J-A01045-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM R. KRIMMEL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 937 EDA 2018

Appeal from the Judgment of Sentence February 20, 2018

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

No(s): CP-51-CR-0001140-2017

BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED MARCH 03, 2020

William R. Krimmel (Appellant) appeals from the judgment of sentence 

to an aggregate term of eight to sixteen years’ incarceration in a state 

correctional institution,1imposed after a jury found him guilty of discharge of 

a firearm into an occupied structure, possessing instruments of crime, and 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The trial court sentenced Appellant to the statutory maximum sentence 

allowed, beyond the aggravated range of the sentencing guidelines. 

Specifically, Appellant was sentenced to (1) a term of three and one-half to 

seven years’ incarceration on the discharge of a firearm into an occupied 

structure conviction; (2) a consecutive term of two and one-half to five years’ 

incarceration on the possession of an instrument of crime conviction; (3) a 

consecutive term of one to two years’ incarceration on the first reckless 

endangerment conviction; and (4) a consecutive term of one to two years’ 

incarceration on the second reckless endangerment conviction. 

 
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two counts of recklessly endangering another person.2 Appellant’s 6-day jury 

trial was held before the Honorable Anne Marie B. Coyle. Appellant filed postsentence motions, which were denied by order entered March 6, 2018. 

Appellant timely appealed to this Court.3 We Affirm.

The trial court summarized the factual history of this case as follows:

This case initiated following investigation of reports that 

Appellant had indiscriminately fired deadly weapons from 

inside and outside his residence located at 8206 Halstead 

Street in the northeast section of Philadelphia, including a 

high velocity assault rifle, toward and into neighboring homes 

during the early morning hours of December 24, 2016, which 

had recklessly endangered the lives of multiple occupants of 

the nearby residents and caused property damage.

On December 24, 2016, beginning at approximately 2:00 

a.m., Appellant’s nearby neighbors, [the Ostrowskis] 

reported hearing three booming sounds like fireworks in 

sequence. [Mr. Ostrowski] recalled quiet pauses were 

followed by additional two booms and then a single louder 

noise. He said a quiet pause again ensued until about 2:10 

a.m. when two more booms rang that also sounded like 

louder fireworks emanating from outside the rear of their twin 

home.

[Mr. Ostrowski] testified at trial that as the third loudest 

round was fired from the back of their property, he and his 

wife ran and remained cowered in their front hallway to avoid 

the danger. Upon later inspection once the firing ceased, Mr. 

Ostrowski observed resulting damage from multiple 

penetrating bullet holes inside and outside their home on the 

back building side that had been facing Appellant’s 

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2 18 Pa.C.S. §§ 907, 6108, 907, and 2705, respectively. An additional 

charge of carrying firearms in public was subsequently nolle prossed.

3 The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal on March 23, 2018; Appellant timely filed his 

statement on April 13, 2018. The trial court filed its opinion on April 1, 2019.
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property...[h]e recalled only knowing that Appellant was an 

adjacent nearby neighbor but reported no individual disputes 

with him.

Other neighbors in close proximity to Appellant’s residence 

reported hearing the spurts of differing sounding shots and 

running for cover within their homes. [Another neighbor] 

testified at trial that she was an adjoining neighbor to the 

Ostrowski’s twin home located adjacent to the back of 

Appellant’s residential twin building. She remember being at 

home with her husband and children when she similarly heard 

loud popping noises that sounded like gunshots about 2:00 

a.m. coming from the direction of Appellant’s property that 

adjacently faced the back of her home. She recalled 

frantically telling her thirteen year old son who slept in the 

back bedroom that had faced Appellant’s property to run to 

her bedroom located in the front of the house.

[The neighbor] testified remembering brief intervals of quiet 

between multiple rounds of fired shots. During a silenced 

period, [she] ran downstairs and peered out of her kitchen 

window. She recalled seeing lights emanating only from 

Appellant’s home and his open door. She and her husband 

called 911 for help. She testified that she then heard more 

gunshots and ran again to her kitchen window and ducked. 

Most importantly she testified that she had unequivocally 

remembered peering through her back kitchen window and 

observing Appellant in a crouched position outside of his 

home holding what looked like a large gun in his hands and 

then running back into his first floor apartment.

Lieutenant David Marnien testified that he had been on 

routine patrol duty as a uniformed Philadelphia police officer 

when he received multiple radio calls reporting person with 

gun at 8206 Halstead Street. As Lieutenant Marnien pulled 

up in his marked police vehicle to this twin home residence 

he noticed that the first-floor window facing the street 

appeared to be “all shot out.” Lieutenant Marnien along with 

other responding officers including Officer Fred Antkowiak 

cautiously knocked on the door of this residence and were 

permitted entry by Appellant who reported owing this duplex. 

