NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No MDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. LAUREN MARY MCGINLEY Appellant No MDA 2013 Appeal from the Judgment of Sentence entered April 2, 2013 In the Court of Common Pleas of the 26 th Judicial District, Columbia County Branch Criminal Division at No: CP-19-CR BEFORE: GANTMAN, P.J., DONOHUE and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED JUNE 02, 2014 Appellant, Lauren Mary McGinley, appeals from the judgment of sentence entered for her convictions of simple assault and harassment. 1 She challenges the sufficiency and weight of the evidence, several rulings by the trial court, and the discretionary aspects of her sentence. We find no merit to McGinley s claims, and therefore affirm the judgment of sentence. In October 2011, McGinley was a student at Bloomsburg University and a member of the field hockey team. N.T. Trial, 1/22-23/13, at The victim, Ashley Carsia, was a graduate student at Bloomsburg, and is an undergraduate alumna. Id. at , Before the incident giving rise to the criminal charges in this case, McGinley and Carsia did not know 1 18 Pa.C.S.A. 2701(a)(1) and 2709(a)(1).

2 each other. Id. at , 330. Their paths crossed through McGinley s teammate and co-defendant, Nicole Bruce. Carsia had been seen at a bar dancing with Bruce s boyfriend. Id. at When Bruce found out, she made disparaging remarks about Carsia and told others that Carsia better watch her back or she s going to get her ass beat. Id. at 6-7, 16-18, 355. During the early morning hours of October 9, 2011, Carsia and two friends were getting pizza at a pizzeria after having drinks at several Bloomsburg bars. Id. at Carsia s friends noticed that several members of the field hockey team were outside the pizzeria. Id. at Among the players were Bruce and McGinley. Id. at 10-11, 19, 32, As Carsia and her friends left the pizzeria to walk home, the field hockey players followed. Id. at 42-43, McGinley approached Carsia and asked whether she knew Bruce s boyfriend. Id. at , 170, 281, 285, 328. Then, Bruce jumped on Carsia and began punching her in the back of the head. Id. at , , One of Carsia s friends, a male, intervened to try to protect Carsia from the blows. Id. at At some point during the fracas, McGinley stepped in front of Carsia and punched her in the face. Id. at , 120, , The punch broke Carsia s nose, knocked her unconscious, and she slumped to the ground. Id. Carsia later identified McGinley as the person who threw the nose-breaking punch, as did Bruce and Betsy Renn, another field hockey player. Id. For her part, McGinley denied hitting Carsia on purpose and claimed she was only trying to separate - 2 -

3 Bruce from Carsia. Id. at 332. She conceded that she might have struck Carsia, but said she was trying to defend herself from Carsia s male friend, who she claimed hit her twice. Id. at 330. McGinley was convicted of simple assault and harassment. On April 2, 2013, the trial court sentenced McGinley to ten days to twelve months in jail. On May 23, 2013, the trial court denied McGinley s post-sentence motion. This appeal followed. McGinley raises five issues for review, which we have reworded and reordered for ease of discussion: 1. Whether McGinley s conviction of simple assault is against the weight and sufficiency of the evidence; 2. Whether the trial court abused its discretion in refusing to sever McGinley s trial from her co-defendant, Bruce s; 3. Whether the trial court erred in admitting evidence of McGinley s pre-arrest silence without giving the jury a cautionary instruction; 4. Whether the trial court erred in instructing the jury on the charge of simple assault; and 5. Whether the trial court erred in failing to consider McGinley s character in circumstances in imposing the sentence for simple assault. See Appellant s Brief at 6. We first address whether McGinley s conviction for simple assault is against the weight and sufficiency of the evidence. She contends the Commonwealth failed to prove that she had the state of mind required to commit simple assault. She also argues further that the Commonwealth failed to present sufficient evidence to disprove her claim of self-defense

