Com. v. Sanchez-Padilla, B. ( 2018 )

J-S56011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN SANCHEZ-PADILLA :
:
Appellant : No. 1898 MDA 2017
Appeal from the Judgment of Sentence October 4, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002281-2017
BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 14, 2018
Appellant, Brian Sanchez-Padilla, appeals from the judgment of
sentence entered in the Lancaster County Court of Common Pleas, following
his jury trial convictions for aggravated assault and resisting arrest.1 We
affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them.
Appellant raises the following issues for our review:
DID THE TRIAL COURT ERR IN FINDING [APPELLANT]
COMPETENT TO BE TRIED, WHERE [APPELLANT] PROVED
BY A PREPONDERANCE OF THE EVIDENCE THAT [HE] WAS
SUBSTANTIALLY UNABLE TO UNDERSTAND THE NATURE OR
OBJECT OF THE PROCEEDINGS AGAINST HIM OR TO
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a)(1) and 5104, respectively.
J-S56011-18
PARTICIPATE AND ASSIST IN HIS DEFENSE?
DID THE TRIAL COURT ERR IN PERMITTING EMT EMMA
EINWECHTER TO TESTIFY TO THE EFFECTS OF K2, WHERE
SHE WAS NOT QUALIFIED AS AN EXPERT WITNESS, AND
HER TESTIMONY WAS NOT PROPER AS A LAY WITNESS, AS
SHE DID NOT OBSERVE [APPELLANT]’S INTERACTIONS
WITH POLICE AT THE PARK?
DID THE TRIAL COURT ERR IN FINDING THE DEADLY
WEAPON USED ENHANCEMENT APPLIED TO ANY OF
[APPELLANT]’S OFFENSES, WHERE THERE WAS NO
EVIDENCE THAT [APPELLANT] USED A PEN TO ATTACK
EITHER POLICE OFFICER, AND THE PEN DID NOT FIT THE
DEFINITION OF A DEADLY WEAPON, NOR WAS IT USED AS
A DEADLY WEAPON?
WAS THE AGGREGATE SENTENCE OF THE COURT
MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT’S
DISCRETION, WHERE THE COURT CLASSIFIED FAILURE OF
A MENTALLY ILL PERSON TO TAKE MEDICATION AS AN
AGGRAVATING CIRCUMSTANCE, AND IT CITED IMPROPER
AND INADEQUATE AGGRAVATING FACTORS FOR THE
SENTENCE IMPOSED?
(Appellant’s Brief at 8-9).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Donald R.
Totaro, we conclude Appellant’s issues merit no relief. The trial court’s opinion
comprehensively discusses and properly disposes of the questions presented.
(See Trial Court Opinion, filed February 5, 2018, at 4-18, 23-39) (finding: (1)
Appellant failed to establish he was incompetent to stand trial2; court rejected
____________________________________________
2 We depart from the trial court’s analysis to the extent it relies upon
Appellant’s conduct in other proceedings and a separate expert psychiatrist’s
report the court considered at sentencing.
-2-
J-S56011-18
testimony and report of Appellant’s competency expert, licensed psychologist
Dr. Robert Stein; (2) Commonwealth offered testimony of Emma Einwechter,
EMT who interacted with Appellant immediately after altercation in park, to
rebut Appellant’s trial testimony that he did not use drugs on day of incident;
Ms. Einwechter testified that, in course of her work as EMT, she dealt with
individuals who had ingested K2, synthetic marijuana, and saw effects of K2;
Ms. Einwechter explained she observed some people who had ingested K2
were tranquil, while others were extremely violent and required chemical
sedation; to extent Appellant argues Commonwealth failed to present
evidence Appellant had used drugs on day of incident, his argument fails; Ms.
Einwechter testified Appellant admitted he had used K2 earlier that day;
further, testimony established police found in park near Appellant baggies
typically possessed by drug users; to extent Appellant argues Ms. Einwechter’s
testimony was irrelevant because she did not observe Appellant’s conduct in
park, his argument fails; Ms. Einwechter personally interacted with Appellant
mere thirteen minutes after Appellant was removed from park; to extent
Appellant argues Ms. Einwechter’s testimony constitutes improper expert
testimony, his argument also fails; Ms. Einwechter did not offer expert or lay
opinion on whether Appellant was under influence of K2; rather, she testified
to her observations of Appellant and her prior experience with individuals who
had used K2; Appellant failed to show Ms. Einwechter’s testimony about
effects of K2 use was erroneously allowed or based on manifest
-3-
J-S56011-18
unreasonableness, partiality, prejudice, bias, or ill-will; moreover, even if
court improperly permitted Ms. Einwechter to testify, court’s ruling constitutes
harmless error, in light of other properly admitted overwhelming trial evidence
of Appellant’s guilt; (3) at trial, Officer Herr testified Appellant used pen to
stab Officer Deitz in leg and face; further, two other officers testified they
observed wounds on Officer Deitz consistent with stab wounds inflicted with
sharp object; photographs of Officer Deitz after incident showed two puncture
wounds near his right eye and cuts on his face; testimony established
Appellant used pen as weapon to stab officer; also, Appellant’s argument that
pen does not constitute deadly weapon fails, where Appellant intentionally
used pen to stab Officer Deitz, who sustained puncture wounds near eye
consistent with punctures from pen; pen was capable of producing serious
bodily injury or blindness; Appellant also used pen to threaten assault on
Officer Herr, although Appellant did not injure Officer Herr with pen; deadly
weapon enhancement applied to Appellant’s use of pen to threaten/assault
both officers; (4) court sentenced Appellant with benefit of pre-sentence
investigation (“PSI”) report; at sentencing, court stated it considered all
information in PSI report, including Appellant’s mental health history,
Appellant’s character, background, age, work history, education, ability to
speak and understand English, substance abuse, and prior criminal record; to
extent Appellant argues court failed to consider his mental illness as mitigating
factor, his argument fails; sentencing court did not inhibit or deprive Appellant
-4-
J-S56011-18
of access to mental health care; rather, court made Appellant eligible for all
available treatment programs for substance addiction and anger
management; court also considered nature and circumstances of current
offenses as well as gravity of offenses and effect of offenses on Victims and
community; court considered Appellant’s rehabilitative needs; additionally,
record indicates Appellant has failed to try to change his lifestyle and is not
amenable to rehabilitation; based on foregoing, sentence was not manifestly
excessive). The record supports the trial court’s rationale. Accordingly, we
affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2018
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..... VtJII IIVl I
Circulated 10/25/2018 03:07 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
1898 MDA 2017
vs.
CP • 3 6-CR-0002281-2017
BRIAN SANCHEZ-PADILLA
c-
PA R.A.P. 1925 OPINION
BY TOTARO, J.
On September 27, 2017, Brian Sanchez-Padilla ("Appellant'') was found guilty of two
counts of aggravated assault and one count of resisting arrest. Presently before the Superior
Court of Pennsylvania is an appeal from the order entered on November 7, 2017, which denied
Appellant's post-sentence motion. For the reasons stated herein, the appeal should be denied.
PROCEDURAL AND FACTUAL BACKGROUND
On April 16, 2017, police found Appellant sleeping in a public park in violation of a
Lancaster City ordinance. See Police Criminal Complaint and Affidavit of Probable Cause.
While being cited for violating the ordinance, Appellant became belligerent towards the officers.
Id. As they attempted to take him into custody for disorderly conduct, Appellant resisted and
began physically assaulting the officers. Id. During the struggle that ensued, Appellant allegedly
punched one officer in the head, repeatedly slammed another officer's head into the concrete
ground, and stabbed one of the officers several times in the thighs and face with a pen. Id. Both
officers were transported to the hospital for injuries sustained in the altercation. Id. Appellant
was charged with two counts of aggravated assault (Fl), two counts of resisting arrest, disorderly
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Based on these new criminal charges, and because he left a mental health program against
medical advice six days before the new offenses occurred, Appellant appeared before the court
on May 15, 2017 for a parole/probation violation ("PV") hearing involving six prior criminal
dockets.1 (Notes of Testimony, PV Hearing at 2·3, 7) (hereinafter "N.T.PV."). Appellant was
found in violation of parole and/or probation, they were revoked, a pre-sentence investigation
report ("PSI") was ordered, and sentencing was deferred pending disposition of the new criminal
charges. Id. at 1 0-1 1 .
On August 2, 2017, Appellant filed a motion stating he was not competent to stand trial.
See Motion For In Court Determination of Competency. A competency hearing was held on
September 6, 2017. (Notes of Testimony, Competency Hearing at 4) (hereinafter "N.T.C."). On
September 7, 2017, the court entered an order determining that Appellant was competent to stand
trial. See Order, 9/7/17.
On September 27, 2017, a jury found Appellant guilty of two counts of aggravated assault
(Fl) and one count ofresisting arrest.2 (Notes of Testimony, Trial at 523) (hereinafter "N.T.").
Because a PSI had been completed, the case proceeded to sentencing. Id. at 525-27. On October
4, 2017, Appellant was directed to undergo imprisonment in the state correctional institution
("SCI") for 5 to IO years on each count of aggravated assault, and 6 months to 2 years for the
charge of resisting arrest. (Notes of Testimony, Sentencing at 47) (hereinafter "N.T.S."). The
1
Of relevance to the PV hearing, Appellant pleaded guilty on May 19, 2014 to one count of
identity theft at docket #0413-2014, one count of forgery at docket #0522-2014, and one count of forgery
at docket #0534-2014. See Sentencing Orders. On February 18, 2016, Appellant pleaded guilty to
reckless burning or exploding at docket #3363-2015, aggravated harassment by prisoner at docket #3761-
2015, and criminal mischief at docket #5530-2015. See Sentencing Orders.
