J-A02043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY M. MCGOFF :
:
Appellant : No. 224 MDA 2018
Appeal from the Judgment of Sentence March 7, 2017
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000433-2015
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED: MARCH 25, 2019
Appellant Timothy M. McGoff appeals from the judgment of sentence
following his jury trial convictions for two counts each of attempted homicide,
aggravated assault with a deadly weapon, aggravated assault, simple assault,
recklessly endangering another person, terroristic threats, and one count each
of theft by unlawful taking, unauthorized use of a motor vehicle, disorderly
conduct, reckless driving, and driving under the influence.1 Appellant asserts
that the evidence was insufficient to convict him of two counts of attempted
homicide, and one count of aggravated assault with a deadly weapon and
aggravated assault. Additionally, Appellant asserts that the Commonwealth
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1 18 Pa.C.S. §§ 901, 2501, 2702(a)(4), 2702(a)(1), 2701(a)(3), 2705,
2706(a)(1), 3921(a), 3928, 5503(a)(1), 3736, and 3802(a)(1), respectively.
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impermissibly used evidence of his prior bad acts and that his sentence is
excessive. We affirm.
The trial court summarized the relevant factual background of this
matter as follows:
Leslie Bacinelli testified that she had been in a relationship with
[Appellant] for approximately thirteen years and they had two
children, Colin, who was seven years old at the time of the
incident, and Thomas, [who] was one year old. Leslie stated that
she had ended her relationship with [Appellant] in August of 2014
and relocated from their shared home to her parents’ home. She
and [Appellant] maintained a mutual custody agreement wherein
[Appellant] had visitation every other weekend from Friday
evening until Sunday evening, as well as two weekdays. Leslie
stated that in August of 2014, she reconnected with Craig Hoover,
a high school friend who had moved to New Hampshire, and she
entered into a relationship with Craig in September 2014. Craig
similarly had two children, daughters who were then ages fourteen
and eleven. Craig and his daughters were planning to visit Leslie
the week of January 3, 2015, when [Appellant] had custody of
their children. Leslie asserted that [Appellant] had plans on Friday,
so he arranged to pick up the children on Saturday instead of
Friday. Leslie stated that when her older son Colin realized that
Craig and his daughters were in town, he preferred to stay with
Leslie. Leslie testified that this resulted in a telephone
conversation with [Appellant] about Colin’s preference; in
response, [Appellant] made disparaging remarks about her. After
the conversation ended, [Appellant] called back to speak to Colin.
She recalled that [Appellant] was very pleasant while speaking to
Colin; nevertheless, when she returned to the phone, [Appellant]
stated that she could have the kids tonight “because after today
and after tonight it’s not going to matter much to you anyway.”
Leslie’s statements were corroborated by photographs showing
that she texted [Appellant] that morning to inform him that Colin
did not want to leave. The Commonwealth introduced additional
photographs of text messages from [Appellant] after the phone
conversation had ended. Leslie testified that she and Craig and
their respective children continued their day. At approximately
6:15 p.m., [Appellant] sent another unprovoked text message
stating, “You had to go to New Hampshire to find a man because
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everyone around here knows how gross you are inside. Scumbag
boyfriend has no idea.” Leslie explained that she returned to her
parents’ house with Craig and the children before she and Craig
left to purchase a Red Box movie and ice cream at Bill’s
Supermarket at approximately 7:45-7:50 p.m. Leslie then
testified in detail regarding the events of the night.
She recalled leaving with Craig in his vehicle [to go to the
supermarket] and not seeing any other vehicles on Quicktown
Road. Craig turned left onto Aberdeen Road and they noticed a
vehicle’s headlights appear behind them. Craig pulled over and let
the vehicle behind them pass. As they reached the bottom of
Aberdeen Road, at the intersection of Aberdeen and Reservoir
streets, Leslie noticed the same vehicle in [a] dirt pull-off section.
They continued on the route to Bill’s Supermarket with the vehicle
still following. Leslie testified that they entered the plaza and
parked in front of the Red Box movie rental. At the same time,
Leslie received text messages from [Appellant] stating that he
wanted to say goodnight to the kids and asked why she would not
let him. She testified that she told him that she was out getting a
movie and to call her parent’s house because the kids were home.
