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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
JAIME CUADRO,                               :         No. 2452 EDA 2015
                                            :
                          Appellant         :


             Appeal from the Judgment of Sentence, July 21, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0010826-2014


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 12, 2016

        Jaime Cuadro appeals the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following his conviction in a waiver

trial of one count of aggravated assault and two counts each of simple

assault and recklessly endangering another person (“REAP”).1           The trial

court sentenced appellant to serve 11½-23 months’ imprisonment on the

aggravated assault count. The trial court imposed no further penalty on the

remaining counts. We affirm.

        The trial court set forth the following:

                    On May 17, 2014, at approximately 9:40 a.m.
              on the 3900 block of L Street, [complainant] testified
              that he backed up his Ford Explorer from an
              alleyway partially onto the street when [appellant]
              blocked his car by driving behind [c]omplainant’s

1
    18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, respectively.
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          Ford Explorer. Complainant exited his car and made
          a waving hand motion for [appellant] to back up his
          car. [Appellant] screamed at [c]omplainant, exited
          his car, and angrily approached him. Complainant
          grabbed a tire iron from a tool box in his car as
          [appellant] was approaching and placed it down
          when [appellant] stopped.        Complainant did not
          move or act aggressively while he held onto the tire
          iron. Complainant told [appellant] to calm down as
          [appellant] screamed and angrily approached.
          [Appellant] proceeded to punch [c]omplainant on the
          nose and [c]omplainant fell to the ground.
          [Appellant] got on top of him and punched him five
          to six more times, causing him to lose consciousness
          for five to ten seconds. Complainant never punched
          [appellant] back and was only trying to block off
          [appellant]’s punches. When [c]omplainant opened
          his eyes, he saw his mother [] come in between
          them, pushing [appellant] off of him. [Appellant]
          turned around and choked [complainant’s mother]
          who is a fragile 58 years old [sic] woman whom had
          undergone multiple prior surgeries. At the same
          time, [c]omplainant’s sister, who was a passenger of
          the Ford Explorer, exited the car to help but
          [appellant] shoved her aside.               Complainant
          eventually regained his footing and pulled out his
          licensed firearm from his hip, warding [appellant] off
          his mother.        The police later arrived and
          [c]omplainant went to the hospital for six hours to
          treat a broken nose, fractured jaw, a hole inside his
          mouth, and an injury which required three stitches.
          As a result of this incident, [c]omplainant sustained
          permanent injuries, including a scar on his face, a
          bent nose, and breathing difficulties. Complainant
          testified that [complainant’s mother] suffered neck
          pain after this incident.      Throughout the entire
          encounter, [c]omplainant did not strike [appellant]
          or [appellant]’s son with the tire iron or gun.

                [Appellant]’s son then testified.  [The son]
          stated that on the day in question, [appellant] was
          driving to their cousin’s house when they
          encountered [c]omplainant’s car blocking the
          alleyway on L Street.         After they waved


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            [c]omplainant to move his car, the [c]omplainant
            quickly backed up very close to their car.
            [Appellant] backed up his car in response, but
            [c]omplainant walked over to exchange words with
            [appellant]. Complainant walked back to his own car
            afterwards, reached for a tire iron, and then placed it
            on the ground before coming back to [appellant]’s
            car again. He saw [appellant] get out of the car and
            [c]omplainant threw a punch.         [Appellant’s son]
            testified that a young lady jumped on [appellant],
            while an older couple came out and hit [appellant].
            He then saw [c]omplainant leave the scene and
            return with a gun.         He further stated that
            [c]omplainant punched him on the right cheek since
            he was in the way between [c]omplainant and
            [appellant].

                  [Appellant] testified that [] he backed up his
            car 30-40 feet to allow room for the [c]omplainant to
            back up his car on that day in question. He testified
            that [c]omplainant came out of the car, exchanged
            words, and returned to his car to retrieve a tire iron.
            After [c]omplainant threw the tire iron on the
            ground, [c]omplainant walked over to [appellant]’s
            car and exchanged words again. [Appellant] got out
            of the car and punched [c]omplainant, causing
            [c]omplainant to fall backwards.       At that time,
            [appellant] testified that a young lady grabbed onto
            his back, while an older couple grabbed onto him.
            [Appellant] then saw [c]omplainant walk towards
            [appellant]’s car, grab the keys to the car and put
            them in his pockets. [Appellant] also saw the police
            hug [c]omplainant before being arrested.

