Com. v. Bauer, K.

J-S30032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KEVIN BAUER, :
:
Appellant : No. 1721 MDA 2016

Appeal from the Judgment of Sentence August 31, 2016
in the Court of Common Pleas of Lackawanna County,
Criminal Division, No(s): CP-35-CR-0000440-2015,
CP-35-CR-0000442-2015

BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 16, 2017

Kevin Bauer (“Bauer”) appeals from the judgment of sentence imposed

following his convictions of two counts each of simple assault and recklessly

endangering another person (“REAP”), and one count each of aggravated

assault, resisting arrest, disorderly conduct, and accident involving damage

to an attended vehicle. See 18 Pa.C.S.A. §§ 2701(a), 2705, 2702(a)(3),

5104, 5503(a)(4); 75 Pa.C.S.A. § 3743(a). We affirm.

The trial court set forth the relevant underlying facts as follows:

On February 20, 2015, [at approximately 3:30 p.m.,] Corporal
Thomas McDonald [(“Corporal McDonald”)], who was off duty,
exited a grocery store in Scranton[,] and observed a white male
enter a white KIA vehicle with Florida registration[, which was
occupied by a black female driver and black male passenger].
Because [Corporal McDonald] was a drug interdiction officer, he
had information that a black male driving a white KIA with
Florida tags was actively selling narcotics in Scranton. [Corporal
McDonald] watched the KIA drive around the parking lot, and
then[,] the white male exited the KIA and entered the passenger
seat of an Audi that was parked in the parking lot. Corporal
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McDonald approached the Audi, identified himself as a police
officer and displayed his badge. The driver of the Audi, [Bauer],
shifted the vehicle into reverse and struck a Subaru that was
driving behind him. [Joy Greenwald (“Greenwald”) was driving
the Subaru.] [Bauer] pulled [the Audi] back into the parking
spot and Corporal McDonald opened the passenger door and
directed [Bauer] to park and turn the engine off. [Bauer]
reversed the vehicle again, causing the passenger door to strike
Corporal McDonald[,] [] pinning him between the two vehicles as
the Audi again struck the Subaru. [Bauer] then pulled out of the
parking lot and fled the scene.

[On February 21, 2015, the police located the Audi involved in
the incident, and Corporal McDonald subsequently identified
Bauer as the driver of the Audi.] On February 24, 2015, the
police learned that [Bauer] resided at 700 Davis Street in
Scranton, and conducted surveillance of the residence. They
observed [Bauer] exiting the residence and directed him to stop
and show his hands. [Bauer] ran back into the house. The
police entered the residence and were attacked by [a pit bull
that Bauer had let loose.] The police arrested [Bauer].

[Bauer was charged under two separate cases: (1) for the acts
in the grocery parking lot (no. 15-CR-442), and (2) for the acts
at Bauer’s home (no. 15-CR-440). Bauer filed various pretrial
Motions, which the trial court denied.] On April 18, 2016,
following a jury trial, [Bauer] was found guilty of one count of
aggravated assault, two counts of [REAP], two counts of simple
assault, one count of resisting arrest and one count of accident
involving damage to vehicle or property in case no. 15-CR-442.
On April 29, 2016, [Bauer] pled guilty to one count of disorderly
conduct in case no. 15-CR-440, and in exchange[,] the other
charges pending against him were nolle prossed. On August 31,
2016, [Bauer] was sentenced to an aggregate [prison] sentence
of 39 to 96 months [at both cases.] [Bauer] filed a [M]otion for
[R]econsideration of [S]entence[,] which was denied on
September 16, 2016. On October 13, 2016, [Bauer] filed a
Notice of Appeal of the judgment of sentence to the Superior
Court.[1] On October 25, 2016[, the trial] court ordered [Bauer]
to file a concise statement of matters complained of on appeal
within 21 days[,] pursuant to Pa.R.A.P. 1925(b). On November

1
As the trial court sentenced Bauer under both cases, Bauer filed a single
Notice of Appeal, identifying both case numbers.

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15, 2016, [Bauer] filed a Statement of Matters Complained of on
Appeal.

Trial Court Opinion, 1/4/17, at 1-3 (footnote added).

On appeal, Bauer raises the following questions for our review:

A. Whether the trial court erred when it denied [Bauer’s]
pre[]trial Motion to dismiss all of the charges filed against him
[at no. 15-CR-442] for lack of justification to support the stop
by Corporal McDonald?

