [Appellant] during her testimony about Evelyn 

Welsko, which allowed the jury to assume facts not 

admitted through a witness[.]

III. The trial court erred in allowing the Commonwealth to 

present an improper closing argument, in that the 

prosecutor played the audio of the backdraft video and 

argued it during her closing, when such audio was never 

presented through testimony at trial[.]
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IV. The evidence presented by the Commonwealth was 

insufficient to establish the elements of each of the 

offenses charged when apart from her mere presence in 

the location of the fire, and having left the area 

approximately thirty-four (34) minutes before the fire was 

called in to 911, no evidence established that [Appellant] 

set this fire or that it was even set by a human hand when 

Corporal Hilbert did not conduct a thorough fire 

investigation to rule out an electrical fire[.]

V. The verdict of the jury was against the weight of the 

evidence when the evidence only established that 

[Appellant] was in the location of the fire approximately 

thirty-four (34) minutes before the fire was called in to 

911[.]

VI. The trial court erred in denying her motion for 

judgment of acquittal as to cou[n]t 5, arson-reckless 

burning as it relates to Mr. Temborski’s pecuniary loss, 

which is covered by count 6 and also to which no 

testimony was presented regarding his personal items 

affected by this fire[.]

VII. The 14 to 28 year sentence was manifestly excessive 

when the court focused almost exclusively on the 

knowledge of the risk of harm to firemen, the knowledge 

of the risk of harm to the victims, the age of the victims, 

the financial damage to the building, and emotional 

damage to the victims and failed to give appropriate 

meaningful consideration to, among other things, the 

legislature’s account for this through the sentencing 

guidelines, the fact that no testimony was presented to 

show [Appellant] was aware that elderly victims still 

resided in the building and [Appellant] was ordered to pay 

restitution therefore by using the financial damage as an 

aggravator the court engaged in double dipping[.]

VIII. Trial counsel’s failure to object during the 

Commonwealth’s closing argument to the Commonwealth’s 

introduction of the audio portion of the backdraft video and 

improper argument by the prosecutor, when such audio 

was never presented through testimony at trial was per se

ineffectiveness.
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Appellant’s Brief at 11-12.

First, Appellant contends the trial court erred in denying her motion in 

limine to preclude the Commonwealth’s Pa.R.E. 404(b)9evidence. In the 

motion in limine, Appellant averred, inter alia, that the Commonwealth’s 

forensic computer expert, Joan Nevedal, should not be permitted to testify 

that she searched for articles related to arson. Appellant argued that 

because the expert could not testify as to the date of the searches, the 

evidence was not relevant to the current charges. Def.’s Mot. In Limine, 

1/27/12, at 3 (unpaginated). 

Instantly, Appellant renews the argument the evidence of her 

computer and iPhone searches related to arson should not have been 

admitted. Appellant’s Brief at 25. She avers that because the intelligence 

analyst who testified at trial was unable to give a specific date for the 

searches, the searches could have taken place before or after the alleged 

arson. Id. at 28. 

On January 4, 2013, the trial court entered an order which provided: 

“defense counsel motions─denied w/o prejudice[,] matters addressed @ 

time of trial.” Order, 1/4/13. As a prefatory matter we consider whether 

Appellant has waived this issue. 

Pennsylvania Rule of Evidence 103 provides in pertinent part:

 

9 We note that Pa.R.E. 404(b) has been amended, effective March 18, 2013.
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(a) Preserving a Claim of Error. A party may claim 

error in a ruling to admit or exclude evidence only:

(1) if the ruling admits evidence, a party, on the record:

(A) makes a timely objection, motion to strike, or 

motion in limine; and 

(B) states the specific ground, unless it was apparent 

from the context[.]

 * * * 

(b) Not Needing to Renew an Objection or Offer of Proof. 

Once the court rules definitively on the record─either 

before or at trial─a party need not renew an objection or 

offer of proof to preserve a claim of error for appeal.

Pa.R.E. 103(a)(1)(A)-(B), (b)10 (emphasis added).

In Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013), appeal 

denied, 89 A.3d 661 (Pa. 2014), the appellant filed a motion in limine to 

exclude certain evidence. Id. at 651. The court denied the motion, 

following oral argument. Id. The Commonwealth argued “the matter is 

waived because although appellant filed a pre-trial motion in limine seeking 

exclusion of the evidence, he did not make an objection on the record to the 

court’s ruling on the motion, nor did he object when the evidence was 

introduced at trial.” Id. at 652. This Court rejected the Commonwealth’s 

argument, citing Pa.R.E. 103, and found: “[The a]ppellant preserved the 

issue by litigating the pre-trial motion in limine, and was not required to 

object to the trial court’s ruling on the motion or place an objection on the 

 

10

 We note that Pa.R.E. 103 was replaced, effective March 18, 2013. 
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record at trial in order to preserve the issue for appeal.” Stokes, 78 A.3d 

at 652.

In the instant case, unlike Stokes, the trial court did not definitively 

deny the motion in limine. See Pa.R.E. 103(b). The trial court collectively 

denied the defense motions without prejudice to address the matters at 

the time of trial. See Order, 1/4/13. Without prejudice is defined as 

“without loss of any rights; in a way that does not harm or cancel the legal 

rights or privileges of a party.” Black’s Law Dictionary 1740 (9th ed. 2009). 

Appellant’s motion in limine did not preserve the issue. See Stokes, 78 

A.3d at 652.

At trial, the Commonwealth called Nevedal to testify. Appellant did not 

make a timely objection for the trial court to address the matter. See N.T. 

709-38. Therefore, we find the issue waived. See Pa.R.E. 103(b); Stokes, 

78 A.3d at 652. 

Second, Appellant contends the trial court erred in denying her request 

for a cautionary instruction in relation to her testimony about telephone calls 

she made to her friend, Evelyn Welsko, about the fire. Appellant’s Brief at 

30. Specifically, Appellant avers the court should have given the following 

instruction: “The questions that counsel put to the witnesses are not 

evidence. . . . You should not guess that a fact is true just because one of 

the attorneys or I ask a question about it. It is the witnesses’ answers that 

provide the evidence. . . .” Id. at 31. She concedes that “the trial court 
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gave this instruction at the close of trial . . . .”11 Id. Appellant avers the 

instruction should have been given immediately following the objectionable 

testimony. Id. 

As a prefatory matter, we consider whether Appellant has waived this 

issue. 

Rule 2119(a) of the Rules of Appellate Procedure requires 

a properly developed argument for each question 

presented. This requires, among other things, a discussion 

of and citation to authorities in the appellate brief and “the 

principle for which they are cited.” See Pa.R.A.P. 2119(a), 

(b). Failure to conform to the Rules of Appellate Procedure 

results in waiver of the underlying issue. See 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 

(Pa. Super. 2014) (en banc).

 

11 At trial, the court instructed the jury, inter alia, as follows:

In determining the facts, you are to consider only the 

evidence which has been presented in court and the logical 

inferences which can be derived from that evidence. 

Statements made by counsel do not constitute evidence, 

as I’ve told you previously. Also, the questions which 

counsel put to witnesses are not themselves evidence. Let 

me repeat that again. The questions which counsel put to 

witnesses are not themselves evidence. It is the 

witnesses’ answers which provide the evidence for you. 

You should not speculate or guess that a fact may be true 

merely because one of the lawyers asks a question which 

assumes or suggests that a fact is true. That occurred 

throughout this case on occasion. You are not to rely upon 

supposition or guess on any matters which are not in 

evidence. You should not regard as true any evidence 

which you find to be incredible, even if it is uncontradicted.

 

N.T., 4/15/13, at 1055-56.
J. A22036/14

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Commonwealth v. Veon, 109 A.3d 754, 774 (Pa. Super. 2015). Instantly, 

Appellant’s argument is devoid of any discussion of and citation to legal 

authority. Therefore, this issue is waived. See id.

Thirdly, Appellant contends the trial court erred in allowing the 

Commonwealth to present an improper closing argument when the 

prosecutor played the audio of the backdraft video when the audio was not 

presented through testimony at trial.12 As a prefatory matter, we consider 

whether Appellant has waived this issue. 

