J-S30032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

KEVIN BAUER, :

:

Appellant : No. 1721 MDA 2016

Appeal from the Judgment of Sentence August 31, 2016

in the Court of Common Pleas of Lackawanna County,

Criminal Division, No(s): CP-35-CR-0000440-2015, 

CP-35-CR-0000442-2015

BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 16, 2017

Kevin Bauer (“Bauer”) appeals from the judgment of sentence imposed 

following his convictions of two counts each of simple assault and recklessly 

endangering another person (“REAP”), and one count each of aggravated 

assault, resisting arrest, disorderly conduct, and accident involving damage 

to an attended vehicle. See 18 Pa.C.S.A. §§ 2701(a), 2705, 2702(a)(3), 

5104, 5503(a)(4); 75 Pa.C.S.A. § 3743(a). We affirm.

The trial court set forth the relevant underlying facts as follows:

On February 20, 2015, [at approximately 3:30 p.m.,] Corporal 

Thomas McDonald [(“Corporal McDonald”)], who was off duty, 

exited a grocery store in Scranton[,] and observed a white male 

enter a white KIA vehicle with Florida registration[, which was 

occupied by a black female driver and black male passenger]. 

Because [Corporal McDonald] was a drug interdiction officer, he 

had information that a black male driving a white KIA with 

Florida tags was actively selling narcotics in Scranton. [Corporal 

McDonald] watched the KIA drive around the parking lot, and 

then[,] the white male exited the KIA and entered the passenger 

seat of an Audi that was parked in the parking lot. Corporal 
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McDonald approached the Audi, identified himself as a police 

officer and displayed his badge. The driver of the Audi, [Bauer], 

shifted the vehicle into reverse and struck a Subaru that was 

driving behind him. [Joy Greenwald (“Greenwald”) was driving 

the Subaru.] [Bauer] pulled [the Audi] back into the parking 

spot and Corporal McDonald opened the passenger door and 

directed [Bauer] to park and turn the engine off. [Bauer] 

reversed the vehicle again, causing the passenger door to strike 

Corporal McDonald[,] [] pinning him between the two vehicles as 

the Audi again struck the Subaru. [Bauer] then pulled out of the 

parking lot and fled the scene. 

[On February 21, 2015, the police located the Audi involved in 

the incident, and Corporal McDonald subsequently identified 

Bauer as the driver of the Audi.] On February 24, 2015, the 

police learned that [Bauer] resided at 700 Davis Street in 

Scranton, and conducted surveillance of the residence. They

observed [Bauer] exiting the residence and directed him to stop 

and show his hands. [Bauer] ran back into the house. The 

police entered the residence and were attacked by [a pit bull 

that Bauer had let loose.] The police arrested [Bauer]. 

[Bauer was charged under two separate cases: (1) for the acts 

in the grocery parking lot (no. 15-CR-442), and (2) for the acts 

at Bauer’s home (no. 15-CR-440). Bauer filed various pretrial 

Motions, which the trial court denied.] On April 18, 2016, 

following a jury trial, [Bauer] was found guilty of one count of 

aggravated assault, two counts of [REAP], two counts of simple 

assault, one count of resisting arrest and one count of accident 

involving damage to vehicle or property in case no. 15-CR-442. 

On April 29, 2016, [Bauer] pled guilty to one count of disorderly 

conduct in case no. 15-CR-440, and in exchange[,] the other 

charges pending against him were nolle prossed. On August 31, 

2016, [Bauer] was sentenced to an aggregate [prison] sentence 

of 39 to 96 months [at both cases.] [Bauer] filed a [M]otion for 

[R]econsideration of [S]entence[,] which was denied on 

September 16, 2016. On October 13, 2016, [Bauer] filed a 

Notice of Appeal of the judgment of sentence to the Superior 

Court.[1] On October 25, 2016[, the trial] court ordered [Bauer] 

to file a concise statement of matters complained of on appeal 

within 21 days[,] pursuant to Pa.R.A.P. 1925(b). On November 

 

1 As the trial court sentenced Bauer under both cases, Bauer filed a single 

Notice of Appeal, identifying both case numbers. 
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15, 2016, [Bauer] filed a Statement of Matters Complained of on 

Appeal.

