Com. v. Feli, S.

J-A23001-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SHERRYL FELI, : : Appellant : No. 1672 WDA 2013 Appeal from the Judgment of Sentence entered on May 23, 2013 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0009920-2012 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 24, 2015 Sherryl Feli (“Feli”) appeals from the judgment of sentence imposed after she was convicted of three counts of aggravated assault and one count of criminal conspiracy.1 We affirm. In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly set forth the facts underlying this appeal, which arises out of an assault on John Hrabolowski (“Hrabolowski”) and John Szwaczkowski (“Szwaczkowski”), perpetrated by Feli and her co-defendant, William Hughes (“Hughes”). See Trial Court Opinion, 10/21/14, at 4-8. We adopt the trial court’s recitation herein by reference. See id. Following the assault, the Commonwealth charged Feli with one count each of criminal conspiracy and aggravated assault – serious bodily injury (hereinafter “aggravated assault – SBI”), and two counts of aggravated 1 See 18 Pa.C.S.A. §§ 2702(a)(1), (4); 903. J-A23001-15 assault – deadly weapon used (hereinafter “aggravated assault – DW”), pertaining to her assaults upon Hrabolowski and Szwaczkowski, respectively. The matter proceeded to a non-jury trial, after which the trial court found Feli guilty on all counts. On May 23, 2013, the trial court imposed an aggregate sentence of two to four years in prison, followed by seven years of probation. Feli filed post-sentence Motions, which the trial court denied after a hearing. Feli thereafter timely filed a Notice of Appeal,2 and a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal. On appeal, Feli presents the following issues for our review: I. Was the evidence sufficient to support [] Feli’s convictions for aggravated assault [– SBI] and conspiracy to commit aggravated assault [– SBI] against [] Hrabolowski? II. Was the evidence sufficient to support [] Feli’s conviction for aggravated assault [– DW] against [] Hrabolowski? III. Was the evidence sufficient to support [] Feli’s conviction for aggravated assault [– DW] against [] Szwaczkowski? Brief for Appellant at 5 (capitalization omitted). We apply the following standard of review when considering a challenge to the sufficiency of the evidence: The standard we apply … is whether[,] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] the fact-finder. In addition, we note that the facts and circumstances established by the 2 Hughes also filed a direct appeal, docketed before this panel at 1779 WDA 2013. -2- J-A23001-15 Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that[,] as a matter of law[,] no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted). In her first issue, Feli challenges the sufficiency of the evidence supporting her convictions of (1) aggravated assault – SBI; and (2) conspiracy to commit aggravated assault – SBI. See Brief for Appellant at 16-29. We will address Feli’s claims separately. In challenging her conviction of aggravated assault – SBI, Feli argues that the evidence failed to establish that she had inflicted, or attempted to inflict, “serious bodily injury” upon Hrabolowski, a requisite element of the offense. Id. at 16. The Crimes Code provides that a person is guilty of aggravated assault – SBI if she “attempts to cause serious bodily injury[3] 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.A. 3 “Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. -3- J-A23001-15 § 2702(a)(1) (footnote added). “Aggravated assault [– SBI] does not require proof that serious bodily injury was inflicted but only that an attempt was made to cause such injury. Where the victim does not sustain serious bodily injury, the Commonwealth must prove that the appellant acted with specific intent to cause serious bodily injury.” Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa. Super. 2006) (citations omitted); see also 18 Pa.C.S.A. § 901(a) (providing that “[a] person commits an attempt when, with intent to commit a specific crime, [s]he does any act which constitutes a substantial step toward the commission of that crime.”). “A person acts intentionally with respect to a material element of an offense when … it is [her] conscious object to engage in conduct of that nature or to cause such a result ….” 18 Pa.C.S. § 302(b)(1)(i). As intent is a subjective frame of mind, it is of necessity difficult of direct proof. The intent to cause serious bodily injury may be proven by direct or circumstantial evidence. Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (citations to case law and internal quotation marks omitted). “[A] determination of whether an appellant acted with intent to cause serious bodily injury must be determined on a case-by-case basis.” Commonwealth v. Dailey, 828 A.2d 356, 360 (Pa. Super. 2003); see also id. (observing that “depending on the other circumstances, even a single punch may be sufficient.”). In the instant case, it is undisputed that Hrabolowski did not actually suffer serious bodily injury under the statutory definition of this term. Accordingly, the relevant inquiry is whether Feli attempted and intended to inflict serious bodily injury upon Hrabolowski. -4- J-A23001-15 Feli argues that the Commonwealth failed to present sufficient evidence that she intended to inflict serious bodily injury, emphasizing that she struck Hrabolowski only on the forearms with her metal bike lock, which caused minor bruising that did not require medical attention. See Brief for Appellant at 18-24. Feli points out that this Court has stated that, in inferring intent to commit serious bodily injury from circumstantial evidence, “[g]enerally speaking, one is presumed to intend the normal consequences of one’s actions.” Id. at 18 (quoting Commonwealth v. Robinson, 817 A.2d 1153, 1159 (Pa. Super. 