4 Challenges to the sufficiency of the evidence and challenges to the weight of the evidence are distinct claims with distinct legal standards and distinct remedies. See Commonwealth v. Widmer, 744 A.2d 745, (Pa. 2000) (discussing the distinctions). Therefore, we will consider the two challenges separately. We review challenges to the sufficiency of the evidence as follows: We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth s burden may be met by wholly circumstantial evidence and any doubt about the defendant s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Commonwealth v. Olsen, 82 A.3d 1041, 1046 (Pa. Super. 2013) (quoting Commonwealth v. Mobley, 14 A.3d 887, (Pa. Super. 2011)). To convict a person of simple assault as charged in this case, the Commonwealth must prove either that (1) the defendant attempted to cause bodily injury to another person, or (2) the defendant actually caused bodily injury to another person intentionally, knowingly, or recklessly. 18 Pa.C.S.A. 2701(a)(1)

5 When viewed in the light most favorable to the Commonwealth, the evidence clearly supports the jury s finding that McGinley intentionally, knowingly, or recklessly caused bodily injury to Carsia. At trial, Carsia testified that McGinley stepped in front of Carsia, smiled, and punched her in the face, breaking her nose and knocking her unconscious. N.T. Trial, 1/22-23/13, at Two other eyewitnesses Bruce and Renn saw McGinley strike Carsia in the face, after which Carsia fell to the ground. Id. at 105, 352. Punching another person in the face hard enough to break the person s nose is sufficient evidence of simple assault. Similarly, McGinley s claim of self-defense is meritless. Several witnesses testified that neither Carsia nor her friends exhibited any aggression toward McGinley or the other field hockey players. Id. at 77-78, 107, The Commonwealth presented sufficient evidence to the contrary that Bruce, McGinley, and their teammates initiated the confrontation. McGinley asks us to rely on other witnesses who testified that she might have been provoked after Bruce attacked Carsia. That argument concerns the weight of the evidence not its sufficiency. Because several witnesses testified that McGinley s attack on Carsia was unprovoked, the Commonwealth presented sufficient evidence to disprove Appellant s claim of self-defense. We now turn to the weight of the evidence. We review the trial court s decision in not ordering a new trial for an abuse of discretion. Olsen,

6 A.3d at We cannot assess witness credibility, because the jury is entitled to believe all, some, or none of the witnesses testimony. Id. The trial court will only award a new trial when the jury s verdict is so contrary to the evidence as to shock one s sense of justice. In turn, we will reverse a trial court s refusal to award a new trial only when we find that the trial court abused its discretion in not concluding that the verdict was so contrary to the evidence as to shock one s sense of justice. In effect, the trial court s denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings. Id. (internal quotations and citations omitted). This case offered differing factual scenarios, and the jury was in the best position to assess whose story was more credible. The Commonwealth presented ample evidence from multiple witnesses that McGinley punched Carsia without provocation. Based on the evidence before it, the jury chose to believe the Commonwealth s version of events over McGinley s claims of accident and self-defense. The record supports the jury s verdict, and we cannot find that the trial court abused its discretion in denying a new trial. Next, we address McGinley s challenge to the denial of her motion to sever her jury trial from Bruce s. The trial court denied McGinley s pretrial motion without comment on May 10, McGinley argues that she was prejudiced by the introduction of the evidence concerning Bruce s prior animosity toward Carsia. McGinley contends that evidence would have been inadmissible if she were tried separately

