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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

STEVEN RENE GUZMAN-RODRIGUEZ,

                        Appellant                      No. 302 MDA 2015

       Appeal from the Judgment of Sentence of December 17, 2014
              In the Court of Common Pleas of Berks County
                        Criminal Division at No(s):
                         CP-06-CR-0000607-2014


BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                                FILED JULY 22, 2016

     Steven Rene Guzman-Rodriguez appeals from the December 17, 2014

judgment of sentence of two consecutive terms of six to twenty years

incarceration imposed after a jury found him guilty of aggravated assault

and two counts of intimidation of a witness. We affirm.

     The Commonwealth adduced the following evidence at trial.            On

January 20, 2012, a dispute arose between neighbors on the 300 block of

Pear Street, in Reading, Pennsylvania. Two sisters, Bianca Claudio and Ana

Rodriguez-Claudio, engaged in a verbal altercation with Geovanie Collazo-

Rosa, who lived across the street. Mr. Collazo-Rosa stood in the street as

the sisters shouted at him from Ms. Claudio’s porch.
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       Appellant, along with three other individuals, approached Mr. Collazo-

Rosa in Appellant’s red Toyota Corolla. Appellant sat in the passenger seat.

As the car came to a stop, shots rang out from the right side of the vehicle.

Five bullets, from two firearms, struck Mr. Collazo-Rosa as he stood on the

right side of the street.          Four bullets were fatal.       Appellant and his

accomplices fled the scene in the Toyota.              Police officers arrived shortly

thereafter,    and    found    Mr.    Collazo-Rosa     lying   dead   in   the   street.

Subsequently, Appellant solicited two men who intimidated Ms. Claudio on

his behalf. During the ensuing grand jury proceedings, Ms. Claudio testified

that Appellant confronted her and threatened to harm her daughter if she

identified him to investigators.

       A   jury    convicted     Appellant      of   the   above-mentioned       crimes.

Appellant’s aggravated assault conviction included a specific jury finding that

he did not use a firearm in the commission of the offense.                   The jury

acquitted him of first-degree murder, third-degree murder, and aggravated

assault with a deadly weapon.                  The court imposed two consecutive

sentences of six to twenty years incarceration.1                Appellant filed post

sentence motions, which were denied. This timely appeal ensued.

____________________________________________


1
  The two counts of intimidating a witness merged for sentencing.                  N.T.
Sentencing, 11/17/14, at 9.



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     The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.    Appellant complied,

and the trial court authored its opinion on February 3, 2016. The matter is

now ready for our review.   Appellant presents four issues for this Court’s

consideration.

     1. Whether the trial court abused its discretion and erred in
        determining that supposed grand jury testimony alluded to by
        the Commonwealth in its questioning of a witness was a) in
        the record at all where the Commonwealth never marked,
        authenticated, or admitted any such exhibit? And b) that the
        alluded to grand jury testimony was substantive evidence and
        not simply impeachment evidence?

     2. Whether the evidence was insufficient to sustain a conviction
        for the Aggravated Assault offense/no firearm possessed
        where a) there was no identification of [Appellant] as being
        present at the scene of the offense, and b) there was no
        evidence or testimony to support a conclusion that
        [Appellant] was in any way involved?

     3. Whether the trial court committed an abuse of discretion and
        prejudicial error by allowing, over objection, extensive
        testimony regarding the use of a particular phone number in
        the course of the events which was alleged by the
        Commonwealth to belong to [Appellant] despite the fact that
        the Commonwealth was never able to articulate how the
        phone number was connected to [Appellant]?

     4. Whether the trial court committed an abuse of discretion in
        sentencing by imposing consecutive, maximum, top of the
        aggravated range sentences for the stated reason that
        “[Appellant] is a danger to the community” where that
        conclusion is not supported in the record which indicates that
        [Appellant] has no prior convictions for crimes of violence,
        and which indicates, in connection with the aggravated


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            assault charge, that [Appellant] did not possess a weapon
            and was only “somehow” involved in the incident?

Appellant’s brief at 8.

      As Appellant’s second issue relates to the sufficiency of the evidence,

and a successful sufficiency challenge warrants discharge, we address that

issue at the outset. Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.Super.

