J-A12036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

FIDEL G. MONTANEZ,

                            Appellant              No. 1127 MDA 2014


        Appeal from the Judgment of Sentence entered June 17, 2014,
             in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0002170-2013


BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED JUNE 10, 2015

        Fidel G. Montanez (“Appellant”) appeals from the judgment of

sentence imposed after the trial court convicted him of aggravated assault

and recklessly endangering another person.1          We affirm Appellant’s

convictions but remand for re-sentencing for the reasons discussed below.

        The pertinent facts and procedural history are as follows: On March

24, 2013, Officers from the Lancaster City Bureau of Police received a report

of a shooting at a bar on 243 West King Street in Lancaster, Pennsylvania.

Affidavit of Probable Cause, 3/27/13. Upon arrival, the officers encountered

the victim, identified as Esau Gomez, lying on the ground of a parking lot

with a gunshot wound to his leg. Id. The victim related that he had been

____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1) and 2705.
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involved in an altercation with three Hispanic males, one of whom pointed a

gun at him and fired four to five shots in his direction, hitting him once in

the leg.    Id.   Following an investigation, police arrested Appellant and

charged him with attempted murder, aggravated assault, and recklessly

endangering another person.

      A non-jury trial commenced on March 17, 2014, at the conclusion of

which on March 19, 2014, the trial court found Appellant not guilty of

attempted    murder,   and   guilty   of   aggravated   assault   and   recklessly

endangering another person.        After rendering its verdict, the trial court

made a separate, specific factual finding that a firearm was visibly possessed

during the course of the commission of the crime, for purposes of the

mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712.             N.T.,

3/19/14, at 253-254.

      Following a hearing on June 17, 2014, the trial court sentenced

Appellant to a term of imprisonment of 5 to 10 years for aggravated assault,

under the mandatory minimum sentencing provisions of § 9712.                  The

sentence for recklessly endangering another person merged with aggravated

assault for sentencing purposes.

      Appellant filed a timely post-sentence motion, which the trial court

denied on June 23, 2014.         Appellant filed a timely appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 9125(b).          Appellant

presents three issues for our review:




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      I.   WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF
      LAW WHEN IT DENIED APPELLANT’S MOTION FOR JUDGMENT
      OF ACQUITTAL AND FOUND THERE WAS SUFFICIENT EVIDENCE
      TO CONVICT APPELLANT OF AGGRAVATED ASSAULT BEYOND A
      REASONABLE   DOUBT,   WHEN   THE  ONLY    EYEWITNESS
      TESTIMONY REGARDING APPELLANT POINTING A FIREARM AT
      THE VICTIM WAS EXPLICITLY CONTRADICTED AND PROVEN
      FALSE BY OBJECTIVE VIDEO FOOTAGE OF THE EVENTS IN
      QUESTION?

      II.  WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
      WHEN IT DENIED APPELLANT’S MOTION FOR A NEW TRIAL,
      FINDING THE AGGRAVATED ASSAULT VERDICT WAS NOT
      AGAINST THE WEIGHT OF THE EVIDENCE, DESPITE THE ONLY
      EYEWITNESS TESTIMONY CONCERNING APPELLANT’S POINTING
      A FIREARM AT THE VICTIM BEING EXPLICITLY CONTRADICTED
      AND PROVEN FALSE BY OBJECTIVE VIDEO FOOTAGE OF THE
      EVENTS IN QUESTION?

      III. WHETHER THE [TRIAL] COURT’S “MANDATORY” SENTENCE
      IMPOSED PURSUANT TO 42 PA.C.S.A. § 9712 WAS ILLEGAL, IN
      THAT THE SENTENCING STATUTE’S UNCONSTITUTIONAL
      PORTIONS ARE NON-SEVERABLE FROM ITS REMAINING
      PORTIONS AND THE STATUTE IGNORES THE MANDATES OF
      ALLEYNE AND ITS PROGENY?

Appellant’s Brief at x.

      In his first issue, Appellant argues that the evidence was insufficient to

support his aggravated assault conviction.     When reviewing a challenge to

the sufficiency of the evidence, we are bound by the following:

            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,


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     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. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).

     Appellant maintains that the evidence was insufficient for the trial

court as fact finder to determine how and when the victim was shot, in order

to establish Appellant’s guilt beyond a reasonable doubt and support his

aggravated assault conviction. Appellant’s Brief at 12-23.

     To support a conviction for aggravated assault pursuant to 18 Pa.C.S.A

§ 2702(a)(1), the Commonwealth is required to demonstrate that Appellant

“attempt[ed] to cause serious bodily injury to another, or cause[d] such

injury intentionally, knowingly or recklessly under circumstances manifesting

extreme indifference to the value of human life.”     “Where serious bodily

injury is inflicted, the Commonwealth is not required to prove a specific

intent; this is because aggravated assault may be proven if the defendant

acted recklessly.”   Commonwealth v. Hlatky, 626 A.2d 575, 581 (Pa.

Super. 1993).

