J-S03015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTONIO D. ARCHER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 679 WDA 2020

Appeal from the Judgment of Sentence Entered February 12, 2019

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

No(s): CP-26-CR-0001740-2018

BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED: MARCH 18, 2021

Appellant, Antonio D. Archer, appeals from the February 12, 2019 

Judgment of Sentence entered in the Fayette County Court of Common Pleas 

after a jury convicted Appellant of Terroristic Threats.1 Appellant challenges 

several of the trial court’s evidentiary rulings as well as the discretionary 

aspects of his sentence. Upon review, we affirm. 

PROCEDURAL AND FACTUAL HISTORY

The relevant factual and procedural history is as follows. On or around 

September 27, 2017, Fayette County Children and Youth Services (“CYS”)

caseworker Leigh Ann David, accompanied by college student Megan 

Robinson, went to Appellant’s home to serve a Dependency Petition on 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2706(a)(1).
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Appellant and his wife (“Wife”). In her capacity as a CYS caseworker, Ms. 

David had previously been to the home and met the family. When Ms. David 

arrived at the home, two Pit Bull dogs were hanging out an open window and 

barking. Wife came outside to meet Ms. David, and Ms. David served the 

Petition on Wife. Appellant came outside, stood on the porch with one Pit 

Bull by his side, screamed obscenities, directed Ms. David to leave his 

property, and threatened to sic his dog on Ms. David. Ms. David immediately 

left the property and contacted police, who subsequently arrested Appellant. 

The Commonwealth charged Appellant with two counts each of 

Aggravated Assault by Physical Menace, Recklessly Endangering Another 

Person (“REAP”), and Terroristic Threats.2

On February 5, 2019, after hearing testimony from Ms. David, 

Masontown Police Chief Joseph C. Ryan, and Appellant, a jury convicted 

Appellant of one count of Terroristic Threats.

3

 

On February 12, 2019, the trial court sentenced Appellant to a standard 

range sentence of six to twenty-four months’ incarceration. Appellant filed a 

timely Post-Sentence Motion for Modification of Sentence, averring that the 

trial court imposed a harsh, severe, and excessive sentence at the top of the 

standard range. The trial court denied the Motion on February 25, 2019.

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2 18 Pa.C.S. §§ 2702(a)(6), 2705, and 2706(a)(1), respectively.

3 Upon hearing an oral Motion from Appellant’s counsel, the trial court 

dismissed one count of Aggravated Assault against Ms. Robinson because she 

was not a CYS employee, which is an element of the offense. The jury 

acquitted Appellant of the remaining charges. 
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Appellant filed a Notice of Appeal on April 18, 2019, which this Court 

subsequently quashed as untimely on June 5, 2019. On June 19, 2020, this 

Court reinstated Appellant’s appeal rights nunc pro tunc after Appellant filed 

a Post-Conviction Relief Act Petition alleging ineffective assistance of counsel 

and a Motion to File Notice of Appeal Nunc Pro Tunc.

Appellant filed a timely appeal on July 9, 2020. Both Appellant and the 

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

ISSUES RAISED ON APPEAL

Appellant raises the following issues for our review:

1. Whether the court erred in failing to grant [counsel]’s objection 

on the grounds of relevancy to the Commonwealth’s question

to [CYS] caseworker, [Ms.] David: “How did you feel when you 

would hear these dogs or see these dogs?”

2. Whether the court erred in allowing [Ms.] David to testify as to 

why CYS was involved with [Appellant]’s family?

3. Whether the court erred in failing to grant [counsel]’s objection 

on the grounds of relevancy to the Commonwealth’s question 

to Appellant: “Did you ever have a confrontation with CYS?”

4. Whether the court erred in failing to grant [counsel]’s objection 

on the grounds of relevancy to the Commonwealth’s question 

to Appellant: “What was the purpose of you having two Pit 

Bulls?”

5. Did the court impose a harsh, severe, and manifestly 

unreasonable and excessive sentence in light of the 

circumstances surrounding the alleged incident?

Appellant’s Br. at 3.

Evidentiary Rulings
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In his first four issues, Appellant challenges several of the trial court’s 

evidentiary rulings, which overruled counsel’s relevancy objections to portions 

of Ms. David and Appellant’s testimony and allowed the jury to hear the 

testimony. The admission of evidence is within the discretion of the trial court. 

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015). “An abuse of 

discretion will not be found based on a mere error of judgment, but rather 

occurs where the court has reached a conclusion that overrides or misapplies 

the law, or where the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will.” Id. An abuse of discretion by 

the trial court, and a showing of resulting prejudice, constitutes reversible 

error. Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012). 

Instantly, Appellant avers that the trial court abused its discretion when 

it allowed the Commonwealth to present irrelevant testimony to the jury that 

had no probative value and was extremely prejudicial to Appellant. 

Appellant’s Br. at 7. Appellant argues that the Commonwealth’s question 

asking Ms. David how she felt when she saw the dogs intended to illicit 

sympathy from the jury and had no probative value. Id. at 10. Appellant 

contends that Ms. David’s testimony about why CYS was involved with 

Appellant’s family had no probative value and was prejudicial to Appellant, 

“paint[ing] Appellant as a bad person in the minds of the jury.” Id. Appellant 

also asserts that the Commonwealth’s question regarding whether he ever 

had a confrontation with CYS improperly implied that he had “some grudge” 

with CYS and lacked probative value. Id. at 11. Finally, Appellant argues 
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that the Commonwealth’s question asking Appellant what his purpose was in 

having two Pit Bulls lacked probative value and implied to the jury that 

Appellant had the dogs “for the purpose of terrifying other people with them, 

while ignoring all of the other reasons why a person might want to keep two 

[P]it [B]ulls.” Id. 