2013) (en banc). In analyzing a sufficiency challenge, we must determine

“whether, viewing all the evidence admitted at trial in the light most

favorable to the verdict winner, there is sufficient evidence to enable a fact-

finder to find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015)

(citations omitted).      “In applying the above test, we may not weigh the

evidence and substitute our judgment for that of the fact-finder.      Id.   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.


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Id.

      Appellant contends there was insufficient evidence to support his

aggravated assault conviction since no witness testified definitively that he

was present during the shooting. Appellant’s brief at 25. Emphasizing the

jury’s specific finding that he did not possess a firearm while committing

these crimes, Appellant asserts that he could not be liable for the

aggravated assault since he was not found to possess a firearm, and there is

otherwise no evidence that he aided in the commission of aggravated

assault. Id. at 26.

      A person is guilty of aggravated assault 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.   18 Pa.C.S. § 2702(a)(1).     Where the victim suffers

serious bodily injury, the Commonwealth is not required to prove specific

intent. Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa.Super. 2007)

(en banc).    Instead, the Commonwealth “need only prove the defendant

acted recklessly under circumstances manifesting an extreme indifference to

the value of human life.” Id. (citation omitted). Moreover, “for the degree

of recklessness contained in the aggravated assault statute to occur, the

offensive act must be performed under circumstances which almost assure

that injury or death will ensue.” Id. (citation omitted).

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      Under the doctrine of accomplice liability, a person is guilty of an

offense if it is committed by his own conduct or by the conduct of another

person for which he is legally accountable, i.e., an accomplice in the

commission of an offense.     18 Pa.C.S. § 306(a) and (b).      A person is an

accomplice if, with the intent of facilitating the commission of the offense, he

solicits or aids the other person in committing it. 18 Pa.C.S. § 306(c).

      We now examine the proof adduced by the Commonwealth.                 Ms.

Claudio testified that she was present when Appellant visited her sister, Ana,

in his red Toyota Corolla earlier on the day of the shooting. N.T., 11/12/14,

at 134.    She later recognized that same car as Appellant’s when it

approached the victim during their argument.        Id. at 135.    At trial, Ms.

Claudio equivocated as to whether Appellant was one of the four individuals

in the car. Id. 136; 138-39; 154. She believed it was Appellant, but could

not assure the court it was him.     Id. at 154.    It was elicited that, at the

grand jury proceedings, Ms. Claudio reported that Appellant was the front

seat passenger.    Id. at 167-68.     Other witnesses observed gunfire that

originated from the front and rear passenger side of Appellant’s vehicle

striking the victim.   N.T., 11/10/14, at 46; 55.    Appellant, along with the

other individuals in his car, then fled the scene of the crime. Id. at 68-69.

      After viewing all the evidence admitted at trial in the light most

favorable to the Commonwealth, we find there is sufficient evidence to prove

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beyond a reasonable doubt that Appellant aided in the aggravated assault on

Mr. Collazo-Rosa. Contrary to Appellant’s position, Ms. Claudio’s testimony

alone suffices to demonstrate that Appellant was seated in the passenger

seat of his car during the commission of the crime. Ms. Claudio maintained

that she was familiar with Appellant’s vehicle, having seen it earlier that day,

and recognized the individual in the passenger seat as someone who looked

like Appellant.     Numerous witnesses observed that shots were fired from

Appellant’s car, fatally striking the victim. The fact that the jury found that

Appellant did not possess a firearm does not warrant discharge, as he

supplied the vehicle used to facilitate the crime as well as to flee the area.

This testimony is sufficient to place Appellant in his vehicle at the time of the

shooting, and to prove that he assisted in its commission. Thus, Appellant’s

contention fails.

      Having determined that there is sufficient evidence to support

Appellant’s conviction, we turn now to the remaining issues before us.

Appellant next assails the trial court’s rulings regarding the admissibility of

certain evidence. We note that the “admission of evidence rests within the

discretion of the trial court, and we will not reverse absent an abuse of

discretion.” Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa.Super 2014)

(citation omitted). The court abuses its discretion “when the course pursued

represents not merely an error in judgment, but where the judgment is

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manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or ill will. Id.

