J-S30036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

VICTOR SALGADO

                            Appellant                     No. 3262 EDA 2014


            Appeal from the Judgment of Sentence October 9, 2014
                in the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0001059-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                 FILED JULY 14, 2015

        Appellant Victor Salgado appeals from the judgment of sentence

entered in the Lehigh County Court of Common Pleas following his jury trial

conviction for escape.1 We affirm.

        In early 2014, Appellant was resident at the Lehigh County Community

Corrections Center (“CCC”), a county work release facility. On February 18,

2014, Appellant left the facility at 6:30 a.m. to engage in a job search.

Appellant was scheduled to return to CCC no later than 12:30 p.m. on the

afternoon of February 18, 2014.            Appellant did not return or contact the

facility to inform authorities of his whereabouts.        On March 3, 2014, the

Lehigh County Sheriff’s Department received a tip about Appellant’s
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1
    18 Pa.C.S. § 5121(a).
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whereabouts and, after a brief investigation, located and arrested him

without incident.

      On October 7, 2014, a jury convicted Appellant of escape.       The trial

court sentenced him to 15 to 36 months’ incarceration.        Appellant filed a

timely post-trial motion based on the sufficiency and weight of the evidence,

which the trial court denied on October 27, 2014. On November 26, 2014,

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

      A. Whether or not the evidence as presented was sufficient as a
      matter of law to support the conviction for escape when
      [Appellant] presented evidence that he acted under duress in
      escaping from the work release facility as he was threatened
      with serious bodily injury and the Commonwealth failed to
      disprove the defense of duress?

      B. Was the verdict against the weight of all the evidence in
      regards to the proof of whether or not [Appellant] acted under
      duress in committing the escape?

Appellant’s Brief, p. 7 (all capitals removed).

      Appellant first claims that the Commonwealth adduced insufficient

evidence to support his conviction for escape. See Appellant’s Brief, pp. 11-

13. Specifically, Appellant argues that the Commonwealth failed to disprove

that he committed the crime of escape under duress. See id. This claim

lacks merit.

      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:


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     The standard we apply in reviewing the sufficiency of the
     evidence is whether viewing all the evidence admitted at trial in
     the light most favorable to 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.           Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [trier] 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. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

     The Crimes Code defines escape as follows:

     Escape.--A person commits an offense if he unlawfully removes
     himself from official detention or fails to return to official
     detention following temporary leave granted for a specific
     purpose or limited period.

18 Pa.C.S. § 5121(a).

     Duress is a defense to criminal culpability.       Commonwealth v.

Markman, 916 A.2d 586, 606 (Pa.2007). The Crimes Code provides:

     It is a defense that the actor engaged in the conduct charged to
     constitute an offense because he was coerced to do so by the
     use of, or a threat to use, unlawful force against his person or
     the person of another, which a person of reasonable firmness in
     his situation would have been unable to resist.




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18 Pa.C.S. § 309(a).     To successfully employ the defense of duress, a

defendant must establish the following:

      [1] the escapee must be confronted with a specific threat of
      death or serious bodily injury; [2] there must either be no time
      to complain to authorities, or a history of futile complaints; [3]
      there must be no evidence of force by the escapee against
      prison personnel or others in the escape; [4] and the escapee
      must return to official detention as soon as possible after leaving
      the prison.

Commonwealth v. Kaminski, 502 A.2d 1281, 1285 (Pa.Super.1985)

(internal quotations and citation omitted).    “[U]nless all four requirements

exist, the defense of duress fails.”   Id.   Therefore, “if the Commonwealth

disproved, beyond a reasonable doubt, one of these prerequisites, such as

the specific threat, or the expeditious return to the authorities, the

Commonwealth has met its burden.” Id. at 1285-86.

      The trial court summarized the trial evidence thusly:

              The parties presented the jury with a stipulation (Exhibit
      C-9) that [A]ppellant was lawfully incarcerated at the CCC on the
      date of the alleged escape. Timothy Carver, the warden of CCC,
      testified that [A]ppellant was an inmate at CCC in January and
      February of 2014. He authenticated Commonwealth Exhibit C-8,
      [A]ppellant’s CCC time card. According to the time card for
      February 18, 2014, [A]ppellant permissibly left the work release
      facility at 6:30 a.m. to engage in a job search. According to the
      warden, [A]ppellant had to return to CCC by no later than 12:30
      p.m. that day. However, there was no return time on the time
      card. Warder Carver confirmed that [A]ppellant failed to return
      to the facility.

            Clifford Knappenberger, the Internal Affairs Director for the
      Lehigh County Department of Corrections, testified that he was
      contacted by Warden Carver after [A]ppellant failed to return to
      CCC. Knappenberger then prepared a criminal complaint and


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     arrest warrant for [A]ppellant which were signed by District
     Judge Karen Devine.

