J-S63025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KIEFER WRIGHT,

Appellant No. 766 EDA 2015

Appeal from the Judgment of Sentence October 17, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001845-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 01, 2016

Appellant, Kiefer Wright,1appeals from the judgment of sentence 

entered following his convictions by a jury of aggravated assault, possession 

of instruments of crime (“PIC”), firearms not to be carried without a license, 

and carrying firearms on public streets or public property in Philadelphia. 

We affirm.

The trial court summarized the evidence presented at trial, as follows:

Philadelphia Police Officer Adrian Truitt testified that in the 

afternoon of April 19, 2012, he and his partner responded to a 

report of a shooting in the vicinity of 56th and Broomall Streets 

in the City of Philadelphia. On arriving he encountered two 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1

 The record reveals that Appellant’s actual name is Christopher Wright. 

N.T. (Trial), 4/14/14, at 74.
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women, Ms. Sakeyta Greene (Sakeyta) and Ms. Angelina 

Brownlee (Angelina), in the street preparing to fight each other. 

After separating the women, he placed Sakeyta in his vehicle 

and later transported her to the Southwest Detectives Unit to 

give a formal statement. He also observed a Pontiac Grand Prix 

car, registered to Angelina, parked at the scene which had been 

roped off with crime scene tape. 

Prior to leaving the scene, Officer Truitt had an opportunity 

to observe Angelina and speak to her briefly. He saw no visible 

signs of injury to her person and testified that she told him that 

she and her boyfriend, “Chris,” had come to the area to defend 

her sister, Mary Brownlee, who was upset because she had been 

tapped on the “butt”. 

Sakeyta testified that on April 19, 2012, at approximately 

1:00 p.m., she received a phone call from her cousin, Mary 

Brownlee (Mary), complaining that someone had inappropriately 

touched her on the “butt”. She then went to Mary’s house, 

located at 56th and Broomall Streets and talked to her from the 

small “Poppy” store next door. While talking to Mary, she saw 

Angelina’s black Pontiac being driven by [Appellant], pull up in 

front of the store. When [Appellant] parked the car she noticed 

a group of “Boys” approach the driver’s side of the car and 

engage in a fight with [Appellant]. On hearing a gunshot she 

ran into the store with her infant child who was with her at the 

time. She testified that Angelina then drove off, returned alone 

a short while later and engaged in a verbal altercation with her 

over the incident. The police broke it up before “it got physical.” 

Sakeyta was then transported to Southwest Detectives to 

give a formal Statement. She acknowledged that as she gave 

her statement to Detective Vincent Parker he was typing out her 

responses. She also testified that at the end of the interview she 

signed each of the three pages of the print out of her statement 

after reviewing it on the computer screen. 

Philadelphia Police Detective Vincent Parker testified that 

on April 19, 2012, at approximately 4:10 p.m., he interviewed 

Sakeyta and took her statement regarding the shooting at 56th 

and Broomall Streets. When he asked Sakeyta to describe the 

incident she replied:
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“I was going to the poppy store to get 

something to eat when I saw a black Grand Prix pull 

up and park on the same side of the street as the 

poppy store, about two doors away from where I 

was at. The girl, Angelina Brownlee, was in the front 

passenger seat, and the guy, Chris Wright, was 

driving. There was no one else in the car. The Guy, 

Xzavien, came from across the street and walked 

over to the driver window of the car and started 

swinging on Chris. I saw Chris point a gun towards 

Xzavien and shot him. I heard one gunshot and 

Chris ran off and Angelina started driving, circling 

around looking for Chris. Everybody started running, 

and I was trying to get my son inside of poppy 

store.” 

She also told him that in addition to Xzavien, the 

complainant, “two to three other guys” also approached the car 

with him. When he asked Sakeyta if she knew what led to the 

shooting she replied: “No, but Angelina’s sister, Mary Brownlee, 

told me that someone had smacked her on her butt and that she 

was going to get somebody to do something about it.” 

At the conclusion of the interview, Detective Parker printed 

out a copy of Sakeyta’s statement, had her review it for accuracy 

and then sign each page. Detective Parker then had his partner 

review the statement to see if he had any additional questions 

before Sakeyta was permitted to leave.

The complainant, Xzavien Jennings (Xzavien), testified that 

on April 19, 2012, at approximately 1:00 p.m., he was around 

the corner from 56th and Broomall Streets talking with a friend 

when he heard a commotion and went to see what was 

happening. On arriving on 56th Street he saw people “talking 

back and forth” and decided to get involved in a fight with them. 

He testified further that at some point he heard a gunshot and it 

wasn’t until later that he realized that he had been shot in the 

back with the bullet exiting through the stomach leaving 

permanent scars.

He testified that he was then taken to the Hospital of the 

University of Pennsylvania by friends who dropped him off at the 

emergency room and was operated on that day. Xzavien denied 

any recollection of giving a statement to Detective Mole on the 
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morning of the following day. When shown this statement he 

denied that it was his signature that was affixed to it. 

Philadelphia Police Detective Fred Mole testified that on the 

day following the shooting, April 20, 2012, he interviewed the 

complainant, Xzavien, in his hospital room at the Hospital of the 

University of Pennsylvania at approximately 11:15 a.m. He 

described Xzavien as being lucid, coherent and up and about, 

despite having been shot the previous day, and willing to give 

his statement. When he asked Xzavien to describe the incident 

he replied:

“Angela called me over to her at 56th Street 

between Broomall and Whitby Streets. I approached 

by myself, and I didn’t know what Angel2 wanted. 

When I got to the car, the guy who shot me pulled 

the gun. I started punching him and Angela. And 

then the guy let off four shots. I ran from the scene, 

and someone took me to . . . the hospital.” 

2 Throughout his testimony, the witness 

refers to Angela by that name as well as 

Angel and Angelina.

Detective Mole also testified that, as part of the interview, 

he displayed a photo array of eight photographs, including one of 

[Appellant]. On being shown the array, Xzavien immediately 

identified [Appellant] as the shooter and signed it to confirm his 

identification of [Appellant]. 

At the conclusion of the interview Detective Mole had 

Xzavien read his statement for accuracy. After reviewing his 

statement and making one correction Xzavien signed each page. 

Kahdeem Brown (Kahdeem) testified that on April 19, 

2012 he was “chillin” at 56th and Broomall Streets when 

Angelina’s car pulled up across the street from him. He stated 

that “like six, seven dudes, like, went -- they was walking over 

to the car. The next thing you know they swinging on whoever’s 

in the car, or whatever. And then a shot rang out. Everybody 

started running.” After making sure he was safe, he 

encountered the complainant, who he knew as “Ooo” on the 

street. Realizing that Xzavien had been shot, he put him in a 

friend’s car, then drove him to the hospital. Not wanting to get 
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further involved, he left after taking him into the emergency 

room. 

On returning to the scene Kahdeem was detained by the 

police and taken to Southwest Detectives where he gave a 

statement to Detective Deayoung Park. After giving his 

statement he signed each page and returned home. 

Philadelphia Police Detective Deayoung Park testified that 

he interviewed Kahdeem Brown and took his written statement 

on April 19, 2012 with regard to the shooting earlier that day. 