Preliminarily, we must set forth the elements of the crimes the 

Commonwealth charged Appellant with in order to evaluate whether the 

admitted testimony was relevant. As stated above, the Commonwealth 

charged Appellant with two counts each of Aggravated Assault by Physical 

Menace, REAP, and Terroristic Threats. A person is guilty of Aggravated 

Assault by Physical Menace if he attempts by physical menace to put a CYS 

employee, while in the performance of duty, in fear of imminent serious bodily 

injury. 18 Pa.C.S. § 2702(a)(6), (c)(35). A person commits the crime 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. § 2705. Finally, 

a person is guilty of Terroristic Threats if he communicates, either directly or 

indirectly, a threat to “commit any crime of violence with intent to terrorize 

another[.]” 18 Pa.C.S. § 2706(a)(1). 

The overriding principle in determining if the trial court should admit 

evidence involves “a weighing of the probative value versus prejudicial effect. 

We have held that the trial court must decide first if the evidence is relevant 

and, if so, whether its probative value outweighs its prejudicial effect.” 

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006). Generally, all 
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relevant evidence is admissible. Pa.R.E. 402. “Evidence is relevant if it 

logically tends to establish a material fact in the case, tends to make a fact at 

issue more or less probable, or supports a reasonable inference or 

presumption regarding the existence of a material fact.” Commonwealth v.

Minerd, 753 A.2d 225, 230 (Pa. 2000) (citation omitted); Pa.R.E. 401. 

However, relevant evidence may be excluded “if its probative value is 

outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” Pa.R.E. 403.

The trial court explained why all of the above-referenced testimony was 

relevant and probative:

Ms. David’s feelings when she heard and saw the dogs made a 

fact at issue more or less probable: whether [Appellant] used his 

dogs to indirectly communicate to others a threat to commit a 

crime of violence. 

This [c]ourt allowed Ms. David to testify as to why CYS was 

involved with the Defendant’s family, because the testimony was 

preliminary in nature and provided foundation: it established why 

she was where she was when she saw what she saw.

This [c]ourt overruled [counsel]’s objection on the grounds of 

relevance to the Commonwealth’s question to [Appellant]: “Did 

you ever have a confrontation with CYS?” [] because the question 

addressed [Appellant]’s state of mind at the time and therefore 

ended to establish a material fact in the case: whether [Appellant] 

intended to terrorize others.

This [c]ourt overruled [counsel]’s objection on the grounds of 

relevance to the Commonwealth’s question to [Appellant]: “What 

was the purpose of you having two [P]it [B]ulls?” [] because the 

question addressed an issue that was within the scope of the case. 

The [Appellant]’s purpose of owning two [P]it [B]ulls intended to 
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establish a material fact: whether [Appellant] owned two [P]it 

[B]ulls for the intended purpose of terrorizing others.

Trial Ct. Op., filed 10/20/20, at 2-3. 

We agree with the trial court that the testimony challenged by Appellant 

was relevant and probative. Upon review, we discern no abuse of discretion 

with the trial court’s conclusion that the testimony was admissible, or more 

probative than prejudicial. Accordingly, Appellant’s first four challenges fail.

Discretionary Aspects of Sentencing

In his fifth issue, Appellant avers that the trial court imposed a harsh, 

severe, and manifestly excessive sentence. Appellant’s Br. at 12. Appellant 

argues that the trial court should have sentenced him to a mitigated sentence 

because of the nature of the offense, the circumstances surrounding the 

offense, and the fact that being terrorized by two dogs is “very subjective 

based on the person.” Appellant’s Br. at 14. 

Appellant challenges the discretionary aspects of his sentence. 

Challenges to the discretionary aspects of sentencing are not automatically 

reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136, 

1144 (Pa. Super. 2001). Prior to reaching the merits of a discretionary 

sentencing issue, we must determine: (1) whether appellant has filed a timely 

notice of appeal; (2) whether the issue was properly preserved at sentencing 

or in a motion to reconsider and modify sentence; (3) whether appellant’s 

brief sufficiently addresses the challenge in a statement included pursuant to 

Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the 
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sentence appealed from is not appropriate under the Sentencing Code. 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

Appellant complied with the first two requirements, but did not include 

a separate Rule 2119(f) Statement in his Brief. The Commonwealth has not 

objected to this defect and, thus, we decline to find that the defect is fatal. 

Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010). We, thus, 

proceed to consider whether Appellant has raised a substantial question for 

our review.

Whether an appellant has raised a substantial question regarding 

discretionary sentencing is determined on a case-by-case basis. 

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

quotation marks omitted).

Appellant has not identified which provision of the Sentencing Code or 

fundamental norm underlying the sentencing process his sentence violates or 

offends. His argument is that the trial court did not properly weigh allegedly 

mitigating factors. Claims that the sentencing court did not adequately 

consider mitigating factors generally do not raise a substantial question. See 

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“This Court 

has held on numerous occasions that a claim of inadequate consideration of 
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mitigating factors does not raise a substantial question for our review.”

(citation omitted); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 

2014) (“[W]e have held that a claim that a court did not weigh the factors as 

an appellant wishes does not raise a substantial question.”). We conclude, 

therefore, that Appellant has failed to present a substantial question in 

challenging the discretionary aspects of his sentence and, thus, we lack 

jurisdiction to review his claim.

In conclusion, the trial court did not abuse its discretion when it deemed 

portions of testimony relevant and admissible. Moreover, because Appellant 

has failed to present a substantial question, this Court has no jurisdiction to 

review Appellant’s challenge to the discretionary aspects of his sentence.

Judgment of Sentence affirmed. 

Judge Murray joins the memorandum.

Judge Strassburger did not participate.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2021