J. A17043/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
SANDRA HERNANDEZ,                         :           No. 763 EDA 2018
                                          :
                          Appellant       :


       Appeal from the Judgment of Sentence Entered February 12, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0009866-2016


BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 16, 2019

        Sandra Hernandez appeals from the February 12, 2018 aggregate

judgment of sentence of 4 to 8 years’ imprisonment, followed by 2 years’

probation, imposed after a jury found her guilty of aggravated assault, simple

assault, recklessly endangering another person (“REAP”), and criminal

conspiracy.1 After careful review, we affirm.

        The trial court summarized the relevant facts of this case as follows:

              The underlying charges stem from the arrest of
              [appellant] on August 23, 2016, for her active
              participation in the brutal attack of complainant,
              Stephanie Hernandez [(hereinafter, “victim”)]. First
              and foremost, it is worth mentioning that [a]ppellant
              [] shares no blood relationship with [victim], even
              though they have the same last name. . . . On the
              night of August 22, 2016, [a]ppellant, her boyfriend
              and co-defendant, Tommy Camacho, and roughly

1   18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, and 903(a), respectively.
J. A17043/19


          ten adult persons appeared en masse at the home
          where they knew victim [] and her boyfriend,
          Nicholas Torres Jr., had been staying to provoke an
          altercation.   The violence that erupted was the
          culmination of a tortured history of animosity between
          the parties because of complicated familial
          relationships.

          Appellant and co-victim Nicholas Torres Jr. shared
          custody of two minor children produced during their
          tumultuous prior romantic relationship. Appellant had
          falsely named Nicholas Torres Jr. as the biological
          father of her third biological child after birth when
          really the third child had been fathered by
          Tommy Camacho, the co-defendant in the present
          case. The bouts of infidelity and lying about paternity
          led to hostile verbal telephone conversations and
          confrontations during custody exchanges.            On
          August 22, 2016, the dispute escalated viciously.

          That    night,   [a]ppellant,   her     boyfriend   and
          co-defendant Tommy Camacho, and about ten of their
          friends and family members showed up at the home
          of Nicholas Torres’ parents’ property in three vehicles.
          Tommy Cam[a]cho’s [] white Chevy van contained
          [a]ppellant, her sister, Tommy Cam[a]cho and the
          three minor children who had remained vulnerable
          witnesses in that van during the entire events. They
          parked, exited, and approached the Torres’ house,
          where [victim] was outside.          Tommy Camacho
          reportedly carried a firearm with him. Appellant
          targeted victim [] and called out to her with certain
          fighting words. [Appellant] then repeatedly punched
          [victim] as a few of [appellant’s] friends joined in the
          attack.

          As Nicholas Torres and his father, Jose Torres,
          stepped in to try to separate the fighting women,
          other men circled Jose Torres to prevent his aid and
          physically attacked Nicholas Torres.       Two more
          carloads containing allies of [appellant] and Tommy
          [Camacho] arrived and joined in the attack of [victim
          and Nicholas Torres]. One of the men who had exited
          a vehicle was observed holding a firearm. Additional


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            observations had been made of Tommy Camacho
            running back to his vehicle and retrieving a firearm.
            [A p]erson observed both Tommy Camacho and the
            unidentified other man beg[i]n shooting wildly in the
            direction of both [victim] and Nicholas Torres. The
            victims escaped being shot by diving under a vehicle
            and running into the residence.        A vehicle that
            happened to be driving into the block was shot.
            Fortunately[,] that innocent female miraculously
            escaped injury. Nicholas Torres’ parents also fearfully
            ran from the shooting inside their home and
            immediately called 911. Fortunately, no one was
            shot, but [victim] sustained multiple physical injuries
            from the pack-like attack of [a]ppellant and her allies.

            ....

