J-A14019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BARTHOLOMEW PALUMBO
Appellant No. 141 EDA 2017
Appeal from the Judgment of Sentence June 23, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003180-2015
BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017
Bartholomew Palumbo appeals from the judgment of sentence of
twelve to twenty-four years incarceration imposed following his convictions
for attempted homicide, aggravated assault, terroristic threats, and
recklessly endangering another person. We affirm.
On August 20, 2015, Appellant visited the home of his on-again/off-
again girlfriend, Alexandra Swartz. Appellant became angry after seeing
text messages between Swartz and another man. The two engaged in a
verbal argument that evening. The next day, Appellant returned to Swartz’s
home. Appellant again brought up the messages, chastising Swartz and
telling her not to talk to this man again. Swartz asked Appellant to leave; in
response, he grabbed Swartz by the neck and threw her to the floor, injuring
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her leg. Appellant told her “it’s going to get worse” if she called the police,
and left her home.
Appellant returned to Swartz’s house at approximately eleven p.m.
Observing that Appellant’s eyes were bloodshot, Swartz asked if he was
high. Appellant confirmed that he was, and said that he would leave.
Swartz suggested that he was in no condition to drive, and watched
television with him in the living room. Appellant again brought up the text
messages, and became increasingly upset. He then punched her in the face
four times with a closed fist. Swartz felt and saw gushing blood. Appellant
stated, “See what you’re making me do?” and dragged her to a door leading
to the basement. Appellant stated, “Now you’re f---ing dead,” and threw her
down the steps. Swartz crashed into an air conditioner unit sitting at the
base of the stairs. Appellant grabbed Swartz and dragged her to the other
side of the basement, repeating that she was going to die. Appellant placed
a towel in Swartz’s mouth and tried to gag her. Swartz pretended to have a
seizure by shaking for approximately one minute, then stayed motionless in
an effort to play dead. Appellant backed away and said, “Oh my God, I f---
ing killed her. I’m sorry, Alex.” Appellant stayed for a minute or two, then
ran upstairs and closed the door.
Swartz heard Appellant walking around upstairs. At some point, she
heard the kitchen door leading outside shut. Swartz crawled to the steps
and was able to pull herself to the kitchen. Swartz was unaware how long
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she stayed in the basement, but noticed it was daytime when she made it
upstairs. Swartz observed Appellant outside through a window. He came
back inside and exclaimed, “Oh my God, you’re alive.” Appellant then called
911, informing the operator that Swartz had a seizure and fell down the
stairs.
City of Bethlehem police officers and emergency medical personnel
arrived almost simultaneously. Officer James Smith noticed that Swartz’s
face was covered in blood. While paramedics tended to Swartz, Officer
Smith asked Appellant what had happened. Appellant indicated that Swartz
had suffered a seizure. Officer Smith then spoke to Swartz, who whispered,
“He did this to me.” Officer Smith arrested Appellant and escorted him
outside. Appellant exclaimed, “I shouldn’t have let her beat the shit out of
me.” Swartz was taken to the hospital where she was determined to have
suffered an orbital wall fracture, a bilateral nasal fracture, and a left anterior
maxillary1 fracture.
Appellant was taken to the City of Bethlehem police department where
he waived his rights and gave a statement to Detective James Ruvolo at
10:08 a.m, which was videotaped and played to the jury. In this statement,
Appellant claimed that Swartz was verbally hostile, and attacked him
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1
The treating physician described the maxilla “as the nonmoving part of
your jaw.” N.T., 5/3/16, at 210.
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multiple times that evening. He stated that Swartz injured her ankle during
one of these incidents, and he applied ice to the ankle on the couch. At
some point, Appellant claimed that Swartz asked to go to the basement for
an unspecified reason. He assisted her to the steps, where she fell due to
her ankle injury. Appellant claimed that she hit the air conditioner and had
a seizure in the basement. Appellant indicated that he called 911 from the
basement, and ran upstairs to let the authorities inside. Appellant denied
striking Swartz.
Following a jury trial, Appellant was convicted of all charges and, on
June 23, 2016, the judge imposed the aforementioned sentence. Appellant
filed timely post-sentence motions, which were denied.2 Appellant raises the
following matters for our review.
I. Whether the trial court erred in failing to conclude that the
defendant is entitled to a new trial for the following reasons:
a. The trial court failed to instruct the jury on
self-defense
b. The trial court improperly admitted a graphic
color photograph depicting the victim's injuries
c. The trial court improperly denied Defendant's
Motion for Mistrial, and
d. The improper statements by the attorney for
the Commonwealth during her closing?
