J-A18015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CARMELO RODRIGUEZ,

                            Appellant                  No. 82 MDA 2016


        Appeal from the Judgment of Sentence Entered August 19, 2015
               In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001581-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 04, 2016

        Appellant, Carmelo Rodriquez, appeals from the judgment of sentence

of 6 to 20 years’ imprisonment, imposed after he was convicted of one count

of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(1), and one count of

aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(4).              Appellant

challenges the sufficiency of the evidence to sustain his convictions and

alleges the verdict is against the weight of the evidence. We affirm.

        Appellant’s convictions stemmed from an altercation that occurred

outside of a bar in Lebanon, Pennsylvania, on the night of August 4, 2014.

After Appellant’s first jury trial ended in a mistrial, a second jury trial was

held on June 4, 2015, where Appellant was found guilty of two counts of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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aggravated assault.   Trial Court Opinion (TCO), 12/7/15, at 2.       Appellant

was sentenced to the above-stated term on August 19, 2015.          On August

31, 2015, Appellant filed post-sentence motions, which included a motion for

new trial, a motion for judgment of acquittal, and an allegation that the

sentence was excessive.        The trial court denied Appellant’s post-sentence

motions by order dated December 4, 2015.          Appellant proceeded with the

timely filing of a notice of appeal on January 4, 2016, followed by a timely

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

      Herein, Appellant presents the following issues for our review: (1)

Whether the Commonwealth failed to present sufficient evidence at trial to

support the jury’s verdict of guilty?; and (2) Whether the jury’s verdict was

against the weight of the evidence? Appellant’s Brief at 4.

      To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).




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      Appellant was convicted of one count each, respectively, of aggravated

assault under the following provisions of the Pennsylvania Crimes Code:

      (a)   Offense defined.—A person is guilty of aggravated
            assault if he:

            (1)    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;
                                        …

            (2)    attempts to cause or intentionally or knowingly
                   causes bodily injury to another with a deadly
                   weapon.

18 Pa.C.S. § 2702(a)(1) and (a)(4).      “Serious bodily injury” is defined as

“[b]odily injury which creates a substantial risk or 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. For purposes

of an aggravated assault charge, “an ‘attempt’ is found where an accused

who possesses the required, specific intent acts in a manner which

constitutes a substantial step toward perpetrating a serious bodily injury

upon another.     An intent ordinarily must be proven through circumstantial

evidence and inferred from acts, conduct or attendant circumstances.”

Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (internal

citations omitted).

      Before addressing whether the elements of the above-stated crimes

have been met, we review the facts reflected in the record of the jury trial




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which led to Appellant’s convictions, as summarized by the trial court in its

Pa.R.A.P. 1925(a) opinion:

           Michael Morris (hereinafter “Morris”), a friend of Randy
     Wolfe (hereinafter “victim”) testified for the Commonwealth. On
     August 4, 2014, Morris and the victim were at the William Penn
     bar (hereinafter “bar”) in Lebanon, having a couple of drinks.
     Morris stated that when they were at the bar, the victim, who is
     very outgoing, was socializing with several people, playing
     games and performing magic tricks. At a later point in the
     evening, Morris heard a commotion by the door and saw the
     victim with three guys:       Frank Velez (hereinafter “Velez”),
     [Appellant,] and Dennis Kreider (hereinafter “Kreider”).

           Morris followed the group outside and saw the victim,
     [Appellant,] and Velez walking up the street; the victim and
     Velez were arguing. Morris stated that when [Appellant] walked
     behind a tree, he bent down where loose bricks were present.
     At some point during the verbal altercation between the victim
     and Velez, the victim spit on [Appellant].         The victim told
     [Appellant] it was an accident and Morris stated the victim went
     to wipe the spit off of [Appellant]. When the victim went to wipe
     the spit off of [Appellant], [Appellant] hit the victim and the
     victim fell straight back. When Morris saw the victim get hit, he
     punched [Appellant], knocking him down. [Appellant] and his
     two friends immediately got in their car and left.