The officers, prior to entry into the first floor apartment, had 

assumed they were responding to a shooting coming from 

outside the property. Upon entering however, the officers 
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noticed that there was “an odor of burnt gun powder” and 

observed “multiple cartridge casings that were fired bullets.” 

When the officers inquired of Appellant what happened and 

why, Appellant claimed he had fired his weapon because 

“there was somebody outside a house with a gun that was on 

the north side.” Appellant stated to Lieutenant Marnien that 

there was somebody outside his house.[] Appellant appeared 

to be alone in this apartment and there was no visible 

evidence of any intruder contrary to Appellant’s incredible 

claim testified to during the trial. Lieutenant Marnien further 

stated, “[t]he location of the bullet holes were all going out 

of the apartment and that he had observed “a weapon and 

an AKS assault weapon with magazine that were taped 

together on the table.”[

4] He instructed one of his officers “to 

take that and make the weapon safe, take the magazine out 

and eject a round.” When the officers investigated the 

outside of the property in the “north” area that Appellant had 

claimed that he saw the unknown intruder approach, they 

found zero evidence of anyone having been present, no fired 

cartridge casings, and no bullet holes or strike marks 

emanating from outside the residence.

Trial Court 1925(a) Opinion at 2-4 (citations omitted). 

Appellant raises the following issues on appeal:

A. Whether the trial court abused its discretion and/or erred as 

a matter of law, and violated the defendant’s due process 

rights, by denying the defendant’s request for a mistrial after 

the trial court reprimanded a Commonwealth witness in front 

____________________________________________

4 Testimony at trial established that Appellant fired fourteen rounds, with 

fourteen fired cartridge casings recovered from his home, all corresponding 

with the AKS-762 weapon found there; the AKS-762 is a newer version of the 

AK-47. Bullets from this rifle can travel up to two miles, through a brick wall 

or a bullet-proof vest. In addition, the police recovered a hunting rifle and 

another handgun, plus numerous hundreds of live rounds corresponding not 

only to those weapons, but also to two other weapons that were not 

recovered. Also found were (i) magazine cartridges and the magazines that 

Appellant had adapted by connecting them with duct tape to create and turn 

a thirty-round magazine into a sixty-round magazine, and (ii) a drum that was 

capable of shooting ninety live rounds. 12/14/17 N.T. at 72-99.
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of the jury when the witness testified regarding his reluctance 

to testify against the defendant?

B. Whether the trial court – after directing the defendant not to 

wear his United States Postal Service uniform during trial 

since it would be prejudicial if the jury, in a shooting case, 

knew the defendant was a postal employee – abused its 

discretion and/or erred as a matter of law, and violated the 

defendants due process rights, by sua sponte informing the 

Commonwealth after the defendant testified, that the 

Commonwealth would be permitted to elicit testimony that 

the defendant was a postal employee, and thereafter allowing 

the Commonwealth to do so where the Commonwealth itself 

did not seek to elicit such testimony prior to the trial court’s 

prompting?

C. Whether the trial court abused its discretion and/or erred as 

a matter of law, and violated the defendant’s due process 

rights, Fifth Amendment privilege and rights under Article I, 

Section 9 of the Pennsylvania Constitution, by allowing the 

Commonwealth, over the [d]efendant’s objection, to elicit 

testimony from a Commonwealth law enforcement witness 

regarding [d]efendant’s post-Miranda silence?

D. Whether the trial court abused its discretion and/or erred as 

a matter of law, and violated the defendant’s due process 

rights, by denying the defendant’s various requests for 

continuances, despite the fact that the defendant suffered 

from severe mental health illness, thereby resulting in the 

defendant being unable to aid his counsel?

E. Whether the trial court abused its discretion and/or erred as 

a matter of law when it sentenced the defendant to the 

statutory maximum sentence allowed, well above and beyond 

the aggravated range of the sentencing guidelines?

Appellant’s Brief at 7-8.

Appellant argues, first, that the trial court erred when, in the presence 

of the jury, it reprimanded a subpoenaed witness - the next-door neighbor 

and long-time friend of Appellant - for his reluctance to testify, and thereby 
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communicated its predisposition against Appellant to the jury. We find this 

argument to be without merit. In its well-reasoned 1925(a) opinion, the trial 

court explained:

A contextual review of the transcribed record demonstrated 

that no undue prejudice however resulted from the line of 

questioning of the Court. It was simply a natural explanation 

of motivations that were clearly unstated. This Court had 

exhibited zero negative bias, ill will or interpretation of facts 

presented toward Appellant by the inquiry.

