J-S78020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

OSCAR TERRETO CARTY

                            Appellant                No. 1042 MDA 2014


             Appeal from the Judgment of Sentence May 15, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0003824-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 24, 2014

       Oscar Carty attacked another male on a Reading street and stabbed

him with a sharp object measuring 6-8 inches. The victim nearly died. A

jury found Carty guilty of two counts of aggravated assault1 and one count

of possession of an instrument of crime (“PIC”) 2. In this direct appeal, Carty

challenges the sufficiency and weight of the evidence underlying his

convictions3. We affirm.

____________________________________________


1
  The jury found Carty guilty of one count of aggravated assault under 18
Pa.C.S. § 2702(a)(1) and a second count under 18 Pa.C.S. § 2702(a)(4).
2
  18 Pa.C.S. § 907.
3
  The trial court determined that the two aggravated assault convictions
merged for purposes of sentencing. It sentenced Carty to 7-15 years’
imprisonment for aggravated assault plus two years’ consecutive probation
for PIC. Carty filed timely post-sentence motions, which the trial court
denied, and a timely notice of direct appeal. Both Carty and the trial court
complied with Pa.R.A.P. 1925.
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      Carty raises the following issues on appeal:

            The evidence presented at trial was insufficient to
            establish beyond a reasonable doubt the guilty
            verdicts due to [Carty’s] justification defense which
            was not disproved by the Commonwealth.

            The guilty verdicts were contrary to the weight of the
            evidence, where [Carty] established a justification
            defense that was not otherwise disproved by the
            Commonwealth.

Brief For Appellant, pp. 10-16.


      Carty’s first argument is a challenge to the sufficiency of the evidence.

Our standard of review for challenges to the sufficiency of the evidence is

well-settled:

            [W]hether[,] viewing all the evidence admitted at
            trial   in    the  light most     favorable   to  the
            [Commonwealth as the] verdict winner, there is
            sufficient evidence to enable the fact-finder to find
            every element of the crime beyond a reasonable
            doubt. In applying [the above] test, we may not
            weigh the evidence and substitute our judgment for
            the fact-finder. In addition, we note that the facts
            and       circumstances     established     by    the
            Commonwealth need not preclude every possibility
            of innocence. Any doubts regarding a defendant’s
            guilt may be resolved by the fact-finder unless the
            evidence is so weak and inconclusive that as a
            matter of law no probability of fact may be drawn
            from       the    combined     circumstances.    The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted).


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      A person is guilty of aggravated assault under 18 Pa.C.S. § 2702(a)(1)

if he “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.”          “Bodily injury” is

“impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.

“Serious bodily injury” is “bodily 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.”          Id.   A

person acts “intentionally” with regard to a material element of an offense

when, “if the element involves the nature of his conduct or a result thereof,

it is his conscious object to engage in conduct of that nature or to cause

such a result.”   18 Pa.C.S. § 302(b)(1)(i).   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 gross
            deviation from the standard of conduct that a
            reasonable person would observe in the actor's
            situation.

18 Pa.C.S. § 302(b)(3).


      A person is guilty of aggravated assault under 18 Pa.C.S. § 2702(a)(4)

if he “attempts to cause or intentionally or knowingly causes bodily injury to

another with a deadly weapon.” A “deadly weapon” is “any firearm, whether

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loaded or unloaded, or any device designed as a weapon and capable of

producing   death   or    serious   bodily   injury,   or   any   other   device   or

instrumentality which, in the manner in which it is used or intended to be

used, is calculated or likely to produce death or serious bodily injury.”          18

Pa.C.S. § 2301.     A person acts “knowingly” with respect to a material

element of an offense when:


            (i) if the element involves the nature of his conduct
            or the attendant circumstances, he is aware that his
            conduct is of that nature or that such circumstances
            exist; and

            (ii) if the element involves a result of his conduct, he
            is aware that it is practically certain that his conduct
            will cause such a result.