2003)). According to Feli, in the instant case, “[c]ommon sense dictates that the normal consequence of striking someone on the forearms with a bike lock would be the kind of minor bruising that occurred here, not ‘serious bodily injury’ or death.” Brief for Appellant at 19. Feli maintains that the decision in Robinson is analogous to this case, and requires that her conviction be reversed. Id. In Robinson, the defendant and two accomplices robbed a woman of her backpack, at gunpoint, outside of a bank. Robinson, 817 A.2d at 1157. One of the accomplices struck the woman in the back with the butt of his handgun, which did not cause her serious bodily injury. Id. at 1157, 1159. This Court held that the evidence was insufficient to sustain the defendant’s conviction of aggravated assault – SBI, stating that “the circumstances of the assault do not support the inference that the assailant intended to inflict greater injury than that actually inflicted.” Id. at 1159. In the instant case, Feli, relying on Robinson, asserts that -5- J-A23001-15 the “only reasonable inference” to be drawn here is that the blows [] Feli allegedly delivered were, like the blow in Robinson, intended “to inflict the same degree of injury as was actually inflicted.” Robinson, 817 A.2d at 1160. “Thus, the conclusion of the factfinder, that the intent behind the blow was to injure much more severely than that actually inflicted, is nothing more than sheer speculation.” Id. at 1160-61. Brief for Appellant at 21. In its Opinion, the trial court addressed Feli’s claims and concluded that the evidence was sufficient to establish that she attempted and intended to inflict serious bodily injury upon Hrabolowski. See Trial Court Opinion, 10/21/14, at 18-20. The trial court’s analysis is supported by the record and the law, and we affirm on this basis concerning Feli’s challenge to her conviction of aggravated assault – SBI. See id. As an addendum, we observe that Feli’s reliance on Robinson, supra, is misplaced, as it is factually distinguishable. Unlike the assailant in Robinson, Feli personally delivered the blows with the metal bike lock to Hrabolowski’s forearms, after having seen her paramour, Hughes, cause serious bodily injury to Szwaczkowski, see infra, with a nearly identical bike lock. Moreover, the Court in Robinson emphasized that the intent of the co-conspirators in that case was to rob[] [the victim], plain and simple. The clear intent of the robbers was to take [the victim’s] backpack, not to inflict serious bodily injury. To accomplish this, the assailant found it necessary to strike [the victim] in the back. Indeed, there is no indication the blow was delivered for any purpose other than to assist in separating the backpack from [the victim’s] clutches. -6- J-A23001-15 Robinson, 817 A.2d at 1161. In the instant case, although Feli had the opportunity to avoid the fray initiated by Hughes, she instead actively participated in the assault, which apparently did not have any criminal objective aside from the assault itself. Additionally, Feli repeatedly struck Hrabolowski on his forearms with her bike lock while he was attempting to protect Szwaczkowski from further injury,4 unlike the assailant in Robinson, who inflicted only one blow. Feli additionally contends that “the evidence was insufficient to establish that [she] conspired to commit aggravated assault [– SBI] against [Hrabolowski] for two reasons: (1) [] Feli did not possess the requisite intent to commit aggravated assault against [Hrabolowski]; and (2) there was no evidence of an agreement between [] Hughes and [] Feli to assault [Hrabolowski].” Brief for Appellant at 24. “To sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent[,] and (3) and overt act was done in furtherance of the conspiracy.” Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000) (citation omitted); see also 18 Pa.C.S.A. § 903(a). The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a 4 Moreover, after Feli ceased striking Hrabolowski on his forearms, she proceeded to strike Szwaczkowski multiple times with her bike lock on his head and back. -7- J-A23001-15 conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators[,] sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy. Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citation omitted). Stated differently, an “agreement to commit an unlawful act … may be proved inferentially by circumstantial evidence, i.e., the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators.” Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013) (citation omitted). As discussed above, the evidence was sufficient to sustain the trial court’s finding that Feli possessed the requisite intent to commit aggravated assault – SBI on Hrabolowski. Accordingly, we limit our discussion to whether the evidence established an agreement between Feli and Hughes to assault Hrabolowski. See Hennigan, supra. Feli argues that “[t]he ‘mere association’ between [] Feli and [] Hughes is insufficient to establish a ‘common understanding’” between them to assault Hrabolowski. Brief for Appellant at 26 (citing Commonwealth v. Davenport, 452 A.2d 1058, 1061 (Pa. Super. 1982) (stating that -8- J-A23001-15 “[r]egardless of the type of proof advanced by the Commonwealth, [] proof of a common understanding among the alleged co-conspirators is an indispensable element of the crime.”) (citation omitted)); see also Brief for Appellant at 27 (asserting that there was no evidence of “any actual agreement or plan between [] Feli and [] Hughes[.]”) (emphasis in original, quotation marks omitted). According to Feli, “[t]he Commonwealth’s evidence established only ‘that a brawl occurred in which [the defendants] were participants. This, however, does not in itself demonstrate the existence of a conspiracy.’” Id. at 28 (brackets in original) (quoting Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa. 1982)); see also Brief for Appellant at 28 (wherein Feli argues that her conspiracy conviction cannot stand based upon Kennedy). The trial court addressed Feli’s challenge to her conspiracy conviction in its Opinion, concluding that the circumstantial evidence was sufficient to establish a criminal understanding between Feli and Hughes. See Trial Court Opinion, 10/21/14, at 11-13. We agree with the trial court’s conclusion and analysis, which is supported by the record, and affirm on this basis with regard to Feli’s challenge to her conspiracy conviction. As an addendum, we find Kennedy to be factually distinguishable from the instant case, and unavailing to Feli. In Kennedy, the defendant and his friend had a verbal argument with the victim, “and [] this argument immediately escalated into a violent confrontation in which defendant and [his friend] inflicted beatings upon [the victim.]” Kennedy, 453 A.2d at -9- J-A23001-15 930. The defendant was convicted of, inter alia, criminal conspiracy. Id. at 929-30. On appeal, the defendant raised a sufficiency challenge to his conspiracy conviction, asserting that there was no evidence of an agreement between the defendant and his friend to assault the victim. Id. at 929. This Court agreed, holding as follows: [T]he Commonwealth’s evidence clearly established that a brawl occurred in which defendant and [his friend] were participants. This, however, does not in itself demonstrate the existence of a conspiracy. … [T]he evidence in the light most favorable to the Commonwealth reveals[] a mere association between defendant and [his friend] …, along with their simultaneous participation in the assault upon [the victim]. Nothing in the relation, conduct, or circumstances of the parties, however, is indicative of there having been an agreement, explicit or implicit, as to commission of the assault. … These events [were] perfectly consistent