     Reckless conduct is defined at 18 Pa.C.S.A § 302(b)(3) as follows:

     A person acts recklessly with respect to a material element of an
     offense when he consciously disregards a substantial and
     unjustifiable risk that the material element exists or will result
     from his conduct. The risk must be of such a nature and degree
     that, considering the nature and intent of the actor's conduct
     and the circumstances known to him, its disregard involves a


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      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor's situation.

      At trial, the victim, Esau Gomez, testified that on the date in question,

he, along with his brother-in law, Manuel Diego Esteban, and a friend named

Hernan Hernandez, became involved in a verbal altercation with Appellant

and his companions inside a bar on 243 West King Street. N.T., 3/17/14, at

17-22. After leaving the bar, the verbal altercation escalated into a physical

fight in the parking lot.   Id. at 35-36.   The victim testified that Appellant

retrieved a gun, pointed it up in the air, and then raised his hand, pointed it

towards the victim, and fired a shot which struck the victim in the thigh. Id.

at 36-37. Appellant then fired four or five more shots towards the victim’s

companions, who fled the scene.          Id. at 38-40.      Appellant and his

companions proceeded to kick and punch the victim for several more

minutes, but left before police arrived. Id. at 40-42. The Commonwealth

additionally presented the testimony of Appellant’s brother-in-law, Manuel

Diego Esteban, who testified that he saw an individual with a gun raise it,

fire in the air, and then shoot the victim in the leg. Id. at 84-86, 101.

      Appellant, who testified at trial, offered a different version of events.

Although Appellant admitted he had a gun and fired it on the night of the

incident, he testified that he “never leveled” his gun to shoot the victim, that

he only shot multiple times “up in the air” in an effort to “clear everybody

out”, and that it was not his intent to hurt anybody. N.T., 3/19/14, at 213-

221. The trial court, however, did not find Appellant’s testimony credible,



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and concluded that the evidence established that Appellant shot the victim,

and in doing so, acted recklessly, explaining in its Pa.R.A.P. 1925(a) opinion

that “[t]estimony at trial indicated that [Appellant] knowingly, under the

circumstances, manifested extreme indifference to the value of human life

by running and firing a gun multiple times.” Trial Court Opinion, 10/2/14, at

2-3. The trial court reasoned that “based upon the shell casings, [Appellant]

must have been moving as the weapon was discharged [and that] to say

that somehow it was just an accident that it went off and it was an accident

that it struck [Appellant] defies credibility.” N.T., 3/19/14, at 252-253. The

trial court concluded that “[Appellant’s] conduct in this case consciously

disregarded a substantial and unjustifiable risk that serious bodily injury

would result from his conduct.” Id.

      Upon review, we conclude that the Commonwealth presented sufficient

evidence to support the trial court’s determination that Appellant acted

recklessly. Although Appellant argues that the video surveillance footage did

not support the victim’s assertion that Appellant levelled the gun at him, the

victim testified that Appellant shot him, and the evidence, including the

video surveillance footage, was sufficient to establish that in the course of an

altercation, Appellant retrieved a weapon and while standing in close

proximity to the victim, fired the weapon multiple times, resulting in the

victim sustaining a gunshot injury to the leg. Although Appellant presented

a different version of events, we reiterate that the trial court as fact-finder is

free to believe all, part, or none of the evidence, and that the evidence

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established at trial need not preclude every possibility of innocence.         See

e.g., Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)

(citations omitted). Moreover, it is not within the province of this Court to

re-weigh the evidence and substitute our judgment for that of the fact-

finder. Id. We thus find no error in the trial court’s determination that the

Commonwealth sustained its burden of proving beyond a reasonable doubt

that Appellant recklessly caused serious bodily injury to another under

circumstances manifesting extreme indifference to the value of human life,

to satisfy every element of the crime of aggravated assault.           Appellant's

sufficiency claim is without merit.

      Appellant next challenges the weight of the evidence. Our scrutiny of

whether a verdict is against the weight of the evidence is governed by the

principles set forth in Champney, supra:

            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 lower court's verdict if it is so
      contrary to the evidence as to shock one's sense of justice.

            Moreover, where the trial court has ruled on the weight
      claim below, an appellate court's role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.


      In   his   weight   claim,   Appellant   argues   that   the   trial   court’s

determination that Appellant aimed his weapon at the victim was based on



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speculation and assumptions that were disproved by the evidence of record.

Appellant’s Brief at 24-27.    Specifically, Appellant claims that the victim’s

version of events – that Appellant pointed the gun at him and shot him - was

refuted by the video surveillance footage of the shooting and could not be

believed, and therefore the trial court’s verdict was against the weight of the

evidence. Id.

      “A new trial is warranted on a challenge to the weight of the evidence

only if the verdict is so contrary to the evidence as to shock one’s sense of

justice.   Furthermore, issues of credibility are left to the trier of fact; the

[factfinder] is free to accept all, part, or none of the witness testimony.”

Commonwealth v. Russell, 665 A.2d 1239, 1246-1247 (Pa. Super. 1995)

(citations omitted). Here, the trial court found credible the testimony of the

Commonwealth’s witnesses and evidence.         Although Appellant asserts that

the trial court’s determination that Appellant directed his gun in the victim’s

direction was “speculative”, the trial court, within its province as fact finder,

viewed the video surveillance footage, and concluded that at some juncture

in the course of the altercation, Appellant, while firing his gun, directed it at

the victim, shooting him in the leg.