7 We review a trial court s order denying a severance motion for an abuse of discretion. Commonwealth v. Brookins, 10 A.3d 1251, 1255 (Pa. Super. 2010). Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. Consequently, an abuse of discretion consists not merely of errors in judgment by the trial court, but instead contemplates action unsupported by the evidence, at odds with governing law, or arising from improper motives personal to the judge. Id. (internal quotation and citations omitted). A trial court may order separate trials of defendants if any party may be prejudiced by a joint trial. Pa.R.Crim.P McGinley bears the burden of establishing prejudice. Brookins, 10 A.3d at Three factors are persuasive in considering whether severance is appropriate: (1) the number of defendants or complexity of the evidence; (2) the possibility that the jury will consider evidence admissible against only one defendant against all defendants notwithstanding cautionary instructions; and (3) whether the defendants have antagonistic defenses. Id. at 1256 (quoting Commonwealth v. Tolassi, 392 A.2d 750, 753 (Pa. Super. 1978)). We hold that the trial court did not abuse its discretion in denying McGinley s motion to sever. The first factor in Brookins (number of defendants or complexity of the evidence) does not apply, and at oral argument, McGinley clarified that she does not rely on the third factor (antagonistic defenses). We reject her contention that the second factor prejudice caused by the evidence of Bruce s pre-attack animosity toward - 7 -

8 Carsia required severance. McGinley s argument requires us to accept that evidence of Bruce s pre-attack animosity would have been inadmissible if McGinley was tried alone. McGinley s argument assumes too much. That background information was relevant to show, among other things, McGinley s motive for confronting and then attacking Carsia. Cf. Commonwealth v. Scarfo, 611 A.2d 242, (Pa. Super. 1992) (ruling evidence that Mafiosi co-defendants beat murder victim several years prior admissible to all defendants because it showed common animosity toward victim), superseded on other grounds by Pa.R.Crim.P Without this evidence, there is no context to the assault, which began after McGinley by her own admission asked Carsia whether she knew Bruce s boyfriend. N.T. Trial, 1/22-23/13, 328; see id. at 281. If McGinley had been tried separately, evidence of Bruce s animosity toward Carsia would have been admissible because it was relevant as causally connected to the attack on Carsia. Therefore, the trial court did not abuse its discretion in denying McGinley s motion to sever. Next, McGinley argues the trial court improperly admitted evidence of her pre-arrest silence, and failed to give the jury a cautionary instruction. The purported error occurred during the testimony of Officer Melanie Readler, the affiant in this case. Bruce s lawyer asked Officer Readler why she did not charge other members of the field hockey team for assaulting Carsia

9 [BRUCE S COUNSEL]: Well, then you didn t charge Ms. Renn with any criminal charge based on why didn t you charge her with a criminal offense then? [OFFICER READLER]: There was [sic] a number of reasons. She was the only one who came forward and spoke to me promptly after I attempted to contact [MCGINLEY S COUNSEL]: Objection, Your Honor. THE COURT: Overruled. [BRUCE S COUNSEL]: So you re [sic] feeling is whoever comes in first sort of wins? THE COURT: She wasn t finished, she said. [OFFICER READLER]: There were several reasons. That was the first one. She gave me a statement. As she testified, she did not feel that she was part of it, right in there. Ms. Carsia did tell me that she was, however, she did not have any recollection of specific strikes from Ms. Renn. And the most serious of the injuries were sustained [sic] by Ms. McGinley and Ms. Bruce. All of the information that I collected through all of those two interviews as well as the other ones I consulted with the District Attorney and we made the decision then on what charges would be and who would be charged. * * * [BRUCE S COUNSEL]: And you said one of the reasons that you didn t charge Betsy Renn is that she was the first one to come in and talk to you, correct? [OFFICER READLER]: That was part of the reason, yes. [BRUCE S COUNSEL]: I understand not the whole reason but that was part of the reason. So if anyone else had been the first one to come in, that also may have been part of the reason that you wouldn t have charged them, is that a consistent policy of yours? [OFFICER READLER]: Not necessarily. I didn t get a statement from any of the other girls so I don t know what their response was [sic]. [MCGINLEY S COUNSEL]: Objection

