J-S21015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

GABRIEL M. CRUZ,

                            Appellant                    No. 611 EDA 2014


            Appeal from the Judgment of Sentence January 13, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CR-51-CP-0011957-2011


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                   FILED MAY 12, 2015

        Gabriel M. Cruz appeals from the January 13, 2014, judgment of

sentence of thirty to sixty years imprisonment, which was imposed following

his convictions for attempted murder, aggravated assault, and conspiracy to

commit aggravated assault.1 We affirm.

        The facts as recited by the trial court are as follows:

              On May 9, 2010, at approximately 8:15 p.m., Felix Santos
        was rushed to Temple University Hospital after suffering multiple
        stab wounds to the chest and torso. Due to extreme blood loss
        and the resulting loss of oxygen to the brain, he was put on life
        support, and is expected to remain in a vegetative state for the
        duration of his life. The stabbing occurred as a result of a
        dispute over a parking space located on the 700 block of West
        Butler Street in Philadelphia. The detectives recovered a bloody
        kitchen knife belonging to the complainant on the porch of 712
____________________________________________


1
    The jury acquitted Appellant of conspiracy to commit murder.



*
    Retired Senior Judge assigned to the Superior Court.
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     West Butler Street. The complainant resided at 712 West Butler
     Street with his wife and children.

           On the day of the stabbing, Mr. Santos had returned home
     from shopping with his wife and two children at approximately
     6:30 p.m., and temporarily parked his car in front of a fire
     hydrant. When the parking spot directly in front of his house
     became available shortly thereafter, Mr. Santos’ eighteen-year-
     old son moved their car into that spot. Upon viewing the parked
     car, Mr. Santos’ neighbor, who is the mother-in-law of the
     Defendant, approached him and insisted he move his car. The
     interaction became increasingly hostile and ended when the
     neighbor spit in the complainant’s face. The complainant then
     returned to his house with his family and called the police. A
     few minutes later the neighbor’s son, and brother-in-law of the
     Defendant, co-defendant Jose Torres, began knocking on Mr.
     Santos’ porch door threatening to kill him.          When the
     complainant offered no response to Torres’ threats, Torres got a
     shovel and proceeded to repeatedly hit the complainant’s car
     with it. Several members of Torres’ family were outside their
     house during this altercation. Upon hearing the car alarm, Mr.
     Santos took his child’s baseball bat and approached Torres
     outside. His wife and children followed him. Mr. Santos struck
     Torres with the bat. The police arrived and instructed everyone
     to return to their residences.      Before the police left, the
     complainant’s other son returned home from the store with his
     uncle. He testified to seeing ten people outside on the street,
     including the Defendant.

           Shortly after returning to his residence, Mr. Santos
     received a call from his cousin, who resided across the street at
     711 West Butler, concerning Mr. Santos’ fourteen-year-old
     nephew. Co-defendant Torres and several other unidentified
     men had attacked Mr. Santos’ nephew outside of the house
     because they knew he was a member of the complainant’s
     family. The complainant’s nephew also resided at 711 West
     Butler and had been on his way home from the park on his bike.
     After receiving this telephone call, Mr. Santos, his wife, his
     brother, and his two sons went out of the house towards the
     street. At this point, a “melee” erupted between the Torres
     family and the Santos family.



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Trial Court Opinion, 6/30/14, at 2-3.

      Christina Santos, the victim’s wife, testified that Appellant’s wife

grabbed her by the hair and threw her down to the ground.             While

restrained, she saw her husband running up the porch steps with Jose

Torres, Appellant, and Khalief Green in pursuit.   Mrs. Santos watched as

Appellant held her husband’s arms while Torres stabbed him multiple times.

Mr. Santos’s son Delmy, who was fourteen years old at the time of the

incident, placed Appellant at the scene during the first disturbance quelled

by police. Delmy saw his father on the telephone and then followed him as

he ran outside with a baseball bat. He witnessed his cousin, aunt, and older

brother on the ground being assaulted and his father striking an unknown

man with the bat. Delmy recounted how an unidentified man threatened to

kill him with a knife. The last thing he remembered prior to waking up in an

ambulance was being punched in the face by Appellant.

