J-S34009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                       v.

JOSE HERNANDEZ

                             Appellant                      No. 1403 MDA 2015


              Appeal from the Judgment of Sentence July 16, 2015
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002954-2014


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                                    FILED JUNE 22, 2016

        Appellant, Jose Hernandez, appeals from the judgment of sentence

entered on July 16, 2015, in the Court of Common Pleas of Luzerne County.

We affirm.

        Appellant was arrested on August 1, 2014, after he brutally attacked

Stefan Smith (“the victim”) with a machete.1 On August 4, 2014, the victim

gave a signed statement to police identifying Appellant as his attacker. At

trial, however, the victim prevaricated and stated that he could no longer

recall the events that occurred on August 1, 2014, and refused to identify

Appellant as his attacker. Without objection, the Commonwealth admitted

the     victim’s   prior    statement    into   evidence.   At   the   close   of   the

____________________________________________


1
    Appellant’s sister and the victim have a child.
J-S34009-16



Commonwealth’s case, Appellant moved for judgment of acquittal, which the

trial court denied. The jury ultimately convicted Appellant of two counts of

aggravated assault, one count of simple assault, and one count of recklessly

endangering another person.2 On July 16, 2015, the trial court sentenced

Appellant to a term of six to twelve years’ incarceration. Appellant did not

file a post-sentence motion. This timely appeal followed.

       Appellant’s argument on appeal is two-fold:

       Whether the lower/trial [c]ourt erred in determining that a
       curative instruction to the jury was unnecessary and not given
       regarding the statements given by Commonwealth witness
       Ste[f]an Andrew Smith, with respect to calling into question the
       grading of the charges pending before the [Appellant], and
       further by not granting [Appellant’s] Motion for Acquittal based
       also on the recanted testimony of Stefan Andrew Smith?

Appellant’s Brief at 2-3.

       Appellant first argues that the trial court erred when it neglected to

issue a curative instruction to the jury to disregard the statements the victim

made pertaining to the potential grading of the crimes with which Appellant

was charged. As aptly noted by the trial court, however, “defense counsel

neither requested such an instruction, nor objected to its omission from the

instructions actually given.” Trial Court Opinion, 10/23/15 at 6. It is well-

settled that to preserve a challenge to a particular jury instruction, a

defendant must make a specific and timely objection, and his failure to do so
____________________________________________


2
   18 Pa.C.S.A.       §§    2702(a)(1);        2702(a)(4);   2701(a)(1);   and   2705,
respectively.



                                           -2-
J-S34009-16



results in waiver. See Pa.R.Crim.P. 647(B) (“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.”); see

also Pa.R.A.P. 302(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.”). As Appellant did not request a jury

instruction in this regard or otherwise objection to its omission, Appellant

has waived this issue for purposes of appellate review.

      Appellant’s claim that the trial court erred when it permitted the victim

to testify without an offer of proof is similarly waived, as defense counsel

neither requested an offer of proof nor objected to its absence in the court

below. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”). To the extent

that Appellant suggests that the trial court erroneously disregarded defense

counsel’s request to advise the victim of his Fifth Amendment right against

self-incrimination, Appellant lacks standing necessary to raise such a

complaint. See Commonwealth v. Kinnard, 326 A.2d 541, 544 (Pa.

Super. 1974) (“[T]he right of a witness to refuse to testify on the ground

that his testimony may incriminate him is a right personal to him alone. The

person against whom the witness is called has no rights in relation to the

matter.”). Accordingly, we find Appellant’s allegations of error with regard to

the victim’s testimony at trial are wholly without merit.




                                     -3-
J-S34009-16



      Appellant additionally argues that the trial court erred when it denied

his motion for judgment of acquittal based on the victim’s “recanted

testimony.” Appellant’s Brief at 18. “A motion for judgment of acquittal

challenges the sufficiency of the evidence to sustain a conviction on a

particular charge, and is granted only in cases in which the Commonwealth

has failed to carry its burden regarding that charge.” Commonwealth v.

Manley, 985 A.2d 256, 271-272 (Pa. Super. 2009) (citation omitted). In

reviewing a challenge to the sufficiency of the evidence, we evaluate the

record “in the light most favorable to the verdict winner giving the

prosecution the benefit of all reasonable inferences to be drawn from the

evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super. 2009)

(citation omitted).

      Evidence will be deemed sufficient to support the verdict when it
      established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence. Significantly, [we] may not
      substitute [our] judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Id.   (citation   and   quotation   marks   omitted).   “Any   doubt   about   the

defendant’s guilt is to be resolved by the factfinder 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. Scott, 967

A.2d 995, 998 (Pa. Super. 2009).




                                       -4-
J-S34009-16



     Appellant argues that the Commonwealth failed to present sufficient

evidence to establish that he was the perpetrator of the machete attack. At

trial, the victim admitted that Appellant was in the apartment with him on

the night in question, but denied remembering anything further. See N.T.,

Jury Trial, 5/20/15 at 25. The victim acknowledged giving a statement to the

police, acknowledged that the contents of the statement fairly and

accurately depicted what he told police, and acknowledged that the

statement bore his signature. See id. at 27-32, 35. Although the victim

identified Appellant as the perpetrator of the attack in the statement given

to police on August 4, 2014, he alleged at trial that he was unable to recall

the details of the attack and testified, “I’m not sure if he’s the one who

attacked me that night.” Id. at 36.

     The Commonwealth called Detective David Sobocinski, who confirmed

that the victim identified Appellant as his assailant. See id. at 66.

Additionally, the Commonwealth admitted into evidence and read into the

record the victim’s August 4, 2014 statement. See id. at 36, 67-68. Defense

counsel did not object to the admission of the victim’s prior inconsistent

statement and he does not do so now on appeal. See id. at 36. The jury

clearly credited the victim’s prior statement, made only three days after the

attack, over his recantation testimony at trial. See Commonwealth v.

Valentine, 101 A.3d 801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d

309 (Pa. 2015) (noting factfinder is free to believe all, part or none of the

evidence presented). We may not substitute our judgment for that of the

                                      -5-
J-S34009-16



factfinder. See Bibbs, supra. Thus, viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, including the victim’s

prior statement, we do not hesitate to conclude that the evidence was

sufficient to establish Appellant’s identity as the perpetrator of the machete

attack.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




____________________________________________


3
  Appellant additionally argues that the trial court erred in failing to instruct
the jury regarding “any possible confusion specifically the differences
between the written statement and the oral testimony given [b]y
Commonwealth witness Stefan Andrew Smith and the recantation that was
[p]resented before them.” Appellant’s Brief at 19. Our review of the record
reveals that Appellant never requested such an instruction. Thus, his
allegation of error is waived. See Pa.R.Crim.P. 647(B).



                                           -6-