18 Pa.C.S. § 302(b)(2).

      Construed in the light most favorable to the Commonwealth, the

evidence is as follows: at 12:30 a.m. on June 28, 2013, two friends, Frankie

Cordova and Jarrod Care, left Care's residence in Reading, Pennsylvania to

go to a convenience store.      N.T., pp. 57-58.       En route to the store, they

encountered a female named Kim Larrabee sitting in her vehicle. N.T., p. 59,

99.   Larrabee and Carty have a child together N.T., p. 145.                Cordova

approached Larrabee's vehicle to discuss an affair between Larrabee and the

mother of Care's children. N.T., p. 60.


      A taxi approached, and Carty exited from the taxi. N.T., pp. 62-63.

Carty began yelling at Larrabee to the effect of "this is what you do when


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I’m not around?" N.T., p. 103.      Carty then approached Care and began

yelling and pointing his finger.       N.T., p. 64-65.   Carty and Cordova

exchanged words and began punching each other. N.T.,pp. 66-67. Care was

not involved in the altercation but stood 10-15 feet away. N.T., p. 105.


      During the fight, Carty reached towards his back pocket, pulled out a

"sort-of-shiny object" and struck Cordova twice with the object, once in the

chest and once in the upper abdomen.        N.T., pp. 68-70, 106, 126, 131.

Feeling pain in his ribs, Cordova backed away and began stumbling towards

Care's house.     N.T., p. 68-70.     With his arm around Care for support,

Cordova lifted his shirt, and Care stated that it looked like Cordova had been

stabbed. N.T., p. 71.

      When Care and Cordova arrived at Care's house, another family

member took Cordova to Reading Hospital for treatment. N.T., p. 110.

Cordova left the hospital due to the wait and his belief that the injury was

not serious. N.T., p. 75. He returned to Care's house and went to sleep,

thinking that rest and food would help him. N.T., p. 75 Roughly four hours

later, he woke up and had difficulty breathing. N.T., p. 76. He was driven

back to Reading Hospital, where he collapsed in front of the entrance and

began vomiting.    N.T., pp. 77-78.    Medical personnel determined that the

stab wound to the upper abdomen had lacerated his liver and "nicked" his

pericardium, which caused blood to pool in his pericardium and disrupt the

functioning of his heart. N.T., pp. 126, 131.


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      The surgeon who treated Cordova, Dr. Thomas Geng, opined that (1)

the upper abdomen wound was roughly between "1 and 3 to 4 millimeters"

away from Cordova's heart; (2) the object used was 6-8 inches long and

very thin with a sharp point; and (3) a wound less than an inch closer to the

heart would likely have caused Cordova's immediate death. N.T., pp. 129-

30.

      Viewed in the light most favorable to the Commonwealth, this

evidence is sufficient to sustain Carty’s conviction for aggravated assault

under 18 Pa.C.S. § 2702(a)(1). Carty interrupted a conversation between

Cordova and Kim Larrabee, and during the ensuing fight, Carty intentionally

(or, at the very least, recklessly) stabbed Cordova twice with a sharp object

that was 6-8 inches long. Cordova suffered serious bodily injuries from the

stabbing, i.e., lacerations to his liver, pooling of blood in his pericardium,

and disruption of normal heart function. Lastly, Carty’s conduct manifests

extreme indifference to the value of human life.      The same evidence is

sufficient to sustain Carty’s conviction under section 2702(a)(4), because he

intentionally (or, at the very least, knowingly) caused bodily injury to

Cordova with a deadly weapon.

      Carty complains that the evidence is insufficient because he was acting

either in self-defense or to protect Larrabee from Cordova and Care.

Larrabee testified that before Carty arrived, Cordova and Care kicked her car,

and Cordova had snatched her cell phone and smashed it on the ground.


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N.T., pp. 139-40. Larrabee and Carty both testified that Cordova and Care

attacked Carty, and that Cordova threatened to get his “ratchet,” which both

Larrabee and Carty believed was a reference to a gun. N.T., pp. 144, 154-

55.