      Carmen Santos, the victim’s sister, saw Appellant beat her fourteen-

year-old son. When she tried to intervene, he attacked her. She testified

that Mr. Santos came to her defense and swung the bat at Appellant,

knocking him down, but Appellant took the bat and hit the victim on the

head with it.   Carmen witnessed Appellant punch the victim’s son in the

head. She also saw her brother being restrained by Appellant on his own

porch while Torres stabbed him.    She did not tell police that day that she



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witnessed the stabbing for fear of retaliation. She identified the perpetrators

four days later after witnessing several members of the Torres family

celebrating that they had killed her brother.

      Mr. Santos’s oldest son, eighteen-year-old Felix, identified Appellant

and co-defendant Green as the men restraining his father, but he did not

actually see the stabbing. He confirmed his aunt’s testimony that Appellant

fled toward a red car and added that Appellant had a shiny object in his

hand that was about three or four inches long.

      As Philadelphia Police Officer Roberto Luciano arrived, he saw a red

Buick carrying three or four passengers fleeing the scene. He was unable to

stop the vehicle.      The officer found Mr. Santos unconscious on the porch

steps of his home and arranged for another responding officer to transport

him to the hospital.

      Approximately one week later, witnesses identified Appellant from

photographs. The red car was identified as a 2002 Buick LeSabre belonging

to Appellant’s wife.     After an arrest warrant was issued for Appellant, he

turned himself in to police and provided a statement in which he admitted

being at the location of the fight, but denied that he had any contact with

any males.

      The jury found Appellant guilty of attempted murder, aggravated

assault, and conspiracy to commit aggravated assault.      He was sentenced



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initially on September 26, 2013, to a term of imprisonment of twenty to

forty years for attempted murder, ten to twenty years for aggravated

assault, and ten to twenty years for conspiracy, with all sentences to run

consecutively.   Appellant filed a motion for reconsideration of sentence on

October 5, 2013, which was denied on October 8, 2013.       On October 25,

2013, the trial court granted a motion to reconsider the sentence and

conducted a hearing.

     On January 14, 2014, the court concluded that merger applied to the

convictions for attempted murder and aggravated assault.          Hence, it

resentenced Appellant to twenty to forty years incarceration for attempted

murder and a consecutive ten to twenty year sentence of imprisonment on

the conspiracy count. Appellant filed a post-sentence motion challenging the

weight and sufficiency of the evidence and the discretionary aspects of his

sentence. Relief was denied. Appellant appealed and complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.

     Appellant presents two issues for our review:

     A. Was the evidence presented by the prosecution sufficient
        enough to support a conviction for the crime of attempted
        murder and aggravated assault?

     B. Did the trial court commit an abuse of discretion by imposing
        upon the Appellant a manifestly excessive sentence of thirty
        (30) to sixty (60) years?



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Appellant’s brief at unnumbered 6.2

       Appellant’s first issue presents a challenge to the sufficiency of the

evidence of attempted murder and aggravated assault.             Our standard of

review is well settled:

       A claim challenging the sufficiency of the evidence is a question
       of law. Evidence will be deemed sufficient to support the verdict
       when it establishes each material element of the crime charged
       and the commission thereof by the accused, beyond a
       reasonable doubt. Where the evidence offered to support the
       verdict is in contradiction to the physical facts, in contravention
       to human experience and the laws of nature, then the evidence
       is insufficient as a matter of law. When reviewing a sufficiency
       claim[,] the court is required to view the evidence in the light
       most favorable to the verdict winner giving the prosecution the
       benefit of all reasonable inferences to be drawn from the
       evidence.

Commonwealth v. Kelly, 102 A.3d 1025, 1028 (Pa.Super. 2014) (en

banc).

       Appellant was charged and convicted of attempted murder of the first

degree, 18 Pa.C.S. § 901. That section provides:

       (a)    Definition of attempt. -- A person commits an attempt
              when, with intent to commit a specific crime, he does any
              act which constitutes a substantial step toward the
              commission of that crime.

