Com. v. Verticelli, C.

J-S07043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

CHRISTOPHER VERTICELLI :

:

Appellant : No. 1827 EDA 2021

Appeal from the Judgment of Sentence Entered November 16, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005468-2016

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED JULY 26, 2023

Appellant, Christopher Verticelli, appeals nunc pro tunc from the

judgment of sentence entered in the Philadelphia County Court of Common

Pleas, following his jury trial convictions for aggravated assault and possessing

instruments of crime (“PIC”).1 We affirm.

The relevant facts and procedural history of this appeal are as follows:

On May 21, 2016, the Complainant, Lycurgus Hurdle, heard

his fiancée, Heather Schwegel, arguing with Appellant and

his co-Defendant, Stephanie McKnight, outside his home….

When the Complainant went outside, Appellant told him he

was going to “crack [his] fucking head open.” Later that

day, the Complainant was walking his dog when his fiancée

called telling him to come to the house in a “hurry.” When

he returned home, he saw Appellant holding a metal pole

like “a baseball bat.” Appellant said: “I’m going to crack

your fucking head open, nigger.” Appellant swung the pole,

knocking down a rental sign for the house. He also struck

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1 18 Pa.C.S.A. §§ 2702(a) and 907(a), respectively.

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the Complainant’s mailbox and door multiple times. Ms.

Schwegel called the police. Two officers subsequently

arrived, took a report, and advised Schwegel and the

Complainant to obtain a restraining order.

Later that evening, around 10:00 p.m., Schwegel and the

Complainant were watching television when they heard

scratching at the door. The Complainant, believing it was

his cat, went outside to retrieve it. He then looked to his

right, towards his basement door, and saw Appellant

crouching down holding a hammer. Appellant said, “I’m

cracking your head open now, nigger,” and then hit the

Complainant between the eyes with the hammer. The

Complainant tried to grab the hammer, but Appellant struck

him again above his left eyebrow. Appellant then said, “I’m

going to kill you.” The Complainant grabbed the hammer

and tussled with Appellant towards the street. The

Complainant heard McKnight say, “Get the fuck off of him,”

as she approached from the house next door. McKnight

subsequently hit the Complainant twice in the back of the

head with another hammer. Appellant then yelled, “Get off

me, man. The sirens are coming,” and ran towards Mildred

Street.

Bleeding from the back of his head and forehead, the

Complainant was taken to the hospital in an ambulance.

After he received stitches and staples, the Complainant had

a five-inch scar above his left eyebrow. He also had a three-

inch scar across his nose. At trial, the Complainant testified

that his injuries included migraine headaches, light

sensitivity, left ear hearing loss, PTSD, and anxiety.

(Trial Court Opinion, filed 6/10/22, at 4-6) (internal footnotes and record

citations omitted).

Appellant proceeded to trial, and a jury found him guilty of aggravated

assault and PIC. On November 16, 2017, the court sentenced Appellant to

ten (10) to twenty (20) years’ incarceration for the aggravated assault

conviction. The sentence included a mandatory minimum term, pursuant to

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42 Pa.C.S.A. § 9714, because this was Appellant’s second conviction for a

crime of violence. The court imposed no further penalty for the PIC conviction.

On November 21, 2017, Appellant timely filed a post-sentence motion. In it,

Appellant raised various assertions of error to justify the award of a new trial.

The court denied the post-sentence motion on January 18, 2018.

Although Appellant timely filed a notice of appeal, this Court dismissed

the appeal for failure to file a brief on April 17, 2019. On April 17, 2020,

Appellant requested the reinstatement of his direct appeal rights nunc pro

tunc. The court granted relief on March 24, 2021. Nevertheless, prior counsel

took no further action because he mistakenly believed that the court was going

to appoint new appellate counsel. On June 15, 2021, Appellant again

requested the reinstatement of his appellate rights nunc pro tunc. The court

granted relief on August 10, 2021. Thereafter, the court appointed current

counsel to assist Appellant with the appeal.

Appellant timely filed a notice of appeal nunc pro tunc on September 8,

2021. On September 16, 2021, the court ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Following an

extension, Appellant filed his Rule 1925(b) statement on December 6, 2021.