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The contextual natur[e] of the disputed question began when 

on December 14, 2017, Appellant’s neighbor and friend of 

eleven (11) years, Gerard King, was called by the 

Commonwealth as a reluctant witness. Mr. King testified that 

he lived in the adjoining building to Appellant. He recalled 

hearing similarly sounding shots fired from Appellant’s 

apartment approximately one week prior to the final shooting 

event. For some unknown reason he did not report or even 

naturally react to shots being fired behind his walls even 

though this had occurred in the middle of the night and when 

he and his minor daughter was sleeping in bedrooms on the 

other side of potentially impacted walls. He further reported 

no natural reaction or even concern with Appellant after 

observing resulting damage to Appellant’s front windows that 

prior week after first rounds of shots were heard.

After the Commonwealth finished direct examination, frankly 

Mr. King’s mystifying motivations did not appear to be fully 

explored. This Court clarified this further for the jury by 

simply asking the witness why he didn’t want to come to 

court, to which he replied, “I’m friends with the Defendant for 

a long time. I care about him.” This Court then asked 

What about your other neighbors, do you care about them?” 

Mr. King replied that he did. This Court promptly withdrew 

its inquiry and told the jury to disregard even that natural 

exchange of information.

The defense then motioned and argued for a mistrial because 

of this inquiry out of the presence of the jury. The motion 

was properly denied. However even though this Court did 
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have the right to explore this area of inquiry, this Court again 

instructed the jury that they were not to discern any point of 

view from the Court’s question and to disregard the witness’ 

response in an overabundance of caution. Thus even if the 

limited inquiry had been made in error this Court corrected 

the error with repeated cautionary instructions.

Furthermore, even if the inquiry had been made erroneously 

it was harmless. The standard for determining harmless 

error was firmly established in Commonwealth v. Story, [], 

383 A.2d 155 (Pa. 1978) and its progeny. An error will be 

deemed harmless where the appellate court concludes 

beyond a reasonable doubt that the error could not have 

contributed to the verdict. If there is a reasonable possibility 

that the error may have contributed to the verdict, it is not 

harmless. Commonwealth v. Mitchell, [], 839 A.2d 202, 

214 (Pa. 2003). In this case, this Court’s limited and 

withdrawn and directed to disregard inquiry as to whether the 

witness cared for his neighbors could not have remotely 

contributed to the guilty verdicts. Thus, this claim and 

requested remedy lacked any factual and legal merit.

Trial Court 1925(a) Opinion at 22-23 (citations to N.T. omitted). We discern 

no abuse of discretion here. The trial court withdrew its question regarding 

the witness’ neighbors, and immediately instructed the jury to disregard the 

question. 12/14/17 N.T. at 20. Appellant’s counsel briefly cross-examined 

the witness, and another neighbor of Appellant then took the stand, and was 

examined. Id. at 23-38. After the jury exited the courtroom for lunch, 

Appellant’s counsel moved for a mistrial, arguing that the trial court, by its 

question to the neighbor/friend of Appellant, was sending a message to the 

jury that it should be more concerned with the neighbors than with Appellant. 

Id. at 39-40. The trial court denied the motion for mistrial, but in an 

abundance of caution, offered to again advise the jury that they may not 
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“import anything from the Court’s question that was sustained and disregard 

the response,” and remind them that the “Court is not the finder of fact,” and 

they should discern nothing from the Court’s question. Id. at 41. Upon 

resumption of the trial, the trial court so advised the jury, and further 

emphasized that they should not think that the trial court intended to reflect 

any opinion whatsoever about the facts of the case “on either side of the 

fence.” Id. at 42. A jury is presumed to follow the court’s instructions. 

Commonwealth v. Aikens, 168 A.3d 137, 143 (Pa. 2017). Here, the trial 

court’s explicit, repeated curative instructions were more than adequate to 

overcome any potential prejudice. Commonwealth v. Leap, 2019 PA Super

323, *5 (Pa. Super. filed October 25, 2019).

Appellant next argues that the trial court abused its discretion and 

violated Appellant’s due process rights when, after directing Appellant not to 

wear his United States Postal Service (USPS) uniform during trial, it then 

prompted the Commonwealth to elicit testimony that Appellant was a USPS 

employee. Appellant’s Brief at 28. Appellant alleges that after his counsel 

elicited testimony from him that he “worked for a federal agency,” without 

objection from the Commonwealth, the trial court, sua sponte, declared that 

the Commonwealth would now be permitted to elicit testimony from Appellant 

that he worked for USPS, and the Commonwealth did so, thereby severely 

and unfairly prejudicing him. Id. at 29, 31. The trial court opined that “this 

claim however demonstrated a complete disregard of the transcribed record.” 

