J-S22005-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANNY CANDELARIO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1948 EDA 2021

Appeal from the Judgment of Sentence Entered August 19, 2021

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

No(s): CP-64-CR-0000108-2021

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED APRIL 06, 2023

Danny Candelario appeals from the August 19, 2021 judgment of 

sentence of twelve to twenty-four months of incarceration stemming from his 

conviction for simple assault. We affirm.

On October 17, 2020, Joseph Dovin, Appellant’s eighty-year-old

neighbor, was helping Joann Candelario, Appellant’s wife, change a headlight 

on her vehicle. N.T. Jury Trial, 7/12/21, at 22. Fifty-two-year-old Appellant 

exited the residence and began shouting profanities at Mr. Dovin. Id. at 25. 

As Appellant approached the vehicle, Mrs. Candelario repeatedly attempted to 

hinder Appellant’s efforts to swing at Mr. Dovin. Id. at 25-26. However, 

Appellant eventually pushed past Mrs. Candelario, knocking her to the ground,

and continued his advance. Id. at 25-27. Fearing an imminent attack and 

unable to retreat quickly, Mr. Dovin hit Appellant in the face with the small 

wrench that he had been utilizing to change the headlight as he attempted to 
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back away towards his home. Id. at 22. Appellant retaliated by following 

Mr. Dovin to his driveway where he punched him in the face with a closed fist, 

knocking Mr. Dovin backwards a few feet where he landed on his back, hitting 

his head on the roadway. Id. at 28-29, 46-47. Appellant then fled the area. 

Two witnesses observed the incident and summoned emergency 

services to render aid to Mr. Dovin. Id. at 37-43 (explaining that she watched 

Appellant punch Mr. Dovin in the face, saw him fall backwards, and heard what 

sounded like a skull cracking as his head contacted the cement); Id. at 59-65

(describing watching Appellant strike his wife and then punch a retreating 

Mr. Dovin, who fell to the ground before she called 911). Appellant sustained 

a small bruise under his left eye. Id. at 28-29, 72; see also Defendant’s 

Exhibit 1. Meanwhile, Mr. Dovin suffered a black eye and bruising along the 

entire right side of his face and was unable to open his mouth for three days. 

Id. 

Appellant was arrested and charged with simple assault and summary 

counts of harassment and disorderly conduct stemming from the physical 

altercation with Mr. Dovin. At trial, Appellant did not testify. However, he

argued that he acted in self-defense through the testimony of his wife who 

claimed that she had slipped on some gravel and Mr. Dovin had attacked 

Appellant when he attempted to render her aid. Id. at 81. After hearing the 

evidence and the arguments of counsel, the jury convicted Appellant of simple 

assault. The trial court found Appellant not guilty of the summary offenses

and deferred sentencing pending the completion of a pre-sentence 
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investigative report. The court later sentenced Appellant to serve the 

standard range sentence of twelve to twenty-four months of imprisonment. 

Appellant timely filed a post-sentence motion challenging the discretionary 

aspects of his sentence, which the court denied. 

Appellant filed a timely pro se notice of appeal on September 10, 2021. 

Four days later, his counsel filed a motion requesting leave to withdraw from 

representation because Appellant had “verbally dismissed” him and indicated 

a desire to proceed pro se. Motion to Withdraw, 9/14/21, at ¶ 7. On 

September 20, 2021, Appellant filed a second pro se notice of appeal,1

referencing the judgment of sentence and “ineffectiveness of counsel.” Notice 

of Appeal, 9/20/21, at 1. On the same day, the trial court issued an order 

directing Appellant’s counsel to file a statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Counsel, who had not yet been granted 

leave to withdraw, did not timely file the court-ordered Rule 1925(b) 

statement. After the time for filing a timely Rule 1925(b) statement expired, 

Appellant pro se filed a “statement of reasons” in which he asserted that his 

counsel was ineffective and requested the appointment of a new attorney. 

Statement of Reasons, 11/12/21, at 1. 

Thereafter, counsel filed with this Court an application for leave to 

withdraw as counsel, and we issued an order directing the trial court to 

conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 

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1 This Court later dismissed, as duplicative, the appeal docketed at 1949 EDA 

2021 following the second notice of appeal.
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1998). On November 23, 2021, after conducting a Grazier hearing, the trial 

court granted counsel’s request to withdraw and permitted Appellant to 

proceed pro se. Order, 11/23/21, at 1. Appellant subsequently filed motions 

with the trial court asserting that he never agreed to proceed pro se and 

requested the appointment of new counsel, which the trial court denied. See 

Motion for Legal Representation, 2/16/22, at ¶ 2; Motion for Relief, 2/16/22,

at ¶¶ 1-4; Order, 3/1/22, at 1.