Trial Court Opinion, 1/4/17, at 1-3 (footnote added).

On appeal, Bauer raises the following questions for our review:

A. Whether the trial court erred when it denied [Bauer’s] 

pre[]trial Motion to dismiss all of the charges filed against him 

[at no. 15-CR-442] for lack of justification to support the stop 

by Corporal McDonald?

B. Whether the trial court committed reversible error when it 

permitted prejudicial testimony by Corporal McDonald 

concerning drug activity in the area and/or what he thought 

to be a drug transaction that caused him to approach and 

detain [Bauer]?

C. Whether the Commonwealth presented sufficient evidence to 

prove beyond a reasonable doubt that [Bauer] committed 

aggravated assault, simple assault and [REAP] relating to 

[Corporal] McDonald?

D. Whether the Commonwealth presented sufficient evidence to 

prove beyond a reasonable doubt that [Bauer] committed 

simple assault and [REAP] relating to [] Greenwald?

E. Whether the trial court was under the mistaken belief that 

[Bauer] intentionally directed the pit bull dog to attack the 

arresting officers, therefore imposing a harsh and 

unreasonable sentence in the aggravated range on the 

disorderly conduct charge filed [at no. 15-CR-440]?

F. Whether the trial court imposed a harsh and unreasonable 

sentence on the resisting arrest charge when it failed to run 

the sentence for this crime concurrent[ly] with the sentences 

imposed on aggravated assault and [REAP] when all of the 

offenses involved the same conduct, even though the doctrine 

of merger does not apply?

G. Whether the trial court imposed a harsh and unreasonable 

aggregate sentence of 39 to 96 months [in prison]?

Brief for Appellant at 4-5 (some capitalization omitted).
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In his first claim, Bauer contends that the trial court erred in denying 

his pretrial Motion to dismiss the charges against him at no. 15-CR-442 due 

to the absence of a legal basis to stop Bauer’s vehicle. Id. at 19. Bauer 

argues that prior to the stop, Corporal McDonald did not observe any 

exchange of drugs or money; Bauer did not approach or enter the white 

KIA; and Bauer was merely a driver of a vehicle in the grocery store parking 

lot. Id. at 24, 27-28; see also id. at 25. Bauer further asserts that the 

stop by Corporal McDonald required more than mere suspicion of illegal 

activity. Id. at 24-25. Bauer claims that he was seized when Corporal 

McDonald flashed his badge and asked Bauer to turn off the vehicle. Id. at 

25. Bauer argues that “everything that flowed from the illegal stop should 

be deemed inadmissible as ‘fruit of the poisonous tree[.]’” Id. at 28.

In reviewing the denial of a motion to suppress, our 

responsibility is to determine whether the record supports the 

suppression court’s factual findings and legitimacy of the 

inferences and legal conclusions drawn from those findings. If 

the suppression court held for the prosecution, we consider only 

the evidence of the prosecution’s witnesses and so much of the 

evidence for the defense as, fairly read in the context of the 

record as a whole, remains uncontradicted. When the factual 

findings of the suppression court are supported by the evidence, 

the appellate court may reverse if there is an error in the legal 

conclusions drawn from those factual findings.

Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation 

omitted).

“The Fourth Amendment of the Federal Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals from
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unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). There are three categories of interactions 

between police and a citizen: 

The first of these is a “mere encounter” (or request for 

information)[,] which need not be supported by any level of 

suspicion, but carries no official compulsion to stop or to 

respond. The second, an “investigative detention[,]” must be 

supported by a reasonable suspicion; it subjects a suspect to a 

stop and a period of detention, but does not involve such 

coercive conditions as to constitute the functional equivalent of 

an arrest. Finally, an arrest or “custodial detention” must be 

supported by probable cause.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation 

omitted).

In determining whether an interaction should be 

considered a mere encounter or an investigative detention, the 

focus of our inquiry is on whether a seizure of the person has 

occurred. Within this context, our courts employ the following 

objective standard to discern whether a person has been seized: 

[w]hether, under all the circumstances surrounding the incident 

at issue, a reasonable person would believe he was free to leave. 

