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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
ANTONIO MARRERO-CRUZ,                  :         No. 1648 MDA 2019
                                       :
                       Appellant       :


    Appeal from the Judgment of Sentence Entered September 13, 2019,
               in the Court of Common Pleas of Berks County
              Criminal Division at No. CP-06-CR-0005480-2017


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JUNE 03, 2020

     Antonio Marrero-Cruz appeals from the September 13, 2019 judgment

of sentence entered in the Court of Common Pleas of Berks County, following

a bench trial where appellant was convicted of two counts of aggravated

assault, two counts of simple assault, and one count each of possessing

instruments of crime, and recklessly endangering another person (“REAP”).1

The trial court sentenced appellant to an aggregate term of 6 to 20 years’

incarceration, followed by two years’ probation. We affirm.

     The following facts were gleaned from the trial court’s opinion: This

incident was instigated by Angel “Gordo” Melendez (“Gordo”), who borrowed

the motor bike of appellant’s son, William Marrero-Rodriguez, and was


118 Pa.C.S.A. §§ 2702(a)(1) and (a)(4); 2701(a)(1) and (a)(2); 907(a); and
2705, respectively.
J. S17031/20

involved in an accident. Gordo refused to pay for the repairs or replace the

dirt bike. On June 14, 2019, appellant’s son arrived in the Glenside area of

Reading to discuss payment for the damages to his dirt bike. Appellant’s son

spoke with both Luis Salame-Morales (“Luis”) and Gordo. Gordo reiterated

that he would not pay to repair or replace the bike, slapped appellant’s son,

and kicked his car. Appellant’s son left and returned with appellant and other

family members. (Trial court opinion, 12/3/19 at 2-4.)

      When appellant arrived, he was angry and agitated by Gordo’s behavior

toward his son.     Jorge Salame (“the victim”), Luis’ brother, testified that

appellant had a gun in his hand and was making threats. Appellant and Luis

argued. Luis testified that appellant said if the damages to the motor bike

were not paid for, he “was going to shoot everybody and break everybody’s

car.” Both men pointed guns at one another. The victim attempted to calm

things down. When appellant threatened Luis, by placing a gun to his head,

Jonathan Salame, Luis’ son, tackled appellant. The three men, appellant, Luis

and Jonathan, fell to the ground and struggled over the guns. In the process,

a weapon discharged, injuring all three men. Luis and Jonathan ran. Although

the victim’s hands were in the air, appellant fired his gun, hitting the victim in

the side of his back.        This injury led to hospitalization and medical

complications. As a result of the shooting, the victim will be in a wheelchair

for the rest of his life. (Id.)




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      Following the imposition of sentence, no post-sentence motions were

filed. Appellant filed a timely notice of appeal. On October 15, 2019, the trial

court ordered appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial

court then filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            [1.]   Whether [appellant’]s uncontradicted testimony
                   at trial, and the forensic evidence presented,
                   demonstrated that the shooting in this case was
                   justified as self-defense, thus requiring the
                   Commonwealth to disprove this theory beyond
                   a reasonable doubt, and as self-defense was not
                   disproven by the Commonwealth, is not the
                   evidence insufficient to support the guilty
                   verdicts?

            [2.]   Whether     there   was     sufficient  evidence
                   presented at trial to enable the fact-finder to
                   find each element necessary for conviction for
                   the charges of aggravated assault under
                   18 Pa.C.S.A. § 2702(a)(1) where the evidence
                   of record did not establish beyond a reasonable
                   doubt that [a]ppellant acted with a recklessness
                   manifesting an extreme indifference to the
                   value of human life – i.e. malice – which must
                   be proven to establish aggravated assault?

            [3.]   Whether    there    was    sufficient  evidence
                   presented at trial to enable the fact-finder to
                   find each element necessary for conviction for
                   the charges of simple assault under both
                   18 Pa.C.S.A. § 2701(a)(1) and (a)(2); and
                   recklessly endangering another person under
                   18 Pa.C.S.A. § 2705, since the evidence
                   presented at trial was insufficient to establish
                   the required mens rea of recklessness or gross
                   negligence as required to sustain convictions of
                   each crime?


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Appellant’s brief at 4.

      Appellant’s issues challenge the sufficiency of the evidence to sustain

his convictions.2

            Our standard when reviewing the sufficiency of the
            evidence is whether the evidence at trial, and all
            reasonable inferences derived therefrom, when
            viewed in the light most favorable to the
            Commonwealth as verdict[-]winner, are sufficient to
            establish all elements of the offense beyond a
            reasonable doubt. We may not weigh the evidence or
            substitute our judgment for that of the fact-finder.
            Additionally, the evidence at trial need not preclude
            every possibility of innocence, and the fact-finder is
            free to resolve any doubts regarding a defendant’s
            guilt unless the evidence is so weak and inconclusive
            that as a matter of law no probability of fact may be
            drawn from the combined circumstances.             When
            evaluating the credibility and weight of the evidence,
            the fact-finder is free to believe all, part, or none of
            the evidence.