Trial Court 1925(a) Opinion at 20. The trial court explained that Appellant 
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had worn his uniform at a pre-trial proceeding, and had been informed at that 

time by the assistant district attorney that per federal codes of conduct, doing 

so constituted a violation of USPS human resources policies. The trial court 

then advised Appellant that while he was permitted to wear his uniform, doing 

so “does not reflect well upon [him] to potential jurors.” 12/12/17 N.T. at 11. 

The trial court noted that Appellant then acknowledged the wisdom of this 

view and voluntarily agreed to wear alternate clothing during trial, but that 

the trial court never prohibited him from wearing his uniform. Trial Court 

1925(a) Opinion at 20. Citing Pa.R.E. 611, the trial court stated:

Subsequently during the jury trial Appellant volunteered 

during his testimony that he had worked for an unnamed 

federal agency...Once Appellant identified the fact that he 

worked for a federal agency, it naturally opened the door for 

the Commonwealth to inquire which agency employed him on 

cross-examination, which was precisely what had occurred. 

Again, this argument failed to recite a remedial claim because 

no erroneous or unduly prejudicial evidentiary ruling had 

been entered.

Id. at 21. A review of the notes of testimony reveals that, contrary to 

Appellant’s assertion, the Commonwealth did in fact object to counsel’s inquiry 

on direct examination as to his employment, on grounds of relevance. 

12/18/17 N.T. at 16. The trial court did not rule on this objection, and 

Appellant’s counsel proceeded to ask Appellant how long he had worked at his 

job, to which Appellant replied, “twenty-five years”. Id. During a recess, and 

prior to cross-examination by the Commonwealth, the trial court advised the 

Commonwealth that by testifying that he worked for a federal agency, 
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Appellant had opened the door to that line of inquiry, and the Commonwealth 

would be permitted to inquire as to which federal agency employed him; near 

the end of cross-examination, the Commonwealth so inquired, and Appellant 

responded that he was a tractor-trailer operator for USPS, and that he was 

“very proud of it”. Id. at 29, 52. We review a trial court’s evidentiary rulings 

on an abuse of discretion standard. Commonwealth v. Fitzpatrick, 204 

A.3d 527, 531 (Pa Super. 2019). An abuse of discretion will be found where 

“the law is overridden or misapplied, or the judgment exercised is manifestly 

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

by the evidence of record.” Id. (citation omitted). We find no evidence here 

of manifest unreasonableness or undue prejudice by the trial court in ruling 

that the topic of Appellant’s employment, once initiated by Appellant’s counsel 

on direct examination, could be further explored by the Commonwealth on 

cross-examination.

Appellant next challenges the trial court’s allowance of testimony from 

a Commonwealth law enforcement witness, Detective Matthew Burkhimer, 

regarding Appellant’s post-Miranda silence. We discern no error of law or 

violation of Appellant’s rights. Lieutenant David Marnien testified that upon 

arrival at Appellant’s home following the report of gunshots from a neighbor, 

Appellant reported to him that he had been shooting a weapon because there 

was someone outside his house with a gun. 12/13/17 N.T. at 51. Appellant 

testified, however, that when he opened his door to Lt. Marnien, he tried to 

tell Lt. Marnien what had happened, but that “[h]e wasn’t hearing what 
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[Appellant] had to say,” and he told Appellant to “sit down and shut up.” 

12/18/17 N.T. at 49. Appellant was asked whether Detective Matthew 

Burkhimer, a detective who arrived on the scene after Lt. Marnien, had asked 

him what had happened, and he responded “[n]obody was talking to me at 

all.” Id. at 52. After the defense rested, the Commonwealth requested 

permission to call Detective Burkhimer to rebut Appellant’s testimony that no 

one gave him the opportunity to speak; the Commonwealth noted that 

Appellant was read Miranda warnings by the detectives and when “pressed for 

further details,” invoked his right to remain silent. Id. at 69. Appellant’s 

counsel initially objected to any rebuttal testimony of the detective, voicing 

his concerns that such testimony would bring up the fact that Appellant 

invoked his Miranda right to remain silent, but subsequently assented, so long 

as Appellant could be given the opportunity to explain why he elected not to 

answer questions from the detective and the trial court would caution the jury 

that no negative inference should be made. Id. at 73-74. The Commonwealth 

then called Detective Burkhimer, who testified that when he and his colleague 

entered Appellant’s home, Appellant was in the living room with Lt. Marnien 

and some other officers, and after they introduced themselves, Appellant “said 

something about there was a man with a gun, then [another detective] read 

[Appellant] his Miranda warnings. And after that, [Appellant] did not want to 

speak to us.” Id. at 77. The Commonwealth then asked Detective Burkhimer 

to explain Miranda warnings, and he did so. Id. at 77-78. On crossexamination, Detective Burkhimer acknowledged that it appeared as though 
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someone inside the house had fired a gun based on the fired cartridge casings 

on the ground and the large gun laying on the table, and at that point, 

Appellant was given his Miranda warnings before he asked him any questions 

about the incident. Id. at 81. Appellant was then recalled to the witness 

stand, and testified as to his belief that because police had concluded he was 

guilty, there was no reason to answer their questions. During its charge to 

the jury, the trial court stated:

In this case, there was testimony introduced in the form of 

rebuttal with respect to [Appellant’s] statements made to the 

detective. That was introduced for one purpose only, that 

was to evaluate the credibility of [Appellant’s] testimony. 

You are not to infer anything negative or adverse to 

[Appellant] because he did not speak after being advised of 

his Miranda warnings. That’s perfectly fine. Not a problem 

in the world. He has an absolute right not to speak. You 

cannot hold it against him.

Id. at 109-110. “Even an explicit reference to silence is not reversible error 

where it occurs in a context not likely to suggest to the jury that silence is the 

equivalent of a tacit admission of guilt.” Commonwealth v. Kuder, 62 A.3d 

1038, 1052 (Super. Ct. 2013) (citations omitted). Here, the trial court 

properly admitted the evidence as rebuttal of Appellant’s own testimony, and 

the trial court assured that no untoward prejudice could attach when it 

specifically instructed the jury that it could only use the rebuttal testimony as 

impeachment and could not draw an adverse inference against Appellant.

Appellant next argues an abuse of discretion in the trial court’s denial of 

his various requests for continuances. We find no merit in this argument. 
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Appellate review of a trial court’s continuance decision is deferential. 

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016). The grant 

or denial of a motion for a continuance is within the sound discretion of the 

trial court and will be reversed only upon a showing of abuse of discretion. 

Id. We must therefore examine the reasons presented to the trial court for 

requesting a continuance, as well as the trial court’s reasons for denying the 

request. Commonwealth v. Sandusky, 77 A.3d 663, 672 (Pa. Super. 

2013).

On Monday, December 11, 2017, just prior to the commencement of 

jury selection, Appellant’s counsel requested a mental competency evaluation 

for Appellant. In its 1925(a) opinion, the trial court noted that Appellant’s 

counsel indicated at that time that although a privately-appointed psychiatrist 

had previously found Appellant competent, an examination by a neutral, 

court-appointed psychiatrist was necessary because the Appellant had been 

“inconsistent” with counsel in the past. Trial Court 1925(a) Opinion at 10. 

The trial court noted further that the prosecutor alluded to reports that 

Appellant had been antagonistic and threatening in his manner toward his 

neighbors in the period up to and including a few weeks before trial, and that 

it was later reported that after Appellant had been released from custody 

following the underlying arrest, he had travelled to Florida where he was 

arrested for driving under the influence of drugs and alcohol, and at that time, 

a semi-automatic .9 millimeter firearm had been confiscated from the floor of 

his vehicle. Id. The trial court conducted a lengthy competency colloquy, 
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concluding that Appellant demonstrated “zero difficulties...that would support 

any contention of lack of competency.” Trial Court 1925(a) Opinion at 8. The 

trial court noted that during the colloquy, Appellant informed the trial court 

that he had been taking Wellbutrin, an antidepressant, as well as blood 

pressure medications, but that neither of them affected his ability to 

understand and comprehend what was taking place that day. 12/11/17 N.T. 

at 5-6; Trial Court 1925(a) Opinion at 9. The trial court further noted 

Appellant’s assertion during the colloquy that the only mental illness he had 

ever been treated for was depression, and his acknowledgement of his 

awareness of all the charges pending against him. 12/11/17 N.T. at 7; Trial 

Court 1925(a) Opinion at 9. Nevertheless, the trial court granted the 

continuance request to facilitate the mental health examination, performed 

that day by the duly appointed psychiatrist. Appellant was found competent. 

However, on the following day, Tuesday, December 12, 2017, Appellant’s 

counsel requested a continuance, citing dissatisfaction with the 

Commonwealth’s decision to refuse a proffer of a negotiated guilty plea in 

exchange for a “time in sentence.” The trial court denied this request, after 

confirming with Commonwealth counsel, with whom Appellant’s counsel had 

been negotiating, that no non-trial disposition would be permissible. 12/12/17 

N.T. at 5, 7, 9-10. The trial commenced, and after two days of testimony, 

Appellant’s counsel again requested a continuance because Appellant was 

agitated and had reported hearing voices emanating from outside his 

apartment that kept him awake all night. 12/15/17 N.T. at 5. After 
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questioning Appellant, the trial court delayed trial, and directed a second 

psychiatric evaluation to be performed that day; the same psychiatrist who 

had conducted the pre-trial examination performed an examination;5 the 

examination yielded another finding that Appellant was competent and notcommitable. Id. at 21. Prior to adjourning for the day, a Friday, and after the 

jury had been dismissed, the trial court invited Appellant’s brother and sister, 

who were in court, to discuss Appellant’s condition, given Appellant’s report 

of having heard voices and concerns about his safety and the safety of others. 