Thus, a seizure does not occur simply because a police officer 

approaches an individual and asks a few questions.

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) 

(citations, brackets, quotation marks, and ellipses omitted).

At the suppression hearing, Corporal McDonald, a member of the 

special investigation division of the Scranton Police Department, testified 

that the police had information that a white KIA, with a Florida license plate 

and driven by a black male, was selling narcotics out of the vehicle. N.T., 

8/17/15, at 4-5. While off-duty and in plain clothes on February 20, 2015, 
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Corporal McDonald observed a man enter a white KIA in a grocery store 

parking lot, and watched as the vehicle drove around the parking lot. Id. at 

6-7. Corporal McDonald then observed the man exit the KIA and enter an 

Audi. Id. at 9. At that point, Corporal McDonald “walked over to the vehicle 

to just merely encounter the vehicle,” displayed his Scranton Police 

Department identification to the two men in the Audi, and asked to speak to 

the men. Id. at 9, 20. Bauer, the driver, immediately put the Audi in 

reverse and attempted to leave the parking lot, but slammed into a moving 

vehicle. Id. at 9-10. Bauer then pulled back into the parking spot “at an 

unsafe speed.” Id. at 10. Corporal McDonald opened the passenger door, 

again identified himself as a police officer, and ordered Bauer to put the 

vehicle in park and turn off the engine. Id. Bauer did not respond and 

instead pulled out of the parking spot, striking Corporal McDonald with the 

Audi and pinning him between two vehicles. Id. Bauer left the parking lot 

in the Audi. Id.

Upon our review of the record, we conclude that Corporal McDonald’s 

initial encounter with Bauer was a “mere encounter.” Indeed, Corporal 

McDonald was in plain clothes, did not make any intimidating movements, 

did not display a weapon, did not command Bauer to do anything, and did 

not speak in an authoritative tone. See Commonwealth v. Au, 42 A.3d 

1002, 1008-09 (Pa. 2012) (holding that the officer’s request for 

identification did not, by itself, transform the encounter into an investigatory 
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detention where officer did not “activate the emergency lights on his vehicle; 

position his vehicle so as to block the car that [a]ppellee was seated in from 

exiting the parking lot; brandish his weapon; make an intimidating 

movement or overwhelming show of force; make a threat or a command; or 

speak in an authoritative tone.”) (internal citations omitted). Further, the 

fact that Corporal McDonald flashed his badge and asked to speak to Bauer, 

without any other action, does not demonstrate that the encounter escalated 

into an investigative detention. See Commonwealth v. Beasley, 761 A.2d 

621, 625 (Pa. 2000) (noting that initial encounter where officer displayed his 

badge and asked to talk to the appellant was a mere encounter). While 

Bauer claims that Corporal McDonald did not observe any drug activity and 

was merely acting on a hunch when he approached Bauer’s vehicle, Corporal 

McDonald did not require any level of suspicion to approach the vehicle. 

See Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) 

(stating that “[a] mere encounter can be any formal or informal interaction 

between an officer and a citizen, but will normally be an inquiry by the 

officer of a citizen. The hallmark of this interaction is that it carries no 

official compulsion to stop or respond.”); see also Commonwealth v. 

Lyles, 97 A.3d 298, 303 (Pa. 2014) (noting that “a seizure does not occur 

where officers merely approach a person in public and question the 

individual or request to see identification.”).
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At the time of Corporal McDonald’s second interaction with Bauer, 

