J-A14004-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

TED LEROY FOSCO 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2130 EDA 2023 

Appeal from the Judgment of Sentence Entered March 24, 2023 

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

No(s): CP-09-CR-0000862-2021 

BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J. 

MEMORANDUM BY LAZARUS, P.J.: FILED JULY 23, 2024

 Ted Leroy Fosco appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Bucks County, following his convictions of five 

counts each of aggravated assault – attempt to cause serious bodily injury,1

aggravated assault – attempt to cause serious bodily injury with a deadly 

weapon,2 terroristic threats,3 recklessly endangering another person,4 and 

simple assault;5 and one count each of robbery,6 discharge of a firearm into 

____________________________________________ 

1

 18 Pa.C.S.A. § 2702(a)(1). 

2 Id. at § (a)(4). 

3 Id. at § 2706(a)(1). 

4 Id. at § 2705. 

5 Id. at § 2701(a)(3). 

6 Id. at § 3701(a)(1)(ii). 
J-A14004-24 

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an occupied structure,7 criminal mischief – damage to property,8 firearms not 

to be carried without a license,9 possession of weapon,10 resisting arrest,11

disorderly conduct,12 and possession of drug paraphernalia.13 After careful 

review, we affirm on the well-written opinion authored by the Honorable Gary 

B. Gilman. 

 We adopt the trial court’s full factual summary as set forth in its opinion. 

See Trial Court Opinion, 11/30/23, at 4-9. Briefly, Fosco was a guest at the 

Bensalem Comfort Inn and Suites on January 27, 2021, when he got into a 

dispute with the hotel’s staff over his lack of funds to extend his stay. Fosco 

became irate and began destroying hotel property. Staff and other hotel 

guests asked Fosco to stop, but Fosco pulled out a gun and began firing his 

weapon. Police responded and, eventually, were able to take Fosco into 

custody. Fosco was charged, inter alia, with the above-mentioned offenses.14

____________________________________________ 

7 Id. at § 2701.1(a). 

8 Id. at § 3304(a)(5). 

9 Id. at § 6106(a)(1). 

10 Id. at § 907(b). 

11 Id. at § 5104. 

12 Id. at § 5503(a)(4). 

13 35 P.S. § 780-113(a)(32). 

14 Fosco was also charged with two counts of attempted murder but was 

acquitted of that offense at trial. 
J-A14004-24 

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 On October 24, 2022, Fosco proceeded to a four-day jury trial, after 

which he was convicted of the above-mentioned offenses. The trial court 

deferred sentencing and ordered the preparation of a pre-sentence 

investigation report. 

 On March 24, 2023, the trial court conducted a sentencing hearing. The 

full breakdown of Fosco’s sentences are detailed in the trial court’s opinion. 

See id. at 9-10. Fosco was sentenced to an aggregate term of 11 to 22 years’ 

incarceration. 

 On April 3, 2023, Fosco filed two post-sentence motions, which the trial 

court denied. Fosco filed a timely notice of appeal and a court-ordered 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Fosco 

now raises the following claims for our review: 

[1.] Did the trial court abuse its discretion in admitting 

statements made by Matthew Mason that were inadmissible 

hearsay and not excited utterances, where [] Mason calmly 

responded to police questioning after leaving and returning to the 

scene of the incident at least fifteen minutes after the startling 

event, under circumstances which indicate that his statements 

were not spontaneous but rather the product of reflection upon 

past events? 

[2.] Did the trial court err in applying a test explicitly overruled 

by the Supreme Court of the United States in Crawford [v. 

Washington, 541 U.S. 36 (2004),] and admitting statements 

made by [] Mason—even assuming they would have otherwise 

been admissible under an exception to the hearsay rule—where 

the statements were testimonial, [] Mason was [] available, and 

the defense had no prior opportunity to cross-examine him such 

that the admission of the statements violated [Fosco]’s 

constitutional right to confront witnesses against him? 

Brief for Appellant, at 8. 
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 The trial court, in its opinion, addressed both of Fosco’s appellate claims 

together and we do so as well, as the claims are related. In both claims, Fosco 

contends that Mason’s statements to the responding police officers were 

hearsay without an exception and that the trial court erred in admitting those 

statements without Mason testifying. See id. at 15-34. Fosco argues that 

Mason was not “excited” when he spoke to the officers, but rather calm. See 

id. at 17-18. Fosco asserts that, after Fosco had already begun shooting, 

Mason left the hotel and returned later to speak with the officers. See id. at 

18-19. Fosco further contends that, by the time Mason returned to the hotel, 

the dangerous condition had been alleviated because police had secured the 

hotel and Fosco had been taken into custody. Id. at 18-20. Additionally, 

Fosco argues that the trial court, at trial, relied upon previously overturned 

case law, and that the error is not harmless. See id. at 23-34. 

 It is well-established that “[a] trial court’s rulings on evidentiary 

questions are controlled by the discretion of the trial court and will not be 

reserved absent a clear abuse of that discretion.” Commonwealth v. 

Manley, 985 A.2d 256, 265 (Pa. Super. 2009) (citation omitted). “An abuse 

of discretion is not a mere error of judgment but, rather, involves partiality, 

prejudice, bias, ill-will, or manifest unreasonableness.” Commonwealth v. 

Hardy, 918 A.2d 766, 776 (Pa. Super. 2007) (citation omitted). 

 Hearsay is an out-of-court statement introduced for the truth of the 

matter asserted. See Commonwealth v. Fitzpatrick, 255 A.3d 452, 458 

(Pa. 2021). While hearsay statements are generally inadmissible, a party may 
J-A14004-24 

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present otherwise inadmissible hearsay under the excited utterance exception 

provided in Pa.R.E. 803, which defines an excited utterance as “[a] statement 

relating to a startling event or condition, made while the declarant was under 

the stress of excitement that it caused.” Pa.R.E. 803(2). This Court has 

explained: 

The declaration need not be strictly contemporaneous with the 

existing cause, nor is there a definite and fixed time limit. Rather 

each case must be judged on its own facts, and a lapse of time of 

several hours has not negated the characterization of a statement 

as an “excited utterance.” The crucial question, regardless of the 

lapse of time, is whether, at the time the statement is made, the 

nervous excitement continues to dominate while the reflective 

processes remain in abeyance. 

Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978) (citations 

omitted). 

 After reviewing the record on appeal, the applicable standard of review, 

the relevant case law, and the parties’ briefs, we affirm on the basis of the 

trial court’s thorough and well-reasoned opinion.15 See Trial Court Opinion, 

11/30/23, at 1-19. Consequently, we afford Fosco no relief. The parties are 

____________________________________________ 

15 To the extent that Fosco argues the trial court relied upon previously 

overturned case law at the time of trial, this argument is of no moment. This 

court may affirm on any basis, and the reasoning provided in the trial court’s 

opinion, which we have adopted, sufficiently address Fosco’s claim. See 

Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (“an appellate 

court has the ability to affirm a valid judgment or verdict any reason appearing 

as of record”); see also Trial Court Opinion, 11/30/23, at 13-19. Because we 

conclude that the trial court’s determination, in its opinion, is supported by 

the record, we affirm on this basis and, consequently, Fosco is not entitled to 

relief. 
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directed to attach a copy of the trial court’s opinion in the event of further 

proceedings. 

 Judgment of sentence affirmed. 

 Lane, J., Joins this Memorandum. 

 Stabile, J., Concurs in the Result. 

Date: 7/23/2024 
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

COMMO 

V. 

TED LEROY FOSCO 

No. CP-09-CR-0000862-2021 

I. INTRODUCTION 

On January.27, 2021, Ted Leroy Fosco ("Appellant") entered the Bensalem 

Comfort Inn and Suites and, along with a female companion, rented a room for the 

night. The next morning, inexplicably agitated, Appellant walked to the hotel lobby and 

proceeded to violently terrorize guests and employees of the hotel. Appellant physically 

destroyed much of the lobby, despite numerous requests from staff to stop. When two 

hotel guests attempted to approach Appellant, he removed a firearm from his pocket 

and shot at them, whereupon they fled the building. Two employees of the Comfort Inn 

watched Appellant fire his gun through a live-feed camera, huddled in an office for 

safety. Appellant also attempted to rob a teenager and his family. When the teenager 

escaped to the safety of his family's hotel room, Appellant discharged his firearm 

outside the door of their room, while the family hid from the attack. 

Appellant was identified by law enforcement officers as the individual who 

perpetrated these crimes, and accordingly he was- charged with multiple offenses under 

criminal bill of information: CP-09-CR-0000862-2021. Specifically, Appellant was 

charged with two counts of Criminal Attempt — Criminal Homicide;' five counts of 

1 18 Pa.C.S.A § 901(a) 

I 

Circulated 07/03/2024 03:33 PM
Aggravated Assault— Attempts to Cause Serious Bodily Injury or Causes'lnjury with. 

Extreme Indifference, a felony of the first degree;2one count of Robbery — Threat of 

Immediate Serious Injury, a felony of the first degree; 3five counts of Aggravated Assault 

.Attempts to Cause or Causes Bodily Injury with a Deadly Weapon, a felony of the . 

second degree ;4 one count of Attempted Discharge of - a Firearm Into an Occupied 

Structure, a felony of the third degree; 5one count of Criminal Mischief — Damage to 

Property, a felony of the third degree; 6one count of Firearms Not to be Carried Without 

a License, a felony of the third degree;' five counts of Terroristic Threats With Intent to 

Terrorize Another, a misdemeanor of the first degree;8one count of Possession of 

(a) Definition of attempt."A person commits an attempt when, with intent to commit.a specific 

crime, he does any act which constitutes a substantial step toward the commission of-that 

crime. 

218 Pa.C.S.A. § 2702(a)(1) 

(a) Offense defined. 

A person Is guilty of aggravated assault if be: 

(1) attempts to cause serious bodily injury to another, or causes. such Injury' 

intentionally,- knowingly or recklessly under circumstances manifesting extreme 

ind'rfference.to the value of human'life[.] 