Appellant now raises four issues for this Court’s review:

Whether the trial court erred, when it ruled that the

assistant district attorney could read Commonwealth

witness Heather Schwegel’s written statement to the police,

into the record, on direct examination, as this was a prior

consistent statement, which may only be used for the

purpose of rehabilitation of a witness, which was not the

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case in the above-captioned matter, and this witness had

not yet been subjected to cross-examination?

Whether the trial court erred, when it gave the jury an

instruction on “consciousness of guilt,” specifically stating

that “the testimony of Lycurgus Hurdle, that tended to show

that [Appellant] fled from the police,” as Appellant … did

not, in fact, flee from the police or anyone else, as when he

was first confronted with the police, he immediately gave

them his name, prior to being arrested and taken into

custody?

Whether the trial court erred, when it refused to give the

jury an instruction on the criminal offense of simple assault,

which is a lesser included offense of aggravated assault, as

there was evidence to support a jury verdict of not guilty of

the greater offense (aggravated assault), but guilty of the

lesser offense (simple assault)?

Whether the trial court erred, when it sentenced Appellant

… to the mandatory 10 years to 20 years’ incarceration,

pursuant to 42 Pa.C.S.A. § 9714(a), as the Commonwealth

failed to prove that [Appellant] had previously been

convicted of a “crime of violence.” While the assistant

district attorney presented evidence that [Appellant] had

previously been convicted of the criminal offense of robbery

(F1), no court order substantiating this conviction was

presented at sentencing?

(Appellant’s Brief at 6).

In his first issue, Appellant contends that Commonwealth witness

Heather Schwegel testified about what she saw outside her home on the night

of the altercation. In light of this testimony, Appellant asserts that the

Commonwealth sought permission to introduce Ms. Schwegel’s original

statement to the police. Although the court permitted the Commonwealth to

introduce this statement, Appellant insists that Ms. Schwegel’s prior statement

was consistent with her trial testimony, thereby rendering the statement

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inadmissible. Appellant concludes that the court committed reversible error

by admitting Ms. Schwegel’s prior statement. We disagree.

This Court’s standard of review for issues regarding the admissibility of

evidence is well settled:

Questions concerning the admissibility of evidence are

within the sound discretion of the trial court ... [and] we will

not reverse a trial court’s decision concerning admissibility

of evidence absent an abuse of the trial court’s discretion.

An abuse of discretion is not merely an error of judgment,

but is rather the overriding or misapplication of the law, or

the exercise of judgment that is manifestly unreasonable, or

the result of bias, prejudice, ill-will or partiality, as shown

by the evidence of record. [I]f in reaching a conclusion the

trial court [overrides] or misapplies the law, discretion is

then abused and it is the duty of the appellate court to

correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal

denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation

marks omitted).

“Relevance is the threshold for admissibility of evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc),

appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).

Evidence is relevant if it logically tends to establish a

material fact in the case, tends to make a fact at issue more

or less probable, or tends to support a reasonable inference

or proposition regarding a material fact. Relevant evidence

may nevertheless be excluded if its probative value is

outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of

cumulative evidence.

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal

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denied, 656 Pa. 9, 219 A.3d 597 (2019) (internal quotation marks omitted).

Hearsay is an out-of-court statement made by a declarant, which a party

seeks to offer into evidence to prove the truth of the matter asserted in the

statement. Pa.R.E. 801(c). Generally, hearsay is not admissible except as

provided by the Pennsylvania Rules of Evidence, by other rules prescribed by

the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. “The rationale

for the hearsay rule is that hearsay is too untrustworthy to be considered by

the trier of fact.” Commonwealth v. Charlton, 902 A.2d 554, 559

(Pa.Super. 2006), appeal denied, 590 Pa. 655, 911 A.2d 933 (2006).

“Exceptions have been fashioned to accommodate certain classes of

hearsay that are substantially more trustworthy than hearsay in general, and

thus merit exception to the hearsay rule.” Id.

It is long settled that a prior inconsistent statement may be

used to impeach a witness. Further, a prior inconsistent

statement may be offered not only to impeach a witness,

but also as substantive evidence if it meets additional

requirements of reliability.

Commonwealth v. Watley, 153 A.3d 1034, 1040 (Pa.Super. 2016), appeal

denied, 641 Pa. 750, 169 A.3d 574 (2017) (internal citations and quotation

marks omitted).

