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

v.
RONALD DALE FITZGERALD, JR. ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1180 WDA 2019 Appeal from the Judgment of Sentence Entered July 18, 2019 i n the Court of Common Pleas of Fayette County Criminal Division at No(s): CP

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- CR

- 0001696

- 2018 BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 09, 2020 Ronald Dale Fitzgerald, Jr. (“Fitzgerald”), appeals from the judgment of sentence entered following his convictions of aggravated assault, simp le assault, resisting arrest, disorderly conduct , and harassment

. 1 We affirm. On June 17, 2018, Uniontown Police Officer Jennifer Field (“Officer Field”) and three other officers were dispatched to assist em ergency medical services with an unresponsive adult male in the area of 66 Dunlap Stre et in Uniontown, Pennsylv ania. Upon arrival, Officer Field observed an approximately 35

- year - old man, late r identified as Fitzgerald, lyi ng on the ground unresponsive , and surrounded by a crowd of onlookers. Officer Field approached Fitzgerald, knelt down next to him, and attempted to rouse him with verbal and physical stimulation

. Officer Field performed a “ sternum

_________________ __________ ______ ____ _______ 1 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), 510 4, 5503(a)(1), 2709(a)(1).J

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rub” 2 on Fitzgerald, which prompted Fitzgerald to roll onto his stom ach, produce a mixture of laughter and growling noises, and kick his feet. Officer Field s tood up and stepped away from Fitzgerald

. F itzgerald suddenly sprang to his feet, lunged at Officer Field, and punched her in the face with a closed fist. The punch knocked Officer Field off

- balance , and caused her to fall into and strike a nearby tree t runk, then fall to the ground. As a result of the attack, Officer Field suffered bruising to her face and arm, and abrasions on her arm. The other officers instructed Fitzgerald to give them his hands, and attempted to restrain Fitzgerald. Fitzgerald di d not comply, and began flailing his arms and kicking his legs. The officers eventually gained control of Fitzgerald, with the use of two sets of handcuffs, and placed him under
arrest. 3 Fitzgerald was subsequently charged with, and follow ing a jury tria l found guilty of , the above

- mentioned offenses. The trial court sentenced Fitzgerald to an aggregate term of 36 to 72 months in prison , with credit for time served. Fitzgerald filed a post

- sentence Motion to modify his sentence,

_________________ __________ ______ ____ _______ 2 Officer Field testified at trial that a “stern um rub” consists of rubbing a closed fist on the unresponsive individual’s chest. See N.T., 7/10

- 11/19, at 12. She testified that a sternum rub is st andard procedure for assessing an unresponsive person ’s level of responsiveness

. See id. at 16.

3 The record indicates that Fitzgerald was transported by ambulance to the hospital, but is unclear whether Fitzgerald was treated by medical personnel, or ha d his blood tested for any substances.J

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which the trial court de nied. Fitzgerald filed a timely Notice of Appeal and a
court
- ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. On appeal, Fitzgerald raises the following questions for our review:
1. Whether the evidence was legally and factually sufficient to prove that [Fitzgerald] had the requisite intent to commit the crime of aggravated assault[?] 2. Whether the evidence was legally and factually sufficient to prove that [Fitzgerald] had the requisite intent to commit the crime of sim ple assault[?] 3. Whether the evidence was legally and factually sufficient to prove that [Fitzgerald] had the requisite intent to commit the crime of resisting arrest[?] 4. Whether the evidence was legally and factually sufficient to prove that [Fitzgerald] had the requisite intent to commit the crime of disorderly conduct[?] 5. Whether the trial court committed an abuse of discretion by sentencing [Fitzgerald] above the aggravated range[?] Brief for Appellant at 4. In Fitzgerald’s first four claims, he alle ges that the evidence was insufficient to prove that he committed the crimes of aggravated assault, simple assault, resisting arrest, and disorderly conduct

. See Brief for Appellant at 11. In all four claims, Fitzgerald argues that he could not form the requisite intent of each crime because he was involuntarily intoxicated at the time of the incident. Id. at 8