10 THE COURT: What s your objection? State it. You have to tell me, don t just sigh, tell me what it is. [MCGINLEY S COUNSEL]: The Defendant, as we ve told the members of the jury, has no obligation to speak to anybody. THE COURT: But he asked these questions, she answered it, I understand that, and I ll give a charge to that at some point. N.T. Trial, 1/22-23/13, at , (emphasis added). McGinley contends the officer s testimony clearly violated her privilege against selfincrimination and prejudiced her. Finally, she argues that the trial court compounded the error by failing to give the promised curative instruction. We review a decision to admit evidence for an abuse of discretion. Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en banc). Both the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution prevent people from being compelled to give testimony against themselves in criminal cases. Commonwealth v. Molina, 33 A.3d 51, 57 (Pa. Super. 2011) (en banc), appeal granted in part, 51 A.3d 181 (Pa. 2012). In Molina, a murder prosecution, a divided en banc panel of this Court held that the Commonwealth cannot use a non-testifying defendant s pre-arrest silence as evidence that the defendant is guilty. 2 Id. at 63. But see Salinas v. Texas, 133 S. Ct (2013) (ruling that a defendant must affirmatively 2 Molina is currently pending before our Supreme Court, which ordered supplemental briefing in light of Salinas v. Texas, 133 S. Ct (2013). We agree with McGinley that Molina remains good law unless and until it is overruled

11 invoke the privilege against self-incrimination pre-arrest to use its protections at trial). But the Commonwealth s mere mention of a defendant s pre-arrest silence is not prejudicial per se. Molina, 33 A.3d at 63 (pre-arrest silence can be used to impeach testifying defendant); Fischere, 70 A.3d at (if probative value outweighs prejudicial effect, pre-arrest silence can be used to counter defense argument of an inadequate police investigation). Even the erroneous admission of evidence, however, can be harmless. Molina, 33 A.3d at [A]n error will be deemed harmless where the appellate court is convinced beyond a reasonable doubt that the error could not have contributed to the verdict. Guidelines for determining whether an error is harmless include: (1) whether the error was prejudicial to the defendant or if prejudicial, whether the prejudice was de minimis; (2) whether the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) whether the evidence of guilt was so overwhelming as established by properly admitted and uncontradicted evidence that the prejudicial effect of the error was so insignificant by comparison to the verdict. Id. at 67 (quoting Commonwealth v. Nolen, 634 A.3d 192, 196 (Pa. 1993)). The Commonwealth has the burden of proving harmless error. Id.; see also Commonwealth v. Adams, 39 A.3d 310, (Pa. Super.) (holding that the Commonwealth produced overwhelming evidence of the defendant s guilt, rendering harmless a reference to his pre-arrest silence), appeal granted, 48 A.3d 1230 (Pa. 2012); Commonwealth v. Moury, 992 A.2d 162, (Pa. Super. 2010) (same, as to post-arrest silence)

12 We reject McGinley s argument for several reasons. First, it is questionable whether Officer Readler s testimony implicates at all McGinley s privilege against self-incrimination. The testimony in Molina regarding the defendant s pre-arrest silence was clear. A police officer asked Molina to be interviewed and he refused. In this case, the testimony at issue is ambiguous because it requires several logical inferences to conclude that Officer Readler was referring to McGinley s pre-arrest silence. Officer Readler did not mention McGinley by name. She did not state whether she affirmatively asked McGinley to consent to an interview. She did not say whether McGinley affirmatively refused any request, and she did not mention whether McGinley or her lawyer anticipatorily said she would not speak to police. Therefore, it is not clear that any pre-arrest silence by McGinley was implicated at all. Next, the Commonwealth did not use Officer Readler s testimony to argue McGinley s guilt. In Molina, the Commonwealth explicitly used Molina s refusal to speak to police to argue that he was guilty: Later the same day [that the mummified remains of the victim were found], Molina contacted the detective; and before she could ask him if he was aware that [the victim] was missing, Molina told her that he did not know where she was but it was out on the street that he was somehow involved in her being missing and that was not true. [The detective] asked Molina when he last saw [the victim], and he initially told the detective a year and a half ago; then moments later, Molina stated it had been approximately three months since he last saw [the victim]. The detective testified that she asked Molina to come down to police headquarters so she could further interview him and he refused

