J-S11032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD DALE FITZGERALD, JR.,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1180 WDA 2019

Appeal from the Judgment of Sentence Entered July 18, 2019

in the Court of Common Pleas of Fayette County 

Criminal Division at No(s): CP-26-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, simple 

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 emergency medical 

services with an unresponsive adult male in the area of 66 Dunlap Street in 

Uniontown, Pennsylvania. Upon arrival, Officer Field observed an 

approximately 35-year-old man, later identified as Fitzgerald, lying 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

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1 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), 5104, 5503(a)(1), 2709(a)(1).
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rub”2 on Fitzgerald, which prompted Fitzgerald to roll onto his stomach, 

produce a mixture of laughter and growling noises, and kick his feet. Officer 

Field stood up and stepped away from Fitzgerald. Fitzgerald 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 trunk, 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 did 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 following a jury trial

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, 

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2 Officer Field testified at trial that a “sternum 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 standard 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 had his blood tested for any substances.
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which the trial court denied. 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 simple 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 alleges 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 cigarette 
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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.

When considering a challenge to the sufficiency of the evidence, we 

determine

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 factfinder. 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 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 regarding involuntary intoxication is

Pennsylvania Suggested Standard Criminal Jury Instruction 8.308C, which,

by its text, only applies to driving under the influence offenses under 75 
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Pa.C.S.A. § 3802. See Pa.SSJI (Crim) 8.308C. As our research has 

disclosed no cases from this Court 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 

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4 Even if involuntary intoxication was a viable defense to the crimes of which

Fitzgerald was convicted, we would conclude that Fitzgerald’s claims lack 

merit. Involuntary intoxication is an affirmative defense, which 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 testimony 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 showing that he had 

ingested a mind-altering substance, or testimony from the third party that

the cigarette contained a mind-altering substance. The 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 judgment for that of the jury on issues of 

credibility....”).
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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 considered 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. 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.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

Here, Fitzgerald filed a timely Notice of Appeal 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 sentence 
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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 appeal 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 statement 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). Here, 

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 part of [Fitzgerald’s] 5 point prior record point score.” Brief for Appellant 

at 12. Fitzgerald directs us to the trial court’s statements at sentencing 
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relating to Fitzgerald’s prior juvenile delinquency adjudications and prior 

convictions. See N.T., 7/18/19, 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 sentencing.”).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—they 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.

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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 consider facts that are contained in 

the record, we find this claim waived. See Commonwealth v. Brown, 161 

A.3d 960, 968 (Pa. Super. 2017) (stating that “our review is limited to those 

facts which are contained in the certified record and what is not contained in 

the certified record does not exist for purposes of our review.” (quotation 

marks omitted)).
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Commonwealth 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 Code, 42 Pa.C.S.A. § 9721(b). 

See id. 

Here, our review of the record discloses 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-sentence 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 

considerations, 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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2020