J-S18036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MARK A.A. CLIETT

 Appellant No. 187 EDA 2016

Appeal from the Judgment of Sentence November 6, 2012

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0013972-2011

BEFORE: PANELLA, SOLANO, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MAY 26, 2017

Appellant, Mark A.A. Cliett, appeals from the judgment of sentence of 

eight to twenty years’ imprisonment entered in the Philadelphia County 

Court of Common Pleas following his conviction for, inter alia, aggravated 

assault.1 Appellant challenges the discretionary aspects of the sentence and 

the sufficiency of the evidence. We affirm. 

The trial court summarized the evidence presented at trial as follows:

At approximately 2:00 a.m. on September 28, 2011, 

Appellant entered Walter Green’s home at 708 N. Preston 

Street in Philadelphia. Present in the residence at the time 

were Walter Green, Jazar Triple, a female named Alexis, 

and a male named Mike. The complainant, Jazar Triple, 

testified at trial that Appellant appeared to be somewhat 

intoxicated when he entered the residence and ignored Mr. 

Green’s requests to leave. According to Mr. Triple, Mike 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2702(a)(1). 
J-S18036-17

- 2 -

and Alexis were able to exit the residence, but Appellant, 

who is approximately 6’5” and 280 pounds, blocked him 

from leaving. Appellant and Mr. Triple exchanged some 

words as Appellant repeatedly poked Mr. Triple in the 

chest. Appellant then punched Mr. Triple in the head with 

a closed fist and Mr. Triple, 5’4” and 135 pounds, stumbled

into the living room and lost consciousness. When Mr. 

Triple finally regained consciousness he was in the hospital 

on a respirator and unable to walk. Mr. Triple spent 

several weeks in the hospital followed by several weeks in 

a rehabilitation facility where he had to learn to walk 

again.

Walter Green testified at trial that on that date and 

time, while he was upstairs in his home, he heard Mr. 

Triple call out to him. When Green came down and 

entered the dining room he observed Appellant and asked 

him to leave. Instead of leaving, Appellant started 

attacking Mr. Triple after he tried to back away from 

Appellant and tripped over some bicycle rims on the floor. 

Appellant got on top of the victim and repeatedly punched 

him in the head. Green stated that Mr. Triple appeared to 

lose consciousness after the third punch. He then 

observed Appellant pick Mr. Triple up by the shirt collar 

and was still punching him when Green left the residence 

to call police. 

Philadelphia Police Officer Danny Mammola testified at 

trial that he arrived on the scene at approximately 2:20 

a.m. and observed Mr. Triple lying in a pool of blood on the 

living room floor. Mr. Triple was nonresponsive, his eye 

was completely swollen shut, and his face was swollen. 

Officer Mammola also observed a metal pipe covered with 

blood next to the victim and blood around a large hole in 

the wall with crumbled sheetrock. The metal pipe weighed 

4.1 pounds. Mr. Triple was then transported to HUP 

hospital by medics.

Trial Ct. Op., 9/8/16, at 2-3 (record citations omitted).

Appellant was charged with aggravated assault, burglary, theft, and 

related offenses. On June 5, 2012, Appellant proceeded to a non-jury trial. 
J-S18036-17

- 3 -

The trial court heard testimony on June 5 and 15, 2012, and found Appellant 

guilty of aggravated assault, as well as simple assault, recklessly 

endangering another person, criminal mischief, and theft.2 

On November 6, 2012, the trial court accepted Appellant’s guilty pleas 

in two unrelated cases—a burglary committed on October 7, 2011, and a 

robbery committed on October 15, 2011. The court immediately proceeded 

to a sentencing hearing in the two unrelated cases and the instant matter. 