       “A criminal homicide constitutes murder in the first degree when it is

committed by an intentional killing.”          18 Pa.C.S. § 2502(a).   We held in

____________________________________________


2
    The Commonwealth did not file a brief.



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Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa.Super. 2005),

that “for the Commonwealth to prevail in a conviction of criminal attempt to

commit homicide, it must prove beyond a reasonable doubt that the accused

with a specific intent to kill took a substantial step towards that goal.”

Accord Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008). The

specific intent to kill can be inferred from the circumstances surrounding an

unlawful killing or from the fact that the accused used a deadly weapon to

inflict injury to a vital part of the victim's body.       Commonwealth v.

Geathers, 847 A.2d 730, 737 (Pa.Super. 2004); accord Commonwealth

v. Sattazahn, 631 A.2d 597 (Pa.Super. 1993) (specific intent to kill may be

inferred from use of a deadly weapon to inflict injury to a vital part of the

victim's body).

      Appellant argues that the facts of the instant case do not establish that

he had a specific intent to kill Mr. Santos. He maintains that the incident

was a brawl, there was no evidence that Appellant and his co-defendants

intended to kill, and that there was no proof that he was aware that his co-

defendant had a knife while he was restraining the victim.

      The trial court correctly instructed the jury that, in order to convict for

attempted murder, the jury would have to find that Appellant and his co-

defendants stabbed Mr. Santos with the specific intent to kill him.        N.T.,

9/28/12, at 119. The jury found Appellant guilty of attempted murder. The



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trial court found the evidence that Appellant aided his co-defendant in using

a deadly weapon on Mr. Santos’s heart sufficient to support the jury’s finding

of a specific intent to kill.     Appellant counters that there was no evidence

that his co-defendant targeted the victim’s heart and that it was just as

likely that his intent was merely to injure him.

         Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we find sufficient evidence to support the attempted

murder conviction.       Appellant physically restrained the victim to assist his

co-defendant as he stabbed the victim in the chest area three times with a

knife.    The treating trauma surgeon testified that the stab wounds were

located near the armpit, the chest, and the abdomen.            One of the stab

wounds injured the victim’s heart, and another nicked his bowel. Evidence

of use of a deadly weapon multiple times on a vital part of the victim’s body

was legally sufficient to support the attempted murder conviction.

         Appellant next contends that the evidence was insufficient to convict

him of aggravated assault.         Appellant does not dispute that serious bodily

injury was inflicted herein and that even reckless conduct is sufficient to

sustain the aggravated assault conviction.3         However, he maintains that


____________________________________________


3
 The victim, Mr. Felix Santos, was hospitalized from May 9, 2010 until June
21, 2010, when he was sent to an LTAC unit due to the fact that he was on a
(Footnote Continued Next Page)


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there is no evidence of intent to cause serious bodily injury to the

complainant because he did not possess the knife used to assault the

complainant.

      The fact that Appellant did not personally wield the knife does not

relieve him from criminal liability as an accomplice.        There was ample

evidence that Appellant restrained the victim to facilitate the stabbing by his

co-defendant. Having already concluded that there was evidence of specific

intent to kill to support the attempted murder conviction, we need not go

further. The specific intent to kill necessarily includes the intent required to

establish aggravated assault, i.e., the intentional, knowing, or reckless

infliction of serious bodily injury. See Commonwealth v. Anderson, 650

A.2d 20, 24 (Pa. 1994) (holding intent necessary to establish specific intent

to kill greater than and necessarily includes intent required to establish

aggravated assault). This claim is without merit.

      Appellant’s second issue is a challenge to the discretionary aspects of

his sentence. Acknowledging that he is not entitled to review as of right, we

note that he filed both a post-sentence motion and a Pa.R.A.P. 1925(b)

statement preserving the issue. Two additional requirements must be met

before we review the challenge on the merits.        He must set forth in his
                       _______________________
(Footnote Continued)

breathing machine. He sustained a hypoxic brain injury, and at the time of
sentencing, Mr. Santos remained unconscious and in a vegetative state.