318 Pa.C.S.A § 3701(a)(ii) 

(a) Offense defined. 

(1) A person is guilty of robbery if, . in the course of committing a theft, he:. 

(ii) threatens another with or intentionally puts him in fear of immediate serious 

bodily injury; . 

418 Pa.C.S.A § 2702(a)(4) 

(a) Offense defined.-A person Is guilty -of aggravated assault if he: 

(4) attempts to cause or intentionally or knowingly causes bodily injury .to another with a 

deadly weapon[.] 

518 Pa. C. S.A § 2707.1(a) 

(a) Offense defined.4 persoh commits an offense if he knowingly, intentionally or recklessly 

discharges a firearm from any location into an occupied structure. 

818 P&C.S.A § 3304(x)(5) 

(a) Offense defined.—A person is guilty of criminal mischief If he: 

(5) intentionally damages real or, personal property of another(.] 

T 18 Pa.C.SA § 6106(a)(1) 

(a) Offense defined. 

(1) Exceptas'provided In. paragraph (2), -any person who carries a-firearm. In any vehicle 

or any person who carries a firearm concealed on or about his person; except in his place 

of at ode`or foxed place, of business, without a Valid and .lawfully issued license under this 

chapter-commits a felony of the third degree. 

818 Pa.C.SA.§ 2706(a)(1) , 

2 
Weapon, a misdemeanor of the first degree; 9five counts of Recklessly Endangering 

Another Person, a misdemeanor of the second degree; 10 five counts of Simple Assault, 

a misdemeanor of the second degree; 11 one count of Resisting Arrest/Other Law 

Enforcement, a misdemeanor of the second degree;l 2one count of Disorderly Conduct 

Hazardous/Physically Offensive, a misdemeanor of the third degree and;13 one count of 

Use or Possession of Drug Paraphernalia, a misdemeanor. 14

After a four day jury trial.was conducted the week of October 24, 2022, Appellant 

was convicted of two counts of Aggravated Assault — Attempts to Cause Serious Bodily 

Injury or Causes Injury with Extreme Indifference; one count of Robbery — Threat of 

(a) Offense defined.— A person commits the crime of terroristic threats if the person 

communicates, either directly or indirectly, a threat to: 

(1).commit any crime of violence with Intent to terrorize another[.] 

918 Pa.C.S.A. § 907(b) 

(b) Possession of weapon.—A person comm its a m isdemeanor of the first degree if he

possesses a firearm or other weapon concealed upon his person with intent to employ it 

criminally. 

10 18 -Pa.C.S.A. § 2705. 

A person commits a misdemeanor of the second degree if he recklessly engages In conduct 

which places or may place another person In danger of death or serious bodily injury. 

11 18 Pa.C.S.A. § 2701(a)(3) 

(a) Offense defined.—Except as. provided under section 2702 (relating to aggravated assault), a 

person is guilty of assault if he: _ 

(3) attempts by physical menace to put another in fear of imminent serious bodily -injury[.] 

12 18 Pa.C.S.A. § 5104. - A person commits a misdemeanor of the-second degree If, with the intent of 

preventing a public servant from effecting a lawful arrest or discharging any other duty, the person 

creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying 

or requiring substantial force to overcome the resistance. 

13 18 Pa.C.S.A. § 5503(a)(4).. 

(a) Offense defined: A person Is guilty of disorderly conduct if, with intent to cause public 

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: 

(4) creates a hazardous or physically offensive condition by any act which serves no 

legitimate purpose of the actor. 

M 35 P.S. § 780-113(a)(32) 

(a) The following acts and the causing thereof within the - Commonwealth are hereby prohibited:

(32) The use of, or possession w ith intent to use, drug paraphernalia for.the purpose of 

planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, 

converting, producing, processing, preparing, testing, analyzing, packing, repacking,

storing, containing, concealing, Injecting, ingesting, inhaling or otherwise introducing into 

the human body a controlled substance in violation of this act 

3 
Immediate Serious Injury; two counts of Aggravated Assault -- Attempts to Cause or 

Causes Bodily Injury with a Deadly Weapon; one count of Criminal Attempt - Discharge 

of a Firearm Into an Occupied Structure; one count of Criminal Mischief — Damage to 

Property; one count of Firearms Not to be Carried Without a License; five counts of 

Terroristic Threats With Intent to Terrorize Another, one count of Possession of a 

Weapon; five counts of Recklessly Endangering Another Person; three counts of Simple 

Assault; one count of Resisting Arrest/Other Law Enforcement; one count of Disorderly 

Conduct Hazardous/Physically Offensive and; one count of Use/Possession of Drug 

Paraphernalia. 

On March 24, 2023, Appellant was sentenced to an aggregate term of 

incarceration in a state correctio nal facility of not less than 11 years nor more than 22 

years. On April 3, 2023, Appellant filed Post-Sentence Motions, which were denied on 

July 20, 2023. 

Appellant now appeals from the Court's March 24, 2023, Judgment of Sentence. 

Accordingly, we file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure 

1925(a). 

IL FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

On January 27, 2021, Bensalem Township police received calls warning of an 

armed man in the lobby of the Bensalem Comfort Inn and Suites, N.T. 10/25/2022, p. 

58. Nancy Alvarado (" Ms. Alvarado") was employed as a. housekeeper at the hotel *on 

that date. N.T. 10/25/2022, pp. 94-95. Appellant had asked Ms. Alvarado to extend his 

stay at the Comfort Inn and Suites, -but he apparently lacked proper payment to do so, 

4 
which infuriated him. N.T. 10/25/2022, pp. 97-98. Appellant proceeded to destroy hotel 

property in the lobby. N.T. 10/25/2022, p. 101. 

Appellant threw the credit card machine and hand sanitizer dispenser to the 

ground. N.T. 10/26/2022, p. 180. He also threw the computer from the front desk and 

began to damage the couch located in the lobby. N.T. 10/26/2022, p. 180. Appellant's 

behavior continued to escalate, as he threw a podium to the ground and then attempted 

to pull a door off of its track. N.T. 10/26/2022, pp. 141-42. Appellant ripped a phone off 

the desk. 15 N.T. 10/26/2022, p. 144. 

Ms. Alvarado heard others ask Appellant to stop, who replied that " he [Appellant] 

ha[d] something for them." N.T. 10/25/2022, p. 102. At that moment, Appellant's 

behavior turned potentially deadly. While Ms. Alvarado hid under a table in the office, 

she heard two gunshots. N.T. 10/25/2022, p. 104. Ms. Alvarado was also able to see 

Appellant through a video camera in the office where she hid. N.T. 10/25/2022, p. 115. 

She was able to see Appellant"... [take] out from his clothing the gun that he 

discharged." N.T. 10/25/2022, p. I15. Ms. Alvarado testified that two subjects who 

appeared to be in harms way ran as a "puff of smoke" appeared from Appellant's 

firearm. N.T. 10/25/2022, pp. 115-116. 

Appellant had fired at and terrorized two men, Matthew Mason ("Mr. Mason") and 

Brett Evett (" Mr. Evett') Mr. Mason and Mr. Evett were construction workers from 

Alabama who were staying at the Comfort Inn as of January 27, 2021. 18 N.T. 

10/26/2022, p. 68. Upon observing the property damage caused by Appellant, Mr. 

1s Appellant testified at trial that he had no recollection of " knocking over fumiture' In the lobby. N.T. 10/27/2022, p. 64 

18 Appellant testified he had no recollection of meeting Mr. Mason or Mr. Even N.T. 10/27/2022, p. 42. . 

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Mason approached him and implored him to calm down, N.T. 10/25/2022, p. 179, while 

Mr. Evett picked up the trash can Appellant had thrown to the ground in the lobby. N.T. 

10/26/2022, p. 146. Then, as Ms. Alvarado observed through the video feed, Mr. Mason 

began to retreat as Appellant lifted his firearm and shot in his direction and the direction 

of Mr. Evett. N.T. 10/26/2022, pp. 148-149. As Mr. Mason and Mr. Evett retreated out 

the exit door, Appellant began to chase after them. N.T 10/26/2022, p. 149. 

Officer Bailey of the Bensalem Police Department testified that when he arrived 

on the scene, Mr. Mason was screaming that " he [Appellant] has a gun, he has a gun, 

he has a gun." N.T. 10/25/2022, pp. 170-71. Later, once Appellant was removed from 

the scene, Officer Bailey again spoke with Mr. Mason, who first inquired if everyone was 

safe, N.T. 10/25/2022, p. 180, and subsequently told Officer Bailey that he had 

approached Appellant and attempted to encourage him to calm down, as Appellant was 

demanding money and screaming at someone. N.T. 10/25/2022, p. 179. Appellant then 

said to Mr. Mason that " he [Appellant] was going to kill somebody" and pulled out his 

firearm. N.T. 10/25/2022, p. 179. 

On the same day, Appellant also terrorized Matthew Elliot, a teenager who was 

staying with his father and brother at the Comfort Inn, N.T. 10/25/2022, pp. 130-131. 

Matthew Elliot testified that on January 27, 2021, he was in the hotel lobby when 

Appellant walked fast toward him, hand in his pocket, and repeatedly asked if Matthew 

Elliot worked there. N.T. 10/25/2022, pp. 135-136. After Matthew Elliot said he did not 

work there, Appellant said, "give me everything you got or I'm going to fucking kill,you." 

N.T. 10/25/2022, pp. 135-36. 17 Matthew Elliot ran into his family's hotel room and locked 

"Appellant apparently chose not to threaten or attack several other Individuals in the lobby with whom 

Appellant Interacted on January 27, 2021. N.T. 10/26/2022, pp. 165-67. 

6 
the door, whereupon Appellant stood outside the door, yelling. N.T. 10/25/2022, pp. 

