J-S80017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISAAC CARMICHAEL :
:
Appellant : No. 433 EDA 2016
Appeal from the Judgment of Sentence January 8, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008846-2013
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 09, 2018
Appellant, Isaac Carmichael, appeals from the judgment of sentence
entered on January 8, 2016, after a jury found him guilty of aggravated
assault1 and assault of a law enforcement officer.2 We affirm.
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court set
forth the relevant facts of this case as follows:
The charges subject to this appeal arise from an incident
occurring on June 2, 2013 near the intersection of 6th & South
Streets in Philadelphia. At that time, [Appellant] and a group of
three (3) individuals who did not know him were involved in an
altercation during which [Appellant] pulled a gun and fired shots
in the direction of these persons. He then fled on foot. Police
____________________________________________
1 18 Pa.C.S. § 2702(a)(1).
2 18 Pa.C.S. § 2702.1(a).
J-S80017-17
officers on patrol nearby heard the shots and proceeded to the
area.
One of the officers responding to the sound of the
gunshots was Sgt. Dominick Cole of the Philadelphia Police
Department, who testified that upon hearing the shots, he and
his fellow officers proceeded to the direction from where [the
gunshots] had come. Upon arriving at the above intersection, he
was directed by bystanders as to the direction [Appellant] had
fled on foot. While in pursuit, he heard more shots being fired
and continued in the direction of the sounds.
As he approached the area of the gunshots, Sgt. Cole
testified that he:
... observed a male running on the sidewalk. I
identified myself as a police officer, the guy
continued to run. I continued to identify myself.
Then he turned around, haphazardly turned around,
fired one shot. I jumped off my bike, took cover
behind a vehicle. The guy continued to run. As he
kept running, I then jumped back on my bike,
followed the gentleman down the street approaching
the intersection of 8th and Kater. At this time, I
radioed, back up was in route. We cornered the
suspect because the officers were coming eastbound
and I was coming westbound. At that time, the
gentleman put the gun -- he took the gun and
attempted to put it in his book bag, in which he was
tackled. He was brought and tackled to the ground,
and I pulled the gun out of the book bag, which was
still -- the gun was still warm when I pulled the gun
out of the book bag, and we handcuffed him and
then did the rest of the police work that we normally
do after an incident of that nature.
N.T., 06-16-2015, P. 63.
While in pursuit of [Appellant], Sgt. Cole, who was in his
police uniform, yelled “Stop. Police” at least two times. In
explaining this situation in further detail, Sgt. Cole stated that he
took cover behind a car after he heard the second shot. In
regard to [Appellant’s] actions at that time, Sgt. Cole testified:
-2-
J-S80017-17
A That was after the second shot I heard. That was
after the second shot.
Q Okay. At the point when you took cover behind the
car, did you see [Appellant] pointing a gun at you?
A Well, I don’t know if he was pointing a gun at me,
but he kind of haphazardly turned and took a shot.
Q Okay. How far away from you was [Appellant]
when he fired that shot?
A Not even -- it was just a car length. Because he
was on the sidewalk, I was on my bicycle and we
were almost, like, parallel. So it was not even a car
length behind him.
Q Okay. After that shot, were there any more
gunshots?
A No.
Q Okay. Did you return fire? Did you discharge your
firearm?
A No.
N.T., 06-16-2015, P. 70.
Certain aspects of this incident [were] captured on security
camera video which [was] admitted into evidence without
objection and shown to the jury. In explaining to the jury what
the video showed as it related to Sgt. Cole’s pursuit of
[Appellant], he stated that “right before [Appellant] gets to the
tree is where he turns and shoots because it’s - that particular
part of Kater Street is really dark because of the tree, and that’s
where he turns and he fires the shot. That’s where I see the
muzzle flash and I get off my bike and take cover behind the
car[] not a car length from [Appellant].”
Officer Cole did concede on cross-examination that when
he ducked behind the car, he was in the street and [Appellant]
was on the sidewalk and they were separated by a row of cars
and he did not see where the shot went. Redirect-examination
revealed that, Sgt. Cole stated that he had yelled “Stop. Police”
a minimum of at least two times before [Appellant] turned and
fired a shot towards him from a car length away.
Trial Court Opinion, 2/3/17, at 4-7 (internal footnotes omitted).