            [V]ictim [] was transported and treated at Einstein
            Hospital for the injuries she suffered from the
            assault[,] which included a concussion, broken lip,
            scratched and obstructed vis[i]on to her eye, and
            multiple bruises and scratches all over her body.
            [Victim] was prescribed painkillers, and at trial she
            testified that she still had blocked vision in her right
            eye, from the severe blows she had received from
            multiple people[,] particularly [a]ppellant.

Trial court opinion, 12/20/18 at 1-4 (citations to notes of testimony omitted).

      Appellant proceeded to a jury trial in connection with this incident and

was found guilty of aggravated assault, simple assault, REAP, and criminal

conspiracy on August 11, 2017.       On November 17, 2017, the trial court

sentenced appellant to an aggregate term of 5 to 10 years’ imprisonment,

followed by 2 years’ probation. Appellant filed a timely post-sentence motion

on November 27, 2017.

      On December 14, 2017, appellant’s instant counsel, Laurence Anthony

Narcisi, III, Esq. (“Attorney Narcisi”), was appointed to represent her in


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post-sentence and direct appeal matters. On January 26, 2018, appellant filed

a post-sentence motion alleging the ineffectiveness of trial counsel,2 and

sought reconsideration of her sentence based on an alleged miscalculation of

her offense gravity score (“OGS”). On February 12, 2018, the trial court held

an evidentiary hearing on appellant’s ineffectiveness claims and her request

for reconsideration of sentence. Following said hearing, the trial court granted

appellant’s post-sentence motion in part and denied it in part. Thereafter, the

trial court resentenced appellant to an aggregate term of 4 to 8 years’

imprisonment, followed by 2 years’ probation. This timely appeal followed.3

        Appellant raises the following issues for our review:

              [1.]   After what can only be described as a bungled
                     plea negotiation, trial defense, and an
                     admission of ineffectiveness by trial counsel, did
                     the trial court err in denying [a]ppellant relief




2   Appellant was represented at trial by Janine Vinci, Esq.

3 We note that on March 9, 2018, the trial court ordered appellant to file a
concise statement of errors complained of on appeal, in accordance with
Rule 1925(b), within 21 days. Appellant did not file her Rule 1925(b)
statement until April 10, 2018, well past the expiration of the 21-day filing
period. Generally, the failure to comply with the minimal requirements of
Rule 1925(b) will result in the waiver of all issues raised on appeal.
Commonwealth v. Eldred, 207 A.3d 404, 407 (Pa.Super. 2019).
Nonetheless, we decline to find waiver in this instance, as the trial court’s
Rule 1925(b) order did not properly inform appellant “that any issue not
properly included in the Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.” Pa.R.A.P. 1925(b)(3)(iv); see also
Commonwealth v. Jones, 193 A.3d 957, 962 (Pa.Super. 2018) (declining to
quash an appeal for noncompliance with Rule 1925(b) where the trial court’s
Rule 1925(b) order did not specifically track the language set forth in
Subsection (b)(3)(iii) and (iv)).


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                     under the [PCRA4] by finding trial counsel was
                     effective?

              [2.]   Was using the offense gravity source [(“OGS”)]
                     of eleven when the jury did not find [sic]
                     specifically find serious bodily injury an abuse of
                     the [trial] court’s discretion resulting in the
                     imposition of a sentence of four to eight years[’]
                     incarceration followed by two years[’] probation
                     on a young single mother with three young
                     children[?]

Appellant’s brief at 7.5

        We begin by addressing appellant’s argument that the sentencing court

abused its discretion in applying an incorrect OGS for her aggravated assault

conviction “where there had been no specific finding of serious bodily injury

by the jury.” (Id. at 18.) Appellant avers “[t]he correct [OGS] should be six.”

(Id. at 14, 18.) The record belies appellant’s contention.

        “A claim that the sentencing court used an incorrect OGS is a challenge

to the discretionary aspects of one’s sentence.”              Commonwealth v.