2
18 Pa.C.S.A. § 2702(a)( I) and 18 Pa.C.S.A. § 5104, respectively ..
2
sentences were made consecutive to one another, and consecutive to the sentences imposed on
the PV violations, for an aggregate sentence of 12-27 years incarceration. Id. at 48-49.3
Appellant was made eligible for all treatment programs. Id. at 46, 48.
On October 19, 2017, Appellant filed an amended motion to modify sentence. See
Amended Post-Sentence Motion to Modify Sentence. The Commonwealth filed a response in
opposition. See Commonwealth's Response to the Defendant's Post-Sentence Motion. On
November 7, 2017, the court entered an order denying the amended post-sentence motion.4
On December 7, 2017, Appellant timely filed a Notice of Appeal. On December 28,
2017, Appellant filed a Statement of Errors Complained of on Appeal ("Statement") alleging the
trial court committed error by: (1) finding that Appellant was competent to stand trial; (2)
permitting an EMT to testify to the effects of K2; (3) instructing the jury that it could consider
the EMT's testimony regarding Appellant's statement of K2 use for the truth rather than for
impeachment purposes; (4) instructing the jury that voluntary intoxication is not a defense; (5)
finding that the deadly weapon enhancement applied to any of the offenses; (6) imposing an
aggregate sentence that was manifestly excessive and an abuse of the court's discretion; and (7)
setting forth improper and inadequate reasons for the aggregate sentence imposed. See
3
Appellant was continued on probation at docket numbers 0413-2014, 0522-2014, and 0534-
2014. (N.T.S. at 45). For aggravated harassment by prisoner at docket #3671-2015, Appellant was
directed to serve the unexpired term. Id. at 46. For reckless burning or exploding at docket #3363-2015,
and criminal mischief at docket #5530-2015, parole on the split sentences was terminated effective
immediately and Appellant was directed to undergo imprisonment in SCI for a period of 11h to 5 years on
the probation violations. Id. at 45-46. All sentences were made concurrent to one another. Id at 46.
4
On November 6, 2017, Appellant flied an amended Notice of Appeal to the Superior Court in
relation to the PY cases. See 1737 MDA 2017. On November 28, 2017, Appellant timely filed a
Statement of Errors Complained of on Appeal, claiming the trial court erred in finding he was competent
to be sentenced for the PV violations. See Statement. That appeal is still pending.
3
Statement. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of
Appellate Procedure.
DISCUSSION
I. Did the Trial Court Err By Concluding Appellant was Competent to Stand Trial?
Appellant first claims the trial court erred in finding that he was competent to stand trial
because counsel proved that Appellant was substantially unable to understand the nature or
object of the proceedings against him or to participate and assist in his defense. See Statement.
The Pennsylvania Mental Health Procedures Act states in relevant part:
Whenever a person who has been charged with a crime is found to be substantially
unable to understand the nature or object of the proceedings against him or to
participate and assist in his defense, he shall be deemed incompetent to be tried,
convicted or sentenced so long as such incapacity continues.
50 P.S. § 7402(a).
The test to be applied in determining the legal sufficiency of a defendant's mental
capacity to stand trial is whether he possessed sufficient ability at the pertinent time to consult
with his lawyer with a reasonable degree ofrational understanding, and whether he has a rational
as well as factual understanding of the proceedings against him. Dusky v. United States, 362
U.S. 402 ( 1960). A determination of incompetency to proceed stays the prosecution for as long
as the incapacity persists. 50 P.S. § 7403(b).
When there is reason to doubt a defendant's competency, the trial court is required to
conduct a competency hearing. Commonwealth v. Uderra, 862 A.2d 74, 88 (Pa. 2004). A
defendant is presumed competent to stand trial, and the defendant has the burden of establishing
incompetency by a preponderance of the evidence. Commonwealth v. duPont, 681 A.2d 1328,
4
1330 (Pa. 1996); 50 P.S. § 7403(a). At the hearing, either party may summon a psychiatrist,
licensed psychologist, or other expert to testify and offer an opinion on the defendant's mental
condition. 50 P.S. § 7404(b). Incompetency may be shown by psychiatric testimony based on a
personal examination of the defendant. Commonwealth v. Tyson, 402 A.2d 995, 997 (Pa. 1979).
The examination should be conducted sufficiently close in time to the proceeding to make it
relevant. Commonwealth v. Hunt, 393 A.2d 686, 690p91 (Pa. Super. 1978).
However, the judge may reject expert psychiatric testimony of insanity. Commonwealth
v. Tempest, 437 A.2d 952, 954 (Pa. 1981). Furthermore, a person may be competent to stand
trial even though he has a history of mental illness. Commonwealth v. Pifer, 425 A.2d 757, 760
(Pa. Super. 1981 ). A mental disorder must interfere with the ability of the defendant to
understand the proceedings or assist counsel before it is sufficient to constitute incompetence.
Commonwealth v. Martinez, 446 A.2d 899, 90 I (Pa. 1982). In Commonwealth v. Hughes, 555
A.2d 1264 (Pa. 1989), the Supreme Court found that a defendant diagnosed as a schizoid
personality taking medications to treat that mental disorder was insufficient in itself to establish
incompetency. Id. at 1271. An emotionally distressed but socially functioning defendant is also
competent to stand trial. Commonwealth v. Hazur, 539 A.2d 451, 454 (Pa. Super. 1988).
Given the sensitive nature of competency determinations, an appellate court affords great
deference to the conclusions of the trial court which had the opportunity to observe the defendant
personally. Commonwealth v. Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013). The competency
determination rests in the sound discretion of the trial judge, and it will not be disturbed absent
clear abuse. Commonwealth v. Hart, 460 A.2d 745, 747 (Pa. 1983). "A finding of competency..
. . will not be reversed unless it is unsupported by the record." Tyson, 402 A.2d at 997.
5
At the competency hearing held on September 6, 2017, Appellant presented the testimony
of Dr. Robert Stein ("Stein"), a licensed psychologist, who was accepted by the court as an expert
in the field of forensic assessments qualified to determine competency to stand trial. (N.T.C. at
9-16). Stein performed a one hour evaluation of Appellant at Lancaster County Prison ("LCP")
on July 26, 2017. Id. at 18-19. Stein noted that Appellant had a positive relationship with his
attorney, he knew she was there to help him, he had no disagreements with counsel, and he
correctly identified his lawyer as the person who represents his interests. Id. at 20-21. Although
Appellant could not name the specific charges that caused him to be incarcerated, he knew it was
due to aggression. Id. at 21. When asked about his perception of the current charges, Appellant
thought the police were there to kidnap him and he reacted with aggression. Id. at 23. When
asked if he should speak to the prosecutor without his attorney present, Appellant stated it
depends because the DA interrogates both sides. Id. at 21-22. When asked about testifying on
his own behalf, Appellant stated his attorney had instructed him not to testify and he wanted to
plead guilty anyway. Id. at 22.
When Stein asked Appellant about the best possible outcome, Appellant replied, "time
served." (N.T.C. at 22). When asked about the worst possible outcome, Appellant stated, "10 to
20 years." Id. When asked about the likely outcome, Appellant said, "IO to 20 years." Id.
When asked about a prior court experience, Appellant replied that "in a prior arson case he only
got six months in jail when he should have gotten five to six years." Id.
Stein diagnosed Appellant with "unspecified psychosis." (N.T.C. at 23). However, Stein
admitted this was a "nebulous diagnosis" because he had received a very limited history. Id. The
only medical documents he reviewed were records from 2015, when Appellant was incarcerated
6
in LCP. Id. at 7, 23-24, 66. Stein also relied on Appellant's self-report, current self-defeating
motivation, and behavior as reported by police in this and prior offenses. Id. at 66. Stein further
determined that Appellant was not competent to stand trial because Appellant did not know the
role of the jury, he indicated God was in charge of the court, Jesus was in charge of sentencing,
and justice was responsible for prosecuting the case. Id. at 21.5 Furthermore, Appellant did not
know the name of his attorney and he indicated he had met her twice for 15 minutes, while the
attorney reported it was for over one hour. Id. at 20.6
To support his conclusions, Stein cited the inconsistency of Appellant waiving his
preliminary hearing and wishing to plead guilty to a maximum sentence, while at the same time
insisting he was acting in self-defense and did nothing wrong. (N.T.C. at 25-26, 59). Stein noted
that Appellant also had difficulty describing the roles of various members of the court, and he
had a "distorted view of best and worst outcomes." Id. at 25. As such, Stein believed Appellant
was acting against his own interests, he could not constructively consult with counsel for his
benefit, and Appellant was unable to participate or assist in his defense. Id. at 26, 59.
On cross-examination, Stein acknowledged that Appellant was cooperative, lucid, and
oriented during the interview. (N.T.C. at 29-30).7 Appe1lant was able to understand and answer
5
Stein testified that Appellant did not meet the criteria for schizophrenia, there was no evidence
of "frank delusions or hallucinations that significantly interfere with day-to-day function," and there was
insufficient information available to make a diagnosis of bipolar disorder. (N.T.C. at 24). But Stein
noted Appellant may be suffering from the delusion of "hyperreligiosity" based on answers he gave
referring to God and Jesus as decision-makers in the court system. Id. Stein did not believe it was likely
that further psychiatric treatment would ever restore competency to Appellant. Id. at 27-28.