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2
The post-sentence motion was docketed July 5, 2016. The tenth day was
Sunday, July 3, 2016. Monday was the Fourth of July holiday. Therefore,
the post-sentence motion was timely.
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II. Whether the trial court erred in failing to conclude that the
maximum possible sentence given by the court was
unreasonable and excessive given the number of mitigating
factors, including defendant's minimal prior record, and the lack
of aggravating factors?
Appellant’s brief at 3.
Appellant first claims that the trial court erred in failing to issue an
instruction for self-defense. This contention is largely based upon
Appellant’s testimony at trial, which we briefly review. Appellant repeated
the statement he gave to detectives in many respects, including the
allegation that Swartz was the aggressor. However, he added that when the
two were sitting on the couch, he informed Swartz he would not see her
again due to her physical attacks, verbal abuse, and drug use. He told her
that she was an addict and an unfit mother. Appellant related what
happened next:
And I should not have said that. It was stupid of me, number
one, and it was rude, but it was the truth. And she went nuts.
Absolutely nuts.
Q. What do you mean by that?
A. She hopped right on top of me and just starts throwing
punches, scratch[ing], anything you can think of, she’s throwing
at me.
Q. And what were you doing?
A. I went like this. As soon as she comes at me, I just went like
this. As she’s coming forward, we go 50/50. She’s coming at
me. I’m like this. She goes right into my forearm. I kid you
not, she goes right into my forearm.
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Her—she cracks her nose. . . .
N.T., 5/4/16, at 71. Appellant claimed that he intended to take Swartz to
the hospital to treat her broken nose. However, she continued her attack
and accidentally fell down the steps in the process:
. . . . And we’re right by the stairs. I run and she’s still, like, on
me, like, trying to pull me down, trying to hit me. And I’m just
like, stop. And we go down the stairs.
We’re like – I grab the railing. She’s – she’s on me and I’m
holding the railing. She just obviously, like, lets go because she
is falling and she’s holding onto me for support. So she goes
down. She goes down, like, seven stairs.
Id. at 74. Appellant maintained that Swartz hit the air conditioner at the
bottom of the steps and had a seizure. On cross-examination, Appellant
attributed the inconsistencies between his testimony and his police
statement to sleep deprivation, hunger, shock, and fatigue. “I was not in
the proper state of mind . . . I was up 30 hours and I was in total shock
when I heard the word homicide. I mean, that just blew me away. I could
not process that. I was in full panic attack mode.” Id. at 91.
Appellant asserts that the trial court erred when it denied his request
for a self-defense instruction, arguing his “entire defense was based on the
claim that he was attacked by Alexandra Swartz and that her injuries
occurred when [Appellant] raised his arms in self-defense and Ms. Swartz’s
face made contact with [Appellant]’s forearm and elbow.” Appellant’s brief
at 17.
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It is well-settled that “[i]f a defendant introduces evidence of self-
defense, the Commonwealth bears the burden of disproving the self-defense
claim beyond a reasonable doubt.” Commonwealth v. Houser, 18 A.3d
1128, 1135 (Pa. 2011) (citation omitted). “A jury charge on self-defense
must be given upon request in a criminal prosecution where the jury would
have possible basis for it.” Commonwealth v. La, 640 A.2d 1336, 1346
(Pa.Super. 1994) (citation omitted). We find no error, as the jury would
have no possible basis to find self-defense.
Self-defense is defined by statute. “The use of force upon or toward
another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use
of unlawful force by such other person on the present occasion.” 18 Pa.C.S.
§ 505(a). As is evident from this language, a claim of self-defense
necessarily entails using force. While the passive act of raising one’s arms
to prevent blows constitutes self-defense in a colloquial sense, we hold that
it does not qualify as such in the legal sense.
In support of his claim, Appellant relies upon Commonwealth v.
Mayfield, 585 A.2d 1069 (Pa.Super. 1991) (en banc), and Commonwealth
v. McFadden, 587 A.2d 740 (Pa.Super. 1991), a case applying Mayfield.
We examine each in turn. In Mayfield, this Court found that the trial court
erroneously failed to issue a self-defense instruction. Therein, the testimony
presented by the prosecution and the defendant, as here, substantially
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differed. The parties agreed that the victim, John Maurer, was driving his
vehicle down a narrow road and was unable to pass another vehicle, driven
by Ernest Miller, traveling in the opposite direction. The Commonwealth’s
version established that Maurer, frustrated with the situation, approached
Miller, which resulted in a verbal altercation. Id. at 1075-76. Mayfield
exited Miller’s vehicle during the dispute and struck the victim. Following a
scuffle, Mayfield pulled out a knife, lunged at Maurer, and stabbed him in the
chest. Id. at 1076.