B. Whether the trial court committed reversible error when it
permitted prejudicial testimony by Corporal McDonald
concerning drug activity in the area and/or what he thought
to be a drug transaction that caused him to approach and
detain [Bauer]?

C. Whether the Commonwealth presented sufficient evidence to
prove beyond a reasonable doubt that [Bauer] committed
aggravated assault, simple assault and [REAP] relating to
[Corporal] McDonald?

D. Whether the Commonwealth presented sufficient evidence to
prove beyond a reasonable doubt that [Bauer] committed
simple assault and [REAP] relating to [] Greenwald?

E. Whether the trial court was under the mistaken belief that
[Bauer] intentionally directed the pit bull dog to attack the
arresting officers, therefore imposing a harsh and
unreasonable sentence in the aggravated range on the
disorderly conduct charge filed [at no. 15-CR-440]?

F. Whether the trial court imposed a harsh and unreasonable
sentence on the resisting arrest charge when it failed to run
the sentence for this crime concurrent[ly] with the sentences
imposed on aggravated assault and [REAP] when all of the
offenses involved the same conduct, even though the doctrine
of merger does not apply?

G. Whether the trial court imposed a harsh and unreasonable
aggregate sentence of 39 to 96 months [in prison]?

Brief for Appellant at 4-5 (some capitalization omitted).

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In his first claim, Bauer contends that the trial court erred in denying

his pretrial Motion to dismiss the charges against him at no. 15-CR-442 due

to the absence of a legal basis to stop Bauer’s vehicle. Id. at 19. Bauer

argues that prior to the stop, Corporal McDonald did not observe any

exchange of drugs or money; Bauer did not approach or enter the white

KIA; and Bauer was merely a driver of a vehicle in the grocery store parking

lot. Id. at 24, 27-28; see also id. at 25. Bauer further asserts that the

stop by Corporal McDonald required more than mere suspicion of illegal

activity. Id. at 24-25. Bauer claims that he was seized when Corporal

McDonald flashed his badge and asked Bauer to turn off the vehicle. Id. at

25. Bauer argues that “everything that flowed from the illegal stop should

be deemed inadmissible as ‘fruit of the poisonous tree[.]’” Id. at 28.

In reviewing the denial of a motion to suppress, our
responsibility is to determine whether the record supports the
suppression court’s factual findings and legitimacy of the
inferences and legal conclusions drawn from those findings. If
the suppression court held for the prosecution, we consider only
the evidence of the prosecution’s witnesses and so much of the
evidence for the defense as, fairly read in the context of the
record as a whole, remains uncontradicted. When the factual
findings of the suppression court are supported by the evidence,
the appellate court may reverse if there is an error in the legal
conclusions drawn from those factual findings.

Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation

omitted).

“The Fourth Amendment of the Federal Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals from

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unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). There are three categories of interactions

between police and a citizen:

The first of these is a “mere encounter” (or request for
information)[,] which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention[,]” must be
supported by a reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted).

In determining whether an interaction should be
considered a mere encounter or an investigative detention, the
focus of our inquiry is on whether a seizure of the person has
occurred. Within this context, our courts employ the following
objective standard to discern whether a person has been seized:
[w]hether, under all the circumstances surrounding the incident
at issue, a reasonable person would believe he was free to leave.
Thus, a seizure does not occur simply because a police officer
approaches an individual and asks a few questions.

Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010)

(citations, brackets, quotation marks, and ellipses omitted).

At the suppression hearing, Corporal McDonald, a member of the

special investigation division of the Scranton Police Department, testified

that the police had information that a white KIA, with a Florida license plate

and driven by a black male, was selling narcotics out of the vehicle. N.T.,

8/17/15, at 4-5. While off-duty and in plain clothes on February 20, 2015,

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Corporal McDonald observed a man enter a white KIA in a grocery store

parking lot, and watched as the vehicle drove around the parking lot. Id. at

6-7. Corporal McDonald then observed the man exit the KIA and enter an

Audi. Id. at 9. At that point, Corporal McDonald “walked over to the vehicle

to just merely encounter the vehicle,” displayed his Scranton Police

Department identification to the two men in the Audi, and asked to speak to

the men. Id. at 9, 20. Bauer, the driver, immediately put the Audi in

reverse and attempted to leave the parking lot, but slammed into a moving

vehicle. Id. at 9-10. Bauer then pulled back into the parking spot “at an

unsafe speed.” Id. at 10. Corporal McDonald opened the passenger door,

again identified himself as a police officer, and ordered Bauer to put the

vehicle in park and turn off the engine. Id. Bauer did not respond and

instead pulled out of the parking spot, striking Corporal McDonald with the

Audi and pinning him between two vehicles. Id. Bauer left the parking lot

in the Audi. Id.