[Appellant] replied, “Did, scumbag.” She and Craig then picked
out a movie and went into the supermarket. Upon leaving, Leslie
noticed the same vehicle she thought was following them parked
a few spaces away. She testified that she did not think anything
of it because it was the only supermarket in the area. They then
went to Dunkin Donuts and noticed the same vehicle. She and
Craig decided to travel off of their planned route to test if the
vehicle was following them. Craig then drove toward Jubilee Road,
a dark road without much traffic. The vehicle followed, and Leslie
recalled the statements made by [Appellant] earlier, suspecting
that [Appellant] was in the vehicle. Leslie called her father and the
police. Leslie testified that the vehicle continued to follow. Leslie
testified that she did not return home because she did not want
to place the children in danger. Meanwhile, Leslie called 911 and
arranged to meet Officer [Matthew] Cianfichi at North Pocono
Intermediate School. Leslie testified that Craig drove through a
vehicle wash stall to turn around, as the other vehicle went
through the stall next to them, revved the engine, struck their
vehicle, and pushed them into the oncoming traffic lane. Craig
straightened out his vehicle, however [Appellant, who was in the
other vehicle] revved the engine and struck them a second time;
Leslie testified that the violent impact caused her to flail forward.
Their vehicle veered off the road as [Appellant’s] vehicle passed
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them, turned around and [Appellant] drove his vehicle directly into
Leslie’s side of the vehicle. The impact pinned Craig’s side of the
vehicle against the guardrail and the airbag went off.
After crashing into the guardrail Craig’s door was jammed shut.
Leslie testified that [Appellant] approached Craig’s side of the
vehicle, pounded on the roof and screamed, “Fuck.” Leslie
identified [Appellant] by his voice. She then kicked open the
dented passenger door and exited the vehicle. Leslie stated that
she saw [Appellant] standing under the streetlight with a knife in
his hand and threaten[]: “I’m going to fucking kill both of you.”
She ran but [Appellant] grabbed her by the ponytail, grabbed her
face with his left hand, and used the knife to slice her face from
lip to cheek. Again she attempted to run, but he continued to grab
her ponytail, yank her head and threaten: “Say goodbye, this is
your last fucking breath.” As [Appellant] dropped Leslie, he cut
her sweatshirt and turned his attention to Craig and the three of
them fell to the ground in a struggle. Leslie testified that
[Appellant] yelled: “I’m going to fucking kill both of you.” She
observed [Appellant] chase Craig around [a parked vehicle
nearby] about three times before Craig fell. Leslie testified that
she observed [Appellant] with the knife in his hand when chasing
Craig toward the entrance of I-380. In support of her testimony,
Leslie identified the knife that [Appellant] cut her with, as well as
the scarf and sweatshirt she was wearing. Leslie testified that as
a result of the incident her facial injuries required surgical repair
at the hospital.
Victim Craig Hoover corroborated Leslie’s testimony[.]
***
Affiant [Officer] Cianfichi of the Moscow Borough Police
Department testified that on January 3, 2015, he responded to a
call at the Market Street Inn in Moscow for the report of a stolen
vehicle. Officer Cianfichi corroborated that Ryan Butler’s 2002
Buick Rendezvous SUV was stolen. While speaking with Ms.
Butler, Officer Cianfichi received a dispatch call regarding a female
being followed near North Pocono Intermediate School. Shortly
thereafter, Officer Cianfichi received another call that the same
female was now being run off the road by another vehicle. Office
Cianfichi responded to the scene and observed a white Subaru and
a gold Buick SUV crashed at the intersection of 690 and the I-380
ramp. Officer Cianfichi testified that the Subaru had front end
damage and a deployed airbag, trunk pushed in and frame
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damage; the Buick had front end damage, a missing bumper and
a damaged headlight. Officer Cianfichi noted that the white
Subaru was pushed into the guardrail with the passenger side door
open. During the investigation, Officer Cianfichi determined that
Craig owned the white Subaru and Ryan Butler owned the gold
Buick. Officer Cianfichi testified that upon arrival[,] witnesses
were screaming and pointing at the two men on the on ramp.
Officer Cianfichi stated that he held [Appellant] at taser-point until
Officer [Stephen] Price arrived. The officers recovered a bloody
knife from [Appellant’s] pocket. Officer Cianfichi testified then he
placed him the backseat of the police vehicle and Mirandized[2]
[Appellant]. Officer Cianfichi recalled that [Appellant] admitted
“you got me” and that he was going to kill Leslie and Craig. Officer
Cianfichi stated that [Appellant] further admitted that he stole the
gold Buick from the Market Street Inn. Officer Cianfichi also
testified that [Appellant] disclosed that there was a loaded rifle
and soda bottles [filled] with gasoline on the front seat of the
stolen Buick. The Commonwealth produced the rifle seized in the
investigation and [it was] admitted . . . into evidence.