      Upon careful review of the record, including the video footage, we

conclude that Appellant’s claim that the evidence was too speculative and

incredible to support his conviction to be meritless. The panning character

of the video footage does not show the victim being shot, and makes it

difficult to determine the precise moment at which the victim was shot, it

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does not disprove that Appellant recklessly fired his gun in the direction of

the victim. We find no abuse of discretion in the trial court’s finding that the

testimony and evidence presented by the Commonwealth was credible. See

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 541 (Pa. Super. 1995)

(it is solely for the finder of fact to determine the credibility of witnesses and

to resolve any conflicts or inconsistencies in the evidence).

      In his final issue, Appellant argues that the trial court imposed an

illegal sentence when it sentenced him to the mandatory minimum set forth

in 42 Pa.C.S.A. § 9712.       Appellant’s Brief at 27-32.   Appellant bases his

argument on the United States Supreme Court’s decision in Alleyne v.

United States, 133 S. Ct. 2151 (2013), and this Court’s decisions in

Commonwealth v. Newman, 99 A.3d 86 (Pa.                     Super. 2014) and

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). Pursuant

to Alleyne, “a fact that increases the sentencing floor is an element of the

crime [that] must be submitted to a fact-finder and proven beyond a

reasonable    doubt.    The    Alleyne   decision,   therefore,   renders   those

Pennsylvania mandatory minimum sentencing statutes that do not pertain to

prior convictions constitutionally infirm insofar as they permit a judge to

automatically increase a defendant's sentence based on a preponderance of

the evidence standard.”     Commonwealth v. Watley, 81 A.3d 108, 117

(Pa.Super.2013) (footnote omitted).

      In Valentine, in reliance on Alleyne and Newman, we found section

9712 to be facially unconstitutional because it permitted a trial judge to

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increase a defendant’s sentenced based on a preponderance of the evidence

standard. In reliance on Newman, we explained that the unconstitutional

provision of § 9712 could not be severed from the remainder of the statute,

and therefore the statute was unconstitutional as a whole.

      Here, the record reflects that at the sentencing hearing, the trial court

expressed that it was applying section 9712, stating on the record, “I think

the mandatory minimum ... is an acceptable sentence.” N.T., 6/17/14, at 7.

Because pursuant Valentine, Newman, and Alleyne, section 9712 has

been declared facially unconstitutional, we must vacate the Appellant’s

sentence and remand for re-sentencing without consideration of the § 9712

mandatory minimum sentencing provision.

      We recognize that at trial, the trial court as fact finder made a

separate and specific factual determination that Appellant visibly displayed a

gun, which would appear to comport with the requirements of Alleyne that

the factual prerequisites of the mandatory minimum sentence be decided by

the finder of fact beyond a reasonable doubt. However, in Valentine, we

made clear that the unconstitutional provisions of § 9712 were not

severable, but “essentially and inseparably connected” to the rest of the

statute, thereby rendering the statute unconstitutional as a whole. In both

Newman and Valentine, we rejected efforts by the Commonwealth and

trial courts to create new procedures in an effort to impose mandatory

minimum sentences in compliance with Alleyne. See Newman, 99 A.3d at

101 (rejecting Commonwealth’s request for remand for the empanelling of a

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J-A12036-15



sentencing jury “for the determination, beyond a reasonable doubt, as to

whether the conditions obtain under the evidence such that a mandatory

minimum sentence should be imposed”); Valentine, 101 A.3d at 801

(rejecting Commonwealth’s effort to comply with Alleyne by asking the

jury, on the verdict slip, to determine beyond a reasonable doubt whether

Appellant possessed a firearm that placed the victim in fear of immediate

serious bodily injury in the course of committing a theft for purposes of the

mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712(a), and

whether the crime occurred in whole or in part at or near public

transportation,   for   purposes   of    the     mandatory   minimum   sentencing

provisions of 42 Pa.C.S.A. § 9713(a)); Commonwealth v. Fennell, 105

A.3d 13 (Pa. Super. 2014) (rejecting Commonwealth’s assertion that

because the appellant stipulated to the drug weight for the purposes of trial,

any error regarding Alleyne was rendered harmless, and holding instead

that creating such a new procedure in an effort to impose a mandatory

minimum sentence is solely within the province of the legislature).

      Similarly, in the instant case, the requirements of Alleyne cannot be

circumvented by presenting to the trial court for determination beyond a

reasonable doubt, whether Appellant visibly possessed the firearm. Because

§ 9712 is unconstitutional in its entirety, the mandatory minimum sentence

imposed under this statute is illegal.

      Having found no merit to the sufficiency and weight of the evidence

claims raised by Appellant, we affirm his convictions.          However, we are

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constrained to vacate Appellant’s judgment of sentence and remand for

resentencing.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

      Judge Donohue joins the Memorandum.

      Judge Bowes concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2015




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