J-A19037-19

2019 PA Super 325

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* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

SEAN SEXTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 75 EDA 2018

Appeal from the Judgment of Sentence December 14, 2017

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

No(s): CP-51-CR-00007512016

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED OCTOBER 28, 2019

Appellant Sean Sexton appeals from the judgment of sentence entered 

in the Court of Common Pleas of Philadelphia County on December 14, 2017, 

following his convictions of Intimidation of Witnesses or Victims, Terroristic 

Threats with Intent to Terrorize Another and Stalking.1 We affirm.

The trial court aptly set forth the relevant procedural history and facts 

herein as follows: 

PROCEDURAL HISTORY

Between May of 2015 and May of 2016, [Appellant] was 

arrested and charged with various offenses under four separate 

Bills of Information. At CP-51-CR-0005229- 2015, [Appellant] was 

arrested on May 4, 2015, and charged with, inter-alia, Rape by 

Forcible Compulsion1 and numerous other related offenses. At CP51-CR-0011605-2015, [Appellant] was arrested on August 5, 

2015, and charged with Simple Possession.2 At CP-51-CR0000751-2015, [Appellant] was arrested on November 17, 2015, 

and charged with 1) Intimidation of Witnesses or Victims,3 2) 

____________________________________________

1 18 Pa.C.S.A. §§ 4952; 2706(a)(1) and 2709.1, respectively. 
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Terroristic Threats with Intent to Terrorize Another

4

, and 3) 

Stalking.5 At CP-51-CR-0010608-2016, [Appellant] was arrested 

on May 16, 2016, and charged with Forgery.6

On May 18, 2017, by agreement of counsel,

7 [Appellant]

proceeded to trial only on the two bills of information relating to 

the charges of rape and witness intimidation.8 At the conclusion 

of his waiver trial, on May 19, 2017, [Appellant] was found guilty 

on the charges of witness intimidation, terroristic threats and 

stalking. [Appellant] was found not guilty on all rape related 

charges.

Prior to the commencement of his sentencing hearing on 

September 21, 2017, [Appellant] entered into non-negotiated 

pleas of guilty on the remaining open charges of simple possession 

and forgery.9 At the conclusion of his sentencing hearing, 

[Appellant] was sentenced to a period of confinement in a state 

correctional facility of 7 to 15 years on the charge of witness 

intimidation followed by five years[’] probation. On charges of 

terroristic threats, stalking, simple possession and forgery 

[Appellant] was sentenced to concurrent periods of probation of 5 

years each, to be served consecutively to his period of 

confinement, for an aggregate period of confinement of 7 to 15 

years followed by 5 years[’] probation.

On September 25, 2017, [Appellant] timely filed a Motion 

for Post Sentence Relief pursuant to the Pennsylvania Rules of 

Criminal Procedure, Pa.R.Crim.P. 720(A)(1), seeking an arrest of 

judgement, [sic] a new trial, or, in the alternative, a 

reconsideration of his sentence pursuant to Pa.R.Crim.P. 

720(B)(1)(a)(ii), (iv) and (v). The [c]ourt, after a hearing held on 

December 14, 2017, denied [Appellant’s] motions seeking a new 

trial. However, on considering [Appellant’s] argument, the [c]ourt 

modified [Appellant’s] sentence, imposing an aggregate sentence 

of 6 1⁄2 to 13 years[’] incarceration followed by 5 years[’] 

probation.

On January 2, 2018, [Appellant] timely filed the instant 

appeal to the Superior Court of Pennsylvania.10 On January 8, 

2018, this [c]ourt filed and served on [Appellant] an Order 

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate 

Procedure, directing [Appellant] to file and serve a Statement of 

Errors Complained of on Appeal, within twenty-one days of the 

[c]ourt's Order. On January 15, 2018, [Appellant] timely filed his 

statement of "Matters Complained of on Appeal." 

***

EVIDENCE AT TRIAL
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The complaining witness, [A.Y.],

2

testified that she had been 

best friends with [A.L.] since 2013, when they were both in the 

ninth grade. Eventually, beginning in April of 2015, they drifted 

apart when [A.L.] went to live with her aunt. During their 

friendship, she frequently visited [A.L.] at her home on Reed 

Street in the City of Philadelphia, which she shared with 

[Appellant]. (N.T., 5/19/17, pgs. 13-17, 25) 

[A.Y.] testified that, during their friendship, [A.L.] confided 

in her stories of being sexually molested by [Appellant]. (N.T., 

5/19/17, pgs. 14-18) After [A.L.] eventually reported the assaults, 

[A.Y.] became a witness involving charges of rape and sexual 

assault against [Appellant].