Officer Cianfichi testified that in the course of his investigation he
executed a search warrant on [Appellant’s] cell phone.
Accordingly, the Commonwealth introduced photographs of text
messages between [Appellant] and Leslie. Officer Cianfichi
additionally testified that he drove the route the victims reported
taking and tracked it with his odometer at approximately 19.7
miles. He stated that Officer Price collected Leslie’s scarf, as well
as statement from Leslie and Craig. Officer Cianfichi explained
that the cut mark on Leslie’s sweatshirt went unnoticed, but when
she brought the sweatshirt to the police station, it was tagged and
put into evidence. Officer Cianfichi related that .22 caliber bullets
and a lighter [from Appellant’s pockets] were provided to him by
Sergeant [Bill] Morgan. Officer Cianfichi further described the
procedure of collecting and preserving evidence at the Moscow
Borough Police Department.
[Appellant] presented several character witnesses. The Appellant
admitted that he stole the Buick SUV and that he drove the stolen
vehicle on January 3, 2015. He admitted that he followed Craig’s
vehicle. [Appellant] also admitted to texting Leslie while following
Craig’s vehicle. Nevertheless, he admitted that he broke his
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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pursuit to retrieve a rifle, bullets, and gasoline from his home.
Ultimately, he resumed following Craig and Leslie after seeing
them at Bill’s Supermarket. [Appellant] described his mindset as
angry and livid and wanting to physically confront Craig Hoover.
He admitted to intentionally hitting Craig’s vehicle with the stolen
Buick SUV multiple times. [Appellant] further admitted to exiting
the vehicle with his knife in his hand. [Appellant] stated that Craig
pushed Leslie at him which caused them to fall. At this point,
[Appellant] claimed that he picked up the knife and put it in his
pocket. [Appellant] admitted to running after Craig with the
intention of physically fighting him. When he saw the police lights,
[Appellant] was pursuing Craig. [Appellant] agreed that he spoke
to Sergeant Morgan, but denied admitting any intent. Additionally,
[Appellant] conceded that he may have said “I’m going to fucking
kill you.”
Trial Ct. Op., 5/11/18, at 3-7, 12-15 (citations and footnote omitted). Based
upon these facts, Appellant was charged with the aforementioned offenses.
Appellant’s case proceeded to a jury trial beginning on November 15,
2016. During the third day of trial, the Commonwealth informed the trial court
and Appellant’s counsel that it had obtained a 2006 Pennsylvania State Police
report documenting an incident between Appellant and Ms. Bacinelli. N.T.
Trial, 11/17/16, at 4. In the 2006 incident, Appellant had allegedly threatened
to, among other things, kill Ms. Bacinelii and stab her then-boyfriend in the
neck with a three-inch knife. Id. at 5.
The Commonwealth sought to use the 2006 report as a basis to question
Appellant’s character witnesses on their awareness of the incident. Id.
Initially, the Commonwealth acknowledged that it obtained the report mid-
trial and had it obtained the report earlier, the Commonwealth would have
filed a motion to have the report admitted under Pennsylvania Rule of
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Evidence 404(b)3 during the Commonwealth’s case-in-chief. Id. at 4. The
Commonwealth, however, posited an alternative argument: if Appellant’s
counsel opened the door during his cross-examination of Ms. Bacinelli, then
the Commonwealth would be able to redirect Ms. Bacinelli with the contents
of the report. Id. at 5.
Appellant’s counsel maintained that because Appellant was not arrested,
let alone convicted, as a result of the 2006 incident, no character witness
would even be aware of the report. Id. at 6-7. Counsel then objected
generally on the basis that the Commonwealth was aware that Appellant’s
defense strategy was grounded in character and it was “preposterous and
completely unfair” that the Commonwealth would be permitted to use the
report to impeach Appellant’s character witnesses. Id. at 9. The
Commonwealth reiterated that if Appellant’s counsel “opens the door on cross”
on Ms. Bacinelli, then it should have the ability to redirect her on the 2006
report. Id. at 10. The court observed that if counsel “opens the door to
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3 In pertinent part:
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b)(3).
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question, he opens the door.” Id. The court however, deferred its ruling. Id.
at 11.
Later, mid-trial, at sidebar and out of the jury’s presence, Appellant’s
counsel requested clarification of the court’s ruling:
[Appellant’s counsel]: Yes, I want a clarification on the [c]ourt’s
ruling on the 2006 state police report.
THE COURT: We’ll wait to see if the door gets opened and make a
determination then. As to the character witnesses, there will be
not allowed any cross on that.
