J-S05007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALBERT LABOY ARROYO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 527 MDA 2019

Appeal from the Judgment of Sentence Entered January 10, 2019

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0004471-2018

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED MAY 21, 2020

Appellant, Albert Laboy Arroyo, appeals from the judgment of sentence 

entered following his conviction of aggravated assault.1 We affirm.

The trial court summarized the history of this case as follows:

Carlos Lara, [Appellant’s] next-door neighbor, testified that 

on August 4, 2018 at approximately 6:00 p.m., he was sitting on 

his porch playing music. [Bench Trial, January 10, 2019, Notes of 

Testimony, pp. 8-10]. He had just come home from work and had 

consumed a couple of beers. [N.T., 1-10-19, p. 20]. [Appellant] 

started to play his own music next door, and the two men 

exchanged words. Mr. Lara testified that [Appellant] told him to 

“get in the street” so that the two men could fight physically. Mr. 

Lara suggested they go inside to fight, so he went down the stairs 

and turned down a shared walkway to open his door, and at that 

point felt something hit his head from behind. [N.T., 1-10-19, pp. 

11-13]. Mr. Lara described his injury as feeling very “hot” and 

painful, and he tried to stop the bleeding with a towel. Prior to 

being struck, he recalled [Appellant] telling [Appellant’s] brother, 

who was also present, that “with this hit I’m gonna leave him 

____________________________________________

1 18 Pa.C.S. § 2702(a)(1).
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blind.” [N.T., 1-10-19, p. 33]. Mr. Lara was taken by ambulance 

to the hospital, where he received staples and stitches. He does 

not recall losing consciousness, but felt very weak and dizzy. Mr. 

Lara was out of work for approximately one month and testified 

that his vision is still blurry. [N.T., 1-10-19, pp. 12-18, 23].

Officer Stephen Marte of the Harrisburg City Police 

Department testified that when he arrived at Mr. Lara’s residence 

on the evening in question, the ambulance was already on 

location. He observed Mr. Lara getting loaded into the ambulance 

and there was a pool of blood on the porch and a towel around 

Mr. Lara’s head with a lot of blood on it. [N.T., 1-10-19, p. 35-

36]. He also noted a blood trail in the alleyway. [N.T., 1-10-19, 

p. 38]. Officer Marte spent a very short time with Mr. Lara before 

he was taken to the hospital, and was able to question him about 

who did this. Mr. Lara responded that it was his neighbor. Officer 

Marte knocked on [Appellant’s] door with no answer, and 

observed a broken piece of what looked like a cane, which he left 

at the scene as it had no blood on it. [N.T., 1-10-19, p. 38]. When 

Officer Marte arrived at the hospital, Mr. Lara was in bed, was not 

able to speak, and was wearing a neck brace and a wrap around 

his head. |N.T., 1-10-19, p. 39].

Officer Marte called [Appellant’s] residence and identified 

himself as an officer investigating a potential assault, and that he 

would like to speak to him. [Appellant] agreed to talk to him and 

they met on [Appellant’s] porch. Officer Marte Mirandized him 

and asked if he was still willing to talk. [Appellant] explained that 

he was defending his little brother on the evening in question -

that Mr. Lara was insulting his brother and an argument ensued. 

[Appellant] admitted to Officer Marte that he picked up a stick and 

struck Mr. Lara with it. [N.T., 1-10-19, pp. 41-42]. [Appellant] 

also claimed to have gotten rid of the stick. [N.T., 1-10-19, p. 

42]. Officer Marte observed photographs (Commonwealth’s 

exhibits 1 through 16) and testified that they reflected an accurate 

depiction of the injuries sustained to Mr. Lara’s head. [N.T., 1-

10-19, pp. 47-48].

[Appellant] testified at trial, and denied having been 

involved in the assault. Specifically, he stated that on the day in 

question he had been in the hospital all day, where he was being 

treated for dehydration. He got home at around 6:30 and, while 

his mom was preparing dinner, they heard an argument outside. 