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appellate brief a Pa.R.A.P. 2119(f) statement of reasons for allowance of

appeal and demonstrate “that there is a substantial question that the

sentence     imposed   is   not   appropriate   under    the   Sentencing   Code.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014). We

evaluate whether a substantial question has been raised on a case-by-case

basis. Id.

     Appellant’s brief contains the concise statement.         He claims that his

sentence was excessive and that the trial court failed to explain how it was

the least stringent one “adequate to protect the community and to serve the

rehabilitative needs of the public.”      Appellant’s brief at unnumbered 11.

Since Appellant has asserted more than a bald excessive sentence claim, we

find he has raised a substantial question.              See Commonwealth v.

Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015) (finding substantial question

where excessive sentence claim was made in conjunction with assertion that

the court did not consider mitigating factors). We now turn to the merits.

     In reviewing a sentence, we are highly deferential to the trial court.

             Sentencing is a matter vested in the sound discretion of
     the sentencing judge, and a sentence will not be disturbed on
     appeal absent a manifest abuse of discretion. In this context, an
     abuse of discretion is not shown merely by an error in judgment.
     Rather, the appellant must establish, by reference to the record,
     that the sentencing court ignored or misapplied the law,
     exercised its judgment for reasons of partiality, prejudice, bias
     or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).


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       Appellant contends that the thirty to sixty year aggregate sentence of

imprisonment was manifestly unreasonable. He alleges that the trial court

did not individualize his sentence or place adequate reasons on the record to

justify the length of the sentence.            While conceding that the sentence is

within the statutory maximum, and hence legal, Appellant levels criticism

against the court for focusing too heavily on the injuries of the victim, rather

than the other 42 Pa.C.S. § 9721 factors such as the public’s need for

protection and the defendant’s need for rehabilitation.4

       In sentencing beyond the aggravated range, the trial judge must

explain why this particular offense is more severe than the normal crime of

this type. Commonwealth v. Caraballo, 848 A.2d 1018, 1020 (Pa.Super.

2004). The trial court explained that the victim herein sustained more than
____________________________________________


4
    We note that the trial court stated in its Rule 1925(b) opinion that
Appellant was convicted of conspiracy to commit murder, which carries an
offense gravity score (“OGS”) of fourteen. Trial Court Opinion, 6/30/14, at
13. It added that, with a prior record score of five, offenses designated with
an offense gravity score of fourteen carry a sentence range of sixteen years
to the maximum allowed by statute, which was not more than forty years.
Id. (citing 18 Pa.C.S. § 1102(c)). It then imposed what it characterized as
an aggravated range sentence of ten to twenty years on the conspiracy
charge.

       Appellant was convicted of conspiracy to commit aggravated assault,
rather than conspiracy to commit murder.              N.T., 9/28/12, at 141.
Conspiracy to commit aggravated assault carries an OGS of ten. With a
prior record score of five, the standard range is sixty to seventy-two months,
plus or minus twelve months. Appellant, however, does not challenge herein
the trial court’s utilization of the incorrect OGS.



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the serious bodily injury usually associated with these offenses as Mr. Santos

was brain dead and sustained on life support.               Additionally, the court

demonstrated its knowledge of Appellant’s role in the events resulting in his

convictions. The court had the opportunity to observe Appellant throughout

trial and consider the remarks of his family members who spoke on his

behalf at the first sentencing hearing. At that hearing, there was an on-the-

record discussion of the applicable sentencing guidelines and Appellant’s

prior record.

      At the resentencing, the court stated on the record that it relied upon

a presentence report, a mental health evaluation, arguments of counsel, and

the prior sentencing hearing in arriving at its sentence.          N.T. Sentencing,

1/13/14, at 6.     “When, as here, the trial court has the benefit of a pre-

sentence report, we presume that the court was aware of relevant

information     regarding   the   defendant's   character    and    weighed   those

considerations along with any mitigating factors.”            Commonwealth v.

Seagraves, 103 A.3d 839, 842 (Pa.Super. 2014).                 For these reasons,

Appellant’s discretionary sentencing challenge fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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