2

 Ultimately, we remanded this matter for a 

second time to appoint new counsel for Appellant, the filing of a counseled 

Rule 1925(b) statement nunc pro tunc, and the submission of a responsive

Rule 1925(a) opinion. On remand, the trial court appointed current counsel, 

and both the trial court and Appellant complied with the mandates of Rule

1925. Thereafter, we directed counsel to file a brief on Appellant’s behalf, 

which we received.

3

 The Commonwealth has also submitted an appellate 

brief.

Appellant raises the following issues for our review:

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2 This Court also received copies of those motions and denied them without 

prejudice to Appellant’s right to apply to the trial court for the requested relief. 

Order, 4/25/22, at 1.

3 We note that Appellant filed his brief late. “[T]he late filing of an appellate 

brief may result in sanctions from the appellate court, including . . . dismissal 

of the appeal, where the late filing impedes our review.” Clark v. Peugh, 

257 A.3d 1260, 1264 n.1 (Pa.Super. 2021) (cleaned up). While we do not 

condone the lateness of Appellant’s filings, we decline to dismiss the instant 

appeal as Appellant’s tardiness has not impeded our review. Id.
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1. Whether the evidence at trial was sufficient to prove beyond 

a reasonable doubt that Appellant intentionally, knowingly or 

recklessly caused bodily injury to the victim?

2. Whether the sentence imposed by the trial court, which was 

in the aggravated range of the Pennsylvania sentencing 

guidelines, was clearly unreasonable and manifestly excessive 

given the circumstances of the Appellant and the case?

Appellant’s brief at 7.

We first consider Appellant’s sufficiency challenge for the simple assault 

conviction. See id. at 16-19. Appellant avers that because Mr. Dovin struck 

Appellant first, Appellant acted in self-defense and the evidence was 

insufficient to sustain his simple assault conviction. Id. at 17-18. 

Our scope and standard of review when considering challenges to the 

sufficiency of the evidence are well settled:

Because a determination of evidentiary sufficiency presents a 

question of law, our standard of review is de novo and our scope 

of review is plenary. In reviewing the sufficiency of the evidence, 

we must determine whether the evidence admitted at trial and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient 

to prove every element of the offense beyond a reasonable doubt. 

[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. It is within the 

province of the fact-finder to determine the weight to be accorded 

to each witness’s testimony and to believe all, part, or none of the 

evidence. The Commonwealth may sustain its burden of proving 

every element of the crime by means of wholly circumstantial 

evidence. Moreover, as an appellate court, we may not re-weigh 

the evidence and substitute our judgment for that of the factfinder.

Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa.Super. 2017) 

(citations and quotation marks omitted).
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A person is guilty of simple assault “if he attempts to cause or 

intentionally, knowingly or recklessly causes bodily injury to another.” 18 

Pa.C.S. § 2701(a)(1). “Bodily injury” is defined as “[i]mpairment of physical 

condition or substantial pain.” 18 Pa.C.S. § 2301.

Appellant does not dispute that his punch caused Mr. Dovin to suffer 

bodily injury. Rather, Appellant contends that he was justified in striking 

Mr. Dovin because he was acting in self-defense. Generally, “[t]he use of 

force upon or toward another person is justifiable when the actor believes that 

such force is immediately necessary for the purpose of protecting himself 

against the use of unlawful force by such other person on the present 

occasion.” 18 Pa.C.S. § 505(a). However, the justified use of force requires:

a) the actor was free from fault in provoking or continuing the 

difficulty which resulted in the use of deadly force; b) the actor 

must have reasonably believed that he was in imminent danger of 

death or serious bodily injury, and that there was a necessity to 

use such force in order to save himself or others therefrom; and 

c) the actor did not violate any duty to retreat or to avoid the 

danger.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa.Super. 2014) (quotation

marks and citation omitted); see also 18 Pa.C.S. § 505(b). 

If a defendant properly raises self-defense, the burden rests on the 

Commonwealth to prove beyond a reasonable doubt that the defendant’s act 

was not justifiable self-defense. Id. 

The Commonwealth sustains this burden if it establishes at least 

one of the following: 1) the accused did not reasonably believe 

that he was in danger of death or serious bodily injury; or 2) the 

accused provoked or continued the use of force; or 3) the accused 
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had a duty to retreat and the retreat was possible with complete 

safety.

Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa.Super. 2008). The 

requirement of reasonable belief encompasses two aspects, one subjective 

and one objective. See Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 

2012). 

