J-S12037-26 2026 PA Super 212
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON BER COREY-MCCOY :
:
Appellant : No. 1503 EDA 2025
:
Appeal from the Judgment of Sentence Entered April 30, 2025
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004821-2023
BEFORE: McLAUGHLIN, J., SULLIVAN, J., and FORD ELLIOTT, P.J.E. *
OPINION BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 23, 2026
Appellant, Brandon Ber Corey-McCoy, appeals from the judgment of
sentence imposed by the Court of Common Pleas of Delaware County after a
jury found him guilty of attempted murder, assault of a law enforcement
officer by discharge of a firearm, aggravated assault, attempted burglary, and
firearms not to be carried without a license.1 Appellant challenges the trial
court’s ruling on the scope of cross-examination of a Commonwealth witness,
the sufficiency of evidence for most of his convictions, and the discretionary
aspects of his sentence. Upon careful review, we affirm.
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901(a)/2502(a), 2702.1(a), 2702(a)(1), 901(a)/3502(a)(1)(ii), and 6106(a)(1), respectively.
J-S12037-26
On September 22, 2023, Appellant attempted to break into an occupied
residence. See N.T. Trial, 2/4/25, at 15-16, 23. When responding police
officers arrived, Appellant fired multiple shots at an officer, who injured
himself while falling to avoid the gunshots, before fleeing the scene. See id.
at 48-51. Appellant was apprehended shortly thereafter. See id. at 149-51.
That same day, Appellant was charged with eleven counts of violating the
Crimes Code, and all charges were held for trial following a preliminary
hearing. See Bills of Information, 9/22/23; N.T. Preliminary Hearing,
10/11/23, at 71-72. On February 3, 2025, the Commonwealth proceeded on
six counts, including the five above-reference offenses and resisting arrest, 2
in a four-day jury trial. See N.T. Trial, 2/3/25, at 8-11.
The evidence at trial established that, on September 22, 2023, Alex
Rogan was home with his grandmother at 118 Terrace Avenue (“Terrace
Avenue”) in Upper Darby, Pennsylvania. See N.T. Trial, 2/4/25, at 6-7.3 At
approximately 1:00 a.m., Rogan received a notification from his Blink camera
system4 which showed an individual trying to get into the back of his home. ____________________________________________
2 18 Pa.C.S. § 5104.
3 The residence on Terrace Avenue is a two-story, four-bedroom house, and
when facing the property from the street, has a side-yard on the left, a driveway on the right leading to a detached garage, and a backyard with a public park behind it. See N.T. Trial, 2/4/25, at 7. On September 22, 2023, there were two vehicles parked in tandem in the driveway. See id. at 13.
4 The Blink camera system senses motion and sends the user a notification to
their cellphone. See N.T. Trial, 2/4/25, at 14. The notification shows a video and then the user can open the Blink application (“Blink App”), to watch a live feed. See id.
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See id. at 14-15. Rogan opened his Blink application on his cellular phone and
observed an individual, wearing a hoodie and jeans, banging on the back door
of the home, and trying to get in. See id. at 15. Then, Rogan grabbed his rifle
and called 911 dispatch. See id. at 16.
Rogan testified that he continued to observe the individual via the Blink
camera system and spoke to a 911 dispatcher. See N.T. Trial, 2/4/25, at 16-17; Commonwealth Trial Exhibit C-14 (911 Call). Shortly after Rogan called
911, police arrived at his home in the front driveway. See N.T. Trial, 2/4/25,
at 18. Rogan noted that the Blink camera showed that the individual switched
from trying to get into Rogan’s house to hiding from the police. See id. at 17-19.5 The 911 dispatcher instructed Rogan to unarm himself and get his
grandmother, then proceed to the front door of his house with his hands up.
See id. at 25. Ultimately, Rogan and his grandmother were removed from the
house. See id. at 26.
Bill Green, a police detective from the Upper Darby Township Police
Department, testified about the incident. See N.T. Trial, 2/4/25, at 37. At the
time, Green was an officer in a marked patrol unit, and he was on duty when
he responded to the 911 dispatch for Terrace Avenue. See id. He testified
that the 911 call “originally went out as a prowler in a backyard lurking
5 At trial, the Commonwealth entered into evidence two clips of the Blink camera system videos and played them for the jury. See N.T. Trial, 2/4/25, at 26; Commonwealth Trial Exhibits C-15 (Blink Camera Footage 1) and C-16 (Blink Camera Footage 2).
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around.” Id. at 39. However, as Officer Green drove closer to the address, the
911 call escalated and he heard a firearm was involved. See id. at 39-40.
Officer Green detailed that he was in full patrol uniform with police
patches on both shoulders. See N.T. Trial, 2/4/25, at 42. He had a police duty
belt on with his firearm, two pairs of handcuffs, and a radio on his shoulder,
along with a baton and yellow taser on the front of his vest. See id.;
Commonwealth Trial Exhibit C-22 (Green Patrol Uniform Photograph). When
he pulled in front of the residence, Officer Green exited his police vehicle and
used a flashlight mounted on his firearm to search for the individual. See id.
at 45-46. Officer Green then cleared both vehicles in the driveway and moved
to the backyard without any cover due to the escalating call. See id. at 48.
The 911 dispatch informed Officer Green that the individual was
breaking a window on the side of the house. See N.T. Trial, 2/4/25, at 48. At
trial, Officer Green identified the individual as Appellant. See id. at 49-51
(stating Appellant was about 5’11’’ and wearing a dark hooded jacket, a blue
surgical mask, and a t-shirt with a light abstract logo). As Officer Green moved
toward the rear of the residence, without cover, Appellant leaned around the
corner and immediately shot at him. See id. at 49. Officer Green noted that
Appellant had a tactical advantage because he remained concealed behind the
corner of the residence and waited until Officer Green was out in the open
before firing. See id.
According to Officer Green, Appellant fired at least three to four
gunshots at him. See N.T. Trial, 2/4/25, at 50. Although Officer Green was
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able to reach cover alongside the residence, he fell and injured himself in the
process. See id. He explained that he was bleeding and having difficulty
walking, so he decided to disengage from the gunfight and retreat to the
street. See id. Officer Green confirmed that he was not hit by the gunshots,
but sustained injuries to his knee, back, and hand while fleeing. See id. at 51.
As a result of his injuries, Officer Green was out of work for nearly a year and,
at the time of trial, was still in “intense pain.” Id. at 52. Officer Green further
testified that he was wearing a body-worn camera during the incident and the
Commonwealth played the video for the jury. See id. at 56-62;
Commonwealth Trial Exhibit C-32 (Officer Green Body-worn Camera Footage).
Mark Dehoratious, a patrol sergeant of the Upper Darby Township Police
Department, testified that he responded to the 911 dispatch on Terrace
Avenue. See N.T. Trial, 2/4/25, at 73, 76. He confirmed that he was wearing
his police uniform, a radio on his shoulder, and a standard duty belt with his
firearm, handcuffs, and keys visible. See id. at 73, 77. When he arrived and
exited his police vehicle, he heard several gunshots. See id. Briefly ducking,
the sergeant drew his firearm and moved toward the driveway where he
observed two officers, one being Officer Green. See id. at 77.
Sergeant Dehoratious started covering the officers exiting the driveway
with his firearm and, afterwards, the three men hid behind the rear of a parked
car. See N.T. Trial, 2/4/25, at 77. Then, Sergeant Dehoratious spoke to Officer
Green, “who had visible injuries to his hand and his knee,” and stated to the
sergeant that “he was in a face-to-face shootout in the back of the house.”
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Id. at 77-78. Sergeant Dehoratious immediately requested the assistance of
a Pennsylvania State Police (“PSP”) helicopter as well as other police
departments to search for the shooter. See id. at 78. As more officers
responded to the scene, they created a perimeter across multiple streets to
prevent anyone from entering or exiting. See id. at 79.