Prior inconsistent statements also can be admitted as

substantive evidence provided the declarant testifies at trial

and is subject to cross-examination concerning the

statement and one of the following is true: 1) the prior

inconsistent statement was given under oath subject to the

penalty of perjury at a trial, hearing, deposition, or other

proceeding; 2) the prior inconsistent statement is contained

within a signed writing adopted by the declarant; and/or, 3)

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the rendition of the statement offered is a verbatim

contemporaneous recording of an oral statement.

Commonwealth v. Henkel, 938 A.2d 433, 442-43 (Pa.Super. 2007), appeal

denied, 598 Pa. 756, 955 A.2d 356 (2008). See also Pa.R.E. 803.1 (stating

same).

Instantly, Ms. Schwegel’s direct examination testimony included what

she witnessed outside her house on the night of the altercation. (See N.T.

Trial, 5/2/17, at 91-100). Initially, Ms. Schwegel claimed that she saw

Appellant’s co-defendant, Ms. McKnight, with a hammer in her hands after the

altercation. (Id. at 92). Ms. Schwegel made no mention of Appellant

possessing the hammer during the altercation.2 The prosecutor then asked

the court for permission to show Ms. Schwegel her prior statement to police,

which the prosecutor marked as exhibit “CW-3”. (Id. at 101). The court

allowed the prosecutor to proceed, and Ms. Schwegel confirmed that the

Commonwealth’s exhibit was her signed statement to the police. (Id.)

As the prosecutor asked whether the statement had refreshed Ms.

Schwegel’s recollection of the altercation, defense counsel objected. (Id. at

102). Ultimately, the court conducted a sidebar to receive argument

regarding the objection. (Id. at 104). At that time, defense counsel claimed

that the prosecutor could not rely on Ms. Schwegel’s prior statement to the

____________________________________________

2 Specifically, the prosecutor asked, “At that point [during the scuffle], did you

see anything in anybody’s hands?” (N.T. Trial, 5/2/17, at 95). Ms. Schwegel

responded, “In the scuffle? … No.” (Id.)

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police, because the statement was consistent with her trial testimony. (Id. at

106-07). The prosecutor countered that Ms. Schwegel “testified today

inconsistently as it relates to … [Appellant] having something in his hands,

specifically a hammer when she went outside and began to witness this fight.”

(Id. at 108). The court overruled the objection and permitted the prosecutor

to continue with her line of questioning. Thereafter, Ms. Schwegel confirmed

that she told police that she had seen Appellant carrying a hammer on the

night of the altercation. (Id. at 112).

In its opinion, the trial court reiterated that Ms. Schwegel’s statement

to police and trial testimony were “materially inconsistent.” (Trial Court

Opinion at 7). We agree with this determination. Here, Ms. Schwegel’s prior

statement was contained within a signed writing adopted by the declarant.

See Henkel, supra. Before the prosecutor refreshed Ms. Schwegel’s

recollection with the prior statement, the witness denied seeing anything in

Appellant’s hands. On this basis, the court did not abuse its discretion in

admitting the prior inconsistent statement. See Belknap, supra. Therefore,

Appellant is not entitled to relief on his first claim.

In his second issue, Appellant acknowledges that the court provided a

“consciousness of guilt” instruction, based upon the Commonwealth’s

argument that it presented evidence of Appellant’s flight from police.

Appellant insists that this instruction was unwarranted because he did not

actually flee. Rather, Appellant emphasizes that police arrived at his home as

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part of their investigation, and he “immediately gave them his name, prior to

being taken into custody.” (Appellant’s Brief at 28). Appellant concludes that

the court committed reversible error by providing the jury with the

consciousness of guilt instruction. We disagree.

“The trial court has considerable discretion in fashioning a jury charge.”

Commonwealth v. Gomez, 224 A.3d 1095, 1102 (Pa.Super. 2019), appeal

denied, 661 Pa. 484, 236 A.3d 1053 (2020). “The court is free to use its own

expressions, provided it clearly and accurately conveys the applicable legal

concepts at issue.” Id. “The trial court is not required to give every charge

that is requested by the parties and its refusal to give a requested charge does

not require reversal unless the appellant was prejudiced by that refusal.’”

Commonwealth v. Scott, 73 A.3d 599, 602 (Pa.Super. 2013) (quoting

Commonwealth v. Brown, 911 A.2d 576, 583 (Pa.Super. 2006)).