With respect to the present case, the Commonwealth called Dr. Gary 

Collins as “an expert in “forensic pathology and the examination and 

interpretation of wounds.” N.T., 11/6/12, at 17. Dr. Collins opined that the 

complainant’s injuries were consistent with the use of a “hard blunt object” 

and not punching alone. Id. at 21-22. The doctor suggested that the use of 

a fist would likely would not cause the fractures as well as the brain injuries 

suffered by the complainant without causing significant injury to the 

attacker’s hand. Id. at 22. During direct examination, the Commonwealth 

presented Dr. Collins with the pipe recovered near the complainant, and the 

doctor asserted that it “could have been an object used to inflict these 

injuries.” Id. at 21. On cross-examination, however, Appellee’s counsel 

asked Dr. Collins, “Now, so we don’t really know whether a pipe was used on 

this man or not[?]” Id. at 25. Dr. Collins responded, “Correct, all I know is 

 

2 Appellant did not testify and presented no evidence on his own behalf. The 

trial court acquitted Appellant of burglary and criminal trespass.
J-S18036-17

- 4 -

it’s a hard object. And if you give a pipe as an example, that’s an example.” 

Id. at 25. 

The trial court determined that Appellant used the pipe and applied the 

deadly weapon enhancement (“DWE”) of the Sentencing Guidelines. See

204 Pa. Code § 303.10(a)(2). The court thereafter sentenced Appellant to 

eight to twenty years’ imprisonment for aggravated assault. The minimum 

portion of the sentence fell within the enhanced standard range of 90 to 108 

months under the DWE.3

Appellant did not timely file a post sentence motion or direct appeal, 

but on March 19, 2013, filed a pro se Post Conviction Relief Act4(“PCRA”) 

petition. The PCRA court appointed counsel, who filed an amended petition 

seeking reinstatement of Appellant’s right to file a post-sentence motion. On 

July 23, 2015, the PCRA court granted Appellant leave to file a postsentence motion nunc pro tunc. Appellant filed a post-sentence motion on 

 

3 No further penalty was imposed on the remaining charges in this case. 

The court also sentenced Appellant to two to five years’ imprisonment for 

the unrelated burglary and three and a half to ten years’ imprisonment for 

the unrelated robbery. The resulting aggregate sentence in all three cases 

was thirteen and a half to thirty five years’ imprisonment. 

The Sentencing Guidelines suggested a standard range minimum sentence 

of seventy-two to ninety months’ imprisonment, plus or minus twelve 

months for aggravating or mitigating factors, without the DWE. See 204 Pa. 

Code. § 303.16(a). Accordingly, the eight-year (96-month) minimum 

sentence in this case would have fallen within the aggravated range of the 

unenhanced standard range sentence. 

4 42 Pa.C.S. §§ 9541-9546. 
J-S18036-17

- 5 -

July 31, 2015, and the motion was denied by operation of law on December 

4, 2015. 

Appellant took this appeal on January 6, 2016. Both Appellant and the 

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

Appellant presents the following questions for review:

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION 

IN SENTENCING . . . APPELLANT TO A HARSH AND 

EXCESSIVE SENTENCE?

II. WHETHER THE VERDICT WAS CONTRARY TO LAW?

Appellant’s Brief at 7. 

Appellant first challenges the discretionary aspects of the sentence for 

aggravated assault. He contends:

It would appear that Alleyne v. [United States], 133 

S.Ct. 2151 (2013) does not apply to a deadly weapon 

enhancement. However, the principle expanded in 

Alleyne, that all facts that increase a mandatory minimum 

sentence must be submitted to and found true by a jury, 

should be considered in this case. 

Appellant’s Brief at 13-14. Appellant thus suggests that the facts triggering 

the DWE must be proven beyond a reasonable doubt and “the court 

considered the [DWE] without sufficient evidence of a weapon.” Id. at 17-

18. Additionally, Appellant avers that the sentence was manifestly excessive 

because it “was in the aggravated range” and the trial court “did not give 

sufficient consideration to Appellant’s background, drinking problem, and 

mental health issues. Id. at 14. No relief is due. 