wherein he told Bauer to put the Audi in park and turn off the engine, the

“mere encounter” escalated into an investigative detention. See 

Commonwealth v. Blair, 860 A.2d 567, 573 (Pa. Super. 2004) (noting that 

a mere encounter escalated to an investigative detention when the officer 

ordered the appellant to remain in the vehicle); see also Commonwealth 

v. Strickler, 757 A.2d 884, 889-90 (Pa. 2000) (stating that where a police 

officer, either by force or show of authority, has restricted the defendant’s 

movement, an investigative detention has occurred). However, the facts 

adduced by Corporal McDonald at the time he told Bauer to place the Audi in 

park, including Bauer slamming his vehicle into a moving vehicle, 

established reasonable suspicion to justify the detention. See 

Commonwealth v. Farnan, 55 A.3d 113, 116 (Pa. Super. 2012) (stating 

that “[i]n Pennsylvania, a police officer has authority to stop a vehicle when 

he or she has reasonable suspicion that a violation of the Motor Vehicle Code 

is occurring or has occurred.”); see also Commonwealth v. Chase, 960 

A.2d 108, 120 (Pa. 2008) (holding that “if police can articulate a reasonable 

suspicion of a Vehicle Code violation, a constitutional inquiry into the 

officer’s motive for stopping the vehicle is unnecessary.”). Accordingly, we 

conclude that the trial court did not err in denying the pretrial Motion, and 

Bauer’s first claim is without merit.
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In his second claim, Bauer contends that the trial court erred in 

allowing Corporal McDonald to testify regarding drug activity in the area of 

the grocery store parking lot, a purported drug transaction, and the fact that 

he obtained information regarding a white KIA from unreliable informants. 

Brief for Appellant at 28-29. Bauer argues that the testimony regarding 

drugs prejudiced the jury against him. Id. at 29. Bauer also asserts that 

the cautionary instructions provided by the trial court were insufficient to 

alleviate the impact of the testimony. Id. Bauer claims that the testimony 

constituted reversible error. Id. at 30.

Here, Bauer did not lodge an objection to Corporal McDonald’s trial 

testimony or the cautionary instructions. See Commonwealth v. 

Montalvo, 956 A.2d 926, 936 (Pa. 2008) (noting “the general rule that, in 

order to preserve a claim on appeal, a party must lodge a timely objection at 

trial.”); Commonwealth v. Shamsud–Din, 995 A.2d 1224, 1226 (Pa.

Super. 2010) (noting that a failure to object to a jury instruction constitutes 

a waiver of an error in the instruction). While Bauer objected to Corporal 

McDonald’s testimony regarding the information about the white KIA at the 

suppression hearing, see N.T., 8/17/15, at 5-6, Bauer’s claims on appeal are 

couched in trial court error and thus, are waived for his failure to lodge 

contemporaneous objections. See Commonwealth v. May, 887 A.2d 750, 

758 (Pa. 2005) (stating that “[t]o the extent the claims would sound in trial 
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court error, they are waived due to the absence of contemporaneous 

objections.”).2

In his third claim, Bauer contends that the evidence was insufficient to 

support his convictions of aggravated assault, simple assault, and REAP 

relating to Corporal McDonald. Brief for Appellant at 30, 33-34. Bauer 

argues that with regard to the aggravated assault and simple assault 

convictions, the Commonwealth failed to prove that he committed the crimes 

with the requisite mens rea. Id. at 31. Bauer asserts that his initial action 

of backing the Audi out of the parking spot did not demonstrate the requisite 

intent. Id. at 32. Bauer further claims that the Commonwealth failed to 

produce evidence that he was aware that Corporal McDonald had opened the 

 

2

In any event, even if Bauer properly preserved his claims, he would not be 

entitled to relief. Indeed, the trial court noted the following:

Here, Corporal McDonald’s testimony concerning possible drug 

activity[,] and what he believed to be a drug transaction[,] was 

offered to explain why he approached [Bauer’s] vehicle; it was 

not offered to prove that [Bauer] was involved in an illegal drug 

transaction. In fact, [Bauer] was not charged with any drug 

offenses. [Bauer’s] counsel did not object to this testimony, but 

even if he had, the testimony was admissible to explain the 

course of conduct taken by Corporal McDonald. Moreover, [the 

trial] court instructed the jury that this testimony had been 

permitted for the purpose of understanding why Corporal 

McDonald acted and how he got involved in this situation, and 

that there were no drug charges in this case, and that the jury 

was not to imply that [Bauer] was directly involved with a drug 

sale. [See N.T., 4/18/16, at 31-32.]

Trial Court Opinion, 1/4/17, at 5; see also Commonwealth v. Chmiel, 30 

A.3d 1111, 1147 (Pa. 2011) (noting that a jury is presumed to follow the 

instructions given by the trial court).
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passenger door, or that Bauer intended to harm Corporal McDonald. Id. at 

32-33. Bauer also argues that the evidence was insufficient to support his 

REAP conviction because there was no evidence presented that he had any 

intent to place Corporal McDonald “in danger of death or serious bodily 

injury.” Id. at 34.

