J-S45043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ABRAHAM GARCIA, JR.                        :
                                               :
                       Appellant               :     No. 283 MDA 2018


       Appeal from the Judgment of Sentence Entered November 1, 2017
                 in the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0003875-2016


BEFORE:      OTT, J., MUSMANNO, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                            FILED NOVEMBER 06, 2018

        Appellant, Abraham Garcia, Jr., appeals from the judgment of sentence

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

convictions for one count each of robbery,1 aggravated assault attempting to

cause serious bodily injury,2 aggravated assault -- bodily injury to another




____________________________________________


1   18 Pa.C.S. § 3701(a)(1)(ii).
2   18 Pa.C.S. § 2702(a)(1).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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with a deadly weapon,3 and harassment4 and two counts each of theft by

unlawful taking and simple assault.5 We affirm.

        At about 4:00 P.M. on July 27, 2016, at the 500 block of Penn Street in

Reading, Michael Fornwald’s former girlfriend, Alyx Mazaika, warned him that
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3 For the second count of aggravated assault, Count 3 overall, the Information,
filed on September 22, 2016, states that Appellant was charged pursuant to
18 Pa.C.S. § 2702(a)(4): “attempt to cause or intentionally or knowingly
cause bodily injury to MICHAEL FORNWALD with a deadly weapon.” However,
during the final jury charge for Count 3, the trial court only instructed on the
“intentionally or knowingly cause bodily injury” portion and not on the
“attempt to cause” portion of this statute. N.T. Trial, 10/24-25/2017, at 194-
95 (trial court instructing: “aggravated assault, causing bodily injury with a
deadly weapon,” where the jury must find “that the defendant caused bodily
injury to another person”). The verdict slip lists Count 3 as “Aggravated
Assault (attempt or knowingly cause bodily injury to Michael Fornwald with a
deadly weapon).” Verdict of the Jury, dated 10/25/2017, filed 10/30/2017,
at 1.

However, Appellant concedes that he caused bodily injury to the victim,
Michael Fornwald, Appellant’s Brief at 26; hence, the attempt clause is
immaterial, which aligns with the jury instructions for this count. N.T. Trial,
10/24-25/2017, at 194-95. “The law presumes that the jury will follow the
instructions of the court.” Commonwealth v. Patterson, 180 A.3d 1217,
1228 (Pa. Super. 2018) (citation omitted), reargument denied (Apr. 18,
2018).

Additionally, for reasons explained below, the evidence was sufficient to
establish that Appellant acted intentionally, which is the required mens rea for
either an attempt to cause or intentionally causing bodily injury, and we
therefore do not need to consider whether Appellant knowingly caused bodily
injury. 18 Pa.C.S. § 2702(a)(4); Commonwealth v. Holley, 945 A.2d 241,
247 (Pa. Super. 2008) (“the Commonwealth does not have to prove that the
serious bodily injury was actually inflicted but rather that the Appellant acted
with the specific intent to cause such injury”).
4   18 Pa.C.S. § 2709(a)(1)
5   18 Pa.C.S. §§ 3921(a) and 2701(a), respectively.



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the Appellant was looking for him. N.T. Trial, 10/24-25/2017, at 45-51, 54,

85-86, 89, 132. Fornwald and his current girlfriend, Mari Cornelsen, ignored

the warning and walked to a nearby bus stop. Appellant approached Fornwald

from behind, placed a knife against the lower left side of Fornwald’s throat,

and demanded Fornwald empty his pockets. Appellant “told [Fornwald] that

[Fornwald] had robbed from his girlfriend so he was going to rob from

[Fornwald].” Id. at 50.

       Fornwald pushed away the knife by grabbing the blade with his left

hand, cutting his left thumb and pointer finger and wounding his shoulder.

Id. at 51-57, 74, 89-91, 128; Commonwealth’s Exs. 2-6, 8-11.            Several

witnesses called the police, and Appellant left the scene with Fornwald’s wallet

and cellular telephone.

       Fornwald testified at Appellant’s preliminary hearing and trial. See id.

at 45-81.6 During direct examination at trial, Fornwald stated that Appellant

held “a knife against my throat” and that, following Appellant’s demand, he

had emptied his pockets himself. Id. at 50, 54-55. Fornwald also admitted

that he had two prior convictions for misdemeanor theft, less than a year

before trial. Id. at 60.

       During cross-examination, defense counsel indicated to Fornwald that,

on page 7 of the notes of testimony from the preliminary hearing on

August 26, 2016, he had said that Cornelsen had been the one to reach into
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6 The notes of testimony from the preliminary hearing on August 26, 2016,
are not in the certified record.