Williams, 151 A.3d 621, 625 (Pa.Super. 2016) (citation omitted). Where an

appellant challenges the discretionary aspects of his sentence, the right to

appellate review is not absolute. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Rather, an appellant challenging the discretionary




4   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

5 For the ease of our discussion, we have elected to address appellant’s claim
in a different order than presented in her appellate brief.


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aspects of his sentence must invoke this court’s jurisdiction by satisfying the

following four-part test:

            (1) whether the appeal is timely; (2) whether
            appellant preserved his issue; (3) whether appellant’s
            brief includes a concise statement of the reasons
            relied upon for allowance of appeal with respect to the
            discretionary aspects of sentence; and (4) whether
            the concise statement raises a substantial question
            that the sentence is appropriate under the sentencing
            code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Here, appellant filed a timely notice of appeal and preserved her claim

in her supplemental post-sentence motion for reconsideration of sentence.

(See “Supplemental Post Sentence Motions,” 1/26/18 at ¶ 30.) Appellant has

failed to include a statement in her brief that comports with the requirements

of Pa.R.A.P. 2119(f), but the Commonwealth has not objected to this

omission. “[W]hen the appellant has not included a Rule 2119(f) statement

and the [Commonwealth] has not objected, this [c]ourt may ignore the

omission and determine if there is a substantial question that the sentence

imposed was not appropriate.” Commonwealth v. Kiesel, 854 A.2d 530,

533 (Pa.Super. 2004) (citation omitted). This court has recognized that a

claim that a sentencing court applied an incorrect OGS raises a substantial

question. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012),

appeal denied, 75 A.3d 1281 (Pa. 2013).          Accordingly, we proceed to

consider the merits of appellant’s claim.


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      Upon review, we find that appellant’s contention that the sentencing

court improperly applied an incorrect OGS is erroneous.                  The jury found

appellant   guilty   of,   inter   alia,     aggravated     assault     in   violation   of

Section 2702(a)(1), which contrary to appellant’s contention required a

finding that she “attempt[ed] to cause serious bodily injury to [victim], or

cause[d]    such     injury    intentionally,     knowingly       or   recklessly   under

circumstances manifesting extreme indifference to the value of human life[.]”

18 Pa.C.S.A § 2702(a)(1). The crime of aggravated assault – attempt to cause

serious bodily injury under Section 2702(a)(1) has an OGS of 10. See 204

Pa.Code § 303.15.      Appellant echoes this assessment in her supplemental

post-sentence motion for reconsideration of sentence. (See “Supplemental

Post Sentence Motions,” 1/26/18 at ¶ 20.) At the February 12, 2018 hearing,

the sentencing court reiterated that “it was undisputed that the guidelines

were ten/zero, which provided a range of twenty-two to thirty-six months,

plus or minus twelve months.” (Notes of testimony, 2/12/18 at 154). The

record indicates that the sentencing court correctly applied an OGS of 10, and

thereafter imposed a sentence within standard-range recommended by the

Sentencing Guidelines.        Accordingly, appellant’s claim that the sentencing

court abused its discretion in utilizing an incorrect OGS warrants no relief.

      Appellant’s    remaining      claims      concern   trial    counsel’s   purported

ineffectiveness in failing to convey the Commonwealth’s alleged plea offer to




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her and in failing to introduce photographs of her minor injuries to support

her claim of “mutual combat.” (Appellant’s brief at 17-18.)

      Generally, “claims of ineffective assistance of counsel are to be deferred

to PCRA review; trial courts should not entertain claims of ineffectiveness upon

post-verdict motions; and such claims should not be reviewed upon direct

appeal.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (footnote

omitted).   In Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018), our

supreme court recognized that a defendant may raise ineffectiveness claims

on direct appeal in very limited circumstances:

            The first exception, . . . affords trial courts discretion
            to entertain ineffectiveness claims in extraordinary
            circumstances where a discrete claim of trial counsel
            ineffectiveness is apparent from the record and
            meritorious    to   the      extent    that    immediate
            consideration best serves the interests of justice. The
            second exception . . . gives trial courts discretion to
            address ineffectiveness claims on post-sentence
            motions and direct appeal if there is good cause shown
            and the defendant knowingly and expressly waives his
            entitlement to seek subsequent PCRA review of his
            conviction and sentence.