6
When questioned about the discrepancy regarding the amount of time Appellant spent with his
attorney, Stein stated he did not know who was correct. (N.T.C. at 30).
7
Stein initially testified that the interview occurred more than one year after the arrest, before
admitting he made a mistake and the interview was three months after the incident. (N.T.C. at 69-71).
7
all of Stein's questions through the use of an interpreter. Id. at 29. Stein admitted the medical
records he relied upon were "sketchy" when he stated, "[t]here's a little bit there, but not a lot.
But yes, there was not a lot to rely on here." Id. at 57. Appellant was not tested. Id. at 19, 58.
While a significant factor in Stein's opinion on competency was his belief that Appellant
had a distorted view of best outcomes, he later agreed that a minimum sentence of time served as
expressed by Appellant was very rational and would be a best outcome. (N.T.C. at 33-34).
Although Stein also believed Appellant was not competent in part because he had a distorted
view of worst outcomes, Stein admitted he did not even know the maximum sentence for a first
degree felony as charged in this case, while Appellant did. Id. at 25, 34.
Stein questioned Appellant's competency because Appellant wanted to plead guilty to a
maximum sentence of 10-20 years in jail, while claiming he was acting in self-defense. (N.T.C.
at 59-60). However, when the prosecutor noted the maximum sentence for two first degree
felony convictions could be 20-40 years in jail if imposed consecutively, Stein admitted it would
not be irrational for Appellant to accept an offer of 10-20 years in jail. Id. at 59-61.
The prosecutor pointed out that Appellant provided accurate and detailed information
about a prior arson conviction, and recognized he was looking at a lengthy prison sentence that
was reduced to only six months. (N.T.C. at 44-45). Stein admitted it would have been relevant
to confirm whether this information was accurate, yet he failed to do so. Id. at 45.8 Stein did not
8
When Appellant appeared for a PY hearing on May 15, 2017, he properly acknowledged a
prior PY where he "spit on somebody in the face." (N.T.PY. at 4-5). Appellant explained he remained
incarcerated beyond the minimum sentence on the prior PY when "they left me there for six extra months
because I didn't have a home plan. I was homeless." Id. at 8. Later in the hearing, Appellant asked the
court to revoke his probation and send him to state prison, "because the County doesn't have anything
good. It's bad." Id. Appellant later stated, "I understand that you are my lawyer and want to help me,
but - - and him. I understand that you want to help me, but it's my decision." Id. at 12.
8
take issue with Appellant's response when asked about the charges, because Appellant gave a
correct answer of "aggression" which was consistent with competency. Id. at 43-44. Appellant
told Stein he had contact with officers, he was aggressive, and he assaulted them. Id. at 47-48.
While Appellant said he was acting in self-defense because he believed he was being kidnapped
by police, Stein was aware that Appellant may have used a drug before this incident, and the drug
could have contributed to Appellant's beliefrather than a psychotic disorder. Id. at 54, 68-69.
Stein also stated Appellant was not competent to stand trial because he had a poor factual
understanding of courtroom proceedings, as evidenced by his belief that God is in charge of the
court and Jesus is responsible for sentencing. (N.T.C. at 48-49). However, Stein never asked
Appellant if he understood the role of a judge, including the judge who imposed sentence when
he was previously in court. Id. at 49-50. When Appellant stated "justice" was responsible for
prosecuting the case, Stein did not ask any follow-up questions. Id. at 50-51. When Appellant
stated his only choice was to plead guilty, Stein did not go into details about a trial. Id. at 64.
Appellant understood the role of a prosecutor as one who interrogates both sides and he showed
an understanding of the process when he stated his attorney told him not to testify. Id. at 51-53.9
After careful consideration of all testimony presented during the competency hearing, the
court found that Appellant had failed to meet his burden of establishing he was not competent to
stand trial. (N.T.C. at 81-82). Thereafter, on September 27, 2017, Appellant was found guilty
following a jury trial. (N.T. at 523). Appellant appeared for sentencing on October 4, 2017, at
which time defense counsel submitted a mitigating report prepared by psychiatrist Dr. Jerome
9
While Stein stated that Appellant did not understand the role of a jury, defense counsel did not
believe that Appellant ever had a jury trial when he previously appeared in court. (N.T.C. at 77-78).
9
Gottlieb. (N.T.S. at 4). Dr. Gottlieb evaluated Appellant at LCP on September 18, 2017, only
twelve days after the competency hearing and seven days before trial. Id. at 24; see also Gottlieb
report, 9/29/17 at 6. In his report, Dr. Gottlieb wrote, "during the time that [Appellant] refused to
take his medication during his current incarceration, there was concern that he was so ill that he
may not have been competent to proceed. By the time this evaluator saw him, he was back on
medication and apparently had improved." /d.10
The trial court properly concluded that Appellant was competent to stand trial, and this
determination was supported by Dr. Gottlieb, who noted that Appellant's competence to stand
trial was not an issue as of September 18, 2017. Therefore, this claim should be dismissed.
II. Did the Trial Court Err in Permitting an EMT to Testify as to the Effects of K2?
Appellant next asserts the trial court erred by permitting an EMT to testify to the effects
of K2 when the EMT was not qualified as an expert witness, the evidence was not proper
testimony of a lay witness, and it was not relevant where the EMT did not observe Appellant's
interactions with police at the park. See Statement.
10
At sentencing, defense counsel cited this portion of Dr. Gottlieb's report to bolster her
argument that Appellant is amenable to rehabilitation, because he had begun taking his medications
between the time of the competency evaluation and Dr. Gottlieb's evaluation. (N.T.S. at 23). However,
counsel would not concede that this evaluation, which was conducted by a psychiatrist much closer in
time to trial, showed that Appellant was thereby competent to stand trial. Id. Counsel also questioned
Appellant's competency by claiming he had "several outbursts" at trial. Id. However, there was only
one outburst when Appellant interrupted the testimony of a police officer and stated, "[s]he's bad. She's
bad. You lying." (N.T. at 115-16). Appellant was told he would be removed from the courtroom if there
were any further outbursts, and he stated he understood. Id. at I 16. Appellant was told he would have an
opportunity to testify and dispute the testimony of the officer, and again Appellant stated he understood.
Id. When asked whether he had any questions, Appellant responded, "[sjhe was telling lies. That's why
l said." Id. at I 16-17. Appellant then apologized and said, "[t]his is the first time I've been in a trial like
this. I'm not sure how to act." Id. at 117. Appellant conducted himself appropriately throughout the
remainder of the trial. See Transcript, generally. The court also conducted a colloquy with Appellant
before he testified, Appellant gave appropriate responses, and he then gave very coherent testimony
about the incident in response to questions asked by his attorney. Id. at 376-4 I 8.
10
Appellant testified that he �as sitting under a pavilion in Farnum Park on the day of this
incident reading a book when a male police officer approached and kicked him. (N.T. at 386-
89). Without provocation, the officer hit Appellant against the wall, breaking his nose and tooth.
Id. at 393. The officer also threw Appellant to the ground, kicking and punching him. Id. at 394.
The female officer then began assaulting Appellant, and Appellant believed he had to fight to
defend himself. Id. at 395. Appellant denied stabbing any of the officers with a pen during the
fight, and further stated he complied with everything that was asked by the officer. Id. at 391.
On cross-examination, the prosecutor questioned Appellant's recollection of the events by
asking whether he was using synthetic marijuana, or K2, while under the pavilion. (N.T. at 397-
99, 403-04). Although Appellant admitted using K2 in the past, he denied using K2 on the day
of this incident. Id. at 404-05. Appellant recalled being asked by emergency medical personnel
whether he had been taking any drugs that day, and he told them, "no." Id. at 417-18.
Following Appellant's testimony, the prosecutor offered rebuttal testimony from an EMT
regarding her interaction with Appellant on the day in question, including Appellant's admission
to her that he used K2 that day. (N.T. at424-25). Counsel acknowledged the EMT's testimony
about Appellant's admission of K2 use would be admissible for purposes of impeachment and
credibility. Id. at 427-28. The prosecutor also proffered that while the EMT would not opine as
to whether Appellant was under the influence of K2, she would testify in general terms from her
experience about the effects ofK2 to show Appellant's conduct may be consistent with the use of
K2. Id. at 425-28. 11 Defense counsel objected, stating there was no evidence in the
11
Immediately prior to trial, Appellant filed a motion in limine seeking to preclude lay opinion
testimony from a police officer that Appellant was under the influence of an illicit substance, citing the
case of Commonwealth v. Gause, 164 A.3d 532 (Pa. Super. 2017). In Gause, an officer testifying as a Jay
11
Commonwealth's case-in-chief to show that Appellant was using drugs that day, it would be
improper lay testimony, and it was irrelevant. Id. at 426. The objection was overruled.12
During her testimony, Emma Einwechter stated she started volunteering as an EMT four
years ago and she has been employed as an EMT for two years. (N.T. at 439). Einwechter
responds to calls, treats patients, and transports them. Id. Einwechter has dealt with individuals
who have ingested K2, and she has seen the effects of K2 on those individuals. Id. at 444. Some
people ar� very sedate with respiratory depression, while many individuals are extremely violent
and need to be chemically or physically sedated. Id. Those who become violent typically
scream, hyperventilate, and try to physically assault EMTs and police. Id. at 445.