Upon stepping outside, [Appellant] saw ... Mr. Lara laying on the 
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floor.[2] [Appellant] testified that they tried picking him up, but 

he started screaming so they let him go and Mr. Lara left. [N.T., 

1-10-19, pp. 51-52]. [Appellant] stated that Officer Marte 

contacted him about his next-door neighbor and he agreed to 

meet with him. [Appellant] testified that he told Officer Marte that 

some argument went down with his next door neighbor and, 

before anything else was said, Officer Marte put handcuffs on him 

and told him it was for the safety of both of them. [Appellant] 

said he was booked after that and was never Mirandized. [N.T., 

1-10-19, pp. 53-55].

Trial Court Opinion, 6/25/19, at 1-3.

In an information filed on November 8, 2018, Appellant was charged 

with one count of aggravated assault. On January 10, 2019, at the conclusion 

of a nonjury trial, Appellant was convicted of the sole criminal charge, and the 

trial court immediately sentenced Appellant to serve a term of incarceration 

of eight to twenty years. Appellant filed a timely post-sentence motion 

challenging the discretionary aspects of sentencing, which was denied on 

March 7, 2019. This timely appeal followed. Both Appellant and the trial court 

complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

I. WAS NOT THE EVIDENCE INSUFFICIENT TO SUSTAIN A 

CONVICTION FOR AGGRAVATED ASSAULT UNDER 18 Pa.C.S. 

§2702(a)(1) WHEN THE COMPLAINANT DID NOT SUFFER 

SERIOUS BODILY INJURY AND WHEN THE EVIDENCE WAS 

INSUFFICIENT TO SHOW THAT [APPELLANT] ATTEMPTED TO 

CAUSE SERIOUS BODILY INJURY?

II. DID NOT THE COURT ABUSE ITS DISCRETION IN 

IMPOSING A JAIL SENTENCE OF 8 YEARS TO 20 YEARS BECAUSE:

____________________________________________

2 Contrary to his confession to the police, Appellant alleged that Mr. Lara had 

fallen in a drunken stupor, which caused his injuries. N.T., 1/10/19, at 52.
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(A) THE COURT IMPROPERLY APPLIED THE “DEADLYWEAPON-USED” ENHANCEMENT OF THE SENTENCING 

GUIDELINES AND IMPROPERLY ASSIGNED AN OFFENSE GRAVITY 

SCORE OF 11; AND

(B) THE IMPOSITION OF A SENTENCE OF 8 TO 20 YEARS 

WAS CLEARLY UNREASONABLE, SO MANIFESTLY EXCESSIVE AS 

TO CONSTITUTE AN ABUSE OF DISCRETION, AND INCONSISTENT 

WITH THE PROTECTION OF THE PUBLIC, THE GRAVITY OF THE 

OFFENSES, AND [APPELLANT’S] REHABILITATIVE NEEDS?

Appellant’s Brief at 5 (capitalization in original).

Appellant first argues that there was insufficient evidence to support his 

conviction of aggravated assault. Appellant’s Brief at 19-31. Initially, 

Appellant contends that the Commonwealth failed to present evidence that 

the complainant sustained serious bodily injury. Id. at 22-29. Appellant 

claims that the evidence was “at most” sufficient to prove that he caused 

“bodily injury.” Id. at 22. In addition, Appellant asserts that the 

Commonwealth failed to establish that Appellant attempted to cause serious 

bodily injury to the victim. Id. at 29-31.

Our standard of review is well established:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable 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 
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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, part or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

Aggravated assault is defined in the crimes code, in relevant part, as 

follows:

§ 2702. Aggravated assault.

(a) Offense defined. —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[.]

18 Pa.C.S. § 2702(a)(1). Serious bodily injury is defined as “bodily injury 

which creates a substantial risk of death or which causes serious, permanent 

disfigurement, or protracted loss or impairment of the function of any 

bodily member or organ.” 18 Pa.C.S. § 2301 (emphases added).

In determining that Appellant’s challenge to the sufficiency of the 

evidence lacked merit, the trial court offered the following conclusion:

As recognized by the [trial court as] fact-finder, Mr. Lara was the 

victim of a surprise blow to the head from behind, by an 

instrument that caused serious bodily injury. [Mr. Lara’s] bleeding 

was excessive, he needed staples in his head, and his testimony 

reflects on-going issues with his vision. Viewing the evidence in 

the light most favorable to the Commonwealth, there was 

sufficient evidence of record to sustain [Appellant’s] conviction for 

aggravated assault.
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Trial Court Opinion, 6/25/19, at 7.

