J. A19011/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

PAUL BURKE, : No. 1636 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, February 20, 2015,

in the Court of Common Pleas of Pike County

Criminal Division at No. CP-52-CR-0000264-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 12, 2016

Paul Burke appeals from the February 20, 2015 judgment of sentence 

entered in the Court of Common Pleas of Pike County after a jury convicted 

him of aggravated assault, terroristic threats, simple assault, recklessly 

endangering another person, and harassment.1 The trial court imposed an

aggregate sentence of 81⁄2 to 17 years’ imprisonment. We affirm.

The record reflects that in the early morning hours of May 5, 2014, 

appellant’s wife, the victim, got out of bed, took her dog out, and proceeded 

to make coffee when appellant began calling for her. (Notes of testimony, 

11/12/14 at 37.) When the victim went to the bedroom, appellant 

 

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1), 2706(a)(1), 2701(a)(2), 2705, and 

2709(a)(1), respectively.
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complained that “[e]verybody hates him.” (Id.) When the victim tried to 

comfort him, he reached for a muscle relaxant, and the victim called him a 

“baby” for doing so. (Id. at 38.) Appellant angrily responded, “[H]ow dare 

you say that to me,” and threw the pill bottle at the victim. He then told the 

victim that he wanted to end his life because no one likes him and that 

“everybody can go on with their happy old life” without him. (Id. at 39.) 

The victim testified that at this point, she became somewhat aggravated and 

told appellant that she “really [doesn’t] have a life with [appellant.]” (Id.)

Appellant then “flew off the bed,” “flipped two heaters,” and “with both 

fists started pounding [the victim] in every direction.” (Id. at 39-40.) 

Appellant began the assault by punching the victim in the face with closed 

fists. The victim was unable to count how many times appellant punched 

her in the face with closed fists, but estimated “ten whatever.” (Id. at 40.) 

At that point, the victim ripped appellant’s shirt “by accident” when she 

attempted to get away from him. (Id. at 41.) The victim testified that this 

upset appellant because he said it was his “best New York [] shirt.” (Id.) 

Appellant then “head-butted” the victim, ripped open both shirts that she 

was wearing, and choked her. (Id. at 41, 44.) The victim then felt warm 

blood coming down into her bra. (Id. at 41.) The victim testified that 

during this incident, she was on the floor in the fetal position attempting to 

block appellant from striking her, at which time appellant repeatedly struck 

the right side of her torso, down to her right kidney. (Id. at 43.)
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At this point, appellant got up, left the bedroom, and then returned 

with a 12-inch chef’s knife. (Id. at 41, 52.) As the victim was on the floor, 

appellant stood over her, raised the knife high above her, and stated that he 

was going to kill the victim, their children, and his parents. (Id. at 42.) 

Appellant then lowered the knife to within 3 inches of the victim’s heart. 

(Id. at 53.) The victim then told appellant to “just go.” (Id. at 42.) He 

then put the knife down and retreated. (Id.) The victim managed to leave 

the residence and drive to the police station. (Id. at 45.) Police called an 

ambulance, which transported the victim to a hospital. (Id. at 62, 96.) The 

victim suffered a fractured nose and multiple abrasions, lacerations, and 

bruises to her face, neck, and torso. (Id. at 48-52.)

The record further reflects that after imposition of sentence, appellant 

filed a timely post-sentence motion and a timely supplemental post-sentence 

motion. Following a hearing, the trial court denied appellant’s post-sentence 

motions. This timely appeal followed.

Appellant raises the following issues for our review:

1. Did the trial court commit reversible error by 

refusing to give a requested instruction on 

self-defense where the evidence presented by 

[appellant] warranted the instruction?

2. Did the sentencing court err by applying the 

deadly weapon enhancement to [appellant’s] 

conviction for aggravated assault where he did 

not use a deadly weapon during the alleged 

assault?
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3. Was the evidence insufficient to support 

[appellant’s] aggravated assault conviction 

where he did not cause, or attempt to cause, 

serious bodily injury?

Appellant’s brief at 5.

Appellant first challenges the trial court’s refusal to instruct the jury on 

self-defense. “In reviewing a challenge to the trial court’s refusal to give a 

specific jury instruction, it is the function of this Court to determine whether 

the record supports the trial court’s decision.” Commonwealth v. 

Buterbaugh, 91 A.3d 1247, 1257 (Pa.Super. 2014) (en banc), appeal 

denied, 104 A.3d 1 (Pa. 2014) (citations omitted). “It has long been the 

rule in this Commonwealth that a trial court should not instruct the jury on 

legal principles which have no application to the facts presented at trial.” 