           Kreider testified that he and [Appellant] have been friends
     for approximately 30 years.           When Kreider, Velez and
     [Appellant] were in the bar, Kreider saw Velez hit the victim in
     the face one time and heard the victim scream to Velez that
     Velez “hit like a girl.” Thereafter, the bartender told [Appellant]
     and Velez to leave the bar. Kreider followed them outside, at
     which point [Appellant], Velez and the victim were already
     walking away down the street, with [Appellant’s] back towards
     Kreider.

           Shortly after coming outside, Kreider witnessed [Appellant]
     make a “fighting motion,” and then the victim’s friend, Morris,
     punched [Appellant] in the face. Kreider, Velez and [Appellant]
     immediately headed to their car and left. As they were leaving,
     Kreider heard a girl yell, “you pussy, you hit him with a brick.”
     When Kreider asked [Appellant] in the car if [Appellant] hit the


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     victim with a brick, [Appellant] replied, “I hit the nigger.”
     However, Kreider did not see [Appellant] hit the victim with a
     brick.

             Velez testified that during his time at the bar, he got into a
     physical altercation with the victim where he threw a few
     punches because the victim had gotten in Velez’s face about a
     petty argument Velez was having with a third individual. Velez
     stated that he did not knock the victim over and that he didn’t
     see any injuries besides “maybe a little blood on the side of his
     like lip or something.” As Velez was trying to leave the bar, the
     victim was blocking Velez’s way, until the bartenders forced the
     victim out of the way so Velez could leave.

            When Velez went outside, the victim followed, wanting to
     continue the altercation that was started in the bar. At this point
     Velez stated “I was backing up and his arms were flailing. He
     said he wanted to get into it with me. So as I was backing up
     and I was taking off my shirt and my jewelry and then in an
     instant hey, let’s get out of here.” Velez testified that he did not
     see the victim get hit or see the victim laying on the ground
     because after he took off his shirt and jewelry, his friend was
     telling Velez to leave. When Velez, Kreider and [Appellant] got
     into the car to leave, [Appellant] asked Velez to take the blame
     for what happened, but Velez did not know what had happened
     and did not want to take the blame for anything. The next
     morning, the police asked Velez to come in to talk about what
     occurred the previous night, and he came in to cooperate with
     the police.

           Detective Bret Fisher, a detective for the Lebanon City
     Police, stated that he obtained an arrest warrant for [Appellant]
     on the morning after the incident occurred.          Through his
     investigation Detective Fisher learned that [Appellant] might
     have been staying with his uncle. Detective Fisher and Detective
     Uhrich went to look for [Appellant] and when they pulled up to
     the street where [Appellant’s] uncle lived, the detectives saw
     someone that looked like [Appellant] on the uncle’s front porch.
     The detectives exited the car and ran to the uncle’s house, but
     the person they saw was not on the porch anymore. Detective
     Fisher watched the back of the house, and at the same time
     Detective Uhrich went inside the house to look for [Appellant].
     However, they were not able to find [Appellant] at that time.




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            Detective Keith Uhrich received [Appellant’s] cell phone
     number and attempted to make contact multiple times through
     text messaging. [Appellant] responded to Detective Uhrich,
     letting Detective Uhrich know that he was planning on turning
     himself in and gave Detective Uhrich a specific day he was going
     to turn himself in to the police. [Appellant] did not show up on
     the day that he informed Detective Uhrich that he would turn
     himself in to the police.

           Detective Toby Pokrop testified that the Lebanon City
     Police Department informed him that [Appellant] was suspected
     of hiding at Robert Bittle’s house.      On August 20, 2014,
     Detective Pokrop drove by Bittle’s house and saw two individuals
     in front who he did not recognize, working on a car. Detective
     Pokrop called the patrol officers on duty, Officer Snyder and
     Sergeant Hentz, to make contact with the individuals. Several
     minutes later, Detective Pokrop and the patrol officers made
     contact with Mr. Bittle and asked him if they could search the
     house for [Appellant], which he allowed. The patrol officers
     found [Appellant] hiding in the basement.