-3-
J-S80017-17
At the conclusion of Appellant’s trial, the jury found Appellant guilty of
aggravated assault and assault of a law enforcement officer at trial court
docket number CP-51-CR-0008846-2013.3 On December 8, 2015, the trial
court sentenced Appellant to a term of ten to twenty years of incarceration
on the conviction for assault of a law enforcement officer. The trial court
sentenced Appellant to a term of five to ten years of incarceration on the
aggravated assault count to be served concurrently with the sentence for
assault of a law enforcement officer. Both the Commonwealth and Appellant
filed post-sentence motions.
Following a hearing on January 8, 2016, the trial court granted the
Commonwealth’s post-sentence motion to reconsider Appellant’s sentence
and imposed the mandatory minimum sentence of twenty years with the
statutory maximum sentence of forty years of incarceration on the assault of
a law enforcement officer conviction. The trial court did not disturb the
concurrent five-to-ten-year sentence imposed on the aggravated assault
____________________________________________
3 Appellant was tried on charges filed at trial court docket numbers CP-51-
CR-0008842-2013, CP-51-CR-0008843-2013, CP-51-CR-0008845-2013, and
CP-51-CR-0008846-2013. The jury found Appellant not guilty of all charges
at CP-51-CR-0008842-2013 and CP-51-CR-0008843-2013. The jury found
Appellant guilty of three Violations of the Uniform Firearms Act (“VUFA”), 18
Pa.C.S. §§ 6101-6127, and not guilty of aggravated assault and assault of a
law enforcement officer at CP-51-CR-0008845-2013, involving police officer
Matthew White. However, while these matters were tried jointly, Appellant
only appealed at trial court docket number CP-51-CR-0008846-2013 on the
convictions of aggravated assault and assault of a law enforcement officer
involving Sergeant Dominick Cole.
-4-
J-S80017-17
conviction. The trial court denied Appellant’s post-sentence motions, and
Appellant filed a timely appeal.4 Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for this Court’s
consideration:
I. Was the evidence insufficient to sustain guilty verdicts on
the charges of aggravated assault and assault of law
enforcement officer related to complainant Sergeant
Dominick Cole?
II. Did the court err by interpreting the assault on law
enforcement officer statute as requiring the mandatory
minimum sentence of not less than 20 years to not more
than 40 years?
III. Were the verdicts on the charges of aggravated assault
and assault of law enforcement officer related to
complainant Sergeant Dominick Cole against the weight of
the evidence?
____________________________________________
4 Appellant was not required to file an additional post-sentence motion after
the trial court modified the judgment of sentence on January 8, 2016,
because the weight of the evidence and the propriety of the mandatory
minimum were the issues argued by the parties before the trial court at the
post-sentence motions hearing. The Miscellaneous section under the
Comment to Pa.R.Crim.P. 720 provides, in relevant part, as follows:
Once a sentence has been modified or reimposed pursuant to a
motion to modify sentence under paragraph (B)(1)(a)(v) or Rule
721, a party wishing to challenge the decision on the motion
does not have to file an additional motion to modify sentence in
order to preserve an issue for appeal, as long as the issue was
properly preserved at the time sentence was modified or
reimposed.
Pa.R.Crim.P. 702, cmt.
-5-
J-S80017-17
Appellant’s Brief at 5 (full capitalization omitted).
In his first issue on appeal, Appellant challenges the sufficiency of the
evidence underlying his convictions. Our standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa. Super. 2008)
(internal citations and quotation marks omitted).
Appellant was convicted of assault of a law enforcement officer and
aggravated assault. Those crimes are defined, in relevant part, as follows:
Assault of law enforcement officer
(a) Assault of a law enforcement officer in the first
degree.--A person commits a felony of the first degree who
attempts to cause or intentionally or knowingly causes bodily
injury to a law enforcement officer, while in the performance of
duty and with knowledge that the victim is a law enforcement
officer, by discharging a firearm.
-6-
J-S80017-17
(b) Penalties.--Notwithstanding section 1103(1) (relating to
sentence of imprisonment for felony), a person convicted under
subsection (a) shall be sentenced to a term of imprisonment
fixed by the court at not more than 40 years.
18 Pa.C.S. § 2702.1(a)-(b).
Aggravated Assault
(a) Offense defined.--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;
(2) attempts to cause or intentionally, knowingly
or recklessly causes serious bodily injury to
any of the officers, agents, employees or other
persons enumerated in subsection (c) or to an
employee of an agency, company or other
entity engaged in public transportation, while
in the performance of duty[.]
18 Pa.C.S. § 2702(a)(1)-(2).
Appellant avers that the Commonwealth failed to prove the “attempt”
element of assault of a law enforcement officer and aggravated assault.
