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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
PABLO FRAN VIERA-CASTRO,                   :         No. 1756 MDA 2019
                                           :
                          Appellant        :


         Appeal from the Judgment of Sentence Entered March 8, 2019,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0002137-2018


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED AUGUST 25, 2020

        Pablo Fran Viera-Castro appeals from the March 8, 2019 judgment of

sentence, entered in the Court of Common Pleas of Dauphin County, after a

jury convicted him of strangulation.1 The trial court sentenced appellant to

36 to 72 months’ incarceration. After careful review, we affirm.

        The facts, as summarized by the trial court, are as follows.

              [The victim] was in a relationship with [appellant],
              who is the father of the victim’s children. On April 9,
              2018, the victim dropped her son off at school and
              when she returned home, [] appellant was there.
              [A]ppellant followed her into her home uninvited. At
              some point, [] appellant touched the victim’s breasts,
              the victim pushed [] appellant, and [] appellant
              pushed the victim against the wall. [A]ppellant put
              his hands on the victim’s neck and the victim could
              only breathe a little. She had a hard time catching
              her breath because [] appellant’s hands were around

1   18 Pa.C.S.A. § 2718(a).
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              her neck. Afterwards, the victim went to her sister’s
              . . . nearby apartment, and called 9-1-1. At the time
              of the incident, a [p]rotection from [a]buse (“PFA”)
              [o]rder was in place.

              The Commonwealth introduced photographs of the
              injury . . . [and] the victim’s statement to police
              following the incident. . . . The victim also identified
              [] appellant. . . . [Detective] Patrick Corkle . . . was
              dispatched to the scene . . . [and] testified that when
              he arrived on the scene, the victim was crying and
              distraught. The victim told Detective Corkle that she
              had been strangled and pointed to red marks on her
              neck. Detective Corkle testified that he saw the red
              marks on the victim and that there was a current PFA
              order in place at the time of the incident.

Trial court Rule 1925(a) opinion, 12/30/19 at 2-3 (citations to notes of

testimony omitted).

         On March 6, 2019, a jury convicted appellant of strangulation. The trial

court imposed sentence on March 8, 2019.          No post-sentence motion was

filed.    On June 17, 2019, appellant filed a pro se Post Conviction Relief

Actpetition. Appellant’s direct appeal rights were reinstated nunc pro tunc

on September 26, 2019,2 and he was directed to file a post-sentence motion




2   42 Pa.C.S.A. §§ 9541-9546.


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within ten days. A post-sentence motion was filed on October 11, 2019,3 and

denied.     Appellant timely appealed.      Pursuant to the trial court’s order,

appellant filed a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b). Thereafter, the trial court filed its Rule 1925(a) opinion.

        Appellant raises the following issues on appeal:

              1.    Did the Commonwealth fail to present sufficient
                    evidence to allow a jury to return a verdict of
                    guilty on the charge of strangulation?

              2.    Was the verdict so contrary to weight of the
                    evidence that it shocks one’s sense of justice
                    such that a new trial should be granted where
                    the victim testified that during the short scuffle
                    [a]ppellant had his hand on her neck for one
                    second and that she could breathe the entire
                    time?

Appellant’s brief at 8 (bolding omitted).

        Appellant contends the Commonwealth failed to prove beyond a

reasonable doubt that he applied pressure to the victim’s throat or neck, that




3   As noted by the trial court,

              [d]istribution appears to indicate that this [o]rder was
              put in the mail on September 27, 2019. This [o]rder
              was not sent via certified mail nor was the [d]efendant
              apprised of his rights on the record. Defendant’s
              counsel has indicated that there was a delay in
              receiving this [o]rder and that she filed a
              post-sentence motion in a timely manner.

Trial court Rule 1925(a) opinion, 12/30/19 at 1-2 n.1.            The trial court
considered the motion to be timely filed. (Id. at 1.)


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the victim was unable to breathe, or that he acted knowingly or intentionally.