Our standard of review is well-settled:

In reviewing the sufficiency of the evidence, we must determine 

whether the evidence admitted at trial, and all reasonable 

inferences drawn from that evidence, when viewed in the light 

most favorable to the Commonwealth as verdict winner, was 

sufficient to enable the fact finder to conclude that the 

Commonwealth established all of the elements of the offense 

beyond a reasonable doubt. The Commonwealth may sustain its 

burden by means of wholly circumstantial evidence. Further, the 

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

Commonwealth v. Sunealitis, 153 A.3d 414, 419 (Pa. Super. 2016) 

(citation omitted).

Relevantly, a person is guilty of aggravated assault where he 

“attempts to cause or intentionally or knowingly causes bodily injury to any 

of the officers, agents, employees or other persons enumerated in 

subsection (c), in the performance of duty[.]” 18 Pa.C.S.A. § 2702(a)(3); 

see also id. § 2702(c)(1) (noting that the officers referred to in subsection 

(a) include police officers). Bodily injury is defined as “[i]mpairment of 

physical condition or substantial pain.” Id. § 2301.
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A person is guilty of simple assault if he “attempts to cause or 

intentionally, knowingly or recklessly causes bodily injury to another[.]” Id.

§ 2701(a)(1).

The Commonwealth need not establish that the victim actually 

suffered bodily injury; rather, it is sufficient to support a 

conviction if the Commonwealth establishes an attempt to inflict 

bodily injury. This intent may be shown by circumstances which 

reasonably suggest that a defendant intended to cause injury.

To show an attempt to inflict bodily injury, it must be shown that 

the actor had a specific intent to cause bodily injury. A person 

acts intentionally with respect to a material element of an 

offense if it is his conscious object to engage in conduct of that 

nature or to cause such a result.

Commonwealth v. Klein, 795 A.2d 424, 428 (Pa. Super. 2002) (citation, 

brackets and quotation marks omitted).

Finally, a person is guilty of REAP “if he recklessly engages in conduct 

which places or may place another person in danger of death or serious 

bodily injury.” 18 Pa.C.S.A. § 2705. “The mens rea required for the crime 

of REAP, ‘recklessly,’ is defined as a conscious disregard of a known risk of 

death or great bodily harm to another person.” Commonwealth v. A.R.C., 

150 A.3d 53, 59 (Pa. Super. 2016); see also Commonwealth v. 

Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) (noting that acting in a 

reckless manner requires conscious action or inaction, which creates an 

unjustifiable and substantial risk of harm).

Corporal McDonald testified that after Bauer had crashed the Audi into 

Greenwald’s vehicle and parked the Audi, Corporal McDonald opened the 
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passenger door, leaned into the vehicle, made eye contact with Bauer, and 

ordered Bauer to put the vehicle in park and turn off the engine. N.T., 

4/18/16, at 15-16. In response, Bauer backed out of the parking spot at a 

high rate of speed, causing the passenger door to strike Corporal McDonald 

and pinning him between Bauer’s and Greenwald’s vehicles. Id. at 16-17. 

Corporal McDonald suffered minor bruising to his ribs and chest area as a 

result of the collision. Id. at 23.

Viewing the evidence in a light most favorable to the Commonwealth, 

Bauer was aware that the passenger door was open, Corporal McDonald was 

standing next to the Audi, and that the Audi would strike Corporal McDonald 

if Bauer reversed it. Thus, the evidence was sufficient to support the 

aggravated assault and simple assault convictions as we can infer that Bauer 

attempted to cause Corporal McDonald bodily injury. See Klein, 795 A.2d 

at 428 (stating that evidence was sufficient to support an attempt to cause 

bodily injury where appellant hit a voluntary fireman with his vehicle, backed 

up the vehicle and hit the fireman again before leaving the scene); 

Commonwealth v. Marti, 779 A.2d 1177, 1182 (Pa. Super. 2001) (noting 

that “a simple assault committed against a police officer in the performance 

of his duties would satisfy the elements of § 2702(a)(3).”) (citation 

omitted); see also Commonwealth v. Miller, 955 A.2d 419, 423 (Pa. 