On the date of this incident, Einwechter was dispatched to Farnum Park for a traumatic
injury. (N.T. at 440). When she arrived, Einwechter was told to go to the police station to
evaluate Appellant. Id. Einwechter arrived at the police station at 12:50 p.m., and observed that
Appellant was conscious, he was uncooperative, and he had to be dragged to a stretcher because
he would not walk on his own. Id. at 441-42, 448. Appellant's legs were then placed in
restraints on a stretcher because of his uncooperative behavior. Id. at 443. Einwechter asked
Appellant if he had done any drugs that day, and Appellant said he used K2. Id. at 443-44.
witness opined that the defendant was under the influence of a controlled substance, and the Superior
Court stated an expert is required to render an opinion about the effects of marijuana on an individual
unless the circumstances are so telling of recent marijuana use that a clear connection can be made
between its use and impairment. Id. at 537. The prosecutor agreed to the motion. (N.T. at 20-26).
12
There was direct evidence in the Commonwealth's case-in-chief to infer that Appellant was
using drugs under the pavilion at the time of the incident. At trial, Officer Codi Herr testified that when
she approached Appellant, she observed three small clear plastic baggies typically used by drug users.
(N.T. at 107). Officer Michael Deitz also testified that he saw drug paraphernalia in the area where
Appellant was located under the pavilion. Id. at 217-18, 253. Based on Appellant's denial of drug use,
the court found there was probative value that would outweigh any prejudice. Id. at 428-29.
12
The admissibility of evidence is within the sound discretion of the trial court, and to
reverse a trial court's decision the defendant must sustain the "heavy burden" of showing the trial
court abused its discretion. Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013). A finding of
abuse of discretion may not be made "merely because an appellate court might have reached a
different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly erroneous." Commonwealth v.
Sherwood, 982 A.2d 483, 495 (Pa. 2009). When reviewing a trial court's ruling, the standard is
one of deference. Commonwealth v. Belknap, 105 A.3d 7, 9 (Pa. Super. 2014).
Appellant has failed to show that the court's ruling was clearly erroneous or based on
manifest unreasonableness, partiality, prejudice, bias, or ill-will. "[Qjuestions pertaining to the
use of drugs or alcohol are proper when asked for the purpose of attacking the credibility of the
witness by showing that at the time of the event to which he testified his powers of observation
and memory were impaired, so that his recollection and account of the experience might be
inaccurate." Commonwealth v. Duffy, 353 A.2d 50, 57 (Pa. Super. 1975)). A witness's drug use
and physical condition after consuming drugs is a matter of credibility to be determined by the
jury. Commonwealth v. Hudson, 414 A.2d 1381, 1385 (Pa. 1980).
Furthermore, while Appellant argues there was no evidence in the Commonwealth's case-
in-chief to show he was using drugs that day, testimony established that baggies typically
possessed by drug users were found in close proximity to Appellant. Appellant also admitted to
the EMT that he used K2 that day. While Appellant argues the testimony was not relevant where
the EMT did not observe Appellant's interactions with police at the park, the EMT personally
13
interacted with Appellant only thirteen minutes after he was removed from the park.13 The EMT
did not offer an expert or lay opinion as to whether Appellant was under the influence of K2.
Rather, she testified to her observations of Appellant and her prior experience with individuals
who used K2, so the jury could draw their own conclusion as it related to witness credibility.
Assuming, arguendo, the testimony was improperly admitted, an erroneous ruling on an
evidentiary issue does not automatically entitle a defendant to relief where the error was
harmless. Commonwealth v. Yockey, 158 A.3d 1246, 1254 (Pa. Super. 2017). Not all errors at
trial entitle an appellant to a new trial, and the harmless error doctrine reflects the reality that an
accused is entitled to a fair trial, but not a perfect trial. Commonwealth v. Green, 162 A.3d 509,
519 (Pa. Super. 2017). An error may be harmless if the properly admitted evidence of guilt was
so overwhelming and the prejudicial effect so insignificant by comparison that it is clear beyond
a reasonable doubt the error could not have contributed to the verdict. Commonwealth v. Stetler,
95 AJd 864, 890 (Pa. Super. 2014). In Commonwealth v. Rose, 172 A.3d 1121 (Pa. Super.
2017), the Superior Court found it was harmless error when the trial court improperly permitted a
detective to testify to the interpretation of street language as a lay witness. Id. at 1128-32.
In the present case, the properly admitted evidence was overwhelming and any prejudicial
effect so insignificant by comparison that it is clear beyond a reasonable doubt the testimony of
the EMT could not have contributed to the verdict. According to testimony from Officer Codi
Herr ("Herr"), she and Officer Michael Deitz ("Deitz") were on routine patrol in Lancaster City
on Sunday, April 16, 20 l 7, when they proceeded to Farnum Park. (N.T. at 99-101 ). The officers
13
Video footage at 12:30 p.m. shows Appellant and the officers on the ground during the
assault. (N.T. at 262, 265). Footage at 12:37 p.m. shows Appellant in the custody of officers at the
crime scene. Id. at 163. Einwechter made contact with Appellant at 12:50 p.m. Id. at 448.
14
encountered Appellant sleeping under a pavilion, they woke him, and asked for identification.
Id. at 102-03. Appellant was uncooperative. Id. at I 04-06. When Deitz began issuing a citation
for camping in the park, Appellant became agitated and cursed at the officers. Id. at I 09-10.
Herr stated that after Deitz handed the citation to Appellant, Appellant crumpled it up and
loudly said "fuck you" or "fuck this." (N.T. at 113). When Appellant cursed again, Deitz told
him to stand up and put his hands behind his back. Id. at 114. As Deitz was attempting to
handcuff Appellant's wrists, Appellant turned around and punched Deitz in the face with a
closed fist. Id. at 115. Herr "could tell by the way that this took place that this was an assault
and not just resisting arrest." Id. at 119. Deitz was on his knees as Appellant continued to swing
at him. Id. at 120. Herr attempted to hold Appellant back from Deitz, but she was unable to gain
control because Appellant was "very strong." Id.
Herr jumped on Appellant's back in an attempt to gain control, but Appellant forced Herr
to the concrete floor of the pavilion. (N.T. at 120). Appellant then grabbed Herr's hair so tight it
felt like "all my hair was ripping out." Id. at 121. Appellant lifted Herr's head up and slammed
it into the concrete ground multiple times. Id. Deitz was punching Appellant at this time, but his
punches did not get Appellant to release Herr's hair. Id. During the assault, Appellant switched
his aggression between the two officers. Id. at 125.
Herr testified it appeared as if Appellant "wanted to cause as much damage as possible."
(N.T. at 126). He did not show any intent to flee the area. Id. Both officers deployed their tasers
in an attempt to gain control of Appellant, but the tasers had "no effect." Id. at 126-27. At one
point during the assault a pen fell to the ground, and Appe11ant's eyes "lit up at the pen" when he
saw it. Id. at 128. Appellant grabbed the pen and lunged toward both officers. Id.
IS
The officers eventually got Appellant on his back, and Deitz was trying to hit Appellant
with a baton. (N.T. at 129). Appellant grabbed the baton and attempted to control Deitz. Id.
Herr jumped onto Appellant and put her knee in his chest. Id. Blood was dripping from both
officers. Id. Appellant's body eventually went weak and Herr believed they were going to be
able to handcuff him, but the assault escalated once again. Id. Thereafter, Appellant was on his
back in the middle of the pavilion, and Herr believed if she did not keep him down, Appellant
"was going to be able to cause serious injury to us because it was a long fight." Id. at 130.
Herr knew if she lost control of Appellant plenty of things were possible. (N.T. at 130).
This was "a potentially deadly situation." Id. Herr contemplated utilizing her firearm if things
continued as they were, but chose not to because of the dynamics and movement throughout the
assault. Id. at 130-31. During pauses in the assault, Herr attempted to radio backup to her
location. Id. at I 36. Eventually, additional officers arrived to assist Herr and Deitz. Id. at 138.
Since Deitz was bleeding heavily from his face, Herr told the officers to help him first. Id. Herr
was then transported to the hospital, where it was determined she suffered a concussion, a
strained neck, an injured nose, and bumps and bruises. Id. at 139-40. Herr was very dizzy,
nauseous, couldn't think straight, and suffered from memory issues for a while. Id at 140.
According to testimony from Deitz, he and Herr were conducting a proactive patrol of
Farnum Park due to past complaints about people using drugs in the park. (N.T. at 215). Deitz
observed Appellant lying on the ground with his eyes closed, shoes off, and trash and blankets
underneath him. Id at 217. Deitz testified to drug paraphernalia located around Appellant,
including one-inch by one-inch Ziploc baggies. Id. at 218. Deitz had encountered Appellant
only two days prior to this incident, at the very same location, and informed Appellant he could
16
not sleep in the park. Id. at 218-19. When Deitz woke Appellant and asked him to move along,
Appellant was not compliant and became aggressive, "yelling fuck, fuck you, all sorts of
variations of that." Id. at 219-20.
Because Appellant continued to curse and raise his voice in the vicinity of several citizens
in the park, Deitz advised Appellant that if he did not calm down he would be cited for disorderly
conduct. (N.T. at 220). When Appellant did not comply, Deitz issued a citation. Id. at 220-22.
Appellant crumpled up the citation and continued to curse at the officers. Id. Deitz told
Appellant to stand up, turn around, and place his hands behind his back. Id. at 223-24.
Appellant initially complied, but his arms tensed up and he tried to pull away. Id. at 224-25.
Appellant then turned around and punched Deitz in the right eye with a closed fist. Id. at 225.