with the presumption that defendant and [his friend] acted independently and spontaneously[.] Id. at 930 (emphasis in original). Unlike in Kennedy, the evidence in the instant case, viewed in the light most favorable to the Commonwealth, showed more than a “mere association” between Feli and Hughes. Feli, Hughes’s paramour, knew that Hughes had smashed the side view mirror of Hrabolowski’s vehicle during the initial encounter with Hrabolowski. She subsequently willingly joined in the assault initiated by Hughes upon encountering the victims the second time. Therefore, unlike in Kennedy, the assault in this case did not “immediately escalate[] into a violent confrontation” following an argument, and Feli and Hughes did not act “independently and spontaneously.” - 10 - J-A23001-15 Next, we will address Feli’s remaining two issues together, as they are related. In these issues, Feli asserts that there was insufficient evidence presented at trial to sustain her two convictions of aggravated assault – DW, concerning her attacks on Szwaczkowski and Hrabolowski, respectively. See Brief for Appellant at 35-41. The Crimes Code provides that a person is guilty of aggravated assault – DW if she “attempts to cause or intentionally or knowingly causes bodily injury[5] to another with a deadly weapon[.]” 18 Pa.C.S.A. § 2702(a)(4) (footnote added). A “deadly weapon” is defined as “[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.” 18 Pa.C.S.A. § 2301 (emphasis added). In discussing what constitutes a deadly weapon for purposes of application of the deadly weapon enhancement for sentencing purposes, this Court observed as follows: “[I]tems not normally classified as deadly weapons can become so based upon their use under particular circumstances.” Commonwealth v. Rhoades, 2010 PA Super 204, 8 A.3d 912, 917 (Pa. Super. 2010) (intact glass bottle qualified as a deadly weapon). We found many examples in our cases: ... Commonwealth v. Scullin, 414 Pa. Super. 442, 607 A.2d 750 (Pa. Super. 1992) (tire iron thrown at victim was a deadly weapon); Commonwealth v. Cornish, 403 Pa. Super. 492, 589 A.2d 718, 721 (Pa. Super. 1991) (fireplace poker used to strike victim constitutes a deadly weapon); Commonwealth v. 5 Bodily injury is defined as “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301. - 11 - J-A23001-15 Brown, 402 Pa. Super. 369, 587 A.2d 6, 7 (Pa. Super. 1991) (saw used to stab victim was a deadly weapon); Commonwealth v. Chapman, 365 Pa. Super. 10, 528 A.2d 990 (Pa. Super. 1987) (straightedge razor placed at the face of an individual is a deadly weapon). Commonwealth v. Buterbaugh, 91 A.3d 1247, 1268 (Pa. Super. 2014) (en banc).6 Feli challenges her conviction of aggravated assault – DW (concerning Hrabolowski), asserting that the trial court erred in determining that the metal bike lock that she used in the assaults met the statutory definition of a “deadly weapon.” Brief for Appellant at 30-31 (quoting 18 Pa.C.S.A. § 2702(a)(4), and arguing that “Feli [did not use] her bike lock in a manner which was ‘calculated or likely to produce death or serious bodily injury.’”).7 Additionally, Feli asserts that the evidence was insufficient to sustain her conviction based upon a conspiracy theory of liability. See Brief for Appellant at 33-34. Feli relies upon the decision in Kennedy, supra, asserting that there was no evidence that she had entered into an agreement with Hughes to assault Hrabolowski. Brief for Appellant at 33 (quoting Kennedy, 453 A.2d at 930, and arguing that “it is not enough for the Commonwealth to simply demonstrate that [] Feli came to [] Hughes’[s] aid in the course of a fight, because ‘persons do not commit the offense of 6 In Buterbaugh, the Court noted that “[t]he Crimes Code provides an almost verbatim definition of deadly weapon as the one set forth in the Sentencing Guidelines[.]” Buterbaugh, 91 A.3d at 1268. 7 In support of this claim, Feli essentially restates her arguments advanced in connection with her first issue, discussed supra. Brief for Appellant at 31- 32. - 12 - J-A23001-15 conspiracy when they join into an affray spontaneously, rather than pursuant a common plan, agreement, or understanding.’”). Regarding her aggravated assault – DW conviction pertaining to Szwaczkowski, Feli argues, in relevant part, as follows: At trial, not a single witness testified to seeing [] Feli strike [Szwaczkowski] with a bike lock. [Hrabolowski] – the victim in the best position to observe the fight – testified definitively that he did not see [] Feli strike [Szwaczkowski] at any point. [] Feli’s conviction on this count was based entirely on [Szwaczkowski’s] testimony that, while he was being attacked by [] Hughes, he thought that he felt “steel” hit him from behind, and assumed it was [] Feli striking him with her bike lock. However, [Szwaczkowski] acknowledged that he never saw [] Feli strike him. … [T]he allegation that [] Feli struck [Szwaczkowski] during this fight was premised entirely on conjecture. Brief for Appellant at 35-36 (emphasis in original, citations to record and paragraph break omitted); see also id. at 35 (citing Commonwealth v. Garrett, 222 A.2d 902, 905 (Pa. 1966) (stating that “evidence to convict an accused of a crime must be something more than evidence that merely raises a suspicion of guilt. The inference of guilt must be based on facts and conditions proved; mere conjecture or surmise is not sufficient.”) (emphasis supplied by Feli)). Finally, as in Feli’s above-discussed challenge to her conviction of aggravated assault – DW (concerning Hrabolowski) based on a conspiracy theory of liability, she raises the same claim in connection with her conviction as to Szwaczkowski. See Brief for Appellant at 37-41. In its Opinion, the trial court addressed Feli’s claims and the applicable law, concluding that the evidence was sufficient to sustain both of Feli’s - 13 - J-A23001-15 convictions of aggravated assault – DW. See Trial Court Opinion, 10/21/14, at 14-18; see also Buterbaugh, supra (collecting cases ruling that objects not normally classified as deadly weapons became so based upon their use under particular circumstances). We agree and affirm based upon the trial court’s Opinion with regard to Feli’s claims. See Trial Court Opinion, 10/21/14, at 14-18. Because we conclude that the evidence was sufficient to convict Feli beyond a reasonable doubt of all of the charges against her, we affirm her judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/24/2015 - 14 - rl :J"- .l';;2 3 oo l - , s· Circulated 08/31/2015 02:46 PM IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT ALLEGHENY COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION v. WILLIAM HUGHES, CC No. 201209919 Defendant .. :, . COMMONWEALTH OF PENNSYLVANIA, v. SHERRYL FELI, Defendant. OPINION OF THE COURT Honorable Beth A. Lazzara Allegheny County Courthouse 436 Grant Street Pittsburgh, PA 15219 Counsel of Record: For the Defendants: A. Kayleigh Shebs, Esq. Counsel for William Hughes Daniel J. Eichinger, Esquire Counsel for Sherryl Feli · For the Commonwealth: Vd.AtNnO:) AN3rl;;)tl1W ,,t_(o1s11110 1wr1rm:10 · Office of the District Attorney so~f)o.3tlJhlnoJ AD ~n31 of Allegheny County 400 Allegheny County Courthouse Pittsburgh, PA 15219 ', .. ' -. {..