Officer Andrew Jones, a patrol officer and member of the Special
Weapons and Tactics (“SWAT”) team of Haverford Township, testified. See
N.T. Trial, 2/4/25, at 102-03. He said he received a call and responded to
Terrace Avenue to clear the back of the property. See id. at 104. Once the
SWAT team began checking the backyard, Officer Jones testified that another
officer found a handgun on the left side corner of the backyard. See id. at 105
(stating handgun was “near mulch” and “there were basement [] doors.”) The
SWAT team reported their findings to their supervisors and stayed with the
evidence while other officers continued searching. See id. at 105-06. Officer
Jones also testified that he observed “numerous shell casings” and informed
his patrol supervisors. Id. at 108.
Corporal Ian Lloyd, a PSP helicopter pilot, testified that he arrived by
helicopter, at approximately 2:48 a.m., to help locate the shooter. See N.T.
Trial, 2/4/25, at 113-15.6 Corporal Lloyd used 911 to call on scene, locate the
perimeter, and identify the residence on Terrace Avenue. See id. at 116.
6 Corporal Llyod was the tactical flight officer for the incident and assisted the
pilot-in command. See N.T. Trial, 2/4/25, at 115.
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Then, he developed a systematic approach to search the area, which involved
using a forward-looking infrared (“FLIR”) camera to search for a heat source.
See id. at 116-17. Within seven minutes, Corporal Llyod identified a heat
source under a swing set, in a backyard near 215 Wadas Avenue (“Wadas
Avenue”) and informed law enforcement on the ground. See id. at 118-19,
158.7
Philip Stephans, a sergeant for Yeadon Borough, was on the scene and
received the PSP helicopter transmission that Appellant was found at Wadas
Avenue. See N.T. Trial, 2/4/25, at 135, 140, 158. Sergeant Stephans and his
team went to Wadas Avenue and found Appellant laying down with his arms
tucked into his pants under the swing set. See id. at 146. Then, Sergeant
Stephans instructed Appellant to put his arms out by his side and Appellant
did not comply. See id. The police team surrounded Appellant, took his hands
out of his pants, and placed them in handcuffs. See id. at 147. After
determining that Wadas Avenue was an additional crime scene, the police
recovered a white pair of shoes, a cigarette pack, a baseball cap, a water
bottle, a black glove, and a blue surgical mask. See id. at 181-82; see also
Commonwealth Trial Exhibit C-32 (Wadas Avenue Backyard Photograph).
Officer Wilson of the Upper Darby Township Police Department
transported Appellant to the township police station. See N.T. Trial, 2/4/25,
7 The Wadas Avenue was six houses north of Terrace Avenue. See N.T. Trial,
2/4/25, at 158.
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at 212-16. At the police station, Officer Wilson collected clothing from
Appellant including a latex glove, a dark-green jacket, and a black t-shirt with
a white logo. See id. at 217-19; Commonwealth Trial Exhibits C-35 (Latex
Glove Photograph), C-36 (Green Jacket Photograph), and C-37 (Black Shirt
Photograph).
Detective Kevin Finnegan of the Upper Darby Police Department
swabbed Appellant’s hand for gun residue after he was transferred to the
police department. See N.T. Trial, 2/4/25, at 183, 186. He also obtained a
buccal swab for Appellant for a later DNA comparison. See id. at 189. Later,
Detective Finnegan also received information that Appellant was not licensed
to carry a firearm. See id. at 190-91; Commonwealth Trial Exhibit C-34
(Certificate of Non-Licensure).
Detective Robert Marvil of the Upper Darby Police Department testified
that he arrived at the residence on Terrace Avenue and was assigned to crime
scene and evidence processing. See N.T. Trial, 2/4/25, at 233-34. After
photographing the Terrace Avenue and Wadas Avenue crime scenes,
Detective Marvil began collecting the evidence. See id. at 240-46. He
explained that, as he was collecting the evidence, he put on “six or seven”
pairs of black latex gloves so that he would have a fresh pair of gloves for
each piece of evidence. See id. at 246-48.
On cross-examination, defense counsel inquired about the collection
process that Detective Marvil used for the evidence. See N.T. Trial, 2/4/25, at
287-90. The Commonwealth objected twice for speculation, which the trial
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court sustained. See id. at 288-89. After Detective Marvil’s testimony ended,
defense counsel objected to the Commonwealth’s objection for speculation.
See id. at 295-96.
Detective James Reardon, a certified fingerprint examiner employed by
the Delaware County District Attorney Office, also testified. See N.T. Trial,
2/5/25, at 6; Commonwealth Trial Exhibit C-64 (Crime Scene Report). He
received a firearm with six live rounds in it, three brass casings, three silver
casings, and two projectiles. See N.T. Trial, 2/5/25, at 11. Detective Reardon
swabbed all the evidence received and processed the items for possible
collection of fingerprints. See id. at 16-20. He concluded that no fingerprints
were found on the evidence. See id. at 21. However, Detective Reardon also
explained that a glove would “wipe off any suitable fingerprints or wash off
fingerprints where they wouldn’t be suitable to identify a known print.” Id. at
22.
Albert Lattanzi, a forensic scientist employed with the PSP, testified
regarding his analysis of gunshot residue (“GSR”) evidence in his report
prepared during the investigation. See N.T. Trial, 2/5/25, at 102-04
(confirming Lattanzi as expert in GSR analysis); Commonwealth Trial Exhibit
C-72 (Trace Evidence Report).8 Lattanzi explained that GSR particles will ____________________________________________
8 Lieutenant William Sminkui of the Upper Darby Police Department testified
that he personally collected the GSR samples from the evidence collected and used a GSR kit. See N.T. Trial, 2/5/25, at 28, 37-41. Then the GSR kit was transported to the Regional Crime Lab in Lima, Pennsylvania (“Lima Regional Crime Lab”). See id. at 41-42.
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remain on an object until they are removed, however the particles can be
removed easily with another item such as clothing or through washing. See
N.T. Trial, 2/5/25, at 105-06. He detailed that he analyzes GSR samples with
a GSR kit, which is comprised of aluminum stubs with an inch-wide disc with
adhesive on it. See id. at 106. The adhesive is then analyzed for particles that
are consistent with GSR, which are called characteristic particles. See id. at
107.
Lattanzi’s analysis of the GSR kit collected from Appellant revealed
characteristic GSR particles on swabs taken from Appellant’s right hand back
and left palm. See N.T. Trial, 2/5/25, at 112. Lattanzi testified that these
results were consistent with Appellant having discharged a firearm, having
been near the firearm when it discharged, or contacting a surface containing
GSR. See id. He further explained that each of these scenarios were likely to
account for positive GSR results. See id. Positive GSR results were also
obtained from swabs taken from Appellant’s jacket and gloves and the same
conclusions applied to these items. See id. at 113-14. On cross-examination,
Lattanzi acknowledged that GSR tests cannot determine how or when the
residue was deposited on Appellant or the clothing items. See id. at 116.
The Commonwealth established that the police sent the recovered
evidence to the Lima Regional Crime Lab to be swabbed for potential DNA
evidence. See N.T. Trial, 2/5/25, at 83-95. Britinni Andoloro, a forensic DNA
scientist from the PSP Forensic DNA Division, testified that she received the
buccal collection from Appellant and ten other items for DNA analysis. See id.
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at 127-29, 134; Commonwealth Trial Exhibit C-73 (DNA Report). She was
unable to obtain sufficient DNA from the swabs collected from the live rounds,
cartridge casings, and the back-door handle analysis. See N.T. Trial, 2/5/25,
at 136. However, the DNA profile obtained from the firearm, glove, and face
mask matched Appellant’s buccal sample DNA. See id.
The remaining items, including the magazine and rounds, a cut piece
from the face mask, the magazine plate, and a pair of disposable gloves,
contained a mixture of DNA profiles. See N.T. Trial, 2/5/25, at 138-45.