Deitz was dazed, dizzy, and fatigued by the first punch so he tried to regain his
composure. (N .T. at 226-27). While Appellant could have fled at that time, he chose to re-
engage with Deitz. Id. at 226-28. Deitz then took Appellant and himself to the ground in a bear
hug. Id. When Appellant started to stand up, Herr jumped on his back. Id. Herr then ended up
on the ground and Appellant started bashing her head onto the concrete floor. Id. Deitz grabbed
Appellant and punched him as best he could. Id. Deitz also tased Appellant three times, but
"nothing worked." Id.
Deitz stated his face was bleeding pretty badly and he began losing vision in his right eye
because of the blood in his eyes. (N.T. at 228). Deitz had never been so fatigued in his life. Id.
Deitz pulled Herr's ASP baton out of her duty belt and hit Appellant as much as he could, but
became so fatigued his hand cramped up and the baton fell out of his hands. Id. at 229. Other
officers eventually arrived to take Appellant into custody, and Deitz was then transported to the
17
hospital for immediate treatment. Id. at 245·46. Photographs of Deitz taken after the incident
showed two puncture wounds near the right eye and cuts all over his face and forehead. Id. at
243. His eye involuntarily twitched for a couple days thereafter. Id. at 244.
According to testimony from Officer Todd Grager ("Grager"), he rushed to Farnum Park
with lights and sirens activated when he heard an alert over the radio indicating an officer was
calling with an emergency. (N.T. at 288·89, 292·93). When he arrived at the park, Grager
immediately saw that Deitz's face was extremely bloody. Id. at 293. Grager also saw Herr
"riding onto a subject, just holding on trying to control him." Id at 293·94. The scene indicated
this "was a very active fight,'' with taser cartridges, expanded ASP batons, radios, and taser wires
all over the ground. Id. at 294. Herr told Grager that the subject she was trying to hold down had
stabbed Deitz. Id. Grager then struck Appellant multiple times on the head and applied pressure
with his right knee into the left side of Appellant's head. Id. at 297. Eventually, with the help of
three additional officers, Grager was able to take Appellant into custody. Id. In total, the assault
on the officers Iastedfor at least seven and one half minutes. Id. at 211·12.
In the present case, the court did not err by admitting the testimony of the EMT. If there
was error, it was harmless because it is clear beyond a reasonable doubt the error could not have
contributed to the verdict. The properly admitted evidence of guilt was overwhelming, and any
prejudicial effect was insignificant by comparison. Therefore, this claim should be denied.
III. Did the Trial Court Err by Instructing the Jury on How to Consider the EMT's
Testimony Regarding Appellant's Statements of K2 Use?
Appellant further claims the trial court erred by instructing the jury that it could consider
the EMT's testimony regarding Appellant's statement ofK2 use for the truth of the matter
18
asserted rather than solely for impeachment purposes, where the statement was offered in rebuttal
and should not have been considered for its truth. See Statement.
Prior to rebuttal testimony from the EMT, the court informed counsel the jury would be
instructed that Appellant's statement of K2 use to the EMT was admissible for impeachment
purposes only. (N.T. at 424-28, 431). Defense counsel agreed, while vaguely objecting to
"[ajnything further than that." Id. at 428. Following rebuttal testimony from the EMT, the court
informed counsel that the jury would be instructed they may consider Appellant's statement to
the EMT for impeachment purposes and for the truth of the matter asserted. Id. at 494. The
Commonwealth agreed. Id. at 495. Defense counsel did not object, but rather stated:
COUNSEL: Just for the record, Your Honor, our position would be that the
testimony of the EMT with respect to any prior statements made by
Mr. Sanchez-Padilla would be impeachment only and that that
should be the instruction.
COURT: Okay. But would that not be a statement by a party opponent that
would be admissible for that purpose, as well?
COUNSEL: Your Honor, my understanding is that it was impeachment, and
that's my position for the record.
Id. The court later instructed the jury that the may consider the statement allegedly made to the
EMT as proof of the truth of anything Appellant said in the earlier statement to the EMT, and to
help them judge the credibility and weight of Appellant's trial testimony. Id. at 502. Following
this instruction, counsel did not object. Id. at 518. When asked at the conclusion of the jury
instructions whether she had any exceptions to the charge, counsel replied that she did not. Id.
"A specific and timely objection must be made to preserve a challenge to a particular jury
instruction." Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010). "Failure to do so
19
results in waiver." Id. In Rose, supra, where the defendant's objection at trial was a "bald
objection without specificity," the Superior Court found the issue was waived. 172 A.3d at 1128.
In Moury, supra, where the appellant did not object when the court charged the jury, and
responded in the negative when the court asked if the defense wished to add anything to the jury
instructions, the Superior Court concluded the appellant waived his challenge to the jury charge.
992 A.2d at 179. Generally, a defendant waives a challenge to the propriety of the jury charge on
appeal if he responds in the negative when the court asks whether additions or corrections to a
jury charge are necessary. Commonwealth v, McCloskey, 835 A.2d 801, 812 (Pa. Super. 2003).
Thus, the issue is waived.
Assuming, arguendo, Appellant did not waive this issue, the trial court provided an
accurate recitation of the law. A statement offered against an opposing party that was made by
the party in an individual capacity is not excluded by the hearsay rule. Pa.R.E. 803(25). The
admissibility of a party's own statement offered against the party as an exception to the hearsay
rule is consistent with Pennsylvania law. See Salvitti v. Throppe, 23 A.2d 445 (Pa. 1942). In
Commonwealth v. Edwards, 903 A.2d 1139 (Pa. 2006), the defendant's statement to a friend that
he had robbed a victim was admissible as an admission by a party opponent. Id. at 1158.
Moreover, "[t]he trial court has broad discretion in phrasing its instructions, ... so long
as the law is clearly, adequately, and accurately presented to the jury for its consideration."
Commonwealth v. Hawkins, 787 A.2d 292, 30 I (Pa. 200 I)). "When evaluating jury instructions,
the charge must be read as a whole to determine whether it was fair or prejudicial." Id. Only
where there is an abuse of discretion or an inaccurate statement of the law is there reversible
error in the giving ofjury instructions. Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.
20
Super. 2014). Appellate courts will not rigidly inspect a jury charge and find reversible error for
every technical inaccuracy, but rather evaluate whether the charge sufficiently and accurately
apprises a lay jury of the law it must consider in rendering its decision. Moury, 992 A.2d at 178.
In the present case, the charge as a whole sufficiently and accurately apprised the jury of
the law it must consider in rendering its decision. Moreover, the instruction was not prejudicial
to Appellant because the statement to the EMT was not a confession relating to the criminal
charges. Further, the evidence of guilt was overwhelming. Thus, this claim should be denied.
IV. Did the Trial Court Err by Instructing the Jury on Voluntary Intoxication?
Appellant asserts the trial court erred by instructing the jury that voluntary intoxication
was not a defense, where all evidence regarding Appellant's alleged voluntary intoxication came
from the prosecution on rebuttal and it would not have been in evidence at all but for the
prosecutor's choice to place it into evidence. See Statement.
After Appellant testified, the prosecutor asked the court to instruct the jury that voluntary
intoxication is no defense. (N.T. at 420-21). Defense counsel did not believe there was a basis
for the instruction at that time, and the court agreed. Id. at 421. The prosecutor then indicated he
would present evidence to show that Appellant used K2 that day, and the court stated it would
consider giving the instruction if the testimony was provided. Id. at 421-22. Thereafter, defense
counsel did not object. Id. The EMT then testified that Appellant admitted to her he had used
K2. Id. at 443-44. The court later gave the following instruction:
There was testimony to suggest the Defendant had used K2 or synthetic marijuana
on the date of this incident. Voluntary intoxication or a drugged condition is not a
defense to these criminal charges. A person who voluntarily uses intoxicants or
drugs cannot become so intoxicated or drugged that he is legally incapable of
committing a crime.
21
There is another related rule, and that is, the defendant is not allowed to rely on
evidence of his own intoxication or drugged condition to prove that he lacked a
mental state required for a particular crime. Keep this rule in mind when you are
deciding whether the defendant had the intent to cause serious bodily injuries to the
officers as required for aggravated assault, the intent to cause bodily injury required
for simple assault, or the intent to prevent the police officers from effecting a lawful
arrest or discharging any other duty necessary for resisting arrest.
Id. at 513. Counsel did not object following the instruction, nor when she was asked if she had
any exceptions. Id. at 518. Because a specific and timely objection was not made, a challenge to
the jury instruction is waived. Olsen, 82 A.3d at 1050.
Assuming, arguendo, Appellant did not waive the issue, "[t]he trial court has broad
discretion in phrasing its instructions, ... so long as the law is clearly, adequately, and accurately
presented to the jury for its consideration." Hawkins, 787 A.2d at 301. Only where there is an
abuse of discretion or an inaccurate statement of the law is there reversible error in the giving of
jury instructions. Antidormi, 84 A.3d at 754. Presently, the jury was instructed that to find
Appellant guilty of aggravated assault, they must find it was "his conscious object or purpose to
cause such serious bodily injury." (N.T. at 506-08). To find Appellant guilty ofresisting arrest,
they must find Appellant had the intent of preventing the police officer from effecting a lawful
arrest or discharging any other duty. Id. at 512- I 3. The court advised the jury that, when
deciding Appellant's intent, a voluntary drugged condition is not a defense. Id. at 513.