Appellant concedes that trial counsel did not object to the 

Commonwealth’s closing argument. Appellant’s Brief at 61. In 

Commonwealth v. Flor, 998 A.2d 606 (Pa. 2010), our Supreme Court 

opined:

There is no indication from the record that [the a]ppellant 

objected to the prosecutor’s closing argument during the 

proceedings, and hence these issues are waived pursuant 

to Pennsylvania Rule of Appellate Procedure 302(a). See 

[Commonwealth v. McCrae, 832 A.2d 1026, 1037 (Pa. 

2003)] (in the context of a challenge to the prosecutor’s 

closing argument, stating that failure to raise the issue

before the trial court would render the issue waived 

pursuant to Rule 302).[13]

 

12 It appears Appellant may have withdrawn this issue. In an abundance of 

caution, we address it.

13 Pennsylvania Rule of Appellate Procedure 302 provides: “Issues not raised 

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

appeal.” Pa.R.A.P. 302(a).
J. A22036/14

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Id. at 638. Analogously, Appellant has waived the issue for failing to object 

to the prosecutor’s closing argument. See id.

Next, Appellant contends the evidence was insufficient to sustain her 

convictions for each of the crimes charged. As a prefatory matter, we 

consider whether Appellant has waived the issue of the sufficiency of the 

evidence. Pennsylvania Rule of Appellate Procedure 1925(b) provides, inter 

alia, “Issues not included in the Statement and/or not raised in accordance 

with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 

1925(b)(4)(vii).14 

 

14 Rule 1925(b)(4) provides:

Requirements; waiver.

* * *

(ii) The Statement shall concisely identify each 

ruling or error that the appellant intends to challenge 

with sufficient detail to identify all pertinent issues 

for the judge. The judge shall not require the 

citation to authorities; however, appellant may 

choose to include pertinent authorities in the 

Statement. 

* * *

(iv) The Statement should not be redundant or 

provide lengthy explanations as to any error. Where 

non-redundant, non-frivolous issues are set forth in 

an appropriately concise manner, the number of 

errors raised will not alone be grounds for finding 

waiver. 
J. A22036/14

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In Commonwealth v. Garland, 63 A.3d 339 (Pa. Super. 2013), the 

“[a]ppellant’s Pa.R.A.P. 1925(b) statement simply provided a generic 

statement stating ‘[t]he evidence was legally insufficient to support the 

convictions.’” Id. at 344. This Court found the appellant waived his 

sufficiency of the evidence claim, reasoning: 

In order to preserve a challenge to the sufficiency of the 

evidence on appeal, an appellant’s Rule 1925(b) statement 

must state with specificity the element or elements upon 

which the appellant alleges that the evidence was 

insufficient. “Such specificity is of particular importance in 

cases where, as here, the appellant was convicted of 

multiple crimes each of which contains numerous elements 

that the Commonwealth must prove beyond a reasonable 

doubt.” Here, as is evident, [the a]ppellant . . . failed to 

specify which elements he was challenging in his Rule 

1925(b) statement . . . . Thus, we find [his] sufficiency 

claim waived on this basis.

Id. (citations omitted).15 

 

(v) Each error identified in the Statement will 

be deemed to include every subsidiary issue 

contained therein which was raised in the trial court; 

this provision does not in any way limit the obligation 

of a criminal appellant to delineate clearly the scope 

of claimed constitutional errors on appeal. 

Pa.R.A.P. 1925(b)(4)(ii), (iv)-(v).

15 Cf. Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (finding 

issue not waived in “relatively straightforward drug case” where 1925(b) 

statement merely stated evidence of drug trafficking and conspiracy was 

insufficient, without specifying which element Commonwealth allegedly failed 

to prove, and where trial court readily apprehended defendant’s claim and 

addressed it in substantial detail). Instantly, Appellant was charged with 

numerous offenses. The trial court did not address Appellant’s sufficiency 

claims in substantial detail. On the contrary, the court opined: “Having 
J. A22036/14

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In her Rule 1925(b) statement, Appellant articulated her sufficiency 

claims as follows:

The evidence presented by the Commonwealth at (sic) 

was insufficient to establish the elements of each of the 

offenses charged when apart from her presence in the 

location of the fire, and having left the area approximately 

thirty-four (34) minutes before the fire was called in to 

911, no evidence established that [Appellant] set this fire 

or that it was even set by a human hand when Corporal 

Hilbert did not conduct a thorough fire investigation to rule 

out an electrical fire[.]