136-37. Appellant stated, "okay, have it your way then" and fired his gun outside of the 

Elliot family's hotel room door. N.T. 10/25/2022, p. 137. Matthew Elliot's father, who 

suffered from severe health challenges, remained on his hotel room bed, unable to 

move, N.T. 10/25/2022, p. 138, and the brothers hid behind the bed while Appellant was 

outside their door. N.T. 10/25/2022, p. 137. Appellant remained outside their door, and 

stated, "Pm going to take all your fucking money and then I'm going to bum this,-piece of 

shit place to the ground." N.T. 10/25/2022, p. 137. Appellant himself testified at trial that, 

"...once I realized that I literally shot into the floor, I said to myself, what the — are you 

doing? And at that point I was just at a loss. "18 N.T. 10/27/2022, p. 44. 

After Appellant's encounters with Mr. Mason, Mr. Evett, and Matthew Elliot, 

Officer Bailey and other Bensalem officers approached Appellant to take him into 

custody. N.T. 10/25/2022, p. 64. Appellant started to scream vulgarities at the officers, 

and he stated, "... you don't want to see my gun." N.T. 10/25/2022, p. 64. Appellant 

refused to listen to Bensalem Township Police commands, and officers had to attempt 

to physically restrain him. N.T. 10/25/2022, p. 66. The officers struggled and ultimately 

were able to wrestle Appellant to the ground, but Appellant refused to comply 

throughout the arrest, and refused to put his hands behind his back. N.T. 10/25/2022, p. 

67. Appellant was Increasingly agitated and was therefore tased three times, without 

much success at subduing him. N.T. 10/25/2022, p. 67. During the scuffle, Appellant 

continued to reach toward his waistband. N.T. 10/25/2022, p. 68. Officer Bailey 

described the scene: "... people were trying to hold him down. People were trying to hold 

1° Later in his testimony, Appellant categorized this as a " moment of clarity,' and stated he had no further 

recollection. 

7 
a leg. People were trying to get his arms. People were trying to get his hands behind his 

back." N.T. 10/25/2022, p. 70. Almost ten officers were required to subdue Appellant. 

N.T. 10/26/2022, p. 87. Once Appellant was subsequently handcuffed, a firearm was 

found in his pocket. N.T. 10/25/2022, p. 72. Appellant was subsequently able to 

comprehend commands and he was taken out of the Comfort Inn and to the Bensalem 

police station. N.T. 10/26/2022, p. 208. 

As a result of the Bensalem Police Department's subsequent investigation, spent 

bullet jackets were located at the end of the Comfort Inn hallway, on the lobby level, 

along with a spent bullet jacket in the lobby. N.T. 10/25/2022, p. 75; See Exhibit #C-4. 

Lieutenant Kolman, a Special Weapons and Tactics (SWAT) member for Bensalem 

Township, N.T. 10/26/2022, pp. 8-10, subsequently tested the firearm recovered from 

Appellant and found it to be operable. N.T. 10/26/2022, p. 14; See also Exhibit C-14; 

Exhibit C- 14A. Lieutenant Kolman testified that when the firearm was recovered from 

Appellant, there were "... two spent shell casings and two live rounds ....° N.T. 

10/26/2022, p. 20. 

Police Sergeant Tropiano testified that the Comfort Inn lobby area had chairs and 

tables toppled over when he arrived. N.T. 10/26/2022, p. 25. Additional items were 

overturned and thrown about directly in front of the hotel clerk's desk. N.T. 10/26/2022, 

p. 26. Sergeant Tropiano testified that there was a hole in the carpet and a bullet 

located outside of Room 131, where Matthew Elliot and his family stayed. N.T. 

10/26/2022, pp. 31-32; See Exhibit C-16; Exhibit C-18; Exhibit C-19. The bullet had 

ricocheted off the bottom of the doorway leading to Room 131. N.T. 10/26/2022, p. 39. 

8 
Sergeant Tropiano also inspected the hotel room where Appellant had been 

staying. N.T. 10/26/2022, p. 52. Inside the hotel room, Sergeant Tropiano recovered 

numerous cards registered to Appellant. N.T. 10126/2022, p. 52. A magazine for . 25 

caliber rounds and an Phone was also discovered during Sergeant Tropiano's 

investigation. N.T. 10/26/2022, p. 53. Specific to the drug- charges in this case, Sergeant 

Tropiano testified that there was 'a green and purple trash can vial within the room and a 

glass pipe -recovered. N.T. 10/26/2022,.p. 53. Based on his experience and training with 

regard to drugs and drug paraphernalia, Sergeant Tropiano testified that "the two plastic 

trash can vials... are commonly used to store narcotics." N.T. 10/26/2022, p. 55; See 

Exhibit C-23. As to the glass pipe, Sergeant Tropiano testified that the glass pipe was 

"mostly used for narcotics" and that individuals commonly smoke narcotics out of the 

glass pipe. N.T. 10/26/2022, p. 57. 

Appellant was accordingly charged under criminal bill of information: CP-09-CR0000862-2021 with the myriad aforementioned charges related to the alleged attempted 

murders, aggravated assaults, and other criminal offenses which arose out of 

Appellant's actions on January 27, 2021. 19 On' October 24, 2022, a four-day jury trial 

commenced, and Appellant was convicted.of the aforementi oned charges.20 On March 

24, 2023, as to counts 6 and 7 of Criminal Information 0862-2021, this Court sentenced. 

Appellant to a period of incarceration on each count -of not less than 3.5 years nor more 

than .7 years in a state- correctional facility, to run consecutively to one another. As to 

count 8, Appellant was sentenced to no less than 2 years to no more than 4 years in a 

19 See aforementioned charges for criminal bill of information CP-09-CR-0000862-2021. 

20 See pages 2-3 of this Opinion for specific charges of which Appellant was found guilty. He was 

acquitted of the attempted murders and several other charges. 

9 
state correctional facility, to run consecutive to the sentence imposed at count 7. As to 

count 14, Appellant was sentenced to no less than 1 year to no more than 2 years in a 

state correctional facility, to run consecutive to the sentence imposed on count 8. As to 

Count 16, Appellant was sentenced to not less than 12 months nor more than 24 

months in a state correctional facility, with the sentence to run consecutively to the 

sentence imposed on Count 14. Appellant was given credit for time served, which was 

calculated from January 28, 2021, to March 24, 2023. This Court ordered no further 

penalty on counts 9, 13, 15, and 17-34. Appellant was sentenced, then, to an aggregate 

term of incarceration in a state correctional facility of not less than 11 years nor more 

than 22 years. 

On April 3, 2023, Appellant filed two " Post-Sentence Motions": a " Motion for 

Reconsideration of Sentence" and a "Motion as to Trial Issues." On July 20, 2023, this 

Court denied both Motions without a hearing, finding that they were without merit, and 

that they failed to delineate any averments which raised material issues not previously 

or properly considered at the time of the relevant proceedings. On August 18, 2023, 

Appellant timely filed a Notice of Appeal with the Pennsylvania Superior Court. 

Accordingly, we file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure 

1925(a). 

111. APPELLANT'S STATEMENT OF MATTERS COMPLAINED OF ON APPEAL 

PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 

1925(b) 

On August 28, 2023, this Court issued its 1925(b) Order. On September 18, 

2023, Appellant filed a timely Statement of Matters Complained of on Appeal, which is 

10 
reproduced, verbatim, below. In his Statement, Appellant alleges the following 16 claims 

of alleged error for this Court to address: 

1. The Trial Court erred in permitting Officer Steven Bailey to testify to the 

hearsay statements made by Mr. Mason that " he has a gun, he has a 

gun" as the statement was hearsay, did not constitute an excited 

utterance or any other exception to the rule against hearsay, in 

violation of Appellant's right to due process of law and to confront and 

cross-examine the witnesses against him as guaranteed to him by the 

United States and Pennsylvania Constitutions. 

2. The Trial Court erred in permitting Officer Steven Bailey to testify to 

hearsay statements made by Mr. Mason that Appellant was demanding 

money and said he was going to kill someone as these statements 

were hearsay, did not constitute an excited utterance, and did not fall 

within any other exception to the rule against hearsay, in violation of his 

right to due process of law and to confront and cross-examine the 

witnesses against him as guaranteed to him by the United States and 

Pennsylvania Constitutions. 

3. The Trial Court erred in refusing to allow Appellant to present the 

testimony of Michael Fosco, in violation of his constitutional right to due 

process. of law and to present a defense as secured to him by the 

United States and Pennsylvania Constitutions. 

4. The verdict of guilty of Aggravated Assault — Attempt to Cause Serious 

Bodily Injury to Matthew Mason was not supported by sufficient 

evidence because the Commonwealth failed to establish beyond a 

reasonable doubt that Appellant acted with the required intent. 

5. The verdict of guilty of Aggravated Assault — Attempt to Cause Serious 

Bodily Injury to Brett Evett was not supported by sufficient evidence 

because the Commonwealth failed to establish beyond a reasonable 

doubt that Appellant acted with the required intent. 

6. The charge of Possession of Drug Paraphernalia was not supported by 

sufficient evidence because the Commonwealth failed to establish 

beyond a reasonable doubt that Appellant possessed an item with the 

intent to use it to ingest narcotics. 

7. The charge of Aggravated Assault— Attempts to Cause Bodily Injury 

with a Deadly Weapon to Matthew Mason was not supported by 

sufficient evidence because the Commonwealth failed to establish 

beyond a reasonable doubt that Appellant attempted to cause bodily 

injury to Matthew Mason or that Appellant possessed the requisite 

11 
Intent. 

8. The charge of Aggravated Assault - Attempts to Cause Bodily Injury 

with a Deadly Weapon to Brett Evett was not supported by sufficient 

evidence because the Commonwealth failed to establish beyond a 

reasonable doubt that Appellant attempted to cause bodily injury to 

Brett Evett or that Appellant possessed the requisite intent. 

9. The charge of Aggravated Assault - Attempts to Cause Serious Bodily 

Injury to Matthew Mason is not supported by sufficient evidence 

because the Commonwealth failed to establish beyond a reasonable 

doubt that Appellant took a substantial step towards causing serious 

bodily injury to Matthew Mason. 