[Appellant’s counsel]: So only if I open the door on cross-
examination?
THE COURT: Correct.
[Appellant’s counsel]: Otherwise, inadmissible.
THE COURT: Correct. Now, that could be reopened depending on
what happens with the witnesses.
[Appellant’s counsel]: Yeah, of course.
Id. at 79.
Later, Appellant’s character witnesses testified without the
Commonwealth referring to the 2006 report or Appellant’s counsel “opening
the door.” Then Appellant himself testified, implying it was an accident. Id.
at 233. After the close of Appellant’s direct examination, the following sidebar
occurred outside of the jury’s presence:
[Commonwealth]: Your Honor, I think the fact that [Appellant] is
almost saying that this was like an accident or some sort that I
have the ability to—he has opened the door to the 2006 [report].
THE COURT: Yeah.
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[Appellant’s counsel]: Your Honor, there is no evidence he knew
about that.
THE COURT: Absolutely. I agree it is allowed.
[Commonwealth]: So I just want to be able to know that I am
able to cross on that.
[Appellant’s counsel]: Your Honor, there is no evidence that he
knew about this. You said it was only if I opened the door through
cross of her[, i.e., the victim].
THE COURT: No, I said or other [sic] way of opening the door. . .
.
Id. at 234-35.
Subsequently, the trial court stated that if Appellant denies knowledge
of the 2006 incident, the Commonwealth could not use the report to impeach
him:
THE COURT: The way in which you use that if [Appellant] denies
it you can’t use the collateral piece.
[Commonwealth]: No, I understand.
THE COURT: Do you understand that?
[Commonwealth]: Right, I understand that.
THE COURT: It can be done in regard to was there an incident and
when it was, but you can’t give him the [2006 report] and have
him read it because that—
[Commonwealth]: No, no.
[Appellant’s counsel]: If I may renew my objection, . . . he is going
to say that and this is the problem. I haven’t had time to even
talk—[Appellant] is being told this, he has heard this for the first
time today so, your Honor, unfair surprise. If he is going to use
it, we need to recess for the today [sic] so I can talk to him about
this.
* * *
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THE COURT: The door opened itself. I told you if the door opened
it was going to be allowed.
[Appellant’s counsel]: Your Honor, but I need to renew my
objection again. They had this case for two years.
THE COURT: Right. That’s already been answered. I told you that
once that the door was opened.
Id. at 237-39.
During the Commonwealth’s cross-examination of Appellant, the
following exchange occurred, after Appellant again confirmed the incident was
an accident:
[Commonwealth]. You ever threaten[ed] Leslie before?
[Appellant]. Never.
[Commonwealth]. Never, ever?
[Appellant]. Not that I recall.
[Commonwealth]. How about Leslie or any of her boyfriends?
[Appellant]. Not that I recall.
[Commonwealth]. Not that you recall. Do you remember a 2006
incident in March, St. Patrick’s Day weekend, parade weekend in
2006, where you are calling her over and over and over again and
leaving voicemails?
[Appellant]. I don’t.
[Commonwealth]. You don’t recall that – you don’t recall tell[ing]
her boyfriend and telling her that he was going to – you were
going to stick a three-inch blade in her neck?
[Appellant]. No.
[Commonwealth]. And that “F” you, you’re are [sic] a dead man
–
[Appellant]. No.
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[Commonwealth]. – to her then boyfriend in 2006? You don’t
recall that incident whatsoever?
[Appellant]. No. Who was her boyfriend in 2006?
[Commonwealth]. I’m asking you.
[Appellant]. I have no idea.
[Commonwealth]. I ask the questions here, sir.
[Appellant]. I’m sorry.
[Commonwealth]. You don’t recall that at all?
[Appellant]. I’m trying to recollect. I don’t.
[Commonwealth]. You don’t remember Pennsylvania State Police
Officer –
[Appellant’s counsel]: Okay. Asked and answered.
THE COURT: Asked and answered. Move on.
[Appellant’s counsel]: Objection, your Honor, sidebar.
(Discussion held at sidebar as follows:)
[Appellant’s counsel]: Your Honor, I want a mistrial for
prosecutorial misconduct. He just said with a piece of paper in his
hand, You don’t remember a Pennsylvania State police officer?”
And he knows damn well that it says in the report that a police –
a state police officer never talked to [Appellant] so he knows that
–
THE COURT: He doesn’t know that. That’s not the way it reads.
In fact, in there it reads at the end it says the father says he is
going to have him contact the state police.