        The Commonwealth also presented stipulated medical
     testimony from Dr. John Kelleher, a neurosurgeon at the Penn
     State Milton Hershey Medical Center and Dr. Jessica Lighthall, an
     Otolaryngologist.      Dr. Kelleher determined that the skull
     fractures suffered by the victim were caused by blunt force
     trauma to the head, requiring a large amount of force to cause
     the injuries sustained.2 Dr. Lighthall was on call the evening
     that the victim was transported to the Penn State Milton Hershey
     Medical Center and was needed to assist with the victim’s
     injuries due to their complex nature. Dr. Lighthall’s stipulated
     medical testimony closely mirrored Dr. Kelleher’s testimony,
     specifically that the injury was caused by a blunt object and the
     injury is one that would require a significant amount of force.
       2
          Dr. Kelleher     made    the   following   post-operative
       diagnoses:

           1. Comminuated frontal depressed skull fracture;

           2. Subarachnoid hemorrhage;

           3. Pneumocephalus;

           4. Intraparenchymal hemorrhage;



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              5. Diffuse axonal injury;

              6. Orbital wall fractures; and

              7. Complex midface fractures which shifted the face to
                 the right.

             Amber Green, a Forensic DNA scientist working with the
      Pennsylvania State Police was qualified as an expert and testified
      in regards to the DNA samples taken from the brick, which was
      collected at the scene of the incident. Ms. Green opined that one
      DNA sample from the brick matched the DNA sample given by
      the victim. Ms. Green further opined that [Appellant] could not
      be included as a contributor to the DNA samples collected from
      the brick.

            [Appellant] took the stand and testified that while he was
      at the bar on August 4, 2014, he saw Velez get into an argument
      with the victim and subsequently punch the victim twice in the
      face. [Appellant] stated that he tried to deescalate the situation
      while in the bar by getting between Velez and the victim. When
      they were outside, [Appellant] stated he just watched Velez and
      the victim [] argue. After the victim spit on him, the victim
      reached out towards [Appellant]. The victim’s action of reaching
      out towards [Appellant] made [Appellant] feel threatened and he
      punched the victim in the face. [Appellant] did not see what
      happened to the victim after he punched him because he was hit
      from the side and then immediately left with Velez and Kreider.

TCO at 2-7 (citations to the record omitted).

      Here,    Appellant   contends   that      the   evidence   presented   by   the

Commonwealth was sufficient to support a simple assault conviction only,

and not a conviction of aggravated assault.               Appellant’s Brief at 11.

Moreover, Appellant avers that the evidence was insufficient to prove that he

used a brick during the assault.           Appellant states that “[a]t best, the

Commonwealth proved he bent down at some point before the punch to [the

victim].”   Id.     After careful review of the record, we deem Appellant’s

arguments to be meritless.

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      As previously noted, a person may be convicted 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).

Moreover, in Fortune, we examined the totality of the circumstances test

created by the Pennsylvania Supreme Court in             Commonwealth v.

Alexander, 383 A.2d 887 (Pa. 1978), for the purposes of evaluating

whether a defendant acted with the necessary intent to sustain an

aggravated assault conviction.

         Alexander provided a list, albeit incomplete, of factors
         that may be considered in determining whether the intent
         to inflict serious bodily injury was present, including … the
         defendant’s use of a weapon or other implement to aid his
         attack, and his statements before, during, or after the
         attack which might indicate his intent to inflict injury.
         Alexander, [383 A.2d] at 889. Alexander made clear
         that simple assault combined with other surrounding
         circumstances may, in a proper case, be sufficient to
         support a finding that an assailant attempted to inflict
         serious bodily injury, thereby constituting aggravated
         assault.

Fortune, 68 A.3d at 984.