Mayfield, on the other hand, claimed that Maurer forcibly pulled him
from the vehicle. Mayfield agreed that he pulled out a knife, but stated he
did so to defend himself. Significantly, Mayfield explicitly denied stabbing
the victim. Id. The trial court refused to issue a self-defense instruction.
The Commonwealth asked this Court to affirm on the theory that Mayfield’s
failure to concede that he actually stabbed the victim precluded any finding
of self-defense.
We disagreed. The Mayfield Court agreed that refusing to admit
using force would preclude a self-defense claim, but differentiated the denial
of employment of force from a denial of causation.
[W]e do not find that appellant has denied the use of deadly
force, but merely has denied causing the injury to Maurer once
he pulled his knife. Under the Commonwealth's theory, even if
appellant had testified that in defense of himself he lunged at
Maurer with the full intent to cause injury but did not know that
he in fact hit his mark, he still would not be entitled to a charge
on self-defense because he did not admit the actual injury.
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However, such an argument ignores that it was not the injury to
the victim that the jury was instructed to focus on, but rather
the actions or conduct of appellant which led to the injury,—that
is his use of deadly force. We find appellant's testimony that he
pulled the knife in preparation to use it against the victim in
defense of himself to be a sufficient showing of a use of deadly
force to at least put the question of self-defense before the jury.
Id. at 1077. We ordered a new trial for the failure to issue the instruction.
Likewise, in McFadden, supra we determined that a victim’s denial of
intentional causation did not preclude a self-defense instruction. Therein,
Linda McFadden was convicted of aggravated assault for shooting her ex-
husband. McFadden testified that the victim attacked her and grabbed a gun
that was in the room. McFadden stated that she also grabbed the gun, and,
in the ensuing struggle, she obtained possession of the firearm and
discharged it. However, she denied intentionally shooting the victim, instead
stating that her hands may have slipped. Id. at 744. Applying Mayfield,
we held that, accidental injury notwithstanding, McFadden was entitled to a
self-defense charge.3
Appellant claims that the same principles applied to his conviction, in
that his refusal to admit that he caused the injury did not preclude a self-
defense instruction. We find that both cases are distinguishable. Mayfield
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3
Technically, the panel concluded that there was arguable merit to a claim
that counsel was ineffective for failing to request that instruction, and
remanded for a hearing regarding whether counsel had a basis for failing to
request it.
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noted that merely wielding a knife is in itself the use of deadly force. Id.
(citing Commonwealth v. Jones, 332 A.2d 464 (Pa.Super. 1974)).
Mayfield discussed Commonwealth v. Gonzalez, 483 A.2d 902
(Pa.Super. 1984), which held that an admission by the defendant that he
pointed a gun was sufficient to constitute self-defense even though he
denied that he attempted to fire the weapon. In Gonzalez, the gun never
fired and therefore the crime did not involve actual injury. Gonzalez
distinguished that situation from cases in which a self-defense instruction
was properly refused for failing to concede injury:
First, we note that in Powers and Gray, supra, the defendants
were trying to raise inconsistent defenses. In those cases, the
defendants maintained that they did not participate in the
stabbings, yet they requested a charge on self-defense. The
Appellant in this case differs because he does admit that he held
a gun pointed at the officers. While Appellant denies that he
attempted to shoot the revolver, the mere act of pointing a gun
at an individual is sufficient conduct to constitute an assault.
Id. at 904 (citations omitted). Applying Gonzalez, we concluded that the
mere fact Mayfield pulled a knife was itself legally significant as a use of
force.
Here, however, Appellant explicitly denied using any force whatsoever.
His purported act of self-defense was purely passive. By definition,
Appellant did not concede “us[ing] . . . force upon or toward” Swartz. See
18 Pa.C.S. § 505(a). Accepting Appellant’s version of events as true, the
injuries sustained by Swartz were accidental or self-inflicted, and, if so,
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there was no use of force that required legal justification. McFadden is
likewise distinguishable, as therein the defendant did not deny that she
caused the injury by firing the gun, i.e. she agreed that the gun was the
force that caused the injury. Thus, while a self-defense instruction may be
issued even where the injuries are said to be accidental, the key in
McFadden was that the defendant agreed with the prosecution regarding
how the injuries occurred. Herein, Appellant presented an alternative
scenario that was entirely incompatible with Swartz’s testimony and did not
involve any active use of force. As our Supreme Court explained in
Commonwealth v. Harris, 665 A.2d 1172 (Pa. 1995), in such
circumstances “a defense of self-defense . . . is mutually exclusive of the
defense of accident or mistake.” Id. at 1175. Therefore, the trial court
properly refused to issue the self-defense instruction.