[Appellant’s counsel]: And he says we couldn’t find [Appellant],
we never got in touch with him.
THE COURT: Denied.
Id. at 263-66. Under the circumstances and the court’s prior ruling, given
Appellant’s denial, the Commonwealth never introduced the 2006 report into
evidence. See id.
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At the conclusion of the trial, the jury convicted Appellant of all counts.
The trial court sentenced Appellant on March 7, 2017, to an aggregate
sentence of 256 to 612 months’ incarceration. Appellant filed a timely post-
sentence motion on March 17, 2017, requesting modification of his sentence.
Thereafter, because Appellant had obtained new counsel shortly before
sentencing, counsel requested an extension of time to file additional post-
sentence motions. This trial court granted the request and ordered Appellant
to file them by April 26, 2017. Appellant, however, filed post-sentence
motions on May 2, 2017.4
In his post-sentence motions, Appellant asserted that his sentence was
excessive, the Commonwealth was permitted to cross-examine Appellant
regarding the 2006 Pennsylvania State Police report improperly, and the
evidence was insufficient to convict him of each offense. See Post-Sentence
Mot., 5/2/17, at ¶¶ 27-31, 43-47, 54. The trial court conducted a hearing on
the post-sentence motions on June 9, 2017. The post-sentence motions were
denied by operation of law on December 28, 2017. Appellant filed a timely
notice of appeal on January 26, 2018.
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4 The Commonwealth filed a response that did not acknowledge any
untimeliness, and following a hearing, the trial court denied the motions by
operation of law. Accordingly, we conclude Appellant timely appealed from
the judgment of sentence following the denial of the post-sentence motions
by operation of law.
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After receiving an extension of time to file a Pa.R.A.P. 1925(b)
statement, Appellant filed a timely concise statement of errors complained of
on appeal, raising, among other issues, the following:
a. The Trial Court erred in not granting a new trial based upon
insufficiency of evidence. The verdict rendered in this matter is
so contrary to the evidence presented that it shocks the sense of
justice and requires the granting of a new trial imperative so that
justice may be given another opportunity to prevail.
b. Moreover, the underlying convictions in this matter are against
the weight of the evidence in that there was insufficient evidence
to prove the Commonwealth's allegations and theory of the case.
There was not sufficient evidence presented to enable the fact -
finder to find every element of each crime beyond a reasonable
doubt.
Pa.R.A.P. 1925(b) Statement, 3/23/18, at ¶¶ 4-5. The trial court filed a
responsive opinion under Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Whether the Commonwealth presented insufficient evidence,
as a matter of law, to support a verdict of guilty in relation to
two (2) [c]ounts of [c]riminal [a]ttempt to [c]ommit [c]riminal
[h]omicide, with respect to victims Leslie Bacinelli and Craig
Hoover; one (1) count of [a]ggravated [a]ssault, with respect
to victim Craig Hoover’ and one (1) count of [a]ggravated
[a]ssault with a [d]eadly [w]eapon, with respect to victim Craig
Hoover[.5]
2. Whether the trial court erred in allowing the Commonwealth to
cross-examine the Appellant about prior bad acts via an alleged
statement where he supposedly threatened to kill Leslie
Bacinelli and her then boyfriend by sticking a 3-inch blade into
her neck and kill[ing] her boyfriend; and then make reference,
in front of the jury, to a 2006 State Police [r]eport and State
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5In his Rule 1925(b) statement, Appellant did not specify which elements he
was challenging of any of the crimes for which he was convicted.
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Trooper after the Appellant denied any knowledge of the
incident[.]
3. Whether the trial court abused its discretion by imposing a
sentence at the highest end of the aggravated range of the
Pennsylvania Sentencing Guidelines, by failing to consider the
relevant sentencing criteria of the Pennsylvania Sentencing
Code within 42 Pa.C.S. § 9721(b), failing to consider mitigating
circumstances, and by failing to state sufficient reasons on the
record for the sentence imposed[.]
Appellant’s Brief at 9-10.
In his first issue, with regard to Ms. Bacinelli, Appellant asserts that “the
Commonwealth has failed to adequately establish sufficient evidence to prove
the element of intent beyond a reasonable doubt.” Id. at 22. Additionally,
Appellant argues that “the Commonwealth has failed to present sufficient
evidence to credibly establish that the Appellant utilized a deadly weapon to
inflict any injury on a vital part of the victim’s body.” Id.