Trial court opinion, 10/20/15 at 2-4 (citations to the notes of testimony

omitted).

     Appellant raises the following issues for our review:

            I.    WAS THE EVIDENCE SUFFICIENT TO SUPPORT
                  APPELLANT’S      CONVICTIONS       FOR
                  AGGRAVATED    ASSAULT    AND   RELATED
                  OFFENSES WHERE THE COMMONWEALTH


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                   FAILED TO PROVE BEYOND A REASONABLE
                   DOUBT     THAT  APPELLANT   DID  NOT
                   JUSTIFIABLY ACT IN SELF-DEFENSE WHEN
                   THE COMPLAINANT ADVANCED UPON HIM
                   WHILE SCREAMING AND WIELDING A TIRE
                   IRON?

            II.    WAS THE EVIDENCE SUFFICIENT TO SUSTAIN
                   APPELLANT’S CONVICTIONS FOR SIMPLE
                   ASSAULT AND RECKLESSLY ENANGERING
                   [SIC] ANOTHER PERSON WITH RESPECT TO
                   HIS    SUPPOSED    ATTACK    ON   [THE
                   COMPLAINANT’S MOTHER] WHRE [SIC] [THE
                   MOTHER] DID NOT TESTIFY AND NO
                   EVIDENCE WAS PRESENTED TO ESTABLISH
                   THAT SHE WAS INJURED IN ANY WAY DURING
                   THE CONFRONTATION?

            III.   WERE APPELLANT’S CONVICTIONS AGAINST
                   THE CLEAR WEIGHT OF THE EVIDENCE
                   WHERE: (1) THE TRIAL TESTIMONY OF THE
                   COMPLAINANT WAS INCONSISTENT WITH
                   STATEMENTS HE HAD MADE TO A POLICE
                   OFFICER FOLLOWING THE INCIDENT ABOUT
                   WHETHER HE WAS CARRYING HIS GUN AT
                   THE TIME OF THE CONFRONTATION; AND
                   (2) THE COMPLAINANT’S TESTIMONY THAT HE
                   DID    NOT    INJURE   APPELLANT   WAS
                   CONTRADICTED BY THE TESTIMONY OF A
                   POLICE OFFICER, DEFENSE WITNESS, AND
                   PHOTOGRAPHS?

Appellant’s brief at 4.

      Appellant first complains that the evidence was insufficient to convict

him of aggravated assault, simple assault, and REAP with respect to

complainant because he acted in self-defense.

      We are subject to the following standard of review on sufficiency

claims:



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             In reviewing the sufficiency of the evidence, we view
             all the evidence admitted at trial in the light most
             favorable to the Commonwealth, as verdict winner,
             to see whether there is sufficient evidence to enable
             [the factfinder] to find every element of the crime
             beyond a reasonable doubt. This standard is equally
             applicable to cases where the evidence is
             circumstantial rather than direct so long as the
             combination of the evidence links the accused to the
             crime beyond a reasonable doubt.           Although a
             conviction must be based on “more than mere
             suspicion or conjecture, the Commonwealth need not
             establish guilt to a mathematical certainty.”

             Moreover, when reviewing the sufficiency of the
             evidence, this Court may not substitute its judgment
             for that of the fact-finder; if the record contains
             support for the convictions they may not be
             disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).    Under the Crimes Code, a person commits aggravated assault

when he or she “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).    A person commits simple assault if he ”attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another;” or

“attempts by physical menace to put another in fear of imminent serious

bodily injury.” 18 Pa.C.S.A. §§ 2701(a)(1), 2701(a)(3). The Crimes Code

defines recklessly endangering another person as “conduct which places or

may place another person in danger of death or serious bodily injury.”

18 Pa.C.S.A. § 2705.



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      The defendant has no burden to prove self-defense. Commonwealth

v. Smith, 97 A.3d 782, 787 (Pa.Super. 2014).       If the defendant properly

raises self-defense under Section 505 of the Crimes Code, the burden is on

the Commonwealth to prove beyond a reasonable doubt that the defendant’s

act was not justifiable self-defense. Id. With respect to self-defense, the

Crimes Code states, “[t]he use of force upon or toward another person is

justifiable when the actor believes that such force is immediately necessary

for the purpose of protecting himself against the use of unlawful force by

such other person on the present occasion.”     18 Pa.C.S.A. § 505(a).   The

use of force is not justifiable when:

             the actor knows that he can avoid the necessity of
             using such force with complete safety by retreating,
             except the actor is not obliged to retreat from his
             dwelling or place of work, unless he was the initial
             aggressor or is assailed in his place of work by
             another person whose place of work the actor knows
             it to be.