The charge as a whole sufficiently and accurately apprised the jury of the law it must
consider in rendering its decision. While Appellant claims evidence of Appellant's voluntary
intoxication would not have been in evidence but for the prosecutor's choice to place it into
evidence, the prosecutor did not place it into evidence until after Appellant testified and denied
using K2 that day. Further, as one of the elements of aggravated assault and resisting arrest, the
22
Commonwealth was required to prove Appellant acted with intent. The Commonwealth had a
legitimate concern that the jury could find Appellant not guilty if they found he could not form
the specific intent due to a voluntary drugged condition. The instruction was in accordance with
the law and it was appropriate given the circumstances. Therefore, this claim should be denied.
V. Did the Trial Court Err by Finding that the Deadly Weapon Enhancement Applied?
At sentencing, the Commonwealth provided a sentencing guideline worksheet which
applied the deadly weapon used enhancement to all three counts, because Appellant used a pen to
attack the officers during the assault and while resisting arrest. (N.T.S. at 13); see Sentencing
Guidelines Worksheet. Appellant objected, claiming a pen does not qualify as a deadly weapon.
(N.T.S. at 8-9). The court disagreed, finding the enhancement was applicable based on the
manner in which Appellant used the pen during the incident. Id. at 15� 16.
Appellant now argues the trial court erred by finding the deadly weapon enhancement
applied because there was no evidence to show that Appellant used a pen to attack either officer,
the pen did not fit the definition of a deadly weapon, and it was not used as a deadly weapon.
See Statement. Further, even if it was used as a deadly weapon, an enhancement would not apply
for the assault of Officer Herr because the pen was used only in the assault of Officer Deitz. Jd.14
At trial, Officer Herr testified that during their struggle, Appellant saw a pen and "his
eyes, they lit up at the pen." (N.T. at 128). Herr screamed to Appellant, "no, don't grab the pen,
don't grab the pen." Id. Appellant continued to crawl towards the pen, while Herr tried to stop
14
At sentencing, the Commonwealth suggested the concrete floor could be a deadly weapon
because Appellant repeatedly struck Officer Herr's head onto the concrete. (N.T.S. at 14-15). In his
Statement, Appellant argues the concrete floor is not a deadly weapon. See Statement. The trial court
agreed, and did not consider the concrete floor to be a deadly weapon. (N.T.S. at 15� 16).
23
him. Id Appellant then grabbed the pen and lunged towards Deitz. Id According to Herr,
Appellant "did attempt to, and I don't remember if he made contact, but he lunged toward Officer
Deitz's leg at least twice." Id. When reviewing Commonwealth exhibits, Herr testified, "[i]n
Slide 12, you 'II see half of the pen that was used by the defendant to try and stab [Officer
Deitz]." Id. at 147-48.
On redirect, Herr again testified that when Appellant saw the pen his eyes opened wide,
and "[h]e picked the pen up like so, and when he attempted to stab Officer Deitz in the leg, he
went like this twice [indicating]." (N.T. at 212). Appellant maintained the pen in his hand and
continued to attempt to stab Deitz with the pen as Herr yelled at him not to stab Deitz. Id at 213.
In fact, Herr testified "[i]t was like my yelling made him want to do so more." Id. The pen
eventually broke, although Herr did not see what caused the pen to break. Id
Officer Benjamin Rothermel, one of the officers who responded to assist, testified:
I didn't know in that moment if there was a knife. I assumed there was a knife. I
found out later that was not the fact. But at that moment, I heard, he stabbed Deitz,
and based on the blood that I saw on her face and the blood I saw on Deitz's face and
that he rolled out of the fight right away, he was that exhausted and hurt, I assumed
at that point that there was a knife in the mix.
(N.T. at 317). Photographs of Deitz taken after the incident showed two puncture wounds near
the right eye and cuts all over his face. Id. at 243. Lieutenant Philip Berkheiser, the affiant in
this case, also testified that "[tjhe injuries on Officer Deitz's face are consistent with being
stabbed in the face multiple times with a sharp instrument." Id. at 361.
The sentencing guidelines provide for a higher range of recommended sentences when
specific facts which trigger enhancements are present. 204 Pa. Code § 303.9(b). One such
enhancement applies when the offender possesses or uses a deadly weapon. 204 Pa. Code §
24303.10. The relevant section of the deadly weapon enhancement reads as follows:
(2) When the court determines that the offender used a deadly weapon during the
commission of the current conviction offense, the court shall consider the D WE/Used
Matrix(§ 303. l 7(b)). An offender has used a deadly weapon ifany of the following
were employed by the offender in a way that threatened or injured another individual:
(iii) Any device, implement, or instrumentality capable of producing death or
serious bodily injury.
204 Pa. Code § 303.1 O(a)(2)(iii). The deadly weapon enhancement applies to each conviction
offense for which a deadly weapon is possessed or used. 204 Pa. Code § 303.1 O(a)( 4).
Appellant argues the trial court erred by finding the deadly weapon enhancement applied
because there was no evidence to show that Appellant used the pen as a deadly weapon to attack
either officer. However, the testimony clearly established that Appellant used a pen as a deadly
weapon to attack and stab the officers.
Appellant also argues a pen does not fit the definition of a deadly weapon. However, in
Commonwealth v. Solomon, 151 A.3d 672 (Pa. Super. 2016), the Superior Court held that items
not normally considered deadly weapons can take on such status based on their use under the
circumstances. Id. at 677. In this case, Appellant intentionally used a pen in an attempt to stab
Officer Deitz, and Deitz sustained puncture wounds near the eye that were consistent with
punctures from the pen. Clearly, that pen was capable of producing serious bodily injury or
blindness if Appellant had stabbed Officer Deitz in the eye."
15
In Commonwealth v. Cedeno, 2016 WL 1615578 (Pa. Super. 2016), where the defense
suggested a pen used in a stabbing was not a deadly weapon capable of seriously injuring the victim, the
trial court did not abuse its discretion by denying appellant's weight of the evidence claim. Id. at *S-6.
In Commonwealth v. Alexander, 2016 WL 493 7790 (Pa. Super. 2016), the Superior Court found the
Commonwealth presented sufficient evidence to support the appellant's first-degree murder conviction
where the defendant used a pen on a vital part of the victim's body. Id. at *3-4. While these cases are
not precedential, they are offered for their persuasive value.
25
Appellant further argues that even if a pen was used as a deadly weapon, an enhancement
would not apply for the assault of Officer Herr because the pen was used only in the assault of
Officer Deitz. However, in Commonwealth v. Tavarez, 174 A.3d 7 (Pa. Super. 2017), the
Superior Court held that to establish use of a deadly weapon under this provision, the record
must show that while committing a particular offense, the defendant used the weapon to threaten
or injure the victim. Id. at 11. Here Appellant used a pen as a deadly weapon while assaulting
both officers. Although he may not have injured Officer Herr with the pen, he certainly used the
pen to threaten Officer Herr. Therefore, the enhancement would apply to Officer Herr as well.
Because the deadly weapon used enhancement was properly applied to the sentencing
guidelines, this claim should be dismissed. Assuming, arguendo, the deadly weapon used
enhancement was not applicable to one or more of the counts, the sentences imposed were within
the aggravated range of the sentencing guidelines and, as ·discussed infra, the court identified
aggravating circumstances warranting such a departure.
VI. Did the Trial Court Err by Imposing a Manifestly Excessive Aggregate Sentence?
Appellant claims the aggregate sentence imposed was manifestly excessive, an abuse of
the court's discretion, and the court did not give appropriate consideration to mitigating
circumstances. See Statement. Appellant suggests his mental illness should have been treated as
a mitigating circumstance, particularly where he had not been offered drug treatment in a dual
diagnosis facility. Id. He also argues the court failed to consider "the fact that the injuries to the
officers we�e minor," and erred in finding that this was a brutal attack. Id.
A defendant's right to appeal the discretionary aspects of his sentence is not absolute, and
before such a challenge will be heard two requirements must be met. Commonwealth v. Fiascki,
26
886 A.2d 261, 263 (Pa. Super. 2005). First, an appellant must set forth a concise statement of the
reasons relied upon for allowance of appeal with regard to discretionary aspects of a sentence.
Id.; Pa.R.A.P. 2 l l 9(f). In the present case, Appe1lant has timely filed a Statement which sets
forth the reasons relied upon for allowance of appeal with respect to the discretionary aspect of
his sentence. See Statement. Therefore, the court will presume for purposes of this appeal that
Appellant will likewise satisfy the requirements of Pa.R.A.P. 2 l l 9(f) by filing a separate concise
statement with the Superior Court of Pennsylvania.
Second, an appellant must show there is "a substantial question that the sentence imposed
is not appropriate under the Sentencing Code." Commonwealth v. Bishop, 831 A.2d 656, 660
(Pa. Super. 2003 )); 42 Pa.C.S.A. § 9781 (b). To establish the existence of a substantial question,
an appellant must show that the actions taken by the sentencing court are inconsistent with the
sentencing code, contrary to the fundamental norms that underlie the sentencing process, or
violate application of the sentencing guidelines. Fiascki, 886 A.2d at 263-64. That is, "a party
must articulate reasons why a particular sentence raises doubts that the trial court did not
properly consider [the] general guidelines provided by the legislature." Commonwealth v.
Mouzon, 812 A.2d 617, 622 (Pa. 2002) (quotingCommonwealthv. Koehler, 737 A.2d 225, 244
(Pa. 1999)). "A bald allegation of excessiveness will not suffice" to establish a substantial
question. Fiascki, 886 A.2d at 263.
As to the second requirement, Appellant asserts the court did not give appropriate
consideration to mitigating circumstances. When a sentence falls within the standard range of
the sentencing guidelines, a claim of inadequate consideration of mitigating factors does not raise
a substantial question for review. Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super.