As to Mr. Hoover, Appellant asserts that the Commonwealth failed to
present sufficient evidence of intent and “failed to establish sufficient evidence
to prove beyond a reasonable doubt that the Appellant took any substantial
step toward making an attempt to kill [Mr. Hoover].” Id. at 24-25. According
to Appellant, “the evidence clearly shows that the Appellant only wanted to
fight Mr. Hoover and did not have a specific intent to kill or any intent to kill
for that matter.” Id. at 26. Additionally, Appellant argues that “the
Commonwealth has failed to present sufficient evidence to credibly establish
that he Appellant utilized a deadly weapon to inflict any injury on a vital part
of the victim’s body.” Id.
The following applies when we review the sufficiency of the evidence:
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A claim challenging the evidence is a question of law. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt. . . . When
reviewing a sufficiency claim the court is required to view the
evidence in the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Nevels, __ A.3d __, __, 2019 WL 256097, at *6 (Pa.
Super. Jan. 18, 2019) (ellipses in original and citation omitted). Further, “[i]n
conducting our review, we consider all of the evidence actually admitted at
trial and do not review a diminished record.” Id. (internal quotation marks
and citation omitted).
In Pennsylvania, a criminal attempt occurs when a person, “with intent
to commit a specific crime, . . . does any act which constitutes a substantial
step towards the commission of that crime.” 18 Pa.C.S. § 901(a). Criminal
homicide is defined as follows: “A person is guilty of criminal homicide if he
intentionally, knowingly, recklessly or negligently causes the death of another
human being.” 18 Pa.C.S. § 2501(a). Accordingly, “if a person takes a
substantial step toward the commission of a killing, with the specific intent in
mind to commit such an act, he may be convicted of attempted
murder.” Nevels, 2019 WL 256097, at *7 (citation omitted). Additionally,
“[t]he use of a deadly weapon on a vital part of the human body is sufficient
to establish the specific intent to kill.” Commonwealth v. Hilliard, 172 A.3d
5, 12 (Pa. Super. 2017) (internal quotation marks and citation omitted).
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As to aggravated assault, “[a] person is guilty of aggravated assault if
he . . . attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life[.]” 18 Pa.C.S. §
2702(a)(1). Additionally, “[a] person is guilty of aggravated assault if he . . .
attempts to cause or intentionally or knowingly causes bodily injury to another
with a deadly weapon[.]” 18 Pa.C.S. § 2702(a)(4). Where attempted
homicide and aggravated assault charges are based upon the same set of
facts, proof of attempted homicide is “legally sufficient as a matter of law to
support [a]ggravated [a]ssault.” Hilliard, 172 A.3d at 13 (addressing the
Commonwealth’s burden of proof at the preliminary hearing stage).
Initially, we note that Appellant’s sufficiency of the evidence claims are
waived for failure to properly preserve them in his Rule 1925(b) statement.
See Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)
(holding that to challenge the sufficiency of the evidence, the 1925(b)
statement must specify which elements of any crime the Commonwealth
allegedly failed to sufficiently establish); see also Commonwealth v. Gibbs,
981 A.2d 274, 281 (Pa. Super. 2009) (stating that “[s]uch specificity is of
particular importance in cases where, as here, the [a]ppellant was convicted
of multiple crimes each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt”).
Even if Appellant had preserved his sufficiency challenges, his claims do
not entitle him to relief. As the trial court noted, Appellant
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was charged with two (2) [c]ounts of [c]riminal [a]ttempt –
[h]omicide, one of which was based upon the allegation that
[Appellant] cut the face of Leslie Bacinelli from lip to cheek with a
knife and then attempt to cut Leslie’s throat, but was unsuccessful
due to the scarf she was wearing. This factual basis also served
the basis for one of each of the charges of [a]ggravated [a]ssault
and [a]ggravated [a]ssault with a [d]eadly [w]eapon. Here, the
Commonwealth presented detailed and thorough testimony of
Leslie Bacineli stating that [Appellant] followed the vehicle in
which she was a passenger for a lengthy distance before violently
ramming the vehicle multiple times, and ultimately cased a crash.
Leslie further testified that [Appellant] grabbed her by her hair,
held her face, and told her to “take [her] last fucking breath”
before slicing her face from lip to cheek and subsequently
attempting to cut her throat with a knife. . . . the totality of the
testimony and evidence presented, viewed in light most favorable
to the Commonwealth as verdict winner, is sufficient to establish
the elements of attempted homicide.
***
Similarly, the [c]riminal [a]ttempt – [h]omicide, [a]ggravated
[a]ssault, [and a]ggravated [a]ssault with a [d]eadly [w]eapon .
