Com. v. Fosco, T.
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Opinion
J-A14004-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TED LEROY FOSCO : : Appellant : No. 2130 EDA 2023
Appeal from the Judgment of Sentence Entered March 24, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000862-2021
BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J.
MEMORANDUM BY LAZARUS, P.J.: FILED JULY 23, 2024
Ted Leroy Fosco appeals from the judgment of sentence, entered in the
Court of Common Pleas of Bucks County, following his convictions of five
counts each of aggravated assault – attempt to cause serious bodily injury, 1
aggravated assault – attempt to cause serious bodily injury with a deadly
weapon,2 terroristic threats,3 recklessly endangering another person,4 and
simple assault;5 and one count each of robbery,6 discharge of a firearm into
____________________________________________
1 18 Pa.C.S.A. § 2702(a)(1).
2 Id. at § (a)(4).
3 Id. at § 2706(a)(1).
4 Id. at § 2705.
5 Id. at § 2701(a)(3).
6 Id. at § 3701(a)(1)(ii). J-A14004-24
an occupied structure,7 criminal mischief – damage to property,8 firearms not
to be carried without a license, 9 possession of weapon,10 resisting arrest,11
disorderly conduct,12 and possession of drug paraphernalia. 13 After careful
review, we affirm on the well-written opinion authored by the Honorable Gary
B. Gilman.
We adopt the trial court’s full factual summary as set forth in its opinion.
See Trial Court Opinion, 11/30/23, at 4-9. Briefly, Fosco was a guest at the
Bensalem Comfort Inn and Suites on January 27, 2021, when he got into a
dispute with the hotel’s staff over his lack of funds to extend his stay. Fosco
became irate and began destroying hotel property. Staff and other hotel
guests asked Fosco to stop, but Fosco pulled out a gun and began firing his
weapon. Police responded and, eventually, were able to take Fosco into
custody. Fosco was charged, inter alia, with the above-mentioned offenses.14
7 Id. at § 2701.1(a).
8 Id. at § 3304(a)(5).
9 Id. at § 6106(a)(1).
10 Id. at § 907(b).
11 Id. at § 5104.
12 Id. at § 5503(a)(4).
13 35 P.S. § 780-113(a)(32).
14Fosco was also charged with two counts of attempted murder but was acquitted of that offense at trial.
-2- J-A14004-24
On October 24, 2022, Fosco proceeded to a four-day jury trial, after
which he was convicted of the above-mentioned offenses. The trial court
deferred sentencing and ordered the preparation of a pre-sentence
investigation report.
On March 24, 2023, the trial court conducted a sentencing hearing. The
full breakdown of Fosco’s sentences are detailed in the trial court’s opinion.
See id. at 9-10. Fosco was sentenced to an aggregate term of 11 to 22 years’
incarceration.
On April 3, 2023, Fosco filed two post-sentence motions, which the trial
court denied. Fosco filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Fosco
now raises the following claims for our review:
[1.] Did the trial court abuse its discretion in admitting statements made by Matthew Mason that were inadmissible hearsay and not excited utterances, where [] Mason calmly responded to police questioning after leaving and returning to the scene of the incident at least fifteen minutes after the startling event, under circumstances which indicate that his statements were not spontaneous but rather the product of reflection upon past events?
[2.] Did the trial court err in applying a test explicitly overruled by the Supreme Court of the United States in Crawford [v. Washington, 541 U.S. 36 (2004),] and admitting statements made by [] Mason—even assuming they would have otherwise been admissible under an exception to the hearsay rule—where the statements were testimonial, [] Mason was [] available, and the defense had no prior opportunity to cross-examine him such that the admission of the statements violated [Fosco]’s constitutional right to confront witnesses against him?
Brief for Appellant, at 8.
-3- J-A14004-24
The trial court, in its opinion, addressed both of Fosco’s appellate claims
together and we do so as well, as the claims are related. In both claims, Fosco
contends that Mason’s statements to the responding police officers were
hearsay without an exception and that the trial court erred in admitting those
statements without Mason testifying. See id. at 15-34. Fosco argues that
Mason was not “excited” when he spoke to the officers, but rather calm. See
id. at 17-18. Fosco asserts that, after Fosco had already begun shooting,
Mason left the hotel and returned later to speak with the officers. See id. at
18-19. Fosco further contends that, by the time Mason returned to the hotel,
the dangerous condition had been alleviated because police had secured the
hotel and Fosco had been taken into custody. Id. at 18-20. Additionally,
Fosco argues that the trial court, at trial, relied upon previously overturned
case law, and that the error is not harmless. See id. at 23-34.
It is well-established that “[a] trial court’s rulings on evidentiary
questions are controlled by the discretion of the trial court and will not be
reserved absent a clear abuse of that discretion.” Commonwealth v.
Manley, 985 A.2d 256, 265 (Pa. Super. 2009) (citation omitted). “An abuse
of discretion is not a mere error of judgment but, rather, involves partiality,
prejudice, bias, ill-will, or manifest unreasonableness.” Commonwealth v.
Hardy, 918 A.2d 766, 776 (Pa. Super. 2007) (citation omitted).
Hearsay is an out-of-court statement introduced for the truth of the
matter asserted. See Commonwealth v. Fitzpatrick, 255 A.3d 452, 458
(Pa. 2021). While hearsay statements are generally inadmissible, a party may
-4- J-A14004-24
present otherwise inadmissible hearsay under the excited utterance exception
provided in Pa.R.E. 803, which defines an excited utterance as “[a] statement
relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused.” Pa.R.E. 803(2). This Court has
explained:
The declaration need not be strictly contemporaneous with the existing cause, nor is there a definite and fixed time limit. Rather each case must be judged on its own facts, and a lapse of time of several hours has not negated the characterization of a statement as an “excited utterance.” The crucial question, regardless of the lapse of time, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.
Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978) (citations
omitted).
After reviewing the record on appeal, the applicable standard of review,
the relevant case law, and the parties’ briefs, we affirm on the basis of the
trial court’s thorough and well-reasoned opinion. 15 See Trial Court Opinion,
11/30/23, at 1-19. Consequently, we afford Fosco no relief. The parties are
Free access — add to your briefcase to read the full text and ask questions with AI
J-A14004-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TED LEROY FOSCO : : Appellant : No. 2130 EDA 2023
Appeal from the Judgment of Sentence Entered March 24, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000862-2021
BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J.
MEMORANDUM BY LAZARUS, P.J.: FILED JULY 23, 2024
Ted Leroy Fosco appeals from the judgment of sentence, entered in the
Court of Common Pleas of Bucks County, following his convictions of five
counts each of aggravated assault – attempt to cause serious bodily injury, 1
aggravated assault – attempt to cause serious bodily injury with a deadly
weapon,2 terroristic threats,3 recklessly endangering another person,4 and
simple assault;5 and one count each of robbery,6 discharge of a firearm into
____________________________________________
1 18 Pa.C.S.A. § 2702(a)(1).
2 Id. at § (a)(4).
3 Id. at § 2706(a)(1).
4 Id. at § 2705.
5 Id. at § 2701(a)(3).
6 Id. at § 3701(a)(1)(ii). J-A14004-24
an occupied structure,7 criminal mischief – damage to property,8 firearms not
to be carried without a license, 9 possession of weapon,10 resisting arrest,11
disorderly conduct,12 and possession of drug paraphernalia. 13 After careful
review, we affirm on the well-written opinion authored by the Honorable Gary
B. Gilman.
We adopt the trial court’s full factual summary as set forth in its opinion.
See Trial Court Opinion, 11/30/23, at 4-9. Briefly, Fosco was a guest at the
Bensalem Comfort Inn and Suites on January 27, 2021, when he got into a
dispute with the hotel’s staff over his lack of funds to extend his stay. Fosco
became irate and began destroying hotel property. Staff and other hotel
guests asked Fosco to stop, but Fosco pulled out a gun and began firing his
weapon. Police responded and, eventually, were able to take Fosco into
custody. Fosco was charged, inter alia, with the above-mentioned offenses.14
7 Id. at § 2701.1(a).
8 Id. at § 3304(a)(5).
9 Id. at § 6106(a)(1).
10 Id. at § 907(b).
11 Id. at § 5104.
12 Id. at § 5503(a)(4).
13 35 P.S. § 780-113(a)(32).
14Fosco was also charged with two counts of attempted murder but was acquitted of that offense at trial.
-2- J-A14004-24
On October 24, 2022, Fosco proceeded to a four-day jury trial, after
which he was convicted of the above-mentioned offenses. The trial court
deferred sentencing and ordered the preparation of a pre-sentence
investigation report.
On March 24, 2023, the trial court conducted a sentencing hearing. The
full breakdown of Fosco’s sentences are detailed in the trial court’s opinion.
See id. at 9-10. Fosco was sentenced to an aggregate term of 11 to 22 years’
incarceration.
On April 3, 2023, Fosco filed two post-sentence motions, which the trial
court denied. Fosco filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Fosco
now raises the following claims for our review:
[1.] Did the trial court abuse its discretion in admitting statements made by Matthew Mason that were inadmissible hearsay and not excited utterances, where [] Mason calmly responded to police questioning after leaving and returning to the scene of the incident at least fifteen minutes after the startling event, under circumstances which indicate that his statements were not spontaneous but rather the product of reflection upon past events?
[2.] Did the trial court err in applying a test explicitly overruled by the Supreme Court of the United States in Crawford [v. Washington, 541 U.S. 36 (2004),] and admitting statements made by [] Mason—even assuming they would have otherwise been admissible under an exception to the hearsay rule—where the statements were testimonial, [] Mason was [] available, and the defense had no prior opportunity to cross-examine him such that the admission of the statements violated [Fosco]’s constitutional right to confront witnesses against him?
Brief for Appellant, at 8.
-3- J-A14004-24
The trial court, in its opinion, addressed both of Fosco’s appellate claims
together and we do so as well, as the claims are related. In both claims, Fosco
contends that Mason’s statements to the responding police officers were
hearsay without an exception and that the trial court erred in admitting those
statements without Mason testifying. See id. at 15-34. Fosco argues that
Mason was not “excited” when he spoke to the officers, but rather calm. See
id. at 17-18. Fosco asserts that, after Fosco had already begun shooting,
Mason left the hotel and returned later to speak with the officers. See id. at
18-19. Fosco further contends that, by the time Mason returned to the hotel,
the dangerous condition had been alleviated because police had secured the
hotel and Fosco had been taken into custody. Id. at 18-20. Additionally,
Fosco argues that the trial court, at trial, relied upon previously overturned
case law, and that the error is not harmless. See id. at 23-34.