Our review of the record reflects that Mr. Lara testified that during an 

altercation with Appellant, he was struck on the head from behind. 

N.T.,1/10/19, at 12-14. Mr. Lara explained that he was taken to the hospital 

by ambulance, where he received staples and stitches to the crown of his 

head. Id. at 15-16. In addition, Mr. Lara stated at trial that his vision remains

blurry. Id. at 15.

Under the totality of the circumstances, the evidence presented at the 

trial on January 10, 2019, viewed in the light most favorable to the 

Commonwealth as the verdict winner, established that Mr. Lara was struck on 

the head on August 4, 2018, and required medical attention. At Appellant’s 

trial five months later, Mr. Lara expressed that his vision remains blurry. This 

supports the fact finder’s conclusion that Mr. Lara has suffered a protracted 

loss or impairment of the function of any bodily member or organ, which 

satisfies the definition of a serious bodily injury beyond a reasonable doubt. 

18 Pa.C.S. § 2301. Hence, Appellant’s contrary claim fails.

In light of the fact that the Commonwealth established that Mr. Lara 

suffered a serious bodily injury, we need not address Appellant’s alternate 

claim that the Commonwealth failed to prove that Appellant attempted to 

cause serious bodily injury to Mr. Lara. See Appellant’s Brief at 29-31. 

Accordingly, Appellant’s claim that the Commonwealth failed to present 

sufficient evidence to support his conviction of aggravated assault lacks merit.
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In his second issue, Appellant argues that the trial court abused its 

discretion in imposing his sentence. Appellant’s Brief at 32-36. Appellant

presents a two-fold claim. First, he contends that the trial court improperly 

applied the deadly-weapon-used enhancement and incorrectly calculated his 

offense gravity score.3 Id. at 32-34. Next, Appellant asserts that his sentence 

was manifestly excessive and inconsistent with sentencing factors. Id. at 34-

36.

“A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to pursue such a 

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. 

Super. 2004) (citation omitted). An appellant challenging the discretionary 

aspects of his sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

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3 We observe that a “misapplication of the Sentencing Guidelines constitutes 

a challenge to the discretionary aspects of sentence.” Commonwealth v. 

Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en banc). Thus, this Court has 

regarded challenges to the application of the deadly weapon enhancement in 

the Sentencing Guidelines as challenges to the discretionary aspects of the 

sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 915-916 (Pa. 

Super. 2010) (treating allegation that the trial court erred in applying the 

deadly weapon enhancement as a challenge to the discretionary aspects of 

sentencing). Likewise, the calculation of an offense gravity score implicates

the discretionary aspects of sentencing. Commonwealth v. Sunealitis, 153 

A.3d 414, 421 (Pa. Super. 2016) (quoting Archer, 722 A.2d at 210-211) 

(addressing claim that the trial court erred in calculating offense gravity score 

as a challenge to the discretionary aspects of sentencing). Accordingly, a 

challenge to the application of the deadly weapon enhancement and a 

challenge to the calculation of the offense gravity score cannot be appealed 

as a matter of right and are subject to waiver. Archer, 722 A.2d at 210-211.
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[W]e conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, see 

Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, 

Pa.R.A.P. 2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

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

omitted; brackets in original).

Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues 

not raised in the lower court are waived and cannot be raised for the first time 

on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects of a 

sentence are generally waived if they are not raised at the sentencing hearing 

or in a motion to modify the sentence imposed. Moury, 992 A.2d at 170 

(citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)). 

In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we 

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d 

790 (Pa. Super. 1995), wherein this Court observed that, although 

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions 

as optional, the rule expressly provides that only issues raised in the trial court 

will be deemed preserved for appellate review. Applying this principle, the 

Reeves Court held that an objection to a discretionary aspect of a sentence 

is waived if not raised in a post-sentence motion or during the sentencing 

proceedings. Reeves, 778 A.2d at 692-693; see also Commonwealth v. 

Parker, 847 A.2d 745, 752 (Pa. Super. 2004) (holding challenge to 
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discretionary aspect of sentence was waived because appellant did not object 

at sentencing hearing or file post-sentence motion).

Moreover, concerning the fourth part of our analysis, the question of 

whether a particular issue constitutes a substantial question about the 

appropriateness of sentence is a question to be evaluated on a case-by-case 

basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001). 