He testified that when he asked him what he had seen, Kahdeem 

responded:

“I was seating across the poppy store. That’s 

when Ricky was calling the girl telling her to bring 

the boy back around here that was looking for CJ. So 

about an hour later, she comes up pulling up in a 

black Grand Prix with the boy driving. So Ooo and 

CJ walked over to the Grand Prix and Ooo was 

talking to the door, and next thing I knew Ooo was 

swinging at the boy in the car. Then I think CJ 

opened the car door and Ooo was starting to kick on 

the boy and the girl. Then the shots rang out, and 

everybody started to run. So we, meaning me and 

Ricky, ran around to Malcolm Street, and Ooo was 

like, ‘I’m shot, I’m shot.’ And that’s when the cops 

started to pull up and kept asking, ‘Who got shot, 

who got shot.’ And Ooo was hiding from where he 

was bleedings so the cop won’t see. That’s when 

Cliffy pulled up and put Ooo in the car and took him 

to the hospital. We were coming back, and that’s 

when we got pulled over by the cops.” 

Before concluding the interview, Detective Park gave 

Kahdeem a printed copy of his statement to review and make 

corrections. Kahdeem then signed each page of his statement. 

[Appellant] testified that on April 19, 2012, at 

approximately 1:15 p.m., after leaving school, he picked up his 

girlfriend, Angelina, at her sister Mary’s house, at 56th and 

Broomall Streets, to take her to work. When Angelina and Mary 

got in the car Mary told him, “Some boy had slapped her on her 

butt.” When she said she wanted him to do something about it, 
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he testified that he got out of the car. “And then we walked in 

front of Mary’s house, but there wasn’t nobody out there. There 

wasn’t nobody around. So we left. Me and Angelina left. I was 

taking her to work. So it’s probably like 1:25.” 

[Appellant] testified that they returned shortly after 

leaving because Angelina had forgotten her work ID, which she 

needed. On returning to Mary’s house he was approached on 

the driver’s side of the car by a group of three or four men as he 

was backing into a parking space. He testified that he stopped 

the car before being fully parked and attempted to talk to the 

men when he was hit through the open window and a struggle 

ensued. He further testified that during the fight he pulled out 

the gun he had been sitting on during the fight and “I just -- I 

didn’t even look out the driver’s door. Like, I just shot.” After 

firing the shot [Appellant] ran from the scene. 

[Appellant] testified that he had purchased the gun 

illegally and did not have a license to carry it. He also testified 

that he had taken the gun to school that day, keeping it under 

the driver’s seat of the car, and had placed it on the seat and 

was sitting on it when he returned to Mary’s house. 

Trial Court Opinion, 11/19/15, at 3–9 (record references omitted).

The trial court also recounted the procedural history:

On January 25, 2013, [Appellant] was arrested and 

charged with, inter alia; 1) Aggravated Assault pursuant to 18 

Pa.C.S.A. §2702(a); 2) Firearms not to be Carried Without a 

License pursuant to 18 Pa.C.S.A. §6106; 3) Carrying Firearms on 

Public Streets or Public Property in Philadelphia pursuant to 18 

Pa.C.S.A. §6108; and 4) Possession of an Instrument of a Crime 

with Intent pursuant to 18 Pa.C.S.A. 907(a)(PIC). On April 15, 

2014, at the conclusion of his jury trial, [Appellant] was found 

guilty on all charges. On October 17, 2014, [Appellant] was 

sentenced on the charge of Aggravated Assault to a period of 

confinement in a state correctional facility of 7 to 15 years. 

[Appellant] was also sentenced to concurrent periods of 

probation of 5 years on the charge of Carrying a Firearm Without 

a License, 5 years on the charge of Carrying a Firearm on the 

Streets of Philadelphia and 5 years on the charge of PIC, to be 

served consecutively to his period of confinement.
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On August 6, 2014, prior to sentencing, [Appellant] 

presented an oral Motion for Extraordinary Relief pursuant to 

Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 704(B). 

On October 17, 2014, at the conclusion of the hearing held to 

consider [Appellant’s] motion and immediately prior to 

sentencing, the Court denied [Appellant’s] motion. On October 

24, 2014, [Appellant] timely filed a Motion For New Trial and In 

Arrest of Judgment and or Judgment of Acquittal and 

Reconsideration of Sentence pursuant to the Pennsylvania Rules 

of Criminal Procedure, Pa.R.Crim.P. 720. At the conclusion of a 

hearing held on February 3, 2015, the Court denied [Appellant’s] 

motion.

On March 3, 2015, [Appellant] timely filed the instant 

appeal to the Superior Court of Pennsylvania. On March 6, 

2015, this Court 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 21 days of the Court’s 

Order. On March 27, 2015, [Appellant] timely filed his 

Statement of Errors . . . . 

Trial Court Opinion, 11/19/15, at 1–2. 

Appellant raises eight issues for appellate review: 2

[1.] Was the evidence presented at trial sufficient as a 

matter of law to support the conviction for aggravated assault 

(18 Pa.C.S.A. § 2702), where the evidence of record did not 

establish beyond a reasonable doubt that appellant/defendant 

was not justified (under 18 Pa.C.S.A. § 505) in firing a single 

shot when the complainant and several other males approached 

the car appellant was parked in, began beating appellant, forced 

the door nearest appellant open, continued to beat appellant 

with fists and began to kick appellant, and did not abate the 

attack until the single shot was fired?

[2.] Was the evidence presented at trial sufficient as a 

matter of law to support the conviction for possessing an 

instrument of crime (18 Pa.C.S.A. § 907), where the evidence of 

____________________________________________

2

For convenience, we have numbered Appellant’s issues.
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record did not establish beyond a reasonable doubt that 

appellant/defendant was not justified (under 18 Pa.C.S.A. § 505) 

in using a firearm to fire a single shot when the complainant and 

several other males approached the car appellant was parked in, 

began beating appellant, forced the door nearest appellant open, 

continued to beat appellant with fists and began to kick 

appellant, and did not abate the attack until the single shot was 

fired?

[3.] Was the evidence presented at trial sufficient as a 

matter of law to support the conviction for aggravated assault 

(18 Pa.C.S.A. § 2702), where the evidence of record did not 

establish beyond a reasonable doubt that appellant/defendant 

caused serious bodily injury to the complainant intentionally, 

knowingly, or under circumstances manifesting an extreme 

indifference to the value of human life, where appellant did not 

instigate the violence, fired a single shot while being beaten by a 

number of males who forced their way into appellant’s vehicle 

and appellant did not fire additional shots, utilize the vehicle as a 

weapon, or pursue or attempt to further injure any of the 

attackers?

[4.] With respect to the charge of aggravated assault (18 

Pa.C.S.A. § 2702), was the verdict . . . against the weight of the 

evidence and so contrary to the evidence that it shocks one’s 

sense of justice in light of the circumstances set forth in the 

preceding questions?

[5.] With respect to the charge of possessing an 

instrument of crime (18 Pa.C.S.A. § 907), was the verdict . . . 

against the weight of the evidence and so contrary to the 

evidence that it shocks one’s sense of justice in light of the 

circumstances set forth in the preceding question?

[6.] Did the trial court deny the appellant/defendant a fair 

trial by repeatedly interjecting the Court’s own conclusions 

regarding the facts of the case during the charge to the 

deliberating jury and, in doing so, interfere with the role of the 

jury?

[7.] Did the trial court give an instruction to the jury 

during deliberations regarding the charge of justification which 

was incomplete, unbalanced, inadequate, unclear, misleading, 
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inappropriate, and inaccurate statement of the law and 

prejudicial to Defendant?