It is well-established that “[a] trial court’s rulings on evidentiary
questions are controlled by the discretion of the trial court and will not be
reserved absent a clear abuse of that discretion.” Commonwealth v.
Manley, 985 A.2d 256, 265 (Pa. Super. 2009) (citation omitted). “An abuse
of discretion is not a mere error of judgment but, rather, involves partiality,
prejudice, bias, ill-will, or manifest unreasonableness.” Commonwealth v.
Hardy, 918 A.2d 766, 776 (Pa. Super. 2007) (citation omitted).
Hearsay is an out-of-court statement introduced for the truth of the
matter asserted. See Commonwealth v. Fitzpatrick, 255 A.3d 452, 458
(Pa. 2021). While hearsay statements are generally inadmissible, a party may
-4- J-A14004-24
present otherwise inadmissible hearsay under the excited utterance exception
provided in Pa.R.E. 803, which defines an excited utterance as “[a] statement
relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused.” Pa.R.E. 803(2). This Court has
explained:
The declaration need not be strictly contemporaneous with the existing cause, nor is there a definite and fixed time limit. Rather each case must be judged on its own facts, and a lapse of time of several hours has not negated the characterization of a statement as an “excited utterance.” The crucial question, regardless of the lapse of time, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.
Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978) (citations
omitted).
After reviewing the record on appeal, the applicable standard of review,
the relevant case law, and the parties’ briefs, we affirm on the basis of the
trial court’s thorough and well-reasoned opinion. 15 See Trial Court Opinion,
11/30/23, at 1-19. Consequently, we afford Fosco no relief. The parties are
15 To the extent that Fosco argues the trial court relied upon previously overturned case law at the time of trial, this argument is of no moment. This court may affirm on any basis, and the reasoning provided in the trial court’s opinion, which we have adopted, sufficiently address Fosco’s claim. See Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (“an appellate court has the ability to affirm a valid judgment or verdict any reason appearing as of record”); see also Trial Court Opinion, 11/30/23, at 13-19. Because we conclude that the trial court’s determination, in its opinion, is supported by the record, we affirm on this basis and, consequently, Fosco is not entitled to relief.
-5- J-A14004-24
directed to attach a copy of the trial court’s opinion in the event of further
proceedings.
Judgment of sentence affirmed.
Lane, J., Joins this Memorandum.
Stabile, J., Concurs in the Result.
Date: 7/23/2024
-6- Circulated 07/03/2024 03:33 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMO V. No. CP-09-CR-0000862-2021 TED LEROY FOSCO
I. INTRODUCTION
On January.27, 2021, Ted Leroy Fosco ("Appellant") entered the Bensalem
Comfort Inn and Suites and, along with afemale companion, rented aroom for the
night. The next morning, inexplicably agitated, Appellant walked to the hotel lobby and
proceeded to violently terrorize guests and employees of the hotel. Appellant physically
destroyed much of the lobby, despite numerous requests from staff to stop. When two
hotel guests attempted to approach Appellant, he removed afirearm from his pocket
and shot at them, whereupon they fled the building. Two employees of the Comfort Inn
watched Appellant fire his gun through alive-feed camera, huddled in an office for
safety. Appellant also attempted to rob ateenager and his family. When the teenager
escaped to the safety of his family's hotel room, Appellant discharged his firearm
outside the door of their room, while the family hid from the attack.
Appellant was identified by law enforcement officers as the individual who
perpetrated these crimes, and accordingly he was- charged with multiple offenses under
criminal bill of information: CP -09-CR-0000862-2021. Specifically, Appellant was
charged with two counts of Criminal Attempt — Criminal Homicide;' five counts of
1 18 Pa.C.S.A § 901(a)
I Aggravated Assault— Attempts to Cause Serious Bodily Injury or Causes'lnjury with.
Extreme Indifference, afelony of the first degree; 2 one count of Robbery — Threat of
Immediate Serious Injury, afelony of the first degree; 3 five counts of Aggravated Assault
.Attempts to Cause or Causes Bodily Injury with aDeadly Weapon, afelony of the .
second degree ;4 one count of Attempted Discharge of -aFirearm Into an Occupied
Structure, afelony of the third degree; 5 one count of Criminal Mischief —Damage to
Property, afelony of the third degree; 6 one count of Firearms Not to be Carried Without
aLicense, afelony of the third degree;' five counts of Terroristic Threats With Intent to
Terrorize Another, amisdemeanor of the first degree; 8 one count of Possession of
(a) Definition of attempt."A person commits an attempt when, with intent to commit.a specific crime, he does any act which constitutes asubstantial step toward the commission of -that crime.
218 Pa.C.S.A. § 2702(a)(1) (a) Offense defined. Aperson Is guilty of aggravated assault if be: (1) attempts to cause serious bodily injury to another, or causes. such Injury' intentionally,- knowingly or recklessly under circumstances manifesting extreme ind'rfference.to the value of human'life[.] 3 18 Pa.C.S.A § 3701(a)(ii) (a) Offense defined. (1) A person is guilty of robbery if, .in the course of committing atheft, he:.
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; . 4 18 Pa.C.S.A § 2702(a)(4)
(a) Offense defined.-A person Is guilty -of aggravated assault if he: (4) attempts to cause or intentionally or knowingly causes bodily injury .to another with a deadly weapon[.] 5 18 Pa. C. S.A § 2707.1(a)
(a) Offense defined.4 persoh commits an offense if he knowingly, intentionally or recklessly discharges afirearm from any location into an occupied structure. 818 P&C.S.A § 3304(x)(5) (a) Offense defined.—A person is guilty of criminal mischief If he: (5) intentionally damages real or, personal property of another(.] T 18 Pa.C.SA § 6106(a)(1)
(a) Offense defined. (1) Exceptas'provided In. paragraph ( 2), -any person who carries a-firearm. In any vehicle or any person who carries afirearm concealed on or about his person; except in his place of at ode`or foxed place, of business, without aValid and .lawfully issued license under this chapter-commits afelony of the third degree. 8 18 Pa.C.SA.§ 2706(a)(1) ,
2 Weapon, amisdemeanor of the first degree; 9 five counts of Recklessly Endangering
Another Person, amisdemeanor of the second degree; 10 five counts of Simple Assault,
amisdemeanor of the second degree; 11 one count of Resisting Arrest/Other Law
Enforcement, amisdemeanor of the second degree;l 2 one count of Disorderly Conduct
Hazardous/Physically Offensive, amisdemeanor of the third degree and;13 one count of
Use or Possession of Drug Paraphernalia, amisdemeanor. 14
After afour day jury trial .was conducted the week of October 24, 2022, Appellant
was convicted of two counts of Aggravated Assault — Attempts to Cause Serious Bodily
Injury or Causes Injury with Extreme Indifference; one count of Robbery — Threat of
(a) Offense defined.—A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, athreat to: (1).commit any crime of violence with Intent to terrorize another[.] 918 Pa.C.S.A. § 907(b)
(b) Possession of weapon.—A person com m its a m i sd emeanor of the first degree if he
possesses afirearm or other weapon concealed upon his person with intent to employ it criminally. 10 18 -Pa.C.S.A. § 2705. A person commits amisdemeanor of the second degree if he recklessly engages In conduct which places or may place another person In danger of death or serious bodily injury.
11 18 Pa.C.S.A. § 2701(a)(3) (a) Offense defined.—Except as. provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he: _ (3) attempts by physical menace to put another in fear of imminent serious bodily -injury[.] 12 18 Pa.C.S.A. § 5104. - A person commits amisdemeanor of the-second degree If, with the intent of preventing apublic servant from effecting alawful arrest or discharging any other duty, the person creates asubstantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance. 13 18 Pa.C.S.A. § 5503(a)(4)..
(a) Offense defined:A person Is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating arisk thereof, he: (4) creates ahazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. M 35 P.S. § 780-113(a)(32) (a) The following acts and the causing thereof within the - Commonwealth are hereby prohibited : (32) The use of, or possessi on w ith i ntent to use, drug paraphernalia for.the purpose of
planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing ,t esti ng, ana l yz i ng, packing, repacking,
storing, containing, concealing, Injecting, ingesting, inhaling or otherwise introducing into the human body acontrolled substance in violation of this act
3 Immediate Serious Injury; two counts of Aggravated Assault -- Attempts to Cause or
Causes Bodily Injury with aDeadly Weapon; one count of Criminal Attempt - Discharge
of aFirearm Into an Occupied Structure; one count of Criminal Mischief — Damage to
Property; one count of Firearms Not to be Carried Without aLicense; five counts of
Terroristic Threats With Intent to Terrorize Another, one count of Possession of a
Weapon; five counts of Recklessly Endangering Another Person; three counts of Simple
Assault; one count of Resisting Arrest/Other Law Enforcement; one count of Disorderly
Conduct Hazardous/Physically Offensive and; one count of Use/Possession of Drug
Paraphernalia.
On March 24, 2023, Appellant was sentenced to an aggregate term of
incarceration in astate correctio na l facility of not less than 11 years nor more than 22
years. On April 3, 2023, Appellant filed Post-Sentence Motions, which were denied on
July 20, 2023.
Appellant now appeals from the Court's March 24, 2023, Judgment of Sentence.
Accordingly, we file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
IL FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 27, 2021, Bensalem Township police received calls warning of an
armed man in the lobby of the Bensalem Comfort Inn and Suites, N.T. 10/25/2022, p.
58. Nancy Alvarado ("Ms. Alvarado") was employed as a. housekeeper at the hotel *on
that date. N.T. 10/2 5/ 2022, pp. 94-95. Appellant had asked Ms. Alvarado to extend his
stay at the Comfort Inn and Suites, -but he apparently lacked proper payment to do so,
4 which infuriated him. N.T. 10/25/2022, pp. 97-98. Appellant proceeded to destroy hotel
property in the lobby. N.T. 10/25/2022, p. 101.