. . charges as to Craig were based upon the allegation that after
[Appellant] attempted to kill Leslie Bacinelli, he chased victim
Craig Hoover with a knife expressly stating that his intention was
to kill him. Again, the evidence, viewed in a light most favorable
to the Commonwealth as verdict winner, is sufficient to establish
each of the elements of the above-charges if believed by the jury.
Leslie and Craig both extensively testified regarding the lengthy
pursuit [Appellant] engaged in before ultimately violently
ramming their vehicle multiple times, causing them to crash. Both
Leslie and Craig testified that [Appellant] chased after Craig with
a knew after attacking Leslie[.]
Trial Ct. Op. at 24-25, 28. Because the trial court’s decision is supported by
the record, we agree with the trial court that Appellant’s sufficiency of the
evidence claims are without merit in light of the overwhelming evidence of his
guilt. See Nevels, __ A.3d at __, 2019 WL 256097 at *6.
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In his second issue, Appellant challenges certain cross-examination by
the Commonwealth as highly prejudicial. Appellant’s Brief at 33. Specifically,
Appellant objects to the question, as quoted above: “Do you remember a 2006
incident in March, St. Patrick’s Day weekend, parade weekend in 2006, where
you are calling her over and over and over again and leaving voicemails?”
N.T. Trial, 11/17/16, at 264. Appellant also asserts that the Commonwealth
improperly “continued to cross-examine . . . Appellant by making reference to
a Pennsylvania State Trooper.” Appellant’s Brief at 33.
In Appellant’s view,
the trial court committed prejudicial error and erred as a matter
of law in allowing the Commonwealth to utilize the 2006
Pennsylvania State Police Report [because] the trial court did not
perform the proper analysis to determine whether the evidence
was relevant, and if relevant[,] the trial court never considered or
balanced the factors as to whether the probative value of the
evidence [was] outweighed by the danger of unfair prejudice.
Id. Additionally, Appellant argues that the trial court “indicated that no
cautionary instruction or limiting instruction was required because the [police]
report was not actually admitted into evidence. . . .” Without a limiting or
cautionary instruction, Appellant claims the jury was unaware that they could
not consider the form and content of the Commonwealth’s question[s
regarding the report, including a question about a Pennsylvania State
Trooper].” Id. at 35.
When we consider the admission of evidence at trial, we observe that
it
is within the sound discretion of the trial court and will be reversed
only upon a showing that the trial court clearly abused its
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discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or
the result of bias, prejudice, ill-will or partiality, as shown by the
evidence of record.
Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (en
banc) (citations and quotation marks omitted).
“Relevance is the threshold for admissibility of evidence.” Id. at 358
(citation omitted). In general, “[a]ll relevant evidence is admissible . . . .
Evidence that is not relevant is not admissible.” Pa.R.E. 402. “The court may
exclude relevant evidence if its probative value is outweighed by a danger of
. . . unfair prejudice[.]” Pa.R.E. 403. When considering whether evidence
may be unfairly prejudicial, “a cautionary jury instruction may ameliorate the
prejudicial effect of the proffered evidence.” Tyson, 119 A.3d at 360.
However, a trial court may decline to give a cautionary instruction where it
would call unnecessary attention to a comment made by a prosecutor.
Commonwealth v. Bracey, 831 A.2d 678, 683 (Pa. Super. 2003).
Initially, we note that Appellant’s counsel did not object to the
Commonwealth’s questioning of Appellant as to whether he remembered
repeatedly threatening Ms. Bacinelli and her then-boyfriend in 2006. Further,
Appellant’s counsel objected to the question referring to the Pennsylvania
State Trooper as “asked and answered,” which was sustained by the trial
court. See N.T. Trial, 11/17/16, at 264-65. Soon after, Appellant’s counsel
requested a mistrial, arguing that the State Police had not contacted Appellant
about an incident in 2006. See id. at 265. The trial court denied the request
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for a mistrial. See id. Accordingly, Appellant has failed to preserve his
appellate issue that the question unfairly broadcasts the 2006 police report to
the jury, allowing them to hear evidence that was more prejudicial than its
probative value. See Appellant’s Brief at 35; Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”).
Appellant also argues that it was error for the trial court not to issue a
cautionary instruction after the Commonwealth mentioned a Pennsylvania
State Trooper in a question to Appellant on cross-examination. However,
Appellant’s counsel did not request a cautionary instruction during trial.
Additionally, the trial court chose not to issue a cautionary instruction because
“this would [have] cause[d] juror confusion and unnecessarily highlight[ed]
the 2006 police report.” Trial Ct. Op., 5/11/18, at 39. Accordingly, this issue
is waived, and even if it were preserved, we discern no error on the part of
the trial court in not issuing a cautionary instruction. See Bracey, 831 A.2d
at 683.