Appellant’s Concise Statemenet of Matters Complained of on Appeal 

Pursuant to Rule 1925(b), at 2.16

In the instant case, Appellant was convicted of multiple crimes 

containing numerous elements. Her 1925(b) statement failed to state any 

element upon which she alleged the evidence was insufficient. Therefore, 

the issue is waived. See Garland, 63 A.3d at 344.

In her fifth issue, Appellant contends the verdict was against the 

weight of the evidence. She avers that the evidence “only established that 

she was in the location of the fire approximately thirty-four minutes before 

 

presided over the trial in this matter, this [c]ourt does not hesitate in 

concluding that the evidence presented was more than sufficient to enable a 

jury to find [Appellant] guilty on all counts.” Trial Ct. Op. at 7. The trial 

court stated: “Additionally, we believe the sufficiency issue is waived due to 

lack of specificity. [Appellant’s] 1925(b) Statement does not contain the 

required specificity for this [c]ourt to adequately address which elements of 

the offenses charged were unproven at trial.” Id.

16 We note that Appellant’s weight of the evidence claim reiterates a portion 

of the sufficiency claim. See infra.
J. A22036/14

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the fire was called in to 911.” Appellant’s Brief at 45. Appellant avers that 

the testimony of the Commonwealth’s expert, Corporal Hilbert, conflicted 

with that of her expert, John Agosti, regarding the cause of the fire. Id. at 

48. Appellant concludes that the verdict was against the weight of the 

evidence as to all charges. Id. at 51.

In considering Appellant’s weight of the evidence claim, we are guided 

by the following principles.

A claim alleging the verdict was against the weight of the 

evidence is addressed to the discretion of the trial court. 

Accordingly, an appellate court reviews the exercise of the 

trial court’s discretion; it does not answer for itself whether 

the verdict was against the weight of the evidence. It is 

well settled that the [fact-finder] is free to believe all, part, 

or none of the evidence and to determine the credibility of 

the witnesses, and a new trial based on a weight of the 

evidence claim is only warranted where the [factfinder’s] 

verdict is so contrary to the evidence that it shocks one’s 

sense of justice. In determining whether this standard has 

been met, appellate review is limited to whether the trial 

judge’s discretion was properly exercised, and relief will 

only be granted where the facts and inferences of record 

disclose a palpable abuse of discretion.

Moreover,

[a] new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same 

facts would have arrived at a different conclusion. Rather, 

the role of the trial court is to determine that 

notwithstanding all the evidence, certain facts are so 

clearly of greater weight that to ignore them, or to give 

them equal weight with all the facts, is to deny justice. A 

motion for a new trial on the grounds that the verdict is 

contrary to the weight of the evidence concedes that there 

is sufficient evidence to sustain the verdict; thus the trial 

court is under no obligation to view the evidence in the 

light most favorable to the verdict winner.
J. A22036/14

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Lastly,

[b]ecause the trial judge has had the opportunity to hear 

and see the evidence presented, an appellate court will 

give the gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial court’s 

determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for granting 

or denying a new trial is the lower court’s conviction that 

the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the 

interest of justice.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citations 

omitted).

Instantly, the trial court opined: 

[W]e do not hesitate in finding that there was more than 

enough evidence presented to enable the jury to find 

[Appellant] guilty of the crimes charged. We do not 

believe that the verdict reached in this matter would shock 

the conscience of a reasonable person reviewing the 

evidence as it was presented to the jury at the time of 

trial. 

Having presided over the trial in this matter, the jury 

clearly believed the Commonwealth’s witnesses and 

evidence over that which was presented by the Defense. 