Appellant threw the credit card machine and hand sanitizer dispenser to the
ground. N.T. 10/26/2022, p. 180. He also threw the computer from the front desk and
began to damage the couch located in the lobby. N.T. 10/26/2022, p. 180. Appellant's
behavior continued to escalate, as he threw apodium to the ground and then attempted
to pull adoor off of its track. N.T. 10/26/2022, pp. 141-42. Appellant ripped aphone off
the desk. 15 N.T. 10/2 6/ 2022, p. 144.
Ms. Alvarado heard others ask Appellant to stop, who replied that "he [Appellant]
ha[d] something for them." N.T. 10/25/2022, p. 102. At that moment, Appellant's
behavior turned potentially deadly. While Ms. Alvarado hid under atable in the office,
she heard two gunshots. N.T. 10/25/2022, p. 104. Ms. Alvarado was also able to see
Appellant through avideo camera in the office where she hid. N.T. 10/25/2022, p. 115.
She was able to see Appellant"... [take] out from his clothing the gun that he
discharged." N.T. 10/25/2022, p. I15. Ms. Alvarado testified that two subjects who
appeared to be in harms way ran as a "puff of smoke" appeared from Appellant's
firearm. N.T. 10/25/2022, pp. 115-116.
Appellant had fired at and terrorized two men, Matthew Mason ("Mr. Mason") and
Brett Evett ("Mr. Evett') Mr. Mason and Mr. Evett were construction workers from
Alabama who were staying at the Comfort Inn as of January 27, 2021. 18 N.T.
10/2 6/ 2022, p. 68. Upon observing the property damage caused by Appellant, Mr.
1s Appellant testified at trial that he had no recollection of "knocking over fumiture' In the lobby. N.T. 10/27/2022, p. 64 18 Appellant testified he had no recollection of meeting Mr. Mason or Mr. Even N.T. 10/27/2022, p. 42. .
5 Mason approached him and implored him to calm down, N.T. 10/2 5/ 2022, p. 179, while
Mr. Evett picked up the trash can Appellant had thrown to the ground in the lobby. N.T.
10/26/2022, p. 146. Then, as Ms. Alvarado observed through the video feed, Mr. Mason
began to retreat as Appellant lifted his firearm and shot in his direction and the direction
of Mr. Evett. N.T. 10/2 6/ 2022, pp. 148-149. As Mr. Mason and Mr. Evett retreated out
the exit door, Appellant began to chase after them. N.T 10/26/2022, p. 149.
Officer Bailey of the Bensalem Police Department testified that when he arrived
on the scene, Mr. Mason was screaming that "he [Appellant] has agun, he has agun,
he has agun." N.T. 10/25/2022, pp. 170-71. Later, once Appellant was removed from
the scene, Officer Bailey again spoke with Mr. Mason, who first inquired if everyone was
safe, N.T. 10/25/2022, p. 180, and subsequently told Officer Bailey that he had
approached Appellant and attempted to encourage him to calm down, as Appellant was
demanding money and screaming at someone. N.T. 10/25/2022, p. 179. Appellant then
said to Mr. Mason that "he [Appellant] was going to kill somebody" and pulled out his
firearm. N.T. 10/25/2022, p. 179.
On the same day, Appellant also terrorized Matthew Elliot, ateenager who was
staying with his father and brother at the Comfort Inn, N.T. 10/25/2022, pp. 130-131.
Matthew Elliot testified that on January 27, 2021, he was in the hotel lobby when
Appellant walked fast toward him, hand in his pocket, and repeatedly asked if Matthew
Elliot worked there. N.T. 10/25/2022, pp. 135-136. After Matthew Elliot said he did not
work there, Appellant said, "give me everything you got or I'm going to fucking kill ,you."
N.T. 10/25/2022, pp. 135-36. 17 Matthew Elliot ran into his family's hotel room and locked
"Appellant apparently chose not to threaten or attack several other Individuals in the lobby with whom Appellant Interacted on January 27, 2021. N.T. 10/26/2022, pp. 165-67.
6 the door, whereupon Appellant stood outside the door, yelling. N.T. 10/25/2022, pp.
136-37. Appellant stated, "okay, have it your way then" and fired his gun outside of the
Elliot family's hotel room door. N.T. 10/25/2022, p. 137. Matthew Elliot's father, who
suffered from severe health challenges, remained on his hotel room bed, unable to
move, N.T. 10/25/2022, p. 138, and the brothers hid behind the bed while Appellant was
outside their door. N.T. 10/25/2022, p. 137. Appellant remained outside their door, and
stated, " Pm going to take all your fucking money and then I'm going to bum this,-piece of shit place to the ground." N.T. 10/25/2022, p. 137. Appellant himself testified at trial that,
"...once Irealized that Iliterally shot into the floor, Isaid to myself, what the — are you
doing? And at that point I was just at aloss. "18 N.T. 10/27/2022, p. 44.
After Appellant's encounters with Mr. Mason, Mr. Evett, and Matthew Elliot,
Officer Bailey and other Bensalem officers approached Appellant to take him into
custody. N.T. 10/25/2022, p. 64. Appellant started to scream vulgarities at the officers,
and he stated, "... you don't want to see my gun." N.T. 10/25/2022, p. 64. Appellant
refused to listen to Bensalem Township Police commands, and officers had to attempt
to physically restrain him. N.T. 10/25/2022, p. 66. The officers struggled and ultimately
were able to wrestle Appellant to the ground, but Appellant refused to comply
throughout the arrest, and refused to put his hands behind his back. N.T. 10/25/2022, p.
67. Appellant was Increasingly agitated and was therefore tased three times, without
much success at subduing him. N.T. 10/25/2022, p. 67. During the scuffle, Appellant
continued to reach toward his waistband. N.T. 10/25/2022, p. 68. Officer Bailey
described the scene: "... people were trying to hold him down. People were trying to hold
1° Later in his testimony, Appellant categorized this as a "moment of clarity,' and stated he had no further recollection.
7 aleg. People were trying to get his arms. People were trying to get his hands behind his
back." N.T. 10/25/2022, p. 70. Almost ten officers were required to subdue Appellant.
N.T. 10/26/2022, p. 87. Once Appellant was subsequently handcuffed, afirearm was
found in his pocket. N.T. 10/25/2022, p. 72. Appellant was subsequently able to
comprehend commands and he was taken out of the Comfort Inn and to the Bensalem
police station. N.T. 10/26/2022, p. 208.
As aresult of the Bensalem Police Department's subsequent investigation, spent
bullet jackets were located at the end of the Comfort Inn hallway, on the lobby level,
along with aspent bullet jacket in the lobby. N.T. 10/25/2022, p. 75; See Exhibit #C-4.
Lieutenant Kolman, aSpecial Weapons and Tactics (SWAT) member for Bensalem
Township, N.T. 10/26/2022, pp. 8-10, subsequently tested the firearm recovered from
Appellant and found it to be operable. N.T. 10/26/2022, p. 14; See also Exhibit C-14;
Exhibit C- 14A. Lieutenant Kolman testified that when the firearm was recovered from
Appellant, there were "... two spent shell casings and two live rounds ....° N.T.
10/26/2022, p. 20.
Police Sergeant Tropiano testified that the Comfort Inn lobby area had chairs and
tables toppled over when he arrived. N.T. 10/26/2022, p. 25. Additional items were
overturned and thrown about directly in front of the hotel clerk's desk. N.T. 10/26/2022,
p. 26. Sergeant Tropiano testified that there was ahole in the carpet and abullet
located outside of Room 131, where Matthew Elliot and his family stayed. N.T.
10/26/2022, pp. 31-32; See Exhibit C-16; Exhibit C-18; Exhibit C-19. The bullet had
ricocheted off the bottom of the doorway leading to Room 131. N.T. 10/26/2022, p. 39.
8 Sergeant Tropiano also inspected the hotel room where Appellant had been
staying. N.T. 10/26/2022, p. 52. Inside the hotel room, Sergeant Tropiano recovered
numerous cards registered to Appellant. N.T. 10126/2022, p. 52. A magazine for .25
caliber rounds and an Phone was also discovered during Sergeant Tropiano's
investigation. N.T. 10/26/2022, p. 53. Specific to the drug- charges in this case, Sergeant
Tropiano testified that there was 'a green and purple trash can vial within the room and a
glass pipe -recovered. N.T. 10/26/2022,.p. 53. Based on his experience and training with
regard to drugs and drug paraphernalia, Sergeant Tropiano testified that "the two plastic
trash can vials... are commonly used to store narcotics." N.T. 10/26/2022, p. 55; See
Exhibit C-23. As to the glass pipe, Sergeant Tropiano testified that the glass pipe was
"mostly used for narcotics" and that individuals commonly smoke narcotics out of the
glass pipe. N.T. 10/26/2022, p. 57.
Appellant was accordingly charged under criminal bill of information: CP-09-CR-
0000862-2021 with the myriad aforementioned charges related to the alleged attempted
murders, aggravated assaults, and other criminal offenses which arose out of
Appellant's actions on January 27, 2021. 19 On' October 24, 2022, afour-day jury trial
commenced, and Appellant was convicted .of the aforem en ti onedcharges.20 On March
24, 2023, as to counts 6and 7of Criminal Information 0862-2021, this Court sentenced.
Appellant to aperiod of incarceration on each count - of not less than 3.5 years nor more
than .7years in astate-correctional facility, to run consecutively to one another. As to
count 8, Appellant was sentenced to no less than 2years to no more than 4years in a
19See aforementioned charges for criminal bill of information CP-09-CR-0000862-2021. 20See pages 2-3 of this Opinion for specific charges of which Appellant was found guilty. He was acquitted of the attempted murders and several other charges.
9 state correctional facility, to run consecutive to the sentence imposed at count 7. As to
count 14, Appellant was sentenced to no less than 1year to no more than 2years in a
state correctional facility, to run consecutive to the sentence imposed on count 8. As to
Count 16, Appellant was sentenced to not less than 12 months nor more than 24
months in astate correctional facility, with the sentence to run consecutively to the
sentence imposed on Count 14. Appellant was given credit for time served, which was
calculated from January 28, 2021, to March 24, 2023. This Court ordered no further
penalty on counts 9, 13, 15, and 17-34. Appellant was sentenced, then, to an aggregate
term of incarceration in astate correctional facility of not less than 11 years nor more
than 22 years.