“In reviewing instructions to a jury, we consider the entire charge, ‘not

merely discrete portions thereof.’” Gomez, supra at 1102 (quoting

Commonwealth v. Johnson, 630 Pa. 493, 552, 107 A.3d 52, 88-89 (2014)).

“We examine the entire instruction ‘against the background of all evidence

presented, to determine whether error was committed.’” Commonwealth v.

Rush, 162 A.3d 530, 540 (Pa.Super. 2017) (quoting Commonwealth v.

Grimes, 982 A.2d 559, 564 (Pa.Super. 2009)). “A jury charge is erroneous

if the charge as a whole is inadequate, unclear, or has a tendency to mislead

or confuse the jury rather than clarify a material issue.” Id. (quoting Grimes,

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supra at 564).

Instantly, Complainant testified about the ending of his altercation with

Appellant. Complainant heard sirens, which prompted Appellant to say, “Get

off me, man. The sirens are coming.” (N.T. Jury Trial, 5/3/17, at 39).

Complainant then watched as Appellant “sprinted off.” (Id.) Based upon this

testimony, the court provided the jury with the following instruction on

consciousness of guilt:

There was evidence, including the testimony of

[Complainant], that tended to show that [Appellant] fled

from the police. The credibility, weight and effect of this

evidence is for you to decide. Generally speaking, when a

crime is being committed and a person thinks he or she is

or may be accused of committing it and he or she flees or

conceals himself or herself, such flight or concealment is a

circumstance tending to prove the person is conscious of

guilt; however, such flight or concealment does not

necessarily show consciousness of guilt in every case. A

person may flee or hide for some other motive and may do

so even though innocent. Whether the evidence of flight or

concealment in this case should be looked at as tending to

prove guilt depends on the facts and circumstances of this

case and especially upon motives that might have prompted

the flight or concealment. … In other words, your decision

would have to be based on all the evidence.

(N.T. Trial, 5/4/17, at 141-42).

Regarding Appellant’s challenge to the propriety of this instruction, the

court concluded that the instruction and reference to Complainant’s testimony

were not misleading or inaccurate. To the extent Appellant now relies on other

testimony from police witnesses regarding his interactions with officers later

that evening, the court correctly noted that such testimony “did not negate

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[Complainant’s] testimony that the Appellant did flee from the police.” (Trial

Court Opinion at 9). Therefore, examining the entire instruction against the

background of all evidence presented, we cannot say that the court erred in

providing the jury instruction at issue. See Gomez, supra; Rush, supra.

Therefore, Appellant is not entitled to relief on his second claim.

In his third issue, Appellant contends that simple assault is a lesser

included offense of aggravated assault. Appellant insists that the record

contained evidence to support a jury verdict of not guilty for aggravated

assault, but guilty of simple assault. Because a rational jury could have found

Appellant guilty of the lesser included offense of simple assault, and counsel

requested a simple assault instruction, Appellant argues that the court should

have provided this instruction to the jury. Appellant concludes that the court

erred in refusing to instruct the jury on simple assault. We disagree.

The Crimes Code defines simple assault, in relevant part, as follows:

§ 2701. Simple assault

(a) Offense defined.—Except as provided under

section 2702 (relating to aggravated assault), a person is

guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or

recklessly causes bodily injury to another;

(2) negligently causes bodily injury to another with a

deadly weapon; or

(3) attempts by physical menace to put another in fear

of imminent serious bodily injury[.]

18 Pa.C.S.A. § 2701(a)(1)-(3). Additionally, the Crimes Code defines

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aggravated assault, in relevant part, as follows:

§ 2702. Aggravated assault

(a) Offense defined.—A person is guilty of

aggravated assault if he:

(1) Attempts to cause serious bodily injury to another,

or causes such injury intentionally, knowingly or recklessly

under circumstances manifesting extreme indifference to

the value of human life[.]

18 Pa.C.S.A. § 2702(a)(1). “Serious bodily injury” is defined as “[b]odily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S.A. § 2301.

“A crime is considered a lesser-included offense when the elements of

that crime are a necessary subcomponent of the elements of another crime

(referred to as the greater-included offense).” Commonwealth v.