It is well settled that:
J-S18036-17

- 6 -

[c]hallenges to the discretionary aspects of sentencing do 

not entitle an appellant to appellate review as of right. 

Prior to reaching the merits of a discretionary sentencing 

issue:

[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. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some 

citations and punctuation omitted). “A defendant presents a substantial 

question when he sets forth a plausible argument that the sentence violates 

a provision of the sentencing code or is contrary to the fundamental norms 

of the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 

1268 (Pa. Super. 2013) (citation and quotation marks omitted). Appellant, 

as a preliminary matter, has preserved his challenges to the application of 

the DWE and the failure to consider mitigating factors in his post-sentence 

motion nunc pro tunc, this appeal nunc pro tunc, and in his Pa.R.A.P. 

2119(f) statement. 

Appellant’s challenges to the trial court’s application of the DWE raise 

substantial questions, and we proceed to consider the merits of Appellant’s 

arguments. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266, 
J-S18036-17

- 7 -

1270 n.10 (Pa. Super. 2014) (en banc). Section 303.10(a)(2) of the 

Sentencing Guidelines provides:

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 (§ 

303.17(b)). An offender has used a deadly weapon if any 

of the following were employed by the offender in a way 

that threatened or injured another individual:

(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) 

whether loaded or unloaded, or

(ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 

913), or

(iii) Any device, implement, or instrumentality capable 

of producing death or serious bodily injury.

204 Pa. Code § 303.10(a)(2)(i)-(iii). 

This Court has concluded that the findings necessary to trigger the 

application of the Sentencing Guideline enhancement require proof by a 

preponderance of the evidence. See Commonwealth v. Hammond, 504 

A.2d 940, 942 (Pa. Super. 1986). Moreover, in Buterbaugh, this Court 

concluded that Alleyne was not implicated in a challenge to the application 

of the DWE, noting: 

Alleyne . . . dealt with factors that either increased the 

mandatory minimum sentence . . . . Our case does not 

involve [such a] situation; instead, we are dealing with a 

sentencing enhancement. If the enhancement applies, the 

sentencing court is required to raise the standard guideline 

range; however, the court retains the discretion to 

sentence outside the guideline range.

Buterbaugh, 91 A.3d at 1270 n.10.
J-S18036-17

- 8 -

In light of the foregoing, we are constrained to conclude that 

Appellant’s legal argument that Alleyne requires a finding by a jury and/or 

proof beyond a reasonable doubt before applying the DWE warrants no 

relief. See id.; Hammond, 504 A.2d at 942. Moreover, the trial court 

considered evidence that (1) the pipe was recovered near the complainant, 

(2) the pipe weighed approximately four pounds, (3) the pipe had a blood 

stain on one of its ends, (4) the severity of the complainant’s injuries was 

consistent with the use of a hard blunt object, and (5) the use of a fist alone 

would not likely have caused the complainant’s injuries without significantly 

injuring Appellant’s hand. Thus, we discern no error or abuse of discretion in 

the trial court’s determination that a preponderance of the evidence showed 

that Appellant used the pipe to injure the complainant. See Hammond, 

504 A.2d at 942. Accordingly, we affirm the trial court’s application of the 

DWE under the circumstances of this case. 

Appellant’s further challenge to the trial court’s weighing of the 

mitigating circumstances presented at sentencing does not raise a 

substantial question. See Evans, 901 A.2d at 533.

[A] sentencing court generally has discretion to impose 

multiple sentences concurrently or consecutively, and a 

challenge to the exercise of that discretion does not 

ordinarily raise a substantial question.

We are mindful, however, that “the key to resolving the 

preliminary substantial question inquiry is whether the 

decision to sentence consecutively raises the aggregate 

sentence to, what appears upon its face to be, an 

excessive level in light of the criminal conduct at issue in 
J-S18036-17

- 9 -

the case.” An appellant making an excessiveness claim 

raises a substantial question when he “sufficiently 

articulates 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.”