- 11. Fitzgerald claims that prior to the incident, he had smoked a cigarette which, unbeknownst to him, contained a mind

- altering substance. Id. at 8. According to Fitzgerald, the cigaretteJ

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was given to him by a third party ; Fitzgerald thought the cigarette was a normal tobacco cigarette ; and the third party did not tell him that the cigarette contained a mind

- altering substance

. Id.
W hen consid ering a challenge to the sufficiency of the evidence , we determine

w hether[,] 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 poss ibility 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 Commonwe alth 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 co nsidered. Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, or part or none of the evidence. Commonwealth v. Melvin , 103 A.3d 1, 39

- 40 (Pa. Super. 2014) (citation omitted). Here, Fitzgerald has failed to cite any legal precedent stating that involuntary intoxication is a cognizable defense in Pennsylvania. Indeed, the only legal support that Fitzgerald cites regard in g involuntary intoxication is Pennsylvania Suggested Standard Criminal J ury Instruction 8.308C, which , by its text , only applies to driving under the influence offenses under 75J

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Pa.C.S.A . § 3802. See Pa.SSJI (Crim) 8.308C. As our research has disclosed no cases from this C ourt or our Supreme Court recognizing the defense of involuntary intoxication for the crimes of which Fitzgerald was convicted , we are constrained to find that Fitzgerald’s first four claims lack
merit. 4 In his fifth claim, Fitzgerald alleges that the trial court abused its discretion in sentencing him above the aggravated range and in considering impermissible sentencing factors. See Brief for Appellant at 12

. Fitzgerald ’s claim challenges the discretionary aspects of his sentence. “Challenges to the discretionary aspects of sentencing do not entitle an

_________________ __________ ______ ____ _______ 4 Even if involuntary intoxication was a viable defense to the crimes of which F itzgerald was convicted , we would conclude that Fitzgerald’s claim s lack merit

. Involuntary intoxication is an affirmative defense, whic h Fitzgerald was required to prove by a preponderance of the evidence. See Commonwealth v. Collins , 810 A.2d 698, 701 ( Pa. Super. 2002) (stating that “ when a defense is asserted that relates to the defendant’s mental state or information that is peculiarly within the defendant’s own knowledge and control, the general rule is that the defendant has the burden of proving the defense by a preponderance of the evidence. ”)

. Here , the only evidence produced by Fitzgerald was his own self

- serving testim ony that he had smoked what he thought was a tobacco cigarette, which he received from a third party, and the next thing he remembered was waking up in the hospital. Fitzgerald presented no medical records show ing that he had ingested a mind

- altering subs tance, or testimony from the third party that the cigarette contained a mind

- altering substance. T he jury was instructed regarding involuntary intoxication, and found Fitzgerald guilty of each of the aforementioned charges

. See N.T., 7/10

- 11/19, at 61

- 65 ; see also Melvin , supra . The jury was free to assess Fitzgerald’s credibility, and we will not substitute our judgment for that of the jury. See Commonwealth v. Sanchez , 36 A.3d 24, 39 (Pa. Super. 2011) (stating that “this Court cannot substitute its ju dgment for that of the jury on issues of credibility ....”).J

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appellant to review as of right.” Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). “ Instead, such challenges are co nsidered petitions for allowance of appeal. ” Commonwealth v. Clemat , 218 A.3d 944, 959 ( Pa. Super. 2019)

. Prior to reaching the merits of a discretionary sentencing issue, [this Court conducts] a four

- part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 21 19(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 w hich underlie the sentencing process. Moury , 992 A.2d at 170 (quotation marks and some citations omitted). Here, Fitzgerald filed a timely Notice of Appe al and raised his sentencing claim in a post

- sentence Motion

. However, Fitzgerald failed to include a Rule 2119(f) Statement in his brief , and fails to make any legal argument , or cite any relevant case law in support, that his claim violates a specific provision of the Sentencing Code or a particular fundamental norm underlying the sentencing process