First, the defendant must have acted out of an honest, bona fide 

belief that he was in imminent danger, which involves 

consideration of the defendant’s subjective state of mind. Second, 

the defendant’s belief that he needed to defend himself with 

deadly force, if it existed, must be reasonable in light of the facts 

as they appeared to the defendant, a consideration that involves 

an objective analysis.

Id. To claim self-defense, the defendant must be free from fault in provoking 

or escalating the altercation that led to the offense. Id. at 751.

Here, the evidence, viewed in the light most favorable to the 

Commonwealth, supports Appellant’s simple assault conviction. Through 

Mr. Dovin’s testimony, the evidence established that while Mr. Dovin struck 

first, he did so in response to Appellant’s provocation. See N.T. Jury Trial, 

7/12/21, at 25-27 (Mr. Dovin explaining that he hit Appellant after 

Mrs. Candelario’s attempts to restrain her husband from attacking Mr. Dovin 

failed). Indeed, our review of the record revealed that Appellant provoked the 

incident by verbally assaulting and charging at Mr. Dovin, before escalating 

the encounter by continuing to advance upon Mr. Dovin as he attempted to 

flee. Id. at 25-29. Furthermore, two eye-witnesses corroborated Appellant’s 

testimony that he was backing away towards his home when Appellant struck 
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him. Id. at 37-43, 59-65. Thus, it was well-within the province of the jury 

to find that Appellant did not act out of an honest belief that he was in 

imminent danger or that a reasonable person in Appellant’s position would 

have felt that they needed to defend themselves. Accordingly, we find that 

the record supports the court’s decision, and we see no reason to disturb it. 

In his second claim, Appellant challenges the discretionary aspects of 

his sentence. The following principles apply to our consideration of whether 

review of the merits of his claim is warranted. “An appellant is not entitled to 

the review of challenges to the discretionary aspects of a sentence as of right. 

Rather, an appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction.” Commonwealth v. Samuel, 102 A.3d 

1001, 1006-07 (Pa.Super. 2014). In determining whether an appellant has 

invoked our jurisdiction, we consider four factors:

(1) whether appellant has filed a timely notice of appeal; (2) 

whether the issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence; (3) whether 

appellant’s brief has a fatal defect; and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code.

Id.

Appellant filed both a timely motion for reconsideration of his sentence 

and a notice of appeal. In his motion, Appellant requested that the court 

reconsider his sentence because his wife had been diagnosed with terminal 

cancer and Mr. Dovin had struck him first. See Post-Sentence Motion, 

8/27/21, at unnumbered 1-2. However, in his brief, Appellant alleges that his 
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sentence was contrary to the fundamental norms underlying the sentencing 

process because the standard range sentence he received also reflected the 

statutory maximum for a second-degree misdemeanor. See Appellant’s brief 

at 20. Appellant did not raise this issue before the trial court. Accordingly, 

Appellant did not properly preserve the claim and we cannot consider it. See 

Samuel, supra at 1006; see also Commonwealth v. Cartrette, 83 A.3d 

1030, 1042 (Pa.Super. 2013) (en banc) (“[I]ssues challenging the 

discretionary aspects of sentence must be raised in a post-sentence motion or 

by presenting the claim to the trial court during the sentencing proceedings. 

Absent such efforts, an objection to a discretionary aspect of a sentence is 

waived[.]”). Accordingly, Appellant’s final issue is waived.4

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4 Even if Appellant had preserved the issue, he would still not be entitled to 

relief as he failed to raise a substantial question that the sentence appealed 

from was inappropriate under the Sentencing Code in his Pa.R.A.P. 2119(f) 

statement. At a minimum a Rule 2119(f) statement “must articulate what 

particular provision of the code is violated, what fundamental norms the 

sentence violates, and the manner in which it violates that norm.” 

Commonwealth v. Zirkle, 107 A.3d 127, 132-34 (Pa.Super. 2014). 

Appellant’s Rule 2119(f) statement merely declares “that his sentence was 

imposed contrary to the fundamental norms underlying the sentencing

scheme.” Appellant’s brief at 14-15. Appellant’s boilerplate Rule 2119(f) 

statement does not specify which fundamental norm his sentence allegedly 

violates. Accordingly, the only way this Court could possibly determine 

whether Appellant has raised a substantial question is to review the argument 

section of his brief. Yet, it is well established that the “Superior Court [is] not 

permitted to rely on its assessment of the argument on the merits of the 

[discretionary aspects] issue to justify post hoc a determination that a 

substantial question exists.” Commonwealth v. Tuladziecki, 522 A.2d 17, 

19 (Pa. 1987). Therefore, since Appellant failed to comply with the minimum 

requirements of Rule 2119(f), we find that he has failed to present a 

substantial question. 
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2023