Upon our review of the record, we conclude that Corporal McDonald’s

initial encounter with Bauer was a “mere encounter.” Indeed, Corporal

McDonald was in plain clothes, did not make any intimidating movements,

did not display a weapon, did not command Bauer to do anything, and did

not speak in an authoritative tone. See Commonwealth v. Au, 42 A.3d

1002, 1008-09 (Pa. 2012) (holding that the officer’s request for

identification did not, by itself, transform the encounter into an investigatory

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detention where officer did not “activate the emergency lights on his vehicle;

position his vehicle so as to block the car that [a]ppellee was seated in from

exiting the parking lot; brandish his weapon; make an intimidating

movement or overwhelming show of force; make a threat or a command; or

speak in an authoritative tone.”) (internal citations omitted). Further, the

fact that Corporal McDonald flashed his badge and asked to speak to Bauer,

without any other action, does not demonstrate that the encounter escalated

into an investigative detention. See Commonwealth v. Beasley, 761 A.2d

621, 625 (Pa. 2000) (noting that initial encounter where officer displayed his

badge and asked to talk to the appellant was a mere encounter). While

Bauer claims that Corporal McDonald did not observe any drug activity and

was merely acting on a hunch when he approached Bauer’s vehicle, Corporal

McDonald did not require any level of suspicion to approach the vehicle.

See Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005)

(stating that “[a] mere encounter can be any formal or informal interaction

between an officer and a citizen, but will normally be an inquiry by the

officer of a citizen. The hallmark of this interaction is that it carries no

official compulsion to stop or respond.”); see also Commonwealth v.

Lyles, 97 A.3d 298, 303 (Pa. 2014) (noting that “a seizure does not occur

where officers merely approach a person in public and question the

individual or request to see identification.”).

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At the time of Corporal McDonald’s second interaction with Bauer,

wherein he told Bauer to put the Audi in park and turn off the engine, the

“mere encounter” escalated into an investigative detention. See

Commonwealth v. Blair, 860 A.2d 567, 573 (Pa. Super. 2004) (noting that

a mere encounter escalated to an investigative detention when the officer

ordered the appellant to remain in the vehicle); see also Commonwealth

v. Strickler, 757 A.2d 884, 889-90 (Pa. 2000) (stating that where a police

officer, either by force or show of authority, has restricted the defendant’s

movement, an investigative detention has occurred). However, the facts

adduced by Corporal McDonald at the time he told Bauer to place the Audi in

park, including Bauer slamming his vehicle into a moving vehicle,

established reasonable suspicion to justify the detention. See

Commonwealth v. Farnan, 55 A.3d 113, 116 (Pa. Super. 2012) (stating

that “[i]n Pennsylvania, a police officer has authority to stop a vehicle when

he or she has reasonable suspicion that a violation of the Motor Vehicle Code

is occurring or has occurred.”); see also Commonwealth v. Chase, 960

A.2d 108, 120 (Pa. 2008) (holding that “if police can articulate a reasonable

suspicion of a Vehicle Code violation, a constitutional inquiry into the

officer’s motive for stopping the vehicle is unnecessary.”). Accordingly, we

conclude that the trial court did not err in denying the pretrial Motion, and

Bauer’s first claim is without merit.

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In his second claim, Bauer contends that the trial court erred in

allowing Corporal McDonald to testify regarding drug activity in the area of

the grocery store parking lot, a purported drug transaction, and the fact that

he obtained information regarding a white KIA from unreliable informants.

Brief for Appellant at 28-29. Bauer argues that the testimony regarding

drugs prejudiced the jury against him. Id. at 29. Bauer also asserts that

the cautionary instructions provided by the trial court were insufficient to

alleviate the impact of the testimony. Id. Bauer claims that the testimony

constituted reversible error. Id. at 30.

Here, Bauer did not lodge an objection to Corporal McDonald’s trial

testimony or the cautionary instructions. See Commonwealth v.

Montalvo, 956 A.2d 926, 936 (Pa. 2008) (noting “the general rule that, in

order to preserve a claim on appeal, a party must lodge a timely objection at

trial.”); Commonwealth v. Shamsud–Din, 995 A.2d 1224, 1226 (Pa.