            The Commonwealth’s final witness was Matthew Joseph, a
     deputy in the Lehigh County Sheriff’s Department.          Deputy
     Joseph testified that he received the arrest warrant for
     [A]ppellant. On March 3, 2014, Deputy Joseph received a tip
     from a Lehigh County Jail official that [A]ppellant was at a blood
     clinic in Allentown. Deputy Joseph went to the clinic and took
     with him a photograph of the [A]ppellant. Appellant was not at
     the blood clinic. The deputy then began to search the area
     around the clinic and located [A]ppellant in the 1300 block of
     Wayne Street. Deputy Joseph approached [A]ppellant and asked
     for identification. Appellant gave it and was cooperative. He
     was taken into custody without incident.

           Appellant took the stand in his own defense at trial. He
     did not contest that he consciously failed to return to CCC.
     However, he claimed that other inmates at the CCC were
     threatening violence against him so he left the facility to ensure
     his safety.

            Appellant explained he was an inmate at the main Lehigh
     County Jail prior to being placed in CCC. He claimed that he was
     assaulted by several inmates at the jail on January 9, 2014. He
     explained that he wrote to jail staff and expressed a desire to file
     a private criminal complaint against his attackers. On January
     16, 2014, Director Knappenberger responded to [A]ppellant’s
     inquiry and provided him with the forms and directions needed
     to file a private criminal complaint. Appellant admitted that he
     never filed the complaint because he did not know the names of
     his attackers.

           Appellant testified that he was transferred to CCC on
     January 28, 2014. Appellant stated that, on February 11, 2014,
     he was confronted by a group of inmates at CCC. Two in the
     group had box cutters. Some in the group told [A]ppellant to
     leave CCC or he would be attacked. Immediately after the
     confrontation, [A]ppellant filled out an unsigned request form
     about the threat and placed it under the door of his case
     manager. He also got a copy of the form to Sergeant Douglas
     Moyer of CCC. Appellant did not reveal to his case manager or
     Sergeant Moyer that he filled out the information on the form.
     The next day, according to Appellant, he saw Sergeant Moyer
     searching the lockers of the inmates who had confronted him.


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      Appellant approached Moyer and told him to search inside a
      jacket in one of the lockers. Sergeant Moyer did so and he
      found box cutters there.

            Appellant testified that, on February 18, 2014, he was
      scheduled to leave CCC for a job search. At 4:45 a.m. prior to
      his leaving CCC, [A]ppellant said he was confronted by two CCC
      inmates in a bathroom. The inmates told [A]ppellant that they
      knew that he was the person who had complained to CCC staff
      about the box cutters. According to [A]ppellant, they told him to
      leave the CCC or he would be attacked. Appellant left CCC as
      scheduled without complaining to staff about the altercation.
      Appellant told the jury that he went to his sister’s residence and
      decided not to return to CCC because he feared that his life was
      in danger.

Trial Court Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion)”, filed January 22,

2015, pp. 3-5.

      Appellant’s own testimony established that there was no evidence of “a

history of futile attempts” to complain to authorities. To the contrary, CCC

staff took steps to ensure Appellant’s safety following his February 11, 2014

complaint.    Further, Appellant’s testimony established that he did not

expeditiously return to the authorities once safe from the immediate harm

he alleged caused him to flee CCC. He did not need to return to CCC, he

simply needed to timely surrender to law enforcement officials somewhere.

He did not and testified he did not intend to do so.

      Because    Appellant’s   own   testimony    defeated   multiple   duress

prerequisites, the Commonwealth met its burden of disproving the defense

of duress.   See Kaminski, supra.      Accordingly, Appellant’s sufficiency of

the evidence claim fails.




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      Appellant next claims that the verdict was against the weight of the

evidence. See Appellant’s Brief, p. 13-14. Appellant bases this claim on his

conviction that his own testimony was “clear and wholly believable.” See id.

at 14. He is again incorrect.

      The denial of a new trial based on a lower court’s determination that

the verdict was not against the weight of the evidence is one of the least

assailable   reasons   for   granting    or   denying   a   new   trial.   See

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

reviews weight of the evidence claims pursuant to the following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. A trial judge must
      do more than reassess the credibility of the witnesses and allege
      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

      Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to


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the evidence as to shock one’s sense of justice, 2 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).            Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.        Widmer, 744 A.2d at 753.      When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

       Simply stated, the jury’s verdict in this matter illustrates that the jury

found the testimony of the Commonwealth’s witnesses credible, and

Appellant’s testimony incredible. The Commonwealth, as discussed supra,

proved every element of the crime of escape and disproved the defense of

duress.     The trial court agreed with the jury’s assessment in denying

Appellant’s post-sentence motion for a new trial based on the weight of the
____________________________________________


2
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).




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evidence. As the trial court noted, “nothing about the jury’s verdict [] could

shock a reasonable person’s sense of justice.” See 1925(a) Opinion, p. 8.

Thus, Appellant’s weight of the evidence claim warrants no relief.

      For the preceding reasons, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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