Based upon the jury’s verdict, it is obvious to this [c]ourt 

that the jury also resolved all issues of credibility in favor 

of the Commonwealth’s witnesses and against the Defense 

witnesses, including that of the expert witnesses. The jury 

was free to believe all, part, or none of the testimony of 

the witnesses. In this case, however, it is evidence that 

the jury found credible the Commonwealth’s experts, 

Corporal Shawn Hilbert and Paul Savage, and did not find 

entirely credible the Defense expert, John Agosti. We also 

note the fact that [Appellant] testified at trial, even though 

it was her right not to do so. [Appellant] denied the

allegations against her.
J. A22036/14

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Once again, taking into consideration the length of the 

trial and the vast amount of evidence presented, 

[Appellant’s] allegation that the verdict was against the 

weight of the evidence simply lacks merit.

Trial Ct. Op. at 8-9.

 The trial court found no merit to Appellant’s claim that the verdict was 

against the weight of the evidence. Id. at 9. Appellant asks this Court to 

reweigh the evidence and find the evidence that inculpated her was not 

credible. This we cannot do. See Landis, 89 A.3d at 699. We discern no 

abuse of discretion by the trial court. See id.

Sixth, Appellant contends the trial court erred in denying her motion 

for judgment of acquittal as to the charge of arson-reckless burning. 

Appellant contends the evidence was insufficient.17 Appellant’s Brief at 52. 

She avers the Commonwealth failed to prove that Mr. Temporski’s personal 

items were affected by the fire as required to prove “she started a fire on 

the property of another and thereby recklessly ‘place[d] any personal 

property of another having a value that exceeds $5,000 . . . in danger of 

damage or destruction.’” Id. at 52-53, quoting 18 Pa.C.S. § 3301(d)(2).18

 

17 We acknowledge that we find Appellant has waived her sufficiency of the 

evidence claims. Because this claim is raised in terms of the denial of her 

motion for judgment of acquittal, we have addressed it.

18 The statute defines the offense as follows:

(d) Reckless burning or exploding.─A person commits 

a felony of the third degree if he intentionally starts a fire 

or causes an explosion, or if he aids, counsels, pays or 
J. A22036/14

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On appeal, Appellant fails to cite to the place in the record where this 

claim was preserved before the trial court. 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); Commonwealth v. Fransen, 42 A.3d 1100, 

1106 n.11 (Pa. Super. 2012) (en banc), appeal denied, 76 A.3d 538 (Pa. 

2013) (“Failing to direct this Court to specific portions of the record in 

support of an argument violates Pa.R.A.P. 2119 (c) [and for] that reason 

alone, we could conclude this issue is waived.”) However, we decline to find 

waiver on this basis. 

Appellant’s motion for judgment of acquittal was made at the close of 

the case pursuant to Pa.R.Crim.P. 606 which provides in pertinent part:

(A) A defendant may challenge the sufficiency of the 

evidence to sustain a conviction of one or more of the 

offenses charged in one or more of the following ways:

 * * *

 

agrees to pay another to cause a fire or explosion, whether 

on his own property or on that of another, and thereby 

recklessly:

 * * *

(2) places any personal property of another having a 

value that exceeds $5,000 or if the property is an 

automobile, airplane, motorcycle, motorboat or other 

motor-propelled vehicle in danger of damage or 

destruction. 

18 Pa.C.S. § 3301(d)(2).
J. A22036/14

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(2) a motion for judgment of acquittal at the close of all 

the evidence[.]

Pa.R.Crim.P. 606(A)(2).

A motion for judgment of acquittal challenges the 

sufficiency of the evidence to sustain a conviction on a 

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

Commonwealth has failed to carry its burden regarding 

that charge.

The standard of review for claims of insufficient evidence is 

well-settled. With respect to such claims, we consider the 

evidence in the light most favorable to the Commonwealth 

as verdict winner. In that light, we decide if the evidence 

and all reasonable inferences from that evidence are 

sufficient to establish the elements of the offense beyond a 

reasonable doubt. We keep in mind that it was for the 

trier of fact to determine the weight of the evidence and 

the credibility of witnesses. The jury was free to believe

all, part or none of the evidence. This Court may not 

weigh the evidence or substitute its judgment or that of 

the factfinder. 