11 On April 28, 2015, as part of their 

investigation into the sexual assault charges, she gave a formal 

statement to the Special Victims Unit of the Philadelphia Police 

Department, with regard to their conversations. (N.T., 5/19/17, 

pgs. 13, 14, 18, 40)

Subsequently, in October of 2015, [A.Y.] testified that, as 

she approached her normal bus stop on her way to school, she

encountered "Graffiti" reading; "[A.L.] is lying about rape." (N.T., 

5/19/17, pgs. 21, 24, 46) After this incident, a school friend texted 

her a picture of "Graffiti" written on the bench at her bus stop, 

again reading: "[A.L.] is lying about rape." In addition to these 

two pieces of "Graffiti," she encountered a third piece, written on 

a trashcan at the bus stop, reading; "Kill Squill." She testified that 

"Squill" is a "nickname me and [A.L.] had that we called each 

other. It's in SpongeBob" and that [Appellant] was aware of this. 

(N.T., 5/19/17, pgs. 21-23, 43, 44, 47, 48)

She also testified that this stop was known to [Appellant], 

as he "did see me at the 25 bus stop before. He was walking past. 

He said some of his friends lived near there." (N.T., 5/19/17, pg. 

42) She also testified that, being scared by the "Graffiti," she told 

her mother, who then called the police to report it. (N.T., 5/19/17, 

pgs. 46, 49, 50)

[A.L.], testified that, after her father's death in 2010,

[Appellant] was appointed as a co-guardian and moved into the 

family home to care for her and her brother. (N.T., 5/18/17, pgs. 

49-52, 96) She continued to live in the home with [Appellant] until 

April of 2015, when she eventually told her aunt that she had been

sexually abused by [Appellant]. (N.T., 5/18/17, pgs. 62, 65)

____________________________________________

2 To protect the identity of the victim who was a minor at the time, we have 

replaced her name and that of her friends and relatives with initials or other 

generic labels throughout this Opinion. 
J-A19037-19

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[A.L.] testified that, commencing in 2013, she began 

confiding the details of this abuse, in [A.Y.]. (N.T., 5/18/17, pgs. 

61, 62) She also testified that [A.Y.] had been to her house 

multiple times and was well known to [Appellant] (N.T., 5/18/17, 

pg. 77)

Although she did not personally see the "Graffiti," she 

testified that [Appellant] "was big into graffiti," they had "spray 

painted my walls" and that she was familiar with and knew 

[Appellant’s] handwriting. Comparing the photographs of the 

"graffiti" to a note previously written to her by [Appellant], she 

identified the writing in the "Graffiti" as that of [Appellant]. (N.T., 

5/18/17, pg. 72, 73, 75, 78, 135-137, 139)

She also testified that she did not use the bus stop where 

the "Graffiti" was found, stating that it is used by [A.Y.] every day 

to go to school. She also identified "Squill" as "a term of 

endearment. It's a nickname me and my friend had come up 

[with] for each other. It's actually silly. We were really young, it 

was freshman year. It's from SpongeBob, Squilliam." It was a 

nickname she used frequently in her home, in referring to [A.Y.]. 

(N.T., 5/18/17, pg. 72, 73, 75, 78)

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1 18 Pa.C.S.A. §3121(a)(1) 

2 35 Pa.C.S.A. §780-113(a)(16)

3 18 Pa.C.S.A. § 4952

4 18 Pa C.S.A. §2706(a)(1)

5 18 Pa.C.S.A. § 2709.1

6 18 Pa.C.S.A. §4101

7 (N.T., 5/18/17, pgs. 9-12)

8 CP-51-CR-0005229-2015 and CP-51-CR-0000751-2015

9 CP-51-CR-0011605-2015 and CP-51-CR-0010608-2016

10 [Appellant] is only appealing his conviction at 51-CR-0000751-

2015 on the charges of witness intimidation, terroristic threats 

and stalking. 

11 The [c]ourt found [Appellant] not guilty of these charges at CP51-CR-0005229-2015

Trial Court Opinion, filed 1/23/18, at 1-6. 

 In his appellate brief, Appellant raises the following Statement of the 

Questions Presented: 
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1. Were the verdicts for Intimidation of a Witness [18 Pa.C.S.A. 

4952], Terroristic Threats [18 Pa.C.S.A. 2706] and Stalking [18 

Pa.C.S.A. 2709.1] against the weight of the evidence? Did the 

evidence not support the conclusion that [Appellant] wrote the 

supposed threats? Was the verdict based on highly speculative 

and contradictory evidence and not supported by the evidence? 

Did the verdict violate fundamental due process because the 

evidence was highly speculative and contradictory and did not 

support the verdict, thus violating the Due Process Clause of the 

Fourteenth Amendment of the United States Constitution? - - -

Judge Cunningham affirmed his judgment of sentence.

