J-S17009-16

_____________________________

*Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

MARLENE W. KENJORA

Appellant No. 564 WDA 2015

Appeal from the Judgment of Sentence November 7, 2014

In the Court of Common Pleas of Clearfield County

Criminal Division at No(s): CP-17-CR-0000059-2014

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED MAY 10, 2016

Appellant, Marlene W. Kenjora, appeals from the judgment of sentence 

entered in the Clearfield County Court of Common Please, following her jury 

trial convictions of criminal attempt (first degree murder), aggravated 

assault, simple assault, and recklessly endangering another person 

(“REAP”).1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

Appellant received inpatient treatment for depression and manic behavior 

from November 22, 2012 to December 3, 2012. Upon her release, Appellant 

returned home and obtained the services of a home-health psychiatric 

____________________________________________

1 18 Pa.C.S.A. §§ 901(a) (§ 2502(a) related), 2702(a)(1), 2701(a)(1), and 

2705, respectively. 
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agency. The victim, Erin Schaeffer, was a registered nurse who occasionally 

went to Appellant’s home to assist her with her medications. 

On December 6, 2012, Ms. Schaeffer went to Appellant’s home and 

found her to be irate and non-compliant with Ms. Schaeffer’s attempts to 

refill Appellant’s medications. Ms. Schaeffer called Appellant’s daughter but 

was unable to reach her. Thereafter, Ms. Schaeffer contacted Kristen 

Gamling, a crisis counselor, to request assistance or to have Appellant 

evaluated for inpatient commitment. While Ms. Schaeffer was speaking to 

Ms. Gamling, Appellant went upstairs, retrieved a handgun, returned, and 

shot Ms. Schaeffer in the left temple. Ms. Gamling testified she heard Ms. 

Schaeffer start screaming, “she shot me, she shot me,” to which Appellant 

yelled, “you’re damn right I did.” Ms. Schaeffer fled the residence, got into 

her vehicle, and traveled to the home of a neighbor who was also a homehealth nurse. The neighbor bandaged Ms. Schaeffer’s head and called the 

police. Ms. Schaeffer was subsequently transported to a hospital where a 

CAT scan determined she had a fractured skull with bleeding around her 

brain. Ms. Schaeffer underwent surgery to stop the bleeding, remove bullet 

fragments, and replace the bone in her skull. Ms. Schaeffer was released 

from the hospital several days later but continues to suffer from headaches, 

difficulty sleeping, and post-traumatic stress disorder. 

Meanwhile, Appellant called another neighbor crying and stated, “I 

shot my nurse.” The police arrived at Appellant’s home and told her to put 
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down the gun and exit the residence with her hands up. Appellant complied 

and told the police, “I’m sorry, I shot her, I snapped.” The police then 

arrested Appellant. 

A jury convicted Appellant on September 24, 2014, of criminal 

attempt—first-degree murder, aggravated assault, simple assault, and REAP. 

The jury found Appellant guilty of attempting to cause or causing serious 

bodily injury. On November 4, 2014, the court sentenced Appellant to 

twelve (12) to twenty-four (24) years’ imprisonment for attempted murder; 

the remaining convictions merged with attempted murder for sentencing 

purposes. Appellant timely filed a post-sentence motion on November 14, 

2014. The court conducted a hearing on December 9, 2014, and dismissed 

the motion on March 2, 2015. Appellant timely filed a notice of appeal on 

March 31, 2015. The court ordered Appellant on April 1, 2015, to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b), and Appellant timely complied on April 22, 2015. 

Appellant raises the following issue for our review:

WHETHER THE [TRIAL COURT] ERRED IN REFUSING 

[APPELLANT’S] REQUEST FOR A JURY INSTRUCTION ON 

THE CONDITION OF INVOLUNTARY DRUGGED 

(INTOXICATION) CONDITION; WHETHER, AS A MATTER 

OF LAW, SUFFICIENT EVIDENCE HAD BEEN PRESENTED 

TO SUPPORT A CONCLUSION THAT SERIOUS BODILY 

INJURY HAD OCCURRED AND IN THE ABSENCE OF SUCH A 

FINDING, WHETHER THE SENTENCE IMPOSED WAS 

ILLEGAL; AND WHETHER THE COURT ADEQUATELY 

CONSIDERED MITIGATING FACTORS IN IMPOSING 

SENTENCE? 
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(Appellant’s Brief at 7). 