Andoloro explained that DNA analysis identifies the DNA profiles present on
an item but cannot determine how, when, or where the DNA was deposited.
See id. at 153. She further testified that DNA may be transferred from one
item to another, resulting in the same DNA profile corresponding with samples
recovered on multiple items. See id.
Detective Louis Grandizio, an expert in firearms and toolmark
identification, testified that he examined ballistic evidence recovered from the
crime scene. See N.T. Trial, 2/5/25, at 169-73 (stating he is a firearm
examiner with the Delaware County Criminal Investigation Division);
Commonwealth Trial Exhibit C-70 (Ballistic Report). He testified that he used
an impact discharge test, which determines whether the firearm was
accidentally fired or triggered. See N.T. Trial, 2/5/25, at 178-79. Detective
Grandizio concluded that the firearm that was recovered from Terrace Avenue
would not discharge from an impact, instead requiring force to pull the trigger.
See id. at 179. He also examined Officer Green’s firearm and magazine. See
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id. Based on his examination of the two firearms, Detective Grandizio
concluded that four of the fired cartridge cases came from the firearm
recovered at Terrace Avenue and three came from Officer Green’s firearm.
See id. at 182-84.
On February 7, 2025, the jury found Appellant guilty of attempted
murder, assault of a law enforcement officer, aggravated assault, criminal
attempt to commit burglary, and firearms not to be carried without a license.
See N.T. Trial, 2/7/25, at 5-8; Verdict, 2/7/25, at 1-2 (unpaginated).
However, the jury was unable to reach a unanimous verdict as to resisting
arrest, and the trial court declared a mistrial on that count. See N.T. Trial,
2/7/25, at 9. Afterwards, sentencing was deferred for the preparation of a
presentence investigation (“PSI”) report. See id. at 10.
On April 8, 2025, at the sentencing hearing, the Commonwealth
withdrew the resisting arrest count. See N.T. Sentencing Hearing, 4/28/25,
at 4. Then, Officer Green gave a victim impact statement explaining the
ramifications of Appellant’s actions. See id. at 4-15. The trial court heard oral
argument from defense counsel and the Commonwealth for Appellant’s
sentence recommendation. See id. at 15-20. Appellant made a brief
statement thanking his family, the trial court, and defense counsel. See id. at
21. Afterwards, the trial court acknowledged that it considered two letters
offered in support of Appellant, sentencing memoranda from both parties, the
victim impact statement, and the recommendations of the Pennsylvania
Sentencing Guidelines. See id. at 22.
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Appellant was sentenced to twenty to forty years’ for assault on a law
enforcement officer, ten to twenty years of incarceration for attempted
murder, ten to twenty years’ for attempted burglary, and three and one-half
to seven years’ for his firearms not to be carried without a license conviction.
See Order (imposition of sentence), 4/28/25; N.T. Sentencing Hearing,
4/28/25, at 21.9 The trial court ordered that each of these sentences run
9 The imposed sentences were within the aggravated range for attempted murder and above the aggravated range for attempted burglary and firearms not to be carried without a license. Further, for assault of law enforcement officer conviction, Appellant was sentenced to the mandatory minimum term of imprisonment. See 42 Pa.C.S. § 9719.1 (setting a mandatory minimum term of “not less than 20 years” for a conviction under 18 Pa.C.S. §
2702.1(a)). We note that Appellant’s aggravated assault conviction merged with his conviction for attempted murder for sentencing purposes. See N.T. Sentencing Hearing, 4/28/25, at 21-23; Commonwealth v. Anderson, 650
A.2d 20, 24 (Pa. 1994) (holding aggravated assault under 18 Pa.C.S.
2702.1(a) merges with attempted murder for sentencing purposes).
For assault of a law enforcement officer, the mandatory minimum term is two hundred and forty months’ imprisonment. See 18 Pa.C.S. § 9719.1; Guideline Sentence Form (7th ed., amend. 6), 5/7/25, at 1 (noting Appellant’s
“mitigated” and “standard” ranges for a minimum term were “240” months)).
For attempted murder, the recommended standard range is ninety months to one hundred and eight months’ imprisonment, plus or minus twelve months for mitigating and aggravating circumstances. See Guideline Sentence Form (7th ed., amend. 6), 5/7/25, at 2 (noting Appellant’s prior record score is two and the offense gravity score of thirteen); see also 204 Pa. Code § 303.15 (7th ed., amend. 6) (setting the offense gravity score of thirteen for attempted murder); 204 Pa. Code § 303.17(b) (7th ed., amend. 6) (applicable sentencing matrix for an offense involving the use of a deadly weapon).
For attempted burglary in an occupied residence, the recommended standard range is twenty-one to twenty-seven months’ imprisonment, and the
aggravated range is up to thirty-six months. See Guideline Sentence Form (Footnote Continued Next Page)
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consecutively for an aggregate sentence of forty-three and one-half to eightyseven years’ imprisonment. See Order, 4/28/25, at 1; N.T. Sentencing
Hearing, 4/28/25, at 23.
Appellant filed a timely motion for reconsideration of sentence, and the
trial court denied his motion. See Motion for Reconsideration, 5/8/25; Order
(denying Appellant’s motion for reconsideration), 5/19/25. Then, Appellant
filed a timely notice of appeal, and he and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925. See Notice of Appeal,
6/11/25; Rule 1925(b) Order, 7/18/24; Rule 1925(b) Statement, 8/8/24; Trial
Court Opinion, 10/1/25.
Appellant raises the following questions for our review:
I. Whether the trial court erred and abused its discretion by
sustaining the Commonwealth’s objection to defense crossexamination of Detective Robert Marvil regarding his
testimony about best evidence collection practices and
evidence contamination when such answers would not be
(7th ed., amend. 6), 5/7/25, at 3 (noting Appellant’s prior record score of two and the offense gravity score of eight); see also 204 Pa. Code § 303.15 (7th ed., amend. 6) (setting the offense gravity score of eight for attempted burglary); 204 Pa. Code § 303.17(a) (7th ed., amend. 6) (applicable
sentencing matrix for an offense involving the possession of a deadly weapon).
For firearms not to be carried without a license, the recommended standard range is twenty-four to thirty-six months’ imprisonment, and the aggravated range is up to forty-eight months. See Guideline Sentence Form (7th ed., amend. 6), 5/7/25, at 4 (noting Appellant’s prior record score of two and the offense gravity score of nine); see also 204 Pa. Code § 303.15 (7th ed., amend. 6) (setting the offense gravity score of nine for firearms not to be carried without a license where the possessed firearm was loaded); 204 Pa. Code § 303.16(a) (7th ed., amend. 6) (applicable basic sentencing matrix).
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speculative and are based on the training and experience of
the detective as introduced into evidence during the
Commonwealth’s direct examination of this same witness[,]
all in violation of [Appellant’s] due process rights under the
United States and Pennsylvania Constitutions?
II. Whether evidence presented at trial was insufficient to
establish the crimes of attempted murder, assault of [a] law
enforcement officer by discharging of a firearm, aggravated
assault, attempted burglary, and carrying a firearm without
a license because the Commonwealth failed to prove beyond
a reasonable doubt the identity of the individual who
committed these crimes and the evidence does not prove
beyond a reasonable doubt that [Appellant] is the
unidentified man whose actions led to the crimes charged in
this matter?
III. Whether the evidence present at trial was insufficient to
sustain a guilty verdict for attempted murder where the
Commonwealth failed to prove beyond a reasonable doubt
that [Appellant] possessed a specific intent to kill Officer
Green?
IV. Whether the evidence was insufficient to sustain a guilty
verdict for assault of [a] law enforcement officer by
discharge of a firearm where the Commonwealth failed to
prove beyond a reasonable doubt that [Appellant] knew the
individual was a law enforcement officer at the time of the
exchange of gunfire?