(See appellant’s brief at 13, 15.)

      We initially note that in both his Rule 1925(b) statement and the

statement of the questions involved in his appellate brief, appellant fails to

specify the elements upon which the evidence was insufficient to support his

conviction for strangulation. Where a Rule 1925(b) statement does not specify

the allegedly unproven elements, the sufficiency issue is waived on appeal.

See Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super. 2015).

Nonetheless, because appellant has set forth the elements he challenges in

his brief, we will address his sufficiency of the evidence argument.

      As to challenges to the sufficiency of the evidence,

            [o]ur standard of review for a challenge to the
            sufficiency of the evidence is well settled. We must
            view all the evidence in the light most favorable to the
            verdict winner, giving that party the benefit of all
            reasonable inferences to be drawn therefrom.
            Additionally, it is not the role of an appellate court to
            weigh the evidence or to substitute our judgment for
            that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003) (citations omitted), appeal

denied, 863 A.2d 1143 (Pa. 2004).

            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


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            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.
            Moreover, in applying the above test, the entire record
            must be evaluated and all evidence actually received
            must be considered. Finally, the finder of fact while
            passing upon the credibility of witnesses and the
            weight of the evidence produced, is free to believe all,
            part or none of the evidence.

Commonwealth v. Tejada, 107 A.3d 788, 792-793 (Pa.Super. 2015)

(citations omitted), appeal denied, 119 A.3d 351 (Pa. 2015).

      Pursuant to 18 Pa.C.S.A. § 2718(a), “[a] person commits the offense of

strangulation if the person knowingly or intentionally impedes the breathing

or circulation of the blood of another person by: (1) applying pressure to the

throat or neck; or (2) blocking the nose and mouth of the person.”             The

“[i]nfliction of physical injury to a victim is not an element of the offense”, and

“[t]he absence of physical injury to a victim is not a defense . . .” 18 Pa.C.S.A.

§ 2718(b). Further, “it is well-established that a victim's testimony alone can

be sufficient to sustain a conviction.” Commonwealth v. Johnson, 180 A.3d

474, 479 (Pa.Super. 2018) (citation omitted). “[A] solitary witness’s testimony

may establish every element of a crime, assuming that it speaks to each

element, directly and/or by rational inference.” Id. (italics omitted).

      In addressing the sufficiency of the evidence, in its Rule 1925(a)

opinion, the trial court found as follows:

            Here, the victim, albeit reluctantly, testified that on
            April 9, 2018, [a]ppellant came to her residence,


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            uninvited and followed her into her home. At some
            point, [a]ppellant touched the victim’s breast, she
            pushed him and [a]ppellant shoved her against a wall.
            [] Appellant put his hands on her neck and grabbed
            her to a point she had trouble catching her breath.
            The Commonwealth played the 9-1-1 call and
            introduced photographs of the victim’s neck area. As
            such, the jury was able to determine whether
            [a]ppellant knowingly or intentionally impeded the
            breathing of another person by applying pressure to
            the victim’s neck. Accordingly, the Commonwealth
            presented sufficient evidence for the jury to find the
            defendant guilty of strangulation. Based upon the
            totality of the evidence presented, this Court is
            satisfied that ample evidence existed to support the
            jury’s verdict as to strangulation beyond a reasonable
            doubt.

Trial court Rule 1925(a) opinion, 12/30/19 at 4. The record supports the trial

court’s findings.

      Here, the victim testified that appellant grabbed her neck to the extent

that it hurt and caused redness. (Notes of testimony, 3/5/19 at 19, 23-27.)

The victim could only breathe a little and had difficulty catching her breath.