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his pockets; Fornwald admitted his mistake and clarified that Cornelsen had

been the one to empty his pockets. Id. at 70. Defense counsel also showed

Fornwald the portion of the preliminary hearing transcript where Fornwald had

said that he was facing Appellant “at this point[,]” which defense counsel took

to mean when Cornelsen emptied Fornwald’s pockets, and Fornwald explained

that he meant that he faced Appellant after his pockets were emptied. Id. at

75-76.

       Mazaika also testified that she witnessed Appellant demand money from

Fornwald while holding a knife to Fornwald’s throat but that “the sharp part of

the blade was facing outwards away from” Fornwald’s neck. Id. at 88, 90;

see also id. at 89 (“the blade was facing out”), 100 (same). She continued

that Cornelsen reached into Fornwald’s pockets, “pulled out the money and

gave it to [Appellant,]” which Appellant grabbed then left the scene. Id. at

90-91. She further testified that, when she saw Appellant later that day, he

had Fornwald’s cellular telephone and wallet with $15.00 in cash with him.

Id. at 94.7

       In addition, Officer Robert Crowley of the City of Reading Police

Department testified at trial. Id. at 122-23. Officer Crowley testified that,

when Appellant was located, Fornwald’s cellular telephone and wallet were in




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7Fornwald’s wallet was distinctive: it was red and black, with a chain, and
had a picture of the Marvel character, Deadpool, on the front flap.
Commonwealth’s Ex. 10.

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his possession; the wallet still contained Fornwald’s driver’s license. Id. at

128; see also Commonwealth’s Exs. 6, 8-11.

       The jury convicted Appellant of the aforementioned charges on

October 25, 2017, and the trial court sentenced him on November 1, 2017.

On November 13, 2017, Appellant filed a post-sentence “motion for new trial

as the verdicts were against the weight of the evidence.”        Mot. for Post-

sentence Relief, 11/13/2017, at ¶ II.8 The trial court denied the motion on

January 18, 2018, and Appellant’s timely appeal followed on February 6, 2018.

Appellant timely filed a court-ordered statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and the trial court filed a responsive

opinion.

       Appellant raises two issues for our review:

       [1.] Whether the Commonwealth presented sufficient evidence
       to prove beyond a reasonable doubt that Appellant possessed the
       requisite mens rea to commit both counts of aggravated assault.

       [2.] Whether the trial court abused its discretion when
       permitting a guilty verdict that was against the weight of the

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8 Appellant thereby satisfied the requirements of Pa.R.Crim.P. 607(A) to
preserve a weight of the evidence claim:

       (A) A claim that the verdict was against the weight of the evidence
       shall be raised with the trial judge in a motion for a new trial:

           (1) orally, on the record, at any time before sentencing;

           (2) by written motion at any time before sentencing; or

           (3) in a post-sentence motion.



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         evidence, particularly a verdict that relied on testimonial evidence
         that lacked credibility.

Appellant’s Brief at 8 (trial court’s answers and Appellant’s suggested answers

omitted).

         Appellant first contends that the Commonwealth failed to provide

sufficient evidence that he possessed the proper mens rea to commit

aggravated assault. Id. at 15.9

         In reviewing the sufficiency of the evidence, our standard of
         review is as follows:

         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. . . .
         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. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and

internal brackets omitted) (some formatting), appeal denied, 174 A.3d 558

(Pa. 2017).

         Here, Appellant specifically asserts that the evidence was insufficient to

support his conviction for aggravated assault attempting to cause serious

bodily     injury,   pursuant    to   18   Pa.C.S.   §   2702(a)(1),   because   the

Commonwealth did not establish that he had the specific intent to attempt to



____________________________________________


9Appellant does not challenge the sufficiency of the evidence to establish any
other element of either of his two aggravated assault convictions. Appellant’s
Brief at 14-29.

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cause serious bodily injury. Appellant’s Brief at 15-16. Appellant contends

that his declaration to rob Fornwald and the direction that he held the knife –

facing outward – demonstrate that he did not intend to harm Fornwald. Id.

at 19-20.

       According to 18 Pa.C.S § 2702(a)(1): “A person is guilty of aggravated

assault if he . . . attempts to cause serious bodily injury[10] to another[.]”

       In order to sustain a conviction for aggravated assault, the
       Commonwealth does not have to prove that the serious bodily
       injury was actually inflicted but rather that the Appellant acted
       with the specific intent to cause such injury. Further, where the
       victim does not sustain serious bodily injury, the Commonwealth
       must prove that the appellant acted with specific intent to cause
       serious bodily injury. The Commonwealth may prove intent to
       cause serious bodily injury by circumstantial evidence.

Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008) (internal

brackets and citation omitted) (some formatting).

       “[I]t is well settled the use of a deadly weapon on a vital part of the

body is sufficient to establish a specific intent to kill. Clearly, a specific intent

to cause serious bodily injury can be inferred from the same circumstances.”