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) 

(citations omitted).

Instantly, the trial court sentenced Appellant within the enhanced 

standard range under the DWE and imposed no further penalty on the 

remaining offenses in this case. Although the court’s sentence was 

consecutive to two unrelated cases, those two cases involved offenses that 

Appellant committed after the present offense. Under these circumstances, 

Appellant’s claims—i.e., that the trial court improperly weighed mitigating 

factors when imposing the instant sentence of eight-to-twenty-years’ 

imprisonment for aggravated assault, or ordering the sentence to run 

consecutive to the two unrelated cases—do not raise a substantial question 

warranting further review.5 See id. 

 

5

In any event, we discern no abuse of discretion by the trial court. The trial 

court considered the gravity of the offense, found Appellant’s lack of 

rehabilitative potential based on his “lack of human compassion . . . and 

indifference to the value of life,” and weighed the impact on the victim and 

the community. See 42 Pa.C.S. § 9721(b); N.T. at 50-51. Therefore, we 

discern no basis upon which to conclude that the court’s sentence was 

“clearly unreasonable.” See 42 Pa.C.S. § 9781(c)(2). 
J-S18036-17

- 10 -

Lastly, Appellant claims that the evidence was insufficient to sustain 

his conviction. He argues that the Commonwealth failed to prove he 

intended to cause serious bodily injury. No relief is due. 

The following precepts govern our review: 

In reviewing a claim regarding the sufficiency of the 

evidence, an appellate court must determine 

whether the evidence was sufficient to allow the fact 

finder to find every element of the crimes charged 

beyond a reasonable doubt. In doing so, a reviewing 

court views all the evidence and reasonable 

inferences therefrom in the light most favorable to 

the Commonwealth. Furthermore, in applying this 

standard, the Commonwealth may sustain its burden 

of proof by means of wholly circumstantial evidence. 

When performing its review, an appellate court 

should evaluate the entire record and all evidence 

received is to be considered, whether or not the trial 

court’s rulings thereon were correct. Additionally, 

we note that the trier of fact, while passing on the 

credibility of witnesses and the weight of the 

evidence, is free to believe all, part, or none of the 

evidence.

[Section 2702(a)(1) of the Crimes Codes] provides, “A 

person is guilty of aggravated assault if he . . . 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.” 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.” 

Commonwealth v. Burton, 2 A.3d 598, 601 (Pa. Super. 2010) (en banc) 

(citations omitted).

Instantly, the trial court noted:
J-S18036-17

- 11 -

the evidence showed that Appellant, an extremely large 

and physically powerful man, repeatedly punched the 

much smaller victim, struck him in the head with a four 

pound metal pipe and threw him into the wall. It was 

reasonable for the court to infer from these repeated and 

sustained assaults on a vulnerable victim that Appellant 

intended to cause serious bodily injury. The evidence in 

this case was more than sufficient to prove Appellant’s 

intent to cause serious bodily injury beyond a reasonable 

doubt. 

 

Trial Ct. Op. at 5. We discern no basis to disturb the trial court’s analysis 

and add that a witness in this case testified about Appellant’s assault of the 

complainant. That testimony established Appellant struck the complainant 

several times, and the complainant fell to the floor. Although the 

complainant was unconscious, Appellant continued to attack, lifting the 

complainant up by his shirt and punching him several more times before the 

witness left the house to call the police as the assault was ongoing. The 

complainant was 5’4” and 135 pounds, and Appellant was 6’5” and weighed 

well over two hundred pounds. Thus, even if the Commonwealth did not 

establish the use of a deadly weapon at trial, there was ample evidence to 

prove his intent to cause serious bodily injury based on Appellant’s use of his 

fists. See Burton, 2 A.3d 598, 601-05 (discussing sufficiency of evidence 

for aggravated assault based on a single punch). 

Judgment of sentence affirmed.
J-S18036-17

- 12 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2017