Pellecchia, 925 A.2d 848, 851 (Pa.Super. 2007). “‘Simple assault’ as an

attempt to cause mere bodily injury is, therefore, a lesser included offense of

aggravated assault which is an attempt to cause serious bodily injury.”

Commonwealth v. Sirianni, 428 A.2d 629, 632-33 (Pa.Super. 1981)

(internal footnote omitted). “It is not error, however, for a judge to refuse to

instruct the jury on the lesser-included offense unless the evidence could

support a conviction on the lesser offense.” Commonwealth v. Wood, 475

A.2d 834, 835 (Pa.Super. 1984).

Instantly, Appellant threatened to injure Complainant before attacking

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him with a hammer. As a result of the assault, Complainant suffered

permanent scarring, light sensitivity, headaches, hearing loss, and mental

health issues. (See N.T. Trial, 5/3/17, at 46-49). The court concluded that

no reasonable jury could find that “Appellant merely attempted or intentionally

caused bodily injury without trying to cause or intentionally causing serious

bodily injury.” (See Trial Court Opinion at 12) (emphasis in original). We

agree with the court’s determination. See 18 Pa.C.S.A. § 2301. Because the

evidence did not support a conviction on the lesser offense of simple assault,

the court did not err in refusing to instruct the jury on that offense. See

Wood, supra. See also Sirianni, supra (holding court properly refused

defendant’s request for simple assault charge in prosecution for aggravated

assault arising from incident where defendant followed and confronted victim,

brandished firearm, and shot victim at point-blank range). Thus, Appellant is

not entitled to relief on his third claim.

In his final issue, Appellant acknowledges that the court imposed a

mandatory minimum sentence for his aggravated assault conviction, pursuant

to 42 Pa.C.S.A. § 9714(a)(1). Appellant insists, however, that the

Commonwealth did not produce sufficient evidence at sentencing to prove that

Appellant had previously been convicted of another “crime of violence.”

Although the Commonwealth presented certain court records from Appellant’s

prior conviction for robbery, which was graded as a first-degree felony,

Appellant complains that the Commonwealth did not present the sentencing

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order for the robbery conviction. In the absence of the sentencing order,

Appellant argues that the Commonwealth failed to prove that his robbery

conviction qualified as a crime of violence under Section 9714(g). Appellant

concludes that the court imposed an illegal sentence. We disagree.

“[B]ecause a sentencing court loses its authority to exercise discretion

when a mandatory minimum sentence applies, the question of the propriety

of applying a mandatory minimum sentencing provision implicates [the]

legality” of the sentence. Commonwealth v. Prinkey, ___ Pa. ___, ___,

277 A.3d 554, 564 (2022) (quoting Commonwealth v. Wolfe, 636 Pa. 37,

57, 140 A.3d 651, 663-64 (2016) (Baer, J., concurring)). Section 9714

provides the following mandatory minimum sentencing provision:

§ 9714. Sentences for second and subsequent

offenses

(a) Mandatory sentence.—

(1) Any person who is convicted in any court of

this Commonwealth of a crime of violence shall, if at the

time of the commission of the current offense the person

had previously been convicted of a crime of violence, be

sentenced to a minimum sentence of at least ten years of

total confinement, notwithstanding any other provision of

this title or other statute to the contrary. Upon a second

conviction for a crime of violence, the court shall give the

person oral and written notice of the penalties under this

section for a third conviction for a crime of violence. Failure

to provide such notice shall not render the offender ineligible

to be sentenced under paragraph (2).

* * *

(d) Proof at sentencing.−Provisions of this section

shall not be an element of the crime and notice thereof to

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the defendant shall not be required prior to conviction, but

reasonable notice of the Commonwealth’s intention to

proceed under this section shall be provided after conviction

and before sentencing. The applicability of this section shall

be determined at sentencing. The sentencing court, prior to

imposing sentence on an offender under subsection (a),

shall have a complete record of the previous convictions of

the offender, copies of which shall be furnished to the

offender. If the offender or the attorney for the

Commonwealth contests the accuracy of the record, the

court shall schedule a hearing and direct the offender and

the attorney for the Commonwealth to submit evidence

regarding the previous convictions of the offender. The

court shall then determine, by a preponderance of the

evidence, the previous convictions of the offender and, if

this section is applicable, shall impose sentence in

accordance with this section….

