J-S25044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JULIAN FUENTES                             :
                                               :
                       Appellant               :      No. 1657 MDA 2019

          Appeal from the Judgment of Sentence Entered July 22, 2019
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0004518-2018


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.:                                   FILED JULY 30, 2020

        Appellant, Julian Fuentes, appeals nunc pro tunc from the judgment of

sentence entered in the Dauphin County Court of Common Pleas, following his

jury trial convictions for intimidation of a witness/victim and strangulation.1

We affirm Appellant’s convictions, but vacate the judgment of sentence in its

entirety and remand with instructions.

        The relevant facts and procedural history of this case are as follows. On

August 13, 2018, Appellant accosted Victim, his former paramour, and put her

in a chokehold.       Police apprehended Appellant, and the Commonwealth

charged Appellant with, inter alia, aggravated assault, a first-degree felony.

Subsequently, Appellant called Victim while he was incarcerated and


____________________________________________


1   18 Pa.C.S.A. §§ 4952(a)(3) and 2718(a)(1), respectively.
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attempted to influence her to drop the allegations against him.             The

Commonwealth later filed a criminal information charging Appellant with

intimidation of a witness/victim—withhold evidence, aggravated assault,

strangulation, unlawful restraint, and false imprisonment.

       During a January 18, 2019 pre-trial hearing, Appellant expressed his

intent to represent himself. On June 10, 2019, the court conducted a Grazier2

hearing and permitted Appellant to proceed pro se with the assistance of

standby counsel.

       Also on June 10, 2019, Appellant’s jury trial commenced. At trial, Victim

testified she and Appellant had been in a romantic relationship for

approximately one year. The relationship ended in the summer of 2018, and

Victim obtained a protection from abuse order against Appellant in June 2018.

On August 13, 2018, Victim agreed to have Appellant come to her home.

While there, Appellant became angry with Victim and put her in a chokehold

in her bedroom. Victim elaborated as follows:

          [Commonwealth]:          When you say a chokehold, what do
          you mean exactly?

          [Victim]:                [Appellant] put his arm around my
          neck.

          [Commonwealth]:          Did he apply pressure?

          [Victim]:                Yes.

          [Commonwealth]:          How much pressure?
____________________________________________


2   Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

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         [Victim]:               It was enough to make me pass out.

                                     *      *   *

         [Commonwealth]:         You mentioned that you passed out.

         [Victim]:               Yes.

         [Commonwealth]: Can you estimate how long it took
         between the time [Appellant] first put his arm around your
         neck until the time you passed out?

         [Victim]:               I can’t.

         [Commonwealth]: Okay. During this period of time, were
         you able to breathe?

         [Victim]:           I—I remember as I came to I was
         gasping, so I don’t—I don’t—maybe not. I gasped when I
         came to.

(N.T. Trial, 6/10/19, at 42-43).         Victim then attempted to escape, and

Appellant pursued Victim into the dining room. Victim described the incident

in the dining room as follows:

         [Victim]:           … He instantly put me in another
         chokehold as soon as I got down the stairs. He put his arm
         around my throat but this time he wrapped his leg around
         my legs and he again choked me out.

         I blacked out, but I wasn’t all the way blacked out. I was—
         I was—I couldn’t speak, I couldn’t move, but I could kind of
         blurrily see things around me. And I felt my body jerking.

         … I don’t know if he slapped or punched me, but when I
         came to, I wasn’t in the dining room anymore. I was in the
         living room on the floor….

(Id. at 45-46).

      Following Appellant’s arrest, Appellant called Victim while he was

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incarcerated. As summarized by the trial court:

         While he was incarcerated on these charges, [Appellant]
         placed a telephone call to [Victim]. That call was played at
         trial for the jury. In the call, [Appellant] repeatedly and in
         an intimidating manner asks [Victim] to drop the charges
         and tells [Victim] that his brother will be in contact with her.
         A subsequent call played for the jury revealed that
         [Appellant] called his brother to request his intervention to
         get [Victim] to drop the charges. These calls occurred in
         the context of a prior incident that was presented to the
         jury, in which [Appellant] sent [Victim] a photo of himself
         holding a gun following an argument. …

(Trial Court Opinion, filed November 29, 2019, at 4) (internal citations to

record omitted).