. See Pa.R.A.P. 2119 (f) (stating, in part, that “[a] n appellant who challenges the discretionary aspects of a sentenceJ

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in a criminal matter shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of app eal with respect to the discretionary aspects of a sentence. ” ); Commonwealth v. Sauers , 159 A.3d 1, 16 ( Pa. Super. 2017) ( denying an appellant’s petition for allowance to appeal the discretionary aspects of his sentence where the appellant’s
concise statem ent failed to “ articulate the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing
process. ”). Nevertheless, this Court has overlooked an appellant’s failure to comply with Rule 2119(f) where the appellee does not object to the omission and a substantial question is evidenced from the appellant’s brief. See Commonwealth v. Kneller , 999 A.2d 608, 614 (Pa. Super. 2010). He re, the Commonwealth did not object to Fitzgerald’s omission , and Fitzgerald’s claim that the trial court considered impermissible sentencing factors raises a substantial question. Commonwealth v. P.L.S. , 894 A.2d 120, 127 (Pa. Super. 2006). Therefore, will address the merits of his claim

. Fitzgerald alleges that the trial court abused its discretion by sentencing him above the aggravated guideline range , and by improperly considering “previous adjudications and previous convictions that don’t make
up p art of [Fitzgerald’s] 5 po int prior record point score.” Brief for A ppellant at 12. Fitzgerald directs us to the trial court’s statements at sentencingJ

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relating to Fitzgerald’s prior juvenile delinquency adjudications and prior
convictions

. See N.T., 7/1 8/19, at 3

- 9. Initially , the trial court was free to consider Fitzgerald’s prior juvenile adjudications in making its sentence. See 204 Pa. Code § 303.6(c)(2) (providing the guidelines for the inclusion of a prior juvenile adjudication in the calculation of a prior record score, and stating that “[n]othing in this section shall prevent the court from considering lapsed prior adjudications at the time of sentenc ing.”). 5 Additionally, although the sentencing guidelines are an important factor in sentencing, they are but only one factor when determining an individualized sentence: The guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors

— t hey are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence.

_________________ __________ ______ ____ _______ 5 To the extent that Fitzgerald challenges the trial court’s consideration of “prior convictions” that were not included in Fitzgerald’s prior record score, the record is unclear as to what , if any, prior convictions the trial court considered that were not included in the prior record score. See N.T., 7/18/19, at 3

- 9. Because we can only c onsider facts that are contained in the record, we find this claim waived

. See Commonwealth v. Brown , 161 A.3 d 960, 968 ( Pa. Super. 2017) (stating that “ our review is limited to those facts which are co ntained in the certified record and what is not contained in the certified record does not ex ist for purposes of our review.” (quotation marks omitted)).J

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Commonwea lth v. Holiday , 954 A.2d 6, 13 (Pa. Super. 2008) (brackets omitted). Therefore, our inquiry is whether the trial court appropriately applied the factors set forth in the Sentencing C ode, 42 Pa.C.S.A. § 9721(b).
See i d. Here, our review of the record di scloses that the trial court properly considered all of the statutory factors before sentencing Fitzgerald. See N.T., 7/18/19, at 3

- 9 (wherein the trial court addressed the facts of the case, the sentencing guidelines, Fitzgerald’s prior record score, and Fitzgerald’s statements made at sentencing); Commonwealth v. McClendon , 589 A.2d 706, 712 (Pa. Super. 1991) (setting forth the factors that a trial court should consider when sentencing a defendant). Moreover, the trial court was informed by a pre

- senten ce investigation report. See N.T., 7/18/19, at 3

- 9; Commonwealth v. Downing , 990 A.2d 788, 794 (stating that “where the trial court is informed by a pre

- sentence report, it is presumed that the court is aware of all appropriate sentencing factors and

cons iderations, and that where the court has been so informed, its discretion should not be disturbed.”). Accordingly, Fitzgerald’s discretionary sentencing claim fails. Judgment of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/9/2020