Super. 2008) (stating that the evidence was sufficient to support the 

aggravated assault conviction where appellant drove at a high rate of speed, 
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disregarded pleas from a police officer to stop, and ignored traffic signals 

prior to colliding with two vehicles). 

Moreover, the evidence was sufficient to support the REAP conviction. 

Bauer’s action of hitting Corporal McDonald with his vehicle was intentional 

and committed with a conscious disregard of a risk of serious bodily injury. 

See Klein, 795 A.2d at 428 (holding that the evidence that appellant hit the 

victim with his vehicle two times was sufficient to support a REAP 

conviction). Based upon the foregoing, Bauer’s third claim is without merit.

In his fourth claim, Bauer contends that the evidence was insufficient 

to support his convictions of simple assault and REAP with regard to 

Greenwald. Brief for Appellant at 34. Bauer argues that Greenwald did not 

suffer any bodily injury as a result of Bauer striking her vehicle. Id. at 34-

35. Bauer asserts that he was involved in an accident with Greenwald, and 

that the mere striking of another vehicle does not demonstrate criminal 

intent. Id. at 36.

At trial, Corporal McDonald testified that when he initially approached 

Bauer’s Audi, Bauer put the Audi in reverse and immediately struck 

Greenwald’s vehicle. N.T., 4/18/16, at 14-15. Corporal McDonald stated 

that after Bauer pulled his vehicle back into the parking spot, he opened the 

passenger door of Bauer’s vehicle, and told Bauer to put the vehicle in park 

and turn off the engine. Id. at 15-16. Bauer then put the Audi in reverse 
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and again struck Greenwald’s vehicle, pinning Corporal McDonald between 

the vehicles. Id. at 16-17. 

Greenwald testified that while she was waiting to park her vehicle in 

the parking lot, Bauer’s vehicle hit her vehicle “very, very hard, very fast.” 

Id. at 51. Greenwald then stated that she saw Corporal McDonald standing 

next to Bauer’s vehicle, and Bauer pulled out of the parking spot and hit her 

vehicle. Id. 

Here, Bauer recognized that Greenwald’s vehicle was behind his 

vehicle when he initially backed out of the parking spot and hit Greenwald’s 

vehicle. Based upon Bauer’s action of backing out of the parking spot for a 

second time, despite the position of Greenwald’s vehicle, the open passenger 

door of his own vehicle, and Corporal McDonald’s admonishment to put the 

Audi in park, we can infer that the evidence demonstrated the requisite 

intent to support the simple assault and REAP convictions. See Klein, 795 

A.2d at 428 (holding that simple assault and REAP convictions were 

supported by the evidence where appellant intended to hit the victim with 

his vehicle two separate times); see also Miller, 955 A.2d at 423 (noting 

that a reckless motorist, who fails to heed pleas to stop his vehicle, acted 

with malice). While Greenwald did not suffer bodily injuries, neither simple 

assault nor REAP required such a finding to prove the elements of each 

crime in this case. See 18 Pa.C.S.A. §§ 2705; 2701(a)(1). Based upon the 

facts of this case, Bauer’s fourth claim is without merit.
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In his final three claims, Bauer challenges the discretionary aspects of 

his sentences. See Brief for Appellant at 36-40. 

“It is well-settled that, with regard to the discretionary aspects of 

sentencing, there is no automatic right to appeal.” Commonwealth v. 

Mastromino, 2 A.3d 581, 585 (Pa. Super. 2010).

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

We conduct a four-part analysis to determine: (1) whether the 

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 the 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).

* * *

The determination of what constitutes a substantial 

question must be evaluated on a case-by-case basis. 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) 

(quotation marks and some citations omitted).