V. Whether the evidence presented at trial was insufficient to
sustain a guilty verdict for attempted burglary where the
Commonwealth failed to prove beyond a reasonable doubt
that [Appellant] took a substantial step towards entering the
residence on [Terrace] Avenue or that [Appellant] intended
to commit a crime within the residence on [Terrace]
Avenue?
VI. Whether the evidence presented at trial was insufficient to
sustain a guilty verdict for carrying a firearm without a
license where the Commonwealth failed to prove beyond a
reasonable doubt that [Appellant] carried a firearm
concealed on his person?
VII. Whether the trial court erred as a matter of law and violated
the discretionary aspect[s] of sentencing, specifically the
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requirements of 42 Pa.C.S. §[ ]9721(b) of the Sentencing
Code, in that the trial court’s decision to impose statutory
maximum consecutive sentences raises the aggregate
sentence to a de facto life sentence causing the sentence to
be excessive without justification and where the trial court
did not place sufficient reasons on the record for sentences
in the aggravated range for attempted burglary and carrying
a concealed firearm without a license?
Appellant’s Brief at 4-6 (roman numeral prompts added and unnecessary
capitalizations omitted).
I. Admissibility of Evidence
Appellant, in his first issue, argues that the trial court abused its
discretion when it sustained the Commonwealth’s objections for speculation
to defense counsel’s cross-examination of Detective Robert Marvil regarding
his use of multiple sets of gloves in the evidence collection process, which
Appellant characterizes as a violation of his constitutional right to
confrontation. See Appellant’s Brief at 29-33. We agree with the
Commonwealth that Appellant has waived this argument. See Appellee’s Brief
at 16-19.10
During the cross-examination of Detective Marvil, defense counsel
posed a hypothetical question: “And if somebody was to wear one pair of
gloves and touch three different pieces of evidence, what effect would that ____________________________________________
10 We note the trial court did not find Appellant’s admissibility of evidence issue waived. See Trial Court Opinion, 10/1/25, at 7-8. However, it “is well[-]settled that where the result is correct, an appellate court may affirm a [trial] court’s decision on any ground without regard to the ground relied upon by the [trial] court itself.” Commonwealth v. Lehman, 275 A.3d 513, 520 n. 5 (Pa. Super. 2022) (quotation omitted).
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have on the evidence itself?” N.T. Trial, 2/5/25, at 288. The Commonwealth
objected, arguing that the question was speculative and the trial court
sustained the objection. See id. Five questions later, defense counsel asked,
“So[,] if anybody does it any other way, they’re going to transfer evidence
from —” Id. at 299. The Commonwealth objected again on speculation
grounds and the trial court sustained the objection. See id.
At that time, defense counsel neither made an effort to respond to the
court’s act of sustaining the objections, nor made a proffer as to the value of
the testimony sought. See N.T. Trial, 2/5/25, at 288-89.11 At the conclusion
of the testimony for the day, defense counsel again raised the issue about the
scope of the cross-examination of Detective Marvil, but did not place specific
grounds for the objection to the questioning on the record, stating:
I want to reserve, I suppose, an objection to an objection. I asked
specifically about his experience, Detective Marvil’s experience, if
he knew a thing, and there was an objection there.
…
The objection came to a question where I asked about the process,
his process of putting on the multiple gloves and whether or not
it would cause contamination. It was an objection, I believe as to
speculation. Your Honor granted it…But I want to preserve that. I
disagree, obviously with that.
Id. at 295-96.
11 If the ruling excludes evidence, the moving party must inform the court of
the substance of the evidence by an offer of proof, unless the substance was apparent from the context. Pa.R.E. 103(a)(2).
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Appellant waived any confrontation claim, or any related grounds for
opposing the trial court’s rulings on the Commonwealth’s objections, because
he did not raise his Confrontation Clause argument at trial or state any specific
grounds for this “objection to an objection.” See Commonwealth v. Reed,
347 A.3d 795, 807 (Pa. 2025) (“[D]efendant may not raise a new theory of
relief that he did not present to trial court.”). Issues not raised before the trial
court are waived and cannot be raised for time on appeal. See Pa.R.A.P.
302(a); Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008)
(stating trial courts “must be given the opportunity to correct errors at the
time they are made;” “Even issues of constitutional dimension cannot be
raised for the first time on appeal”). Here, the record demonstrates that
Appellant’s defense counsel did not offer any proof of substantive evidence
that counsel sought through its proposed questions or object based on the
Confrontation Clause. Instead, defense counsel merely disagreed with the trial
court but offered no argument as to why. See N.T. Trial 2/5/25, at 295-96.
Accordingly, we find Appellant has waived his first issue.
II.-IV. Sufficiency of Evidence
In issues two through six, Appellant challenges the sufficiency of
evidence sustaining all his convictions but aggravated assault. See Appellant’s
Brief at 33-45. “A challenge to the sufficiency of evidence presents a question
of law, and as such, the standard of review is de novo and the scope of review
is plenary.” See Commonwealth v. Headly, 242 A.3d 940, 943 (Pa. Super.
2020). Additionally:
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We assess the evidence and all reasonable inferences drawn
therefrom in the light most favorable to the verdict-winner. We
must determine whether there is sufficient evidence to enable the
fact-finder to have found 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
factfinder. In addition, we note that the facts and circumstances
established by the 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.
Commonwealth v. Bowens, 265 A.3d 730, 740-41 (Pa. Super. 2021)
(citation omitted).
II. Identity
Appellant, in his second issue, argues that the Commonwealth failed to
establish his identity as the perpetrator of the shooting. See Appellant’s Brief
at 33-36.
“A victim’s in-court testimony, identifying the defendant as the
perpetrator of a crime, is by itself sufficient to establish the identity element
of that crime.” Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super.
2018) (citations omitted).
[E]vidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
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evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(citations omitted).
Appellant asserts that there is no additional in-court testimony that
independently identifies him as the perpetrator. See Appellant’s Brief at 35.
He thus reasons that the Commonwealth only relied on circumstantial
evidence including ballistic evidence, gunshot residue, and DNA evidence to
prove his identity as the perpetrator, which Appellant contends failed to
establish that he was the individual who fired the weapon or committed the
charged offenses. See id. Accordingly, he argues that the evidence does not
establish beyond a reasonable doubt his identity as the armed intruder and all
his convictions must fail. See id. We disagree.
Upon review, we find that the Commonwealth presented sufficient
evidence to establish Appellant’s identity as the perpetrator. See Bowens,
265 A.3d at 740-41. Officer Green testified that Appellant was the individual
with whom he engaged in the shoot-out. See N.T. Trial, 2/4/25, at 49;
Johnson, 180 A.3d at 478. Additionally, the Commonwealth introduced
surveillance video footage from Terrace Avenue, which allowed the jury to see
the perpetrator, his actions, and his clothing. See N.T. Trial, 2/4/25, at 26;
Orr, 38 A.3d at 874. Officer Green testified that the individual he observed
shooting at him matched the person in the clothing depicted in the surveillance
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footage. See id. at 50. Police subsequently recovered, near the location where
Appellant was apprehended, a blue surgical mask and glove consistent with
those worn by the individual shown in the surveillance video, and the mask
matched the one described with Roger’s 911 description of Appellant . See id.
at 181-82.
In addition, Appellant’s DNA was found on the firearm and glove
recovered from the backyard at Terrace Avenue and forensic evidence
established that the fired cartridge casings fired from that gun were recovered
from the same location. See N.T. Trial, 2/4/25, at 105-08. Further, GSR was
also detected on Appellant’s hands and clothing, supporting the inference that
he recently discharged a firearm. See N.T. Trial, 2/5/25, at 112. We conclude
that, viewed in the light most favorable to the Commonwealth as the verdict
winner, this evidence permitted the jury to conclude beyond a reasonable
doubt that the individual depicted in the surveillance footage was Appellant.
See Bowens, 265 A.3d at 740-41. Therefore, Appellant’s second issue is
meritless.