Id. (citations omitted).

With respect to the issue of self-defense, this court has previously 

noted that:

The use of force against a person is justified when 

the actor believes that such force is immediately 

necessary for the purpose of protecting herself 

against the use of unlawful force by the other 

person. See 18 Pa.C.S.[A.] § 505(a). When a 

defendant raises the issue of self-defense, the 

Commonwealth bears the burden to disprove such a 

defense beyond a reasonable doubt. While there is 

no burden on a defendant to prove the claim, before 

the defense is properly at issue at trial, there must 

be some evidence, from whatever source, to justify a 

finding of self-defense. If there is any evidence that 

will support the claim, then the issue is properly 

before the fact-finder.
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Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa.Super. 2006) (citation 

omitted; brackets in original omitted).

Here, the record reflects that appellant took the stand in his own 

defense. Appellant testified that while he was in bed that morning, and for 

reasons unknown to him, the victim grabbed and ripped his shirt while 

simultaneously calling him an “S.O.B.” (Notes of testimony, 11/13/14 at 23-

25.) Because appellant was “mad that she grabbed [his] shirt,” appellant 

grabbed the victim’s shirt and ripped it intentionally. (Id. at 25-26.) At that 

point, according to appellant, the victim fell backwards off the bed while 

appellant was “attached to her,” and the two “collided on the floor.” (Id. at 

30.) Appellant claimed that during this collision, a fan fell over and hit the 

victim in the face and “put a mark on her cheek.” (Id. at 35.) Appellant 

denied striking the victim’s face and again claimed that the victim’s facial 

injuries were caused by the falling fan. (Id. at 36.) 

Appellant further explained that a zipper on the victim’s shirt caused 

the injuries to the victim’s neck. (Id. at 43-44.) Appellant denied choking 

the victim. (Id. at 51.) He also denied striking her 20 to 30 times with 

closed fists. (Id.) Appellant further denied holding a chef’s knife over the 

victim and threatening to kill her and other family members. (Id. at 51-52.) 

Appellant only admitted to grabbing and ripping the victim’s shirt. (Id. at 

52.)
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Appellant further testified that the lumps on the victim’s head were 

caused when the fan and “other items” fell. (Id. at 71.) He stated that the 

bruises on the victim’s torso were “probably” caused when he and the victim 

“fell on the shoes,” and that the bruise on the victim’s lower back was 

caused “when she fell off the bed onto a pile of shoes and tapes.” (Id. at 

73.)

The record fully supports the conclusion that there was no evidence of 

self-defense presented at trial. Additionally, the record clearly demonstrates 

that appellant’s defense was that he did not cause the victim’s injuries; 

rather, his defense was that the victim’s injuries were caused by falling 

bodies, a falling fan, and other falling items. Because the legal principles of 

self-defense had no application to the facts presented at trial, the trial court 

properly refused to instruct the jury on self-defense.

Appellant next complains that the trial court abused its discretion when 

it applied the deadly weapon enhancement to appellant’s aggravated assault 

conviction. Appellant alternatively complains that the trial court failed to

provide sufficient reasons to justify appellant’s sentence on his aggravated 

assault conviction, which was in the aggravated range.

Appellant challenges the discretionary aspects of his sentence.

[T]he proper standard of review when considering 

whether to affirm the sentencing court’s 

determination is an abuse of discretion. . . . [A]n 

abuse of discretion is more than a mere error of 

judgment; thus, a sentencing court will not have 

abused its discretion unless the record discloses that 
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the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, 

bias or ill-will. In more expansive terms, our Court 

recently offered: An abuse of discretion may not be 

found merely because an appellate court might have 

reached a different conclusion, but requires a result 

of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so 

as to be clearly erroneous.

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate 

review is that the sentencing court is in the best 

position to determine the proper penalty for a 

particular offense based upon an evaluation of the 

individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010) 

(citation omitted; brackets in original).

Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right. 

Commonwealth v. Sierra, [752 A.2d 910, 912 

(Pa.Super. 2000)]. An appellant challenging the 

discretionary aspects of his sentence must invoke 

this Court’s jurisdiction by satisfying a four-part test:

[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).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).
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Here, the record reflects that appellant filed a timely notice of appeal, 

properly preserved his sentencing issues in a timely petition for 

reconsideration of his sentence, and included a Pa.R.A.P. 2119(f) statement 

in his brief. Therefore, we must now determine whether appellant raises a 

substantial question.