Appellant’s issue is composed of four sub-parts. Appellant initially 

argues she was entitled to a jury instruction on the defense of involuntary 

drugged condition. Appellant acknowledges there is no appellate case law in 

which this instruction has been applied to any area other than driving under 

the influence (“DUI”). Appellant claims she was not in control of her 

faculties due to her required medication. 

Appellant next argues the evidence was insufficient for the jury to find 

that Appellant had caused or attempted to cause “serious bodily injury” to 

the victim. Appellant contends Ms. Schaeffer did not suffer any real injury to 

her brain or other vital part of her body that created an actual risk of death. 

As a companion complaint, Appellant further argues her sentence of twelve 

to twenty-four years’ imprisonment is illegal, as it exceeds the maximum 

penalty of twenty years’ imprisonment for attempted murder without 

“serious bodily injury.” 

Lastly, Appellant asserts the court failed to consider at sentencing 

certain mitigating factors, including her lack of criminal history, that she was 

under extreme mental or emotional disturbance, her inability to appreciate 

the criminality of her behavior, and that she was sixty-nine years old at the 

time of the incident. As presented, this final claim challenges the 

discretionary aspects of sentencing. See Commonwealth v. CruzCenteno, 668 A.2d 536 (Pa.Super. 1995) (explaining claim that court did 
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not consider mitigating factors challenges discretionary aspects of 

sentencing). Appellant concludes the court erred or abused its discretion on 

the various grounds asserted. We disagree. 

With respect to Appellant’s initial argument, we observe: “There is no 

requirement for the trial judge to instruct the jury pursuant to every request 

made to the court.” Commonwealth v. Newman, 555 A.2d 151, 158-59 

(Pa.Super. 1989), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995). “In 

deciding whether a trial court erred in refusing to give a jury instruction, we 

must determine whether the court abused its discretion or committed an 

error of law.” Commonwealth v. DeMarco, 570 Pa. 263, 271, 809 A.2d 

256, 260-61 (2002). 

A jury charge is erroneous only if the charge as a whole is inadequate, 

unclear, or has a tendency to mislead or confuse, rather than clarify, a 

material issue. Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 

2008), appeal denied, 606 Pa. 644, 992 A.2d 885 (2010) (citation omitted). 

A charge is considered adequate unless the jury was 

palpably misled by what the trial judge said or there is an 

omission which is tantamount to fundamental error. 

Consequently, the trial court has wide discretion in 

fashioning jury instructions. 

Id. Moreover,

The trial court may use its own form of expression to 

explain difficult legal concepts to the jury, as long as the 

trial court’s instruction accurately conveys the law. A 

verdict will not be set aside if the instructions of the trial 

court, taken as a whole, and in context, accurately set 

forth the applicable law. 
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Commonwealth v. Jones, 858 A.2d 1198, 1201 (Pa.Super. 2004). “Jury 

instructions must be supported by the evidence of record as instructions 

regarding matters that are not before the court serve no purpose but to 

confuse the jury.” Commonwealth v. Bruce, 717 A.2d 1033, 1037 

(Pa.Super. 1998), appeal denied, 568 Pa. 643, 794 A.2d 359 (1999). 

Regarding Appellant’s second and third arguments, the law states: 

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 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) 

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

Under the Crimes Code, “[a] person commits an attempt 

when with intent to commit a specific crime, he does any 
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act which constitutes a substantial step towards the 

commission of the crime.” 18 Pa.C.S.A. § 901(a). A 

person may be convicted of attempted murder if he takes 

a substantial step toward the commission of a killing, with 

the specific intent in mind to commit such an act. See 18 

Pa.C.S.A. §§ 901, 2502. The substantial step test 

broadens the scope of attempt liability by concentrating on 

the acts the defendant has done and does not any longer 

focus on the acts remaining to be done before the actual 

commission of the crime. The mens rea required for firstdegree murder, specific intent to kill, may be established 

solely from circumstantial evidence. [T]he law permits the 

fact finder to infer that one intends the natural and 

probable consequences of his acts. 

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008), appeal 

denied, 600 Pa. 760, 967 A.2d 958 (2009) (most internal citations and 

quotation marks omitted). Additionally, this Court has observed:

A claim that implicates the fundamental legal authority of 

the court to impose a particular sentence constitutes a 

challenge to the legality of the sentence. If no statutory 

authorization exists for a particular sentence, that 

sentence is illegal and subject to correction. An illegal

sentence must be vacated. Likewise, a sentence that 

exceeds the statutory maximum is illegal. If a court 

imposes a sentence outside of the legal parameters 

prescribed by the applicable statute, the sentence is illegal

and should be remanded for correction. 