On April 3, 2023, Appellant filed two "Post-Sentence Motions": a "Motion for
Reconsideration of Sentence" and a "Motion as to Trial Issues." On July 20, 2023, this
Court denied both Motions without ahearing, finding that they were without merit, and
that they failed to delineate any averments which raised material issues not previously
or properly considered at the time of the relevant proceedings. On August 18, 2023,
Appellant timely filed aNotice of Appeal with the Pennsylvania Superior Court.
Accordingly, we file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure
111. APPELLANT'S STATEMENT OF MATTERS COMPLAINED OF ON APPEAL PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925(b)
On August 28, 2023, this Court issued its 1925(b) Order. On September 18,
2023, Appellant filed atimely Statement of Matters Complained of on Appeal, which is
10 reproduced, verbatim, below. In his Statement, Appellant alleges the following 16 claims
of alleged error for this Court to address:
1. The Trial Court erred in permitting Officer Steven Bailey to testify to the hearsay statements made by Mr. Mason that "he has agun, he has a gun" as the statement was hearsay, did not constitute an excited utterance or any other exception to the rule against hearsay, in violation of Appellant's right to due process of law and to confront and cross-examine the witnesses against him as guaranteed to him by the United States and Pennsylvania Constitutions.
2. The Trial Court erred in permitting Officer Steven Bailey to testify to hearsay statements made by Mr. Mason that Appellant was demanding money and said he was going to kill someone as these statements were hearsay, did not constitute an excited utterance, and did not fall within any other exception to the rule against hearsay, in violation of his right to due process of law and to confront and cross-examine the witnesses against him as guaranteed to him by the United States and Pennsylvania Constitutions.
3. The Trial Court erred in refusing to allow Appellant to present the testimony of Michael Fosco, in violation of his constitutional right to due process. of law and to present adefense as secured to him by the United States and Pennsylvania Constitutions.
4. The verdict of guilty of Aggravated Assault — Attempt to Cause Serious Bodily Injury to Matthew Mason was not supported by sufficient evidence because the Commonwealth failed to establish beyond a reasonable doubt that Appellant acted with the required intent.
5. The verdict of guilty of Aggravated Assault — Attempt to Cause Serious Bodily Injury to Brett Evett was not supported by sufficient evidence because the Commonwealth failed to establish beyond areasonable doubt that Appellant acted with the required intent.
6. The charge of Possession of Drug Paraphernalia was not supported by sufficient evidence because the Commonwealth failed to establish beyond areasonable doubt that Appellant possessed an item with the intent to use it to ingest narcotics.
7. The charge of Aggravated Assault— Attempts to Cause Bodily Injury with aDeadly Weapon to Matthew Mason was not supported by sufficient evidence because the Commonwealth failed to establish beyond areasonable doubt that Appellant attempted to cause bodily injury to Matthew Mason or that Appellant possessed the requisite
11 Intent.
8. The charge of Aggravated Assault - Attempts to Cause Bodily Injury with aDeadly Weapon to Brett Evett was not supported by sufficient evidence because the Commonwealth failed to establish beyond a reasonable doubt that Appellant attempted to cause bodily injury to Brett Evett or that Appellant possessed the requisite intent.
9. The charge of Aggravated Assault - Attempts to Cause Serious Bodily Injury to Matthew Mason is not supported by sufficient evidence because the Commonwealth failed to establish beyond areasonable doubt that Appellant took asubstantial step towards causing serious bodily injury to Matthew Mason.
10. The charge of Aggravated Assault - Attempts to Cause Serious Bodily Injury to Brett Evett is not supported by sufficient evidence because the Commonwealth failed to establish beyond areasonable doubt that Appellant took asubstantial step towards causing serious bodily injury to Brett Evett.
11. The charge of Criminal Attempt - Discharge aFi rearm I nt o an
Occupied Structure is not supported by'sufficient evidence because the Commonwealth failed to establish beyond areasonable doubt that Appellant attempted to discharge afirearm into an occupied structure.
12. The charge of Robbery is not supported by sufficient evidence because the Commonwealth failed to establish beyond areasonable doubt that Appellant intentionally put the victim in fear of immediate serious bodily injury.
13. The charge of Robbery is not supported by sufficient evidence because the Commonwealth failed to establish beyond areasonable doubt that Appellant did this during the course of committing atheft.
14. The Trial Court erred in sentencing Appellant to an aggregate sentence which exceeds what is necessary to protect the public and rehabilitate Appellant.
15. The Trial Court abused its discretion in sentencing Appellant because the Trial Court failed to take into consideration Appellant's age, conduct, character, criminal history, the impact of Appellant's actions on the community, and Appellant's rehabilitative needs.
16. The.Trial Court erred in sentencing Appellant because the Trial Court relied on improper factors in imposing sentence.
12 For the ease of discussion, Appellant's 16 claimed errors may be consolidated into four all-encompassing issues for the purposes of this Opinion:
1. Whether this Court erred in allowing Officer Steven Bailey to testify as to Mr. Matthew Mason's statements, which were allegedly impermissibly admitted into evidence as excited utterances, per the long-recognized exception to the rule against hearsay.
2. Whether this Court erred in not permitting Appellant to present the testimony of Michael Fosco, who, per aproffer from defense counsel, would have testified to events which occurred after January 27, 2021.
3. Whether this Court erred in upholding the jury's verdict that Appellant was guilty of the above-described offenses under Criminal Information Number CP-09-CR-0000862-2021, when the evidence at trial was allegedly insufficient to prove that Appellant committed the myriad offenses.
4. Whether this Court abused its discretion in imposing an aggregate sentence of not less than 11 years nor more than 22 years in astate correctional facility. IV. DISCUSSION
A. This Court did not err in allowing Officer Steven Bailey to testify as to the excited utterance statements by victim Matthew Mason, when they were made shortly after shots were fired in his direction by the Defendant- Appellant.
The Pennsylvania Supreme Court's standard for reviewing evidentiary claims
arising from the trial level is well-settled: "... the admissibility of evidence rests within the
sound discretion of the trial court, and such adecision will be reversed only upon a
showing that the trial court abused its discretion." Com. v. Boczkowski, 846 A.2d 75, 93
(Pa. 2004) (internal citations omitted).
Hearsay is defined as "astatement that the declarant does not make while
testifying at the current trial or hearing; and aparty offers in evidence to prove the truth
of the matter asserted in the statement." Pa.R.E. 801(c). As articulated in
Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003)(citing Commonwealth v.
113 Cunningham, 805 A.2d 566, 572 ( Pa. Super. 2002)), hearsay statements are "... per se
inadmissible..." unless the statement qualifies as an exception to hearsay under the
Pennsylvania Rules of Evidence, or is declared admissible by statute or the
Pennsylvania Supreme Court.
Pennsylvania Rule of Evidence 803(2), which governs the excited utterance
exception to the rule against hearsay, states as follows:
(2) Excited Utterance. A statement relating to astartling event or condition, made while the declarant was under the stress of excitement that it caused. When the declarant is unidentified, the proponent shall show by independent corroborating evidence that the declarant actually perceived the startling event or condition.
To qualify as an excited utterance, the statement must be "aspontaneous
declaration by aperson whose mind has been suddenly made subject to an
overpowering emotion caused by some unexpected and shocking occurrence, which
that person has just participated in or closely witnessed, and made in reference to some
phase of that occurrence which he perceived, and this declaration must be made so
near the occurrence both in time and place as to exclude the likelihood of its having
emanated in whole or in part from his reflective faculties...." Com. v. Grav, 867 A.2d
560, 570 (Pa. Super. 2005). The Pennsylvania Supreme Court in Commonwealth v.
Pronkoskie 383 A.2d 858, 862-63. (Pa. 1978) observed that, unlike other exceptions to
hearsay, the excited utterance exception has "... no clear-cut rule as to the time
sequence required for astatement to qualify as an excited utterance, ... rather that fact-
specific determination is to be made on acase-by-case basis." Gray, 867 A.2d at 570.
In sum, to meet the requirements for characterization as an excited utterance, it must be
demonstrated, "... first, that [the declarant] ... witnessed an event sufficiently startling
14 and so close in point of time as to render [his or] her reflective thought processes
inoperable and, second, that [his or] her declarations were aspontaneous reaction to
that startling event." Gray, , 867 A.2d at 570 (internal citations omitted).
In the present case, both statements alleged by Appellant to have been
Improperly admitted fell squarely within the excited utterance exception to hearsay. In
Commonwealth v. Gray, the court found that when the daughter approached officers
following witnessing an assault on her mother, and then volunteered statements to the
officers, the statements fell within the excited utterance exception to hearsay. Gray, 867
A.2d at 571. The Gray court held that "[the daughter] made the statements while
dominated by nervous excitement, not her reflective faculties ... [and] made the
statements near in both time and place to the alleged assault." Id. at 571. These excited
utterances were made by the daughter outside the home, while the assault against her
mother was ongoing. Id.
As in Gray, Mr. Mason's initial statement to apolice officer in the present case
that, "he has agun, he has agun, he has agun" N.T. 10/25/2022, pp. 170-71, qualified
as an excited utterance. Mr. Mason had clearly perceived'"... an event sufficiently
startling...", Grav, 867 A.2d at 570, as Appellant had fired his weapon in the direction of
Mr. Mason. N.T. 10/26/2022, pp. 148-49. Ms. Alvarado testified that after Appellant shot
at him, Mr. Mason fled the Comfort Inn while Appellant gave chase. N.T. 10/26/2022, p.
149. It is evident that Mr. Mason was ".... under the stress of excitement...," as Officer
Steven Bailey testified that Mr. Mason was screaming the words "he has agun,"
repeating the same words three times. N.T. 10/25/2022, pp. 170-71. Additionally, Mr.
1s Mason's statements were "aspontaneous reaction," not aproduct of reflective thought,
as Mr. Mason did not utter his statement in response to any police questioning.