It was determined that Appellant would stay over the weekend with his 

medical professional sister at her home and could thus eat, sleep, and take 

his medication for depression as prescribed. Id. at 50. On the following 

Monday, the trial court conducted an additional colloquy of Appellant, noting 

in its opinion that “he appeared candidly well rested[,] coherent and quite 

competent.” Trial Court 1925(a) Opinion at 18. Prior to Appellant’s decision 

to testify, on December 18, 2017, the trial court conducted an additional 

colloquy, and noted in its opinion that “Appellant demonstrated a full 

understanding of his rights and satisfaction and cooperation with his counsel.” 

Id. The trial proceeded without further interruption through entry of verdict 

and scheduling of a sentencing hearing date. On February 20, 2018, prior to 

the commencement of the sentencing hearing, Appellant’s counsel requested 

____________________________________________

5 The trial court identified the doctor as, “Robert Stanton, M.D., who has duly 

[been] recognized as an experienced neutral forensic psychiatrist employed 

and authorized by the County of Philadelphia First Judicial District Mental 

Health Unit...” Trial Court 1925(a) Opinion at 17.
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a continuance in order to obtain more letters from Appellant’s family members 

and meet further with his reportedly agitated client, and answer his questions. 

2/20/18 N.T. at 3. Two of Appellant’s brothers, and two family friends were 

present to testify at the hearing. The trial court initially offered Appellant’s 

counsel fifteen minutes to talk to his client, however, counsel declined the 

offer as an insufficient amount of time. Id. at 15. The trial court denied the 

request for continuance, noting that the mental health assessment and 

presentence investigative reports had been completed and there had been 

eight weeks in which to prepare for sentencing. Id. at 3, 13. 

In its 1925(a) Opinion, the trial court asserted that Appellant failed to 

sustain his burden by proving by a preponderance of the evidence that 

Appellant was mentally incompetent at the time the respective continuance 

applications had been raised. Trial Court 1925(a) Opinion at 15. See 

Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014). The trial court

documented the two continuances it granted to allow for competency 

examinations, its colloquies with Appellant, and trial counsel’s agreement that 

his client appeared competent, concluding:

This Court and counsel for both sides acknowledged advance 

review and of Appellant’s multiple mental health and presentence investigative evaluations that had been prepared 

following the guilty verdicts and prior to the sentencing date. 

Appellant had been duly deemed competent prior to trial, 

throughout the duration of his trial and prior to the 

sentencing hearings conducted by this Court and upon 

evaluation by neutral mental health professionals. 

Appellant’s competency had been acknowledged by defense 

counsel. The sentencing hearing proceeded accordingly. In 
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short, no countervailing evidence had ever been submitted to 

support these due process claims.

Trial Court 1925(a) Opinion at 16-19. Our review of the record reveals ample 

support for the court’s findings as to the reasons it asserted for denying 

Appellant’s motions for continuances. Accordingly, we conclude that the trial 

court did not abuse its discretion in denying the two motions for continuances. 

Finally, Appellant argues that the trial court abused its discretion when 

it sentenced the defendant to the statutory maximum sentence allowed, well 

above and beyond the aggravated range of the sentencing guidelines, and in 

excess of the sentence requested by the Commonwealth. Appellant’s Brief at 

37. Appellant is challenging the discretionary aspects of the trial court’s 

sentence. We do not review such issues as a matter of right. “An appellant 

must satisfy a four-part test to invoke this Court’s jurisdiction when 

challenging the discretionary aspects of a sentence.” Commonwealth v. 

Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). Specifically, Appellant 

must show that he (1) filed a timely notice of appeal, see Pa.R.A.P. 902 and 

903; (2) properly preserved the issue at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) set forth a concise 

statement of reasons relied upon for the allowance of his appeal in his 

appellate brief pursuant to Pa.R.A.P. 2119(f); and (4) raised a substantial

question that the sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Manivannan, 

186 A.3d 472 (Pa. Super. 2018). A substantial question exists, as to the 

appropriateness of a sentence, where a defendant sets forth a plausible 
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argument that a sentence violates a particular provision of the Sentencing 

Code, or is contrary to the fundamental norms underlying the sentencing 

scheme. Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). 

