J-S71018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE EL RIVERA ANDRADES,

                            Appellant                 No. 272 WDA 2015


           Appeal from the Judgment of Sentence January 29, 2015
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001253-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED JANUARY 27, 2016

       Appellant, Jose El Rivera Andrades, appeals from the judgment of

sentence1 entered following his convictions of aggravated assault, terroristic

threats, simple assault (2 counts), and recklessly endangering another

person (“REAP”). We affirm.

       The trial court summarized the factual history of this case as follows:

               On August 18, 2013, Appellant assaulted his then-
       girlfriend, Wanda Crespo at their residence. . . . .

____________________________________________


1
  We note that, inexplicably, the Commonwealth and Appellant indicate on
the front pages of their briefs that this case involves an appeal from the
dismissal of a petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Moreover, the Commonwealth’s brief
sets forth the standard for review of a PCRA petition in the argument section
of its brief. As indicated by the record, Appellant has filed a direct appeal
from entry of his judgment of sentence.
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             On that date, Appellant arrived home and Ms. Crespo
       observed that his speech was slurred, his face was “droopy”, and
       he appeared “high”. After she asked Appellant if he was taking
       her medication, Appellant became upset and hit Ms. Crespo in
       the face. Appellant then began strangling her to the point that
       she almost lost consciousness. Appellant also grabbed a knife
       and stabbed at the wall directly next to Ms. Crespo’s face.
       During the assault, Appellant threatened to kill her.

            After the assault, Appellant told Ms. Crespo not to tell
       anyone, or he would [ ] kill her and her family, starting with the
       young children first.      Out of fear, Ms. Crespo waited
       approximately one week before she contacted police.

Trial Court Opinion, 5/12/15, at 1 (internal citations omitted).

       Following a jury trial, Appellant was convicted of the afore-mentioned

offenses. On January 29, 2015, Appellant was sentenced to a term of eighty

to one-hundred-and-sixty months of incarceration at count 1 (aggravated

assault) and a concurrent ten to twenty-four months of incarceration at

count 4 (terroristic threats).      The remaining counts merged for sentencing

purposes.

       Appellant filed a timely appeal.2         Both the trial court and Appellant

complied with the requirements of Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:

       I.    Did the Lower Court ERR by allowing the jury to find the
       Appellant guilty of attempted Aggravated Assault when the
       evidence as submitted by the Commonwealth was insufficient to
       establish the elements of the charge?

____________________________________________


2
  Although Appellant chose to represent himself at trial, Appellant has
appointed appellate counsel.



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      II.   Did the Lower Court ERR in its’ instructions to the jury on
      the charge of Attempted Aggravated Assault?

Appellant’s Brief at 1 (verbatim).

      In his first issue, Appellant argues that the evidence at trial was

insufficient to establish that he was guilty of aggravated assault. Appellant’s

Brief at 4. Appellant asserts that although the victim’s testimony established

that Appellant hit and choked her, there was no testimony establishing that

the victim suffered serious bodily injury.    Id.   Appellant further contends

that the fact that there was no serious bodily injury to the victim at the time

of or after the altercation “proves he did not have the requisite intent and

therefore the evidence was insufficient to substantiate the jury’s finding of

guilt on the Attempted Aggravated Assault charge.” Id. at 5.

      Our standard of review for a sufficiency claim is well settled:

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.



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Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011).

     Appellant was convicted of aggravated assault under 18 Pa.C.S.

§ 2702(a)(1), which provides as follows:

     Aggravated assault

     (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;

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

     Bodily 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. “For aggravated assault purposes, an ‘attempt’ is found

where the accused, with the required specific intent, acts in a manner which

constitutes a substantial step toward perpetrating a serious bodily injury

upon another.”   Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.

Super. 2012).

           Where the victim does not suffer serious bodily injury, the
     charge of aggravated assault can be supported only if the
     evidence supports a finding of an attempt to cause such injury.
     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. An attempt under
     Subsection 2702(a)(1) requires some act, albeit not one causing
     serious bodily injury, accompanied by an intent to inflict serious
     bodily injury. A person acts intentionally with respect to a
     material element of an offense when ... it is his conscious object
     to engage in conduct of that nature or to cause such a result. As


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      intent is a subjective frame of mind, it is of necessity difficult of
      direct proof. The intent to cause serious bodily injury may be
      proven by direct or circumstantial evidence.

Martuscelli, 54 A.3d at 948 (internal citations and quotation marks

omitted).

      Testimony at trial established that after the victim questioned

Appellant about taking the victim’s medication, Appellant became very

upset. N.T., 11/12/14, at 8. Appellant first started shouting and yelling at

the victim, and then he proceeded to hit the victim in the face and strangle

her. Id. at 9. While strangling the victim, Appellant pulled her to the floor.

Id.   Appellant threatened to kill the victim and mused aloud to the victim

how easy it would be to kill her and get rid of her by putting her body in the

trunk of the car. Id. After the victim was able to get up, the confrontation

moved to the kitchen of the victim’s home.        Id. at 10.   There, Appellant

grabbed a knife and swung it at the victim, sticking the knife in the wall very

close to the victim’s face. Id. at 10.

      Thus, the evidence of record supports the finding of an attempt to

cause serious bodily injury.      Appellant’s actions of hitting, strangling,

threatening, and aiming a knife at the victim’s head constituted substantial

steps toward causing serious bodily injury and reflected his intent to do so.

Based on the totality of circumstances, we agree with the trial court’s

conclusion that there was sufficient evidence of record to support Appellant’s




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conviction of aggravated assault under 18 Pa.C.S. § 2702(a)(1). Appellant’s

first claim is meritless.

      Appellant next argues that the trial court failed to properly instruct the

jury on the “attempted aggravated assault” charge. Appellant’s Brief at 6.

Appellant maintains that the trial court’s instructions on “attempted

aggravated assault were not clear as to the two elements: intent to commit

serious bodily injury and a substantial step toward serious bodily injury.”

Id. (emphasis in original). Accordingly, Appellant contends the verdict as to

that charge should be vacated. Id.

      We are precluded from addressing the merits of this claim because

Appellant has waived this issue.         To preserve error regarding jury

instructions,   a   defendant   must   make   a   specific   objection   at   trial.

Pa.R.Crim.P. 647(B); Pa.R.A.P. 302(b).        “A specific and timely objection

must be made to preserve a challenge to a particular jury instruction.

Failure to do so results in waiver.”    Commonwealth v. Charleston, 16

A.3d 505, 527 (Pa. Super. 2011) (quoting Commonwealth v. Moury, 992

A.2d 163, 178 (Pa. Super. 2010)).        Here, Appellant failed to raise any

objection to the jury charge at trial.        N.T., 11/12/14, at 69, 72-74.

Therefore, he has waived any claim of error to the charge.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2016




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