2. Were the verdicts for Intimidation of a Witness [18 Pa.C.S.A. 

4952], Terroristic Threats [18 Pa.C.S.A. 2706] and Stalking [18 

Pa.C.S.A. 2709.1] not supported by sufficient evidence? Was the 

evidence too speculative? Did the evidence fail to show who wrote

the signs? Did the evidence fail to show who was referred to by 

"Squill"? Did the verdict violate fundamental due process because 

the evidence was highly speculative and contradictory and did not 

support the verdict, thus violating the Due Process Clause of the

Fourteenth Amendment of the United States Constitution? - - -

Judge Cunningham affirmed the judgment of sentence.

3. Was the sentence of Judge Cunningham of 6 1⁄2 to 13 years of 

incarceration, plus 5 years of probation excessive and an abuse of 

discretion? Did this excessive sentence present a substantial issue 

since it far exceeded the Sentencing Guidelines? Was the sentence 

extremely harsh under the circumstances and an abuse of the 

Sentencing Guidelines when there was an offense gravity score of 

11 and a prior record score of 0 with a guideline sentencing range 

of 36 to 54 months of incarceration, plus or minus 12? Was this 

an abuse of discretion since the sentence of 6 1⁄2 years [to] 23 

months was far above the outer limits of the Sentencing 

Guidelines? Was the sentence abusive since the Assistant District 

Attorney only asked for 4 to 8 years of incarceration, followed by 

5 years of probation, and Judge Cunningham's sentence was 2 

years beyond the Assistant District Attorney's suggested 

sentence? Did Judge Cunningham fail to state adequate reasons 

in support of his sentence pursuant to 42 Pa.C.S.A. 9721(b)? - - -

Judge Cunningham, in the first Petition to Modify and Reconsider, 

reduced the sentence from 7 to 15 years to 6 1⁄2 to 13 years, and 

then affirmed the new judgment of sentence and denied the oral 

Motion to Reconsider the Sentence (see Exhibit "G").
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Brief for Appellant at 13.3 

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3 We remind Appellant that where a Pa.R.A.P. 1925(b) concise statement 

presents an issue broadly and non-specifically by citing generally to the 

record, this Court has found the issue to be waived in that such vagueness

leaves the trial court in a position to guess what specific issues the appellant 

intended to raise and, thus, impairs its ability to identify those claims. In 

doing so, we observed that:

issues not raised in a Rule 1925(b) statement will be deemed 

waived for review. An appellant's concise statement must properly 

specify the error to be addressed on appeal. In other words, the 

Rule 1925(b) statement must be “specific enough for the trial 

court to identify and address the issue [an appellant] wishe[s] to 

raise on appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2 

(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 

(2007). “[A] [c]oncise [s]tatement which is too vague to allow the 

court to identify the issues raised on appeal is the functional 

equivalent of no [c]oncise [s]tatement at all.” Id. The court's 

review and legal analysis can be fatally impaired when the court 

has to guess at the issues raised. Thus, if a concise statement is 

too vague, the court may find waiver.

Commonwealth v. Scott, 212 A.3d 1094, 1112 (Pa.Super. 2019) (citation 

omitted). “In addition, our Supreme Court has categorically rejected 

incorporation by reference as a means of presenting an issue [in the argument 

portion of an appellant’s brief”]. See Commonwealth v. Briggs, 12 A.3d 

291, 342–43 (Pa. 2011) (citations omitted) (stating that, where an appellant 

incorporates prior arguments by reference in contravention of Pa.R.A.P. 

2119(a) and (b), he or she waives such claims on appeal).” see also Pines 

v. Farrell, 848 A.2d 94, 97 n. 3 (Pa. 2004) (holding that reliance on briefs 

and pleadings already filed in a case was not a recommended form of advocacy 

and further noting that “this Court is not obliged to root through the record 

and determine what arguments, if any, respondent forwarded below, nor are 

we obliged to fashion an argument on his behalf. This is not a recommended 

form of advocacy”).

Herein, Appellant’s concise statement raises general challenges to the 

weight and sufficiency of the evidence along with a challenge to the 

discretionary aspects of his sentence. In support of these claims, Appellant 

attaches an exhibit to his concise statement and incorporates by reference 

numerous prior filings. In doing so, Appellant arguably failed to provide the 

trial court with a concise statement that is specific enough for the trial court 
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 In his initial claim, Appellant challenges the weight of the evidence to 

sustain his convictions of Intimidation of a Witness, Terroristic Threats and 

Stalking.

4

 

A motion for 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. An allegation that the verdict is 

against the weight of the evidence is addressed to the discretion 

of the trial court. 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.

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations 

and footnote omitted). 