[8.] With respect to the sentence imposed upon 

defendant/appellant by the trial court, did that court abuse its 

discretion by imposing an aggregate sentence of not less than 7, 

nor more than 15, years of incarceration (followed by 5 years of 

probation) upon the defendant where:

(a) the aggravating circumstances cited by the trial 

court already resulted in an increased guideline range but 

the court imposed a sentence at the top of the aggravated 

range of the increased guideline range; and,

(b) the trial court recognized that there are 

mitigating circumstances in this case, but imposed a 

sentence which is unreasonable under the circumstances of 

the case and outside of the sentencing guidelines on the 

charge of aggravated assault by imposing a sentence at 

the top of the aggravated range of the increased guideline 

range?

Appellant’s Brief at 7–9.3

Appellant questions the sufficiency of the evidence to support his 

aggravated assault and possession of an instrument of crime convictions 

asserting that the Commonwealth failed to disprove his self-defense theory. 

He also contends that the evidence was insufficient to establish that he acted 

with the requisite mens rea to support a conviction for aggravated assault. 

We review evidentiary sufficiency questions under the following 

standard: 

____________________________________________

3

 We observe that Appellant’s Statement of Questions Presented portion of 

his Brief is far more detailed than in his Pa.R.A.P. 1925(b) Statement.
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The standard we apply is whether, viewing all the evidence 

admitted at trial in the light most favorable to the verdict winner, 

there is sufficient evidence to enable 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 

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 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting 

Commonwealth v. Jones, 874 A.2d 108, 120–121 (Pa. Super. 2005 

(citations omitted)).

With respect to self-defense, we are guided by 18 Pa. C.S. § 505 

which sets forth the elements of self-defense:

§ 505. Use of force in self-protection

(a) Use of force justifiable for protection of the 

person.— The use of force upon or toward another person is 

justifiable when the actor believes that such force is immediately 

necessary for the purpose of protecting himself against the use 

of unlawful force by such other person on the present occasion.

18 Pa.C.S. § 505(a). We also note that our legislature has imposed the 

following relevant limitations on the use of self-defense:

(b) Limitations on justifying necessity for use of 

force.—
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* * *

(2) The use of deadly force is not justifiable under this 

section unless the actor believes that such force is necessary to 

protect himself against death, serious bodily injury, kidnapping 

or sexual intercourse compelled by force or threat; nor is it 

justifiable if:

(i) the actor, with the intent of causing death or serious 

bodily injury, provoked the use of force against himself in 

the same encounter; or 

(ii) the actor knows that he can avoid the necessity of 

using such force with complete safety by retreating . . . . 

(2.1) Except as otherwise provided in paragraph (2.2), an 

actor is presumed to have a reasonable belief that deadly force 

is immediately necessary to protect himself against death, 

serious bodily injury, kidnapping or sexual intercourse compelled 

by force or threat if both of the following conditions exist:

(i) The person against whom the force is used is in the 

process of unlawfully and forcefully entering . . . a[n] 

occupied vehicle; or the person against whom the force is 

used is or is attempting to unlawfully and forcefully 

remove another against that other’s will from the . . . 

occupied vehicle.

(ii) The actor knows or has reason to believe that the 

unlawful and forceful entry or act is occurring or has 

occurred.

(2.2) The presumption set forth in paragraph (2.1) does 

not apply if:

* * *

(iii) the actor is engaged in a criminal activity or is using 

the . . . occupied vehicle to further a criminal activity; 

* * *

(2.3) An actor who is not engaged in a criminal activity, 

who is not in illegal possession of a firearm and who is attacked 

in any place where the actor would have a duty to retreat under 

paragraph (2)(ii) has no duty to retreat and has the right to 

stand his ground and use force, including deadly force, if:
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(i) the actor has a right to be in the place where he was 

attacked;

(ii) the actor believes it is immediately necessary to do 

so to protect himself against death, serious bodily injury, 

kidnapping or sexual intercourse by force or threat; and

* * *

(d) Definition.--As used in this section, the term 

“criminal activity” means conduct which is a misdemeanor or 

felony, is not justifiable under this chapter and is related to the 

confrontation between an actor and the person against whom 

force is used.

18 Pa.C.S. § 505 (b) and (d).

“When a defendant raises the issue of self-defense, the 

Commonwealth bears the burden to disprove such a defense 

beyond a reasonable doubt.” Commonwealth v. Bullock, 948 

A.2d 818, 824 (Pa. Super .2008). The Commonwealth sustains 

this burden if it establishes at least one of the following: (1) the 

accused did not reasonably believe that he was in danger of 

death or serious bodily injury; (2) the accused provoked or 

continued the use of force; or (3) the accused had a duty to 

retreat and the retreat was possible with complete safety. 

Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. 

Super. 2005). The Commonwealth need only prove one of these 

elements beyond a reasonable doubt to sufficiently disprove a 

self-defense claim. Commonwealth v. Burns, 765 A.2d 1144, 

1149 (Pa. Super. 2000).

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009). See 

also Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012) (before a 

defendant can be excused from using deadly force, he must reasonably 

believe that he is in imminent danger, must be free from fault in provoking 

or escalating the altercation that led to the offense, and did not violate the 

duty to retreat); Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 

2012) (“[I]f the defender did not reasonably believe deadly force was 
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necessary[,] he provoked the incident, or he could retreat with safety, then 

his use of deadly force in self-defense was not justifiable.”) (citation 

omitted). “It remains the province of the jury to determine whether the 

accused’s belief was reasonable, whether he was free of provocation, and 

whether he had no duty to retreat.” Commonwealth v. McClendon, 874 

A.2d 1223, 1230 (Pa. Super. 2005) (citation omitted).

The trial court analyzed Appellant’s self-defense claim as follows:

[Appellant] testified that when he first came on the scene to take

Angelina Brownlee to work, he had been asked to do something 

about an offense committed against her sister, Mary Brownlee. 

Finding no one to talk to, he left. He also testified that when he 

later returned to the area to get Angelina’s work ID, he had no 

reason to fear anything was about to happen, yet, despite this 

state of affairs, he testified that he felt he needed to be sitting 

on top of the loaded gun he illegally possessed.

On returning to the scene, [Appellant] had not fully parked 

the car when they were approached by [a] group of men who 

attacked them from the driver’s side only. Although he and 

Angelina had been attacked and beaten through the open door 

and window of the car, he described their injuries as “nothing 

extravagant,” agreeing that they were not sufficient to cause 

him “to have to take a handgun out, and shoot someone in the 

stomach.” In addition, there was no evidence presented that 

any of their assailants were armed with anything but their fists. 

When a defendant uses greater force than was reasonably 

necessary to protect against death or serious bodily injury, his 

use of unreasonable force renders his claim of self-defense 

unavailable. Truong, Supra.

Sakeyta’s testimony that she had gone to visit Mary after 

receiving a call from Mary telling her that she had been 

improperly touched on the “butt”, and, that when she saw 

[Appellant] pull up in the car she knew [Appellant] was also “on 

the way”, supports the conclusion that [Appellant] came on the 

scene prepared to fight in defense of Mary’s honor. This 

conclusion that [Appellant] came upon the scene prepared to 

fight is supported by her sworn statement to Detective Parker 
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that as the complainant approached the car she saw [Appellant] 

“point a gun towards Xzavien and shot [sic] him.” 