Super. 2010) (noting that a failure to object to a jury instruction constitutes

a waiver of an error in the instruction). While Bauer objected to Corporal

McDonald’s testimony regarding the information about the white KIA at the

suppression hearing, see N.T., 8/17/15, at 5-6, Bauer’s claims on appeal are

couched in trial court error and thus, are waived for his failure to lodge

contemporaneous objections. See Commonwealth v. May, 887 A.2d 750,

758 (Pa. 2005) (stating that “[t]o the extent the claims would sound in trial

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court error, they are waived due to the absence of contemporaneous

objections.”).2

In his third claim, Bauer contends that the evidence was insufficient to

support his convictions of aggravated assault, simple assault, and REAP

relating to Corporal McDonald. Brief for Appellant at 30, 33-34. Bauer

argues that with regard to the aggravated assault and simple assault

convictions, the Commonwealth failed to prove that he committed the crimes

with the requisite mens rea. Id. at 31. Bauer asserts that his initial action

of backing the Audi out of the parking spot did not demonstrate the requisite

intent. Id. at 32. Bauer further claims that the Commonwealth failed to

produce evidence that he was aware that Corporal McDonald had opened the

2
In any event, even if Bauer properly preserved his claims, he would not be
entitled to relief. Indeed, the trial court noted the following:

Here, Corporal McDonald’s testimony concerning possible drug
activity[,] and what he believed to be a drug transaction[,] was
offered to explain why he approached [Bauer’s] vehicle; it was
not offered to prove that [Bauer] was involved in an illegal drug
transaction. In fact, [Bauer] was not charged with any drug
offenses. [Bauer’s] counsel did not object to this testimony, but
even if he had, the testimony was admissible to explain the
course of conduct taken by Corporal McDonald. Moreover, [the
trial] court instructed the jury that this testimony had been
permitted for the purpose of understanding why Corporal
McDonald acted and how he got involved in this situation, and
that there were no drug charges in this case, and that the jury
was not to imply that [Bauer] was directly involved with a drug
sale. [See N.T., 4/18/16, at 31-32.]

Trial Court Opinion, 1/4/17, at 5; see also Commonwealth v. Chmiel, 30
A.3d 1111, 1147 (Pa. 2011) (noting that a jury is presumed to follow the
instructions given by the trial court).

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passenger door, or that Bauer intended to harm Corporal McDonald. Id. at

32-33. Bauer also argues that the evidence was insufficient to support his

REAP conviction because there was no evidence presented that he had any

intent to place Corporal McDonald “in danger of death or serious bodily

injury.” Id. at 34.

Our standard of review is well-settled:

In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Sunealitis, 153 A.3d 414, 419 (Pa. Super. 2016)

(citation omitted).

Relevantly, a person is guilty of aggravated assault where he

“attempts to cause or intentionally or knowingly causes bodily injury to any

of the officers, agents, employees or other persons enumerated in

subsection (c), in the performance of duty[.]” 18 Pa.C.S.A. § 2702(a)(3);

see also id. § 2702(c)(1) (noting that the officers referred to in subsection

(a) include police officers). Bodily injury is defined as “[i]mpairment of

physical condition or substantial pain.” Id. § 2301.

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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[.]” Id.

§ 2701(a)(1).

The Commonwealth need not establish that the victim actually
suffered bodily injury; rather, it is sufficient to support a
conviction if the Commonwealth establishes an attempt to inflict
bodily injury. This intent may be shown by circumstances which
reasonably suggest that a defendant intended to cause injury.

To show an attempt to inflict bodily injury, it must be shown that
the actor had a specific intent to cause bodily injury. A person
acts intentionally with respect to a material element of an
offense if it is his conscious object to engage in conduct of that
nature or to cause such a result.

Commonwealth v. Klein, 795 A.2d 424, 428 (Pa. Super. 2002) (citation,

brackets and quotation marks omitted).

Finally, a person is guilty of REAP “if he recklessly engages in conduct

which places or may place another person in danger of death or serious

bodily injury.” 18 Pa.C.S.A. § 2705. “The mens rea required for the crime

of REAP, ‘recklessly,’ is defined as a conscious disregard of a known risk of

death or great bodily harm to another person.” Commonwealth v. A.R.C.,

150 A.3d 53, 59 (Pa. Super. 2016); see also Commonwealth v.

Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) (noting that acting in a

reckless manner requires conscious action or inaction, which creates an

unjustifiable and substantial risk of harm).