In addition, an appellate court's standard of review when presented with 

a weight of the evidence claim is distinct from the standard of review applied 

by the trial court:

Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence. Because 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 

____________________________________________

to identify and consider the issues he intends to raise on appeal. However, 

because this has not fatally impaired the trial court’s legal analysis, in that 

Appellant has directed the court to filings in the record which specify the 

arguments he develops on appeal, we will not deem his issues to be waived.

4 Although this issue appears first in the Statement of the Questions 

Presented, Appellant develops it in the part “B” portion of his appellate brief. 
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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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting Widmer, 

supra at 753 (emphasis in original)) (citation omitted).

Prior to considering the merits of this claim, we first must determine 

whether Appellant properly has preserved it for our review. The entirety of 

Appellant’s argument in support of this claim reads as follows: 

The standard for review of weight of the evidence is found 

in Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa. Super., 

2004).

 "Rather, the role of the trial judge is to determine 

that notwithstanding all the facts, certain facts are so 

clearly of greater weight that to ignore them or give

them equal weight with all the other facts is to deny 

justice." Id 1028.

 "Furthermore, in reviewing a weight of the 

evidence claim we look to see if the verdict was so 

contrary to the evidence as to shock one's sense of 

justice and make the award of a new trial imperative." 

[Commonwealth v. Strutt, 624 A.2d 162, 164 (Pa. 

Super., 1993)].

[Appellant] incorporates his summary of the trial 

testimony with reference to the trial record in the Statement of 

the Case section of this Brief by reference into this argument. 

Further, [Appellant] also incorporates the argument made as to 

sufficiency of evidence in the previous argument into this weight 

of evidence argument where he quoted the elements of the crimes 

and summarized the evidence. 

The bottom line is there is no evidence that would suggest 

or support these convictions. As a result, these convictions should 

shock one’s conscience. This is a conviction where the evidence 

does not support the conviction. 

 As noted above, there is nothing that places [Appellant] 

in the area where this occurred. No one saw him write the 
J-A19037-19

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threatening statements. No one saw him present in the area. No 

contraband or anything was found in his possession that would 

suggest he wrote these threatening statements. [Appellant] does 

not live in that particular area. A.L., the alleged victim in the 

sexual case, did not use the bus stop or subway. A.Y. apparently 

picked up Bus 25 in that vicinity, but there was no indication that 

[Appellant] would have known that. More importantly, no one saw 

him write the statements and there was no handwriting expert to 

link the block letters to him. A good artist could easily take the 

block letters that [Appellant] used in his earlier note to A.L. years 

ago, and recreated the alleged threatening notice. This is not the 

same as handwriting analysis or looking at handwriting. This was 

not handwriting, but block letters. This could easily be copied by 

a good artist. In other words, this was highly speculative 

testimony to link [Appellant] to these notes. Further, there was 

pure speculation that the name Squill referred to A.Y., the alleged 

victim in these charges. That conclusion would be a pure guess.

Further, the verdicts violated (as noted above) fundamental 

due process due to the conjecture and speculation.

In conclusion, [Appellant] respectfully requests this 

Honorable Court reverse his convictions under the weight of 

evidence argument since the verdict was against the weight of the 

evidence, and this verdict should shock the conscience of the factfinder.

Brief for Appellant at 62-64. 

 In an Opinion Announcing the Judgment of the Court, the Pennsylvania 

Supreme Court refused to consider claims not argued in an appellant’s brief 

but rather incorporated by reference from motions he had made at trial. In 

doing so, the Court observed that “[t]o permit appellant to incorporate by 

reference his previous motions would effectively allow him to more than 

double the original briefing limit.”). Commonwealth v. (James) Lambert,

797 A.2d 232, 237 n. 4 (Pa. 2001). As our Supreme Court later observed: 

The briefing requirements scrupulously delineated in our 

appellate rules are not mere trifling matters of stylistic preference; 

rather, they represent a studied determination by our Court and 
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its rules committee of the most efficacious manner by which 

appellate review may be conducted so that a litigant's right to 

judicial review as guaranteed by Article V, Section 9 of our 

Commonwealth's Constitution may be properly exercised. Thus, 

we reiterate that compliance with these rules by appellate 

advocates who have any business before our Court is mandatory. 

Consequently, since Appellant has failed to develop or present a 

proper argument with respect to these constitutional claims, we 

find them waived in this direct appeal.

Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011). 

The same logic applies herein, where, aside from bald allegations which 

do not pertain to any specific crime of which Appellant was convicted, 

Appellant attempts to support his challenge to the weight of the evidence by 

incorporating the arguments he had set forth in the portion of his brief 

pertaining to sufficiency of the evidence.