(Id. at 17, 19.) Appellant said to the victim, “[w]hat do you want, for me to

kill you?” (Id. at 18.) The victim’s account of the incident was corroborated

by the detective’s testimony, photographs showing the redness on her neck,

and her 9-1-1 call to the police, wherein her voice was raspy. (Id. at 49-50,

54, 56, 57.) Further, “there is nothing in the [strangulation] statute that sets

forth the degree of breathing that is required to be impeded before

[s]trangulation has occurred.”      Commonwealth v. Frasier, 2020 WL

1490937 at *4 (Pa.Super. filed March 27, 2020) (unpublished memorandum).



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Taking the evidence in the light most favorable to the Commonwealth, as

verdict winner, there was sufficient evidence for the jury to find, beyond a

reasonable doubt, that appellant committed the crime of strangulation.

      Appellant asserts that the verdict was against the weight of the evidence

because the victim testified that “during the short scuffle [a]ppellant had his

hand on her neck for one second and that she could breathe the entire time.”4

(Appellant’s brief at 8.)

      We review the trial court’s exercise of discretion in ruling on the weight

claim, not the underlying question of whether the verdict was against the

weight of the evidence. Commonwealth v. Champney, 832 A.2d 403, 408

(Pa. 2003). It is not our role, as a reviewing court, to reweigh the evidence

and substitute our judgment for that of the fact-finder. Commonwealth v.

Mitchell, 902 A.2d 430, 449 (Pa. 2006). Further, “[r]esolving contradictory

testimony and questions of credibility are matters for the factfinder.”

Commonwealth v. Mikitiuk, 213 A.3d 290, 305 (Pa.Super. 2019) (citation

omitted).   “The essence of appellate review for a weight claim [lies] in




4 In both his post-sentence motion and Rule 1925(b) statement, appellant
merely sets forth a boilerplate weight of the evidence claim. (See appellant’s
post-sentence motion, 10/11/19 at ¶ 11; appellant’s Rule 1925(b) statement
of errors complained of on appeal, 11/22/19 at ¶ 2.) Appellant’s weight claim
is, therefore, waived. See Commonwealth v. Freeman, 128 A.3d 1231
(Pa.Super. 2015) (holding issues of sufficiency and weight of the evidence
waived for failing to offer specific reasons in Rule 1925(b) statement),
affirmed, 200 A.2d 587 (Pa. 2018). However, because appellant sets forth
a specified weight claim in his statement of questions involved, we will address
the issue. (See appellant’s brief at 8.)


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ensuring that the trial court’s decision has record support. Where the record

adequately supports the trial court, the trial court has acted within the limits

of its discretion.” Commonwealth v. Clay, 64 A.3d 1049, 1054 (Pa. 2013)

(citations and quotations omitted). To warrant a new trial on weight of the

evidence grounds, “the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.”     Commonwealth v.

Sullivan, 820 A.2d 795, 806 (Pa.Super. 2003).

      As found by the trial court:

            Again, we mention that the victim testified that
            [a]ppellant grabbed her by the neck and that she had
            a hard time catching her breath and could only
            breathe a little. The responding officer testified that
            the victim was distraught and crying and that he could
            see red markings on her neck. Photographs of her
            neck were also introduced for the jury to see and the
            9-1-1 call was played. Accordingly, in light of the
            record and the evidence presented, including the
            photographs of the victim’s injuries, the jury found
            [a]ppellant guilty of strangulation and such a finding
            does not shock [the trial c]ourt’s sense of justice.

Trial court Rule 1925(a) opinion, 12/30/19 at 5. This court agrees.

      In his brief, appellant invites us to do nothing more than assess the

victim’s credibility and reweigh the evidence in an attempt to convince us to

reach a different result than the jury reached.        We decline appellant’s

invitation. The jury, as fact-finder, had the duty to determine the credibility

of the testimony and evidence presented at trial. Appellate courts cannot and

do not substitute their judgment for that of the fact-finder.




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      Here, the trial court did not abuse its discretion in concluding that the

verdict was not against the weight of the evidence. Insofar as the verdict was

based on reason and not conjecture, we find no ground for granting appellant’s

motion for a new trial.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/25/2020




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