·. .' :- r·, Circulated 08/31/2015 02:46 PM Circulated 08/31/2015 02:46 PM ,, ~ '. . ( ...... Circulated 08/31/2015 02:46 PM Circulated 08/31/2015 02:46 PM driver side view mirror, breaking it. (N.T. 17-18, 39-40). Mr. Hrabolowski asked Defendant Hughes why he broke his mirror. (N.T. 18). In response to the question, and as Mr. Hrabolowski approached Hughes, Defendant Hughes got off his bike and began swinging the lock at Mr. Hrabolowski, coming within two (2) to three (3) feet of him, before leaving the area. (N.T. 18-19). Mr. Hrabolowski immediately called the police and reported what had happened. (N.T. 19-20, 41). Although he was told to wait for the police to arrive, Mr. Hrabolowski decided to drive to his nearby apartment to have his roommate accompany him when he spoke with the police. (N.T. 20-21, 44-45). As he was heading home, Mr. Hrabolowski was again confronted by Defendant Hughes, who got off his bicycle and again approached Mr. Hrabolowski, waving his bicycle lock at him. (N.T. 44-46). Mr. Hrabolowski picked up his roommate, the second victim, John Szwaczkowski, at their home and then headed back towards the post office. (N.T. 22-23, 47-48). As he was driving towards the post office, he saw the Defendants on their bicycles. (N.T. 24, 48). Mr. Hrabolowski stopped his car, opened the car door, and had his leg out to exit, while telling the Defendants that they needed to stay where 5 t) Circulated 08/31/2015 02:46 PM .... -· they were because the police were on their way. (N.T. 23-26). As Mr. Hrabolowski was telling the Defendants to remain until the police arrived, Defendant Hughes began approaching him, again swinging the bike lock. (N.T. 26, 98-101). As Defendant Hughes got closer to the vehicle, Mr. Szwaczkowski, who had previously exited the car and had been standing next to the open passenger door, came around the back of the vehicle to tell Mr. Hrabolowski to remain in the vehicle. (N.T. 26-27, 70-71, 101). Before he moved to the driver's side of the vehicle, Mr. Szwaczkowski saw that both Defendants had bike locks in their hands, (N.T. 70, 98-101). As Mr. Szwaczkowski was turned toward Mr. Hrabolowski to tell him to remain in the car, Defendant Hughes struck Mr. Szwaczkowski on the back of the head with the bike lock. (N.T. 28, 71-72, 102-103). Mr. Szwaczkowski stumbled against the car and eventually fell to the ground on the other side of the car. (N.T. 28, 72-73, 103-104). As Defendant Hughes stood over him with his bike lock, appearing ready to strike him again, Mr. Hrabolowski grabbed Defendant Hughes' bike lock in an effort to prevent Defendant Hughes from striking his friend again. (N.T. 28, 73). As he was holding onto the bike lock in Defendant Hughes' hands, Defendant Feli began to strike him on his arms, attempting to break Mr. Hrabolowski's grip on Defendant .. 6 CJ I,. i .. - \ Circulated 08/31/2015 02:46 PM Hughes' bike lock. (N.T. 28-30). Mr. Hrabolowski testified that he suffered bruising on his arms as a result of being struck by Defendant Feli's bike lock. (N.T. 30-31). Defendant Hughes, as he straddled his bicycle, struck Mr. Szwaczkowski in his ribs repeatedly with his front tire. (N.T. 32, 73, 105-108). Defendant Feli also used her bike lock to strike Mr. Szwaczkowski in the shoulder, neck and head as he lay on the ground. (N.T. 74-75, 109, 117). As Mr. Szwaczkowski struggled to free himself, he bit Defendant Hughes in the leg, after which the assault abruptly stopped, and the Defendants fled the area on their bicycles. (N.T. 32, 75-76, 108-109). John Szwaczkowski was taken from the scene by medics to Mercy Hospita I, where he was admitted for four ( 4) days, having suffered a concussion, a laceration on his head that required four ( 4) staples to close, five (5) broken ribs and other bruising. (N.T. 77-78). Photographs of his injuries, taken while he was at the hospital, were admitted into evidence. (See Commonwealth Exhibits 5-30). This court would also note that the injury to Mr. John Szwaczkowski's head was clearly visible to, and easily noticed by, this court when Mr. Szwaczkowski testified during the non-jury trial, a fact mentioned by 7 u {. Circulated 08/31/2015 02:46 PM the court during the sentencing of each Defendant. (See Hughes Sentencing Transcript, 7-S;Feli Sentencing Transcript, 20). The Defendants testified that they were simply defending themselves from the victims. (N.T. 142-144, 206-208). Both Defendants agreed that Defendant Hughes' bike lock was nine (9) inches in length and made of metal and that Defendant Feli's lock was seven (7) inches in length and also made of metal. (N.T. 152, 215). Defendant Feli denied ever striking anyone with a bike lock, claiming that her only involvement was when she punched Mr. Hrabolowski in the arms because he would not let go of her bicycle. (N.T. 146-150). Despite the Defendants' claims that they acted in self-defense, neither Defendant Feli nor Defendant Hughes called the police until four ( 4) days after this incident. (N.T. 149). Both Defendants challenged the sufficiency of the evidence and the weight of the evidence. Before turning to the specific offenses, the court would note that the well-established test for a challenge to the sufficiency of the evidence is whether the evidence, taken in the light most favorable to the Commonwealth as verdict winner, establishes each and every element of the offenses charged beyond a reasonable doubt. Commonwealth v. Noel Matos Montalvo, 956 A.2d 926, 932 8 U l' . Circulated 08/31/2015 02:46 PM (Pa. 2008). The Commonwealth is entitled to all reasonable inferences from the evidence, and it must be remembered that credibility determinations are for the fact finder. A challenge to the credibility of a witness is not a basis for a claim that the evidence was insufficient. A fact-finder is free to believe some, all or none of the testimony of any witness presented by either party and to accept or reject any evidence submitted by either party. Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007). When reviewing a claim that the verdict was against the weight of the evidence, it must be remembered that "[t]he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the jury's verdict if it is so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001). When a judge sits as fact-finder in a non-jury trial: [A] judge's role ... is not equivalent to his or her role with respect to post-trial motions. During trial, the province of a trial judge sitting without a jury is to do what the jury is required to do, namely, consider all the evidence; reconcile contradictions and discrepancies in the testimony, if possible; dismiss what is incredible; and, from all that is .