Commonwealth v. Devries, ___ A.3d ___ , ___, 2015 WL 1268160 at *3 

(Pa. Super. 2015) (citations omitted).

In the case sub judice, the trial court opined:

[T]he Commonwealth and [Appellant] entered into a 

Stipulation governing the claims of the victims and the 

value of losses suffered by each. This Stipulation was read 

into the record by the Assistant District Attorney in the 

presence of the jury. Defense counsel also acknowledged 

that the Stipulation as read by the Assistant District 

Attorney accurately represented the agreement of the 

parties. As such, we will not now hear [Appellant] 

complain about something[s]he previously agreed to. It 

was certainly this [c]ourt’s understanding that a global 

resolution was reached between the Commonwealth and 

Defense relative to the losses sustained by all 

occupants of the building and the building owner.
J. A22036/14

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Trial Ct. Op. at 9-10 (emphasis added).19 We agree no relief is due.

At trial, the parties entered into the following Stipulation:

Number 1, due to the fire at the Lantern Lane Building 

located at 314-316 Main Street, Conyngham, 

Pennsylvania, tenant Nicole Buak filed a claim with her 

insurance company, Erie Insurance . . . . The total amount 

of the claim paid by Erie Insurance was $18,156.36.

Two, due to the fire at the Lantern Lane Building . . . 

building owner, Kenneth Temborski, doing business as 

American Industrial Resources, filed a claim with his 

Insurance Company, Erie Insurance . . . . The total 

amount of the claim paid by Erie Insurance was $984,243. 

The total replacement cost per Erie Insurance was 

$1,323,345.00.

Three, due to the fire at the Lantern Lane Building . . . 

tenants, Falvello Law Firm, filed a claim with their 

insurance company, Hartford Insurance . . . . The total 

amount of the claim paid by Hartford Insurance was 

$10,000.

. . . No. 4, due to the fire at Lantern Lane Building . . . 

tenant, Richard Grovich, DMD, filed a claim with his 

insurance company, Hartford Insurance . . . . The total 

amount of the claim paid by Hartford Insurance was 

$100,000.

Number 5, due to the fire at the Lantern Lane Building . 

. . tenant, Navigate Financial Advisors, filed a claim with 

their insurance company, State Farm Insurance . . . . The 

total amount of [sic] claim paid by State Farm Insurance 

was $10,000.

 

19 We note that the trial court found the issue waived because Appellant did 

not move for a judgment of acquittal after the Commonwealth rested its 

case. Trial Ct. Op. at 10. However, counsel moved for a judgment of 

acquittal pursuant to Pa.R.Crim.P. 606(A)(2).
J. A22036/14

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Number 6, due to the fire at the Lantern Lane building . 

. . tenant, M & L Trucking, filed a claim with their 

insurance company, Acadia Insurance . . . . The total 

amount of (sic) claim paid by Acadia Insurance was 

$2,100.

Number 7, due to the fire at the Lantern Lane Building . 

. . tenant, Barbara Reese, filed a claim with her insurance 

company, State Farm Insurance . . . . The total amount of 

the claim paid by State Farm Insurance was $25,000.

Number 8, due to the fire at the Lantern Lane Building . 

. . tenant, Nellie Stratts, filed a claim with her insurance 

company, State Farm Insurance . . . . The total amount of 

[sic] claim paid by State Farm Insurance was $18,000.

N.T. at 596-98.

Following the reading of the stipulation to the jury, the court asked 

defense counsel if it accurately represented the stipulation between the 

parties and counsel agreed. Id. at 598. The court then explained to the 

jury that the parties agreed that the facts as recited in the stipulation were 

true and they “should regard the stipulated or agreed fact as proven.” Id.

at 598-99. The stipulated facts indicated that the fire placed personal 

property in danger of damage or destruction pursuant to 18 Pa.C.S. § 

3301(d)(2). Appellant’s claim that the trial court erred in denying her 

motion for judgment of acquittal as to arson-reckless burning is without 

merit. See Devries, ___ A.3d at ___ , 2015 WL 1268160 at *3.