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013) (internal 

citations and quotation marks omitted). The Pennsylvania Consolidated 

Statutes define the sentence for attempted murder as follows:

§ 1102. Sentence for murder, murder of unborn 

child and murder of law enforcement officer

* * *

(c) Attempt, solicitation and conspiracy.—
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Notwithstanding section 1103(1) (relating to sentence of 

imprisonment for felony), a person who has been 

convicted of attempt, solicitation or conspiracy to commit 

murder, murder of an unborn child or murder of a law 

enforcement officer where serious bodily injury results may 

be sentenced to a term of imprisonment which shall be 

fixed by the court at not more than 40 years. Where 

serious bodily injury does not result, the person may be 

sentenced to a term of imprisonment which shall be fixed 

by the court at not more than 20 years. 

18 Pa.C.S.A. § 1102(c). 

With respect to Appellant’s final sentencing dispute, we note that 

challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Id. 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), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006). When appealing the 

discretionary aspects of a sentence, an appellant must invoke the appellate 

court’s jurisdiction by including in his brief a separate concise statement 

demonstrating that there is a substantial question as to the appropriateness 

of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 

571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). The concise 
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statement must indicate “where the sentence falls in relation to the 

sentencing guidelines and what particular provision of the code it violates.” 

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (quoting 

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000), appeal 

denied, 563 Pa. 672, 759 A.2d 920 (2000)). 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa.Super. 2003) (citation omitted). 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.” Sierra, supra at 912-13. 

Generally, “[a]n allegation that a sentencing court failed to consider or did 

not adequately consider certain factors does not raise a substantial question 

that the sentence was inappropriate.” Cruz-Centeno, supra at 545 

(internal quotation marks omitted). 

Instantly, the court disposed of Appellant’s arguments as follows:

[Appellant’s] first request is a Motion for New Trial, 

alleging that the [c]ourt erred in denying [her] request for 

jury instructions regarding the defense of involuntary 

drugged condition. The Pennsylvania Suggested Standard 

jury [i]nstruction for involuntary intoxication, specifically 

states that the involuntary intoxication defense is only 

applicable where the charge is under 75 Pa.C.S. § 3802. 

See Pa.S.S.J.I.Crim. 8.308C. Moreover, the parties and 

this [c]ourt were unable to find any appellate case law in 

Pennsylvania in regards to the involuntary intoxication 
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defense being applicable for any matter except in a [DUI] 

case. Since Pennsylvania does not recognize such a 

defense in any case except for [DUI], the [c]ourt was 

correct in denying [Appellant’s] request. 

In addition, the evidence presented at trial did not warrant 

the necessity for the [c]ourt to give the involuntary 

intoxication jury instruction, even if it was applicable. The 

evidence at trial clearly showed that [Appellant] had 

mental health issues and she did not take her medication 

as instructed as opposed to her involuntarily taking 

medication that she was not supposed to be taking. The 

facts and evidence presented at trial clearly do not support 

the defense of involuntary intoxication, even if it were 

available for the charges in [Appellant’s] case, and the 

[c]ourt properly denied [her] request for the same. See 

Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011) (trial 

court properly denied defendant’s requested jury 

instruction where there was no evidence on the record to 

support said jury instruction). 

[Appellant’s] second claim is a Motion for Acquittal, 

arguing that insufficient evidence was presented at trial to 

establish as a matter of law that the victim suffered 

serious bodily injury in order to be found guilty of the 

offense of Aggravated Assault—caused serious bodily 

injury. 

A motion for judgment of acquittal challenges the 

sufficiency of the evidence to sustain a conviction on a 

particular charge, and is only granted in cases in which the 

Commonwealth has failed to carry its burden regarding 

that charge. Commonwealth v. Graham, 81 A.3d 137 

([Pa.Super.] 2013). The standard to be applied 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 

[that of] the fact-finder. In addition, we note that 

the facts and circumstances established by the 
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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 trier 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.

Id. at 142 (citing Commonwealth v. Brown, 23 A.3d 

544, 559-560 ([Pa.Super.] 2011) (en banc)). In this 

matter the jury found [Appellant] guilty [inter alia] of 

Aggravated Assault—caused serious bodily injury, 

therefore the [c]ourt should view all the evidence admitted 

at trial in the light most favorable to the Commonwealth. 