As to what constitutes a substantial question, this Court does not accept bald 

assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 

1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the 

sentencing court’s actions violated the sentencing code. Id.

Herein, the first requirement of the four-part test is met because 

Appellant brought a timely appeal. However, our review of the record reflects 

that Appellant did not fully meet the second requirement because he did not 

raise all of the instant challenges to the discretionary aspects of his sentence 

in a post-sentence motion or at the time of sentencing. Specifically, in his 

post-sentence motion, Appellant sought only a modification of the sentence, 

which he claimed was excessive and unreasonable in light of his rehabilitative 

needs.4 Post-Sentence Motion, 1/22/19 at 2. Likewise, Appellant challenged 

____________________________________________

4

In his post-sentence motion, Appellant presented the following argument in 

an effort to achieve reconsideration of his sentence:

9. Although the sentence was within the sentencing guidelines, a 

court may abuse its discretion in imposing such sentence if “the 
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the application of the deadly weapon used enhancement at the time of 

sentencing. N.T. (Sentencing), 1/10/19, at 2. Because these are the only 

issues raised in the trial court, they are the only claims preserved for our 

review. To the extent that Appellant presents another issue attempting to 

challenge the discretionary aspect of sentencing, i.e. the calculation of his 

offense gravity score, such claim is waived due to Appellant’s failure to present 

it at the time of sentencing or in his post-sentence motion. Reeves, 778 A.2d 

at 692-693. Thus, Appellant met the second part of the test only with regard 

to his claims that the trial court abused its discretion in applying the deadly 

weapon enhancement and in fashioning an excessive and unreasonable 

sentence in light of his rehabilitative needs.

With regard to the third requirement, we observe that Appellant 

included in his appellate brief the necessary concise statement of the reasons 

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, 

we next determine whether Appellant raises a substantial question requiring 

____________________________________________

case involves circumstances where the application of the 

guidelines would be clearly unreasonable.” 42 Pa.C.S. 

§9781(c)(2), [Appellant’s] sentence was excessive and 

unreasonable and constitutes too severe a punishment in light of 

the rehabilitative needs of [Appellant]. The punitive measures 

inherent in the sentencing scheme could have been accomplished 

with a lesser sentence.

Post-Sentence Motion, 1/22/19, at 2.
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us to review the discretionary aspects of the sentence imposed by the trial 

court.

In his Rule 2119(f) statement, Appellant argues that the trial court 

abused its discretion by applying the deadly weapon used enhancement. 

Appellant’s Brief at 15-16. We have stated that a challenge to the application 

of the deadly weapon enhancement presents a substantial question. 

Commonwealth v. Raybuck, 915 A.2d 125, 127 (Pa. Super. 2006). In 

addition, Appellant contends the trial court abused its discretion by failing to 

follow the requirements of the Sentencing Code, 42 Pa.C.S. § 9721(b),5 as it 

allegedly ignored the general principle that the sentence imposed should call 

for confinement that is consistent with the protection of the public, the gravity 

of the offense as it relates to the impact on the life of the victim and on the 

community, and the rehabilitative needs of the defendant. Appellant’s Brief 

at 15. We conclude that in this instance, Appellant has raised a substantial 

question. See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 

2006) (concluding that the appellant raised a substantial question where it 

was alleged that the trial court failed to consider the factors set forth in 42 

Pa.C.S. § 9721(b)). Therefore, because Appellant raises substantial questions 

in these two claims, we will address them on appeal.

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5 We note that the factors to be considered under 42 Pa.C.S. § 9721(b) include 

the protection of the public, gravity of offense in relation to impact on victim 

and community, and rehabilitative needs of the defendant.
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It is undisputed that sentencing is a matter vested in the sound 

discretion of the sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. Fullin, 892 A.2d at 847. In 

this context, an abuse of discretion is not shown merely by an error in 

judgment. Id. Rather, the appellant must establish, by reference to the 

record, that the sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a 

manifestly unreasonable decision. Id.