Mr. Mason's second statement, that Appellant was demanding money and that
Appellant said "he was going to kill somebody," N.T. 10/25/2022, p. 179, also qualified
as an excited utterance. Mr. Mason made this statement after he had fled the building
and circled back to speak with Officer Steven Bailey. N.T. 10/25/2022, p. 179. The fact
that Mr_ Mason did not make these .statements immediately following the shooting; does
not mandate exclusion of the statements as excited utterances. As articulated in Gray,
there is no set time4imit for determining whether astatement constitutes an excited
utterance. Gray, 867 A.2d at 570. Indeed in Commonwealth v. Soudani, 155 A.2d 227,
230-31 (Pa. Super. 1959), afPd. 159 A.2d 686-87 (Pa. 1960), the Superior Court found
that statements uttered in response to questions by anurse administering aid, made 45
minutes after the assault had occurred, while the victim was in shock, and when the
statements were made "... near the beginning of the 45 minutes period above referred
to...," were admissible under the excited utterance exception.
Here, Mr. Mason made these statements after he had fled the building and
returned back to the scene, while the investigation was still actively ongoing. N.T.
10/25/2022, P. 179. While Mr. Mason volunteered these statemen t sin response to
Officer Steven Bailey's question, 'Who said he had agun?", this did not remove Mr.
Mason's statement from the excited utterance exception. N.T. 10/25/2022, pp. 178-79.
In Commonwealth v. Colon, 102, A,3d 1033, 1039 (Pa. Super. 2014), the Superior
Court stated, "... [t]he jurisprudence -of this Commonwealth makes it clear that a
statement, which otherwise qualifies as an excited utterance, is not precluded from
16 falling within the excited utterance exception to the hearsay rule when made in
response to questioning...." (internal quotation omitted) (internal citation omitted). In
Colon, the statement was not removed from the excited utterance exception, when the
statement was made only In response to apolice officer asking* what happened. Id.
The.Supedor Court's decision in Colon is directly on-point. Although Mr. Mason
proffered the statements In response to Officer Bailey's question, Mr. Mason's
statements still qualified as excited utterances since,, as was true in Colon, Officer
Bailey was seeking aclarification as to what happened, Mr. Mason's statements were
made while still under the stress of being shot at by Appellant, and Mr. Mason's
statements related back to the emergency situation.
Appellant further alleges on appeal that the admission of these statements.
violated Appellant's constitutional right to confrontation. As applied in Pennsylvania,
"...[t]he Confrontation Clause of the Sixth Amendment, applicable to the states through
the due process clause of the Fourteenth Amendment, provides that in "all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
against him." Commonwealth v. Robins, 812 A.2d 514, 520 (Pa. 2002) (internal citations
omitted). However, the Pennsylvania Supreme Court has delineated certain exceptions
to the Confrontation Clause requirements, noting in Robins that:
"...the [United States Supreme] Court has determined that certain hearsay statements marked with sufficient indicia of reliability may be admitted despite the absence of the witness from trial [and despite aConfrontation Clause Challenge]... Such indicia of reliability are deemed present without the need for further inquiry where the statement fits within a "firmly rooted" exception to the hearsay rule, or, alternatively, where the circumstances in which the statement was made manifest particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, If anything, to the statement's reliability."
17 Com. v. Robins, 812 A.2d 51.4, 522 (Pa. 2002) (internal citations omitted).
The Superior Court in Commonwealth v. Sanford, 580 A.2d 784, 787-88 (Pa.
Super. 1990), observed that an excited utterance is an example of a "firmly rooted
exception" to the requirements of the Confrontation Clause. In the present case, Mr.
Mason returned to Alabama following the incident on January 27, 2021. N.T.
10/27/2022, pp. 237-38. While the Commonwealth attempted to contact Mr. Mason,
Defense Counsel was unable to cross-examine Mr. Mason before or during tria!? 1. N.T.
10/25/2022, p. 160. Nevertheless, per the above noted rule of evidence and legal
standards set forth in decisional law, Mr. Mason's statements clearly fit within the
excited utterance exception to the rule against hearsay. Accordingly, Appellant's
Confrontation Clause rights were not violated by admission of Mr. Mason's statements.
We note that, even if the admission of Mr. Mason's statements were found to be
error (aproposition with which this Court strenuously disagrees,) the alleged error is
harmless. Mr. Mason's statements only served to add to and corroborate the
overwhelming testimonial and documentary evidence concerning Appellant's criminal
conduct on January 27, 2021. At trial, video evidence was provided from the Comfort
Inn, Ms. Alvarado testified to how Appellant raised his firearm and fired in the direction
of Mr. Mason, and several officers from the Bensalem Township Police Department
confirmed that Appellant had afirearm on his person, which had been recently fired. Mr.
21 The Commonwealth attempted to contact Mr. Mason on numerous occasions; officers called Mr. Mason, contacted local police agencies, issued subpoenas, and sent certified mail to his listed address. N.T. 10/26/ 2022, p. 237. It should be noted that the Commonwealth made contact with Mr. Mason during the morning of October 26, 2022, while trial was ongoing. N.T. 10/26/2022, p. 238. Mr. Mason had:been traveling for work, and called into the court once he retumed and was informed of the summons. N.T. 10/26/2022, pp. 238-39. At that point, there was insufficient time to fly Mr. Mason from Alabama to Bucks County, N.T. 10/26/2022, p. 239, since the trial was to conclude the next day.
18 Mason's excited utterance statements were not close to serving as the sole evidence
which were the foundation for the jury's decision to convict Appellant.
B. The Court did not err when it did not permit Michael Fosco to testify, as he would only have testified to events occurring after January 27, 2021, which were not relevant to the crimes charged and which had no probative value.
It is axiomatic that for awitness to present testimony at trial, the proffered
testimony must be relevant. In Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998),
the Pennsylvania Supreme Court declared that in order to be admissible, evidence must
be both relevant, and be more probative than unduly prejudicial. The Court defined
relevant evidence as "...[e]vidence [which] ... logically tends to establish amaterial fact
in the case, tends to make afact at issue more or less probable, or supports a
reasonable inference or presumption regarding the existence of amaterial fact." Hawk,
709 A.2d at 376. (internal citation omitted).
In the present case, Appellant's brother, Michael Fosco's proffered testimony
was not relevant to establishing Appellant's innocence or guilt as to his actions on
January 27, 2021. Outside the presence of the jury, we provided an on the record
opportunity for defense counsel to proffer Michael Fosco's proposed testimony. N.T.
10/27/2022, p. 6. Michael Fosco would only have testified to events which happened at
least aday after Appellant interacted with victims Matthew Mason, Brett Evett, and
Matthew Elliot and was subsequently arrested. N.T. 10/27/2022, p. 8. While Michael
Fosco would have allegedly testified that Appellant's vehicle was possibly given to
Crystal Kelly, awoman who accompanied Appellant when he rented the hotel room at
the Comfort Inn the previous night, and that the vehicle later was found ransacked,
Michael Fosco's testimony did not relate to establishing any material fact as to whether
19 or not Appellant was criminally culpable for his actions on January 27, 2021. N.T.
10/27/2022, pp. 6-7. Importantly, it was undisputed that Crystal Kelly was not present
during Appellant's interactions with Mr. Mason, Mr. Evett, and Matthew Elliot on January
27, 2021. N.T. 10/27/2022, pp. 8-9. Michael Fosco's proffered testimony would only
have related to Crystal Kelly's alleged actions and would not have related to any facts at
issue with regard to Appellant's criminal charges which stemmed from his actions on
January 27, 2021. N.T. 10/27/2022, pp. 8-9. Therefore, as Michael Fosco's testimony
was not relevant to Appellant's conduct on January 27, 2021, we properly precluded
Michael Fosco from testifying.
C. The Commonwealth presented sufficient evidence that Appellant committed the crimes of Aggravated Assault — Attempts to Cause Serious Bodily Iniury, Aggravated Assault — Attempts to Cause Bodilv Iniury with a Deadly Weapon, Criminal Attempt — Discharge of aFirearm Into an Occupied Structure, Robbery, and Possession of Druq Paraphernalia.
The law on achallenge to the sufficiency of evidence is well-settled in this
Commonwealth. In Commonwealth v. Seqida, 985 A.2d 871, 880 ( Pa. 2009), the
Pennsylvania Supreme Court announced the standard as follows:
When reviewing a challenge to the sufficiency of the evidence, we must determine if the Commonwealth established beyond a reasonable doubt each of the elements of the offense, considering the entire trial record and all of the evidence received, and drawing all reasonable inferences from the evidence in favor of the Commonwealth as the verdict-winner. The Commonwealth may sustain its burden of proof by wholly circumstantial evidence.
When evaluating the sufficiency of the evidence, the Court"... may not weigh the
evidence and substitute [its] judgment for the fact-finder. Com. v. Lewis, 911 A.2d 558,
563 (Pa. Super. 2006) (internal citations omitted). A challenge to the sufficiency of the
evidence is only successful if "... the evidence is so weak and inconclusive that as a
20 matter of law no probability of fact may be drawn from the combined circumstances." Id.
Otherwise, any doubts regarding adefendant's guilt may be resolved by the jury as fact-
finder. Com. v. Storey, 167 A.3d 750, 757 (Pa. Super. 2017). There is no mandate that
"... the facts and circumstances established by the Commonwealth ... preclude every
possibility of innocence." Id.
We will now address each of Appellant's sufficiency of the evidence contentions.
.1. The Commonwealth presented sufficient evidence that Appellant committed Aggravated Assault —Attempts to Cause Serious Bodily Injury to Matthew Mason and Brett Evett when Appellant removed his weapon, lifted his weapon, and rued his weapon in their direction.
Appellant was convicted of two counts of Aggravated Assault — Attempts to
Cause Serious Bodily Injury as to victims, Matthew Mason and Brett Evett. Specifically,
Appellant alleges that he lacked the required intent for the jury to find him guilty of these
charges. The statute defining Aggravated Assault — Attempts to Cause Serious Bodily
Injury states as follows:
A person is guilty of aggravated assault if he: ( 1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.] 18 Pa.C.S. § 2702(a)(1).