We conclude that Appellant has raised a substantial question. 

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (an 

excessive sentence claim – in conjunction with an assertion that the court 

failed to consider mitigating factors – raises a substantial question”). In 

addition, Appellant filed a timely notice of appeal and included a Pa.R.A.P. 

2119(f) statement in his brief. However, in both his post-sentence motion 

and in his Rule 1925(b) Concise Statement of Errors Complained of on Appeal, 

the sole issue Appellant raised with regard to sentencing was the trial court’s 

alleged failure to take into account any of the mitigation offered at the hearing, 

including its alleged failure to recognize his witnesses, lack of criminal history, 

mental health issues and good character. Motion for New Trial and To Modify 

Sentence, 2/28/18; Defendant’s Concise Statement of Errors Complained of 

on Appeal.

Appellant’s contentions that there is no record support to indicate he 

poses a danger to society, and that the trial court has double-counted factors 

already incorporated into the sentencing guidelines were not raised before the 

trial court or in his 1925(b) statement. Appellant has thus failed to preserve 

either of these issues in support of his discretionary aspects of sentence 

claims, and they are not subject to our review. Commonwealth v. Smith, 

206 A.3d 551, 567 (Pa. Super. 2019) (sole claim raised in post-sentence 
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motion was failure to consider mitigating circumstances; claims on appeal that 

trial court failed to consider relevant sentencing criteria and considered 

impermissible factors waived where sentencing court denied opportunity to 

reconsider sentence based on appellant’s argument); Commonwealth v. 

Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citation omitted) (“[f]or any 

claim that was required to be preserved, this Court cannot review a legal 

theory in support of that claim unless that particular legal theory was 

presented to the trial court[.]”). Accordingly, these claims are waived.

We proceed to address the merits of Appellant’s argument that the trial 

court erred in failing to consider the extensive mitigation he offered at 

sentencing. Appellant avers that the trial court disregarded his witnesses, his 

lack of criminal history, his mental health problems, and his good character. 

We find ample record evidence to establish that the trial court did not ignore 

the evidence offered in mitigation, but rather considered and evaluated it in 

full. The trial court acknowledged that it heard the testimony of various 

members of Appellant’s family; however, it found that these family members 

only reaffirmed its conclusion that as a result of his lengthy history of 

methamphetamine and alcohol abuse, which Appellant failed to acknowledge, 

and his mental health difficulties, Appellant demonstrated a lack of selfcontrol. The trial court referenced its consideration of multiple mental health 

evaluations and pre-sentencing investigative reports. Where a sentencing 

court has the benefit of a pre-sentencing investigation report, we can assume 

the sentencing court “was aware of relevant information regarding the 
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defendant’s character and weighed those considerations along with mitigating 

statutory factors.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. 

Super. 2010) (citation omitted). The trial court addressed Appellant’s limited 

criminal record, referring back to its comments at the conclusion of the 

sentencing hearing, wherein it acknowledged Appellant’s prior record score of 

zero, but also recognized his “multiple encounters with the criminal justice 

system.” Trial Court 1925(a) Opinion at 24; Sentencing Hearing, N.T. at 53-

54. The trial court found Appellant to have demonstrated “an absolute lack 

of remorse and appreciation for the damage [he caused]” and noted his 

testimony and repeated view that he had been wrongfully accused and 

prosecuted. Trial Court 1925(a) Opinion at 24; Sentencing Hearing at 52. In 

sum, we find no merit to Appellant’s claim that the trial court failed to consider 

mitigating factors before imposing its sentence.

Appellant contends generally that his sentence is excessive and 

unreasonable. We note that it is well-established that a sentencing court can 

impose a sentence that is the maximum period authorized by statute. 

Commonwealth v. Saranchak, 675 A.2d 268, 277 n.17 (Pa. 1996). The 

sentencing guidelines provide for minimum and not maximum sentences. 

Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004). 

In reviewing a challenge to the sentencing court’s discretion, we are 

cognizant of the following principles:

We review the trial court's sentencing scheme for abuse of 

discretion. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 

957, 961 (2007). “[A]n abuse of discretion is more than a 
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mere error of judgment; thus, a sentencing court will not 

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.” Id.

Section 9781(c) of the Sentencing Code directs this Court to 

vacate a sentence and remand to the sentencing court if “the 

sentencing court sentenced outside the sentencing guidelines 

and the sentence is unreasonable.” 42 Pa.C.S.A. § 

9781(c)(3). Likewise, § 9781(d) governs our review of the 

record:

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

appellate court shall have regard for:

(1) The nature and circumstances of the offense 

and the history and characteristics of the 

defendant.

(2) The opportunity of the sentencing court to 

observe the defendant, including any 

presentence investigation.