Id. at 360, citing Holmes, 79 A.3d at 563-564. The third exception requires

“trial courts to address claims challenging trial counsel’s performance where

the defendant is statutorily precluded from obtaining subsequent PCRA

review.” Delgros, 183 A.3d at 361.

      In the instant matter, the trial court held an evidentiary hearing on

February    12,   2018,   wherein   it   permitted   appellant   to   pursue   the

ineffectiveness claims raised in her supplemental post-sentence motion


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following the waiver of the right to seek subsequent collateral review. (Notes

of testimony, 2/12/18 at 17-18.) In light of the foregoing, we find that the

second exception set forth in Delgros has been satisfied and direct appellate

review of appellant’s ineffectiveness claim is appropriate at this juncture.

      To prevail on a claim of ineffective assistance of counsel, appellant must

establish the following three factors: “first the underlying claim has arguable

merit; second, that counsel had no reasonable basis for his action or inaction;

and third, that [a]ppellant was prejudiced.” Commonwealth v. Charleston,

94 A.3d 1012, 1020 (Pa.Super. 2014) (citation omitted), appeal denied, 104

A.3d 523 (Pa. 2014).         “A petitioner establishes prejudice when he

demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and

internal quotation marks omitted). “Absent a showing of such prejudice, the

claim of ineffectiveness fails, regardless of whether counsel lacked a

‘reasonable basis.’” Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014).

      Upon review, we agree with the trial court that appellant has failed to

prove that she was prejudiced by trial counsel’s failure to convey the

Commonwealth’s alleged plea offer to her.          Our review of the record

establishes that no plea offer was, in fact, ever tendered to appellant. At the

February 12, 2018 hearing, the prosecutor testified that trial counsel initially

sought a plea agreement to summary offenses and that the Commonwealth



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refused to make such an offer. (Notes of testimony, 2/12/18 at 113-114.)

The trial court, in turn, found the prosecutor’s testimony credible, reasoning

as follows:

              the testimony credibly presented by former Assistant
              District Attorney Michael Luongo was that no offer had
              been formally tendered to [a]ppellant during general
              off-handed pre-trial discussions with . . . trial counsel,
              [and appellant] would only have agreed to accept a
              negotiated guilty plea to the summary graded offense
              of Disorderly Conduct. This defense position was
              consistent with defense presented at trial and
              particularly reflected in the verbal responses given by
              [a]ppellant during the painstakingly thorough
              colloquy of [appellant] in the presence of her attorney
              conducted by this [trial c]ourt just prior to trial.
              Moreover, as this [trial c]ourt succinctly identified,
              there is no requirement that an offer be tendered to
              [appellant]. Additionally, as admitted by all persons
              present, general conversations between a prosecutor
              and defense counsel at some point about downgrading
              charges in some form of fashion, does not mean that
              any ‘deal’ that had required communication had come
              to fruition. Therefore, [trial] counsel had no duty to
              inform her client of any debate she had with the
              prosecutor because there [sic] no offer had been
              tendered.

Trial court opinion, 12/20/18 at 9 (citations and internal quotation marks

omitted). The record fully supports these conclusions.

      Moreover, we agree with the trial court that appellant has failed to prove

that she was prejudiced by trial counsel’s decision not to introduce

photographs of her minor injuries at trial. The photographs in question neither

lend any credulity to appellant’s claim that victim was a mutual combatant in

this altercation, nor alleviate “the overwhelming evidence [that a]ppellant . . .



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secur[ed] her boyfriend[] and carloads of friends and relatives to d[rive] to

[victim’s] location to violently attack [her] . . . .”   (Trial court opinion,

12/20/18 at 10.) Accordingly, appellant’s ineffectiveness claims warrant no

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/16/19




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