      Appellant’s argument is two-fold. First, Appellant asserts that the trial

court erred in considering grand jury testimony alluded to during the

examination of Ms. Claudio that was never admitted into evidence. Second,

Appellant contends that the court erred in viewing the testimony as

substantive evidence.       Appellant’s brief at 19.         Appellant notes that the

Commonwealth examined Ms. Claudio regarding statements she made

before the grand jury concerning the confrontation that she had with

Appellant wherein he personally threatened her, and her identification of

Appellant as being at the scene of the crime.                 He maintains that the

Commonwealth did not lay a foundation for introducing Ms. Claudio’s

inconsistent statements, and that they were not otherwise presented

through another witness. Id. 21-22.

      Appellant did not object that Ms. Claudio’s testimony regarding her

previous inconsistent statements were not admitted into the record,

otherwise authenticated, or could only be used as impeachment evidence.

To   the   extent   there    was      any    error,   this   argument   was   waived.

Commonwealth v. Stokes, 78 A.3d 644, 653 (Pa.Super. 2013) (finding

that “in order to preserve an issue for review, a party must make a timely

and specific objection at trial.”).

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      Assuming, arguendo, this matter were properly before us, Appellant is

not entitled to relief. Ms. Claudio’s testimony regarding her previous grand

jury testimony was itself substantive evidence which did not need to be

authenticated or admitted into evidence. Therefore, we find the trial court

did not err in admitting Ms. Claudio’s testimony.

      “A prior inconsistent statement of a declarant is admissible to impeach

the declarant.” Commonwealth v. Henkel, 938 A.2d 433, 442 (Pa.Super.

2007) (citation omitted).     Prior inconsistent statements may also be

admitted as substantive evidence

      provided the declarant testifies at trial and is subject to cross-
      examination concerning the statement and one of the following
      is true: 1) the prior inconsistent statement was given under oath
      subject to the penalty of perjury at a trial, hearing, deposition,
      or other proceeding; 2) the prior inconsistent statement is
      contained within a signed writing adopted by the declarant;
      and/or, 3) the rendition of the statement offered is a verbatim
      contemporaneous recording of an oral statement.

Id.; see also Pa.R.Evid. 803.1. The record reveals:

      [District Attorney]: Now, do you remember testifying before the
      grand jury back on June 13 of 2014? In front of the grand jury,
      do you remember me asking you questions in front of a big room
      of people?

      [Ms.Claudio]: Yes.

      Q: Do you remember you swore under oath to tell the truth?

      A: Yes.




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     Q: And you would agree with me that back then you had a
     fresher recollection of what happened?

     A: Yes.

     Q: And when you testified, were you testifying truthfully?

     A: Yes.

     Q: Do you recall testifying when I asked you the question, did
     [Appellant], himself, ever threaten you personally and your
     answer was, just the first time after we came out of the
     courthouse?

     A: I don’t remember seeing [Appellant] after the courthouse.

     Q: Do you remember testifying to that?

     A: Yes.

N.T., 11/12/14, at 148-49.    On redirect examination, the Commonwealth

again referred to Ms. Claudio’s grand jury testimony.

     Q: And is it fair to say that the first time that you brought up
     that [Appellant] was involved and the red car was in the grand
     jury testimony – your grand jury testimony; is that fair to say?

     A: Yes.

Id. at 167-68.

     To summarize, Ms. Claudio conceded that she previously made

statements before the grand jury inconsistent with her testimony at trial.

Ms. Claudio acknowledged her prior testimony on the record and was subject

to cross-examination.   Furthermore, her testimony before the grand jury

was given under oath and subject to the penalty of perjury.             The

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Commonwealth was not required to offer the transcript of the grand jury

proceedings, as Appellant suggests, or lay a foundation for Ms. Claudio’s

statements at trial in order to present them to the jury.               Rather, Ms.

Claudio’s testimony at trial regarding her prior inconsistent statements met

the structural requirements of Pa.R.E. 803.1, and the trial court did not

abuse its discretion in admitting it as substantive evidence.