In order to establish intent for aconviction under 18 Pa.C.S. § 2702(a)(1), the
Superior Court has noted that, "... an inquiry into intent must be determined on acase-
by-case basis." Com. v. Bruce, 916 A.2d 657, 661 (Pa.. Super. 2007) (internal citation
omitted). The Pennsylvania legislature has defined serious bodily injury as "b]odily
injury which creates asubstantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily member or
21 organ." Com. v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (citing 18 Pa.C.S.A. §
2301) (internal quotation omitted).
The Superior Court has noted that intent to cause serious bodily injury may be
proven circumstantially, as direct evidence is rarely available. Id. When the
Commonwealth intends to prove intent through the introduction of circumstantial
evidence, the Superior Court instructs that, "[i]n determining whether intent was proven
_from such circumstances, the fact finder is free to conclude the accused intended the
natural and probable consequences of his actions to result therefrom." Id. (internal
quotations omitted) (internal citation omitted). In Bruce, the Superior Court expressly
stated that the presence of aweapon can be considered probative evidence for the
purpose of afinding of intent. Id. at 661-62.
The Superior Court stated, "- [t]o prevail on atheory of recklessness, the
Commonwealth must show an assailant's recklessness rose to the level of malice, a
crucial element to sustain aconviction for aggravated assault." Id. at 664 (internal
citation omitted). Specific to the charge of aggravated assault, the Superior Court
articulated that as to malice, "... [a] defendant must display aconscious disregard for
almost certain death or injury such that it is tantamount to an actual desire to injure or
kill; at the very least, the conduct must be such that one could reasonably anticipate
death or serious bodily injury would likely and logically result. Id. (internal citations
In the present case, there was more than sufficient evidence to support the jury's
finding that Appellant acted with the requisite intent with regard to Mr. Mason and Mr.
Evett. As was true in Bruce, which delineated that aprobative factor in determining
22 intent for an aggravated assault conviction is the presence of afirearm, Appellant
brought afirearm to the lobby of the Comfort Inn and then fired his weapon in the
direction of Mr. Mason and Mr. Evett. N.T. 10/26/2022, pp. 148-49. Furthermore, after
Appellant fired in their direction, Appellant chased after them as they ran from the
building. N.T. 10/26/2022, p. 149. Ms. Alvarado testified specifically that she observed
through alive camera feed, that Appellant removed his firearm from his clothing, and
that there was then a "puff of smoke." N.T. 10/25/2022, pp. 115-16. The choices that
Appellant made, bringing afirearm to the lobby of the hotel, removing the firearm from
his pants pocket, lifting the firearm in the direction of Mr. Mason and Mr. Evett, and
then, ultimately discharging his firearm In their direction, are obviously facts sufficient for
the jury to find that Appellant possessed the requisite intent.
It should be noted that while Appellant chose to fire his weapon at Mr. Mason
and Mr. Evett, Appellant also made several choices on January 27, 2021, not to
produce his firearm or otherwise attack several other individuals at the hotel in question.
N.T. 10/26/2022, pp. 165-67. A guest of the Comfort Inn even touched Appellant's
person, and Appellant chose not to harm her and did not threaten to employ or actually
discharge his firearm in that interaction. N.T. 10/26/2022, pp. 166-67. Since Appellant
chose to fire his weapon in the direction of Mr. Mason and Mr. Evett, the factfinder, the
jury here, could "... conclude [that] the accused intended the natural and probable
consequences of his actions to result therefrom." Bruce, 916 A.2d at 661. (internal
citation omitted).
Even if this Court were to find that Appellant was not acting intentionally or
knowingly, there was sufficient evidence for the jury to find that he acted recklessly.
23 Appellant's decision to fire aloaded weapon in the direction of two. Individuals — Mr.
Mason and Mr. Evett — is definitively a decision where"... one could reasonably
anticipate death or serious bodily injury would likely and logically result." Accordingly,
there was sufficient evidence for the-jury to find that the Commonwealth proved each
and every requisite element of the challenged aggravated assault convictions.
2. The Commonwealth presented sufficient evidence that Appellant committed Aggravated Assault— Attempt to. Cause Bodily Injury with aDeadly Weapon, when Appellant brought afirearm to the lobby of the Comfort Inn, removed his firearm from his pants pocke4 and discharged the weapon In the direction of Matthew Mason and Brett Evett:
Appellant argues that the evidence presented at trial was insufficient to fiord that
Appellant had the requisite intent and/or that Appellant took asubstantial step toward
fully committing the Aggravated Assault. The statute delineating Aggravated Assault —
Attempt to Cause Bodily Injury with aDeadly Weapon, Is produced verbatim below:
A person is guilty of aggravated assault if he: (4) attempts to cause or intentionally or knowingly causes bodily injury to another with adeadly weapon[.]
18 Pa.C.S.A. § 2702 (a)(4).
The Superior Court has observed that, "[f]or aggravated assault purposes, an
attempt is found where an accused who possesses the required, specific intent acts in a
manner which constitutes asubstantial step toward perpetrating aserious bodily injury
upon another." Com. v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (internal citation
omitted.) As articulated by the Court in Commonwealth. v. Stancil, 334 A.2d 675, 677
(Pa. Super. 1975), there is no requirement that an individual victim actually suffer injury
In order for an aggravated assault conviction to be upheld. Rather, when evaluating if a
24 defendant possessed the requisite specific intent, the court must examine the
defendant's behavior, and the totality of evidence presented, direct and circumstantial.
Com. v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008). Indeed, "... depending on the
circumstances even asingle punch may be sufficient." Id.
Pennsylvania courts have analyzed numerous cases of aggravated assault. In
Commonwealth v. Lopez, 654 A.2d 1150, 1152 ( Pa. Super. 1995), the Superior Court
held that an individual could be found guilty of Aggravated Assault - Attempt to Cause
Bodily Injury with aDeadly Weapon, provided the individual possessed the requisite
intent, even in asituation where aperson fired the weapon into an- empty house. In
Commonwealth v. Holley, the Superior Court found that the evidence was suffclentto
find the defendant guilty of aggravated-assault, since the defendant intended to cause
bodily injury with adeadly weapon, when the defendant removed afirearm from a
prison guard, and pointed and shot the firearm at the prison guard following aphysical
altercation. Hollev, 945 A.2d at 249.
In the present case, there Is clearly sufficient evidence to support the jury's
finding that Appellant committed Aggravated Assault — Attempt to Cause Bodily Injury
with aDeadly Weapon, as to both Matthew Mason and Brett Evett. Specifically,
Appellant produced afirearm in the lobby of the Comfort Inn. N.T. 10/26/2022, pp. 148-
49. The Commonwealth presented evidence that while Appellant chose not to aim his
firearm at several other patrons of the hotel, N.T. 10/26/2022, pp. 165-67, he lifted and
fired his weapon in the direction of Mr. Mason and Mr. Evett. N.T. 10126/2022, pp. 148-
49. Ms. Alvarado corroborated this testimony at trial, as she personally observed
Appellant lift his firearm in their direction, and she then heard two gunshots. N.T.
25 10/25/2022, pp. 104. The Commonwealth clearly presented sufficient evidence, then,
that Appellant took asubstantial step toward causing Mr. Mason and Mr. Evett bodily
injury, through the unlawful discharges of his firearm.
Accordingly, there was more than sufficient evidence presented for the jury to
determine Appellant was guilty of Aggravated Assault — Attempt to Cause Bodily Injury
with aDeadly Weapon.
3. The. Commonwealth presented sufflcient.evidence that Appellant committed Criminal Attempt— Discharge aFirearm Into an Occupied Structure, when Appellant attempted to discharge his firearm into an occupied hotel guest room.
Appellant avers that ahotel room cannot constitute an "occupied ;structure" for
the purposes of aconviction under the pertinent statute. N.T. 10/27/2022, p. 16. The
statute regarding Criminal Attempt ; Discharge aFirearm Into an Occupied Structure,
states as follows:
A person commits an offense if he knowingly, intentionally or recklessly discharges afirearm from any location into an occupied structure.
18 Pa.C.S.A. § 2707.1(a)
The Pennsylvania legislature has defined an "occupied structure" as including
"[a]ny structure, vehicle or place adapted for overnight accommodation of persons or for
carrying on business therein, whether or not aperson is actually present."18 Pa.C.S.A. .
§2707.1(d). In Commonwealth v. Headley, 242 A.3d 940, 948-49 (Pa. Super. 2020),
the defendant discharged afirearm into an apartment below the apartment defendant
occupied. The Superior -Court held that the definition of an °occupied structure" includes
separate apartments located within the same apartment building. The Court stated,
26 "Section 2707.1(d) unambiguously defines occupied structure, and It includes aplace
adapted for overnight accommodation of persons." Id. (internal quotations omitted.)
In the present case, as was true in Headlev, Appellant was within the same
building, the Comfort Inn, as victims Matthew Elliot and his family. N.T. 10/25/2022, pp.
94-95; 130-31. The Headley analysis, along with logic, dictates that aseparate hotel
guest room, much like the separate apartment unit, constitutes an "occupied structure."
The Commonwealth presented evidence that Appellant was outside of Matthew Elliot's
locked hotel room, and that Appellant removed his firearm from his pants pocket, and
attempted to shoot into the occupied hotel room through the door. N.T. 10/25/2022, pp.
136-37. Appellant conceded that he fired his weapon, when he testified at trial that,
"...once Irealized that Iliterally shot into the floor, Isaid to myself, what the — are you
doing? And at that point Iwas just at aloss." N.T. 10/27/2022, p. 44. Each of these
action steps that Appellant took demonstrated his intent to recklessly, knowingly, and or
intentionally shoot into Matthew Elliot's hotel room, an occupied structure. Accordingly,
there was more than sufficient evidence for the jury to find that Appellant was guilty of
this offense, and Appellant's claim of insufficiency is meritless.
4. The Commonwealth presented sufficient evidence that Appellant committed Robbery — Threat of Immediate Serious Bodily Injury when Appellant approached Matthew E11164 expressly threatened his victim's We in exchange for money, and then used his rrreann to shoot at Matthew Elliot's hotel room door.
Appellant alleges that the Commonwealth failed to present sufficient evidence
that Appellant had the intent to place his victim in fear of Immediate bodily injury, and
that there was insufficient evidence to establish Appellant acted while in the course of
27 committing atheft. The statute regarding Robbery — Threat of Immediate Serious Injury,
(1) A person is guilty of robbery if, in the course of committing atheft, he: (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii).