Commonwealth v. Emler, 903 A.2d 1273, 1276 (Pa.Super. 2006) (citation

omitted).

      On appeal, appellant first argues that the evidence was insufficient to

sustain his convictions because the Commonwealth failed to disprove, beyond

a reasonable doubt, that appellant acted in self-defense.

            [A] claim of self-defense (or justification, to use the
            term employed in the Crimes Code) requires evidence
            establishing three elements: (a) [that the defendant]

2 While appellant asserts that the Commonwealth did not disprove that he
acted in self-defense, appellant does not specifically challenge the sufficiency
of the evidence with respect to his convictions for aggravated assault,
18 Pa.C.S.A. § 2702(a)(4), and possession of instruments of crimes,
18 Pa.C.S.A § 907(a).


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            reasonably believed that he was in imminent danger
            of death or serious bodily injury and that it was
            necessary to use deadly force against the victim to
            prevent such harm; (b) that the defendant was free
            from fault in provoking the difficulty which culminated
            in the slaying; and (c) that the [defendant] did not
            violate any duty to retreat. Although the defendant
            has no burden to prove self-defense . . . before the
            defense is properly in issue, there must be some
            evidence, from whatever source, to justify such a
            finding. Once the question is properly raised, the
            burden is upon the Commonwealth to prove beyond a
            reasonable doubt that the defendant was not acting in
            self-defense.      The Commonwealth sustains that
            burden of negation if it proves any of the following:
            [1] that the [defendant] was not free from fault in
            provoking or continuing the difficulty which resulted in
            the [injury]; [2] that the [defendant] did not
            reasonably believe that he was in imminent danger of
            death or great bodily harm, and that it was necessary
            to kill in order to save himself therefrom; or [3] that
            the [defendant] violated a duty to retreat or avoid the
            danger.

Commonwealth v. Mouzon, 53 A.3d 738, 740-741 (Pa. 2012) (citations and

quotation marks omitted; some brackets in original text); see also 18

Pa.C.S.A. § 505. “If the Commonwealth establishes any one of these three

elements beyond a reasonable doubt, then the conviction is insulated from a

defense challenge to the sufficiency of the evidence where self-protection is

at issue.” Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa.Super. 2000)

(citation omitted).

            While there is no burden on a defendant to prove the
            [self-defense] claim, before that defense is properly
            at issue at trial, there must be some evidence, from
            whatever source to justify a finding of self-defense. If
            there is any evidence that will support the claim, then
            the issue is properly before the fact finder.


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Commonwealth v. Smith, 97 A.3d 782, 787 (Pa.Super. 2014) (citation

omitted).   A defendant’s own testimony is sufficient to raise a claim of

self-defense.   See Commonwealth v. Reynolds, 835 A.2d 720, 731

(Pa.Super. 2003)

      Here, appellant did not testify.   (Trial court opinion, 12/3/19 at 4.)

Rather, the appellant sought to raise his self-defense claim mainly through

the testimony of Detective Justin Uczynski, who interviewed appellant at the

hospital.   (Notes of testimony, 5/22/19 at 205.)      Appellant reported to

Detective Uczynski that while he was struggling on the ground with Luis and

Jonathan, the victim approached and pointed a gun at him. (Id. at 208, 209;

appellant’s brief at 16-19.)   Appellant then shot the victim.    (Id.)   This

evidence was sufficient to raise a self-defense claim and require the

Commonwealth to prove that appellant did not act in self-defense beyond a

reasonable doubt. Commonwealth v. Smith, 97 A.3d 782, 787 (Pa.Super.

2014).

      The record reflects that appellant provoked the initial confrontation.

Appellant arrived in an angry and agitated state. The victim testified that

appellant was brandishing a firearm when he exited his vehicle. (Notes of

testimony, 5/20/19 at 111.) Appellant then threatened to shoot people and

their cars. (Id at 53, 111.) After struggling with Luis and Jonathan, a gun

went off and Luis and Jonathan ran away. (Id. at 57.) At that point, appellant

shot the victim while his hands were up in the air. (Id. at 122.) Further,


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“[w]hile there was testimony regarding a second weapon being present and

handled by Luis [], there was no testimony by any witness, and the video of

the incident[3] d[id] not show, that [the victim] had a gun at any point.” (Trial

court opinion, 12/3/19 at 4.) The trial court, as the finder-of-fact, rejected

appellant’s self-defense claim. (Id. at 4.) Viewing the facts in the light most

favorable to the Commonwealth, as the verdict winner, we find that the

evidence was sufficient for the trial court to find that the Commonwealth

proved, beyond a reasonable doubt, that appellant was the aggressor and,

therefore, disproved appellant’s claim of self-defense beyond a reasonable

doubt.