       Carty’s and Larrabee’s testimony does not render the evidence against

Carty insufficient. As stated above, our role in examining the sufficiency of

the evidence is to interpret the evidence in the light most favorable to the

Commonwealth. Viewed in this light, the evidence establishes that Carty did

not act in self-defense or in Larrabee’s defense but instead was the

aggressor against Cordova. By highlighting his own self-serving testimony

and the testimony of his paramour, Larrabee, Carty asks us to view the

evidence in the light most favorable to him instead of the Commonwealth 4.

       A person commits the crime of PIC “if he possesses any instrument of

crime with intent to employ it criminally.”      18 Pa.C.S. § 907(a).       An
____________________________________________


4
  In any event, there were significant inconsistencies in Carty’s and
Larrabee’s testimony. While Larrabee testified at trial that Cordova and Care
attacked Carty, a Reading police investigator testified that Larrabee told him
that (1) she could not identify the male who got out of the taxicab during
her confrontation with Cordova and Care, (2) the male chased Cordova and
Care, and (3) she drove away when the male began chasing Cordova and
Care. N.T., pp. 149, 169.

Carty testified that he first spotted the 6-8 inch object on the street when he
was knocked to the ground in the middle of the fight, and that he did not
know that he cut Cordova until the police charged him with aggravated
assault. N.T., pp. 156, 164-65. A Reading police sergeant testified that
after Carty’s arrest, Carty admitted telling Cordova: “Hey, check yourself. I
think I got you.” N.T., p. 177.



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instrument of crime is (1) “anything specially made or specially adapted for

criminal use” or (2) “anything used for criminal purposes and possessed by

the actor under circumstances not manifestly appropriate for lawful uses it

may have.”      18 Pa.C.S. § 907(d).       The sharp, 6-8 inch object that Carty

used to stab Cordova satisfies definition (2). It is the functional equivalent

of   a     knife,    a   device   “commonly     used    for    criminal     purposes.”

Commonwealth v. DeHoniesto, 624 A.2d 156, 161 (Pa.Super.1993).

With regard to the second element of definition (2) – “possessed. . .under

circumstances not manifestly appropriate for lawful uses it may have” -- we

“must look at the context in which the instrument was used.” DeHoniesto,

supra. Carty intentionally used the object to stab Cordova twice, and one

stab wound was nearly fatal. Further, because we view the evidence in the

light most favorable to the Commonwealth, the evidence of PIC is sufficient

notwithstanding Carty’s claim of self-defense or defense of Larrabee.

         In his second argument on appeal, Carty argues that his convictions

are contrary to the weight of the evidence. We disagree. When reviewing a

challenge to the weight of the evidence, this Court’s role is not to consider

the underlying question of whether the verdict was against the weight of the

evidence.           Commonwealth      v.    Kane,      10     A.3d   327,     332-333

(Pa.Super.2010). Instead, we must decide if the trial court palpably abused

its discretion when ruling on the weight claim. Id. In performing this task,

we must remember that the initial determination regarding the weight of the


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evidence is for the factfinder, who is free to believe all, some or none of the

evidence.   Id.   We must not reverse a verdict based on a weight claim

unless that verdict was contrary to the evidence so as to shock one's sense

of justice. Id. Moreover, “[a]n abuse of discretion is not a mere error in

judgment but, rather, involves bias, ill will, partiality, prejudice, manifest

unreasonableness, or misapplication of law.” Id.

      The trial court acted within its discretion by denying Carty’s weight

claim.   The parties presented different accounts as to Carty’s role in the

altercation with Cordova. The Commonwealth presented evidence that Carty

was the aggressor.    The defense insisted that Cordova and Case attacked

Carty, and that Carty miraculously spotted the sharp object in the street

during the fight and used it in desperation as a means of defense. It was

within the jury’s province to select which evidence to believe. The fact that

the jury chose to credit the Commonwealth’s version of the events does not

shock our sense of justice.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014




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