Appellant’s Brief at 12. Specifically, Appellant claims that the
Commonwealth did not prove attempt because there was no evidence that
Appellant “intended” to injure Sergeant Cole. Id. This argument is
specious.
The attempt element from Section 2702.1 “requires a showing of some
act, albeit not one actually causing bodily injury, accompanied by an intent
-7-
J-S80017-17
to inflict bodily injury upon a law enforcement officer by discharging a
firearm.” Commonwealth v. Landis, 48 A.3d 432, 446 (Pa. Super. 2012)
(citing 18 Pa.C.S. §§ 901(a) and 2702.1(a)). Similarly, “[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.’”
Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (citation
omitted). “An intent ordinarily must be proven through circumstantial
evidence and inferred from acts, conduct or attendant circumstances.” Id.
(citation omitted). “Serious bodily injury has been defined as bodily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Id. (internal citations and quotation marks omitted).
The trial court concluded that Sergeant Cole’s testimony provided
sufficient evidence to support Appellant’s convictions:
[Sergeant Cole’s] testimony clearly supports the fact that
[Appellant] knew that he was shooting at a police officer in the
performance of his duties. Sgt. Cole stated that he identified
himself as an officer when he commanded [Appellant] to stop
several times. After making such pronouncement, [Appellant],
instead of stopping as commanded, turned and pointed the gun
in the direction of the officer, discharged the same and required
Sgt. Cole to take cover. These uncontroverted facts satisfy the
elements with sufficient evidence to support the convictions. See
Commonwealth v. Thompson, 739 A.2d 1023, 1028-1029
(Pa. 1999) (evidence sufficient to establish aggravated assault
where defendant fired shots at victim even though they did not
hit the victim). [Appellant’s] claim is without merit.
-8-
J-S80017-17
The evidence supported the reasonable inference that
[Appellant] while fleeing from the scene of the crime
intentionally discharged the weapon in the direction of one of the
officers in pursuit. Sgt. Cole was about a car length from the
[Appellant] when he was fired at. Fortunately, the bullet missed
him, however, it does not negate [Appellant’s] attempted
actions. The fact that [Appellant] was running and the manner in
which he fired the same is irrelevant, as he intentionally pointed
the weapon towards the pursuing officer from a short distance
away. The fact that they were separated by a row of cars due to
their respective positions is irrelevant, as Sgt. Cole stated he
took cover after the shot was fired. Hence, he could have been
struck by the bullet.
The jury could reasonably conclude that from these
actions, [Appellant] acted with a reckless disregard of
consequences of his actions and that he consciously disregarded
an unjustified and extremely high risk that his actions might
cause death or serious bodily injury; at the very least, if the
bullet had, in fact, hit Sgt. Cole. Such conduct could reasonably
anticipate death or that serious bodily injury would likely and
logically result. See Commonwealth v. McClendon, 874 A.2d
1223, 1229 (Pa.Super.2005).
Additionally, the evidence supported the reasonable
inference that [Appellant] intended that the discharging of his
gun in the direction of the officers would result in the charging
officers to ending their pursuit or buy him additional time to flee
as they took cover. In either of these scenarios, the officers, and
in particular Sgt. Cole, could have suffered bodily injury, and a
subsequent fact-finder could conclude this was [Appellant’s]
intent in discharging the firearm. See Commonwealth v.
Holley, 945 A.2d 241, 247 (Pa.Super.2008) (holding that, in
determining whether the Commonwealth proved intent to cause
bodily injury, a fact-finder is free to conclude the accused
intended the natural and probable consequences of his actions to
result therefrom); Commonwealth v. Rosado, 454 Pa.Super.
17, 684 A.2d 605, 608 (1996) (“The fact that the accused
misapprehended the circumstances, thereby making it
impossible for him to commit the crime undertaken, is not a
defense to an attempt crime.”). Simply put, “a gun is a lethal
weapon; pointing it towards a person, and then discharging it,
speaks volumes as to one’s intention.” Commonwealth v. Hall,
574 Pa. 233, 830 A.2d 537 (2003). This is particularly true
-9-
J-S80017-17
where a suspect discharges his firearm in an attempt to elude
arrest. See Hall, supra. Thus, based on the evidence presented
at trial, the Commonwealth demonstrated sufficient evidence
that [Appellant] discharged his weapon in an attempt to inflict
bodily injury upon known law enforcement officers in
performance of their duties.