Indeed, the sentencing judge has broad discretion in determining the 

proper penalty, and this Court accords the sentencing court great deference, 

as it is the sentencing court that is in the best position to view the defendant’s 

character, displays of remorse, defiance, or indifference, and the overall effect 

and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 

2007) (quotations and citations omitted).6 As previously stated, when 

____________________________________________

6 The Walls Court instructed the following:

In making this “unreasonableness” inquiry, the General Assembly 

has set forth four factors that an appellate court is to consider:

(d) Review of the record.—In reviewing the record the appellate 

court shall have regard for:

(1) The nature of the circumstances of the offense and 

the history and characteristics of the defendant.
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imposing a sentence, the sentencing court must consider “the protection of 

the public, the gravity of the offense as it relates to the impact on the life of 

the victim and on the community, and the rehabilitative needs of the 

defendant.” 42 Pa.C.S. § 9721(b). As we have stated, “a court is required to 

consider the particular circumstances of the offense and the character of the 

defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). 

“In particular, the court should refer to the defendant’s prior criminal record, 

his age, personal characteristics and his potential for rehabilitation.” Id.

The following is the applicable enhancement as contained in the 

sentencing guidelines:

§ 303.10. Guideline sentence recommendations: 

enhancements 

(a) Deadly Weapon Enhancement.

* * *

(2) When the court determines that the offender used 

a deadly weapon during the commission of the current 

conviction offense, the court shall consider the 

DWE/Used Matrix (§ 303.18). An offender has used a 

deadly weapon if any of the following were employed 

____________________________________________

(2) The opportunity of the sentencing court to observe 

the defendant, including any pre-sentence 

investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Walls, 926 A.2d at 963.
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by the offender in a way that threatened or injured 

another individual:

* * *

(iii) Any device, implement, or 

instrumentality capable of producing 

death or serious bodily injury.

204 Pa.Code § 303.10(a)(2). In addition, a deadly weapon is defined as 

“[a]ny ... device or instrumentality which, in the manner in which it is used or 

intended to be used, is calculated or likely to produce death or serious bodily 

injury.” 18 Pa.C.S. § 2301. Moreover, we have stated that “[i]tems not 

normally considered deadly weapons can take on such status based upon their 

use under the circumstances.” Commonwealth v. Rhoades, 8 A.3d 912, 

917 (Pa. Super. 2010).

Before the deadly weapon enhancement can be applied to a guideline 

sentence, the sentencing judge must first determine whether the offender 

used a deadly weapon during the commission of the conviction offense. 204 

Pa.Code § 303.10(a)(2). See also 204 Pa.Code § 303.9(b). For purposes of 

the deadly weapon enhancement, the term “used” is defined to mean that the 

weapon was “employed by the offender in a way that threatened or injured 

another individual.” 204 Pa.Code § 303.10(a)(2). Thus, under section 

303.10(a)(2), when the trial court determines that the offender used a 

weapon during the commission of the offense, the guideline applies if the 

offender used the weapon in a way that threatened or injured another 

individual.
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With regard to his claim that the deadly weapon used enhancement was 

not applicable, Appellant again argues “there was insufficient evidence for the 

court to apply the [enhancement].” Appellant’s Brief at 32. Specifically, 

Appellant contends “the evidence was insufficient to prove that [Mr. Lara] 

suffered ‘serious bodily injury’ as defined in 18 Pa.C.S. § 2301. A finding that 

there was no actual infliction of a ‘serious bodily injury’ ... negates application 

of the Deadly Weapon (Used) Enhancement.” Id. at 33.

As discussed in our disposition of Appellant’s first issue, we conclude 

that Mr. Lara suffered a serious bodily injury when he was struck on the head 

by Appellant. This is in harmony with the trial court’s determination that 

Appellant used a stick in a way that caused serious bodily injury, and the 

deadly weapon used enhancement applies. Thus, the trial court did not abuse 

its discretion when it employed the deadly weapon used enhancement of the 

sentencing guidelines. Consequently, Appellant’s contrary claim lacks merit.

Appellant also argues that the trial court abused its discretion in 

imposing an excessive sentence. Appellant’s Brief at 34-36. Appellant asserts 

that “the court focused solely on the nature of the criminal conduct and the 

need to protect others[.]” Id. at 35.

