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Com. v. McCoy, B.

2026-09-23

Authorities cited

Opinion

majority opinion

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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