··-. 9 U Circulated 08/31/2015 02:46 PM presented, assemble a logical, continuous account which rings with verisimilitude, appeals to reason and convinces the judgment that the controverted event occurred in that and in no other manner. Commonwealth v. Lemons, 404 Pa. 263, 268, 171 A.2d 785, 788 (1961). With respect to post-trial motions, however, the trial judge's role is to consider and rectify, if necessary, alleged trial errors. Commonwealth v. Nock, 414 Pa.Super. 326, 333, 606 A.2d 1380, 1383 (1992). When considering a post-verdict motion in arrest of judgment or the granting of a new trial, "the trial court cannot alter the verdict based upon a redetermination of credibility or a re-evaluation of evidence." Id. at 334, 606 A.2d at 1384. Commonwealth v. Johnson, 631 A.2d 639, 643 (Pa. Super. 1993). Accordingly, in assessing a challenge to the weight of the evidence, a judge may not revisit credibility determinations it made when rendering its verdict and may not re-weigh the evidence. COUNT 4- CRIMINAL CONSPIRACY To sustain a conviction for criminal conspiracy, the Commonwealth must prove, beyond a reasonable doubt, the presence of the following elements: 1) an intent to commit or aid in an unlawful act; 2) an agreement with a co-conspirator; and 3) an overt act in furtherance of the conspiracy. 18 Pa. C.S.A. § 901. Because it is difficult to prove an explicit or formal agreement to commit an unlawful act, such an act may be proved inferentially by circumstantial evidence, i.e. the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators. Commonwealth v. Galinves, 786 A.2d 1004, 1010 (Pa. Super. 2001). 10 U ' i Circulated 08/31/2015 02:46 PM The Defendants contend that the evidence was insufficient to establish the existence of a conspiratorial agreement. They also claim the verdict was against the weight of the evidence. Neither claim has any merit. While there was no direct evidence of a conspiratorial agreement between the Defendants, the Commonwealth introduced sufficient circumstantial evidence to support a conviction for conspiracy. The law is clear that: Circumstantial evidence can include, but is not limited to, the relationship between the parties, the knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. Commonwealth v. French, 396 Pa. Super.436, 578 A.2d 1292, 1294 (1990). These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail. Id. Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa. Super. 2013). While it is true that there was no evidence of an explicit or stated agreement between the parties, the evidence clearly established that they were jointly participating in this crime and that there was a tacit understanding between them. The evidence proved that there was an association between these Defendants and that they were together before, during, and after the two (2) incidents involving 11 iJ· '- ... { 1, -, \ . Circulated 08/31/2015 02:46 PM these victims. The evidence also established that both had knowledge of the offenses committed by the other conspirator. Defendant Feli was present when Defendant Hughes knocked the mirror off of Mr. Hrabolowski's vehicle. (N.T. 17-18). When the Defendants encountered the victims again, Defendant Feli was present when Defendant Hughes began the assault on the two (2) victims. (N.T. 24-26). She then joined him in the assault, striking John Hrabolowski on the arms to break his grip on the bicycle lock Hughes was using in the assault (N.T. 28-30) and then striking John Szwaczkowski, the second victim, about the head and neck as he lay on the ground attempting to defend himself from Defendant Hughes' attack. (N.T. 74-75, 109, 117). Also, the Defendants left the scene of the attack together. (N.T. 32-33). These facts were sufficient to establish a criminal conspiracy between the Defendants in this matter, with the object of that conspiracy being the assault on these victims. In Commonwealth v. French, 578 A.2d 1292, 1294 (Pa. Super. 1990), the Superior Court found the evidence sufficient to prove conspiracy to commit aggravated assault where the appellant and a group of relatives and friends approached the victim together, knocked the victim to the ground, continued to beat the victim and attacked the 12 u — 13 — C-·. Circulated 08/31/2015 02:46 PM Pol Q(\J ")~· police when they arrived. Similarly, in Commonwealth v.-Polen, T A.3d 518, 519-520 (Pa. Super. 2011). The Superior Court affirmed a finding that the evidence was sufficient to support an aggravated assault conviction where the appellant and a group of individuals approached the victims as a group, battered the victim's face, knocking out a tooth, and fled the scene together. In neither of those cases was there evidence of a stated or explicit agreement; the agreement was inferred from the circumstances. The facts in this case are markedly similar. The Defendants were together during the initial encounter between the victim and John Hrabolowski. (N.T. 14-16). They remained together when they encountered him and the second victim a few minutes later (N.T. 24-26), and both participated in the assaults on both victims, assisting one another in doing so. (N.T. 28-30, 32, 73-75). Both also fled the scene of the attack together. (N.T. 32-33). This was sufficient to prove the conspiratorial agreement and the required shared intent. The actual assaults were clearly the overt acts. Accordingly, the challenge to the sufficiency of the evidence as to the charges of Criminal Conspiracy was properly rejected by this court. Circulated 08/31/2015 02:46 PM Similarly, the challenge to the weight was also properly rejected. This court's verdict turned on an assessment of the credibility of the witnesses, an assessment that was unfavorable to the Defendants. To put it simply, where the testimony of the Defendants conflicted with the testimony of the victims, this court believed the testimony of the victims over that of the Defendants. This court is not only without the power to revisit credibility determinations, it would not, if it had that power, change them. The court found the victims to be believable and credible, whereas the testimony of the Defendants lacked that "ring of truth" necessary for this court to believe their testimony. The verdict was not against the weight of the evidence as to the charge of criminal conspiracy. COUNTS 2 & 3 AGGRAVATED ASSAULT- ASSAULT WITH A DEADLY WEAPON It is axiomatic that a defendant who is not a principal actor in committing a crime may, nevertheless, be liable for the crime if he was an accomplice of the principal actor. Commonwealth v. Bradley, 392 A.2d 688, 690 (Pa. Super. 