The complainant, Xzavien Jennings, in his statement to 

Detective Mole, stated that he had been called to the scene by 

Angelina. He also stated that when he got to the car “the guy 

who shot me pulled a gun. I started punching him and Angela.” 

It is clear, on viewing the evidence in a light most 

favorable to the verdict winner, the evidence was sufficient for 

the jury to have concluded that when [Appellant] arrived on the 

scene it was his intent to use the loaded gun he was sitting on to 

defend the honor of Mary Brownlee. Furthermore, by 

[Appellant’s] own admission that his and Angelina’s injuries were 

“nothing extravagant” and not sufficient to cause him “to have to 

take a handgun out, and shoot someone in the stomach” was 

sufficient for the jury to conclude that he “did not reasonably 

believe that he was in danger of death or serious bodily injury.” 

Additionally, [Appellant’s] testimony that he had not fully parked 

the car and that the attack came only from the driver’s side was 

sufficient to support the conclusion that not only did he have an 

avenue of escape open to him, but, that he chose to remain and 

engage in the fight that ensued.

A review of the record makes it clear [Appellant’s] 

complaint falls of its own weight.3 The evidence was sufficient 

for the jury to have concluded that [Appellant] came on the 

scene sitting on a loaded gun he was prepared to use, that he 

chose not to retreat, but instead opted to engage in the fight, 

that the injuries sustained were not sufficient to reasonably put 

him in immediate fear of death or serious bodily injury, that he 

acted recklessly without regard to the consequences in shooting 

the gun into a crowd and that he overreached in using a loaded 

gun to a fist fight. The Commonwealth met its burden in 

disproving [Appellant’s] claim of self-defense beyond a 

reasonable doubt.

3 Court notes that [Appellant’s] claim of self-defense 

was weakened further by his admission at trial that 

he was raising the defense of justification for the first 

time on the stand and that he had not discussed the 

issue with trial counsel prior to the commencement 

of trial. 

Trial Court Opinion, 11/19/15, at 15–17 (record references omitted).
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Appellant’s first argument is that the evidence failed to establish 

beyond a reasonable doubt that his actions were not justified under 18 

Pa.C.S. § 505. Because the evidence is clear that Appellant did not 

reasonably believe he was in danger of death or serious bodily injury, we 

disagree.

The requirement of a reasonable belief encompasses two 

aspects, one subjective and one objective. First, the defendant 

“must have acted out of an honest, bona fide belief that he was 

in imminent danger,” which involves consideration of the 

defendant’s subjective state of mind. Second, the defendant’s 

belief that he needed to defend himself with deadly force, if it 

existed, must be reasonable in light of the facts as they 

appeared to the defendant, a consideration that involves an 

objective analysis. Commonwealth v. Light, 458 Pa. 328, 326 

A.2d 288 (1974). 

Mouzon, 53 A.3d at 751–752. 

Regarding Appellant’s subjective belief that he was in danger, 

Appellant admitted that his and Ms. Brownlee’s injuries were “nothing 

extravagant” and agreed that there was not sufficient cause “to have to take 

a handgun out, and shoot someone in the stomach.” N.T., 4/14/14, at 98–

99. This admission alone was sufficient for the jury to conclude that 

Appellant did not reasonably believe that he was in danger of death or 

serious bodily injury. 

Appellant does not offer a rebuttal to his admission that his injuries 

were slight and that he was not justified in producing a gun and firing. 

Instead, Appellant focuses on an objective analysis—that his belief that he 

needed to defend himself with deadly force was reasonable in light of the 
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facts as they appeared to him. Appellant avers that the eyewitness 

testimony at trial demonstrated that at least four men stormed his vehicle 

and began punching him and Ms. Brownlee and forced their way into the 

vehicle. Citing Commonwealth v. Glover, 449 A.2d 662 (Pa. Super. 1982) 

and Commonwealth v. Gregory, 406 A.2d 539 (Pa. Super. 1979), 

Appellant asserts that authority from this Court indicates that the abovedescribed attack would warrant a reasonable person to believe that the 

attackers attempted to cause serious bodily injury. 

We observe that the credibility of eyewitnesses’ trial testimony was 

challenged because it was inconsistent with their statements to the police 

recorded after the shooting. At trial, Sakeyta Greene testified that she 

observed “about ten” boys around the car holding Appellant and Ms. 

Brownlee and saw them throwing punches. N.T. (Trial), 4/10/14, at 62, 64. 

She denied seeing anyone with a gun. Id. at 65. However, in her 

statement to the police, Ms. Greene related: “the guy Xzayvien came across 

the street and walked over to the driver window and started swinging on 

[Appellant]. I saw [Appellant] point a gun towards Xzayvien and shot him.” 

Id. at 80; Commonwealth Exhibit C 14. 

The victim, Xzayvien Jennings, represented at trial that he observed a 

commotion at 56th and Broomall Streets involving four or five people. N.T. 

(Trial Volume II), 4/11/14, at 65, 67. Mr. Jennings explained that when he 

approached the group, words were being exchanged, and he became 
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involved because he “just wanted to fight.” Id. at 68. Mr. Jennings denied 

seeing anybody with a gun and claimed he did not realize he had been shot 

until he discovered blood on his shirt. Id. at 70–71. This testimony 

contradicted Mr. Jennings’s statement to police the day after the shooting 

wherein he recounted: “I approached [the vehicle] by myself . . . . When I 

got to the car the guy who shot me pulled a gun. I started punching him 

and Angela and then the guy let off four shots.” Id. at 89; Commonwealth 

Exhibit C 12. 

The third eyewitness, Kahdeem Brown, told the jury that he was 

present at 56th and Broomall Streets on the day of the shooting and saw 

“six, seven dudes walking over to the car.” N.T. (Trial Volume II), 4/11/14, 

at 200. This recollection is at odds with Mr. Brown’s statement to police that 

he saw only two people approach Ms. Brownlee’s vehicle. Id. at 219; 

Commonwealth Exhibit C 5.4

A witness’s prior inconsistent statement could be admitted as 

substantive evidence “when the statement had been given under oath at a 

formal legal proceeding, reduced to writing and signed by the declarant, or 

recorded verbatim contemporaneously with the making of the statement.” 

Commonwealth v. Ragan, 645 A.2d 811, 818 (Pa. 1994). 

____________________________________________

4

 All three eyewitnesses signed their respective police statements. 
J-S63025-16

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The trial court herein instructed the jury on this legal maxim, 

informing them: 

[Y]ou are permitted to accept and consider the prior written 

statements of any witness . . . and you may treat it in the same 

manner as you would any other evidence. . . . [I]t is entirely up 

to you to decide whether to accept the statements in whole or in 

part and to decide what weight, if any, to give them. 

N.T. (Trial Volume III), 4/14/14, at 138–139. 

Thus, it was within the province of the jury to determine the credibility 

of the eyewitnesses’ trial testimony in light of their prior inconsistent 

statements, particularly because other evidence indicated that these 

witnesses could have been influenced improperly by Appellant and Ms. 

Brownlee. During cross-examination, Appellant was confronted with 

recordings and transcripts of telephone calls between him and Ms. Brownlee 

while he was incarcerated. In a call on January 28, 2013, Appellant 

indicated to Ms. Brownlee that he did not want Sakeyta Greene to appear in 

court because she had given a statement to police that Appellant shot Mr. 

Jennings. N.T. (Trial Volume III), 4/14/14/, at 103. Ms. Brownlee 

responded, “Cuz she show up, she gon’ turn up missing.” Id. at 104; 

Commonwealth Exhibit 33. On January 31, 2013, Appellant, referring to Mr. 