Appellant’s next issue involves the admission of a color photograph
depicting the victim’s injuries. This photograph was taken by Officer Emily
Falko while Swartz was in the ambulance awaiting transport to the hospital.
The picture shows Swartz’s face covered in blood. Appellant lodged an
objection, complaining that the photograph was inflammatory.
We employ an abuse of discretion standard in reviewing the admission
of photographs. Commonwealth v. Haney, 131 A.3d 24, 37 (Pa. 2015). A
trial court must determine if the photograph is inflammatory, and, if so,
whether the photograph has essential evidentiary value. See
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Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011) (en banc).
“This Court has interpreted inflammatory to mean the photo is so gruesome
it would tend to cloud the jury's objective assessment of the guilt or
innocence of the defendant.” Id. (citation omitted). We have reviewed the
photograph and find that it does not meet this standard. “The fact that
blood is visible does not necessarily require a finding that a photograph is
inflammatory.” Commonwealth v. Lewis, 567 A.2d 1376, 1382 (Pa.
1989). Herein, the depiction of blood is not gruesome and would not tend to
cloud the jury’s objective assessment.
Moreover, even if this photograph were inflammatory, it had essential
evidentiary value. As the Commonwealth observed at trial, the other
pictures published to the jury were taken after Swartz had been treated and
cleaned. Thus, the photo was necessary for the jury to properly evaluate
Appellant’s claim that Swartz inflicted the injuries upon herself by running
into his hands and elbow.
We next address Appellant’s claim that the trial court improperly
denied his request for a mistrial following prejudicial comments made by
Appellant’s brother, David Palumbo, who testified in Appellant’s defense.
Specifically, on cross-examination, Mr. Palumbo indicated that Appellant was
previously on house arrest.
Q. And the whole time you’re just in your room though?
A. Yeah.
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Q. But you know what he’s doing around the rest of the house
though; right?
A. He was at home for about six months on house arrest, this
past year and half. Like—
Q. Okay. That’s not what I’m asking you. I’m asking you on
August 21st.
N.T., 5/4/16, at 138-39.
Appellant moved for a mistrial at sidebar, which the trial court denied.
Appellant declined the trial court’s offer to issue a cautionary instruction.
We begin by noting our standard of review.
It is well-settled that the review of a trial court's denial of a
motion for a mistrial is limited to determining whether the trial
court abused its discretion. An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will ... discretion is abused. A trial court may grant a
mistrial only where the incident upon which the motion is based
is of such a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict. A mistrial is not necessary where
cautionary instructions are adequate to overcome prejudice.
Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014). We find
no abuse of discretion. In the context of mistrials based on references to
prior criminal activity, we have observed:
The admission of testimony from which a jury could infer past
criminal conduct has been held to be reversible error. Reversal
is not warranted, however, unless the record indicates that
prejudice resulted from the testimony. Mere “passing
references” to criminal activity do not necessitate the granting of
a mistrial unless prejudice results from the reference.
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Commonwealth v. Bruner, 564 A.2d 1277, 1287 (Pa.Super. 1989)
(citations omitted). The challenged reference was passing in nature and was
not prejudicial. As the trial judge indicated, the jury may well have simply
assumed that Appellant was on house arrest as a condition of bail for the
instant crimes, and therefore did not refer to past conduct. Additionally, this
reference would not prejudice the jury. See Commonwealth v. Morris,
519 A.2d 374, 378 (Pa. 1986) (allusion to prior crime of carrying a firearm
without a permit “is not of such a heinous nature as to highly inflame a
jury.”). Moreover, the remark was made by Appellant’s brother and was
non-responsive to the prosecutor’s question. “The nature of the reference
and whether the remark was intentionally elicited by the Commonwealth are
considerations relevant to the determination of whether a mistrial is
required.” Commonwealth v. Valerio, 712 A.2d 301, 303 (Pa.Super.
1998) (quoting Commonwealth v. Coburn, 485 A.2d 502 (Pa.Super.