 Moreover, in relying upon his argument in support of his sufficiency 

challenge, Appellant conflates weight and sufficiency claims and has 

essentially failed to develop a challenge to the weight of the evidence. “It is 

Appellant's obligation to sufficiently develop arguments in his brief by applying 

the relevant law to the facts of the case, persuade this Court that there were 

errors below, and convince us relief is due because of those errors. If an 

appellant does not do so, we may find the argument waived.” 

Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa.Super. 2009). For all of 

the foregoing reasons, this issue is waived. 

 Next, Appellant maintains the evidence was insufficient to sustain his 

convictions. Specifically, Appellant argues his convictions of Intimidation of a 
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Witness and Terroristic Threats relied heavily upon handwriting attributed to 

him without proper authentication by an expert witness. He asserts the same 

argument applies to his Stalking conviction and posits that the conviction 

cannot stand as Appellant neither spoke to nor touched anyone on October 9, 

2015. Brief for Appellant at 48-50; 53-58.

Evidence is sufficient to sustain a conviction when, viewed in the light 

most favorable to the Commonwealth as verdict winner, the evidence and all 

reasonable inferences drawn therefrom support the jury's finding of all the 

elements of an offense beyond a reasonable doubt. Commonwealth v. 

Mattison, 82 A.3d 386, 392 (Pa. 2013) (citing Commonwealth v. 

Montalvo, 956 A.2d 926, 932 (Pa. 2008)). In applying this standard, 

Pennsylvania courts acknowledge that “the Commonwealth may sustain its 

burden by means of wholly circumstantial evidence.” Montalvo, 956 A.2d at 

932 (citing Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008)). The 

facts and circumstances established by the Commonwealth need not preclude 

every possibility of innocence, as any doubts regarding a defendant's guilt 

may be resolved by the fact finder unless the evidence is so inconclusive that, 

as a matter of law, no probability of guilt may be drawn. Commonwealth v. 

Devine, 26 A.3d 1139, 1145 (Pa.Super. 2011) (quoting Commonwealth v. 

Jones, 874 A.2d 108, 120–121 (Pa.Super. 2005)). The fact finder is free to 

believe all, part, or none of the evidence. Id.
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In finding Appellant was not entitled to relief on this issue, the trial court 

cited the relevant law and reasoned as follows: 

The admission of evidence is a matter committed to the 

sound discretion of the trial court, and the decision to admit 

certain evidence will not be overturned absent an abuse of that 

discretion. Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008);

Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (Pa. 1992) The 

Pennsylvania Rules of Evidence (Pa.R.E.) at Rule 901(a) provides 

that "The requirement of authentication or identification as a 

condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter in question is what 

its proponent claims." Rule 901(b)(10) provides evidence may be 

authenticated by "Any method of authentication or identification 

provided by statute or by other rules prescribed by the Supreme 

Court." It is clear from the official comments and Collins, 957 

A.2d at 265, the adoption of this rule incorporated prior 

Pennsylvania decisional law.

Furthermore; "A document may be authenticated by 

circumstantial evidence." Commonwealth v. Brooks, 532 Pa. 

Super. 394, 398, 508 A.2d 316, 318 (Pa. Super. 1986) 

Pennsylvania jurisprudence has long held that "Comparisons of 

handwriting may by made by a jury. Expert testimony to 

authenticity is not necessary and the jury may, by comparison of 

writings, decide whether the authenticated writing was made by 

the same person as the writing in dispute. (Citation omitted) 

Commonwealth v. Gipe, 169 Pa. Super. 623, 626, 84 A.2d 366, 

368 (Pa. Super., 1951)

[Appellant] essentially argues that the Commonwealth 

failed to establish that he was the author of the "Graffiti" found at 

[A.L.’s] bus stop; no one saw him do it and the Commonwealth 

failed to present an expert at trial to authenticate the writing. 

(N.T., 12/14/17, pg. 11, 12, 14) There was no need for the 

Commonwealth to call an expert to authenticate [Appellant’s]

handwriting. At trial, [A.Y.] testified that her bus stop was known 

to [Appellant], as he had seen her there before and that he had 

friends who lived in the area. This was supported by [A.L.’s]

producing a note from [Appellant] in his hand writing. Comparing 

the hand writing on the note with the writing in the "Graffiti," she 

unequivocally identified the writing as that of [Appellant]. The 

[c]ourt found the testimony of both [A.Y.] and [A.L.], regarding 

the "Graffiti," compelling. Considering the circumstances of the 

content, timing and placement of the "Graffiti" led the [c]ourt to 
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conclude: "There is no question in my mind that the design was 

done by him." (N.T., 12/14/17, pg. 15)