18 Pa.C.S.A. § 505(b)(2)(ii).

      Here, the record reflects that complainant was backing out of the

street in his car when appellant blocked his path.      (Notes of testimony,

3/19/15 at 8.) Complainant asked appellant to move his car so complainant

could continue backing out. (Id. at 10.) Appellant then got out of his car

and began moving toward complainant.           (Id. at 11.)    At this point,

complainant took a tire iron out of his car in an attempt to ward off

appellant.   (Id.)   As soon as appellant halted his gait, complainant placed



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the tire iron on the ground. (Id.) Once the tire iron was on the ground,

appellant started towards complainant again and hit him in the nose with his

fist.   (Id. at 12.)   Complainant then fell to the ground, and appellant

continued hitting him five or six more times with his fists. (Id. at 13-14.)

Complainant testified that he lost consciousness during the incident. (Id. at

35.)     Complainant also stated that he feared for his life during the

confrontation. (Id. at 17.) Appellant caused serious and permanent injuries

to complainant, including a broken nose, a fractured jaw, and a hole in his

mouth. (Id. at 18.) Complainant currently suffers from breathing problems

due to the assault. (Id. at 17.)

        After careful review of the record, we find that, when viewed in the

light   most   favorable   to   the   Commonwealth   as   verdict   winner,   the

Commonwealth produced evidence sufficient to prove that appellant did not

act in self-defense and that he had every opportunity to avoid the necessity

of using force and safely retreat. After complainant placed the tire iron on

the ground, appellant resorted to violence instead of leaving the scene

peacefully. After complainant fell to the ground, appellant continued hitting

complainant with his fists.     Appellant was not a victim in this incident; he

was the source of danger. Therefore, appellant’s first claim lacks merit.

        Appellant next contends that because complainant’s mother did not

testify, the Commonwealth was unable to produce sufficient evidence to

sustain his convictions of simple assault and REAP with respect to



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complainant’s       mother.      Alternatively,      appellant   claims      he    acted     in

self-defense.

       Here, the record reflects that complainant testified that his mother is

58 years old with limited physical mobility due to prior surgeries on her leg.

(Id.   at    15.)     Complainant    further      testified   that   after    he    regained

consciousness, he saw appellant choking his mother, causing her to scream

and attempt to pull his hands off of her. (Id. at 19.) Appellant continued to

choke complainant’s mother, only stopping when complainant drew his

firearm. (Id. at 16.) As a result of appellant choking complainant’s mother,

complainant testified that his mother experienced neck pain. (Id. at 35.)

       Here, the trial court rejected appellant’s version of events and

accepted     the    eyewitness    testimony     of    complainant      with       respect    to

appellant’s assault on his mother. The trial court, sitting as fact-finder, was

free to determine witness credibility and believe all, part, or none of the

testimony. See Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.Super.

2008).       Viewing    the   evidence   in    the    light   most    favorable       to    the

Commonwealth as verdict winner, we find that the Commonwealth produced

sufficient evidence to sustain appellant’s convictions of simple assault and

REAP with respect to complainant’s mother.                    Therefore, this claim is

meritless.

       Finally, appellant contends that the verdicts rendered by the trial court

were against the weight of the evidence.



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      Our standard of review for determining whether a verdict is compatible

with the weight of the evidence is well settled:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence.    Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the
            evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against
            the weight of the evidence and that a new trial
            should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted) (emphasis omitted).

            The weight of the evidence is exclusively for the
            finder of fact who is free to believe all, part, or none
            of the evidence and to determine the credibility of
            the witnesses. An appellate court cannot substitute
            its judgment for that of the finder of fact. Thus, we
            may only reverse the . . . verdict if it is so contrary
            to the evidence as to shock one’s sense of justice.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).

      Here, appellant contends “that the testimony of the complainant []

was wholly unreliable and unworthy of belief.”       (Appellant’s brief at 19.)

Appellant   asks   us   to   re-weigh   the   evidence   and   make    credibility

determinations. We decline to do so, as that is not our role. After a careful

review of the record, we conclude that the verdicts by the trial court were




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not so contrary to the weight of the evidence as to shock one’s sense of

justice. Therefore, this claim lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2016




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