      During the jury charge, the court instructed the jury regarding the

grading of the witness intimidation/victim charge as follows:

         Third, that the most serious offense charged in this case
         which [Appellant] sought to influence the witness on was a
         first-degree felony. And I must instruct you that aggravated
         assault would be a first-degree felony.

                                   *    *    *

         The third element of this is that the most serious offense
         charged in this particular case is a felony of the first-degree
         and that person would have been a witness related to a
         felony of the first degree. …

(N.T. Trial, 6/11/19, 194, 207).

      On September 12, 2019, the jury convicted Appellant of one count each

of intimidation of a witness/victim—withhold evidence and strangulation, both

as first-degree felonies. The court sentenced Appellant on July 22, 2019, to

seven and one-half (7½) to fifteen (15) years’ incarceration for the


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intimidation of a witness/victim conviction, as a first-degree felony. The court

also sentenced Appellant to six (6) to twelve (12) years’ incarceration for the

strangulation conviction, concurrent to the sentence for witness/victim

intimidation.

      On August 2, 2019, Appellant timely filed a counseled petition brought

under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546,

seeking reinstatement of his post-sentence rights nunc pro tunc. The court

granted Appellant’s petition on August 9, 2019.        Trial counsel resumed

representation of Appellant for post-sentence proceedings and Appellant

timely filed a post-sentence motion nunc pro tunc challenging, inter alia, the

weight of the evidence as to both convictions. The court denied post-sentence

relief on September 9, 2019. Appellant filed a timely notice of appeal nunc

pro tunc on October 8, 2019. The court ordered Appellant on October 10,

2019, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant timely complied on October 31, 2019.

      Appellant raises two issues for our review:

         Did not the [trial] court abuse its discretion by failing to
         grant [Appellant] a new trial on the basis that the guilty
         verdict for the offense of strangulation was against the
         weight of the evidence when the totality of the evidence was
         unreliable, contradictory, and incredible?

         Did not the [sentencing] court illegally sentence [Appellant]
         for intimidation of a witness graded as a first-degree felony
         rather than as a second-degree misdemeanor, where the
         charging document recited only the elements appropriate
         for the misdemeanor grading under 18 Pa.C.S.A. § 4952(a)
         and where the jury was not instructed on the additional facts

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          which give rise to the felony versions of the offense under
          18 Pa.C.S.A. § 4952(b)(1)(i), (ii), (iii), or (iv)?

(Appellant’s Brief at 5) (reordered for purposes of disposition).

      In his first issue, Appellant argues Victim’s testimony that Appellant

impeded her breathing was equivocal. To the extent that Victim’s testimony

established that Appellant restricted her breathing, Appellant contends the

impediment was minimal. Appellant avers the questionable evidence of only

minor impairment of Victim’s ability to breathe did not show Appellant acted

intentionally or knowingly.    Appellant submits the Commonwealth did not

introduce evidence demonstrating Victim suffered injuries to her neck and

throat.   Appellant concludes his strangulation conviction was against the

weight of the evidence, and he is entitled to a new trial. We disagree.

      The following principles apply to a weight of the evidence claim:

             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…verdict if it is so contrary to the
             evidence as to shock one’s sense of justice.

          Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
          666, 672-73 (1999). 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.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)


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(most internal citations omitted).

      Section 2718 of the Crimes Code defines the offense of strangulation, in

relevant part, as follows:

         § 2718. Strangulation

         (a)    Offense defined.−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[.]

                                     *    *    *

         (b)     Physical injury.—Infliction of a physical injury to a
         victim shall not be an element of the offense. The lack of
         physical injury to a victim shall not be a defense in a
         prosecution under this section.

18 Pa.C.S.A. § 2718(a)(1), (b).

      The Crimes Code defines “intentionally” and “knowingly,” as follows:

         § 302. General requirements of culpability

                                     *    *    *

         (b)   Kinds of culpability defined.—

            (1) A person acts intentionally with respect to a
            material element of an offense when:

               (i) 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; and

               (ii) if the   element     involves   the    attendant
               circumstances, he is aware of the existence of such
               circumstances or he believes or hopes that they exist.