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.A. § 2301. 

At the trial in this matter, the Commonwealth presented 

the expert testimony of Dr. Jeannette Capella, who 

testified that she was the trauma surgeon who conducted 

the initial evaluation of the victim. Dr. Capella testified 

that the victim had been shot in the left temple area, that 

a CAT scan was performed and it showed bullet fragments 

in the victim’s head, bone fragments where the skull had 

been fractured and blood in and around the victim’s brain 

in that area. Dr. Capella stated that the victim’s injuries 

necessitated surgery in order to put the bone back in place 

and to remove the bullet fragments. Dr. Capella also 

testified that a shot in the head can cause damage to the 

brain, and the middle meningeal artery is located in the 

particular area where the victim was shot. This is a major 

artery that if damaged can cause quite a lot of bleeding. 
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Lastly, Dr. Capella testified that there is a danger of death 

from being shot precisely where the victim had been shot 

in the head. 

Viewing it in a light most favorable to the Commonwealth, 

the testimony of Dr. Capella was sufficient for the jury to 

find that [Appellant’s] actions caused serious bodily injury. 

[Appellant’s] act of shooting the victim in the left temple 

area, which caused the victim’s skull to fracture, was 

clearly 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. See Commonwealth v. Philips, 410 

A.2d 832, 834 (Pa.Super. 1979) (gunshot wound to the leg 

requiring a two week stay in hospital and resulting inability 

to walk for one month, considered serious bodily injury). 

Commonwealth v. Caterino, 678 A.2d 389 (Pa.Super. 

1996) (victim’s broken nose and severed artery, which 

required over three hours of emergency medical attention, 

constituted “serious bodily injury,” for purposes of 

determining proper sentencing offense score for defendant 

convicted of aggravated assault). 

[Appellant’s] third claim is a Motion for Re-Sentencing, 

arguing that there was no serious bodily injury inflicted 

upon the victim, thus the maximum allowable sentence for 

Criminal Attempt Murder in First Degree is 20 years 

pursuant to 18 Pa.C.S.A. § 1102(c) and the [c]ourt’s 

sentence of 12-24 years is therefore illegal. This Motion 

must be dismissed due to the [c]ourt’s finding above.[2] 

[Appellant’s] final claim is a Motion for Reconsideration of 

Sentence, requesting that the [c]ourt impose a lesser 

sentence. [Appellant] argues that the [c]ourt did not 

adequately consider certain mitigating factors at the time 

of sentencing, including: [Appellant’s] age; the fact that 

she was at the time under the influence of extreme mental 

or emotional disturbance; the capacity of [Appellant] at 

the time to fully appreciate the criminality of her conduct; 

____________________________________________

2 We discuss this issue in further detail following our summary of the trial 

court’s decision. 
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that [Appellant] was at the time under extreme duress; 

and that [Appellant] has no significant history of prior 

criminal convictions. However, the [c]ourt did take all 

mitigating factors and evidence into account and the 

sentence imposed by the Court was appropriate 

considering the nature of the offense, the protection of the 

public, and the rehabilitative needs of [Appellant]. 

Sentencing is a matter vested within the discretion of the 

court and will not be disturbed absent an abuse of 

discretion. [Evans, supra]. To find an abuse of discretion 

in this respect, there must be more than a mere error in 

judgment; a sentencing court [will not] be found to have 

abused its discretion unless “the record discloses that the 

judgment exercised was manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will.” 

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). 

Furthermore, a sentencing court must examine the 

circumstances of the crime and individual background of 

the defendant as the sentence imposed must be the 

minimum punishment consistent with the protection of the 

public, the gravity of the offense and the rehabilitative 

needs of the defendant. Commonwealth v. Johnson, 

481 A.2d 1212, 1214 (Pa.Super. 1984). 

The standard guideline range for the offense of Criminal 

Attempt Murder of First Degree is 72 months to 240 

months. The sentence imposed by the [c]ourt is within 

that standard guideline range, and that sentence is not 

manifestly unreasonable simply because it was not at the 

minimum of that standard range. Additionally, the 

sentence recommendation provided by the Probation Office 

was for 20-40 years. The [c]ourt did take into account the 

mitigating factors in this matter, and the best evidence of 

the same would be that the [c]ourt imposed a sentence 

which was considerably lower than that recommended by 

the Probation Office. 