III. Attempted Murder
Appellant, in his third issue, argues that the evidence presented at trial
was insufficient to sustain a guilty verdict for attempted murder because the
Commonwealth failed to prove beyond a reasonable doubt that he possessed
a specific intent to kill Officer Green. See Appellant’s Brief at 37-39.
A criminal attempt occurs when a person, “with intent to commit a
specific crime, he does any act which constitutes a substantial step toward the
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commission of that crime.” 18 Pa.C.S. § 901(a). “[I]f a person takes a
substantial step toward the commission of a killing, with the specific intent in
mind to commit such an act, he may be convicted of attempted murder.”
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (internal
citation omitted); see also 18 Pa.C.S. § 2502(a). Further, “[t]he
Commonwealth may establish the mens rea required for first-degree murder,
specific intent to kill, solely from circumstantial evidence.” Tucker, 143 A.3d
at 964 (citation omitted).
Relevant to this case, the deadly weapon presumption provides that the
specific intent to kill can be presumed from the defendant’s use of a deadly
weapon on a vital organ. See Commonwealth v. Newton, 318 A.3d 133,
140 (Pa. Super. 2024) (“A factfinder may presume the intent to kill ‘based on
the accused’s use of a deadly weapon on a vital part of the victim’s body,’ or
in the ‘general area in which vital organs are located.’”) (citations omitted).
Our Supreme Court has rejected the notion that the deadly-weapon/vitalbody-part presumption cannot arise unless a vital organ has been struck. In
Commonwealth v. Padgett, 348 A.2d 87 (Pa. 1975), our Supreme Court
noted:
we are not persuaded that it must be shown that the bullet fired
from a revolver, a deadly weapon, initially entered a vital organ
before the inference of specific intent to kill can arise. The firing
of a bullet in the general area in which vital organs are located
can in and of itself be sufficient to prove specific intent to kill
beyond a reasonable doubt.
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Id. at 88; see also Commonwealth v. Jackson, 392 A.2d 1366, 1368 (Pa.
1978) (adopting Padgett’s analysis on this point); Commonwealth v.
Manley, 985 A.2d 256, 272 (Pa. Super. 2009) (same and noting that a
defendant’s “poor aim does not constitute a lack of malice”).
Appellant contends that the Commonwealth failed to prove specific
intent and that the deadly weapon presumption does not apply here because
Officer Green’s injuries were a result of his fall, not gunfire. See Appellant’s
Brief at 38. He relies heavily on Commonwealth v. Predmore, 199 A.3d 925
(Pa. Super. 2018) (en banc). See id. In that case, an en banc panel of our
Court found that the evidence was insufficient to sustain a charge of attempted
murder because the defendant did not shoot a vital organ but instead shot a
victim’s lower leg and there was no verbal indication of defendant’s specific
intent to kill. See Predmore, 199 A.3d at 934. Appellant argues that, like
Predmore, he did not shoot a vital organ, and the Commonwealth did not
proffer any evidence that Appellant verbally indicated, directly or indirectly,
an intent to kill Officer Green. See Appellant’s Brief at 38-39. Therefore, since
the deadly-weapon/vital-body-part presumption did not apply in Predmore,
and the Commonwealth provided no circumstantial evidence here to establish
the mens rea needed for attempted murder, his attempted murder conviction
must fail. See id. at 39. We disagree.
First, Appellant’s contention that the deadly weapon presumption does
not apply is unavailing. See Appellant’s Brief at 38. It is well-settled law in
Pennsylvania that the firing of bullets towards a vital organ can be alone
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sufficient to prove specific intent to kill. See Padgett, 348 A.2d 87 at 88.
Officer Green testified that Appellant fired the first bullet at his head. See N.T.
Trial, 2/4/25, at 49. In fact, the bullet passed close enough to Officer Green’s
head that he heard the bullet “whiz by.” See id. Our Court has held that the
head is vital body part, therefore the jury could infer specific intent to kill from
Appellant’s use of the firearm directed at Officer Green. See Commonwealth
v. Talbert, 129 A.3d 536, 543 (Pa. Super. 2015) (noting that the head is a
vital part of the body). Thus, the deadly weapon presumption applies here.
See Newton, 318 A.3d at 140.
Moreover, we find the surrounding circumstances supported the
inference of specific intent. See Tucker, 143 A.3d at 964. Appellant concealed
himself until Officer Green left his cover and then, when Officer Green was out
in the open, he began shooting. See N.T. Trial, 2/4/25, at 49. Then, Appellant
fired two to three more shots after the first shot apparently missed, rather
than just fleeing or abandoning the encounter after the initial missed shot.
See id. at 50. Therefore, the jury could reasonably infer from the delayed
timing of the attack, and Appellant’s repeated attempts to shoot Officer Green,
that Appellant intended to kill him rather than merely frighten or wound him.
See Bowens, 265 A.3d at 740-41.
Further, Appellant’s reliance on Predmore is misplaced. In Predmore,
the victim was shot twice in the lower legs, and there was no evidence that
the defendant aimed or attempted to strike a vital area of the body. See
Predmore, 199 A.3d at 931-32. On that basis, we distinguished Predmore
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from the above-quoted portion of our Supreme Court in Padgett and our
treatment of Padgett in Manley. See Predmore, 199 A.3d at 933-34. Here,
by contrast, Officer Green testified that Appellant first fired towards his head,
a vital part of the body, and then continued firing at him. See N.T. Trial,
2/4/25, at 49-50. Thus, unlike in Predmore, the evidence permitted this jury
to infer that Appellant intended to inflict a fatal injury. See Predmore, 199
A.3d at 931-34. Accordingly, we find the evidence viewed in the light most
favorable to the Commonwealth as the verdict winner, was sufficient to permit
the jury to conclude that Appellant possessed the specific intent to kill Officer
Green. See Bowens, 265 A.3d at 740-41. Accordingly, Appellant’s third issue
is meritless.
IV. Assault of a Law Enforcement Officer
Appellant, in issue four, argues that the evidence was insufficient to
sustain a guilty verdict for assault of a law enforcement officer by discharge
of a firearm because the Commonwealth failed to prove beyond a reasonable
doubt that he knew the individual he was firing at, Officer Green, was a law
enforcement officer at the time of the exchange of gunfire. See Appellant’s
Brief at 39-41.
“A person commits a felony of the first degree who attempts to cause
or intentionally or knowingly causes bodily injury to a law enforcement officer,
while in the performance of duty and with knowledge that the victim is a law
enforcement officer, by discharging a firearm.” 18 Pa.C.S. § 2702.1(a)(1). The
statute requires proof of the following elements:
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(1) the defendant attempted to cause, or intentionally or
knowingly caused, bodily injury[;] (2) the victim was a law
enforcement officer acting in the performance of his duty[;] (3)
the defendant had knowledge the victim was a law enforcement
officer[;] and (4) in attempting to cause, or intentionally or
knowingly causing such bodily injury, the defendant discharged a
firearm.
Commonwealth v. Landis, 48 A.3d 432, 445 (Pa. Super. 2012) (en banc)
(citation omitted).
Appellant specifically argues that the Commonwealth failed to prove the
third prong of Landis, that he knew that Officer Green was a law enforcement
officer. See Appellant’s Brief at 40; Landis, 48 A.3d at 445. He contends that
the evidence demonstrated the incident occurred in the early morning hours
in a dark, unilluminated area, and that Officer Green arrived without activating
the lights or sirens from his police vehicle. See Appellant’s Brief at 40.
Appellant further emphasizes that neither Officer Green nor the other police
officers announced their presence as law enforcement before or after the
gunfire. See id. at 40-41. Although the officers wore uniforms and had radios,
Appellant argues there was no evidence that he could visually or auditorily
identify them before both parties were taking cover. See id. Thus, Appellant
maintains the Commonwealth relied on speculation, rather than proof beyond
a reasonable doubt, to establish the knowledge prong of this offense and his
conviction must fail. See id. at 41. We disagree.