Corporal McDonald testified that after Bauer had crashed the Audi into

Greenwald’s vehicle and parked the Audi, Corporal McDonald opened the

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passenger door, leaned into the vehicle, made eye contact with Bauer, and

ordered Bauer to put the vehicle in park and turn off the engine. N.T.,

4/18/16, at 15-16. In response, Bauer backed out of the parking spot at a

high rate of speed, causing the passenger door to strike Corporal McDonald

and pinning him between Bauer’s and Greenwald’s vehicles. Id. at 16-17.

Corporal McDonald suffered minor bruising to his ribs and chest area as a

result of the collision. Id. at 23.

Viewing the evidence in a light most favorable to the Commonwealth,

Bauer was aware that the passenger door was open, Corporal McDonald was

standing next to the Audi, and that the Audi would strike Corporal McDonald

if Bauer reversed it. Thus, the evidence was sufficient to support the

aggravated assault and simple assault convictions as we can infer that Bauer

attempted to cause Corporal McDonald bodily injury. See Klein, 795 A.2d

at 428 (stating that evidence was sufficient to support an attempt to cause

bodily injury where appellant hit a voluntary fireman with his vehicle, backed

up the vehicle and hit the fireman again before leaving the scene);

Commonwealth v. Marti, 779 A.2d 1177, 1182 (Pa. Super. 2001) (noting

that “a simple assault committed against a police officer in the performance

of his duties would satisfy the elements of § 2702(a)(3).”) (citation

omitted); see also Commonwealth v. Miller, 955 A.2d 419, 423 (Pa.

Super. 2008) (stating that the evidence was sufficient to support the

aggravated assault conviction where appellant drove at a high rate of speed,

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disregarded pleas from a police officer to stop, and ignored traffic signals

prior to colliding with two vehicles).

Moreover, the evidence was sufficient to support the REAP conviction.

Bauer’s action of hitting Corporal McDonald with his vehicle was intentional

and committed with a conscious disregard of a risk of serious bodily injury.

See Klein, 795 A.2d at 428 (holding that the evidence that appellant hit the

victim with his vehicle two times was sufficient to support a REAP

conviction). Based upon the foregoing, Bauer’s third claim is without merit.

In his fourth claim, Bauer contends that the evidence was insufficient

to support his convictions of simple assault and REAP with regard to

Greenwald. Brief for Appellant at 34. Bauer argues that Greenwald did not

suffer any bodily injury as a result of Bauer striking her vehicle. Id. at 34-

35. Bauer asserts that he was involved in an accident with Greenwald, and

that the mere striking of another vehicle does not demonstrate criminal

intent. Id. at 36.

At trial, Corporal McDonald testified that when he initially approached

Bauer’s Audi, Bauer put the Audi in reverse and immediately struck

Greenwald’s vehicle. N.T., 4/18/16, at 14-15. Corporal McDonald stated

that after Bauer pulled his vehicle back into the parking spot, he opened the

passenger door of Bauer’s vehicle, and told Bauer to put the vehicle in park

and turn off the engine. Id. at 15-16. Bauer then put the Audi in reverse

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and again struck Greenwald’s vehicle, pinning Corporal McDonald between

the vehicles. Id. at 16-17.

Greenwald testified that while she was waiting to park her vehicle in

the parking lot, Bauer’s vehicle hit her vehicle “very, very hard, very fast.”

Id. at 51. Greenwald then stated that she saw Corporal McDonald standing

next to Bauer’s vehicle, and Bauer pulled out of the parking spot and hit her

vehicle. Id.

Here, Bauer recognized that Greenwald’s vehicle was behind his

vehicle when he initially backed out of the parking spot and hit Greenwald’s

vehicle. Based upon Bauer’s action of backing out of the parking spot for a

second time, despite the position of Greenwald’s vehicle, the open passenger

door of his own vehicle, and Corporal McDonald’s admonishment to put the

Audi in park, we can infer that the evidence demonstrated the requisite

intent to support the simple assault and REAP convictions. See Klein, 795

A.2d at 428 (holding that simple assault and REAP convictions were

supported by the evidence where appellant intended to hit the victim with

his vehicle two separate times); see also Miller, 955 A.2d at 423 (noting

that a reckless motorist, who fails to heed pleas to stop his vehicle, acted

with malice). While Greenwald did not suffer bodily injuries, neither simple

assault nor REAP required such a finding to prove the elements of each

crime in this case. See 18 Pa.C.S.A. §§ 2705; 2701(a)(1). Based upon the

facts of this case, Bauer’s fourth claim is without merit.

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In his final three claims, Bauer challenges the discretionary aspects of

his sentences. See Brief for Appellant at 36-40.