In his final issue, Appellant challenges discretionary aspects of his
sentencing. Appellant asserts that
[n]ot only did the trial court impose the highest aggravated range
sentence for [the two counts of attempted homicide], but [the
court] also chose to run both of those sentences consecutively
despite Appellant’s lack of any criminal history. . . . [I]t appears
as though the trial court failed to consider any mitigating
circumstances on the record before imposing aggravated
sentences in the top end of the range and also running both counts
consecutive to each other. In running the sentences
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consecutively, the failure to adequately consider mitigating
circumstances was compounded.
Appellant’s Brief at 39-40. According to Appellant, his lack of a criminal record
and his rehabilitative needs were mitigating circumstances that should have
resulted in a shorter sentence. Id. at 42.
We note that an appeal challenging the discretionary aspects of
sentencing is not an appeal as of right. Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011).
To determine whether an appellant has properly preserved the
discretionary aspects of sentencing for appellate review, we must
conduct the following four part analysis: (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. (footnotes and citation omitted).
Here, Appellant filed a timely notice of appeal, preserved his sentencing
challenges in a post-sentence motion, and included a Pa.R.A.P. 2119(f)
statement in his brief. Accordingly, we turn to whether a substantial question
exists in this matter.
We note that, “[g]enerally speaking, the court’s exercise of discretion in
imposing consecutive as opposed to concurrent sentences is not viewed as
raising a substantial question that would allow the granting of allowance of
appeal.” Commonwealth v. Mastromarino, 2 A.3d 581, 586 (Pa. Super.
2010) (citation omitted). However, “an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
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factors—raises a substantial question.” Commonwealth v. Caldwell, 117
A.3d 763, 770 (Pa. Super. 2015) (en banc) (citation omitted). Accordingly,
Appellant presents a substantial question in this appeal.
Where a sentence is imposed within the guidelines, we may only reverse
the trial court if we find that the circumstances of the case rendered the
application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).
Our review of the reasonableness is based upon the factors contained in 42
Pa.C.S. § 9781(d),6 and the trial court’s consideration of the general
sentencing standards contained in 42 Pa.C.S. § 9721(b).7 We note that a trial
court has discretion whether to sentence a defendant to consecutive or
concurrent sentences for multiple offenses. See Commonwealth v. Hill, 66
____________________________________________
6 Section 9781(d) includes the following:
(d) Review of record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
7 Section 9721(b) provides that the court must follow the general principal
that “the sentence imposed should call for confinement that is consistent with
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).
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A.3d 365, 370 (Pa. Super. 2013) (“[I]n imposing sentence, the trial judge may
determine whether, given the facts of a particular case, a sentence should run
consecutive to or concurrent with another sentence being imposed.”).
In fashioning a sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the defendant.
See 42 Pa.C.S. § 9721(b); Commonwealth v. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009). “[W]here the sentencing judge had the benefit of a
pre-sentence investigation report [(PSI)], it will be presumed that he or she
was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”
Ventura, 975 A.2d at 1135 (citation omitted).
In this matter, while Appellant’s sentences were structured to be served
consecutively, each sentence fell within the guideline range. The trial court
was well aware of the nature and circumstances of the crimes involved,
particularly since it had considered the PSI. See id. At sentencing, the trial
court stated that it:
reviewed [Appellant’s] presentence report, looked over what [it]
considered to be mitigating and aggravating factors.
The district attorney has asked [the court to] go outside the
guideline [range]. And the [c]ourt is not going to go outside but
is going to sentence in the aggravated range. In regard to the
attempted murder counts based on not only what [Appellant] has
stated but the facts and circumstances surrounding this case
including the time of planning it, the length of time over which it
occurred, the miles driven and the multiple victims that this wasn’t
something that just happened quickly.
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And it really will be with the victims and your children for a very,
very long time because of your actions that night.
N.T. Sentencing, 3/7/17, at 33-34.
Accordingly, a review of the record reveals no basis to conclude that the
trial court failed to consider or inappropriately weighed the lack of a criminal
record or Appellant’s rehabilitative needs in light of the gravity of the offense
and the impact on victims. On this basis, we cannot conclude that the
consecutive aggravated range sentences imposed were “clearly
unreasonable.” See 42 Pa.C.S. § 9781(c). Therefore, Appellant’s
discretionary aspects of sentencing claim entitles him to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/25/2019
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