Intimidation of a witness, is defined at 18 Pa.C.S.A. 4952 

which provides in part; "(a) A person commits an offense if, with 

the intent to or with the knowledge that his conduct will obstruct, 

impede, impair, prevent or interfere with the administration of 

criminal justice, he intimidates or attempts to intimidate any 

witness or victim to:...(3) Withhold any testimony,... relating to 

the commission of a crime from any law enforcement officer, 

prosecuting official or judge." "[A]ctual intimidation of a witness 

is not an essential element of the crime. The crime is committed 

if one, with the necessary mens rea, "attempts " to intimidate a 

witness or victim....The trier of the facts, therefore, could find that 

appellant attempted to intimidate his accuser and that he did so 

intending or, at least, having knowledge that his conduct was 

likely to, impede, impair or interfere with the administration of 

criminal justice.... The Commonwealth is not required to prove 

mens rea by direct evidence. Frequently such evidence is not 

available. In such cases, the Commonwealth may rely on 

circumstantial evidence." Commonwealth v. Beasley, 138 A.3d 

39, 48 (Pa. Super. 2016)

Terroristic threats, is defined at 18 Pa.C.S.A. 6301 which 

provides in part; "(a) ...A person commits the crime of terroristic 

threats if the person communicates, either directly or indirectly, a 

threat to: (1) commit any crime of violence with intent to terrorize 

another...(e)...As used in this section, the term "communicates" 

means, conveys in person or by written or electronic means, 

including telephone, electronic mail, Internet, facsimile, telex and 

similar transmissions." To establish the elements of this crime, the

"Commonwealth must prove that 1) the defendant made a threat 

to commit a crime of violence, and 2) the threat was 

communicated with the intent to terrorize another or with reckless 

disregard for the risk of causing terror. Neither the ability to carry 

out the threat, nor a belief by the person threatened that the 

threat will be carried out, is an element of the offense. Rather, the 

harm sought to be prevented by the statute is the psychological 

distress that follows from an invasion of another's sense of 

personal security." Commonwealth v. Reynolds, 835 A.2d 

720,730 (Pa. Super. Ct. 2003) (Internal citations and quotations 

omitted) Furthermore, the statute "is not meant to penalize mere 

spur-of-the-moment threats which result from anger." Id. 

"However, "being angry does not render a person incapable of 

forming the intent to terrorize." Id. The Court "must consider the 
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totality of circumstances to determine whether the threat was a 

result of a heated verbal exchange or confrontation." Id.

Stalking, is defined at 18 Pa.C.S.A. 2709.1 which provides 

in part; "a)...A person commits the crime of stalking when the 

person either:...(2) engages in a course of conduct or repeatedly 

communicates to another person under circumstances which 

demonstrate or communicate either an intent to place such other 

person in reasonable fear of bodily injury or to cause substantial 

emotional distress to such other person." Communicates is 

defined as conveying "a message without intent of legitimate 

communication or address by oral, nonverbal, written or electronic 

means, including telephone, electronic mail, Internet, facsimile, 

telex, wireless communication or similar transmission." 18 

Pa.C.S.A. 2709.1(1) Course of conduct is defined as a "pattern of

actions composed of more than one act over a period of time, 

however short, evidencing a continuity of conduct. The term 

includes lewd, lascivious, threatening or obscene words, 

language, drawings, caricatures or actions, either in person or 

anonymously."

In considering the totality of the circumstances, it is clear 

from the record that the "Graffiti", "[A.L.] is lying about rape," and 

"Kill Squill" written on the benches and trashcan near [A.Y.’s] bus 

stop, referenced the pending criminal charges brought against 

[Appellant] by [A.L.]. Although [A.Y.] did not testify at 

[Appellant’s] preliminary hearing, she had been listed as a 

witness. (N.T., 5/19/17, pg. 199) The plain meaning of these 

inscriptions was an attempt to intimidate [A.Y.] to prevent her 

from testifying against [Appellant], as contemplated by 18 

Pa.C.S.A. 4952.

It is also clear from the record that the legend, "Kill Squill," 

inscribed on a trashcan located at this bus stop, constitutes a 

terroristic threat to commit a crime of violence as contemplated 

by 18 Pa.C.S.A. 6301(a). This threat was undoubtedly directed at 

[A.Y], as this was her regular bus stop and not [A.L.’s].

Lastly, the multiple inscriptions constituted a course of 

conduct or repeated communications demonstrating an intent to 

place such other person in reasonable fear of bodily injury or to 

cause substantial emotional distress to such other person as 

contemplated by 18 Pa.C.S.A. 2709.1. As noted, [Appellant]

succeeded in causing [A.Y.] such severe emotional stress[.]

Trial Court Opinion, filed 10/23/18, at 8-12. 
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Following our review of the record, the parties’ briefs, and the relevant 

law, we discern no error with the trial court's findings regarding the sufficiency

of the evidence and find that the foregoing portion of the trial court’s Rule 

1925(a) Opinion correctly disposes of this issue. Accordingly, we affirm on 

that basis. 