“It is well-settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.” Commonwealth v.

Mastromino, 2 A.3d 581, 585 (Pa. Super. 2010).

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:

We conduct a four-part analysis to determine: (1) whether the
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether the appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

***

The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

Here, Bauer filed a timely Notice of Appeal, presented his claim in a

Motion for Reconsideration of Sentence, and included a Rule 2119(f)

Statement in his appellate brief. Bauer’s assertion that the trial court’s

imposition of consecutive, rather than concurrent sentences, does not raise

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a substantial question. See id. at 171 (stating that challenge to the trial

court’s discretion to impose sentences consecutively or concurrently does

not ordinarily raise a substantial question); see also id. at 171-72 (noting

that “[t]he imposition of consecutive, rather than concurrent, sentences may

raise a substantial question in only the most extreme circumstances, such as

where the aggregate sentence is unduly harsh, considering the nature of the

crimes and the length of imprisonment.”). Further, Bauer’s bald claim of

excessiveness does not raise a substantial question. See Commonwealth

v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013) (observing that a bald or

generic assertion that a sentence is excessive does not, by itself, raise a

substantial question justifying this Court’s review of the merits of the

underlying claim).3

Nevertheless, even if Bauer had presented a substantial question, we

would determine that the sentencing court properly exercised its discretion

in imposing the sentence. Our standard of review for challenges to

discretionary aspects of sentencing is well settled:

[s]entencing is vested in the discretion of the trial court, and
will not be disturbed absent a manifest abuse of that discretion.

3
Bauer also asserts that he has raised a substantial question based upon the
fact that the trial court misconstrued the evidence underlying the resisting
arrest conviction at sentencing, and imposed an excessive sentence. Brief
for Appellant at 18. However, Bauer failed to raise this claim in his Rule
1925(b) Concise Statement. See Commonwealth v. Dodge, 77 A.3d
1263, 1268-69 (Pa. Super. 2013) (stating that “[i]n order to properly
present a discretionary sentencing claim, a defendant is required to preserve
the issue in either a post-sentence motion or at sentencing and in a court-
ordered Pa.R.A.P. 1925(b) concise statement.”).

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An abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias
or ill will. It is more than just an error in judgment.

Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)

(citation omitted).

Initially, contrary to Bauer’s implication, “[a]lthough Pennsylvania’s

system stands for individualized sentencing, the court is not required to

impose the ‘minimum possible’ confinement.” Moury, 992 A.2d at 171

(citation omitted). Here, in imposing sentence,4 the trial court reviewed a

pre-sentencing investigation report. See N.T., 8/31/16, at 2, 8. Where the

sentencing judge considered a pre-sentencing investigation report, it is

presumed that they were aware of the all relevant sentencing factors and

weighed all mitigating statutory factors. See Commonwealth v. Fowler,

893 A.2d 758, 767 (Pa. Super. 2006); see also Commonwealth v.

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (noting that the

“sentencing judge can satisfy the requirement that reasons for imposing

sentence be placed on the record by indicating that he or she has been

informed by the pre-sentencing report; thus properly considering and

weighing all relevant factors.”) (citation omitted).

4
The trial court imposed standard range sentences for the crimes committed
under no. 15-CR-442. See N.T., 8/31/16, at 9-11; see also Moury, 992
A.2d at 171 (stating that “where a sentence is within the standard range of
the guidelines, Pennsylvania law views the sentence as appropriate under
the sentencing code.”). Further, the trial court imposed an aggravated-
range sentence for the disorderly conduct conviction under no. 15-CR-440.
See N.T., 8/31/16, at 11.

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J-S30032-17

Moreover, the trial court considered Bauer’s age, family history, prior

criminal history, issues with drugs, prior participation in the state

intermediate punishment program and a drug treatment center,

rehabilitative needs, prior criminal history, and the nature and gravity of the

crimes. See N.T., 8/31/16, at 3-8.5 Additionally, it was within the trial

court’s discretion to impose some sentences concurrently and some

sentences consecutively. See Commonwealth v. Prisk, 13 A.3d 526, 533

(Pa. Super. 2011). Based upon the foregoing, Bauer’s sentencing claim

would fail on the merits, and we discern no abuse of the sentencing court’s

discretion in imposing the sentence. See Ventura, supra; Flower, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2017

5
Contrary to Bauer’s claim, the trial court acknowledged its mistake as to
the underlying facts regarding the resisting arrest conviction. See N.T.,
8/31/16, at 10-11.

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