10. The charge of Aggravated Assault - Attempts to Cause Serious Bodily 

Injury to Brett Evett is not supported by sufficient evidence because the 

Commonwealth failed to establish beyond a reasonable doubt that 

Appellant took a substantial step towards causing serious bodily injury 

to Brett Evett. 

11. The charge of Criminal Attempt - Discharge a Fi rearm Into an

Occupied Structure is not supported by'sufficient evidence because 

the Commonwealth failed to establish beyond a reasonable doubt that 

Appellant attempted to discharge a firearm into an occupied structure. 

12. The charge of Robbery is not supported by sufficient evidence 

because the Commonwealth failed to establish beyond a reasonable 

doubt that Appellant intentionally put the victim in fear of immediate 

serious bodily injury. 

13. The charge of Robbery is not supported by sufficient evidence 

because the Commonwealth failed to establish beyond a reasonable 

doubt that Appellant did this during the course of committing a theft. 

14. The Trial Court erred in sentencing Appellant to an aggregate sentence 

which exceeds what is necessary to protect the public and rehabilitate 

Appellant. 

15. The Trial Court abused its discretion in sentencing Appellant because 

the Trial Court failed to take into consideration Appellant's age, 

conduct, character, criminal history, the impact of Appellant's actions 

on the community, and Appellant's rehabilitative needs. 

16. The.Trial Court erred in sentencing Appellant because the Trial Court 

relied on improper factors in imposing sentence. 

12 
For the ease of discussion, Appellant's 16 claimed errors may be consolidated 

into four all-encompassing issues for the purposes of this Opinion: 

1. Whether this Court erred in allowing Officer Steven Bailey to testify as 

to Mr. Matthew Mason's statements, which were allegedly 

impermissibly admitted into evidence as excited utterances, per the 

long-recognized exception to the rule against hearsay. 

2. Whether this Court erred in not permitting Appellant to present the 

testimony of Michael Fosco, who, per a proffer from defense counsel, 

would have testified to events which occurred after January 27, 2021. 

3. Whether this Court erred in upholding the jury's verdict that Appellant 

was guilty of the above-described offenses under Criminal Information 

Number CP-09-CR-0000862-2021, when the evidence at trial was 

allegedly insufficient to prove that Appellant committed the myriad 

offenses. 

4. Whether this Court abused its discretion in imposing an aggregate 

sentence of not less than 11 years nor more than 22 years in a state 

correctional facility. 

IV. DISCUSSION 

A. This Court did not err in allowing Officer Steven Bailey to testify as to the 

excited utterance statements by victim Matthew Mason, when they were 

made shortly after shots were fired in his direction by the DefendantAppellant. 

The Pennsylvania Supreme Court's standard for reviewing evidentiary claims 

arising from the trial level is well-settled: "... the admissibility of evidence rests within the 

sound discretion of the trial court, and such a decision will be reversed only upon a 

showing that the trial court abused its discretion." Com. v. Boczkowski, 846 A.2d 75, 93 

(Pa. 2004) (internal citations omitted). 

Hearsay is defined as "a statement that the declarant does not make while 

testifying at the current trial or hearing; and a party offers in evidence to prove the truth 

of the matter asserted in the statement." Pa.R.E. 801(c). As articulated in 

Commonwealth v. Dent, 837 A.2d 571, 577 ( Pa. Super. 2003)(citing Commonwealth v. 

113 
Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002)), hearsay statements are "... per se 

inadmissible..." unless the statement qualifies as an exception to hearsay under the 

Pennsylvania Rules of Evidence, or is declared admissible by statute or the 

Pennsylvania Supreme Court. 

Pennsylvania Rule of Evidence 803(2), which governs the excited utterance 

exception to the rule against hearsay, states as follows: 

(2) Excited Utterance. A statement relating to a startling event or condition, 

made while the declarant was under the stress of excitement that it caused. 

When the declarant is unidentified, the proponent shall show by independent 

corroborating evidence that the declarant actually perceived the startling event or 

condition. 

To qualify as an excited utterance, the statement must be "a spontaneous 

declaration by a person whose mind has been suddenly made subject to an 

overpowering emotion caused by some unexpected and shocking occurrence, which 

that person has just participated in or closely witnessed, and made in reference to some 

phase of that occurrence which he perceived, and this declaration must be made so 

near the occurrence both in time and place as to exclude the likelihood of its having 

emanated in whole or in part from his reflective faculties...." Com. v. Grav, 867 A.2d 

560, 570 ( Pa. Super. 2005). The Pennsylvania Supreme Court in Commonwealth v. 

Pronkoskie 383 A.2d 858, 862-63. (Pa. 1978) observed that, unlike other exceptions to 

hearsay, the excited utterance exception has "... no clear-cut rule as to the time 

sequence required for a statement to qualify as an excited utterance, ... rather that factspecific determination is to be made on a case-by-case basis." Gray, 867 A.2d at 570. 

In sum, to meet the requirements for characterization as an excited utterance, it must be 

demonstrated, "... first, that [the declarant] ... witnessed an event sufficiently startling 

14 
and so close in point of time as to render [his or] her reflective thought processes 

inoperable and, second, that [his or] her declarations were a spontaneous reaction to 

that startling event." Gray, ,867 A.2d at 570 (internal citations omitted). 

In the present case, both statements alleged by Appellant to have been 

Improperly admitted fell squarely within the excited utterance exception to hearsay. In 

Commonwealth v. Gray, the court found that when the daughter approached officers 

following witnessing an assault on her mother, and then volunteered statements to the 

officers, the statements fell within the excited utterance exception to hearsay. Gray, 867 

A.2d at 571. The Gray court held that "[the daughter] made the statements while 

dominated by nervous excitement, not her reflective faculties ... [and] made the 

statements near in both time and place to the alleged assault." Id. at 571. These excited 

utterances were made by the daughter outside the home, while the assault against her 

mother was ongoing. Id. 

As in Gray, Mr. Mason's initial statement to a police officer in the present case 

that, " he has a gun, he has a gun, he has a gun" N.T. 10/25/2022, pp. 170-71, qualified 

as an excited utterance. Mr. Mason had clearly perceived'"... an event sufficiently 

startling...", Grav, 867 A.2d at 570, as Appellant had fired his weapon in the direction of 

Mr. Mason. N.T. 10/26/2022, pp. 148-49. Ms. Alvarado testified that after Appellant shot 

at him, Mr. Mason fled the Comfort Inn while Appellant gave chase. N.T. 10/26/2022, p. 

149. It is evident that Mr. Mason was ".... under the stress of excitement...," as Officer 

Steven Bailey testified that Mr. Mason was screaming the words " he has a gun," 

repeating the same words three times. N.T. 10/25/2022, pp. 170-71. Additionally, Mr. 

1s 
Mason's statements were "a spontaneous reaction," not a product of reflective thought, 

as Mr. Mason did not utter his statement in response to any police questioning. 

Mr. Mason's second statement, that Appellant was demanding money and that 

Appellant said " he was going to kill somebody," N.T. 10/25/2022, p. 179, also qualified 

as an excited utterance. Mr. Mason made this statement after he had fled the building 

and circled back to speak with Officer Steven Bailey. N.T. 10/25/2022, p. 179. The fact 

that Mr_ Mason did not make these .statements immediately following the shooting; does 

not mandate exclusion of the statements as excited utterances. As articulated in Gray,

there is no set time4imit for determining whether a statement constitutes an excited 

utterance. Gray, 867 A.2d at 570. Indeed in Commonwealth v. Soudani, 155 A.2d 227, 

230-31 (Pa. Super. 1959), afPd. 159 A.2d 686-87 (Pa. 1960), the Superior Court found 

that statements uttered in response to questions by a nurse administering aid, made 45 

minutes after the assault had occurred, while the victim was in shock, and when the 

statements were made "... near the beginning of the 45 minutes period above referred 

to...," were admissible under the excited utterance exception. 

Here, Mr. Mason made these statements after he had fled the building and 

returned back to the scene, while the investigation was still actively ongoing. N.T. 

10/25/2022, P. 179. While Mr. Mason volunteered these statements in response to

Officer Steven Bailey's question, 'Who said he had a gun?", this did not remove Mr. 

Mason's statement from the excited utterance exception. N.T. 10/25/2022, pp. 178-79. 

In Commonwealth v. Colon, 102, A,3d 1033, 1039 (Pa. Super. 2014), the Superior 

Court stated, "... [t]he jurisprudence -of this Commonwealth makes it clear that a 

statement, which otherwise qualifies as an excited utterance, is not precluded from 

16 
falling within the excited utterance exception to the hearsay rule when made in 

response to questioning...." (internal quotation omitted) (internal citation omitted). In 

Colon, the statement was not removed from the excited utterance exception, when the 

statement was made only In response to a police officer asking* what happened. Id. 

The.Supedor Court's decision in Colon is directly on-point. Although Mr. Mason 

proffered the statements In response to Officer Bailey's question, Mr. Mason's 

statements still qualified as excited utterances since,, as was true in Colon, Officer 

Bailey was seeking a clarification as to what happened, Mr. Mason's statements were 

made while still under the stress of being shot at by Appellant, and Mr. Mason's 

statements related back to the emergency situation. 

Appellant further alleges on appeal that the admission of these statements. 

violated Appellant's constitutional right to confrontation. As applied in Pennsylvania, 

"...[t]he Confrontation Clause of the Sixth Amendment, applicable to the states through 

the due process clause of the Fourteenth Amendment, provides that in " all criminal 

prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses 

against him." Commonwealth v. Robins, 812 A.2d 514, 520 ( Pa. 2002) (internal citations 

omitted). However, the Pennsylvania Supreme Court has delineated certain exceptions 

to the Confrontation Clause requirements, noting in Robins that: 

"...the [United States Supreme] Court has determined that certain hearsay 

statements marked with sufficient indicia of reliability may be admitted despite 

the absence of the witness from trial [and despite a Confrontation Clause 

Challenge]... Such indicia of reliability are deemed present without the need for 

further inquiry where the statement fits within a "firmly rooted" exception to the 

hearsay rule, or, alternatively, where the circumstances in which the statement 

was made manifest particularized guarantees of trustworthiness such that 

adversarial testing would be expected to add little, If anything, to the statement's 

reliability." 