We determine whether an appellant raises a substantial question on a

case-by-case basis. Commonwealth v. Swope, 123 A.3d 333, 338 

(Pa.Super. 2015) (citation omitted). “A substantial question exists only 

when an 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.” Id. (citation omitted).

In determining whether a substantial question exists, 

this Court does not examine the merits of whether 

the sentence is actually excessive. Rather, we look 

to whether the appellant has forwarded a plausible 

argument that the sentence, when it is within the 

guideline ranges, is clearly unreasonable. 

Concomitantly, the substantial question 

determination does not require the court to decide 

the merits of whether the sentence is clearly 

unreasonable.

Id. at 340 (citation omitted). 

Appellant’s issues raise substantial questions. See Commonwealth 

v. Rhoades, 8 A.3d 912, 916 (Pa.Super. 2010) (“application of the deadly 

weapon enhancement presents a substantial question”); see also 

Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.Super. 2008) (an 
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allegation that the court failed to state adequate reasons on the record for 

imposing an aggravated-range sentence raises a substantial question).

Appellant first complains that the trial court erred when it applied the 

deadly weapon enhancement when “[n]o reasonable reading of the facts and 

the record in this case could support a finding that [appellant] used a deadly 

weapon when he allegedly committed the aggravated assault on his wife.”2 

(Appellant’s brief at 18.) 

A court shall consider the deadly weapon enhancement “[w]hen the 

court determines that the offender possessed a deadly weapon during the 

commission of the current conviction offense . . . .” 204 Pa.Code 

§ 303.10(a)(1). The deadly weapon enhancement defines a deadly weapon 

as “[a]ny device, implement, or instrumentality designed as a weapon or 

capable of producing death or serious bodily injury where the court 

determines that the offender intended to use the weapon to threaten or 

injure another individual.” Id. at § 303.10(a)(1)(iii).

 

2

In reviewing the record, we note that in his Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal, appellant contended that the 

deadly weapon enhancement could not be applied because the jury did not 

return a finding that appellant used a deadly weapon. (Concise statement of 

matters complained of on appeal, 6/23/15; Docket #43.) Although 

appellant abandoned this argument in his brief, we note that sentencing 

challenges involving sentence enhancements do not implicate Alleyne v. 

United States, U.S. , 133 S.Ct. 2151 (2013), which requires that 

any fact that increases a mandatory minimum sentence must be found by a 

jury beyond a reasonable doubt. See Commonwealth v. Ali, 112 A.3d 

1210 (Pa.Super. 2015).
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Here, the trial court sentenced appellant on the low end of the 

aggravated range with respect to appellant’s aggravated assault and 

terroristic threats convictions. The record reflects that in so doing, the trial 

court considered, among other things, the presentence investigation report, 

appellant’s significant criminal record, appellant’s attempt to shift blame, 

and appellant’s lack of remorse. (See notes of testimony, 2/20/15 at 

28-30; see also trial court opinion, 7/30/15). The record also establishes 

that during the course of appellant’s assault of the victim, he made 

terroristic threats while he held a 12-inch chef’s knife over her head, 

threatened to kill her, and then placed the knife 3 inches from her heart. 

(See notes of testimony 11/12/14 at 41-42, 52-53.) Therefore, appellant 

used a deadly weapon during the course of the assault incident.3 We, 

therefore, find no abuse of discretion.

Appellant next claims that the trial court failed to state adequate 

reasons on the record for imposing an aggravated-range sentence. The 

record belies appellant’s contention.

The record reflects that the victim testified at the sentencing hearing, 

as did appellant and two witnesses who testified on appellant’s behalf. Prior 

to imposing sentence, the trial court stated that it had the benefit of a 

pre-sentence investigation report and noted that it had also presided over 

 

3 While at sentencing the Commonwealth appears to have separated the 

deadly weapon enhancement from the aggravated assault charge, it agrees 

with the trial court’s application of the enhancement in this appeal.
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appellant’s trial. (Notes of testimony, 2/20/15 at 28.) The trial court further 

stated that it reviewed and considered appellant’s pre-sentence 

memorandum, letters offered on his behalf, and the victim’s testimony at 

the sentencing hearing. Id. The trial court then stated:

THE COURT: . . . . I’ve heard a lot of statements 

and testimony today about matters from the past 

including [appellant’s] marriage with the victim, 

some of which maybe [sic] true, some of which may 

not be true, but what the Court’s heard little about 

today is what actually happened on the day in 

question which was determined by the jury and 

those convictions stand as the determination of facts 

in this case as the Court instructed the jury.