      Next, Appellant contests the admission of testimony, phone records,

and   historical    location   data   regarding    a   cellular   telephone   number

purportedly linked to Appellant.       At trial, the Commonwealth attempted to

associate Appellant with a phone number, which was actually assigned to an

unknown third-party, to prove Appellant was present at the scene of the

crime. Appellant argues it was error to allow extensive testimony regarding

the phone number when the Commonwealth was unable to substantiate a

connection between that number and Appellant.                Appellant’s brief at 28.

Furthermore,       Appellant   maintains   that,   despite    the   court’s   curative

instruction calling for the jury to disregard all evidence related to the phone

number, the error was prejudicial. Appellant contends, “there was so little

evidence of appellant’s guilt that it is difficult to imagine how the jury could

have found him guilty of anything but for the fact they heard extensive

testimony . . . that the telephone number [was his],” and therefore a new

trial is warranted. Id. at 27-28. We disagree.

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      The Supreme Court of Pennsylvania has held that when the trial court

provides a curative instruction, the defendant’s failure to object to that

curative instruction indicates a satisfaction with the curative instruction. Any

prejudice is assumed to be cured since the jury is presumed to follow the

court’s instructions.   Commonwealth v. Jones, 668 A.2d 491, 504 (Pa.

1995).

      Here, the Commonwealth offered phone records as well as lay and

expert testimony to connect Appellant to a cellular phone that was within Mr.

Collazo-Rosa’s vicinity at the time of his death.      The trial court initially

permitted the Commonwealth to proceed based on its assurance that such a

connection would be corroborated. At the time of its offering, this evidence

was relevant circumstantial evidence tending to show that Appellant was

present near the scene of the crime. See Gonzalez, supra; Pa.R.E. 401.

Hence, the trial court did not abuse its discretion in admitting it into

evidence.

      Nevertheless, the Commonwealth subsequently failed to substantiate

an association between Appellant and the cell phone. As a result, the trial

court prohibited the jury from considering the phone records, or the related

testimony.    N.T., 11/13/14, at 349-50.      Appellant did not object to the

court’s curative instruction. Thus, we find the court’s instruction cured any

prejudice arising from this evidence. Jones, supra. Furthermore, contrary

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to Appellant’s position herein, there was sufficient evidence of Appellant’s

involvement in the death of Mr. Collazo-Rosa above and beyond any

circumstantial evidence provided by the cellular phone evidence.        Thus,

Appellant’s contention fails.

      Finally, Appellant challenges the discretionary aspects of his sentence.

We note, “there is no absolute right to appeal when challenging the

discretionary aspect of a sentence.”   Commonwealth v. Dodge, 77 A.3d

1263, 1268 (Pa.Super. 2013) (citations omitted).     An “appeal is permitted

only after this Court determines that there is a substantial question that the

sentence was not appropriate under the sentencing code.” Id. A defendant

presents a substantial question when he “sets forth a plausible argument

that the sentence violates a provision of the sentencing code or is contrary

to the fundamental norms of the sentencing process.” Id. Furthermore, “in

order to properly present a discretionary sentencing claim, a defendant is

required to preserve the issue in either a post-sentence motion or at

sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise statement.”

Id. Moreover, on appeal, the defendant “must provide a separate statement

specifying where the sentence falls in the sentencing guidelines, what

provision of the sentencing code has been violated, what fundamental norm

the sentence violates, and the manner in which it violates the norm.” Id.




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     Appellant preserved this issue in his post-sentence motion, Pa.R.A.P.

1925(b) statement, and provided a Pa.R.A.P. 2119(f) statement.           We

observe that Appellant failed to indicate what provision of the sentencing

code was violated.   However, the Commonwealth has not challenged the

adequacy of Appellant’s 2119(f) statement, and therefore we will consider

whether Appellant has raised a substantial question for our review.

      Appellant claims the trial court erred when it imposed consecutive

sentences at the top of the aggravated range of the sentencing guidelines.

Appellant’s brief at 29.    Appellant maintains that such a sentence is

manifestly excessive, citing to Dodge, supra for the proposition that such

sentences may raise a substantial question as to their propriety. Id. at 30.