            (2)   A person acts knowingly with respect to a material

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            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.A. § 302(b)(1-2). “Intent can be proven by circumstantial evidence

and may be inferred from the defendant’s conduct under the attendant

circumstances.”      Commonwealth v. Reynolds, 835 A.2d 720, 726

(Pa.Super. 2003).

      Instantly, the trial evidence demonstrated that Appellant applied

pressure to Victim’s neck two separate times. Each time, Appellant clutched

Victim’s neck long enough to render Victim unconscious or nearly unconscious.

Victim recalled regaining awareness after each chokehold. In one instance

Victim gasped for air, and in the other she awoke in a different room than the

one in which Appellant had choked her. Appellant’s grasp on Victim’s neck

blurred her vision and caused her to convulse.               Consequently, the

Commonwealth established each element of strangulation. See 18 Pa.C.S.A.

§ 2718(a)(1).     Contrary to Appellant’s assertion, the infliction of physical

injury is not an element of strangulation and the absence of physical injury is

not a defense. See 18 Pa.C.S.A. § 2718(b). The record evidence supports

the trial court’s conclusion that the verdict was not against the weight of the

evidence.   See Champney, supra.         The jury was free to assess Victim’s

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credibility, resolve any inconsistencies in her testimony, and to give her

testimony the appropriate weight.       Id.    Therefore, we see no abuse of

discretion in the court’s decision to reject Appellant’s weight claim.       Id.

Accordingly, we affirm Appellant’s strangulation conviction.

      In his remaining issue, Appellant argues the trial court did not accurately

instruct the jury on the statutory criteria for grading the witness/victim

intimidation charge. Appellant submits the jury did not find facts necessary

to grade the witness/victim intimidation conviction as a first-degree felony,

and the conviction should have been graded as a second-degree misdemeanor

instead. Appellant concludes the sentence for his witness/victim intimidation

conviction as a first-degree felony is illegal, and this Court must vacate and

remand for resentencing on this conviction. We agree.

      “A claim that the court improperly graded an offense for sentencing

purposes implicates the legality of a sentence.”            Commonwealth v.

Mendozajr,     71   A.3d   1023,    1027      (Pa.Super.   2013).    See    also

Commonwealth v. Raymond, ___ A.3d ___, 2020 PA Super 125 (filed May

27, 2020) (construing challenge to grading of intimidation of witness or victim

conviction as challenge to legality of sentence). When examining a challenge

to the legality of a sentence, our scope and standard of review is as follows:

         A claim that implicates the fundamental legal authority of
         the court to impose a particular sentence constitutes a
         challenge to the legality of the sentence. If no statutory
         authorization exists for a particular sentence, that sentence
         is illegal and subject to correction. An illegal sentence must
         be vacated. When the legality of a sentence is at issue on

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         appeal, our standard of review is de novo and our scope of
         review is plenary.

Mendozajr, supra at 1027 (internal citations and quotation marks omitted).

      The Crimes Code provides the following grading scheme for the crime

of intimidation of a witness or victim:

         § 4952. Intimidation of witnesses or victims

                                  *       *    *

         (b)   Grading.—

         (1) The offense is a felony of the degree indicated in
         paragraphs (2) through (4) if:

            (i)    The actor employs force, violence or deception, or
            threatens to employ force or violence, upon the witness
            or victim or, with the requisite intent or knowledge upon
            any other person.

            (ii) The actor offers any pecuniary or other benefit to
            the witness or victim or, with the requisite intent or
            knowledge, to any other person.

            (iii) The actor’s conduct is in furtherance          of   a
            conspiracy to intimidate a witness or victim.

            (iv) The actor accepts, agrees or solicits another to
            accept any pecuniary or other benefit to intimidate a
            witness or victim.

            (v)    The actor has suffered any prior conviction for any
            violation of this section or any predecessor law hereto,
            or has been convicted, under any Federal statute or
            statute of any other state, of an act which would be a
            violation of this section if committed in this State.

         (2) The offense is a felony of the first degree if a felony of
         the first degree or murder in the first or second degree was
         charged in the case in which the actor sought to influence
         or intimidate a witness or victim as specified in this

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        subsection.

        (3) The offense is a felony of the second degree if a felony
        of the second degree is the most serious offense charged in
        the case in which the actor sought to influence or intimidate
        a witness or victim as specified in this subsection.