In Com. v. Hopkins, 747 A.2d 910, 914 (Pa. Super. 2000), the Superior Court
announced that "...[f]orthe purposes of subsection 3701(a)(1)(ii), the properfocus is on
the nature of the threat posed by an assailant and whether he reasonably placed a
victim in fear of immediate serious bodily injury." Id. at 914 (internal quotation omitted)
(internal citation omitted). Specifically; as to firearms, the Hopkins court stated, "[a]
factfinder is entitled to infer that avictim was in mortal fear when adefendant visibly
brandished afirearm." Id. at 914-15. The Pennsylvania Supreme Court has interpreted
the element, "in the course of committing atheft," as including not only flight after a
completed theft, but also the act of attempting to commit atheft. Com. v. Ford, 650 A.2d
433,437 (Pa. 1994).
In the instant case, the Commonwealth presented sufficient evidence that
Appellant placed Matthew Elliot in fear of immediate serious bodily injury, while "in the
course of committing atheft." Appellant initially demonstrated aseries of "aggressive
actions" against Matthew Elliot when he approached him by walking toward him, with
his hand in his pocket. N.T. 10/25/2022, pp. 135-36. Matthew Elliot testified that he was
unable to tell what was in Appellant's pocket, and that he feared that Appellant had a
gun. N.T. 10/25/2022, p. 136. While the Superior Court's decision in Hopkins delineated
that there is no requirement that an actual threat be verbalized to support afinding that
28 an individual -victim was placed in reasonable fear of serious bodily injury, Appellant
here absolutely did, Indeed, emphatically threaten Matthew Elliot, directing him to "give
[Appellant] everything you got-or I'm going to fucking kill you." N.T: 10/25/2022, pp. 135-
36. Matthew Elliot reiterated his understandable fear numerous times during his trial
testimony. N.T. 10/25/2022; p. 136.
The Commonwealth presented additional evidence as to Matthew Elliot's post-
threat, state of mind as follows: Matthew Elliot ran and hid behind the locked hotel room
door, Appellant proceeded to follow him, removed his firearm from his pocket, and
discharged his weapon in the hallway area adjacent to the hotel -room. 22 N.T.
10/25/2022, p. 137. Appellant then uttered another threat, stating, " I'm going to take all
your fucking money and burn this piece of shit place to the ground." N.T. 10/25/2022, p.
137. Obviously, then-, there was an abundance df evidence for the jury to find that
Appellant placed Matthew Elliot in reasonable fear of imminent serious bodily injury.
There was also sufficient evidence to support - the jury's determination that
Appellant acted while "in the course of committing atheft." At the very least, Appellant's
actions constituted substantial steps toward committing atheft. Appellant's verbal
command, with weapon in hand, to Matthew Elliot, that Mr. Elliot "give [Appellant]
everything you got or I'm going to fucking kill you" N.T. 10/25/2022, pp. 1.35-36, followed
by asimilar threat, is an obvious attempt to deprive the victim of his money by use of
22Sergeant Troplano testified that there were four bullet fragments in front of Matthew Elliot's hotel room door, N:T 10/26/2023, p. 29. He further noted,-"there was amark or hole... In the carpet right outside .the door of Room 131 [where Matthew Elliot stayedj." N.T. 10/26/2023, p. 31. A ricochet point-from abullet was located on the " lower part of the door" of Room 131. N.T. 10/26/2023, p. 39. Clearly, there is an abundance of evidence that Appellant discharged his firearm Into the carpet outside of Room 131, and based on reasonable Inferences, it is evident that Appellant attempted to, albeit failed to, shoot into an occupied structure.
29 force or by threatening to use force. Accordingly, there was ample and sufficient
evidence presented at trial to sustain the jury's guilty verdict as to the robbery charge.
5. The Commonwealth presented sufficient evidence that Appellant was guilty of Possession of Drug Paraphernalia, as Appellant admitted to being In the room where the paraphernalia was discovered, Appellant's personal belongings were found within the room, and Appellant requested continuing access to the room.
Appellant was convicted of one count of Possession of Drug Paraphemalia. The
statute regarding Use or Possession of Drug Paraphernalia states:
The following acts and the causing thereof within the Commonwealth are hereby prohibited: The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compo6nding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body acontrolled substance in violation of this act.
35 P.S. § 780-113(a)(32).
Our appellate courts have previously held that possession of drug paraphemalia
can be established through adefendant's constructive possession. See e.q., Com. v.
Varqas, 108 A.3d 858, 868 (Pa. Super. P 2014 ), ; there is no requirement that the
defendant be in exclusive control of the paraphernalia.Id.— Toprove constructive
possession then, the Varqas court stated that "... the Commonwealth must introduce
evidence demonstrating eithei he defendant's] participation in the drug related activity
or evidence connecting [the defendant] to the specific room or areas where the drugs
[and/or paraphernalia] were kept." Id. (internal quotation omitted) (citation omitted).
Mere presence is not sufficient to find that adefendant constructively possessed the
contraband. Commonwealth v Parrish, 191 A.3d 31, 37 (Pa. Super. 2018). In
30 Commonwealth v. Carroll, 507 A.2d 819, 820 (Pa. 1986), the Pennsylvania Supreme
Court upheld adefendant's conviction for possession of acontrolled substance with
intent to distribute, where the defendant was noted to have constructive possession of
drug paraphernalia and drugs found within ashared motel room, when the drugs were
located in the defendant's wife's pants pocket, cash from acontrolled buy was present,
and drug paraphernalia was in the motel room bathroom. Id. at 820.
In the instant case, sirr ilar to Carroll, there was sufficient evidence to find that
Appellant constructively possessed the drug paraphernalia located'within the hotel room
where he stayed. There is no ;dispute that Appellant was present in the room, as Ms. I Alvarado testified that when she went to the hotel room, she found Appellant in the
specific room. N.T. 10/25/2022, pp. 97-98. Nor is there any dispute that drug
paraphernalia was within the i oom where Appellant l pP was Present. Sergeant 9 Tro pis no
tested that when he entered the room where Appellant stayed, he located two trash
can vials, one green and one rurple, and aglass pipe. N.T. 10/26/2022, p. 53. Sergeant
Tropiano further testified that, based on his training and experience, the vial was
commonly used to store narcotics, while the glass pipe was commonly used to smoke
narcotics. N.T. 10/26/2022, p. 55, 57; See Exhibit C-23.
While Appellant shared the room with Ms. Kelly, N.T. 10/25/2022, pp. 36-38,
there was sufficient evidence for ajury to find that Appellant maintained constructive
possession over the drug paraphernalia located within the room. When Sergeant
Tropiano searched the hotel room Appellant stayed in, he discovered cards registered
to Appellant within the room —, namely aHarbor Freight Card, PFSU Visa Card, and
Home Depot Card. N.T. 10/26(2022, p. 52; See Exhibit C-21; Exhibit C-22. This was not
31 acase where Appellant was " merely present" within the room where drug paraphernalia
was discovered. The Commonwealth presented evidence, which the jury could find
credible, that Appellant exercised dominion over the room as Appellants App personal p nI
belongings were found throu hout. N.T. 10/26/2022, p. 52. Awad Bin Abdullah, ahotel
employee, testified that Appe ant asked for akey card to the room: N.T. 10/27/2022, p.
13. Appellant himself even co firmed that he voluntarily went to the hotel room where
the drug paraphernalia was discovered by Sergeant Tropiano, and that Appellant was in
the room for asignificant leng hof time — to bathe, to drink, and to sleep. N.T.
10/27/2022, p. 36-40. Accordingly, there was more than sufficient evidence for the jury
to find that Appellant was guilty of possession of drug paraphernalia.
D. Appellant's Aggregate Sentence of incarceration of not less than 11 Years or more than 22 Years in aState Correctional Facility was lawful, as it was neither unjustified n4:manifestly unreasonable.
Appellant's excessive sentence argument implicates discretionary aspects of
sentencing. The law as to an Appellant's 1 right to challenge the discretionary aspects of
sentencing is well-settled: As 'stated in Commonwealth v. Zirkle 107 A.3d 127, 132 (Pa.
Super. 2014), there is no absilute right.to appeal pP under these circumstances. See also
42 Pa. C.S. Section 9781(b). I nstead, in instances where an appellant challenges the
discretionary aspects of asentence, the appeal is treated as apetition for allowance of
appeal to the Superior Court. See Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa:
Super. 2019). Furthermore,
[a]n appellant challenging the - discretionary aspects of [his] sentence must Invoke [the Superior] Court's, jurisdiction by satisfying a four-part test:... (1) whether ap ellant has filed- a timely notice of appeal, see Pa. R.A.P. 902 and 903; whether the issue was properly preserved at sentencing or in a otion to reconsider and modify sentence, see Pa. R.Crim.P. 720.; (3) whiTther appellant's brief has afatal defect, Pa. R.A.P.
32 2119(f); and (4) whether there is asubstantial question that the sentence appealed from is not al ipropriate under the Sentencing Code, 42 Pa. C.S.A. §9781(b).
Commonwealth v. Moury, 99 A.2d 162,170 (Pa. Super. 2010) (citing Commonwealth v.
Evans, 901 A.2d 528, 533 (P .Super. 2006)). 23
Upon granting appeal and review of the sentence imposed, the Superior Court's
standard of review is well sett ed:
Sentencing is a matte vested in the sound discretion of the sentencing judge, and asentence 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 amanifestly unreasonable decision.
Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super. 2018) (citing
Commonwealth v. Man, 957 A.2d 746, 749 (Pa. Super. 2008)).
'When imposing a sentence, a court is required to consider the particular
circumstances of the offense and. the character of the defendant." Commonwealth v. Hill,
210 A.3d 1104, 1116-17 (Pa. Super. 2019) (quoting Commonwealth v. Griffin, 804 A.2d
1, 10 (Pa. Super. 2002)). A se hence of confinement must also be consistent with what is
necessary for the protection of the public, "the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative needs of the
defendant." 42 Pa.C.S. § 9721(b). The sentencing court must state on the record the
reasons for the sentence imposed. Pa. R.Crim.P. 704(C)(2).