      Appellant’s remaining sufficiency challenges are directed to his

convictions for aggravated assault, Section 2702(a)(1) only; simple assault,

Sections 2701(a)(1) and (a)(2); and REAP, Section 2705. “With regard to

each crime, [appellant] does not contest the sufficiency of evidence for any

element other than the mens rea requirements.” (Appellant’s brief at 32).

      Although appellant couches these claims as sufficiency challenges,

appellant does nothing more than attack witness credibility and attempt to

bolster his own version of the facts.       For example, appellant claims he

“declined an opportunity to inflict injury on either of his co-combatants while

he had the opportunity at close range and, further, even went so far as to


3 There was surveillance video footage of the incident which was played in
court. Several witnesses were questioned with regard to what the video
depicted. (Notes of testimony, 5/20-24/19; Exhibit 10.)


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disarm Luis [] to put an end to the aggression.” (Appellant’s brief at 29-30.)

He also claims that Luis pointed his gun at him and attempted to fire and that

“[a]ny alleged assault of any of these men was occasioned by [appellant]’s

efforts to save his [own] life.”    (Id. at 33-34.)    In so doing, appellant

challenges the weight of the evidence, not its sufficiency.          See, e.g.,

Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003)

(finding that review of the sufficiency of the evidence does not include a

credibility assessment; such a claim goes to the weight of the evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (noting

that the fact-finder makes credibility determinations, and challenges to those

determinations go to the weight, not the sufficiency, of the evidence). A

weight challenge, however, is not properly before us because the record

reflects that appellant failed to raise a weight claim in the trial court. See

Pa.R.A.P. 302(a) (issues not raised in the trial court waived on appeal).

      Nevertheless, we note that even if appellant had properly presented his

remaining sufficiency challenges, they would fail. A person is guilty of

aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), 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.”   To establish recklessness, the Commonwealth must

show that:

             [the appellant]’s recklessness rose to the level of
             malice, a crucial element of aggravated assault. …The


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            malice that is required for aggravated assault is the
            same as that required for third degree murder. Malice
            consists of a wickedness of disposition, hardness of
            heart, cruelty, recklessness of consequences, and a
            mind regardless of social duty, although a particular
            person may not be intended to be injured.

Commonwealth v. Miller, 955 A.2d 419, 422 (Pa.Super. 2008) (citations

and quotation marks omitted). “[F]or the degree of recklessness contained in

the aggravated assault statute to occur, the offensive act must be performed

under circumstances which almost assure that injury or death will ensue.”

Commonwealth v. Packer, 168 A.3d 161, 170 (Pa. 2017) (citation omitted,

brackets in original text).

      “Brandishing a loaded firearm … provides sufficient basis on which a

fact[-]finder may conclude that a defendant proceeded with conscious

disregard for safety of others, and had the present ability to inflict great bodily

harm or death. Commonwealth v. Hopkins, 747 A.2d 910, 916 (Pa.Super.

2000) (citation omitted). Further, where

            the victim [has] suffered serious bodily injury the
            Commonwealth may establish the mens rea of
            aggravated assault with evidence that the assailant
            acted either intentionally, knowingly, or recklessly. . . .
            In determining whether intent was proven from such
            circumstances, the fact finder is free to conclude the
            accused    intended     the    natural   and    probable
            consequences of his actions to result therefrom.

Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007), appeal

denied, 932 A.2d 74 (Pa. 2007) (citations and quotation marks omitted).




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         Here, the Commonwealth presented evidence that appellant arrived in

an agitated state with gun in hand, made threats to shoot people and their

cars, and shot the unarmed victim. (Notes of testimony, 5/20/19 at 53, 111,

122.) Further, it is uncontested that the victim sustained serious and

permanent bodily injury. Therefore, the evidence was sufficient to establish

that appellant acted recklessly, the required mens rea of aggravated assault.4

         As for appellant’s REAP conviction, we note that “[e]very element of

reckless endangerment is subsumed in the elements of aggravated assault.”

Commonwealth v. McCalman, 795 A.2d 412, 417 (Pa.Super. 2002),

appeal denied, 812 A.2d 1228 (Pa. 2002). Additionally, simple assault is a

lesser     included   offense   of   aggravated   assault   and   REAP.     See

Commonwealth v. Novak, 564 A.2d 988, 989 (Pa.Super. 1989) (citation

and quotation marks omitted); Commonwealth v. Brunson, 938 A.2d 1057,

1061 (Pa.Super. 2007), appeal denied, 952 A.2d 674 (Pa. 2008). Therefore,

even if appellant did not waive his remaining sufficiency challenges, we would

find that the evidence was sufficient to sustain appellant’s convictions.

         Judgment of sentence affirmed.




4 Additionally, we note that appellant has not challenged his conviction for
aggravated assault, 18 Pa.C.S.A. § 2702(a)(4), “attempt[ing] to cause or
intentionally or knowingly caus[ing] bodily injury to another with a deadly
weapon.” Therefore, appellant cannot dispute that he acted intentionally or
knowingly, which can alternatively serve as the mens rea required under
Section 2702(a)(1).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/03/2020




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