17 
Com. v. Robins, 812 A.2d 51.4, 522 ( Pa. 2002) (internal citations omitted). 

The Superior Court in Commonwealth v. Sanford, 580 A.2d 784, 787-88 (Pa. 

Super. 1990), observed that an excited utterance is an example of a "firmly rooted 

exception" to the requirements of the Confrontation Clause. In the present case, Mr. 

Mason returned to Alabama following the incident on January 27, 2021. N.T. 

10/27/2022, pp. 237-38. While the Commonwealth attempted to contact Mr. Mason, 

Defense Counsel was unable to cross-examine Mr. Mason before or during tria!?1. N.T. 

10/25/2022, p. 160. Nevertheless, per the above noted rule of evidence and legal 

standards set forth in decisional law, Mr. Mason's statements clearly fit within the 

excited utterance exception to the rule against hearsay. Accordingly, Appellant's 

Confrontation Clause rights were not violated by admission of Mr. Mason's statements. 

We note that, even if the admission of Mr. Mason's statements were found to be 

error (a proposition with which this Court strenuously disagrees,) the alleged error is 

harmless. Mr. Mason's statements only served to add to and corroborate the 

overwhelming testimonial and documentary evidence concerning Appellant's criminal 

conduct on January 27, 2021. At trial, video evidence was provided from the Comfort 

Inn, Ms. Alvarado testified to how Appellant raised his firearm and fired in the direction 

of Mr. Mason, and several officers from the Bensalem Township Police Department 

confirmed that Appellant had a firearm on his person, which had been recently fired. Mr. 

21 The Commonwealth attempted to contact Mr. Mason on numerous occasions; officers called Mr. 

Mason, contacted local police agencies, issued subpoenas, and sent certified mail to his listed address. 

N.T. 10/26/2022, p. 237. It should be noted that the Commonwealth made contact with Mr. Mason during 

the morning of October 26, 2022, while trial was ongoing. N.T. 10/26/2022, p. 238. Mr. Mason had:been 

traveling for work, and called into the court once he retumed and was informed of the summons. N.T. 

10/26/2022, pp. 238-39. At that point, there was insufficient time to fly Mr. Mason from Alabama to Bucks 

County, N.T. 10/26/2022, p. 239, since the trial was to conclude the next day. 

18 
Mason's excited utterance statements were not close to serving as the sole evidence 

which were the foundation for the jury's decision to convict Appellant. 

B. The Court did not err when it did not permit Michael Fosco to testify, as he 

would only have testified to events occurring after January 27, 2021, which 

were not relevant to the crimes charged and which had no probative value. 

It is axiomatic that for a witness to present testimony at trial, the proffered 

testimony must be relevant. In Commonwealth v. Hawk, 709 A.2d 373, 376 ( Pa. 1998), 

the Pennsylvania Supreme Court declared that in order to be admissible, evidence must 

be both relevant, and be more probative than unduly prejudicial. The Court defined 

relevant evidence as "...[e]vidence [which] ... 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." Hawk,

709 A.2d at 376. (internal citation omitted). 

In the present case, Appellant's brother, Michael Fosco's proffered testimony 

was not relevant to establishing Appellant's innocence or guilt as to his actions on 

January 27, 2021. Outside the presence of the jury, we provided an on the record 

opportunity for defense counsel to proffer Michael Fosco's proposed testimony. N.T. 

10/27/2022, p. 6. Michael Fosco would only have testified to events which happened at 

least a day after Appellant interacted with victims Matthew Mason, Brett Evett, and 

Matthew Elliot and was subsequently arrested. N.T. 10/27/2022, p. 8. While Michael 

Fosco would have allegedly testified that Appellant's vehicle was possibly given to 

Crystal Kelly, a woman who accompanied Appellant when he rented the hotel room at 

the Comfort Inn the previous night, and that the vehicle later was found ransacked, 

Michael Fosco's testimony did not relate to establishing any material fact as to whether 

19 
or not Appellant was criminally culpable for his actions on January 27, 2021. N.T. 

10/27/2022, pp. 6-7. Importantly, it was undisputed that Crystal Kelly was not present 

during Appellant's interactions with Mr. Mason, Mr. Evett, and Matthew Elliot on January 

27, 2021. N.T. 10/27/2022, pp. 8-9. Michael Fosco's proffered testimony would only 

have related to Crystal Kelly's alleged actions and would not have related to any facts at 

issue with regard to Appellant's criminal charges which stemmed from his actions on 

January 27, 2021. N.T. 10/27/2022, pp. 8-9. Therefore, as Michael Fosco's testimony 

was not relevant to Appellant's conduct on January 27, 2021, we properly precluded 

Michael Fosco from testifying. 

C. The Commonwealth presented sufficient evidence that Appellant 

committed the crimes of Aggravated Assault — Attempts to Cause Serious 

Bodily Iniury, Aggravated Assault — Attempts to Cause Bodilv Iniury with a 

Deadly Weapon, Criminal Attempt — Discharge of a Firearm Into an 

Occupied Structure, Robbery, and Possession of Druq Paraphernalia. 

The law on a challenge to the sufficiency of evidence is well-settled in this 

Commonwealth. In Commonwealth v. Seqida, 985 A.2d 871, 880 (Pa. 2009), the 

Pennsylvania Supreme Court announced the standard as follows: 

When reviewing a challenge to the sufficiency of the evidence, we must 

determine if the Commonwealth established beyond a reasonable doubt 

each of the elements of the offense, considering the entire trial record and 

all of the evidence received, and drawing all reasonable inferences from the 

evidence in favor of the Commonwealth as the verdict-winner. The 

Commonwealth may sustain its burden of proof by wholly circumstantial 

evidence. 

When evaluating the sufficiency of the evidence, the Court"... may not weigh the 

evidence and substitute [its] judgment for the fact-finder. Com. v. Lewis, 911 A.2d 558, 

563 ( Pa. Super. 2006) (internal citations omitted). A challenge to the sufficiency of the 

evidence is only successful if "... the evidence is so weak and inconclusive that as a 

20 
matter of law no probability of fact may be drawn from the combined circumstances." Id. 

Otherwise, any doubts regarding a defendant's guilt may be resolved by the jury as factfinder. Com. v. Storey, 167 A.3d 750, 757 ( Pa. Super. 2017). There is no mandate that 

"... the facts and circumstances established by the Commonwealth ... preclude every 

possibility of innocence." Id. 

We will now address each of Appellant's sufficiency of the evidence contentions. 

.1. The Commonwealth presented sufficient evidence that Appellant 

committed Aggravated Assault — Attempts to Cause Serious Bodily 

Injury to Matthew Mason and Brett Evett when Appellant removed his 

weapon, lifted his weapon, and rued his weapon in their direction. 

Appellant was convicted of two counts of Aggravated Assault — Attempts to 

Cause Serious Bodily Injury as to victims, Matthew Mason and Brett Evett. Specifically, 

Appellant alleges that he lacked the required intent for the jury to find him guilty of these 

charges. The statute defining Aggravated Assault — Attempts to Cause Serious Bodily 

Injury states as follows: 

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). 

In order to establish intent for a conviction under 18 Pa.C.S. § 2702(a)(1), the 

Superior Court has noted that, "... an inquiry into intent must be determined on a caseby-case basis." Com. v. Bruce, 916 A.2d 657, 661 (Pa.. Super. 2007) (internal citation 

omitted). The Pennsylvania legislature has defined serious bodily injury as "b]odily 

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 

21 
organ." Com. v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (citing 18 Pa.C.S.A. § 

2301) (internal quotation omitted). 

The Superior Court has noted that intent to cause serious bodily injury may be 

proven circumstantially, as direct evidence is rarely available. Id. When the 

Commonwealth intends to prove intent through the introduction of circumstantial 

evidence, the Superior Court instructs that, "[i]n determining whether intent was proven 

_from such circumstances, the fact finder is free to conclude the accused intended the 

natural and probable consequences of his actions to result therefrom." Id. ( internal 

quotations omitted) (internal citation omitted). In Bruce, the Superior Court expressly 

stated that the presence of a weapon can be considered probative evidence for the 

purpose of a finding of intent. Id. at 661-62. 

The Superior Court stated, "-[t]o prevail on a theory of recklessness, the 

Commonwealth must show an assailant's recklessness rose to the level of malice, a 

crucial element to sustain a conviction for aggravated assault." Id. at 664 (internal 

citation omitted). Specific to the charge of aggravated assault, the Superior Court 

articulated that as to malice, "... [a] defendant must display a conscious disregard for 

almost certain death or injury such that it is tantamount to an actual desire to injure or 

kill; at the very least, the conduct must be such that one could reasonably anticipate 

death or serious bodily injury would likely and logically result. Id. (internal citations 

omitted). 

In the present case, there was more than sufficient evidence to support the jury's 

finding that Appellant acted with the requisite intent with regard to Mr. Mason and Mr. 

Evett. As was true in Bruce, which delineated that a probative factor in determining 

22 
intent for an aggravated assault conviction is the presence of a firearm, Appellant 

brought a firearm to the lobby of the Comfort Inn and then fired his weapon in the 

direction of Mr. Mason and Mr. Evett. N.T. 10/26/2022, pp. 148-49. Furthermore, after 

Appellant fired in their direction, Appellant chased after them as they ran from the 

building. N.T. 10/26/2022, p. 149. Ms. Alvarado testified specifically that she observed 

through a live camera feed, that Appellant removed his firearm from his clothing, and 

that there was then a "puff of smoke." N.T. 10/25/2022, pp. 115-16. The choices that 

Appellant made, bringing a firearm to the lobby of the hotel, removing the firearm from 

his pants pocket, lifting the firearm in the direction of Mr. Mason and Mr. Evett, and 

then, ultimately discharging his firearm In their direction, are obviously facts sufficient for 

the jury to find that Appellant possessed the requisite intent. 