(Trial Court’s Opinion, filed March 2, 2015, at 1-5). We accept the court’s 

analysis. 

We now take a closer look at Appellant’s claim that her sentence of 12 
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to 24 years’ incarceration for attempted murder was improper under Section 

1102(c) because no serious bodily injury occurred in this case. Section 1102 

allows for a maximum sentence of 40 years, unless serious injury did not 

result from the attempted murder; in the event of no serious bodily injury, 

the maximum sentence is not more than 20 years. See 18 Pa.C.S.A. § 

1102(c) (emphasis added). Although not identified or argued as such, 

Appellant’s issue appears to implicate Apprendi v. New Jersey, 530 U.S. 

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (stating any fact that 

increases penalty for crime beyond prescribed statutory maximum, other 

than fact of prior conviction, must be submitted to jury and proved beyond 

reasonable doubt). A true Apprendi issue involves the legality of the 

sentence, which cannot be waived on appeal, as long as we have proper 

jurisdiction to address it. See Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super. 2014) (en banc) (citing Commonwealth v. Roney, 581 Pa. 587, 

866 A.2d 351 (2005), cert. denied, 546 U.S. 860, 126 S.Ct. 139, 163 

L.Ed.2d 141 (2005)). 

Two cases come to light in the context of serious bodily injury and 

sentencing under Section 1102(c). The first case is Commonwealth v. 

Johnson, 910 A.2d 60 (Pa.Super. 2006), appeal denied, 592 Pa. 766, 923 

A.2d 1173 (2007). In Johnson, the Commonwealth charged and the jury 

convicted the defendant of attempted murder, aggravated assault, recklessly 

endangering another person and related offenses arising from the 
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defendant’s ambush and shooting of the victim who had previously testified 

for the Commonwealth against the defendant’s brother in an unrelated first 

degree murder case. During the subsequent attack on the victim, the 

defendant pointed a handgun at the victim’s head and fired but missed. The 

defendant then pursued the victim and fired several more rounds at her, one 

of which struck the victim in the heel of her foot. At sentencing, the court 

imposed a term of imprisonment of 171⁄2 to 40 years for the attempted 

murder conviction. 

In addition to other issues on appeal, the defendant challenged the 

attempted murder sentence on the ground of insufficient evidence of serious 

bodily injury. The trial court proposed that the defendant’s conviction for 

the companion offense of aggravated assault was enough to establish 

serious bodily harm. In response, this Court said: 

[I]t was not the prerogative of the trial court, but solely 

the responsibility of the jury in this case to find, beyond a 

reasonable doubt, whether a serious bodily injury resulted 

from the instant attempted murder. 

* * *

Here, however, (1) appellant was not charged with 

attempted murder resulting in serious bodily injury, (2) 

appellant was not on notice that the Commonwealth 

sought either to prove that a serious bodily injury resulted 

from the attempted murder or to invoke the greater 

maximum sentence, and (3) the jury was never presented 

with, nor rendered a decision on, the question of whether a 

serious bodily injury resulted from the attempted murder. 

Thus, the jury verdict here was limited to a finding of guilt 

on the crime of attempted murder generally, for which the 

maximum sentence is twenty years. 
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Id. at 67-68. Essentially, the Johnson decision can be interpreted to 

suggest that the “serious bodily injury” factor must be attached to the 

attempted murder charge, even in a multi-count prosecution. Id. 

Importantly, nothing in the Johnson decision indicated that any of the 

defendant’s crimes had been charged with causing serious bodily injury or if 

that matter was presented to the factfinder at trial. 

The second case to draw our attention is Commonwealth v. Reid, 

867 A.2d 1280 (Pa.Super. 2005), appeal denied, 586 Pa. 725, 890 A.2d 

1058 (2005), in which the Commonwealth charged the defendant with 

criminal attempt (homicide), aggravated assault, burglary and criminal 

trespass. The charges arose when the defendant entered the victim’s home 

and stabbed her eleven times with a knife before slashing her throat. The 

victim endured several surgeries and remained under treatment when the 

defendant struck a plea deal with the Commonwealth. In exchange for the 

defendant’s nolo contendere plea to one count of criminal attempt 

(homicide), the Commonwealth agreed not to pursue the other charges 

stemming from the assault on the victim in this case as well as in 

satisfaction of the charges pending against the defendant at three additional 

docket numbers. The prosecutor presented the parties’ agreement to the 

court as a nolo contendere plea to one count of attempted criminal 

(homicide) graded as a first degree felony carrying a maximum penalty of 

forty years and a $50,000.00 fine, to be in full satisfaction of all charges 
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filed at four separate docket numbers. Upon the trial court’s request, the 

prosecutor recited the factual predicate of the case. The prosecutor 

described the defendant’s attack on the victim, including the eleven stab 

wounds and slashed throat; and how, despite her wounds, the victim was 

able to stagger across the street to a neighbor’s house for help. At 

sentencing, the court imposed a term of imprisonment of 18 to 40 years for 

the attempted murder offense. 