      In support of Appellant’s aggravated assault conviction under 18

Pa.C.S. § 2702(a)(1), the trial court opined:

      In the matter at hand, Dr. Kelleher and Dr. Lighthall provided
      medical testimony opining that the injuries sustained by the
      victim were life threatening had they not been treated in a
      timely manner. Specifically, Dr. Kelleher diagnosed the victim
      with intraparenchymal hemorrhage, bleeding in the brain, which
      was particularly troubling because this type of hemorrhage can
      result in death or neurological dysfunction. The doctors provided


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     further testimony that the severe injuries sustained by the victim
     required a large amount of force, caused by a blunt object.

     Furthermore, testimony was given that after the parties left the
     bar and were walking down the street, [Appellant] bent down
     behind a tree where loose bricks were located. Thereafter,
     [Appellant] punched the victim in the face and the victim fell
     straight back on to the sidewalk. The jury was free to determine
     that [Appellant] intended the natural and probable consequences
     of his actions. Accordingly, the evidence presented clearly was
     sufficient to sustain the charge of intentionally, knowingly or
     recklessly causing serious bodily injury.

TCO at 10 (internal citations to the record omitted). Viewing the evidence in

a light most favorable to the Commonwealth, we conclude that the evidence

was clearly sufficient to support a conviction of aggravated assault under

Section 2702(a)(1).

     With respect to Appellant’s aggravated assault conviction under

Section 2702(a)(4), aggravated assault is established under this provision

when an actor “attempts to cause or intentionally or knowingly causes bodily

injury to another with a deadly weapon.” Id. Section 2301 defines “deadly

weapon” as “any device designed as a weapon and capable of producing

death or serious bodily injury, or any other device or instrumentality which,

in the manner in which it is used or intended to be used, is calculated or

likely to produce death or serious bodily injury.” 18 Pa.C.S. § 2301. Our

Supreme Court has stated that “a deadly weapon need not be … an

inherently lethal instrument or device.” Commonwealth v. McCullum, 602

A.2d 313, 323 (Pa. 1992).      The Court further indicated that “an ax, a

baseball bat, an iron bar, a heavy cuspidor, and even a bedroom slipper

have been held to constitute deadly weapons under varying circumstances.”

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Id.   Moreover, we have noted that an item which may not normally be

considered a weapon, can be categorized as a deadly weapon based on its

use under certain circumstances. Commonwealth v. Raybuck, 915 A.2d

125, 128 (Pa. Super. 2006).

      As the trial court explained in its well-thought-out opinion:

      In the matter sub judice, a brick was determined to be a deadly
      weapon. In ordinary circumstances a brick is used as a building
      material, and therefore not a deadly weapon. However, where a
      brick is used to hit another person in the face causing serious
      bodily injury, that brick can then be viewed as a deadly weapon.
      The jury determined that the brick was used by [Appellant] to hit
      the victim in the face. Furthermore, it was already determined
      that the victim suffered serious bodily injury. Therefore, there is
      sufficient evidence to find that the victim suffered bodily injury
      due to the use of a deadly weapon.

TCO at 11. Again, viewed in a light most favorable to the Commonwealth,

we discern that the evidence clearly supports Appellant’s conviction of

aggravated assault under Section 2702(a)(4).

      Next, we address Appellant’s challenge to the weight of the evidence

to support his convictions.

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury’s verdict is so contrary to the evidence that it shocks
      one’s sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted



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      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Appellant argues that the jury “improperly weighted the testimony”

when they determined his guilt of aggravated assault. Appellant’s Brief at

12. More specifically, he testified at trial that he did not use a brick when he

hit the victim, and he argues that the jury should have afforded his

testimony greater weight and credibility. TCO at 12. However, as the trial

court noted in its opinion:

      [Appellant’s] argument ignores the well-settled principles of law
      that the finder of fact is free to believe all, part, or none of the
      evidence, and the fact finder makes credibility determinations.
      Com[monwealth] v. Gibbs, 981 A.2d 274, 282 (Pa. Super.
      2009).     The jury was free to believe the Commonwealth’s
      witnesses, and the jury was free to weigh the Commonwealth’s
      witnesses’ testimony accordingly. This [c]ourt cannot disturb
      the jury’s credibility determinations.

TCO at 12. We ascertain no abuse of discretion by the trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2016




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