Commonwealth v. Nichols, 692 A.2d 181, 184–85 (Pa. Super. 1997)

(citation omitted). In Commonwealth v. Montalvo, 956 A.2d 926, 933 (Pa.

2008), the use of a knife on the victim’s “neck — a vital part of her body --”

was found to be sufficient evidence for a jury to conclude that the appellant

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10 “Serious bodily injury” is defined as “[b]odily 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.” 18 Pa.C.S. § 2301.

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“acted with the specific intent to kill[.]”    See also Commonwealth v.

Raybuck, 915 A.2d 125, 128 (Pa. Super. 2006) (knife is a deadly weapon);

Commonwealth v. Scullin, 607 A.2d 750, 753 (Pa. Super. 1992) (same).

      Here, two witnesses – Fornwald and Mazaika – testified that Appellant

used a knife against Fornwald’s neck. N.T. Trial, 10/24-25/2017, at 50-51,

54, 89. As the use of a knife against a victim’s neck/throat is sufficient to

establish a specific intent to kill, Montalvo, 956 A.2d at 933, and since

circumstances where a specific intent to kill is found would also support a

finding of a specific intent to cause serious bodily injury, Nichols, 692 A.2d

at 184–85, Appellant’s use of a knife against Fornwald’s throat, N.T. Trial,

10/24-25/2017, at 50-51, 54, 89, is sufficient for a jury to find that Appellant

possessed a specific intent to cause serious bodily injury to Fornwald.

      As for Appellant’s argument that Mazaika’s testimony that the sharp end

of the knife’s blade was facing away from Fornwald’s neck demonstrates that

he did not specifically intend to injure Fornwald, Appellant’s Brief at 20, the

jury could have concluded that the Appellant mistakenly held the blade the

wrong way and that the direction of the blade did not demonstrate a lack of

intent to cause serious bodily injury. Moreover, the only witness to testify

that the sharp side blade was turned away from Fornwald’s throat was

Appellant’s current girlfriend, id. at 88-89, 100, and the jury may have found

her testimony on this point to be self-serving and dubious without

corroboration.


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       Appellant’s declaration that he intended to rob Fornwald, id. at 50, also

fails to eliminate his intent to cause serious bodily injury, as a robbery can

include the infliction of serious bodily injury. See 18 Pa.C.S. § 3701(a)(1). If

anything, Appellant’s announcement of his plan to rob Fornwald suggests that

Appellant    intended     to   harm     Fornwald,   not   the   opposing   inference.

Accordingly, we find that Appellant’s claim that the evidence was insufficient

to support his conviction for aggravated assault pursuant to 18 Pa.C.S

§ 2702(a)(1) merits no relief.

       Additionally, Appellant argues that the evidence was insufficient to

support his conviction for aggravated assault causing bodily injury with a

deadly weapon, pursuant to 18 Pa.C.S. § 2702(a)(4), because, although he

concedes that Fornwald suffered bodily injury,11 the evidence did not establish

that he intentionally or knowingly caused said bodily injury. Appellant’s Brief

at 15, 25-26.

       According to 18 Pa.C.S. § 2702(a)(4): “A person is guilty of aggravated

assault if he . . . attempts to cause or intentionally or knowingly causes bodily

injury to another with a deadly weapon[.]”

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




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11 “Bodily injury” is defined as “[i]mpairment of physical condition or
substantial pain.” 18 Pa.C.S. § 2301.


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          (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 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.

Id. § 302(b)(1)-(2).

       As we have established above that Appellant had the specific intent to

cause serious bodily injury, this conclusion incorporates a finding that

Appellant had the intent to cause bodily injury, and we do not need to

separately analyze Appellant’s mens rea for Section 2702(a)(4). The evidence

was thereby sufficient to establish both counts of aggravated assault, and

Appellant’s first challenge in its entirety is without merit.

       Appellant next maintains that “inconsistent and unreliable testimony”

from Fornwald,12 who had crimen falsi convictions for theft less than a year


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12 In his weight of the evidence argument, Appellant only challenges
Fornwald’s credibility, not that of any other witness, including Mazaika, who
admitted to multiple crimen falsi convictions, including three theft convictions.
N.T. Trial, 10/24-25/2017, at 92.




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before the trial, “renders the robbery conviction[13] against the weight of the

evidence.”     Appellant’s Brief at 29, 31.         Specifically, Appellant cites to

Fornwald’s inability to recall if he or Cornelsen emptied his pockets.