1978). A defendant can also be liable for the acts of another by virtue of their conspiracy. "Once the trier of fact finds that there was an agreement and the defendant intentionally entered into the agreement, that defendant may be liable for the overt 14 u Circulated 08/31/2015 02:46 PM acts committed in furtherance of the conspiracy regardless of which co-conspirator committed the act." Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004). Accordingly, either Defendant here can be held criminally liable for the acts of the other Defendant if those acts were done in furtherance of the criminal conspiracy. Both Defendants contend that the evidence was insufficient as to the Aggravated Assault charges found at counts 2 and 3. Count 2 charged Aggravated Assault -Assault with a Deadly Weapon as to John Hrabolowski, while count 3 charged the same as with regard to John Szwaczkowski. Turning first to Count 2, the evidence established that Defendant Feli struck this victim several times on his arms with her heavy, metal bicycle lock. (N.T. 28-30, 152). Mr. Hrabolowski suffered pain and bruising in the areas where he was struck. (N.T. 30-31). The lock constituted a deadly weapon pursuant to Pennsylvania law, which defines a deadly weapon as "[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." 18 Pa. C.S.A. § 2301 (emphasis added). A 15 U — 16 — f Circulated 08/31/2015 02:46 PM '· heavy blunt object, like a seven (7) · inch long metal bicycle lock, is capable of producing death or serious bodily injury. In this case, a similar lock wielded by Defendant Hughes actually caused serious bodily injury to John Szwaczkowski. (N.T. 77-78; Commonwealth Exhibits 5-30). Obviously, then, Defendant Feli's bike lock was capable of doing the same to Mr. Hrabolowski. The evidence also established that, at minimum, the victim suffered bodily injury. He testified that he suffered substantial pain, and he had bruising on his arms. (N.T. 30-31). In Commonwealth v. ct Goins, 501 A.2d 27k'(Pa. Super. 1985), the Superior Court held that bruising and scratching was sufficient to establish that the victim 3 suffered bodily injury. Accordingly, the evidence was sufficient to prove the Defendant Feli guilty of this offense as a principal. The verdict was also not against the weight of the evidence. Because Defendant Hughes, as a result of his involvement in the criminal conspiracy to assault the victims and as Defendant Feli's accomplice, is responsible for the crimes committed by his co-conspirator in furtherance of their conspiracy, his challenge to the sufficiency and weight of the evidence as to Count 2 is likewise without 3 As the Court will set forth later in this Opinion, the evidence was also sufficient to establish that Defendant Feli attempted to cause serious bodily injury to the victim Hrabolowski when she struck him repeatedly with the bicycle lock. Circulated 08/31/2015 02:46 PM merit. Her assault was in furtherance of the object of the conspiratorial agreement, the assault of the victims. The evidence was also sufficient as to Count 3 as to Defendant 4 Feli both as a principal and as Defendant Hughes' co-conspirator. Because she was Defendant Hughes' accomplice and co-conspirator, she could be found guilty of any act committed by Defendant Hughes in furtherance of the conspiracy. Defendant Hughes struck John Szwaczkowski in the head, causing a skull fracture and concussion and leaving him with a visible indentation in his head. (N.T. 28, 71-72, 77-78, 102-103; Hughes Sentencing Transcript 7-8; Feli Sentencing Transcript 20). Defendant Hughes also struck Mr. Szwaczkowski in the ribs with his bicycle, breaking five of them. (N.T. 32, 73, 105-108, 77-78). This was certainly sufficient to establish his guilt of aggravated assault- assault with a deadly weapon and, because Defendant Feli was his co-conspirator and/or accomplice, it was sufficient to establish her guilt as well. Defendant Feli was also guilty as a principal for her conduct in striking this victim as he lay on the ground. Though she denied striking him with her lock, and Mr. Szwaczkowski admitted that he did 4 Defendant Hughes did not challenge the verdict of guilty at this Count of his information. 17 U ( ' ( \. ' Circulated 08/31/2015 02:46 PM not actually see her do so, the circumstantial evidence was sufficient to prove that she did. The victim testified that he was struck in his back and around his head and neck as he lay on the ground. (N.T. 74-75, 109, 117). The only other person present wielding a bike lock, Defendant Hughes, could not have hit him as he and Mr. Hrabolowski were struggling over control of his bike lock. (N.T. 28, 73). It was a reasonable inference, therefore, that the blows Mr. Szwaczkowski felt came from Defendant Feli. COUNT 1- AGGRAVATED ASSAULT The Defendants both challenge the sufficiency and weight of the evidence as to Count 1, which charged them with aggravated assault under subsection (a)(l). This required proof that the Defendants, through their own actions or through the actions of another for whom they would be legally responsible, attempted to cause, or intentionally, knowingly or recklessly caused serious bodily injury to John Hrabolowski. This victim, John Hrabolowski, was not as seriously injured as John Szwaczkowski. He reported bruises on his arms. (N .T. 30-31). This was not sufficient to establish that he actually suffered serious bodily injury. The fact that the injury was caused by the Defendant 18 [ '"- ) ( Circulated 08/31/2015 02:46 PM "· Feli striking him, repeatedly, with the heavy bike lock, however, was enough to prove an attempt to do so. The Superior Court in Commonwealth v. Eddowes, 580 A.2d 769, 773 (Pa. Super. 1990), observed: "The fact that appellant did not cause any serious injury is irrelevant, as the statute punishes attempts as well as completed assaults. 18 Pa.CS.A. § 2702(a)." To determine whether an assailant possessed the intent to inflict serious bodily injury, the totality of the circumstances surrounding the assault must be considered. Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978). Among the circumstances that can be considered is whether an instrument capable of causing serious bodily injury was used in the attack. Here, a deadly weapon, as has been previously discussed, namely, the bicycle lock, was used in the attack. In Eddowes, supra, the defendant slashed at the victim with a knife, but did not cut him. That behavior was enough to justify his conviction at this same statutory section. Here, the Defendant Feli swung at, and actually struck, the victim with a weapon capable of causing death or serious bodily injury. (N.T. 28-30). She hit him several times, according to the testimony. (N.T. 28-30). In fact, she did so after seeing her co-Defendant strike the other victim with the Circulated 08/31/2015 02:46 PM { ·.