Next, Appellant contends that the fourteen to twenty-eight years 

sentence was manifestly excessive. Appellant’s Brief at 54. Appellant claims 

the court gave consideration to impermissible factors when imposing her 
J. A22036/14

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excessive and unreasonable sentence, viz., knowledge of risk of harm to 

firemen, risk of harm to victims, age of victims, financial damage to the 

building, and emotional damage to victims. Id. at 57. 

This Court has stated,

Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to appellate review as of 

right. Prior to reaching the merits of a discretionary 

sentencing issue:

[W]e conduct a four part analysis to 

determine: (1) whether appellant has filed a 

timely notice of appeal, see Pa.R.A.P. 902 and 

903; (2) whether the issue was properly 

preserved at sentencing or in a motion to 

reconsider and modify sentence, see

Pa.R.Crim.P. [720]; (3) whether appellant’s 

brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that 

the sentence appealed from is not appropriate 

under the Sentencing Code, 42 Pa.C.S.A. § 

9781(b).

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

citations and punctuation omitted). 

Instantly, Appellant timely appealed, preserved her issue in her post 

sentence motion,20 and included a Pa.R.A.P. 2119(f) statement in her brief. 

See Appellant’s Brief at 23-24. Accordingly, we ascertain whether Appellant 

has presented a substantial question. Id. “A defendant presents a 

substantial question when he sets forth a plausible argument that the 

sentence violates a provision of the sentencing code or is contrary to the 

 

20 Appellant’s Post-Sentence Mot., 7/3/13, at 9.
J. A22036/14

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fundamental norms of the sentencing process.” Commonwealth v. Dodge, 

77 A.3d 1263, 1268 (Pa. Super. 2013) (punctuation omitted), appeal denied, 

91 A.3d 161 (Pa. 2014).21 

In Commonwealth v. McNabb, 819 A.2d 54 (Pa. Super. 2003), this 

Court held that an appellant “raises a substantial question by alleging his 

sentence is excessive due to the trial court’s reliance on impermissible 

factors.” Id. at 56-57. We find Appellant has raised a substantial question. 

See id.

Appellant argues the court failed to consider the sentencing factors 

found in 42 Pa.C.S. § 9721. Appellant’s Brief at 56. She also contends 

“[t]he court’s reasons for its imposition of aggravated range sentences was 

the knowledge of the risk of harm to firemen, the knowledge of the risk of 

harm to the victims, the age of the victims, the financial damage to the 

building, and emotional damage to the victims.”22 Id. at 57. 

 

21 “[W]e disapprove of Appellant’s failure to indicate where his sentences fell 

in the sentencing guidelines and what provision of the sentencing code was 

violated.” Dodge, 77 A.3d at 1271. However, because the Commonwealth 

has not objected to the adequacy of Appellant’s argument, we decline to find 

waiver on this defect. See id. At sentencing, the court noted that it was 

sentencing Appellant within the aggravated range of the guidelines. See

N.T., 6/24/13, at 29-31.

22 Appellant also claims the court failed to consider her serious health issues. 

Appellant’s Brief at 60. The “court failed to give weight to the fact that [she] 

does not have a prior record” and “to give weight to [her] father[s’] 

testimony as to how she was raised and asking for compassion and 

understanding.” Id. at 60-61. “[T]his Court has held on numerous 

occasions that a claim of inadequate consideration of mitigating factors does 
J. A22036/14

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Our standard of review is as follows:

[s]entencing 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. An abuse 

of discretion is more than just an error in judgment and, 

on appeal, the trial court will not be found to have abused 

its discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will. More specifically, 42 

Pa.C.S.A. § 9721(b) offers the following guidance to the 

trial court’s sentencing determination:

[T]he 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.A. § 9721(b).

Furthermore, 

section 9781(c) specifically defines three instances in 

which the appellate courts should vacate a sentence 

and remand: (1) the sentencing court applied the 

guidelines erroneously; (2) the sentence falls within 

the guidelines, but is “clearly unreasonable” based 

on the circumstances of the case; and (3) the 

sentence falls outside of the guidelines and is 

“unreasonable.” 42 Pa.C.S. § 9781(c). Under 42 

Pa.C.S. § 9781(d), the appellate courts must review 

the record and consider the nature and 

circumstances of the offense, the sentencing court’s 

observations of the defendant, the findings that 

formed the basis of the sentence, and the sentencing 

 

not raise a substantial question for our review.” Commonwealth v. 