The Sentencing Code affords discretion for the sentencing court to impose
concurrent or consecutive sentences, unless the aggregate sentence is "grossly
23Appellant here met the first three procedural requirements of the four-part test
33 disparate" to the Defendant's conduct, or "viscerally appears as patently unreasonable."
Commonwealth v. Gonzalez;DeJusus, 994 A.2d 595 (Pa. Super. 2010); 42 Pa. C.S.
§9721. Additionally, when, as Is true in the instant case, the sentencing court has the
benefit of a Pre- Sentence In estigation Report ("PSI Report"), it is presumed that the.
court was both aware of and appropriately weighed all relevant information contained in
the PSI Report. See Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002). Indeed,
we did so in the present case
1 1. Appellant has Arg+uablyAverred aSubstantial'Quesdon on Appea l. Which Requiril Review of the Sentence Imposed on March 24, 2023.
"The determination of vthat constitutes asubsta ntial question as to an allegedly
inappropriate sentence must be evaluated on acase-by-case basis." Commonwealth v.
Swope, 123 A. 3d 333, 338 ( P3. Super. 2015) (citing Commonwealth v. Prisk, 13 A. 3d
526, 533 (Pa. Super. 2011)):-' substantial question exists only wh en th e appe ll ant
advances acolorable argume tthat the - sen₹encing judge's actions were either: ( 1)
inconsistent with aspecific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process." Id.
Appellant on appeal does not provide specifics as to how the sentence was
allegedly excessive, how we Ile 9edlyfails dto take into account the specified factors,
or which improper factors upo ii which we allegedly impermissibly relied. However, due
to Appellant plausibly raising asubstantial question on appeal, decisional law,mandates
that the Superior Court exercise - appellate review as to this issue. 24
24See Commonwealth v. Brown, 24P AM 1206 (Pa. Super. 2021); Commonwealth v. Pacheco, 227 A.3d 368—,376 (Pa. Super. 2020); Commdnwealth v. Hill, 210 Aid 1104, 1116 ( Pa. Super. 2019); Commonwealth v. Raven, 97 AM 1244 ( Pa. Super. 2014).
34 2. Appellant's Sentence was Not Based on Improper Factors, Nor was it Manifestly Excessive or Unreasonable, as the Sentence Imposed Was Within the Sentencing Ranges set forth in 42 Pa. C.S. Section 9721 and in Pennsylvania's Sentencing Guidelines.
In the present case, we held asentencing hearing on March 24, 2023, where
Appellant called and presented the testimony of several witnesses. Earlier, we had
ordered aPre-Sentence Investigation be conducted as to Appellant -and we had the
benefit of reviewing the comprehensive PSI Report, prior to the date of sentencing.
On March 24, 2023, we provided on the record, the following rationale for our
determination of Appellant's sentence:
... [T]he job of the Court, ... [as to] sentencing [is] to balance off awhole host of factors. And I have tried to be conscientious in doing so here.
... Icertainly consider the arguments of counsel today, I've considered the testimony presented by the defense, Iconsidered all of the evidence that Iheard during the ... four- day jury trial in October of 2022, including Mr. Fosco's testimony at that time, as well as today.... I've certainly considered the comprehensive PSI report dated January 11th, 2023, I've considered the criminal history which has been referenced by both sides here, history of alcohol abuse and the severity of the crimes....
The crimes really were reckless. And whether there was drug induced mental state or not, ... unfortunately we do not have any. blood or other test to tell us what the content of Mr. Fosco's blood was at the time. But there's no question that alcohol was involved and there's also no question, Mr. Fosco, that you and , alcohol do not mix too well.
So besides the three DUls we have in the PSI, we have anumber of people who have said that.... Mour stepfather, Donald, stated that - he feels the defendant's drinking alcohol plays apart when
35 you get in trouble. In regard to the instant offense, Donald states the defendant probably made amistake and did something stupid. When he would drink, he would act stupid.
Your brother Michael indicated in the PSI that he's sure that the defendant consumed alcohol that night.
...Your sister Michelle, ... described the defendant as allowing his alcoholism to ruin their relationship over the past 15 years.
And Lisa, your own wife, stated- to the Investigator ... that your relationship had its ups and downs and you were both getting out of hand with drinking alcohol.
So certainly alcohol had something to do with this incident and maybe other substances as well, Idon't know. But regardless of the'reason, these were terribly violent acts. It's astounding that no one got hurt or killed-, including anumber of family members who were minding their business and just visiting, besides other people in the hotel lobby, not to speak of the employees of the Comfort Inn. So they've got a lifetime of trauma because of your actions, Mr. Fosco, and there's no denying that. Someone who is shot at and witnessed what they witnessed, they'll never get over that. Their lives will never be the same.
The PSI indicates that the risk assessment tool that was used indicates that you have amoderate to high risk of reoffending. So that needs to be taken into consideration as well.
There are positive parts of your life and I'm not dismissing that at all.... [I]ncluding your service in the military, including that you earned aGED..: You have awork ethic and that's to be commended. And your work in the prison is to be commended as well. That's not an easy job, lknow that. So Ido take that into consideration.
36 And Idon't give up easily on people in terms of hope. Ido think there is hope for you but Iabsolutely think besides the substantial punishment that is needed and really called for under the law in these circumstances because of how serious the crimes are and because of our interest in protecting the community, you need drug and alcohol treatment. And Ihaven't heard anything, anywhere that you've ever had any. [Y]ou've been in prison now for ... two years and two months -after the arrest ... and it looks like you've had no treatment ,whatsoever, and that's not good— That's aproblem and that needs to change.
... Ido think when you have structure, when you're sober, you appear to do relatively well. But when you don't have structure and when you're not sober, you've been dangerous on more than one occasion. That's aproblem.
... I've also considered the Pennsylvania Sentencing Guidelines which are referenced extensively in the PSI. Ido think the-standard range is appropriate here. As you know, the jury convicted you ... of 25 of the 35 offenses with which you were charged on the day in question. So under all of these circumstances, a substantial sentence of state incarceration is mandated.
N.T. 03/24/2023, pp. 37-40.
Pursuant to the applicable sentencing guidelines, 25 the standard range for
Counts 6and 7 (Aggravated Assault — Attempts to Cause Serious Bodily Injury with
Extreme Indifference) was aminimum- of 54 months to 66 months in astate correctional
zs The sentencing guidelines are not binding upon the sentencing court, which need only acknowledge and consider them, while exercising its own independent judgment Corn. v. Wells, 926 A2d 957 ( Pa. 2007).
37 facility. This Court sentenced Appellant on each of these counts, to run consecutively, 2B
to aperiod of incarceration in astate correctional facility of not less than 42 months or
more than 84 months. Accordingly, Appellant`s sentence was imposed in the mitigated
range of the applicable sentencing guideline.
As to applicable sentencing guidelines for.Count 8 (Robbery — Threat of
Immediate Serious Injury) the standard range was aminimum of 54 months to. 66
months in astate correctional facility. This Court sentenced Appellant on Count 8to not
less than 24 months or more than 48 months. Appellant's given maximum sentence is .
below the mitigated range. The sentence imposed on at Count 8is to run consecutively
to the sentence on Count 7.
While, pursuant to the applicable sentencing guidelines, the standard range for
Count 14 (Criminal Attempt — Discharge of aFirearm into an Occupied Structure) was a
minimum of 36 months to 42 months in astate correctional facility. Appellant was
sentenced to not less than 12 months or more than 24 months in astate correctional
facility. Appellant's sentence on Count 8, then, was below the mitigated range noted in
the applicable sentencing guidelines. Appellant's sentence imposed on Count 14 is to
run consecutively to Appellant's sentence on Count B.
As to the applicable sentencing guidelines for Count 16 (Firearms Not to be
Carried Without aLicense), the standard range was aminimum of.24 months to 36
months in astate correctional facility. This Court sentenced Appellant on Count 16 to
not less than 12 months nor more than 24 months in astate correctional facility, with the
1a"It is well estab)ished that Pennsylvania law affords the trial court discretion to.impose its sentence concurrently or consecutively to other sentences being imposed at the same lime." Com, v. Dove, 301 A.3d 427, 436 (Pa. Super. 2023) ( internal quotations omitted) (internal citations.omitted).
38 sentence to run consecutively to the sentence imposed on Count 14. Appellant's
sentence was within the mitigated range of the applicable sentencing guideline. We
imposed no further penalty on Counts 9, 13•, 15, and 17-34. 27 Appellant was ordered not
to possess any firearms, he was ordered to have no contact with the victims and the
Bensalem Comfort Inn and Suites, and the state Department of Corrections was urged
to have Appellant undergo Drug ,and Alcohol Treatment. N.T. 03/24/2023, pp. 44-45.
The evidence of record demonstrates then, that we considered amultitude of
factors when determining the appropriate sentence for Appellant. Specifically, the notes
of testimony indicate that we relied on admissible information contained within the
comprehensive Pre-Sentence Investigation Report, that we focused on Appellant's
rehabilitative needs particularly with regard to alcohol and drug use, and his need for
structure, and that we appropriately took into account Appellant's criminal'.history, the
gravity of his violent crimes, as they impacted the victims and the community, along with
Appellant's likelihood to reoffend due to his unhealthy relationship with alcohol. The
notes of testimony of Appellant's March 24, 2023, Sentencing Hearing demonstrate,
then, that we took into consideration all appropriate and applicable factors when
determining Appellant's sentence.
As such, Appellant's sentence was well within the guidance of the fundamental.
norms adhered to by courts in the sentencing process and it was well within the bounds
of the appropriate Pennsylvania Sentencing statutes and guidelines. Appellant's
sentence was neither excessive nor manifestly, unreasonable. Appellant's arguments to
the contrary are without merit.
2' As noted previously, then, the aggregate sentence imp ose di s notl ess th an 11,years or more than 22
years in astate correctional facility..
39 V. CONCLUSION
Based on all of the foregoing; we respectfully submit that this Court's March 24,
2023 Judgment of Sentence in the above-captioned matter should be affirmed.
BY THE COURT:
Date: November30, 2023
fAl
Related
Cite This Page — Counsel Stack
Com. v. Fosco, T., Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-fosco-t-pasuperct-2024.