·· Circulated 08/31/2015 02:46 PM — 22 — Circulated 08/31/2015 02:46 PM r . Circulated 08/31/2015 02:46 PM score. While a court may consider the age of the offenses that resulted in the prior record score in determining what sentence to impose, the Defendant's claim that the court erred in utilizing those older convictions to calculate the prior record score is without merit. To the extent that the Defendant is claiming that the age of the convictions warranted a lesser sentence, that claim is likewise without merit. These prior convictions were not offenses committed decades ago, when the Defendant was barely an adult; having been born in 1978, he was in his mid to late-twenties when he committed those offenses. They occurred less than ten (10) years prior to this violent incident, and the court gave them proper consideration in formulating the sentence. Defendant Hughes also generally complains that the sentence was an abuse of discretion. He does not explain with any specificity why the sentence was supposedly an abuse of this court's broad sentencing discretion. Defendant Hughes simply states that the sentence imposed did not "properly reflect the nature of the offense, the impact on the victim or the rehabilitative needs of the defendant." Simply mimicking the language of the sentencing code does not provide the court with an explanation for "why" the sentence failed to \-.·- Circulated 08/31/2015 02:46 PM Circulated 08/31/2015 02:46 PM — 26 — Circulated 08/31/2015 02:46 PM — 27 — '· ( \ Circulated 08/31/2015 02:46 PM Defendant Feli. The court did not abuse its discretion when it imposed sentence.' Given that there was sufficient, credible evidence to support the convictions of the Defendants as to all counts, and that this court sentenced in the standard range for both Defendants after considering the severity of the offenses, the impact on the victims, the protection of society and the needs of the Defendants, this court's convictions and sentences of both Defendants should be upheld. BY THE COURT: Date: Footnotes [1] 0 IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT ALLEGHENY COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION v. WILLIAM HUGHES, CC No. 201209919 Defendant. COMMONWEALTH OF PENNSYLVANIA, v. SHERRYL FELI, CC No. 201209920 Defendant. OPINION OF THE COURT This matter involves two defendants, William Hughes and Sherryl Feli. Both Defendants were charged with three (3) counts of aggravated assault and one (1) count of criminal conspiracy. William Hughes was also charged with criminal mischief. Count 1 at each information charged aggravated assault pursuant to 18 Pa. C.S.A. §2702(a)(l), alleging the infliction of serious bodily injury, or an attempt to do so, on victim John Hrabolowski. The second and third counts in each information charged aggravated assault pursuant to 18 Pa. C.S.A. §2702(a)(4), alleging that the Defendants caused bodily injury to the victims, John Hrabolowski (Count 2) and John [2] 0 Szwaczkowski (Count 3), with a deadly weapon. The criminal conspiracy count alleged that the Defendants agreed that they would commit the crime of assault on the victims.1 Finally, Defendant Hughes was charged with criminal mlschler', alleging that he intentionally damaged the property of John Hrabolowski. The Defendants waived their right to a jury trial and proceeded non-jury before this court. On the day of trial, March 7, 2013, they were adjudged guilty at all counts. The Defendant Sherryl Feli was sentenced on May 23, 2013 to not less than twenty-four (24) months nor more than forty-eight ( 48) months of imprisonment at count 1, followed by a consecutive period of probation of seven (7) years, and to no further penalty on the remaining counts. William Hughes was sentenced on July 16, 2013 to not less than seven and one half (7 112) years nor more than fifteen (15) years of imprisonment at count 1, to five (5) years probation at count 2, to become effective upon his parole from the sentence at count 1, and to a consecutive term of eight (8) years probation at count 3. No further penalty was imposed on the remaining counts. Both parties filed post-sentence motions which were denied. Notices of Appeal were timely filed and, pursuant 1 [18] Pa. C.S.A. § 901. 2 18 Pa. C.S.A.. § 3304. l- 3 U to this court's Order, Concise Statements of Errors Complained of on· Appeal were filed by both Defendants. Defendant Hughes challenged the weight and sufficiency of the evidence as to Count 1, Count 2 and Count 4. Defendant Feli challenged the sufficiency and weight of the evidence as to all counts. Both also contended that the sentences imposed constituted an abuse of discretion. Before turning to these claims, it is necessary to review the evidence, taken in the light most favorable to the Commonwealth as the verdict winner. John Hrabolowski testified that on March 26, 2012, as he parked his car outside the Lawrenceville post office, he was verbally confronted by a man he later identified as Defendant Hughes. (N.T. 9- 11, 14-15). Hughes made a derogatory comment about Mr. Hrabolowski's parking. (N.T. 15, 37). After Defendant Hughes made his comment to Mr. Hrabolowski, Mr. Hrabolowski proceeded into the post office. (N.T. 15-16). As he was in the post office, Mr. Hrabolowski observed Defendant Hughes turn his bicycle around and head towards his vehicle. (N.T. 17, 40). As Mr. Hrabolowski left the post office and walked back towards his vehicle, he saw Defendant Hughes grab his heavy steel, D-shaped bicycle lock, approach his vehicle and strike his 4 () [19] lJ bike lock in the head, knocking him to the ground and causing him to bleed profusely. (N.T. 28). She actually witnessed the infliction of serious bodily injury by the heavy bike lock that she wielded before she used her nearly identical bike lock to strike repeatedly at John Hrabolowski in his arms. She did this while he was simultaneously engaged with her co-Defendant, trying to stop further attacks on his roommate, Mr. Szwaczkowski. (N.T. 28-30). The court is satisfied that her repeated blows, with a deadly weapon, were sufficient to prove that her intent was to cause serious bodily injury. As the evidence was sufficient to prove her guilt as a principal for her acts in striking the victim, it was likewise sufficient to prove her co-Defendant guilty of the same offense as her co-conspirator and/or accomplice. The court also does not believe that the verdict was against the weight of the evidence as to either Defendant at this count. SENTENCING Finally, both Defendants have challenged the sentences imposed by this court. Trial courts have broad discretion in setting sentences. Sentencing is a matter vested within the sound discretion of the sentencing judge and will not be disturbed on appeal absent a manifest abuse of