J-S28008-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LAMARR JONES,

Appellant No. 819 EDA 2015

Appeal from the Judgment of Sentence January 20, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008032-2013

BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 15, 2016

Lamarr Jones appeals from the judgment of sentence of seven to 

fourteen years of incarceration followed by six years of probation that the 

trial court imposed after a jury convicted Appellant of aggravated assault 

and possession of an instrument of crime. We affirm. 

The proof underlying these convictions was as follows. On February 

18, 2013, Appellant made arrangements with the victim, Walter Jackson, to 

go to a local gym in Philadelphia. The two men agreed to meet at the home 

of the girlfriend of Appellant's brother. When Mr. Jackson arrived at the 

designated location, Appellant was already there, and wearing thick rubber 

gloves fastened to his wrists with masking tape. After the men conversed 

briefly, Mr. Jackson said he was leaving for the gym, but Appellant stopped 
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him. Appellant had heard rumors that Mr. Jackson engaged in sexual 

relations with Appellant’s former wife, accused Mr. Jackson of that conduct, 

and said that he was going to kill Mr. Jackson. 

Mr. Jackson denied the allegations and started to leave the residence. 

Appellant retrieved a metal baseball bat and began to swing it at the victim 

while the victim attempted to call his aunt, who was a police officer. 

Appellant shattered the cell phone with the bat. Mr. Jackson ran, and he 

and his attacker went into the kitchen, where Appellant threw a pot of 

boiling oil at Mr. Jackson. Mr. Jackson ducked so that his face was not 

struck by that liquid, but the oil engulfed Mr. Jackson’s back, neck, and 

arms, and it ignited his shirt. As Mr. Jackson ran toward the exit of the 

house, Appellant retrieved the bat, and began to strike the victim on the 

back on the head. Mr. Jackson was able to flee from the residence and ran 

to a nearby donut shop, where an employee contacted police. 

Philadelphia Police Officer Michael Smith responded to the call and 

discovered Mr. Jackson hiding in the bathroom of the donut shop with severe 

burns to his back, neck, and forearms. The victim was transported to the 

hospital, where he was later interviewed by police and identified Appellant as 

his attacker. Appellant was arrested on February 25, 2013. 

After Appellant received the above-described sentence, he filed a postsentence motion for reconsideration. Before that motion was resolved, 

Appellant filed the present appeal. Since the trial court thereafter denied the 
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post-sentence motion, we consider the within appeal as filed on the date of 

entry of the final order denying the post-trial motion. Pa.R.A.P. 905(a)(5) 

("A notice of appeal filed after the announcement of a determination but 

before the entry of an appealable order shall be treated as filed after such 

entry and on the date thereof."). 

Appellant raises two issues for our review:

1. The trial court abused its discretion and imposed a manifestly 

unreasonable sentence by sentencing the Appellant in the 

aggravated range of the sentencing guidelines without giving 

proper consideration to the Appellant's needs for 

rehabilitation.

2. The court erred when it permitted the prosecution to 

introduce text messages purportedly from the Appellant 

without proper foundation without proper notice by the 

prosecution and other related evidentiary issues. 

Appellant's brief at 6. 

We consider the questions in reverse order as the second, if 

successful, would entail the grant of a new trial while the first would require 

only re-sentencing. That challenge relates to the trial court's admission of 

text messages that Appellant sent after the crime to the victim's aunt. 

Initially, we note, "Our standard of review over evidentiary rulings requires 

us to determine whether the trial court abused its discretion." 

Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa.Super. 2007). In

Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), we ruled that a 

text message must be properly authenticated before it is admissible into 
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evidence. Under that decision, before a text message purportedly authored 

by the defendant can be admitted, the Commonwealth must present 

circumstantial evidence tending to corroborate that the defendant actually 

sent the message in question. 

Herein, the trial court concluded that there was significant proof 

establishing that Appellant disseminated the communications. The 

messages were received by the victim's aunt within hours after the attack. 

She confirmed that the messages were generated from Appellant's cell 

phone number. Contextually, the messages also indicated that Appellant 

was their author. One was an apology and the other confirmed that the 

motive for the attack was the fact that Mr. Jackson had engaged in sexual 

relations with Appellant's former spouse. 

Accordingly, we conclude that the trial court did not abuse its 

discretion in concluding that there was sufficient contextual evidence to 

authenticate the fact that the text messages were sent by Appellant, and we 

affirm on the basis of the thorough and compelling analysis provided by the 

trial court, the Honorable Edward Wright, on pages nine through eleven of 

his May 28, 2015 opinion.1 

____________________________________________

1 To the extent that Appellant suggests that the text messages should have 

been excluded from evidence in that he was not aware of their existence 

until trial, this position is waived as Appellant did not object at trial on this 

basis. Commonwealth v. Smith, 985 A.2d 886 (Pa. 2009) (where 

(Footnote Continued Next Page)
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Appellant's second averment is that his aggravated-range sentence is 

excessive since the trial court did not give “proper consideration” or 

"adequate weight" to mitigating factors. Appellant's brief at 6, 12. This 

position relates to the discretionary aspects of Appellant's sentence, and a 

defendant does not enjoy an appeal as of right from the discretionary 

aspects of his sentence. Commonwealth v. Giordano, 121 A.3d 998 

(Pa.Super. 2015). Instead, merits review of such a claim can be obtained 

only when a four-part test is satisfied: 1) there is a timely appeal; 2) the 

issue is preserved in the trial court proceedings and in a Pa.R.A.P. 1925(b) 

statement; 3) the brief includes a concise statement of the reasons relied 

upon for allowance of appeal to this Court from the discretionary aspects of 

a sentence as required by Pa.R.A.P. 2119(f); and 4) that statement raises 

the existence of a substantial question that the sentence is not appropriate 

under the Sentencing Code. Id.

In the present case, Appellant satisfied the first three aspects of this 

test. However, his Pa.R.A.P. 2119(f) fails to raise the existence of a 

substantial question as to the appropriateness of his sentence. As noted, 

Appellant’s claim is that the sentencing court did not adequately weigh the 

mitigating factors herein. "This Court has held on numerous occasions that 

(Footnote Continued) _______________________

defendant objects to introduction of evidence on one ground, only that 

specific objection is preserved for purposes of appeal).
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a claim of inadequate consideration of mitigating factors does not raise a 

substantial question for our review." Commonwealth v. DiSalvo, 70 A.3d 

900, 903 (Pa.Super. 2013) (quoting Commonwealth v. Downing, 990 

A.2d 788, 794 (Pa.Super. 2010)). Moreover, the trial court had the benefit 

of a presentence report so we must presume that the mitigating factors were 

weighed. Commonwealth v. Macias, 968 A.2d 773 (Pa.Super. 2009). 

Hence, we decline to review the discretionary aspects of Appellant's 

sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2016