Here, Bauer filed a timely Notice of Appeal, presented his claim in a 

Motion for Reconsideration of Sentence, and included a Rule 2119(f) 

Statement in his appellate brief. Bauer’s assertion that the trial court’s 

imposition of consecutive, rather than concurrent sentences, does not raise 
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a substantial question. See id. at 171 (stating that challenge to the trial 

court’s discretion to impose sentences consecutively or concurrently does 

not ordinarily raise a substantial question); see also id. at 171-72 (noting 

that “[t]he imposition of consecutive, rather than concurrent, sentences may 

raise a substantial question in only the most extreme circumstances, such as 

where the aggregate sentence is unduly harsh, considering the nature of the 

crimes and the length of imprisonment.”). Further, Bauer’s bald claim of 

excessiveness does not raise a substantial question. See Commonwealth 

v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013) (observing that a bald or 

generic assertion that a sentence is excessive does not, by itself, raise a 

substantial question justifying this Court’s review of the merits of the 

underlying claim).3 

Nevertheless, even if Bauer had presented a substantial question, we 

would determine that the sentencing court properly exercised its discretion 

in imposing the sentence. Our standard of review for challenges to 

discretionary aspects of sentencing is well settled: 

[s]entencing is vested in the discretion of the trial court, and 

will not be disturbed absent a manifest abuse of that discretion. 

 

3 Bauer also asserts that he has raised a substantial question based upon the 

fact that the trial court misconstrued the evidence underlying the resisting 

arrest conviction at sentencing, and imposed an excessive sentence. Brief 

for Appellant at 18. However, Bauer failed to raise this claim in his Rule 

1925(b) Concise Statement. See Commonwealth v. Dodge, 77 A.3d 

1263, 1268-69 (Pa. Super. 2013) (stating that “[i]n order to properly 

present a discretionary sentencing claim, a defendant is required to preserve 

the issue in either a post-sentence motion or at sentencing and in a courtordered Pa.R.A.P. 1925(b) concise statement.”).
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An abuse of discretion involves a sentence which was manifestly 

unreasonable, or which resulted from partiality, prejudice, bias 

or ill will. It is more than just an error in judgment. 

Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010) 

(citation omitted). 

Initially, contrary to Bauer’s implication, “[a]lthough Pennsylvania’s 

system stands for individualized sentencing, the court is not required to 

impose the ‘minimum possible’ confinement.” Moury, 992 A.2d at 171 

(citation omitted). Here, in imposing sentence,4the trial court reviewed a 

pre-sentencing investigation report. See N.T., 8/31/16, at 2, 8. Where the 

sentencing judge considered a pre-sentencing investigation report, it is 

presumed that they were aware of the all relevant sentencing factors and 

weighed all mitigating statutory factors. See Commonwealth v. Fowler, 

893 A.2d 758, 767 (Pa. Super. 2006); see also Commonwealth v. 

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (noting that the 

“sentencing judge can satisfy the requirement that reasons for imposing 

sentence be placed on the record by indicating that he or she has been 

informed by the pre-sentencing report; thus properly considering and 

weighing all relevant factors.”) (citation omitted). 

 

4 The trial court imposed standard range sentences for the crimes committed 

under no. 15-CR-442. See N.T., 8/31/16, at 9-11; see also Moury, 992 

A.2d at 171 (stating that “where a sentence is within the standard range of 

the guidelines, Pennsylvania law views the sentence as appropriate under 

the sentencing code.”). Further, the trial court imposed an aggravatedrange sentence for the disorderly conduct conviction under no. 15-CR-440. 

See N.T., 8/31/16, at 11.
J-S30032-17

- 19 -

Moreover, the trial court considered Bauer’s age, family history, prior 

criminal history, issues with drugs, prior participation in the state 

intermediate punishment program and a drug treatment center, 

rehabilitative needs, prior criminal history, and the nature and gravity of the 

crimes. See N.T., 8/31/16, at 3-8.5 Additionally, it was within the trial 

court’s discretion to impose some sentences concurrently and some 

sentences consecutively. See Commonwealth v. Prisk, 13 A.3d 526, 533 

(Pa. Super. 2011). Based upon the foregoing, Bauer’s sentencing claim 

would fail on the merits, and we discern no abuse of the sentencing court’s 

discretion in imposing the sentence. See Ventura, supra; Flower, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2017

 

5 Contrary to Bauer’s claim, the trial court acknowledged its mistake as to 

the underlying facts regarding the resisting arrest conviction. See N.T., 

8/31/16, at 10-11.