Jennings, stated to Ms. Brownlee, “He got to point that finger, and if he 

point that finger, you already know what’s going to happen to him.” Id. at 

105. Appellant also admitted that his reference to Mr. Jennings in a 
J-S63025-16

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subsequent February 5, 2013 call concerned trying to persuade Mr. Jennings 

not to appear in court. Id. at 113. 

After observing the demeanor of the eyewitnesses and hearing the 

recordings of the prison telephone calls, it is apparent that the jury resolved 

the conflicts in the evidence favorably to the Commonwealth. As we are also 

obligated to view contradictory testimony to the Commonwealth’s 

advantage, we conclude that sufficient evidence demonstrated that 

Appellant’s actions were not justified in this matter. See Commonwealth 

v. Sanchez, 848 A.2d 977, 982 (Pa. Super. 2004) (in sufficiency of evidence 

review, conflicts in testimony are resolved in favor of the verdict winner).5

Appellant next offers that the limits on use of force detailed in 18 

Pa.C.S. § 505(b), colloquially known as the “castle doctrine,” are not 

applicable herein because he was not engaged in “criminal activity” as 

defined by the statute. The Commonwealth urges that this argument is 

waived because Appellant did not invoke the castle doctrine at trial. 

Additionally, we observe that Appellant’s Rule 1925(b) statement does not 

mention either subsection 505(b) or the castle doctrine but merely states 

____________________________________________

5

 We further note that the precedent cited by Appellant to support his claim 

that a reasonable person would believe that he needed to defend himself 

with deadly force is not persuasive. Both Glover, 449 A.2d 662, and

Gregory, 406 A.2d 539, discuss whether the evidence demonstrated that 

the actors attempted to cause serious bodily injury sufficient to sustain 

convictions for aggravated assault. Neither appellant in those cases 

propounded a self-defense claim. 
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that “[t]he evidence presented at trial was insufficient to show that 

[Appellant] attempted to cause serious bodily injury to another, or caused 

such injury intentionally, knowingly or recklessly under circumstances 

manifesting extreme indifference to the value of human life.” Appellant’s 

Pa.R.A.P. 1925(b) Statement, 3/27/15, at unnumbered 1. Finally, the trial 

court did not reference the applicability of the castle doctrine in its 

discussion of the sufficiency of the evidence supporting Appellant’s 

justification defense.6 While these factors all indicate that Appellant has 

waived his castle doctrine argument, it also fails on the merits. 

As delineated above, use of deadly force is justifiable if the actor 

believes that such force is necessary to protect himself against serious bodily 

injury. 18 Pa.C.S. § 505(a). An actor is presumed to have such reasonable 

belief if the person against whom the force is used is in the process of 

unlawfully or forcefully entering an occupied vehicle. 18 Pa.C.S. § 

505(b)(2.1)(i). However, section 505(b)2.1’s presumption does not apply if 

the actor is engaged in criminal activity. 18 Pa.C.S. § 505(b)(2.2)(iii). 

“Criminal activity” is defined as “conduct which is a misdemeanor or felony, 

is not justifiable under this chapter and is related to the confrontation 

____________________________________________

6

In the portion of its Pa.R.A.P. 1925(a) opinion discussing the jury 

instructions, the trial court explained that it did not include an instruction on 

the castle doctrine, because “in view of the evidence at trial . . . it didn’t 

apply.” Trial Court Opinion, 11/19/15, at 28. 
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between an actor and the person against whom force is used.” 18 Pa.C.S. § 

505(d). 

Appellant’s contention that he was not engaging in criminal activity 

when he shot Mr. Jennings is indefensible. First, Appellant confessed that he 

illegally possessed a firearm, graded as a felony of the third degree under 

18 Pa.C.S. § 6106(a)(1). He likewise admitted that there was insufficient 

cause “to have to take a handgun out, and shoot someone in the stomach.” 

N.T., 4/14/14 (Volume III), at 98–99. Finally, Appellant’s discharge of his 

firearm was indisputably related to the confrontation between himself and 

the victim herein. Thus, Appellant’s activity under scrutiny clearly 

constituted criminal activity as that term is defined in 18 Pa.C.S. § 505(d). 7

____________________________________________

7

 Appellant’s argument that the language of 18 Pa.C.S. § 505(b)(2.3) 

instructs that illegal possession of a firearm is not criminal activity is 

untenable. That subsection reads as follows: “An actor who is not engaged 

in a criminal activity, who is not in illegal possession of a firearm and who is 

attacked in any place where the actor would have a duty to retreat under 

paragraph (2)(ii) has no duty to retreat under certain circumstances.” 18 

Pa.C.S. § 505(b)(2.3). Appellant suggests that the use of the phrases 

“engaged in criminal activity” and “not in illegal possession of a firearm” in 

the same sentence requires a conclusion that “‘illegal possession of a 

firearm’ is not, per se, ‘criminal activity’ for purposes of § 505(b). If it were, 

the use of both phrases consecutively in § 505(b)(2.3) would be redundant 

. . . .” Appellant’s Brief at 26. Appellant fails to note, however, that 

subsection 505(b)(2.3) relates to circumstances when an actor’s duty to 

retreat is not required and has no bearing on whether the actor’s activity is 

considered criminal in nature. 
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Considering the evidence in the light most favorable to the 

Commonwealth, we conclude that the Commonwealth met its burden of 

disproving Appellant’s claim of self-defense. After presentation of conflicting 

evidence, the jury was entitled to reject Appellant’s claim that he, either 

subjectively or objectively, reasonably believed that his life was in imminent 

danger. Additionally, Appellant did not demonstrate that his use of force 

was justifiable under the castle doctrine. Hence, Appellant’s contrary claim 

that the Commonwealth failed to meet its burden to negate his justification 

defense lacks merit.

Appellant next argues that the evidence was insufficient to establish 

that he acted with the requisite mens rea to support his aggravated assault 

conviction. The trial court rejected this argument, reasoning:

[Appellant] was found guilty of Aggravated Assault 

pursuant to 18 Pa.C.S.A. 2702(a)(1) which provides in part that, 

(a) “A person is guilty of aggravated assault if he: (1) 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.” 

* * *

“A person acts intentionally with respect to a material 

element of an offense when...it is his conscious object to engage 

in conduct of that nature or to cause such a result. As intent is a 

subjective frame of mind, it is of necessity difficult of direct 

proof. The intent to cause serious bodily injury may be proven 

by direct or circumstantial evidence.” Commonwealth v. 

Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (Citations omitted). 

Our Superior Court in Commonwealth v. Jackson, 955 A.2d 

441, 446 (Pa. Super. 2008) citing its decision in 

Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887, 

889 (1978), reiterated the law of Pennsylvania that the test to 
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be applied in “determining whether a defendant, who was 

charged under the attempt provision of the aggravated assault 

statute, possessed the intent to inflict serious bodily injury” is a 

totality of the circumstances test. Among the issues to be 

considered is any “evidence of significant difference in size or 

strength between the defendant and the victim... the 

defendant’s use of a weapon or other implement to aid his attack 

and statements or actions that might indicate his intent to inflict 

injury. Id.