(3) The findings upon which the sentence was 

based.

(4) The guidelines promulgated by the 

commission.

42 Pa.C.S.A. § 9781(d).

Our Supreme Court has addressed the § 9781(c)(3)

“unreasonable” inquiry as follows:

What makes a sentence “unreasonable” is not defined 

in the statute. Generally speaking, “unreasonable” 

commonly connotes a decision that is “irrational” or 

“not guided by sound judgment.” The Random House 

Dictionary of the English Language, 2084 (2nd ed. 

1987); see 1 Pa.C.S. § 1903 (words to be construed 

according to their common and approved usage). 

While a general understanding of unreasonableness is 

helpful, in this context, it is apparent that the General 

Assembly has intended the concept of 
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unreasonableness to be a fluid one, as exemplified by 

the four factors set forth in Section 9781(d) to be 

considered in making this determination. Indeed, 

based upon the very factors set out in Section 

9781(d), it is clear that the General Assembly 

intended the concept of unreasonableness to be 

inherently a circumstance-dependent concept that is 

flexible in understanding and lacking precise 

definition.

[W]e decline to fashion any concrete rules as to the 

unreasonableness inquiry for a sentence that falls 

outside of applicable guidelines under Section 

9781(c)(3). We are of the view, however, that the 

Legislature intended that considerations found in 

Section 9721 inform appellate review for 

unreasonableness. That is, while a sentence may be 

found to be unreasonable after review of Section 

9781(d)'s four statutory factors, in addition a 

sentence may also be unreasonable if the appellate 

court finds that the sentence was imposed without 

express or implicit consideration by the sentencing

court of the general standards applicable to 

sentencing found in Section 9721, i.e., the protection 

of the public; the gravity of the offense in relation to 

the impact on the victim and the community; and the 

rehabilitative needs of the defendant. 42 Pa.C.S. § 

9721(b). Moreover, even though the 

unreasonableness inquiry lacks precise boundaries, 

we are confident that rejection of a sentencing court's 

imposition of sentence on unreasonableness grounds 

would occur infrequently, whether the sentence is 

above or below the guideline ranges, especially when 

the unreasonableness inquiry is conducted using the 

proper standard of review.

Walls, 926 A.2d at 963–64 (some citation omitted).

Commonwealth v. Smith, 206 A.3d at 567-568.

Here, the trial court specifically referenced its consideration of the 

sentencing guidelines promulgated by the Pennsylvania Commission on 
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Sentencing, and noted its measurement of the pre-sentence investigative 

reports and the multiple mental health evaluations. Trial Court 1925(a) 

Opinion at 24-25. The trial court expressly stated on the record its 

consideration of the nature and gravity of the offenses and their impact on the 

community:

These charges do not remotely identify the amount of danger 

that you pose. The discharging of a firearm back in the day, 

frankly, was meant for someone who fired into an occupied 

structure just once. But, sir, you used an assault weapon to 

fire through the walls, furniture, anything that was in the way 

and outside into the community in an unbelievably reckless 

manner. I don’t think that to date you care about the damage 

that you would have done, and I think that you present a high 

risk that you would do it again and I am not going to have 

that on my watch, to the extent possible.

Sentencing Hearing N.T. at 54-55. The trial court found significant Appellant’s 

inability to accept responsibility or to express any remorse for his actions,6

and expressed its judgment that Appellant posed a “clear and present danger 

to our community,” as justification for imposition of the sentence as well as 

the application of relevant rehabilitative conditions. Trial Court 1925(a) 

Opinion at 25. The trial court ably addressed the section 9721(b) factors, 

including the examination of public protection, the gravity of the offense and 

____________________________________________

6 Appellant exercised his right to allocution at the sentencing hearing, before 

the trial court sentenced him. He stated his belief that he was “a victim here,” 

and that “the DA’s case made me out to be a criminal, which I’m not...[a]nd 

you know, as far as these people in the neighborhood complaining about my 

actions and behaviors, I think that’s all fabricated, you know, to complement 

the prosecution.” Sentencing Hearing, N.T. at 50.
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Appellant’s rehabilitative needs. While we recognize the severity of the 

sentence here imposed, we are ever mindful that “[w]hen reviewing 

sentencing matters, this Court must accord the sentencing court great weight 

as it is in the best position to view the defendant’s character, displays of 

remorse, defiance or indifference, and the overall effect and nature of the 

crime.” Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa. Super. 

2009). Upon careful review of the record, including the transcripts of 

testimony from both the six-day trial and the sentencing hearing, we find that 

the sentence imposed was not manifestly unreasonable, and the trial court 

thus acted within its discretion in its imposition. 

Appellant’s issues merit no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/3/20