We note this Court has not previously addressed the sufficiency of
evidence regarding the knowledge element of assault of a law enforcement
officer. Our published decisions involving this offense have instead focused on
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whether the Commonwealth established the requisite intent to assault a law
enforcement officer. See Landis, 48 A.3d at 447 (stating evidence supported
reasonable inference that Appellant intended to fire a bullet at officers by
discharging firearm at officers); Commonwealth v. Martuscelli, 54 A.3d
940, 949 (Pa. Super. 2012) (finding Commonwealth provided sufficient
evidence for assault of a law enforcement officer when officers positioned
themselves in a line by Appellant, Appellant illuminated officers with light, shot
at them, and asked how many police officers he shot thereby showing
intention); Interest of J.C.N., 332 A.3d 1286, 1292 (Pa. Super. 2025)
(holding juvenile spitting at officer constituted sufficient evidence for the
intent element for attempt to assault law enforcement officer under separate
subpart in 18 Pa.C.S. § 2702.1(a)(2)). Nevertheless, in reviewing challenges
to the sufficiency of evidence, we have consistently recognized that the
Commonwealth may sustain its burden through wholly circumstantial
evidence. See Bowens, 265 A.3d at 740-41.
Although this Court has not specifically considered in a prior opinion
what circumstantial evidence is sufficient to establish the knowledge element
of assault of a law enforcement officer, our decisions in other criminal offenses
and the Crimes Code provide useful guideposts. In Landis, our Court relied
on 18 Pa.C.S. § 302(b)(1) to define the necessary mens rea for intent to
assault a law enforcement officer. See Landis, 48 A.3d at 446. Because
Landis looked to the Crimes Code definition of intent to interpret the mens
rea required under Section 2702.1(a), we likewise look to the Crimes Code’s
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definition of “knowingly” to define the knowledge element of the same offense.
Section 302(b)(2) provides:
(2) A person acts knowingly with respect to a material element of
an offense when:
(i) if the element involves the nature of his conduct or
attendant circumstances, he is aware that his conduct is of
that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is
aware that it is practically certain that his conduct would
cause such a result.
18 Pa.C.S. § 302(b)(2).
Moreover, this Court has consistently recognized that knowledge, like
other culpable mental states, may be established through circumstantial
evidence. See Commonwealth v. Gomez, 224 A.3d 1095, 1100 (Pa. Super.
2019) (finding knowledge element of theft by receiving stolen property can be
inferred by circumstantial evidence); Commonwealth v. Newton, 994 A.2d
1127, 1132 (Pa. Super. 2010) (“Guilty knowledge (like all culpable mental
states) may be proved by circumstantial evidence.”). Likewise, in
Commonwealth v. Robinson, 128 A.3d 261 (Pa. Super. 2015) (en banc),
this Court interpreted the knowledge element of theft by receiving stolen
property by applying the Crimes Code definition of “knowingly” under 18
Pa.C.S. § 302(b)(2). See id. at 265.12 There, we explained that a person ____________________________________________
12 To be convicted of theft by receiving stolen property, the Commonwealth
must establish three elements: “(1) intentionally acquiring possession of the movable property of another; (2) with the knowledge or belief that the (Footnote Continued Next Page)
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possesses the requisite knowledge when he is “aware” of a relevant fact. See
id. Further, the Commonwealth may rely on circumstantial evidence from
which the fact-finder may reasonably infer the defendant’s awareness of the
fact. See id. at 268 (recognizing that guilty knowledge may be inferred from
circumstantial evidence, including the defendant’s conduct, statements, and
other evidence connecting defendant to the crime).
Applying these principles, we conclude that the Commonwealth may
establish the knowledge element of Section 2702.1(a)(1) through
circumstantial evidence. Relevant factors may include, among other evidence,
whether the officers announced their presence, whether they wore uniforms
or displayed badges, whether marked police vehicles were visible or deployed
lights or sirens, the defendant’s conduct or statements at the time of the
incident, or any other evidence connecting the defendant to awareness of the
victim’s law enforcement status. See Robinson, 128 A.3d at 268. Therefore,
we must determine whether the Commonwealth presented sufficient evidence
that Appellant knew the fact that Officer Green was a law enforcement officer.
See 18 Pa.C.S. § 302(b)(2).
First, contrary to Appellant’s assertion that he could neither see nor hear
Officer Green, the Commonwealth presented ample evidence from which the
jury could reasonably infer otherwise. Officer Green testified at trial that he
property was probably stolen; and (3) the intent to deprive permanently.” Robinson, 128 A.3d at 265; see also 18 Pa.C.S. § 3925(a).
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was wearing a full patrol uniform. See N.T. Trial, 2/4/5, at 42. The
Commonwealth also introduced photographs depicting Officer Green’s uniform
on the day of the incident. See id.; Commonwealth Trial Exhibit C-22.
Moreover, Officer Green testified that the radio on his shoulder
broadcasted out loud during the incident and that “everybody in [the
courtroom] could hear it if [the radio] went off.” N.T. Trial, 2/4/25, at 43.
Thus, Appellant’s contention that there was no auditory evidence of Officer
Green is unpersuasive. See Appellant’s Brief at 41. Importantly, Officer Green
stated that he and Appellant made eye-contact when he stepped into the
open before Appellant began shooting. See N.T. Trial, 2/4/25, at 68.
The surveillance video and witness testimony also supported the jury’s
findings. Rogan testified, and the surveillance video demonstrated, that
marked police vehicles arrived at the scene before Appellant fired his weapon.
Moreover, the video showed that once police arrived at the residence,
Appellant ceased attempting to enter the home and instead concealed himself
in the yard. See id. at 18-19; Commonwealth Trial Exhibits C-15 & C-16.
Viewed in its totality, the Commonwealth’s evidence permitted the jury
to reasonably infer that Appellant was aware that Officer Green was a law
enforcement officer. Officer Green was dressed in a full patrol uniform, his
shoulder radio was broadcasting audibly at the time of the shooting incident,
Appellant and Officer Green made eye contact before Appellant first fired, and
Appellant concealed himself upon the officers’ arrival. See Newton, 994 A.2d
at 1132. Taken together, these circumstances constituted sufficient
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circumstantial evidence from which the jury could reasonably infer, beyond a
reasonable doubt, that Appellant acted “knowingly” with respect to the
attendant circumstances that Officer was a law enforcement officer. See 18
Pa.C.S. § 302(b)(2); Bowens, 265 A.3d at 740-41. Accordingly, Appellant’s
fourth issue is meritless.
V. Attempted Burglary
In issue five, Appellant argues that the evidence presented at trial was
insufficient to sustain a guilty verdict for attempted burglary because the
Commonwealth failed to prove, beyond a reasonable doubt, that he took a
substantial step towards entering the residence or that he intended to commit
a crime within the residence. See Appellant’s Brief at 41-43.
“A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S. § 901(a). Under the subsection charged
in this case, the Commonwealth needed to prove that Appellant attempted to
enter Rogan’s home with the intent to both enter an occupied structure and
to commit a crime therein. See 18 Pa.C.S. § 3502(a)(1)(ii). “Intent may be
proved by direct evidence or inferred from circumstantial evidence.”
Commonwealth v. Galindes, 786 A.2d 1004, 1009 (Pa. Super. 2001)
(citation omitted).
Appellant contends that, under Commonwealth v. Wilamowski, 633
A.2d 141, 142 (Pa. 1993), intent to commit a crime inside a structure may
not be presumed merely because a defendant attempts to force entry, and
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that the Commonwealth failed to present additional evidence here to establish
a requisite criminal attempt of burglary. See Appellant’s Brief at 41-42.
Appellant maintains that, unlike the defendant in Wilamowski, he neither
entered nor broke into the residence. See id. at 42. Rather, he alleges that
the evidence established only that he was seen in the yard, later returned,
and banged on the door. See id. at 42-43 (“Rogan never says the intruder
was successful in breaking the window or gaining access to the kitchen.”).