Appellant’s Brief at 11, 30 (citing N.T., 8/26/2016, at 7; N.T. Trial, 10/24-

25/2017, at 54-55, 69-70, 90). Furthermore, Appellant insists that “[t]here

were numerous differences in [Fornwald]’s rendition of events between the

preliminary hearing and the jury trial”:           during the preliminary hearing,

Fornwald testified that he faced the Appellant while retrieving items from his

pockets; during trial, Fornwald testified that Appellant was behind him at all

times. Id. at 30-31 (citing N.T., 8/26/2016, at 11; N.T. Trial, 10/24-25/2017,

at 75-76).

       Our standard of review for a challenge to the weight of the evidence is

as follows:

       The weight of the evidence is exclusively for the finder of fact, who
       is free to believe all, none or some of the evidence and to
       determine the credibility of the witnesses.

       Appellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict
       is against the weight of the evidence. Because the trial judge has
       had the opportunity to hear and see the evidence presented, an
       appellate court will give the gravest consideration to the findings
       and reasons advanced by the trial judge when reviewing a trial
       court’s determination that the verdict is against the weight of the
       evidence.


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13 Appellant does not contend that Fornwald’s allegedly “inconsistent and
unreliable testimony” renders any of his other convictions against the weight
of the evidence. See Appellant’s Brief at 29-32.

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Commonwealth v. Talbert, 129 A.3d 536, 545–46 (Pa. Super. 2015)

(internal brackets, citations, and quotation marks omitted) (some formatting).

“[I]n order for a defendant to prevail on a challenge to the weight of the

evidence, the evidence must be so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.” Commonwealth v. Miller, 172

A.3d 632, 643 (Pa. Super. 2017), appeal denied, 183 A.3d 970 (Pa. 2018).

       All of the inconsistencies between Fornwald’s preliminary hearing

testimony and his trial testimony were known by the jury, as were his prior

crimen falsi convictions. N.T., 10/25-26/2017, at 60, 70, 75-76,14 90. Armed

with this knowledge, the jury made their credibility determinations and still

concluded that Appellant was guilty of robbery. The trial court reasoned that

the jury “decided to believe all or at least part of Fornwald’s testimony.” Trial

Court Opinion, filed April 5, 2018, at 5. All credibility determinations are the

prerogative of the jury as fact-finder, and we cannot and will not substitute

our judgment for that of the jurors. See Talbert, 129 A.3d at 545–46.

       Assuming arguendo that the jury found Fornwald not to be credible, it

still could have convicted Appellant of robbery based upon other evidence

presented at trial. Appellant was convicted of robbery pursuant to 18 Pa.C.S.


____________________________________________


14 We note that Fornwald’s preliminary hearing and trial testimony about the
direction in which he was facing may not actually be in conflict. During his
trial testimony, Fornwald clarified his statement from the preliminary hearing
that he was facing Appellant “at this point[ in time,]” explaining that “at this
point” referred to after his pockets were emptied, not while they were being
emptied. N.T. Trial, 10/24-25/2017, at 75-76.

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§ 3701(a)(1)(ii): “A person is guilty of robbery if, in the course of committing

a theft, he . . . threatens another with or intentionally puts him in fear of

immediate serious bodily injury[.]”

      “The Commonwealth need not prove a verbal utterance or threat to

sustain a conviction under subsection 3701(a)(1)(ii).     It is sufficient if the

evidence demonstrates aggressive actions that threatened the victim’s

safety.” Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)

(internal brackets, citations and quotation marks omitted).

      Here, even without Fornwald’s testimony, the jury could have convicted

Appellant of robbery, because Mazaika’s testimony established that Appellant

committed a theft when he demanded Fornwald’s money, then took

Fornwald’s property. N.T. Trial, 10/24-25/2017, at 90-91, 94. The theft was

corroborated when police found Fornwald’s cellular telephone and wallet with

his driver’s license inside in Appellant’s possession. Commonwealth’s Exs. 6,

8-11; N.T. Trial, 10/24-25/2017, at 128. Mazaika’s testimony also established

that Appellant threatened Fornwald’s safety through the aggressive action of

holding a knife against Fornwald’s neck.       Id. at 89. Thus, for argument’s

sake, even if the jury found Fornwald completely incredible and, consequently,

wholly disregarded his testimony, the jury still could have concluded that other

evidence at trial established that, while in the course of committing a theft,

Appellant threatened Fornwald with immediate serious bodily injury and hence

committed robbery. See 18 Pa.C.S. § 3701(a)(1)(ii).


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          Therefore, whether the jury believed all, part, or none of Fornwald’s

testimony, its decision to convict Appellant of robbery does not shock the

conscience. See Hansley, 24 A.3d at 416; Talbert, 129 A.3d at 545–46.

          Accordingly, we find no abuse of discretion and no error in the trial

court’s decision to deny Appellant’s motion for a new trial based upon the

weight of the evidence. Appellant’s second issue on appeal thus merits no

relief.

          Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2018




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