As we previously stated, it is undisputed that sentencing is a matter 

vested in the sound discretion of the sentencing judge, and a sentence will 

not be disturbed on appeal absent a manifest abuse of discretion. Fullin, 892 

A.2d at 847. Again, the appellant must establish, by reference to the record, 
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that the sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a 

manifestly unreasonable decision. Id. Appellate review with respect to a 

sentence within the guidelines is whether the sentence is “clearly 

unreasonable.” 42 Pa.C.S. § 9781(c)(2). In addition, we observe that the 

Sentencing Guidelines, applying the “deadly weapon used” matrix, reflect that 

an offense gravity score of eleven and a prior record score of five suggest a 

minimum sentence of incarceration of ninety to 108 months. 204 Pa.Code § 

303.17(b). Instantly, Appellant’s minimum sentence is ninety-six months, 

which is within the standard suggested range.

Our review of the record reflects that, at the conclusion of his nonjury 

trial, Appellant elected to proceed immediately to sentencing, as reflected in 

the following discussion:

THE COURT: ... Now, when do you want to schedule sentencing?

[ASSISTANT DISTRICT ATTORNEY]: Your Honor, I’m prepared to 

move forward to sentencing. I don’t know about [defense 

counsel].

[DEFENSE COUNSEL]: Your Honor, we may want - - may I have 

time to confer with my client, please?

THE COURT: Sure. I mean, I can order a PSI if you want.

[DEFENSE COUNSEL]: Yeah, we may.

THE COURT: Whatever you want to do.

[DEFENSE COUNSEL]: Thank you. Your Honor, [Appellant] has 

asked that we proceed with sentencing right away.
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THE COURT: All right. Come on up.

N.T., 1/10/19, at 57-58.

Appellant then attempted to challenge the application of the deadly 

weapon enhancement. N.T. (Sentencing), 1/10/19, at 3. The trial court then 

addressed Appellant’s claim by recounting the facts of the assault and the 

harm perpetrated upon Mr. Lara. Id. at 4. The trial court concluded:

We saw the injuries and the damage that was done. That 

also, then, equates to the mechanism in which it was done and 

the indifference to human life. A striking of the head in such a 

manner that it was, we look at the relative difference also in the 

height, weight, and size and fortitude of the two individuals, and 

actually even noting that he was -- that the victim was in a bit of 

an intoxicated state weakens him even further in this 

circumstance. So, yeah, I do believe that in fact you have made 

out your deadly weapon enhancement.

Id. Hence, the trial court was aware of the particular facts of the crime and 

the gravity of the offense. However, we also observe that the trial court was 

sitting as the finder of fact and had just completed hearing the evidence in 

this one-day trial and rendered its verdict. Accordingly, the trial court heard 

Appellant’s testimony offered in his defense immediately before rendering the 

verdict. N.T., 1/10/19, at 51-57. Specifically, the trial court was apprised of 

Appellant’s age and his history with Mr. Lara, who was his neighbor. Id. at 

51-52. The trial court was also made aware that Appellant had been in the 

hospital the day of the incident suffering from dehydration. Id. In addition, 

Appellant alluded to the fact that he has a criminal history. Id. at 53.

During cross-examination, Appellant offered the following testimony:
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Q. [Appellant], you do live next to Mr. Lara, correct?

A. Yeah. That’s my home plan, yeah.

Q. And you lived there for a while, correct?

A. No. I just got — I just got out of jail a week before that.

N.T., 1/10/19, at 54.

With regard to the incident, contrary to his confession to police, 

Appellant alleged that Mr. Lara had fallen down in a drunken stupor, which 

caused his injuries. Id. at 52. Appellant made the following comments about 

the incident:

A. ... That’s — like I said, that’s not the first time. It happened a 

lot of time[s]. We see that victim laying down. We try and pick 

him up. He, like, nah, nah, nah. Start screaming. So we just left 

him there, give up. Because every time I try to help, he just 

screaming, keep screaming. So I just, look, I’m just goin’ to let 

him go, and bounce.

Q. So you just left?

A. I just left.

* * *

Q. So the victim just had these injuries, this bloody mess, and 

you never called the ambulance or anything, correct?

A. Correct.

Id. at 56-57.

This testimony, offered immediately prior to the verdict and sentencing, 

granted the trial court the ability to understand the circumstances of the 

offense and the history and characteristics of Appellant, and is reflective of 
J-S05007-20

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Appellant’s character and need for rehabilitation. In light of these facts 

presented to the trial court, we cannot conclude that the trial court abused its 

discretion in fashioning a minimum sentence within the Sentencing Guidelines, 

or that the sentence was clearly unreasonable. Hence, Appellant’s claim lacks 

merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/21/2020