Finally, Appellant argues the trial court abused its discretion in 

fashioning his sentence. He claims the sentence was “extremely excessive 

and harsh,” “far beyond the guidelines and the district attorney’s 

recommendation,” and not supported with adequate reasons on the record. 

Brief for Appellant at 64. 

“A challenge to the discretionary aspects of sentence must be 

considered a petition for permission to appeal, as the right to pursue such a 

claim is not absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. 

Super. 2012) (en banc) (citation omitted). Thus, before we may consider the 

merits of Appellant’s third issue, he “must invoke this Court’s jurisdiction by 

satisfying a four-part test.” Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010). The test is: 

(1) whether Appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. 720; (3) whether Appellant’s brief has 

a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 909 A.2d 303 (Pa. 2006) (internal citations omitted). “Only if the 

appeal satisfies these requirements may we proceed to decide the substantive 

merits of Appellant’s claim.” Commonwealth v. Luketic, 162 A.3d 1149, 

1159-60 (Pa.Super. 2017).

Herein, Appellant timely filed an appeal with this Court, and he 

challenged his modified sentence orally on the record at his December 14, 

2017, hearing. See N.T. 12/14/17, at 32.5 Appellant also has included a 

Pa.R.A.P. 2119(f) Statement in his brief. He therefore satisfied the first three 

prongs of the test.

We now turn to the fourth prong – i.e., whether his Concise Statements 

of the Reasons Relied Upon for Allowance of Appeal Pursuant to Pennsylvania 

Rules of Appellate Procedure, 2119(f) raises a substantial question. See Brief 

for Appellant at 46-47. The existence of a substantial question must be 

____________________________________________

5

In his Amended Notice of Appeal, Appellant indicates he is appealing from 

his judgment of sentence dated September 21, 2017, the denial of post-trial 

motions dated December 14, 2017, and the denial of the motion to modify 

and reconsider sentence which occurred on December 14, 2017; however, in 

its Order entered on December 14, 2017, which Appellant attached to his 

notice of appeal as Exhibit “A,” the trial court, in fact, granted Appellant’s 

Motion for Reconsideration. In its “Order of Sentence Modified Sentence,” also 

entered on that date, the trial court resentenced Appellant to an aggregate 

term of six and one-half (6 1⁄2) years to thirteen (13) years in prison to be 

followed by five (5) years of probation. As such, his appeal properly lies from 

the judgment of sentence imposed on December 14, 2017. 
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determined on a case-by-case basis. See Commonwealth v. Cruz-Centeno, 

668 A.2d 536, 545 (Pa.Super. 1995). “A substantial question exists only when 

the appellant advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012) 

(citations and internal quotation marks omitted).

In his Pa.R.A.P. 2119(f) Statement, Appellant states his sentence was 

“extremely harsh under the circumstances and an abuse of discretion” in that 

it was “far above the Sentencing Guidelines range and even above the 

aggravated guideline range.” Appellant’s Brief at 46. Appellant also asserts 

his sentence exceeded that recommended by the Commonwealth and that the 

trial court did not provide adequate reasons for imposing it on the record, nor 

did it consider Appellant’s rehabilitative needs in imposing the same. Id. at 

46-47. 

We conclude that Appellant has presented a substantial question, and 

we will address the merits of the issue. See Commonwealth v. Caldwell, 

117 A.3d 763, 769-70 (Pa.Super. 2015) (en banc) (excessive sentence claim

in conjunction with an assertion that the court failed to consider mitigating 

factors raises a substantial question); see also Commonwealth v. Hicks, 

151 A.3d 216, 227 (Pa.Super. 2016) (claim that sentencing court failed to set 

forth adequate reasons for the sentence imposed raises a substantial
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question). On the merits, however, applying our deferential standard of 

review, we find no abuse of discretion. 

Our standard of review concerning challenges to the discretionary 

aspects of one’s sentence provides that:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. 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.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005) (citation 

omitted), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005).

In this case, prior to imposing its sentence on September 21, 2017, the 

trial court noted for the record that it had reviewed Appellant’s presentence 

investigation report (PSI) and also had heard the complaining witnesses’ 

victim impact statements along with the arguments of counsel. It then stated 

its reasons for imposing it sentence on the record:

"But to summarize, this is an extremely serious offense. You 

have a teenager whose life is threatened. And even if she doesn't 

come to any physical harm, the harm of the crime is the emotional 

and psychological effects of having your life threatened. And in 

this case, the threats are coming from someone who they are 

credible threats. Defense Counsel has described it as a misguided 

childhood. Whatever the description, he was arrested in the past 

with a gun charge, and the impact on the victim in this case, it's 

more serious in part because of her age, her age and the 

relationship between [Appellant] and the victim. So it's not even 

the run-of-mill intimidation-of-a -witness case. It's more serious 

than that. And when we look at his prior record score, the prior 

record score is not an adequate reflection of his criminal history, 
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because of the two cases today that he's also pleading guilty to. 