Appellant further asserts that the broken window was caused by a police
officer’s gunfire rather than by any act on his part and therefore did not
demonstrate unlawful entry. See Appellant’s Brief at 43.13 He also argues that,
although the Commonwealth need not prove the specific crime Appellant
intended to commit inside the residence, it was nevertheless required to
establish criminal intent from the totality of the circumstances. See id. He
contends that, unlike in Commonwealth v. Alston, 651 A.2d 1092 (Pa.
1994), there was no evidence that he entered the residence, possessed
burglary tools, made statements revealing criminal intent, or otherwise
engaged in conduct from which the necessary intent for burglary could
reasonably be inferred. See id. Accordingly, Appellant maintains that the ____________________________________________
13 The Commonwealth did not rely on the broken kitchen window to prove that
Appellant attempted to burglarize the Terrace Avenue residence. See
Appellee’s Brief at 37-39. In fact, during the trial, Detective Marvil confirmed that there was a projectile strike from the shootout between Appellant and Officer Green that broke the residence window. See N.T. Trial, 2/5/25, at 251. Moreover, Detective Marvil admitted the projectile fragment was more likely from Officer Green’s firearm and not Appellant’s firearm. See id. at 287.
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evidence was insufficient to prove his conviction of attempted burglary. See
id. We disagree.
First, in Alston the defendant was challenging the sufficiency of
evidence for a burglary conviction, rather than an attempted burglary
conviction, and, here, the Commonwealth did not need to prove that Appellant
entered the residence for merely sustaining an attempted burglary conviction.
See Alston, 651 A.2d at 1095. Appellant’s contention that there are specific
elements that the Commonwealth must prove for attempted burglary is
misplaced, as our Court has held that such convictions are based on the
totality of the circumstances. See id. at 1094. Further, Appellant’s reliance on
Wilamowski is unpersuasive. See Appellant’s Brief at 41-42. In
Wilamowski, the defendant kicked in a person’s garage door and fled from
the scene. See Wilamowski, 633 A.3d 141 at 376. Our Supreme Court
explained that “there was no additional evidence to establish that he
possessed an intent to commit a crime inside. [The defendant] broke the door
and apparently walked away from it without any showing that he entered the
structure or attempted to enter.” Id. at 380. In contrast to Wilamowski,
here, the Commonwealth provided additional circumstantial evidence
supporting the inference that Appellant intended to commit a crime inside the
residence.
We find the facts of this case are similar to the facts in Galindes, where
the defendants came to the victim’s back door at 4:30 a.m. and were making
loud kicking and banging noises. See Galindes, 786 A.2d at 1010. The victim
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heard and watched the defendants try and kick his back door. See id.
However, once the victim made his presence known, the defendants
attempted to flee down an alleyway, while shooting at the victim. See id. Our
Court explained that the circumstances such as the knock at the back door at
nighttime, the fleeing, and shooting at the victim, allowed the trial court to
reasonably infer the defendants’ intent to commit a crime. See id. (stating
“the circumstances surrounding the incident, the late hour, the knock at the
front door, the kicking of the back door, the fleeing when confronted and then
firing shots, all allowed the trial court to reasonably infer [] Galindes possessed
the intent to commit a crime”).
Here, surveillance video showed that Appellant banged on the back door
and kitchen windows of Rogan’s home at approximately 1:00 a.m. See N.T.
Trial, 2/4/25, at 17; Commonwealth Trial Exhibits C-15 & C-16. Rogan also
testified that he heard Appellant banging on his door and kitchen windows.
Compare N.T. Trial, 2/4/25, at 15, with Galindes, 786 A.3d at 1010.
Moreover, Appellant entered Rogan’s backyard, in the middle of the night,
wearing dark clothing with a mask to cover his face and obscure his identity
and he wore gloves and possessed a firearm that he was not licensed to
possess, which we discuss in greater detail below, and Appellant ultimately
abandoned that incriminating evidence at the scene when he fled. Compare
N.T. Trial, 2/4/25, at 15, 50-51 with Galindes, 786 A.3d at 1010. Prior to
fleeing, Appellant hid in the backyard, and upon the arrival of the police
- 34 -J-S12037-26
officers, he engaged in a shootout with Officer Green. Compare N.T. Trial,
2/4/25, at 32, 50 with Galindes, 786 A.3d at 1010.
Accordingly, viewing the evidence in the light most favorable to the
Commonwealth, the totality of the circumstances permitted the jury to
reasonably infer that Appellant attempted to enter Rogan’s home and intended
to commit a crime inside the Terrace Avenue residence. Therefore, the
evidence was sufficient to sustain Appellant’s attempted burglary conviction.
See Bowens, 265 A.3d at 740-41. Appellant’s fifth issue is meritless.
VI. Carrying Firearm without a License
In issue six, Appellant argues that the evidence presented at trial was
insufficient to sustain his conviction of carrying a firearm without a license
because the Commonwealth failed to prove beyond a reasonable doubt that
he carried a firearm concealed on his person. See Appellant’s Brief at 44-45.
To convict a defendant of carrying a firearm without a license, the
Commonwealth must prove that: (1) the weapon was a firearm; (2) the
firearm was unlicensed; and (3) where the firearm was concealed on or about
the defendant’s person, it was outside his home or place of business. See
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004); 18 Pa.C.S.
§ 6106(a)(1). Further, our Court has “consistently held that it is for the finder
of fact to determine under the totality of the circumstances whether the
defendant concealed a firearm on or about his person.” Commonwealth v.
Montgomery, 234 A.3d 523, 535 (Pa. 2020). Moreover, one carries a
concealed firearm on or about his person when he “carries the firearm in such
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a manner as to hide the firearm from ordinary observation; absolute
invisibility to others is not required.” Id. at 536.
As stated above, Appellant argues that there is no evidence that he
carried a firearm concealed on his person. See Appellant’s Brief at 44. He
contends that no witness testified to seeing him remove a firearm from a place
of concealment or observed a firearm concealed on his person. See id. at 44-45. Appellant further asserts that the firearm was recovered in the backyard
of Terrace Avenue rather than on his person or at Wadas Avenue, where he
was apprehended. See id. at 45. Because the record allegedly contains no
direct or circumstantial evidence that the firearm was concealed, Appellant
maintains that the evidence was insufficient to support his conviction for
carrying a firearm without a license. See id. We disagree.
Here, Rogan testified that Appellant repeatedly banged on the back door
and windows of his residence while surveillance footage captured his
movements. See N.T. Trial, 2/4/25, at 15. While Rogan did not see Appellant
with a firearm, Appellant fired multiple shots at Officer Green using a firearm
that was later determined to have Appellant’s DNA on it. See id. at 50; N.T.
Trial, 2/5/25, at 136. The jury viewed the surveillance footage and body
camera footage from Officer Green and was able to make its own
determination regarding whether the firearm was concealed on or about
Appellant’s person. See Commonwealth Trial Exhibits C-15, C-16, & C-32;
Montgomery, 234 A.3d at 535. From this evidence, the jury could reasonably
infer that Appellant possessed the firearm while attempting to enter the
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residence and that it had been concealed from ordinary observation until he
removed it before he began firing the gun at Officer Green. See
Montogomery, 234 A.3d at 536. Upon review of the record and in the light
most favorable to the Commonwealth, we find the evidence was sufficient to
support the jury’s finding that Appellant carried a concealed firearm without a
license. See Bowens, 265 A.3d at 740-41. Accordingly, we find Appellant’s
sixth issue meritless.
VII. Discretionary Aspects of Sentence
Finally, Appellant’s seventh issue challenges the discretionary aspects
of his sentence. See Appellant’s Brief at 45-49. “The right to appellate review
of the discretionary aspects of a sentence is not absolute, and must be
considered a petition for permission to appeal.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2015) (en banc). Since
Appellant is challenging the discretionary aspects of sentencing, he must
invoke this Court’s jurisdiction by satisfying a four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has
a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there is
a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Harper, 273 A.3d 1089, 1096 (Pa. Super. 2022) (citing
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
and brackets omitted)). “Only if the appeal satisfies these requirements may
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we proceed to decide the substantive merits of Appellant’s claim.”