It should be noted that while Appellant chose to fire his weapon at Mr. Mason 

and Mr. Evett, Appellant also made several choices on January 27, 2021, not to 

produce his firearm or otherwise attack several other individuals at the hotel in question. 

N.T. 10/26/2022, pp. 165-67. A guest of the Comfort Inn even touched Appellant's 

person, and Appellant chose not to harm her and did not threaten to employ or actually 

discharge his firearm in that interaction. N.T. 10/26/2022, pp. 166-67. Since Appellant 

chose to fire his weapon in the direction of Mr. Mason and Mr. Evett, the factfinder, the 

jury here, could "... conclude [that] the accused intended the natural and probable 

consequences of his actions to result therefrom." Bruce, 916 A.2d at 661. (internal 

citation omitted). 

Even if this Court were to find that Appellant was not acting intentionally or 

knowingly, there was sufficient evidence for the jury to find that he acted recklessly. 

23 
Appellant's decision to fire a loaded weapon in the direction of two. Individuals — Mr. 

Mason and Mr. Evett — is definitively a decision where"... one could reasonably 

anticipate death or serious bodily injury would likely and logically result." Accordingly, 

there was sufficient evidence for the-jury to find that the Commonwealth proved each 

and every requisite element of the challenged aggravated assault convictions. 

2. The Commonwealth presented sufficient evidence that Appellant 

committed Aggravated Assault— Attempt to. Cause Bodily Injury with 

a Deadly Weapon, when Appellant brought a firearm to the lobby of 

the Comfort Inn, removed his firearm from his pants pocke4 and 

discharged the weapon In the direction of Matthew Mason and Brett 

Evett: 

Appellant argues that the evidence presented at trial was insufficient to fiord that 

Appellant had the requisite intent and/or that Appellant took a substantial step toward 

fully committing the Aggravated Assault. The statute delineating Aggravated Assault — 

Attempt to Cause Bodily Injury with a Deadly Weapon, Is produced verbatim below: 

A person is guilty of aggravated assault if he: 

(4) attempts to cause or intentionally or knowingly causes bodily injury to 

another with a deadly weapon[.] 

18 Pa.C.S.A. § 2702 (a)(4). 

The Superior Court has observed that, "[f]or aggravated assault purposes, an 

attempt is found where an accused who possesses the required, specific intent acts in a 

manner which constitutes a substantial step toward perpetrating a serious bodily injury 

upon another." Com. v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (internal citation 

omitted.) As articulated by the Court in Commonwealth. v. Stancil, 334 A.2d 675, 677 

(Pa. Super. 1975), there is no requirement that an individual victim actually suffer injury 

In order for an aggravated assault conviction to be upheld. Rather, when evaluating if a 

24 
defendant possessed the requisite specific intent, the court must examine the 

defendant's behavior, and the totality of evidence presented, direct and circumstantial. 

Com. v. Holley, 945 A.2d 241, 247 ( Pa. Super. 2008). Indeed, "... depending on the 

circumstances even a single punch may be sufficient." Id. 

Pennsylvania courts have analyzed numerous cases of aggravated assault. In 

Commonwealth v. Lopez, 654 A.2d 1150, 1152 (Pa. Super. 1995), the Superior Court 

held that an individual could be found guilty of Aggravated Assault - Attempt to Cause 

Bodily Injury with a Deadly Weapon, provided the individual possessed the requisite 

intent, even in a situation where a person fired the weapon into an- empty house. In 

Commonwealth v. Holley, the Superior Court found that the evidence was suffclentto 

find the defendant guilty of aggravated-assault, since the defendant intended to cause 

bodily injury with a deadly weapon, when the defendant removed a firearm from a 

prison guard, and pointed and shot the firearm at the prison guard following a physical 

altercation. Hollev, 945 A.2d at 249. 

In the present case, there Is clearly sufficient evidence to support the jury's 

finding that Appellant committed Aggravated Assault — Attempt to Cause Bodily Injury 

with a Deadly Weapon, as to both Matthew Mason and Brett Evett. Specifically, 

Appellant produced a firearm in the lobby of the Comfort Inn. N.T. 10/26/2022, pp. 148-

49. The Commonwealth presented evidence that while Appellant chose not to aim his 

firearm at several other patrons of the hotel, N.T. 10/26/2022, pp. 165-67, he lifted and 

fired his weapon in the direction of Mr. Mason and Mr. Evett. N.T. 10126/2022, pp. 148-

49. Ms. Alvarado corroborated this testimony at trial, as she personally observed 

Appellant lift his firearm in their direction, and she then heard two gunshots. N.T. 

25 
10/25/2022, pp. 104. The Commonwealth clearly presented sufficient evidence, then, 

that Appellant took a substantial step toward causing Mr. Mason and Mr. Evett bodily 

injury, through the unlawful discharges of his firearm. 

Accordingly, there was more than sufficient evidence presented for the jury to 

determine Appellant was guilty of Aggravated Assault — Attempt to Cause Bodily Injury 

with a Deadly Weapon. 

3. The. Commonwealth presented sufflcient.evidence that Appellant 

committed Criminal Attempt— Discharge a Firearm Into an Occupied 

Structure, when Appellant attempted to discharge his firearm into an 

occupied hotel guest room. 

Appellant avers that a hotel room cannot constitute an "occupied ;structure" for 

the purposes of a conviction under the pertinent statute. N.T. 10/27/2022, p. 16. The 

statute regarding Criminal Attempt ; Discharge a Firearm Into an Occupied Structure, 

states as follows: 

A person commits an offense if he knowingly, intentionally or recklessly 

discharges a firearm from any location into an occupied structure. 

18 Pa.C.S.A. § 2707.1(a) 

The Pennsylvania legislature has defined an "occupied structure" as including 

"[a]ny structure, vehicle or place adapted for overnight accommodation of persons or for 

carrying on business therein, whether or not a person is actually present."18 Pa.C.S.A. . 

§ 2707.1(d). In Commonwealth v. Headley, 242 A.3d 940, 948-49 ( Pa. Super. 2020), 

the defendant discharged a firearm into an apartment below the apartment defendant 

occupied. The Superior-Court held that the definition of an °occupied structure" includes 

separate apartments located within the same apartment building. The Court stated, 

26 
"Section 2707.1(d) unambiguously defines occupied structure, and It includes a place 

adapted for overnight accommodation of persons." Id. ( internal quotations omitted.) 

In the present case, as was true in Headlev, Appellant was within the same 

building, the Comfort Inn, as victims Matthew Elliot and his family. N.T. 10/25/2022, pp. 

94-95; 130-31. The Headley analysis, along with logic, dictates that a separate hotel 

guest room, much like the separate apartment unit, constitutes an "occupied structure." 

The Commonwealth presented evidence that Appellant was outside of Matthew Elliot's 

locked hotel room, and that Appellant removed his firearm from his pants pocket, and 

attempted to shoot into the occupied hotel room through the door. N.T. 10/25/2022, pp. 

136-37. Appellant conceded that he fired his weapon, when he testified at trial that, 

"...once I realized that I literally shot into the floor, I said to myself, what the — are you 

doing? And at that point I was just at a loss." N.T. 10/27/2022, p. 44. Each of these 

action steps that Appellant took demonstrated his intent to recklessly, knowingly, and or 

intentionally shoot into Matthew Elliot's hotel room, an occupied structure. Accordingly, 

there was more than sufficient evidence for the jury to find that Appellant was guilty of 

this offense, and Appellant's claim of insufficiency is meritless. 

4. The Commonwealth presented sufficient evidence that Appellant 

committed Robbery — Threat of Immediate Serious Bodily Injury 

when Appellant approached Matthew E11164 expressly threatened his 

victim's We in exchange for money, and then used his rrreann to 

shoot at Matthew Elliot's hotel room door. 

Appellant alleges that the Commonwealth failed to present sufficient evidence 

that Appellant had the intent to place his victim in fear of Immediate bodily injury, and 

that there was insufficient evidence to establish Appellant acted while in the course of 

27 
committing a theft. The statute regarding Robbery — Threat of Immediate Serious Injury, 

states as follows: 

(1) A person is guilty of robbery if, in the course of committing a theft, he: 

(ii) threatens another with or intentionally puts him in fear of immediate 

serious bodily injury[.] 

18 Pa.C.S.A. § 3701(a)(1)(ii). 

In Com. v. Hopkins, 747 A.2d 910, 914 ( Pa. Super. 2000), the Superior Court 

announced that "...[f]orthe purposes of subsection 3701(a)(1)(ii), the properfocus is on 

the nature of the threat posed by an assailant and whether he reasonably placed a 

victim in fear of immediate serious bodily injury." Id. at 914 (internal quotation omitted) 

(internal citation omitted). Specifically; as to firearms, the Hopkins court stated, "[a] 

factfinder is entitled to infer that a victim was in mortal fear when a defendant visibly 

brandished a firearm." Id. at 914-15. The Pennsylvania Supreme Court has interpreted 

the element, " in the course of committing a theft," as including not only flight after a 

completed theft, but also the act of attempting to commit a theft. Com. v. Ford, 650 A.2d 

433,437 (Pa. 1994). 

In the instant case, the Commonwealth presented sufficient evidence that 

Appellant placed Matthew Elliot in fear of immediate serious bodily injury, while "in the 

course of committing a theft." Appellant initially demonstrated a series of " aggressive 

actions" against Matthew Elliot when he approached him by walking toward him, with 

his hand in his pocket. N.T. 10/25/2022, pp. 135-36. Matthew Elliot testified that he was 

unable to tell what was in Appellant's pocket, and that he feared that Appellant had a 

gun. N.T. 10/25/2022, p. 136. While the Superior Court's decision in Hopkins delineated 

that there is no requirement that an actual threat be verbalized to support a finding that 

28 
an individual -victim was placed in reasonable fear of serious bodily injury, Appellant 

here absolutely did, Indeed, emphatically threaten Matthew Elliot, directing him to " give 

[Appellant] everything you got-or I'm going to fucking kill you." N.T: 10/25/2022, pp. 135-

36. Matthew Elliot reiterated his understandable fear numerous times during his trial 

testimony. N.T. 10/25/2022; p. 136. 