        (4) The offense is a felony of the third degree in any other
        case in which the actor sought to influence or intimidate a
        witness or victim as specified in this subsection.

        (5) Otherwise the offense is a misdemeanor of the second
        degree.

18 Pa.C.S.A. § 4952(b).

        The language of Subsection 4952(b)(1) itself provides that
        a witness intimidation conviction can be graded as a felony
        under Subsections 4952(b)(2)-(4) “if” one of the criteria in
        Subsection 4952(b)(1) is satisfied.       18 Pa.C.S.A. §
        4952(b)(1).     In addition, Subsections 4952(b)(2)-(4)
        contain similar language requiring that the prosecution
        prove that “the actor sought to influence or intimidate a
        witness as specified in this subsection.” 18 Pa.C.S.A. §
        4952(b)(2)-(4).

Raymond, supra at *8 (emphasis in original).

        …[T]he plain language of Subsection 4952(b) provides that
        the offense of witness/victim intimidation begins as a
        misdemeanor of the second degree.        18 Pa.C.S.A. §
        4952(b)(5). …

        … If Commonwealth proves that one of the criteria in
        Subsection 4952(b)(1) is satisfied and establishes that the
        underlying case in which the witness/victim was involved
        was a felony of the first degree or involved a charge of
        murder, the intimidation charge may be raised to a felony
        of the first degree. 18 Pa.C.S.A. § 4952(b)(2).

Raymond, supra at *9 (emphasis in original).

     In other words, if the fact finder does not determine the defendant’s


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conduct satisfied one of the predicate criteria of Subsection 4952(b)(1), a

defendant’s witness/victim intimidation conviction cannot be graded as a first-

degree felony. Id. Rather, the conviction is a second-degree misdemeanor.

Id. (providing jury instruction is incomplete if court explains witness/victim

intimidation conviction is first-degree felony solely because defendant sought

to intimidate witness in case where charge was murder or first-degree felony).

Absent a finding by the jury that a defendant’s actions met one of Subsection

4952(b)(1)’s criteria, a sentence for a witness/victim intimidation conviction

as a first-degree felony is illegal and must be vacated. Id. (vacating sentence

for intimidation of witness or victim as first-degree felony because jury did not

make any Subsection (b)(1) determination; remanding for trial court to grade

witness intimidation conviction as second-degree misdemeanor).

       Instantly, the trial court instructed the jury that it could grade

Appellant’s witness/victim intimidation charge as a first-degree felony merely

because the most serious offense charged in the case in which Appellant

sought to intimidate Victim was a first-degree felony. Nevertheless, the jury

charge omitted the Subsection (b)(1) predicate criteria.3       See Raymond,

supra. Consequently, the jury did not find that Appellant’s conduct satisfied

Subsection (b)(1).      Thus, Appellant’s witness/victim intimidation conviction



____________________________________________


3 In its opinion, the trial court now agrees with Appellant that the jury
instruction was flawed regarding the grading of Appellant’s witness/victim
intimidation charge. (See Trial Court Opinion at 5-12).

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could have been graded only as a second-degree misdemeanor, and grading

the conviction as a first-degree felony was improper. See id.; 18 Pa.C.S.A. §

4952(b)(1),   (5).    Therefore,   Appellant’s   sentence    for     witness/victim

intimidation as a first-degree felony is illegal. See Raymond, supra.

      Based   upon   the   foregoing,   we    affirm   Appellant’s    strangulation

conviction, vacate the judgment of sentence in its entirety, and remand for

the trial court to grade Appellant’s witness/victim intimidation conviction as a

second-degree misdemeanor and resentence Appellant accordingly. As our

disposition upsets the overall sentencing scheme of the trial court, we must

remand so that the trial court may restructure its sentence plan.              See

Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal

denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding sentencing error on one

count in multi-count case generally requires all sentences for all counts to be

vacated so court can restructure entire sentencing scheme).              See also

Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert.

denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987) (stating

generally if appellate court alters overall sentencing scheme, then remand for

resentencing is proper).

      Convictions affirmed; judgment of sentence vacated in its entirety; case

remanded with instructions. Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/30/2020




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