The Commonwealth presented sufficient evidence to 

support [Appellant’s] conviction on the charge of aggravated 

assault. [Appellant], by his own admission shot through the open 

door of his car into the group of men surrounding his vehicle 

striking the complainant in the back. The Court notes that 

[Appellant’s] act, regardless of his intent, in and of itself 

constitutes “an act of gross recklessness for which he must 

reasonably anticipate that death to another is likely to result.” 

Commonwealth v. Malone, 354 Pa. 180, 183, 47 A.2d 445, 

447 (1946); In accord; Commonwealth v. Coleman, 455 Pa. 

508, 508, 318 A.2d 716, 717 (1974), Commonwealth v. 

Seibert, 424 Pa. Super. 242, 622 A.2d 361 (1993). It is equally 

clear that shooting complainant in the back created a 

“substantial risk of death” and the resulting scar constitutes a 

“permanent disfigurement.” 

Trial Court Opinion, 11/19/15, at 11–13.

Appellant does not deny that he fired a shot that struck the victim. 

Instead, Appellant takes the position that the discharge of his weapon was 

understandable in light of the fact that he was under attack by a violent 

group of at least four men. He further offers that because he: 1) did not 

produce the gun as the group approached his car; 2) did not brandish the 

gun as the men beat Appellant and his girlfriend; and 3) fired only one shot 

after the attack escalated, there was not sufficient evidence to establish that 

either he shot Mr. Jennings knowingly or intentionally or that he acted with 
J-S63025-16

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the necessary malice to support an aggravated assault conviction. Appellant 

further avers that the fact that he fired only one shot demonstrates that he 

exercised restraint sufficient to undermine any conclusion that he acted 

knowingly, willingly, or with malice as required by the aggravated assault 

statute. 

We are unpersuaded by Appellant’s stance that his firing of a gun 

indicates restraint, as opposed to demonstrating a reckless indifference to 

life. This Court has stated:

Where the victim suffers serious bodily injury, the 

Commonwealth is not required to prove specific intent. 

Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 

1997) (citing Commonwealth v. Hlatky, 426 Pa.Super. 66, 

626 A.2d 575 (1993), appeal denied, 537 Pa. 663, 644 A.2d 

1200 (1994)).

The Commonwealth need only prove [the defendant] 

acted recklessly under circumstances manifesting an 

extreme indifference to the value of human life. 

Hlatky, [supra] at 581. For the degree of 

recklessness contained in the aggravated assault 

statute to occur, the offensive act must be 

performed under circumstances which almost assure 

that injury or death will ensue. [O'Hanlon, supra

at 482, 653 A.2d at 618].

Nichols, supra (emphasis added).

Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007). 

Similarly, we held in Commonwealth v. Payne, 868 A.2d 1257 (Pa. Super. 

2005) that: 

the Commonwealth was not required to prove appellant acted 

with the “specific intent” to cause [a victim’s] injuries. . . . Since 

appellant actually caused [the victim’s] serious bodily injury, 
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the Commonwealth, at a minimum, had to prove that the 

appellant caused these injuries “recklessly under circumstances 

manifesting extreme indifference to the value of human life.” In 

other words, the Commonwealth had to prove that appellant 

acted with malice.

To prove malice, “it must be shown that the defendant 

consciously disregarded an unjustified and extremely high risk 

that his actions might cause death or serious bodily harm.” This 

state of mind may be inferred “from conduct, recklessness of 

consequences, or the cruelty of the crime.” In following, under 

our caselaw, we have extraordinarily well established 

precedent stating that if a gun discharges and the bullet 

strikes the victim, the intentional act of pointing the gun 

and aiming it at a vital part of the human body creates the 

presumption of malice. 

Id. at 1261 (citations omitted) (emphases added). See also 

Commonwealth v. Wesley, 860 A.2d 585, 593 (Pa. Super. 2004) (“By 

causing serious bodily injury to the victim with a gun, namely, wounding the 

victim in the back, Appellant committed aggravated assault.”). 

Here, the jury heard conflicting testimony as to the number of 

individuals involved in attacking Appellant and the timing of Appellant’s 

firearm discharge. It is solely within the province of the factfinder to 

determine a witness’s credibility. Commonwealth v. Page, 59 A.3d 1118, 

1130 (Pa. Super. 2013). The jury also heard undisputed testimony that 

Appellant shot Mr. Jennings in the back actually causing serious bodily 

injury. Additionally, Appellant discharged his weapon and struck the victim, 

thus creating an assumption of malice. Accordingly, there was sufficient 

evidence that Appellant acted with the requisite mens rea to support his 

aggravated assault conviction.
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Appellant’s third and fourth allegations of error are that his convictions 

of aggravated assault and possession of an instrument of crime are against 

the weight of the evidence. Appellant has waived review of these issues 

because he failed to specify the reasons why these verdicts were contrary to 

the weight of the evidence in his Pa.R.A.P. 1925(b) Statement. 

In Commonwealth v. Freeman, 128 A.3d 1231 (Pa. Super. 2015), 

this Court addressed whether an assertion in a 1925(b) statement that 

“[t]he verdict of the jury was against the weight of the evidence” was too 

imprecise to preserve the issue for review. Id. at 1249. The appellant in 

Freeman failed to specify in his Rule 1925(b) statement which verdict was 

contrary to the weight of the evidence, or offer specific reasons as to why 

those verdicts were contrary to the evidence’s weight. We determined that 

the appellant waived review of his weight of the evidence challenge because 

the phrasing of this issue was “too vague to allow the court to identify the 

issues raised on appeal” and was “the functional equivalent of no Concise 

Statement at all.” Id.; see also Commonwealth v. Seibert, 799 A.2d 54, 

62 (Pa. Super. 2002) (holding that appellant waived his challenge to the 

weight of the evidence where his 1925(b) statement merely asserted that 

“[t]he verdict of the jury was against the weight of the credible evidence as 

to all of the charges.”).

Here, too, Appellant failed to specify in his 1925(b) Statement the 

reasons why the verdicts for aggravated assault and possession of a firearm 
J-S63025-16

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were against the weight of the evidence. Instead, Appellant asserted only 

that these verdicts were “against the weight of the evidence to such a 

degree as to shock one’s conscience and sense of justice.” Appellant’s 

Pa.R.A.P. 1925(b) Statement, 3/27/15, at unnumbered 2. As in Freeman, 

Appellant’s failure to offer specific reasons why the verdicts were contrary to 

the weight of the evidence results in waiver of these two issues. 

Waiver also defeats consideration of Appellant’s sixth and seventh 

arguments that the trial court erred in its instruction to the jury regarding 

the charge of justification and that the trial court interjected its own 

conclusions regarding the facts of the case, resulting in an unfair trial. 

These claims are waived due to Appellant’s failure to object to the trial 

court’s jury charge and Appellant’s failure to move for a mistrial in a timely 

fashion.8

Appellant concedes that his trial counsel did not object to the jury 

charge prior to deliberations. He also admits that trial counsel offered no 

objection to the court’s comments to the jury during his instruction about 

the evidence and law. Appellant’s Brief at 36. Thus, any challenges to the 

content of or omissions from the trial court’s jury instructions are waived. 