discretion. Com. v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). To constitute an abuse of discretion, the sentence / ;· [20] ~ imposed must either exceed the statutory limits or be manifestly excessive. Com. v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 2003). An abuse of discretion is not merely shown by an error in judgment, but rather by establishing 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. Mouzon, supra, at 1128. In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as the court is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance or indifference. Com. v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Where an excessiveness claim is based on a court's sentencing outside of the standard guideline ranges, an appellate court looks, at a minimum, for an indication on the record that the sentencing court understood the suggested sentencing range. Com. v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999). When the court so indicates, it may deviate from the guidelines to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it relates to the impact on the victim and the community, so long as the court also [21] (_~) states the factual basis and specific reasons to deviate from the guidelines. Mouzon, supra, at 1128. Sentencing guidelines are merely advisory, and the sentencing court may sentence a defendant outside of the guidelines so long as it places its reasons for deviation on the record. Com. v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002). In setting a sentence, a court has discretion to run the sentence concurrently with or consecutively to other sentences being imposed. Mouzon, supra, at 1130. The Superior Court has expressed concern that running sentences concurrently as a matter of habit can give a defendant a "volume discount" for separate criminal acts. Com. v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). Defendant Hughes claims that his sentence was an abuse of discretion because his prior record score was calculated using convictions that occurred nine (9) and ten (10) years ago and because the sentence did not "properly reflect the nature of the offense, the impact on the victim or the rehabilitative needs of the defendant." This claim is specious. How a prior record score is calculated is set by statute and regulation. (See 42 Pa. C.S.A. §9721 (b) and 204 Pa. Code §303.1, et seq.) The age of the prior offenses that determine the prior record score is not taken into account in determining that [23] <__J comply with the sentencing code. In Commonwealth v. Bullock, 948 A.2d 818 (Pa. Super. 2008), the court held that, where the defendant claimed that the sentence " ... was unduly harsh given the nature and the circumstances of the case ... [and] was inconsistent with the Sentencing Act which provides for the balancing of the welfare of the community with the rehabilitative needs of the Appellant ... ," failed to preserve, for appellate review, a challenge to the discretionary aspect of the sentence. The Defendant's claim here similarly fails to explain how the court abused its discretion. Other than the incorrect claim that the court should not have considered nine (9) and ten (10) year old convictions in calculating his prior record score, Defendant Hughes has cited to no specific provision of the sentencing act this court supposedly violated. Accordingly, the sentencing claims should be considered waived. To the extent that the claims are not deemed waived, the court set forth, at length, on the record, why it imposed the standard range sentence it did. (Hughes' Sentencing Transcript, 24-28). The court could very well have imposed standard range sentences at all but one of the other counts, but, instead, imposed probationary sentences. The court is satisfied that the sentence imposed on the Defendant Hughes was the appropriate sentence given the severity of the [24] l~----:.,)' offenses, the impact on the victim and the rehabilitative needs of the Defendant. Defendant Feli claims that court failed to properly consider the factors required by the sentencing code. The record of the trial and sentencing hearing belies this claim. The suggestion that Defendant Feli had a "limited role" in the incident is contrary to the facts that the Commonwealth established at trial. While Defendant Feli described her role as limited, this court, in rendering its verdict, concluded otherwise. She struck both victims with her bicycle lock, hitting Mr. Hrabolowski repeatedly in the arms and hitting Mr. Szwaczkowski in his back, neck and head. She assisted her co-Defendant in his assaults on both victims. The Defendant's insistence that she played a "limited role" in these assaults when she spoke at the sentencing hearing, contrary to the- evidence presented at trial and the verdicts this court rendered, was a large factor in causing this court to impose the sentence it did. The court explained: THE COURT: I've been tossing around sentences in my mind for the last two weeks for you. Some ranged from things that you would very much like, to some things you would not much like. My sort of Jina I decision is I always need to hear what people say at the time of sentencing. And what you have said today, quite frankly, to me does not err on the side of giving you time served and letting you go back to Connecticut at this point in time. Because I don't think you fully realize what you did in this situation. I don't think you fully comprehend your actions here. You ,fr. [25] ,..,.,. )' weren't a puppet on a string. You weren't a programmed robot. You are a person who has free will, who is able to exercise that free will to do the right thing. And you failed to do that here today and on that day. (Feli Sentencing Transcript, 23-24). The court properly considered this Defendant's substantial role in this incident. (Feli Sentencing Transcript, 19-24). The court also considered the impact on the victims and the need for the protection of society, as well as the rehabilitative needs of Defendant Feli. The harm to each victim was considered by the court and mentioned by the court at the sentencing hearing. The court also noted that it had received, read and considered several letters provided on the Defendant's behalf. The availability of rehabilitative programs at the state prison was also discussed. The minimum sentence of incarceration imposed at Count 1, twenty-four (24) months, was near the bottom of the standard range of twenty-two (22) to thirty-six (36) months. No other sentence of incarceration was imposed on the other counts, even though some of those involved a second victim. The court properly weighed the statutory sentencing factors and imposed a sentence that was consistent with the protection of society, the severity of the offense, the impact of the offense on the victims and the rehabilitative needs of