Trial Court Opinion, 2/3/17, at 8-9 (emphasis in original).
We discern no error in the trial court’s conclusion. Sergeant Cole
testified that he identified himself as a police officer and directed Appellant
to stop. N.T., 6/16/15, at 63. Thus, it was reasonable for the jury to
conclude that Appellant was aware that Sergeant Cole was a law
enforcement officer. The testimony also revealed that Appellant fired his
weapon causing Sergeant Cole to take cover during the pursuit. Id. The
fact that Appellant was shooting while Sergeant Cole was pursuing him, and
the fact that Sergeant Cole had to take cover during the shooting, allowed
the jury to conclude that Appellant was shooting at him. Pursuant to our
standard of review, these facts established that Appellant took a substantial
step in creating a substantial risk of death or serious bodily injury, thereby
establishing the elements of Sections 2702 and 2702.1. Landis, 48 A.3d at
446; Fortune, 68 A.3d at 984. Accordingly, we conclude that the evidence
was sufficient to establish Appellant’s guilt of assault of a law enforcement
officer and aggravated assault.
Appellant next argues that the trial court erred in its interpretation of
the crime of assault of a law enforcement officer and the concomitant
- 10 -
J-S80017-17
penalty statute as requiring a mandatory minimum sentence of not less than
twenty years.5 Appellant’s Brief at 24. We disagree.
It is well settled that penal statutes are to be strictly construed. 1
Pa.C.S. § 1928(b)(1). Where ambiguity exists in the language of a penal
statute, that ambiguity should be resolved in favor of lenity, i.e., the
language should be interpreted in the light most favorable to the accused.
Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (internal citations
omitted). The interpretation of a statute implicates a question of law,
therefore, our scope of review is plenary, and our standard of review is de
novo. Commonwealth v. Andrews, 173 A.3d 1219 (Pa. Super. 2017)
(citation omitted).
The statutes at issue provide, in relevant part, as follows:
Assault of law enforcement officer
(a) Assault of a law enforcement officer in the first
degree.--A person commits a felony of the first degree who
attempts to cause or intentionally or knowingly causes bodily
injury to a law enforcement officer, while in the performance of
duty and with knowledge that the victim is a law enforcement
officer, by discharging a firearm.
____________________________________________
5 This issue presents a challenge to the legality of Appellant’s sentence. See
Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (stating
that a challenge to the application of a mandatory minimum sentence is a
non-waivable challenge to the legality of the sentence imposed).
- 11 -
J-S80017-17
(b) Penalties.--Notwithstanding section 1103(1) (relating to
sentence of imprisonment for felony), a person convicted under
subsection (a) shall be sentenced to a term of imprisonment
fixed by the court at not more than 40 years.
18 Pa.C.S. § 2702.1(a) and (b).
Sentences for offenses committed against law
enforcement officer
(a) Mandatory sentence.--A person convicted of the following
offense shall be sentenced to a mandatory term of imprisonment
as follows:
18 Pa.C.S. § 2702.1(a) (relating to assault of law enforcement
officer)--not less than 20 years.
42 Pa.C.S. § 9719.1(a).
Appellant avers that the trial court erred because the statutes at issue
do not include the word “minimum,” and therefore, the sentence required by
the statutes is ambiguous as the “not less than” language from 42 Pa.C.S. §
9719.1 could be read to constitute a maximum sentence. Appellant’s Brief
at 25-26. We discern no ambiguity. In Commonwealth v. O’Brien, 514
A.2d 618 (Pa. Super. 1986), our Court disposed of this argument and
concluded that the words “not less than” “unambiguously connote a
minimum term of imprisonment.” O’Brien, 514 A.2d at 620. “It strains all
notions of common sense to suggest that ‘not less than’ can reasonably be
interpreted as meaning ‘maximum.’” Id.
We point out that O’Brien addressed mandatory minimum sentences
under 42 Pa.C.S. § 9718, and Section 9718 was subsequently held to be
unconstitutional. See Alleyne v. United States, 570 U.S. 99 (2013) (a
- 12 -
J-S80017-17
fact that increases a mandatory minimum sentence for crime is an element
of crime that must be submitted to a jury and proven beyond a reasonable
doubt). However, 42 Pa.C.S. § 9719.1 does not suffer the same
constitutional infirmity. See Commonwealth v. Reid, 117 A.3d 777, 785
(Pa. Super. 2015) (“Section 9719.1 does not require proof of any additional
elements beyond those already required to convict a defendant of assault of
a law enforcement officer in the first degree under 18 Pa.C.S. §
2702.1(a).”). We conclude that this Court’s analysis of the “not less than”
language from Section 9718 in O’Brien is apt, and it is properly applied to
the “not less than” language of Section 9719.1. Thus, Section 9719.1
mandates a twenty-year mandatory minimum sentence for a conviction of
assault of a law enforcement officer.