____________________________________________

8

 We note that Appellant’s Rule 1925(b) statement does not explicitly 

challenge the trial court’s denial of the mistrial motion. However, we will 

flexibly interpret Appellant’s claim that the trial court interfered with the role 

of the jury and denied Appellant a fair trial as preserving this question for 

appellate review. 
J-S63025-16

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See Commonwealth v. Garang, 9 A.3d 237, 245 (Pa. Super. 2010) 

(defendant did not preserve trial court’s alleged failure to instruct jury that 

defendant could not be convicted of conspiracy, in prosecution for attempted 

homicide and related offenses, where defense counsel failed to object to jury 

instruction). Thus, Appellant confines his argument regarding the jury 

instructions to the point in the proceedings where he alleged he objected to 

the trial court’s instructions and moved for a mistrial. 

It is essential to view Appellant’s argument in the context of the trial’s 

timeline. After the jury had retired and deliberated for a few hours, it 

requested the court to clarify the laws defining aggravated assault, 

justification, self-defense, and possession of an instrument of crime. N.T., 

4/15/14, at 4. The court then re-instructed the jury on the elements of 

these offenses and defenses. After the supplemental instructions were 

received by the jury, the trial court asked counsel: “Does anyone have 

anything additional before the jury goes out to deliberate?” Id. at 29. 

Defense counsel did not respond and certainly, at this time, did not lodge 

any objection to the trial court’s supplemental instructions. Four hours later, 

defense counsel orally motioned for a mistrial based upon the trial court’s 

supplemental jury instructions. N.T. 4/15/14, at 30–33. Counsel did not 

object to the specific content of the supplemental instructions; instead, 

defense counsel asserted: “Judge, I would respectfully submit [you] gave 

the jurors no other alternative but to convict [Appellant] on all charges,” and 
J-S63025-16

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he requested the court to grant a mistrial “based on the conversation you 

had with the jury earlier this morning.” Id. at 31. After a brief recess, to 

ensure that his motion was properly preserved, defense counsel again 

stated: “Judge, I would respectfully submit that you gave the jury no other 

alternative but to find [Appellant] guilty on all charges. So with that, Judge, 

I would make a motion for a mistrial . . . .” Id. at 35. Noting the 

announcement that the jury had reached a verdict and explaining that it did 

not agree with defense counsel that it “overstep[ped] its bounds,” the trial 

court denied the mistrial motion. Id. at 34–36.

We begin by noting that defense counsel did not object to the trial 

court’s supplemental jury instructions prior to the jury resuming its 

deliberations. Counsel’s failure to object to the jury instruction at this 

moment is fatal to Appellant’s claim that the trial court interfered with the 

role of the jury. Pennsylvania Rule of Criminal Procedure 647(C) provides 

that: “No portions of the charge nor omissions from the charge may be 

assigned as error, unless specific objections are made thereto before the 

jury retires to deliberate.” Pa.R.Crim.P. 647 (C); see also Commonwealth 

v. Laird, 989 A.2d 610, 646 (Pa. 2010) (appellant’s failure to object to jury 

instruction before it retired to deliberate resulted in waiver). Trial counsel 

herein similarly did not object to the trial court’s charge prior to the jury 

returning to deliberate after the trial court addressed its questions; 
J-S63025-16

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accordingly, even if defense counsel objected to the specific instruction 

contemporaneously with his motion for a mistrial, the claim is waived.

Appellant’s additional contention that the trial court abused its 

discretion when it displayed partiality to the Commonwealth’s case, 

indicated the trial court’s personal evaluation of the evidence, suggested a 

guilty verdict, and expressed an opinion as to Appellant’s guilt is, in fact, a 

challenge to the trial court’s denial of his motion for a mistrial. Albeit for 

different reasons, this challenge to the court’s comments to the jury is 

likewise waived.

Pennsylvania Rule of Criminal Procedure 605(B) provides: “When an 

event prejudicial to the defendant occurs during trial only the defendant may 

move for a mistrial; the motion shall be made when the event is disclosed. 

Otherwise, the trial judge may declare a mistrial only for reasons of manifest 

necessity.” Pa.R.Crim. P. 605(B); Commonwealth v. Walker, 954 A.2d 

1249, 1254 (Pa. Super. 2008); see also Commonwealth v. Smith, 410 

A.2d 787, 790 (Pa. 1980) (holding that a motion for a mistrial made two to 

three minutes after the allegedly prejudicial event was untimely). A decision 

to refuse a mistrial is reviewed for an abuse of discretion. Commonwealth 

v. Manley, 985 A.2d 256, 266–267 (Pa. Super. 2009).

As detailed above, defense counsel remained silent after the trial court 

issued its supplemental instructions to the jury. Four hours later, counsel 
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presented its initial motion for a mistrial. At this point, the court became 

aware that the jury had reached a verdict. 

Appellant’s motion for a mistrial was made too late, and therefore 

review of its denial is waived under Pa.R.Crim.P. 605(B). Here, Appellant 

claims that he received an unfair trial due to the trial court’s remarks to the 

jury in its supplemental instructions. Yet, four hours of deliberation time 

passed before he moved for a mistrial or otherwise objected. Appellant 

should have requested the mistrial when cued by the trial court after it 

responded to the jurors’ questions: “Does anyone have anything additional 

before the jury goes out to deliberate?” N.T. (Trial), 4/15/14, at 29. Having 

failed to do so, Appellant waived any objection to the trial court’s denial of 

his mistrial motion.

Appellant’s final issue concerns his sentence and he described it in his 

Rule 1925(b) Statement as follows: “[Appellant’s] sentence is unduly harsh 

and excessive.” Appellant’s 1925(b) Statement, 3/17/15, at unnumbered 2. 

While the trial court mused that this vague assertion of error waived the 

sentencing issue, it nevertheless discussed the issue on the merits, as 

follows: 

Prior to imposing sentence, it was agreed by counsel, that 

on the charge of aggravated assault, [Appellant’s] prior record 

score (PRS) was 0 and, based on the serious injury to the 

complainant, the Court found that the offense gravity score 

(OGS) was 11. It was also determined that, employing the 

deadly weapons enhancement, the guidelines recommended a 

range of 54 to 72 months [plus or minus] 12 months 

incarceration. It was further agreed that [Appellant] was not 
J-S63025-16

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RRRI eligible. Prior to imposing sentence the Court reviewed 

[Appellant’s] Presentence Investigation report (PSI), listened to 

argument of counsel, and considered [Appellant’s] statement. 

[Appellant’s] PSI, dated 6/25, 2014, discloses that 

[Appellant] has a high school diploma as well as some college 

credits. He has had no discernible taxable employment since 

2008 and was discharged from the Army Reserve in 2012 on 

“Other Than Honorable” conditions. (PSI, pg. 2) It also reveals, 

despite his PRS of 0, that as an adult he has had three criminal 

arrests and convictions. (PSI, pg. 3)

In imposing sentence, the Court stated for the record:

“[I] agree with counsel that there are both 

aggravating and mitigating circumstances in this 

case. As aggravated assaults go, this is a serious 

aggravated assault because of the injury. 

[Appellant’s] prior record score does not fully reflect 

his criminal history because of the events pointed 

out by the D.A.

[Appellant] says he’s sorry, but he’s still 

couching his regret in terms of he’s sorry for what 

has happened to him. Regardless of whether the 

victim was wrong or whether he was right is the way 

he puts it. That’s not acceptance of responsibility, 

and that’s certainly no indication of a mindset toward 

rehabilitation. He just wants to get away with this. 

He doesn’t want to go to prison. He wants to be out 

on [the] street. Well, who does want to go to 

prison? So I’ve listened to his presentation. It was 

not terribly persuasive.”