The Commonwealth presented additional evidence as to Matthew Elliot's postthreat, state of mind as follows: Matthew Elliot ran and hid behind the locked hotel room 

door, Appellant proceeded to follow him, removed his firearm from his pocket, and 

discharged his weapon in the hallway area adjacent to the hotel -room. 22 N.T. 

10/25/2022, p. 137. Appellant then uttered another threat, stating, " I'm going to take all 

your fucking money and burn this piece of shit place to the ground." N.T. 10/25/2022, p. 

137. Obviously, then-, there was an abundance df evidence for the jury to find that 

Appellant placed Matthew Elliot in reasonable fear of imminent serious bodily injury. 

There was also sufficient evidence to support -the jury's determination that 

Appellant acted while " in the course of committing a theft." At the very least, Appellant's 

actions constituted substantial steps toward committing a theft. Appellant's verbal 

command, with weapon in hand, to Matthew Elliot, that Mr. Elliot "give [Appellant] 

everything you got or I'm going to fucking kill you" N.T. 10/25/2022, pp. 1.35-36, followed 

by a similar threat, is an obvious attempt to deprive the victim of his money by use of 

22 Sergeant Troplano testified that there were four bullet fragments in front of Matthew Elliot's hotel room 

door, N:T 10/26/2023, p. 29. He further noted,-" there was a mark or hole... In the carpet right outside.the 

door of Room 131 [where Matthew Elliot stayedj." N.T. 10/26/2023, p. 31. A ricochet point-from a bullet 

was located on the " lower part of the door" of Room 131. N.T. 10/26/2023, p. 39. Clearly, there is an 

abundance of evidence that Appellant discharged his firearm Into the carpet outside of Room 131, and 

based on reasonable Inferences, it is evident that Appellant attempted to, albeit failed to, shoot into an 

occupied structure. 

29 
force or by threatening to use force. Accordingly, there was ample and sufficient 

evidence presented at trial to sustain the jury's guilty verdict as to the robbery charge. 

5. The Commonwealth presented sufficient evidence that Appellant was 

guilty of Possession of Drug Paraphernalia, as Appellant admitted to 

being In the room where the paraphernalia was discovered, 

Appellant's personal belongings were found within the room, and 

Appellant requested continuing access to the room. 

Appellant was convicted of one count of Possession of Drug Paraphemalia. The 

statute regarding Use or Possession of Drug Paraphernalia states: 

The following acts and the causing thereof within the Commonwealth are hereby 

prohibited: The use of, or possession with intent to use, drug paraphernalia for 

the purpose of planting, propagating, cultivating, growing, harvesting, 

manufacturing, compo6nding, converting, producing, processing, preparing, 

testing, analyzing, packing, repacking, storing, containing, concealing, injecting, 

ingesting, inhaling or otherwise introducing into the human body a controlled 

substance in violation of this act. 

35 P.S. § 780-113(a)(32). 

Our appellate courts have previously held that possession of drug paraphemalia 

can be established through a defendant's constructive possession. See e.q., Com. v. 

Varqas, 108 A.3d 858, 868 (Pa. Super. P ), 2014 ; there is no requirement that the 

defendant be in exclusive control of the paraphernalia. — Id. T o prove constructive 

possession then, the Varqas court stated that "... the Commonwealth must introduce 

evidence demonstrating eithei he defendant's] participation in the drug related activity 

or evidence connecting [the defendant] to the specific room or areas where the drugs 

[and/or paraphernalia] were kept." Id. ( internal quotation omitted) (citation omitted). 

Mere presence is not sufficient to find that a defendant constructively possessed the 

contraband. Commonwealth v Parrish, 191 A.3d 31, 37 (Pa. Super. 2018). In 

30 
Commonwealth v. Carroll, 507 A.2d 819, 820 (Pa. 1986), the Pennsylvania Supreme 

Court upheld a defendant's conviction for possession of a controlled substance with 

intent to distribute, where the defendant was noted to have constructive possession of 

drug paraphernalia and drugs found within a shared motel room, when the drugs were 

located in the defendant's wife's pants pocket, cash from a controlled buy was present, 

and drug paraphernalia was in the motel room bathroom. Id. at 820. 

In the instant case, sirr ilar to Carroll, there was sufficient evidence to find that 

Appellant constructively possessed the drug paraphernalia located'within the hotel room 

where he stayed. There is no ;dispute that Appellant was present in the room, as Ms. 

I 

Alvarado testified that when she went to the hotel room, she found Appellant in the 

specific room. N.T. 10/25/2022, pp. 97-98. Nor is there any dispute that drug 

paraphernalia was within the iloom where Appellant pP was P 9 p n resent. Sergeant Tro is o 

tested that when he entered the room where Appellant stayed, he located two trash 

can vials, one green and one rurple, and a glass pipe. N.T. 10/26/2022, p. 53. Sergeant 

Tropiano further testified that, based on his training and experience, the vial was 

commonly used to store narcotics, while the glass pipe was commonly used to smoke 

narcotics. N.T. 10/26/2022, p. 55, 57; See Exhibit C-23. 

While Appellant shared the room with Ms. Kelly, N.T. 10/25/2022, pp. 36-38, 

there was sufficient evidence for a jury to find that Appellant maintained constructive 

possession over the drug paraphernalia located within the room. When Sergeant 

Tropiano searched the hotel room Appellant stayed in, he discovered cards registered 

to Appellant within the room —, namely a Harbor Freight Card, PFSU Visa Card, and 

Home Depot Card. N.T. 10/26(2022, p. 52; See Exhibit C-21; Exhibit C-22. This was not 

31 
a case where Appellant was " merely present" within the room where drug paraphernalia 

was discovered. The Commonwealth presented evidence, which the jury could find 

credible, that Appellant exercised dominion over the room as Appellants App personal p n I 

belongings were found throu hout. N.T. 10/26/2022, p. 52. Awad Bin Abdullah, a hotel 

employee, testified that Appe ant asked for a key card to the room: N.T. 10/27/2022, p. 

13. Appellant himself even co firmed that he voluntarily went to the hotel room where 

the drug paraphernalia was discovered by Sergeant Tropiano, and that Appellant was in 

the room for a significant leng h of time — to bathe, to drink, and to sleep. N.T. 

10/27/2022, p. 36-40. Accordingly, there was more than sufficient evidence for the jury 

to find that Appellant was guilty of possession of drug paraphernalia. 

D. Appellant's Aggregate Sentence of incarceration of not less than 11 Years 

or more than 22 Years in a State Correctional Facility was lawful, as it was 

neither unjustified n4:manifestly unreasonable. 

Appellant's excessive sentence argument implicates discretionary aspects of 

sentencing. The law as to an Appellant's 1 right to challenge the discretionary aspects of 

sentencing is well-settled: As 'stated in Commonwealth v. Zirkle 107 A.3d 127, 132 (Pa. 

Super. 2014), there is no absilute right. to appeal pP under these circumstances. See also 

42 Pa. C.S. Section 9781(b). I nstead, in instances where an appellant challenges the 

discretionary aspects of a sentence, the appeal is treated as a petition for allowance of 

appeal to the Superior Court. See Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa: 

Super. 2019). Furthermore, 

[a]n appellant challenging the -discretionary aspects of [his] sentence 

must Invoke [the Superior] Court's, jurisdiction by satisfying a four-part 

test:... ( 1) whether ap ellant has filed- a timely notice of appeal, see Pa. 

R.A.P. 902 and 903; whether the issue was properly preserved 

at sentencing or in a otion to reconsider and modify sentence, see Pa. 

R.Crim.P. 720.; (3) whiTther appellant's brief has a fatal defect, Pa. R.A.P. 

32 
2119(f); and (4) whether there is a substantial question that the sentence 

appealed from is not al ipropriate under the Sentencing Code, 42 Pa. C.S.A. 

§ 9781(b). 

Commonwealth v. Moury, 99 A.2d 162,170 (Pa. Super. 2010) (citing Commonwealth v. 

Evans, 901 A.2d 528, 533 (P . Super. 2006)). 23 

Upon granting appeal and review of the sentence imposed, the Superior Court's 

standard of review is well sett ed: 

Sentencing is a matte vested in the sound discretion of the sentencing 

judge, and a sentence will not be disturbed on appeal absent a manifest 

abuse of discretion. In this context, an abuse of discretion is not shown 

merely by an error in judgment. 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. 

Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super. 2018) (citing 

Commonwealth v. Man, 957 A.2d 746, 749 ( Pa. Super. 2008)). 

'When imposing a sentence, a court is required to consider the particular 

circumstances of the offense and. the character of the defendant." Commonwealth v. Hill, 

210 A.3d 1104, 1116-17 (Pa. 

1, 10 ( Pa. Super. 2002)). A se 

Super. 2019) (quoting Commonwealth v. Griffin, 804 A.2d 

hence of confinement must also be consistent with what is 

necessary for 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). The sentencing court must state on the record the 

reasons for the sentence imposed. Pa. R.Crim.P. 704(C)(2). 

The Sentencing Code affords discretion for the sentencing court to impose 

concurrent or consecutive sentences, unless the aggregate sentence is "grossly 

23 Appellant here met the first three procedural requirements of the four-part test 

33 
disparate" to the Defendant's conduct, or "viscerally appears as patently unreasonable." 

Commonwealth v. Gonzalez;DeJusus, 994 A.2d 595 (Pa. Super. 2010); 42 Pa. C.S. 