The best the defense has to offer that I can 

hear today is that [appellant] has indicated to the 

Court I think on several occasions or at least 

attributed the words “What I can recall” and certainly 

the Court would note that there’s a significant 

criminal record dating back to 1990 through 2005 

and then leading up to the present offense. The 

Court finds that record to be inconsistent with what’s 

being represented about [appellant] here today.

It’s hard to understand in this instance and not 

having been the decider of the facts in the case, it’s 

hard for a Court to understand how someone in 

[appellant’s] position just didn’t walk away that day, 

but instead the victim ended up with some serious 

injuries, that certainly can be taken up on appeal if 

that’s something that’s chosen by [appellant], but 

I’m constrained by the jury’s determination on that 

issue and the Court agrees with it.

Instead of that, [appellant] made a conscious 

decision to engage in physical contact with the victim 

resulting in serious bodily injury. I’m being kind 

when I say I find the suggestions that the victim’s 

injuries were somehow the result of marital problems 

or whatever, I think that’s entirely inappropriate in 
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this matter. The victim’s injuries didn’t occur 

because of her own actions or because the parties 

had marital problems, the injuries occurred because 

[appellant] inflicted them period.

Id. at 28-30.

In its Rule 1925(a) opinion, the trial court aptly summarized the 

above, as follows:

In this case, the Trial Court and the Sentencing 

Court were one in [sic] the same. As such, the 

Sentencing Court reaped the benefit of observing 

[a]ppellant’s demeanor during trial, placing this 

Court in a position from which to assess his 

character. This Court had the benefit of a presentence report, [a]ppellant’s Presentence 

Memorandum, and multiple letters offered on 

[a]ppellant’s behalf with which to determine his 

sentence. That this Court took the time to elaborate 

so during [a]ppellant’s sentencing is a clear 

indication that we considered [a]ppellant’s attempts 

to shift blame away from himself, his failure to 

accept responsibility for his actions, and his lack of 

remorse in sentencing [a]ppellant in the aggravated 

range.

Trial court opinion, 11/24/15 at 11.

The record reflects that the trial court placed ample reasons on the 

record for its imposition of sentence in the aggravated range. Therefore, 

this claim lacks merit.

Appellant finally complains that the evidence was insufficient to 

support his aggravated assault conviction. 

The standard we apply in reviewing the sufficiency of 

the evidence is whether viewing all the evidence 

admitted at trial in the light most favorable to the 

verdict winner, there is sufficient evidence to enable 
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the fact-finder to find every element of the crime 

beyond a reasonable doubt. In applying the above 

test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we 

note that the facts and circumstances established by 

the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder 

unless the evidence is so weak and inconclusive that 

as a matter of law no probability of fact may be 

drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proof of 

proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the 

entire record must be evaluated and all the evidence 

actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of 

witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004) 

(citation omitted).

Under the Crimes Code, a person may be convicted of aggravated 

assault, a first-degree felony, if he “attempts to cause serious bodily injury 

to another, or causes such injury intentionally, knowingly, or recklessly 

under circumstances manifesting extreme indifference to the value of human

life.” 18 Pa.C.S.A. § 2702(a)(1); see also Commonwealth v. McClendon, 

874 A.2d 1223, 1229 (Pa.Super. 2005). “For aggravated assault purposes, 

an ‘attempt’ is found where the accused, with the required specific intent, 

acts in a manner which constitutes a substantial step toward perpetrating a 

serious bodily injury upon another.” Commonwealth v. Martuscelli, 54 

A.3d 940, 948 (Pa.Super. 2012) (citation omitted). The Crimes Code defines 
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“serious bodily injury” as “[b]odily injury which creates a substantial risk of 

death or which causes serious, permanent disfigurement, or protracted loss 

or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. 

§ 2301.

Here, the victim testified that appellant punched her in the face with 

closed fists numerous times, “head-butted” her, choked her, and repeatedly 

punched the right side of her torso, down to her right kidney. The record 

further reflects that as a result of this assault, the victim suffered a fractured 

nose and multiple abrasions, lacerations, and bruises to her face, neck, and 

torso. Viewing this evidence in the light most favorable to the 

Commonwealth as verdict winner, it was sufficient to enable the fact-finder 

to find beyond a reasonable doubt that appellant attempted to cause serious

bodily injury to the victim and, therefore, sustain his aggravated assault 

conviction.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2016