It's not factored into his record score, but it's a factor to be 

considered at sentencing. Behavior like [Appellant’s] has to be 

discouraged.

The court system depends on witnesses coming in to court. 

Every day we hear about witnesses who don't show up. A lot of 

times there's a relationship between the defendant and the 

witness. The witness isn't showing up voluntarily because they 

don't want to pursue the case. Every once in a while we know that 

some witnesses don't show up because they're afraid. And people 

have to be deterred from trying to win their cases by threatening

witnesses. So deterrence is a factor in [Appellant’s] sentence as 

well. (N.T., 9/21/17 pgs. 58, 59)

Following Appellant’s filing of his post-sentence motion and upon

hearing defense counsel’s arguments, the trial court reconsidered and 

amended Appellant’s sentence on December 14, 2017. In doing so, it 

reiterated its decision to impose a prison sentence on only the most serious 

charge (Intimidation of a Witness) with concurrent probationary sentences on 

the remaining charges. The trial court also reminded defense counsel that 

within the Sentencing Guidelines, it could have sentenced Appellant to five 

and one half (5 1⁄2) years on the Witness Intimidation conviction along with a 

consecutive sentence of up to five (5) more years each for the Terroristic 

Threats and Stalking convictions. The court stressed that the Sentencing 

Guidelines are “inadequate when they set a range of sentencing for the 

[Intimidation of a Witness] offense because of the lack of nuance” in 

recognizing a “death threat is different from other kinds of crimes” because it 

“continues for so long as she thinks she is liable to be killed.” N.T. 12/14/17, 

at 21-22, 24. 
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Notwithstanding, the trial court ultimately reduced Appellant’s prison 

sentence by six months and in doing so stated on the record: 

"I like the argument that when you add up the guideline 

sentences they don't quite make it to 7 to 15. So I am going to 

modify the sentence. I am going to modify the sentence on the 

charge of intimidation of a witness. That was Count 1 on that 

transcript, 751-2016. The sentence I imposed was 7 to 15. I am 

going to modify that, make it 6 1⁄2 to 13. The other aspects of the 

sentence will all remain the same. So his aggregate sentence is 6 

1/2 to 13 plus 5 years' probation on that count. Five years' 

probation on each of the other counts running concurrent with 

each other and concurrent with the probation on Count 1 makes 

his aggregate sentence 6 1⁄2 to 13 followed by 5 years' probation." 

(N.T., 12/14/17 pg. 25)

Trial Court Opinion, filed 10/23/18, at 17. 

We find that, Appellant’s assertions to the contrary, the trial court 

reviewed Appellant’s PSI and set forth proper reasons for sentencing him. 

Furthermore, the court acted within the Sentencing Guidelines and, as it 

noted, could have imposed additional, consecutive prison terms on the 

Terroristic Threats and Stalking convictions while still staying within the

Guidelines. Indeed, Appellant “is not entitled to a volume discount for his 

crimes.” Commonwealth v. Swope, 123 A.3d 333, 341 (Pa.Super. 2015).

Considering that Appellant’s actions amounted to a six month campaign of 

terror against a sixteen-year-old girl, we do not find the trial court abused its 

discretion when crafting its December 14, 2017, sentence. 

As to Appellant's complaints that the trial court failed to consider, or 

inadequately weighed, mitigating circumstances such as his lack of a 

significant prior record, these matters were included in his PSI. “When, as 
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here, the trial court has the benefit of a pre-sentence report, we presume that 

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

character and weighed those considerations along with any mitigating 

factors.” Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super. 

2014). With regard to Appellant's assertion that the court erred in imposing 

a sentence which exceeded the one recommended by the Commonwealth, the 

Commonwealth's recommendations, or lack thereof, are not binding on the 

trial court's exercise of discretion at sentencing. Thus, this claim is frivolous.

Given our deferential standard of review when considering a challenge

to the discretionary aspects of sentencing, it would be inappropriate for us to 

second-guess the trial court’s weighing of the aforementioned factors, for we 

cannot substitute our view of aggravating and mitigating factors with those of 

the trial court, nor may we reweigh those mitigating factors which Appellant 

thinks the sentencing judge overlooked. See Commonwealth v. Marts, 889 

A.2d 608, 612 (Pa.Super. 2005). Accordingly, Appellant has not persuaded

us that an abuse of discretion occurred. We dismiss his final appellate issue 

as meritless.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/28/19