Furthermore, Appellant asserts that the trial court stated reasons for

sentencing in the aggravated range that were already included in the

standard sentencing guidelines, were unsupported by the record, or were

irrelevant. Id. at 29-33.

     Generally, a bald excessiveness claim does not raise a substantial

question.   See Dodge, supra.        However, an excessiveness claim in

conjunction with Appellant’s claim that the court’s decision is supported by

irrelevant considerations or facts outside the record may raise a substantial

question. See Dodge, supra; Commonwealth v. Zeigler, 112 A.3d 656

(Pa.Super. 2015) (finding a bald excessiveness claim in combination with an

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assertion court did not adequately consider a mitigating factor may present

a substantial question).

      Having concluded that Appellant has presented a substantial question

for our review, we turn to the merits of his sentencing claim.   “We analyze

the sentencing court’s decision under an abuse of discretion standard.”

Zeigler, supra at 661 (citation omitted). In addition, “this Court’s review of

the discretionary aspects of a sentence is confined by the statutory

mandates of 42 Pa.C.S. § 9781(c) and (d).” Id. at 661. Section 9781(c)

provides that this Court shall vacate a sentence and remand under three

circumstances:

      (1)   the sentencing court purported to sentence within the
            sentencing   guidelines but   applied  the guidelines
            erroneously;

      (2)   the sentencing court sentenced within the sentencing
            guidelines but the case involves circumstances where the
            application   of  the    guidelines   would  be   clearly
            unreasonable; or

      (3)   the sentencing court sentenced outside the sentencing
            guidelines and the sentence is unreasonable.

42 Pa.C.S. § 9781(c). In addition, we consider:

      (1)   The nature and circumstances of the offense and the
            history and characteristics of the defendant.

      (2)   The opportunity of the sentencing court to observe the
            defendant, including any presentence investigation.

      (3)   The findings upon which the sentence was based.

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      (4)    The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      Instantly, the Commonwealth apprised the sentencing court of the

guidelines applicable to Appellant. The offense gravity score for aggravated

assault was eleven and Appellant’s prior record score was one.           N.T.

Sentencing, 11/17/14, at 3.    The standard range was forty-two to sixty

months. Id. Thus, Appellant’s mitigated range was as low as thirty months,

and the maximum aggravated range was seventy-two months.                 Id.

Similarly, since Appellant’s offense gravity score for intimidating a witness

was eleven, having been graded as a felony of the first degree, the ranges

for this count were identical to Appellant’s aggravated assault conviction.

Id.   Using the guideline matrix, the court imposed aggravated range

sentences to be run consecutively at each count, and provided the following

reasoning:

      The multiple – he had multiple current convictions. He was on
      probation or parole at the time of his arrest. He’s a repeat
      criminal. He had a pattern of criminal behavior. He’s a danger
      to society. He’s a poor candidate for rehabilitation. The victim
      was injured [sic] and a lesser sentence would depreciate the
      seriousness of the crime.

Id. at 8.

      Based on the foregoing, Appellant’s aggregate sentence of twelve to

forty years of incarceration was not clearly unreasonable.        The court

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sentenced Appellant within the sentencing guidelines, albeit at the top of the

aggravated range.     In addition, the circumstances surrounding Appellant’s

conviction do not warrant a finding that the consecutive sentences were

unreasonable.     Appellant participated in the close-range slaying of Mr.

Collazo-Rosa, and fled the scene while the victim lay dying in the street.

Two other individuals were injured during this shooting, one of whom was

also fatally shot. The sentencing court heard, on the record, that at the time

of the shooting, Appellant was on bail for a drug offense.      Furthermore,

Appellant solicited two individuals to threaten a key witness in an attempt to

avoid prosecution for this crime. Lastly, the sentencing court reviewed the

presentence report, and had the opportunity to observe Appellant’s

demeanor throughout his trial and sentencing hearing.         Therefore, the

sentencing court had valid reasons, supported by the record, to impose

aggravated range sentences to run consecutively, and we discern no abuse

of the trial court’s discretion in this regard.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016


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