27
2007). However, a claim that the court erred by imposing an aggravated range sentence, without
considering mitigating circumstances, does raise a substantial question. Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). In this case, the court imposed an aggravated
range sentence if the deadly weapon enhancement did not apply. Appellant also alleges the court
erroneously applied the deadly weapon enhancement. A substantial question is raised "where an
appellant alleges his sentence is excessive due to the sentencing court's error in applying the
deadly weapon enhancement." Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008).
Therefore, the court will address Appellant's claim on the merits.
When determining an appropriate sentence, the court is required to consider a defendant's
character, prior criminal record, age, personal characteristics, potential for rehabilitation, and
particular circumstances of the offense. Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.
Super. 2005). The goal of the sentencing code is to ensure 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."' Mouzon, 812 A.2d at 620 (quoting 42 Pa.C.S.A. § 972l(b)).
The general standard of review when considering a challenge to the discretionary aspects
of a court's sentence has been established by the Superior Court as follows:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse of discretion. In
this context, an abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record, that the sentencing
court ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)). In discussing the rationale
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behind such broad discretion to the sentencing court and the deferential standard of appellate
review, the Pennsylvania Supreme Court has stated:
[T]he sentencing court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances before
it. ... Simply stated, the sentencing court sentences flesh-and-blood defendants and
the nuances of sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court enjoys an institutional
advantage to appellate review, bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed. Even with the advent of the sentencing
guidelines, the power of sentencing is a function to be performed by the sentencing
court.
Commonwealth v. Walls, 926 A.2d 957, 961-62 (Pa. 2007). The Supreme Court noted that the
sentencing court is in a superior position to "'view the defendant's character, displays of remorse,
defiance or indifference and the overall effect and nature of the crime."? Id. at 961 (quoting
Commonwealth v. Jones, 613 A.2d 587, 591 (Pa. Super. 1992)).
When reviewing a challenge to discretionary aspects of a sentence, the appellate court
should affirm the trial court's sentence unless it finds: "(1) that the guidelines were erroneously
applied; (2) that the sentence, even though within the guidelines, is 'clearly unreasonable'; or (3)
that the sentence, if outside the guidelines, is 'unreasonable.'" Fiascki, 886 A.2d at 263; 42
Pa.C.S.A. § 978l(c). To determine if a sentence is unreasonable, courts must consider the
circumstances of the offense, background and characteristics of the defendant, opportunity of the
trial court to observe the defendant, the trial court's review of any pre-sentence investigation,
findings upon which the sentence was based, and sentencing guidelines promulgated by the
Sentencing Commission. Commonwealth v. Moore, 617 A.2d 8, 12 (Pa. Super. 1992); 42
Pa.C.S.A. § 978l(d). In Walls, supra, the Supreme Court declined to define unreasonableness,
but did state "we are confident that rejection of a sentencing court's imposition of sentence on
29
unreasonableness grounds would occur infrequently ... especially when the unreasonableness
inquiry is conducted using the proper standard of'review." Walls, 926 A.2d at 964.
As to sentencing guidelines, the Supreme Court stated:
the guidelines have no binding effect, create no presumption in sentencing, and do
not predominate over other sentencing factors - they are advisory guideposts that are
valuable, may provide an essential starting point, and that must be respected and
considered; they recommend, however, rather than require a particular sentence.
Walls, 926 A.2d at 964-65. There is no requirement that courts sentence to the minimum
confinement. Id. at 965. Rather, "trial courts retain broad discretion in sentencing matters, and
therefore, may sentence defendants outside the Guidelines." Mouzon, 812 A.2d at 621. The
guidelines are merely one factor among many for the court to consider when imposing a sentence
of incarceration; the only requirement is that the recommended range be considered.
Commonwealth v. Sessoms, 532 A.2d 775, 781 (Pa. 1987).
If the sentencing court takes into consideration information contained within a pre-
sentence investigation report, the Superior Court has noted:
Since the sentencing court had and considered a presentence report, this fact alone
was adequate to support the sentence, and due to the court's explicit reliance on that
report, we are required to presume that the court properly weighed the mitigating
factors present in the case ... where the sentencing judge had the benefit of a
presentence investigation report, 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.
Commonwealth v. Fowler, 893 A.2d 758, 766-67 (Pa. Super. 2006) (quoting Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)) (citation omitted).
In the present case, a PSI report was prepared and made part of the record. (N.T.S. at 2-
5). Prior to imposing sentence, the court confirmed that all information in the PSI was accurate.
Id. The court then stated it was taking into consideration all information contained within the
30
PSI to determine the appropriate sentence, including Appellant's mental health history. Id. at 36.
Thus, pursuant to Fowler, there is a presumption that the sentencing court was aware of and
properly weighed all relevant information regarding Appellant, including any mitigating factors.
Specifically, Appellant's character and history were considered by the court. (N.T.S. at
39). Appellant was 25 years of age when the new crimes and PV s occurred, an age of sufficient
maturity to understand the significance of his acts. Id. at 38-39. Appellant also had a very
limited work history. Id. at 39-40.
The court considered Appellant's level of education, dropping out of school after the 81h
grade in San Juan, Puerto Rico, because he did not like school. (N.T.S. at 39). However,
Appellant received his GED in 2011 or 2012, and there was nothing to indicate a lack of
intellectual ability that would prevent him from understanding the significance of his acts. Id.
Appellant reported he cannot read or write the English language, but the officers testified that
Appellant could speak and understand the English language. Id. As such, there was no reason to
believe that language prevented Appellant from understanding what was happening. Id.
The court considered Appellant's self-reported history of substance abuse. (N.T.S. at 37).
Appellant stopped drinking in 2015, he began using marijuana daily at age 15, he failed to
complete a drug and alcohol treatment program because he did not believe he was addicted to
drugs, and he only used marijuana or synthetic marijuana recreationally. Id.
The court took into consideration Appellant's mental health history. (N.T.S. at 36-37).
Appellant received outpatient mental health treatment in San Juan, Puerto Rico, for ADHD at the
age of 16. Id. at 37. Appellant also stated he was diagnosed with ADHD, depression and
compulsive aggression while at LCP, and he is currently prescribed medications. Id. Dr.
31
Stein's competency evaluation and testimony at the competency hearing were considered. Id. at
4, 37. But as noted, the court did not find the testimony of Dr. Stein to be compelling. Id. at 4.
The report of Dr. Gottleib was considered. (N.T.S. at 4, 37). However, Dr. Gottlieb was
not present at trial and he did not review any trial testimony. Id. at 37-38. Rather, his report was
based on an evaluation of Appellant and limited medical records. Id. Dr. Gottlieb noted that
Appellant has not been compliant in taking his medications when he is not incarcerated, and
asked the court to consider that as a mitigating factor. Id. at 38. In response, the court was
concerned that based on his history, there was no reason to believe Appellant would be compliant
taking his medications if he was not incarcerated, particularly since he has absolutely no support
system, and Appellant becomes psychotic when he does not takes his medications. Id.
Appellant suggests the court erred by not considering his mental illness as a mitigating
circumstance. However, in Commonwealth v. Knox, 165 A.3d 925 (Pa. Super. 2017), where the
appellant made a similar claim, the Superior Court noted that while it was clear the appellant had
mental health issues, the trial court did not abuse its discretion where there was no indication the
trial court completely disregarded those circumstances when imposing sentence. Id. at 929-31.
In Commonwealth v, Lankford, 164 AJd 1250 (Pa. Super. 2017), where the appellant claimed he
was entitled to mental health treatment, and the denial of such treatment in sentencing was cruel
and unusual punishment, the Superior Court disagreed noting that there was nothing in the record
to show the trial court or Pennsylvania Department of Corrections (DOC) deprived the appellant
of access to mental health care. Id. at 1252-54.
As in Knox, this court did not disregard the circumstances of Appellant's mental health.
Moreover, while Appellant avers a lesser or alternative sentence would enable him to seek
32
rehabilitative mental health treatment, the trial court has not inhibited or deprived him of access
to mental health care. Rather, the court specifically made Appellant eligible for all treatment
programs offered in SCI to address his drug/alcohol addiction and anger management issues, and
there is no reason to believe DOC will deprive him of such treatment. (N.T.S. at 46, 48).
The court considered the nature and circumstances of the current offenses. (N.T.S. at 43-
44). As police were asking Appellant to leave a park, he became disorderly and verbally abusive
in the presence of families and children. Id. at 43. When police attempted to take him into
custody, Appellant became extremely violent, causing injury to two police officers who were
attempting to subdue him over a period of several minutes. Id. at 43-44. By their verdict, the
jury found that Appellant intended to cause serious bodily injury to those officers. Id. at 44.
When these crimes occurred, Appellant was already on court supervision for prior crimes of
setting fire to a van, spitting in the face of a correctional officer, and damaging nine vehicles. Id.
The court noted the gravity of the new offenses and their impact on the victims and
community. (N.T.S. at 44). As the court noted, an attack on law enforcement is an attack on our
society and the rule of law, which cannot be tolerated. Id.