13 At closing argument, counsel for the Commonwealth commented on Molina s refusal to cooperate with [the police], and asked[,] Why? Defense counsel objected. The trial court overruled the objection and refused counsel s request for a curative instruction. The Commonwealth resumed and argued to the jury, Factor that in when you re making an important decision in this case.... Molina, 33 A.3d at 54 (emphasis added) (internal record citations omitted). On appeal, Molina argued that the prosecutor s reference in closing arguments, i.e., not the detective s testimony, was the allegedly prejudicial event. Id. at 55-56; see also Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995) (noting that it is the prosecutor s exploitation of a defendant s exercise of his right to silence which is prohibited ). Here, McGinley does not argue that she was prejudiced by the Commonwealth s use of Officer Readler s testimony as substantive proof of her guilt. 3 Additionally, unlike Molina, in which the defendant did not testify, McGinley took the stand in her own defense. Therefore, her pre-arrest silence could have been used to impeach her, though it was not. See Molina, 33 at (quoting Commonwealth v. Bolus, 680 A.2d 839, 843 (Pa. 1996)). Finally, even if Officer Readler s testimony should have been excluded, we are convinced that any error in admitting it was harmless. As noted 3 In any case, we cannot consider any claim of error based on closing arguments, which were not transcribed. See, e.g., Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa. Super. 2011) ( [We] cannot consider anything which is not part of the record in the case. )

14 above, it is questionable whether McGinley was prejudiced by the testimony. Further, even if she was, any prejudice was de minimis because the Commonwealth presented substantial, corroborated evidence of McGinley s guilt. At trial, no party disputed that McGinley was present when Carsia was attacked, that she struck Carsia, or that Carsia suffered bodily injury. Overwhelming evidence through the eyewitness testimony of multiple witnesses and McGinley s own admission showed that she struck Carsia. The disputed issues were whether McGinley had the requisite state of mind to commit simple assault and whether her actions were in self-defense or defense of others. McGinley has failed to point to any prejudice that affected the jury s ability to weigh evidence of her state of mind or the efficacy of her justification defenses. Therefore, we reject McGinley s argument that the trial court abused its discretion in admitting Officer Readler s testimony or in failing to give a cautionary instruction. Next, McGinley argues the trial court erred in instructing the jury on the charge of simple assault. She contends that the jury was confused by the instructions and verdict form, which separated simple assault into the inchoate attempt to cause bodily injury and the completed crime of causing bodily injury intentionally, knowingly, or recklessly. No portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury. Pa.R.Crim.P. 647(B). Furthermore, even if the trial

15 court rules on points for charge, a party must take exception to the court s ruling to preserve any claims of error. Pa.R.Crim.P. 603(B). A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of. Pa.R.A.P. 302(b). In a criminal case, the mere submission and subsequent denial of proposed points for charge that are inconsistent with or omitted from the instructions actually given will not suffice to preserve an issue, absent a specific objection or exception to the charge or the trial court s ruling respecting the points. Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005). McGinley has failed to preserve her argument regarding the jury instructions. During the charging conference McGinley asked the trial court not to charge the jury on the version of simple assault pertaining to attempting to cause bodily injury. N.T. Trial, 1/22-23/13, at 377. However, once the trial court stated its intention to give the charge, McGinley initially asked for separate lines for attempting to cause bodily injury and causing bodily injury on the verdict slip. Id. at 379. McGinley also asked for a special interrogatory to the jury regarding whether it found that the Commonwealth disproved self-defense and defense of others. Id. at 382. The trial court refused that request so that verdict slips for both defendants would be the same (Bruce not having raised justification defenses). McGinley did not object once the trial court decided which instructions and verdict form to use:

16 THE COURT: I ll note, for the record, I have conferred with counsel on the points for charge, given them copies of it and a copy of the verdict form and as I understand, there s no objection, is that correct? [DISTRICT ATTORNEY]: No objection. [MCGINLEY S COUNSEL]: That s correct. [BRUCE S COUNSEL]: Except for the objections lodged earlier. THE COURT: Yes, but I mean on what we just did. Okay, so I m also going to read to the jury the elements before you guys talk. N.T. Trial, 1/22-23/13, at (emphasis added). Furthermore, McGinley also failed to object after the trial court charged the jury: THE COURT: At this point, any additions or objections to the charge? [DISTRICT ATTORNEY]: None from the Commonwealth, Your Honor. [MCGINLEY S COUNSEL]: No, Your Honor. [BRUCE S COUNSEL]: No, Your Honor. Id. at (emphasis added). It was incumbent upon McGinley to object to the specific portions of the jury charge that she believed were erroneous. Pa.R.Crim.P. 603(B); 647(B). She did not do so. Therefore, she cannot raise this issue for the first time on appeal. Pa.R.A.P. 302(b); Commonwealth v. Marquez, 980 A.2d 145, (Pa. Super. 2009) (en banc) (holding that appellant failed to preserve his challenge to the refusal to give a jury instruction where he failed to object at the conclusion of the jury charge, and stated that he had no objections or exceptions to the charge )

17 Finally, we turn to McGinley s challenge to the discretionary aspects of her sentence. McGinley contends the trial court failed to take into account her character and circumstances and that the sentence imposed is manifestly excessive. Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). Prior to reaching the merits of a discretionary sentencing issue: [W]e conduct a four part analysis to determine: (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, 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.A. 9781(b). Commonwealth v. Martin,[] 611 A.2d 731, 735 ([Pa. Super.] 1992) (most internal citations omitted). Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008). A claim of manifest excessiveness raises a substantial question. Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012). The Sentencing Code requires a trial court to take into account, inter alia, the protection of the public, the gravity of the offense as it relates to the impact of the life of the victim and on the community, and the rehabilitative needs of the defendant. 42 Pa.C.S.A. 9721(c). If as here the sentence is within the sentencing guidelines, we may vacate only if application of the guidelines would be clearly unreasonable. Id. 9781(c)(2)

18 We hold that the trial court did not abuse its discretion in sentencing McGinley to ten days to twelve months in jail. We cannot conclude that the trial court s application of the sentencing guidelines was clearly unreasonable. While McGinley may have no prior criminal record and may otherwise be a person of good character, she cannot meet the high burden necessary for us to reverse the trial court s sentencing determination. Here, the trial court had the benefit of a presentence investigation report, which indicates that the trial court was aware of McGinley s character and circumstances, and weighed those considerations in imposing the sentence. Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) ( Where the sentencing court had the benefit of a presentence investigation report ( PSI ), we can assume the sentencing court was aware of relevant information regarding the defendant s character and weighed those considerations along with mitigating statutory factors. ) (internal quotation omitted). Regarding the excessiveness of the sentence, the cases cited by McGinley in support of her argument are materially distinguishable. In Commonwealth v. Coulverson, 34 A.3d 135, 146 (Pa. Super. 2011), the trial court imposed multiple consecutive sentences totaling 90 years of incarceration, and in Commonwealth v. Eby, 784 A.2d 204, 207 (Pa. Super. 2001) (per curiam), the trial court sentenced the defendant in excess of the aggravated guidelines range. McGinley was sentenced on one count, and her sentence is within the standard range. Having reviewed the record,

19 the application of the sentencing guidelines was not clearly unreasonable. We decline to disturb the sentence imposed. 4 In sum, we find McGinley has failed to raise a reversible error. Her convictions are not against the weight or sufficiency of the evidence. The trial court did not abuse its discretion in refusing to sever her trial from her co-defendant s, or in admitting evidence of her arguable pre-arrest silence. McGinley failed to preserve her challenge to the jury instruction on the elements of simple assault. Finally, we reject McGinley s challenge to the discretionary aspects of her sentence. Therefore, we affirm the judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/2/ McGinley also contends that her sentence is unreasonable when compared with Bruce s, who she claims bears more culpability as the primary instigator. Neither McGinley nor the certified record, however, informs this Court what sentence Bruce received