42 Pa.C.S.A. § 9714(a)(1), (d) (emphasis added).

The statutory definition for “crime of violence” includes “robbery as

defined in 18 Pa.C.S.A. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery)[.]”

42 Pa.C.S.A. § 9714(g). Regarding the grading of robbery offenses, “robbery

under subsection (a)(1)(iv) and (vi) is a felony of the second degree; robbery

under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a

felony of the first degree.” 18 Pa.C.S.A. § 3701(b)(1).

Additionally, “[a] ‘preponderance of the evidence’ is only ‘the greater

weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement

for preponderance of the evidence.’” Commonwealth v. Neysmith, 192

A.3d 184, 189 (Pa.Super. 2018), cert. denied, ___ U.S. ___, 139 S.Ct. 2640,

204 L.Ed.2d 287 (2019). “In other words, when weighing the evidence of

record, the trial judge need only find that the fact in question is more-likely-

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than-not true.” Id. at 190. “To determine whether the Commonwealth

offered evidence sufficient to tip the evidentiary scale in its favor, we will

review all of the evidence and testimony offered at the sentencing hearing.”

Id.

Instantly, the court initially conducted Appellant’s sentencing hearing on

October 27, 2017. At that time, the Commonwealth submitted evidence to

prove that Appellant had a prior conviction for a “crime of violence,” thereby

warranting imposition of a Section 9714 mandatory sentence. Specifically,

the Commonwealth presented a written guilty plea colloquy, which Appellant

executed on October 20, 1994. (See Sentencing Exhibit C-3, dated 10/20/94,

at 4). In the colloquy, Appellant indicated that he would be entering a guilty

plea to robbery graded as a first-degree felony. (Id. at 1). The

Commonwealth also introduced a transcript from Appellant’s 1994 plea

hearing. At that time, the court and prosecutor reiterated that Appellant was

pleading guilty for an armed robbery graded as a first-degree felony. (See

Sentencing Exhibit C-4, dated 10/20/94, at 2). Appellant confirmed his

understanding of the grading, and counsel indicated that the plea was “open”

as to sentencing. (Id. at 2, 9-12). Thereafter, the court accepted the plea

and deferred sentencing pending completion of a presentence investigation

report. (Id. at 14).

After the Commonwealth submitted its exhibits regarding Appellant’s

prior crime of violence, the court received additional argument from counsel.

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(See N.T. Sentencing Hearing, 10/27/17, at 20-32). Defense counsel claimed

that the Commonwealth had failed to establish the prior crime of violence by

a preponderance of the evidence, because there was no evidence that

Appellant pled guilty to robbery under Section 3701(a)(1)(i), (ii) or (iii). (Id.

at 31). At the conclusion of the hearing, the court continued the matter to

give the parties additional time to research Appellant’s prior conviction. (Id.

at 35). The hearing resumed on November 16, 2017, and the court received

additional argument from the parties. Again, Appellant maintained that the

Commonwealth did not present sufficient proof of a prior crime of violence.

(See N.T. Sentencing Hearing, 11/16/17, at 18). Despite Appellant’s

arguments, the court imposed the Section 9714 mandatory minimum

sentence. (Id. at 33-34).

In its opinion, the court addressed Appellant’s current argument that

the Commonwealth needed to present the sentencing order for the prior crime

of violence. The court emphasized that it was “entirely unaware of caselaw,

statute, or rule of court requiring the specific production of a Court Order

substantiating a prior conviction[.]” (Trial Court Opinion at 18). Our research

supports the court’s conclusion, and we note that Appellant’s brief fails to cite

any relevant authority to support his claim. (See Appellant’s Brief at 35-36).

Absent more, we cannot say that the court erred in determining that the

Commonwealth satisfied the preponderance of the evidence standard. See

Neysmith, supra (explaining that Commonwealth need only show that prior

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convictions probably belong to offender). See also Commonwealth v.

Smith, 866 A.2d 1138 (Pa.Super. 2005), appeal denied, 583 Pa. 682, 877

A.2d 462 (2005) (holding that Commonwealth met its burden of establishing

defendant’s convictions for prior violent crimes by preponderance of evidence;

at sentencing, Commonwealth offered certified court documents, FBI rap

sheet, and NCIC rap sheet to demonstrate prior convictions). Thus, Appellant

is not entitled to relief on his final claim, and we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2023

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