1984)). Accordingly, we find no abuse of discretion.
Appellant’s fourth claim is that he should have been granted a new
trial because the prosecutor made improper statements during her closing.
This claim has been waived, as Appellant did not object to the comments.
“[Stafford] also argues that the prosecutor made improper reference to Mr.
Weisbrod's testimony about prior drug use in his closing argument. Because
he made no objection to these remarks at that time, we deem any error
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made waived.” Commonwealth v. Stafford, 749 A.2d 489, 496, n.5
(Pa.Super. 2000).
In an attempt to avoid waiver, Appellant claims that the trial court
should have declared a mistrial on its own. “The arguments of counsel for
the Commonwealth were so clearly improper that the Court should have
acted sua sponte and declared a mistrial, or at the very least given a
cautionary instruction.” Appellant’s brief at 26.
Appellant reaches this conclusion by citing cases discussing the trial
court’s power to declare a mistrial sua sponte, even over objections by the
defendant, due to manifest necessity. A trial judge’s power to do so is well-
settled, and, where manifest necessity existed, the Commonwealth is not
barred from retrying the defendant. See Commonwealth v. Morris, 773
A.2d 192, 194 (Pa.Super. 2001). However, manifest necessity precedents
involve appellate review of whether the trial court’s exercise of that power
was proper; the cases do not set forth standards for when that power should
be employed in the first place.
Appellant’s failure to appreciate the distinction between these two
concepts is evident from his statement that, “[I]t is well established that any
doubt relative to the existence of manifest necessity should be resolved in
favor of the defendant.” Appellant’s brief at 27. Although this recitation is
correct, it means that any doubt must be resolved in favor of a finding that
manifest necessity did not justify the mistrial, not that a trial judge should
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somehow err on the side of liberally declaring mistrials sua sponte. Our
adversarial system properly places the burden to act on Appellant, who could
have requested a mistrial. He did not, and this claim was therefore waived.
Appellant’s final issue asserts that the sentence was unreasonable and
excessive given the number of mitigating factors. This claim involves the
discretionary aspects of his sentence, and appellate review of these claims is
by permission. To determine if Appellant has invoked our jurisdiction, we
examine the following four criteria:
(1) whether 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 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).
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)).
Appellant filed a timely notice of appeal and preserved the issue in a
post-sentence motion. He has also presented a substantial question, as he
argues that the trial court imposed the sentence due solely to the gravity of
the offense. Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super.
2013) (allegation that trial court focused solely on the nature of the offense
presented a substantial question). However, the Commonwealth asks us to
find that the claim is waived, because Appellant’s brief is defective due to a
failure to strictly comply with Pa.R.A.P. 2119(f), which states:
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(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. The
statement shall immediately precede the argument on the merits
with respect to the discretionary aspects of the sentence.
Pa.R.A.P. 2119(f). See also Pa.R.A.P. 2111(a) (the statement of reasons to
allow appeal of discretionary aspects of sentence shall be distinctly entitled
and precede argument).
We agree that the brief is defective since the Rule 2119(f) statement is
not separately titled nor does the statement immediately precede argument.
“Where an appellant fails to comply with Pa.R.A.P. 2119(f) and the
Commonwealth objects, the issue is waived for purposes of review.”
Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa.Super. 2004).
However, the third prong of our permissive appeal scheme refers to fatal
defects. While Appellant’s brief does not strictly comply with the Rules of
Appellate Procedure, we do not find that the defects are fatal as our ability
to review the claim has not been impeded. Appellant’s brief references Rule
2119(f), sets forth a substantial question, and properly separates that
discussion from the merits of his claim. Thus, we proceed to examine the
merits of Appellant’s claim.
Turning to this issue, we conclude that Appellant’s contention is
groundless. His assertion that the trial court imposed a sentence due solely
to the gravity of the offense is supported by attacking the sufficiency of the
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evidence. “While the jury found that the offenses involved serious bodily
injury, the evidence related to same would suggest otherwise.” Appellant’s
brief at 30. The trial court obviously had no authority to override the jury’s
verdict, and Appellant does not claim the trial court utilized improper
guidelines. Appellant was convicted of attempted homicide and his sentence
was within the standard range, which the law views as appropriate under the
Sentencing Code. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super. 2010). “In reviewing a challenge to the discretionary aspects of
sentencing, we evaluate the court's decision under an abuse of discretion
standard.” Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.Super.
2014) (quoting Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.
2013)). Since Appellant makes no other attempt to challenge the
appropriateness of this sentence, we find no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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