On appeal, the defendant challenged his sentence “on the grounds that 

(1) a jury did not make the factual determination that the victim suffered 

serious bodily injury, (2) the information filed by the Commonwealth did not 

explicitly state that the victim suffered “serious bodily injury” using those 

precise words, and (3) the Commonwealth failed to apprise Appellant that it 

was asserting that the victim suffered serious bodily injury thereby 

implicating a maximum term of imprisonment of forty years.” Id. at 1281. 

This Court identified the defendant’s issue as one challenging the legality of 

the sentence under Apprendi. In response, this Court concluded the 

defendant was sufficiently apprised that his charges involved serious bodily 

injury, and the facts underlying the charge did not need to be spelled out 

explicitly in the criminal information. Instead, the Court reiterated the 

principle that the court “is not bound to sentence according to an error in an 

information, but may sentence in accordance with the true grading of the 

crimes as alleged and proven.” Reid, supra at 1284. Although the 
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defendant had not been expressly charged with attempt to commit criminal 

homicide (serious bodily injury), the defendant agreed with the 

Commonwealth’s recitation of the facts underlying the charge, including the 

extent of the victim’s injuries. This Court, therefore, concluded the record 

contained no support for either the defendant’s assertion of “surprise” at 

sentencing or his claim of a sentence in violation of Apprendi. 

In the present case, Appellant was not specifically charged with 

Criminal Attempt/Murder of the First Degree (serious bodily injury) on the 

criminal information. Curiously, Appellant does not argue that point 

precisely.3 On the other hand, the Criminal Complaint includes and recites 

the acts of Appellant which were associated with the particular offense of 

attempted criminal homicide as: “The Defendant did on or about 12/05/2012 

at approx. 1600 hrs. commit an attempt, with the intent to commit Criminal 

Homicide by shooting a .22 Caliber Revolver Handgun at a known victim. 

When doing so the said victim was struck in the left side of her head with a 

.22 Caliber bullet causing serious bodily injury to the victim.” (See

Criminal Complaint, filed 12/6/12, at 2.) 

Here, Appellant only challenges the jury’s finding of serious bodily 

injury. The facts of the victim’s serious bodily injury, however, were fully 

charged, prosecuted and defended at trial, argued at closing, and found by 

____________________________________________

3 Appellant, however, was expressly charged with aggravated assault 

(serious bodily injury) on that document.
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the jury. Appellant was on notice from the outset of her case to defend 

against serious bodily injury arising from the shooting, and the jury found 

serious bodily injury resulted from the incident giving rise to the charges. 

Therefore, Appellant cannot reasonably claim she was “surprised” at 

sentencing or that she received a sentence in violation of Apprendi. 

Granted, neither Johnson nor Reid is readily dispositive of the 

present case. Nevertheless, Appellant was on notice to defend the attempt 

to cause or caused serious bodily injury aspect in her case and did so 

unsuccessfully. Therefore, the record fails to support Appellant’s Apprendi

issue. Moreover, we cannot tell from the Johnson decision whether the 

defendant in that case was ever on notice to defend against serious bodily 

injury. So, we cannot say definitively that Johnson, supra calls into 

question Appellant’s attempted murder sentence simply because “serious 

bodily injury” was not expressly mentioned in conjunction with that 

particular charge on the criminal information document.4 Given the 

theoretical difficulties potentially arising from the prevailing case law, and to 

avoid the current problem, we think the better course of action is for the 

Commonwealth to include or attach “serious bodily injury” to all relevant 

charges on all of the charging and other important record documents 

____________________________________________

4 As an aside, query how Appellant’s other convictions, most of which 

included serious bodily injury, could have merged for sentencing if her 

conviction for attempted murder did not include serious bodily injury. 
J-S17009-16

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throughout the case. Based on the foregoing, we conclude Appellant’s 

issues merit no relief. Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/2016