[* * *]

“With regard to the aggravated assault, the 

D.A.’s recommendation is not unreasonable. I don’t 

think that 10 years is necessary to fulfill the 

purposes of sentencing to deter [Appellant] from 

future conduct and to make the point that what he 

did was serious in this case, a significant injury to 

the complainant.” 
J-S63025-16

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Furthermore, as noted by counsel for the Commonwealth, 

there is abundant evidence on the record that [Appellant] 

attempted to distort the judicial process by trying “to get to each 

of the witnesses in this case and influence them to not come to 

the preliminary hearing, to change their testimony, and even 

threatening them on these phone calls what was going to 

happen to them if they came to court and testified.” As noted 

above, this is supported by the numerous discrepancies between 

the trial testimony of the Commonwealth’s witnesses and their 

statements given to police shortly after his shooting of the 

complaining witness.

It is clear that [Appellant] has not taken responsibility for 

his shooting, which could have resulted in death, of the 

complainant. On viewing the totality of circumstances, 

[Appellant’s] sentence of 84 to 180 months of incarceration 

followed by five years probation is within the aggravated range 

of the guidelines and, under the circumstances of the instant 

matter, is appropriate and not unduly harsh and excessive.”

Trial Court Opinion, 11/19/15, at 31–33 (record references omitted). 

On appeal, Appellant expands his challenge to the trial court’s 

sentence and now complains that the sentence imposed was excessive 

because “the aggravating circumstance cited by the trial court already 

resulted in an increased guideline range,” and although the “trial court 

recognized that there were mitigating circumstances” it imposed a sentence 

at the top of the aggravated range. Appellant’s Brief at 9. 

Because Appellant claims that his sentence is excessive, he does not 

question its legality; rather, he challenges its discretionary aspects. 

Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010). 

Appellant’s challenge to the discretionary aspect of his sentence does not 

entitle him to review as of right. Commonwealth v. Allen, 24 A.3d 1058, 
J-S63025-16

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1064 (Pa. Super. 2011) (citation omitted). Before this Court can address 

such a discretionary challenge, an appellant must satisfy a four-part test: 

(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.

Id.

Appellant herein filed a timely notice of appeal and preserved his issue 

in a post-sentence motion. Additionally, Appellant’s brief includes a concise 

statement of reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). 

Appellant’s Brief at 43–45. Thus, we turn to whether Appellant presents 

substantial questions that the sentence appealed from is not appropriate 

under the Sentencing Code. 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 

526, 533 (Pa. Super. 2011). 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. Swope, 123 A.3d 333, 338 (Pa. 

Super. 2015). We have held that a claim that the sentencing court relied on 

impermissible factors, by considering factors already included in the 
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sentencing guidelines raises a substantial question. Commonwealth v. 

Simpson, 829 A.2d 334, 338 (Pa. Super. 2003). Additionally, this Court 

has held that a substantial question exists when a sentencing court imposed 

a sentence in the aggravated range without considering mitigating factors. 

Rhoades, 8 A.3d at 919 n.12. Based on our review of the foregoing 

precedent, we conclude that Appellant has raised substantial questions 

regarding the sentence. Thus, we grant his petition for allowance of appeal 

and address the merits of his claim. 

Our standard of review is well-settled:

[I]mposition of sentence is vested in the discretion of the 

sentencing court and will not be disturbed by an appellate court 

absent a manifest abuse of discretion.” Commonwealth v. 

Griffin, 804 A.2d 1, 7 (Pa. Super. 2002) (citation omitted). “An 

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

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

discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will.” Id. (citation omitted). “If 

the sentence is ‘not unreasonable,’ the appellate court must 

affirm.” Id. (citation omitted). 

Simpson, 829 A.2d at 336.

Although Appellant purports that the trial court considered the 

seriousness of the injury to the victim as an aggravating circumstance, a 

close reading of the trial court’s comments from the sentencing proceeding 

does not support such a conclusion. The court stated: “I agree with counsel 

that there are both aggravating and mitigating circumstances in this case. 

As aggravated assaults go, this is a serious aggravated assault because of 

the injury. [Appellant’s] prior record score does not fully reflect his criminal 
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history because of the events pointed out by the D.A.” N.T. (Sentencing), 

10/17/14, at 42. This statement is readily construed as the trial court’s 

summation of the factors it considered in imposing sentence: 1) there were 

aggravating and mitigating circumstances; 2) the injury resulting from the 

aggravated assault was serious in nature, and 3) because of crimes 

committed after the offenses at issue, the prior record score was not a 

reliable indicator of Appellant’s criminal disposition. Thus, it appears that 

the trial court’s reference to the seriousness of the injury related back to its 

assessment of the offense gravity score. The trial court did not indicate that 

it was considering the extent of the injury as an aggravating factor. 

However, even if the trial court’s reference to the seriousness of the 

injury could be construed as a double enhancement, it would not necessarily 

constitute an abuse of discretion. We have explained that:

It is impermissible for a court to consider factors already 

included within the sentencing guidelines as the sole reason for 

increasing or decreasing a sentence to the aggravated or 

mitigated range. Trial courts are permitted to use prior 

conviction history and other factors already included in the 

guidelines if, they are used to supplement other extraneous 

sentencing information.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) 

(quoting Simpson, 829 A.2d at 339) (citations omitted and emphases in 

original).

Our review of the sentencing hearing reveals the trial court did not rely 

on the seriousness of the injury as the sole reason for imposing a sentence 
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above the aggravated guidelines range. Rather, as noted above, the trial 

court considered this factor only in the context of Appellant’s failure to 

accept full responsibility for his actions. N.T. (Sentencing), 10/17/14, at 43–

44. Therefore, because the seriousness of the injury was not the only factor 

the court relied upon in imposing an enhanced sentence, Appellant is entitled 

to no relief. 

Similarly, Appellant’s claim that the trial court abused its discretion 

when it imposed a sentence in the aggravated range despite its finding of 

mitigating circumstances is not sustainable. In sentencing Appellant, the 

trial court indicated that it “reviewed the sentencing guidelines and . . . the 

presentence report.” N.T. (Sentencing), 10/17/14, at 41. “Where the 

sentencing judge had the benefit of a pre-sentence report, it will be 

presumed that he was aware of relevant information regarding an 

appellant’s character and weighed those considerations along with the 

mitigating statutory factors.” Commonwealth v. L.N., 787 A.2d 1064, 

1071–1072 (Pa. Super. 2001). Additionally, the trial court considered the 

serious nature of the aggravated assault perpetrated by Appellant and the 

fact that the prior record score did not accurately reflect Appellant’s criminal 

behavior. N.T. (Sentencing), 10/17/14, at 42. Finally, the court considered 

the amount of time necessary “to fulfill the purposes of sentencing to defer 

[Appellant] from future conduct . . . .” Id. at 43. 
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Appellant offers no support from the record that the trial court did not 

consider relevant mitigating facts, except that the sentence imposed was in 

the aggravated range. Furthermore, the trial court specifically recognized 

that mitigating circumstances existed. N.T. (Sentencing), 10/17/14, at 42. 

Regardless, the trial court “was only obligated to consider mitigating 

circumstances, not to accept or appreciate them.” Commonwealth v. 

Fullin, 892 A.2d 843, 850 (Pa. Super. 2006). Therefore, we conclude that 

the trial court properly considered the nature and circumstances of the 

offense and history and characteristics of Appellant when it imposed a 

sentence in the aggravated range of the sentencing guidelines. 

For all of these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2016