Commonwealth v. Luketic, 162 A.3d 1149, 1159-60 (Pa. Super. 2017).
Instantly, Appellant has met the first three requirements. See Harper,
273 A.3d at 1096. He filed a timely appeal to this Court, preserved this issue
for our review in his motion for reconsideration of sentence, and included a
Rule 2119(f) statement in his brief. See Notice of Appeal, 6/11/25; Motion for
Reconsideration, 5/8/25, at ¶ 5-9; Appellant’s Brief at 10-11. We now turn to
whether Appellant has raised a substantial question.
“The determination of whether a particular case raises a substantial
question is to be evaluated on a case-by-case basis.” Commonwealth v.
Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014). This Court will not look beyond
the statement of questions involved and the prefatory Rule 2119(f) statement
to determine whether a substantial question exists. See Commonwealth v.
Reid, 323 A.3d 26, 30 (Pa. Super. 2024) (citation omitted). “A substantial
question exists only when the appellant advances a colorable argument that
the sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Lawrence, 313
A.3d 265, 285 (Pa. Super. 2024) (citation omitted).
Appellant states he has presented a substantial question because “the
court imposed an excessive sentence and failed to comply [with 42 Pa.C.S. §
9721(b)] by not stating factors beyond those already contemplated by the
guidelines to support the imposition of aggravated range sentences raises a
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substantial question.” Appellant’s Brief at 27-28 (citing Commonwealth v.
Coulverson, 34 A.3d 135 (Pa. Super. 2011)). This Court has held that
sentencing outside the aggravated range recommended by the Sentencing
Guidelines without sufficient justification from the sentencing court and
sentencing within the aggravated range in the absence of a statement reasons
for an aggravated range sentence raises a substantial question. See, e.g.,
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016);
Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002). Moreover, we
have found that a substantial question is raised when “the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face to
be, an excessive level in the light of the criminal conduct at issue in the case.”
Commonwealth v. Austin, 66 A.3d 798, 808-09 (Pa. Super. 2013) (citation
omitted). Therefore, Appellant has presented a substantial question, and we
will address the merits of the issue.
Our standard of review challenging discretionary aspects of sentencing
is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
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The rationale for the broad discretion and deference in this standard is
that the sentencing court is “in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the individual
circumstances before it.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (quoting Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990)).
When we conduct the merits analysis of a challenge to the discretionary
aspects of a sentence, we are guided by the statutory requirements of 42
Pa.C.S. § 9781(c)-(d). See Commonwealth v. Zeigler, 112 A.3d 656, 661
(Pa. Super. 2015). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand the case
to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
Here, Subsections 9781(c)(2)-(3) apply, as the trial court sentenced
Appellant at the top of the aggravated range for attempted murder and
outside of the Sentencing Guidelines’ recommended aggravated range for
attempted burglary and firearms to be carried without a license, and he
contends that both departures from the recommended standard guideline
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ranges were clearly unreasonable. See 42 Pa.C.S. § 9781(c)(2)-(3). Also, in
reviewing the record, this Court considers:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
A sentence is unreasonable if it was imposed “without express or implicit
consideration” of the requirements outlined in Section 9721(b). Walls, 926
A.2d at 964; 42 Pa.C.S. § 9721(b). In imposing a sentence, the sentencing
court must consider “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). Further, the
sentencing court is required to consider the circumstances of the offense and
the character of the defendant, paying particular attention to the defendant’s
prior criminal record, age, personal characteristics, and potential for
rehabilitation. See Commonwealth v. Torres, 303 A.3d 1058, 1065 (Pa.
Super. 2023) (citation omitted).
Although they must be considered, the Pennsylvania Sentencing
Guidelines are not mandatory, and thus do not prohibit any sentence
otherwise within the statutory maximum. See Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008); Commonwealth v. Mitchell, 883 A.2d
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1096, 1107 (Pa. Super. 2005). “The requirement that the court provide a
contemporaneous written statement is satisfied when the judge states his
reasons for the sentence on the record and in the defendant’s presence.”
Commonwealth v. Durazo, 210 A.3d 316, 321 (Pa. Super. 2019) (quotation
marks and citation omitted).
Appellant specifically avers that the trial court did not comply with 42
Pa.C.S. § 9721(b) because it failed to “state reasons other than those already
considered in the calculation of the Guidelines when sentencing [Appellant]
outside of the aggravated range through imposition of statutory maximum
consecutive sentences.” Appellant’s Brief at 48-49. He contends the trial court
only stated that the sentences were aggravated due to the “depravity of the
crime” and “the fact that [Officer Green] was on-duty.” Id. at 49. Therefore,
since the trial court imposed statutory maximum consecutive sentences and
failed to state reasonable grounds for deviation, Appellant argues that his
sentence should be vacated. See id. We disagree.
At the sentencing hearing, the trial court cited the Commonwealth’s
recommendation, the nature and seriousness of the offense, as well as
Appellant’s age and family circumstances in accordance with Section 9721(b).
See N.T. Sentencing Hearing, 4/28/25, at 22; 18 Pa.C.S. § 9721(b).
Moreover, the record demonstrates that the trial court considered letters of
support offered by Appellant, sentencing memoranda filed by both parties, the
victim impact statement of Officer Green, and the recommendations of the
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Sentencing Guidelines. See N.T. Sentencing Hearing, 4/28/25, at 17-19, 22;
Torres, 303 A.3d at 1065. Further, the trial court explained at the hearing:
I have chosen to go into the…aggravated range, due to the
depravity of the crime and the fact that the police officer was doing
his job responding to a citizen’s request for help as that he felt a
person was – well, he knew a person was determined to break
into his home.
We must protect those that would – are willing to respond to that,
their request for help. The permanent injury suffered by the police
officer, both physical and emotional. The evil act, the lying in wait,
the lying in wait to kill the victim.
Each crime is separate and distinct. You showed a complete
indifference to the value of human life, and you really have shown
no remorse whatsoever. So[,] for those reasons, I have gone into
the aggravating range, which would bring a sentence of 43.5 years
as a minimum to a maximum of 87 years.
N.T. Sentencing Hearing, 4/28/25, at 22-23.
We find that the record shows that there is nothing unreasonable about
Appellant’s aggravated sentences or the combined scheme of consecutive
imprisonment terms because the trial court put on the record its reasoning
and the stated reasons reflected aspects not already factored into the
recommendations of the Sentencing Guidelines, including a lack of remorse
on Appellant’s part and the indifference shown by his depraved act of lying in
wait for Officer Green to move out without cover before Appellant first fired a
shot at the officer. See Durazo, 210 A.3d at 321; Walls, 926 A.2d at 964;
see also Commonwealth v. Bullock, 170 A.3d 1109, 1127 (stating lack of
remorse is a persuasive factor for aggravating sentence). Although Appellant
contends that the trial court gave undue weight to Appellant’s aggravating
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factors, we will not re-weigh the trial court’s consideration of the relevant
sentencing factors on appeal. Commonwealth v. Kurtz, 294 A.3d 509, 536
(Pa. Super. 2023) (citations omitted). Therefore, we find no abuse of
discretion by the trial court. See Shugars, 895 A.2d at 1275.14 Accordingly,
Appellant is not entitled to relief on his seventh issue.
Judgment of sentence affirmed.
Date: 9/23/2026
14 Further, the trial court’s acknowledgment of the existence of the PSI permits
us to presume the court was aware of and properly weighed the statutory sentencing factors. See N.T. Trial, 2/7/25, at 9; Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa. Super. 2016) (“Where a [PSI] exist[s], we presume that the [trial court] was aware of relevant information regarding the defendant’s character and weighed these considerations along with mitigating statutory factors.”)
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