§9721. Additionally, when, as Is true in the instant case, the sentencing court has the 

benefit of a Pre-Sentence In 

court was both aware of and 

estigation Report (" PSI Report"), it is presumed that the. 

appropriately weighed all relevant information contained in 

the PSI Report. See Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002). Indeed, 

we did so in the present case 

1. Appellant has Arg+uablyAverred 1 a Substantial'Quesdon on Appeal. 

Which Requiril Review of the Sentence Imposed on March 24, 2023. 

"The determination of vthat constitutes a substa ntial question as to an allegedly 

inappropriate sentence must be evaluated on a case-by-case basis." Commonwealth v. 

Swope, 123 A. 3d 333, 338 (P 3. Super. 2015) (citing Commonwealth v. Prisk, 13 A. 3d 

526, 533 (Pa. Super. 2011)):-' substantial question exists only when th e appell ant

advances a colorable argume t that the -sen₹encing 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. 

Appellant on appeal does not provide specifics as to how the sentence was 

allegedly excessive, how we Ile 9 y d edl fails to take into account the specified factors, 

or which improper factors upo ii which we allegedly impermissibly relied. However, due 

to Appellant plausibly raising a substantial question on appeal, decisional law,mandates 

that the Superior Court exercise -appellate review as to this issue. 24

24 See Commonwealth v. Brown, 24P AM 1206 (Pa. Super. 2021); Commonwealth v. Pacheco, 227 A.3d 

368—,376 (Pa. Super. 2020); Commdnwealth v. Hill, 210 Aid 1104, 1116 ( Pa. Super. 2019); 

Commonwealth v. Raven, 97 AM 1244 (Pa. Super. 2014). 

34 
2. Appellant's Sentence was Not Based on Improper Factors, Nor was it 

Manifestly Excessive or Unreasonable, as the Sentence Imposed 

Was Within the Sentencing Ranges set forth in 42 Pa. C.S. Section 

9721 and in Pennsylvania's Sentencing Guidelines. 

In the present case, we held a sentencing hearing on March 24, 2023, where 

Appellant called and presented the testimony of several witnesses. Earlier, we had 

ordered a Pre-Sentence Investigation be conducted as to Appellant -and we had the 

benefit of reviewing the comprehensive PSI Report, prior to the date of sentencing. 

On March 24, 2023, we provided on the record, the following rationale for our 

determination of Appellant's sentence: 

... [T]he job of the Court, ... [as to] sentencing [is] 

to balance off a whole host of factors. And I 

have tried to be conscientious in doing so here. 

... I certainly consider the arguments of counsel 

today, I've considered the testimony presented by 

the defense, I considered all of the evidence that 

I heard during the ... four- day jury 

trial in October of 2022, including Mr. Fosco's 

testimony at that time, as well as today.... 

I've certainly considered the 

comprehensive PSI report dated January 11th, 2023, 

I've considered the criminal history which has 

been referenced by both sides here, history of 

alcohol abuse and the severity of the crimes.... 

The crimes really were reckless. And 

whether there was drug induced mental state or 

not, ... unfortunately we do not 

have any. blood or other test to tell us what the 

content of Mr. Fosco's blood was at the time. But 

there's no question that alcohol was involved and 

there's also no question, Mr. Fosco, that you and ,

alcohol do not mix too well. 

So besides the three DUls we have in the 

PSI, we have a number of people who have said 

that.... Mour stepfather, Donald, stated that -he feels 

the defendant's drinking alcohol plays a part when 

35 
you get in trouble. In regard to the instant 

offense, Donald states the defendant probably made 

a mistake and did something stupid. When he would 

drink, he would act stupid. 

Your brother Michael indicated in the PSI 

that he's sure that the defendant consumed alcohol 

that night. 

...Your sister Michelle, ... described the 

defendant as allowing his alcoholism to ruin their 

relationship over the past 15 years. 

And Lisa, your own wife, stated- to the 

Investigator ... that your relationship had its ups 

and downs and you were both getting out of hand 

with drinking alcohol. 

So certainly alcohol had something to do 

with this incident and maybe other substances as 

well, I don't know. But regardless of the'reason, 

these were terribly violent acts. It's astounding 

that no one got hurt or killed-, including a number 

of family members who were minding their business 

and just visiting, besides other people in the 

hotel lobby, not to speak of the employees of the 

Comfort Inn. So they've got a lifetime of trauma 

because of your actions, Mr. Fosco, and there's no 

denying that. Someone who is shot at and 

witnessed what they witnessed, they'll never get 

over that. Their lives will never be the same. 

The PSI indicates that the risk 

assessment tool that was used indicates that you 

have a moderate to high risk of reoffending. So 

that needs to be taken into consideration as well. 

There are positive parts of your life and 

I'm not dismissing that at all.... [ I]ncluding your 

service in the military, including that you earned 

a GED..: You have a work ethic and 

that's to be commended. And your work in the 

prison is to be commended as well. That's not an 

easy job, l know that. So I do take that into 

consideration. 

36 
And I don't give up easily on 

people in terms of hope. I do think there is hope 

for you but I absolutely think besides the 

substantial punishment that is needed and really 

called for under the law in these circumstances 

because of how serious the crimes are and because 

of our interest in protecting the community, you 

need drug and alcohol treatment. And I haven't 

heard anything, anywhere that you've ever had any. 

[Y]ou've been in prison now for ... two 

years and two months-after the arrest ... 

and it looks like you've had no treatment 

,whatsoever, and that's not good— That's a problem 

and that needs to change. 

... I do think when you have structure, 

when you're sober, you appear to do relatively 

well. But when you don't have structure and when 

you're not sober, you've been dangerous on more 

than one occasion. That's a problem. 

... I've also considered the Pennsylvania Sentencing 

Guidelines which are referenced extensively in the 

PSI. I do think the-standard range is appropriate 

here. As you know, the jury convicted you ... 

of 25 of the 35 offenses with which you 

were charged on the day in question. 

So under all of these circumstances, a 

substantial sentence of state incarceration is 

mandated. 

N.T. 03/24/2023, pp. 37-40. 

Pursuant to the applicable sentencing guidelines,25 the standard range for 

Counts 6 and 7 (Aggravated Assault — Attempts to Cause Serious Bodily Injury with 

Extreme Indifference) was a minimum- of 54 months to 66 months in a state correctional 

zs The sentencing guidelines are not binding upon the sentencing court, which need only acknowledge 

and consider them, while exercising its own independent judgment Corn. v. Wells, 926 A2d 957 ( Pa. 

2007). 

37 
facility. This Court sentenced Appellant on each of these counts, to run consecutively,2B 

to a period of incarceration in a state correctional facility of not less than 42 months or 

more than 84 months. Accordingly, Appellant`s sentence was imposed in the mitigated 

range of the applicable sentencing guideline. 

As to applicable sentencing guidelines for.Count 8 ( Robbery — Threat of 

Immediate Serious Injury) the standard range was a minimum of 54 months to. 66 

months in a state correctional facility. This Court sentenced Appellant on Count 8 to not 

less than 24 months or more than 48 months. Appellant's given maximum sentence is . 

below the mitigated range. The sentence imposed on at Count 8 is to run consecutively 

to the sentence on Count 7. 

While, pursuant to the applicable sentencing guidelines, the standard range for 

Count 14 (Criminal Attempt — Discharge of a Firearm into an Occupied Structure) was a 

minimum of 36 months to 42 months in a state correctional facility. Appellant was 

sentenced to not less than 12 months or more than 24 months in a state correctional 

facility. Appellant's sentence on Count 8, then, was below the mitigated range noted in 

the applicable sentencing guidelines. Appellant's sentence imposed on Count 14 is to 

run consecutively to Appellant's sentence on Count B. 

As to the applicable sentencing guidelines for Count 16 (Firearms Not to be 

Carried Without a License), the standard range was a minimum of.24 months to 36 

months in a state correctional facility. This Court sentenced Appellant on Count 16 to 

not less than 12 months nor more than 24 months in a state correctional facility, with the 

1a "It is well estab)ished that Pennsylvania law affords the trial court discretion to.impose its sentence 

concurrently or consecutively to other sentences being imposed at the same lime." Com, v. Dove, 301 

A.3d 427, 436 (Pa. Super. 2023) ( internal quotations omitted) ( internal citations.omitted). 

38 
sentence to run consecutively to the sentence imposed on Count 14. Appellant's 

sentence was within the mitigated range of the applicable sentencing guideline. We 

imposed no further penalty on Counts 9, 13•, 15, and 17-34. 27 Appellant was ordered not 

to possess any firearms, he was ordered to have no contact with the victims and the 

Bensalem Comfort Inn and Suites, and the state Department of Corrections was urged 

to have Appellant undergo Drug ,and Alcohol Treatment. N.T. 03/24/2023, pp. 44-45. 

The evidence of record demonstrates then, that we considered a multitude of 

factors when determining the appropriate sentence for Appellant. Specifically, the notes 

of testimony indicate that we relied on admissible information contained within the 

comprehensive Pre-Sentence Investigation Report, that we focused on Appellant's 

rehabilitative needs particularly with regard to alcohol and drug use, and his need for 

structure, and that we appropriately took into account Appellant's criminal'.history, the 

gravity of his violent crimes, as they impacted the victims and the community, along with 

Appellant's likelihood to reoffend due to his unhealthy relationship with alcohol. The 

notes of testimony of Appellant's March 24, 2023, Sentencing Hearing demonstrate, 

then, that we took into consideration all appropriate and applicable factors when 

determining Appellant's sentence. 

As such, Appellant's sentence was well within the guidance of the fundamental. 

norms adhered to by courts in the sentencing process and it was well within the bounds 

of the appropriate Pennsylvania Sentencing statutes and guidelines. Appellant's 

sentence was neither excessive nor manifestly, unreasonable. Appellant's arguments to 

the contrary are without merit. 

2' As noted previously, then, the aggregate sentence imposed is not less th an 11,years or more than 22

years in a state correctional facility.. 

39 
V. CONCLUSION 

Based on all of the foregoing; we respectfully submit that this Court's March 24, 

2023 Judgment of Sentence in the above-captioned matter should be affirmed. 

BY THE COURT: 

Date: November30, 2023 

fAl