The court also considered Appellant's extensive prior criminal record.16 (N.T.S. at 40-
41 ). Appellant reported being on probation in San Juan, Puerto Rico for a robbery offense. Id. at
41. Since 2014, Appellant has appeared in court on six separate occasions for committing new
16
On May 19, 2014, Appellant was convicted on four dockets: ( 1308-2014) DUI, DDS; ( 413-
2014) identity theft, forgery, theft by deception, conspiracy; (522-2014) forgery, conspiracy, identity
theft, theft by deception; (534-2014) forgery, conspiracy, identity theft, theft by deception. (N.T.S. at
40). He was convicted of criminal trespass on September 9, 2014, defiant trespass on January 26, 2015,
and a park violation in February 2015. Id. at 40-41. On May 11, 20 IS, Appellant was convicted on two
dockets of harassment and defiant trespass. Id. at 41. On February 18, 2016, he was convicted on three
separate dockets of reckless burning, aggravated harassment by prisoner, and criminal mischief. Id.
33
crimes in twelve separate cases. Id. When adding PV hearings, Appellant has appeared in court
on nine separate occasions in a little over three years. Id. at 43.
The court considered Appellant's rehabilitative needs, including the fact that there was
little to indicate he has made any attempt to change his lifestyle or is amenable to rehabilitation.
(N.T.S. at 41). This was Appellant's fourth overall PV since 2014. Id. at 6-8, 41-43. The first
PV was on December 18, 2014, after Appellant failed to report for scheduled appointments with
his probation officer and was charged with new crimes. Id. at 41-42. His second PV was on
April 10, 2015, because Appellant failed to report for appointments with his probation officer.
Id. at 42. Appellant was found in violation for the third time on September 1, 2015, because he
was arrested for reckless burning only five days after he was paroled from his second violation.
Id. Appellant was paroled directly to Nuestra Clinica on April 5, 2017. Id. Five days later,
Appellant left that inpatient facility against staff advice, and six days thereafter he committed
these new crimes, which resulted in his fourth violation. Id. at 42-43.
The court considered the arguments of counsel and comments made by Appellant and the
victims. (N.T.S. at 38). Appellant's counsel asked for mitigated range sentences concurrent with
each other based on Appellant's "irrefutable manifestation of psychotic disorder" and her belief
that with treatment in SCI he could be stabilized and succeed on supervision. Id. at 16-20. 17 The
prosecutor requested an aggravated range sentence, noting the brutality of the attack, ongoing
drug use by Appellant, and testimony at the competency hearing by Dr. Stein that it was unlikely
Appellant would ever be competent. Id. at 21-29.
17
. While counsel referenced the need for mental health counseling, the court noted that
Appellant was paroled from his prior PY to a facility intended to help him in that regard, but he left after
only five days and committed these crimes six days later. (N.T.S. at 43).
34
In his comments, Appellant denied using a pen and asked for the lowest possible
sentence. (N.T.S. at 21). An obviously distraught Officer Deitz stated that he will live with the
trauma of this event for the rest of his life. Id. at 29-31. Officer Herr also described how this
incident impacted her life. Id. at 32-35.
Finally, the court considered the penalties authorized by the Pennsylvania legislature for
the crimes committed, the guidelines of the Sentencing Code, and those established by the
Pennsylvania Commission on Sentencing for the new criminal offenses.18 (N.T.S. at 8-16, 38).
Based on these factors, the court found a sentence of total confinement was necessary
because Appellant had clearly shown that probation was an ineffective rehabilitation tool, he is
not amenable to treatment or rehabilitation outside a correctional facility, he is in need of
treatment that can be provided most effectively by his commitment to an institution, Appellant's
conduct indicates he is a danger to society, and he is likely to commit another crime if not
incarcerated. (N.T.S. at 44-45). Furthermore, Appellant has shown a total disregard for his
probation officer, law enforcement officers, this court, and the criminal justice system. Id. As
such, a state prison sentence was essential to vindicate the authority of the court. Id.
Because the sentences imposed were within the standard range of the sentencing
guidelines when considering the deadly weapon used enhancement, they were not manifestly
excessive or an abuse of discretion. As will be discussed infra, even if the deadly weapon
18
For aggravated assault, the offense gravity score was l 0, the prior record score was 3, the
standard range sentence was 42-54 months, the aggravated range sentence was up to 66 months, and the
deadly weapon used enhancement was 60-72 months. (N.T.S. at 2-3; Sentencing Guidelines Worksheet).
For resisting arrest, the offense gravity score was 2, the prior record score was 3, the standard range
sentence was RS-4 months, the aggravated range sentence was up to 7 months, and the deadly weapon
used enhancement was 6- l O months. Id.
35
enhancement did not apply, the court gave specific reasons to justify an aggravated range
sentence.
VII. Did the Trial Court Err by Setting Forth Improper Reasons for the Sentence
Imposed?
At sentencing, the court noted that if the deadly weapon enhancement did not apply, there
were aggravating circumstances to warrant a sentence in the aggravated range of the sentencing
guidelines. (N.T.S. at 47). Specifically, the aggravating circumstances included the brutal attack
inflicted by Appellant on the victims, the fact that this was a seven-minute assault, Appellant had
several opportunities to flee during the assault but chose to stay and fight, and this was not his
first assault on a law enforcement or correctional officers. Id. at 47-48.
Appellant asserts the court set forth improper and inadequate reasons for the aggregate
sentence imposed because his prior record had already been taken into account by his prior
record score and it should not have been double-counted as a basis for consecutive sentences in
the aggravated range of the sentencing guidelines. See Statement. Appellant also claims the
court improperly considered as aggravating factors his mental health condition for which he had
not been taking medication,19 and the fact that Appellant did not flee when informed he was
under arrest but rather stayed and struggled with the officers. Id.
A sentencing court may depart from the sentencing guidelines to fashion a sentence that
takes into account protection of the public, rehabilitative needs of the defendant, and the gravity
of the particular offense as it relates to impact on the community. Commonwealth v. Warren, 84
19
The court did not consider Appellant's mental health as an aggravating circumstance. See
N.T.S. at 47-48. In his report, Dr. Gottlieb asked the court to consider Appellant's failure to take
medications when he is not incarcerated as a mitigating factor. Id. at 38. For the reasons previously
stated, the court disagreed and noted it would warrant incarceration "for an extended period of time." Id.
36
A.3d 1092, 1097 (Pa. Super. 2014). A sentence above the aggravated range of the guidelines was
not manifestly unreasonable where the court considered the defendant's prior criminal record,
seriousness of the offense, young age of the victim, impact of the crime on the victim, the
defendant's age, health, intelligence and maturity level, his work history, and his unsuccessful
attempts at rehabilitation. Commonwealth v. Crork, 966 A.2d 585, 590-91 (Pa. Super. 2009).
In the present case, the sentencing court cited as an aggravating circumstance the brutal
assault inflicted by Appellant on two law enforcement officers which lasted for approximately
seven minutes. In his Statement, Appellant attempts to minimize the brutality of the attack and
the injuries sustained by the officers. This court does not agree with that assessment. As the
court noted at sentencing, Appellant's attack on law enforcement was an attack on our society
and rule oflaw, which cannot be tolerated. (N.T.S. at 44).
The court also considered as an aggravating circumstance that this was not Appellant's
first assault on law enforcement. Appellant was previously convicted of aggravated harassment
by prisoner for spitting on a correctional officer. Appellant suggests this was improper because
his prior record had already been taken into account by his prior record score. However, while
factors already included in the sentencing guidelines may not be considered as the sole reason for
increasing a sentence to the aggravated range, a trial court may use prior conviction history and
other factors already included in the guidelines if they are used to supplement other extraneous
sentencing information. Commonwealth v. Rush, 162 AJd 530, 545-46 (Pa. Super. 2017).
The sentencing judge may also determine whether a sentence should run consecutive to
another sentence based on the facts of a particular case. Commonwealth v. Hill, 66 A.3d 365,
370 (Pa. Super. 2013); see also 42 Pa.C.S.A. § 9721. Imposition of consecutive sentences rests
37
within the trial court's discretion. Commonwealth v. Harvard, 64 A.3d 690, 703 (Pa. Super.
2013). A sentencing court has discretion to not only deviate from sentencing guideline ranges,
but also to run sentences consecutive to one another. Commonwealth v. Mouzon, 828 A.2d 1126,
1130 (Pa. Super. 2003). In Mouzon, consecutive sentences above the standard range of the
guidelines were not manifestly excessive. Id. at 1130-31. The court is also free to impose a
probation violation sentence consecutive to sentences for the crimes committed while on
probation. Commonwealth v. Swope, 123 A.3d 333, 340-41 (Pa. Super. 2015). As the Superior
Court noted, the appellant was "not entitled to a volume discount for his crimes." Id. at 341.
In the present case, consecutive sentences above the standard range of the guidelines were
not manifestly excessive given the severity of the crimes committed and Appellant's very poor
history of rehabilitation. Appellant was also not entitled to a volume discount for his crimes and
repeated violations of probation or parole. Therefore, this claim should be dismissed.
CONCLUSION
For the reasons stated herein, the trial court properly (l) concluded that Appellant was
competent to stand trial; (2) permitted the EMT to testify to the effects of K2 or it was harmless
error; (3) instructed the jury on how to consider the testimony of the EMT; ( 4) instructed the jury
on voluntary intoxication not being a defense; (5) found that the deadly weapon enhancement
applied to the offenses; (6) imposed a sentence which was not manifestly excessive or an abuse
of the court's discretion; and (7) set forth proper reasons for the aggregate sentence. Therefore,
this appeal should be denied.
38
BY THE COURT
February 5, 2018 �d. r,a;_
DATE DONALD R. TOTARO, JUDGE
Copies: Susan E. Moyer, Esquire, Assistant District Attorney
MaryJean Glick, Esquire, Counsel for Appellant
39