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted). We note, 

however, that the sentencing court stated: ”I’ve also considered the 

testimony of [Appellant] and her father and considered her age and her 

relatively minor prior record. She does have a prior record score of zero and 

has some health issues.” N.T., 6/24/13, at 29.
J. A22036/14

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guidelines. The weighing of factors under 42 Pa.C.S. 

§ 9721(b) is exclusively for the sentencing court, 

and an appellate court could not substitute its own 

weighing of those factors. The primary 

consideration, therefore, is whether the court 

imposed an individualized sentence, and whether the 

sentence was nonetheless unreasonable for 

sentences falling outside the guidelines, or clearly 

unreasonable for sentences falling within the 

guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012) 

(alterations and some internal citations omitted).

Our Supreme Court has stated:

Where pre-sentence reports exist, we shall continue to 

presume that the sentencing judge was aware of relevant 

information regarding the defendant’s character and 

weighed those considerations along with mitigating 

statutory factors. A pre-sentence report constitutes the 

record and speaks for itself. In order to dispel any 

lingering doubt as to our intention of engaging in an effort 

of legal purification, we state clearly that sentencers are 

under no compulsion to employ checklists or any extended 

or systematic definitions of their punishment procedure. 

Having been fully informed by the pre-sentence 

report, the sentencing court’s discretion should not 

be disturbed. This is particularly true, we repeat, in 

those circumstances where it can be demonstrated that 

the judge had any degree of awareness of the sentencing 

considerations, and there we will presume also that the 

weighing process took place in a meaningful fashion.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).

Instantly, at sentencing, the court opined: “I have had an opportunity 

obviously to preside over the trial held in this matter, have reviewed the 

presentence investigation report, the various victim impact statements 

that were presented to the [c]ourt, and all of the evidence and argument 
J. A22036/14

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presented this morning.” N.T., 6/24/13, at 28 (emphasis added). 

Accordingly, after examining the record as a whole, we find that the trial 

court’s sentence was not manifestly excessive. We discern no abuse of 

discretion. See Devers, 546 A.2d at 18.

Lastly, Appellant contends counsel was ineffective for failing to object 

during the Commonwealth’s closing argument to the introduction of the 

audio portion of the backdraft video and improper argument regarding the 

video. Appellant’s Brief at 63. It is well-settled that challenges to the 

effectiveness of counsel are generally deferred until collateral review. See 

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). There are two 

exceptions:

First, we appreciate that there may be extraordinary 

circumstances where a discrete claim (or claims) of trial 

counsel ineffectiveness is apparent from the record and 

meritorious to the extent that immediate consideration 

best serves the interests of justice; and we hold that trial 

courts retain their discretion to entertain such claims.

Second, with respect to other cases and claims, 

including cases such as [Commonwealth v. Bomar, 826 

A.2d 831 (Pa. 2003)] and the matter sub judice, where the 

defendant seeks to litigate multiple or prolix claims of 

counsel ineffectiveness, including non-record-based claims, 

on post-verdict motions and direct appeal, we repose 

discretion in the trial courts to entertain such claims, but 

only if (1) there is good cause shown, and (2) the unitary 

review so indulged is preceded by the defendant’s knowing 

and express waiver of his entitlement to seek PCRA review 

from his conviction and sentence, including an express 

recognition that the waiver subjects further collateral 

review to the time and serial petition restrictions of the 

PCRA.
J. A22036/14

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Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013).

Instantly, Appellant did not raise his ineffectiveness claim for 

consideration by the trial court and, moreover, did not knowingly waive his 

right to seek PCRA review. See id. Absent consideration, “the claims 

regarding trial counsel’s ineffectiveness will be dismissed without prejudice.” 

See Grant, 813 A.2d at 739. Accordingly, we affirm the judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/2015