Accordingly, we discern no error of law in the trial court’s
interpretation of the aforementioned statutes. The minimum sentence
permitted was twenty years and the maximum sentence was capped at forty
years. Thus, Appellant’s sentence of twenty to forty years was both
mandated and proper.
Finally, Appellant alleges that the verdicts for assault of a law
enforcement officer and aggravated assault were against the weight of the
evidence. Appellant’s Brief at 36. After review, we conclude that Appellant
is entitled to no relief.
- 13 -
J-S80017-17
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Widmer, 560
Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000);
Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
1189 (1994). A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Widmer, 560
A.2d at 319-[3]20, 744 A.2d at 752. Rather, “the role of the
trial judge is to determine that ‘notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny
justice.’” Id. at 320, 744 A.2d at 752 (citation omitted). It has
often been stated that “a new trial should be awarded when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail.” Brown,
538 Pa. at 435, 648 A.2d at 1189.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. Because the
trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give
the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of
- 14 -
J-S80017-17
the evidence and that a new trial should be granted
in the interest of justice.
Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the least assailable of its
rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).
The threshold question for this Court is whether Appellant’s weight
issue has been preserved. Pennsylvania Rule of Criminal Procedure 607
governs challenges to the weight of the evidence and provides, in relevant
part, as follows:
- 15 -
J-S80017-17
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a
new trial:
(1) Orally, on the record, at any time before
sentencing;
(2) By written motion at any time before sentencing;
or
(3) In a post-sentence motion.
Pa.R.Crim.P. 607(A).
In his brief on appeal, Appellant purports to challenge the weight of
the evidence underlying his convictions for both aggravated assault and
assault of a law enforcement officer. In his post-sentence motion, however,
Appellant presented only a boilerplate challenge to the weight of the
evidence:
5. [Appellant] alleges that the verdict was against the weight of
the evidence to such a degree as to shock one’s conscience and
sense of justice. [Appellant] reserves the right to amend and
supplement this answer upon receipt of the notes of testimony
from the trial.
Post-Sentence Motion, 12/10/15, at ¶5.
It has long been the law in Pennsylvania that a boilerplate post-
sentence motion merely stating that the verdict was against the weight of
the evidence preserves no issue for appellate review unless the motion
specifies in what way the verdict was against the weight of the evidence.
Commonwealth v. Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983).
However, the record reflects that at the hearing on Appellant’s post-
- 16 -
J-S80017-17
sentence motion, the trial court, faced with Appellant’s boilerplate motion,
sought to clarify Appellant’s claim. N.T., 1/8/16, at 4. Counsel informed the
trial court that Appellant was challenging only the weight of the evidence
with respect to the conviction for assault of a law enforcement officer. Id.
Thus, the only weight-of-the-evidence challenge before the trial court was
with respect to assault of a law enforcement officer; Appellant abandoned
his challenge to the weight of the evidence with respect to his conviction for
aggravated assault because he did not present it to the trial court, and the
trial court did not address it. Accordingly, we deem Appellant’s weight-of-
the-evidence challenge to his aggravated assault conviction waived on
appeal and will address only his challenge to the weight of the evidence as it
relates to the assault of a law enforcement officer conviction.
As discussed above, the evidence against Appellant amply established
his guilt of assault of a law enforcement officer. Moreover, as the finder of
fact, the jury was free to credit the testimony as it saw fit, and it was free to
believe all, part, or none of the evidence, and to assess the credibility of the
witnesses. Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. Super.
2004). Despite acquitting Appellant of other charges, the jury weighed the
evidence and returned a verdict of guilty on the charge of assault of a law
enforcement officer. Verdict Sheet, 6/18/15. In ruling on Appellant’s post-
sentence motion, the trial court concluded that there was nothing shocking
about the verdict, and it denied Appellant’s post-sentence motion. N.T.,
- 17 -
J-S80017-17
1/8/16, at 4-5; Order, 1/8/16. After review, we discern no abuse of
discretion in the trial court’s denial of Appellant’s post-sentence motion.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/18
- 18 -