Com. v. Acevedo, H. ( 2018 )

J-S73017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HARRIS ARIEL-DIMITRYS ACEVEDO, :
:
Appellant : No. 760 MDA 2017
Appeal from the Judgment of Sentence April 24, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0004657-2016
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 07, 2018
Appellant, Harris Ariel-Dimitrys Acevedo, appeals from the Judgment of
Sentence entered in the Berks County Court of Common Pleas following his
convictions after a bench trial of, inter alia, Aggravated Assault and Receiving
Stolen Property.1 Appellant challenges the sufficiency of the evidence to
support these convictions. After careful review, we affirm.
On August 2, 2016, Luis Aviles was working at a bar in Reading,
Pennsylvania when he encountered Appellant trying to break into a garage
near the bar with a knife. When Aviles approached Appellant and asked what
he was doing, Appellant did not reply. Instead, Appellant placed the knife into
his pocket, started backing away from Aviles, and pulled out a firearm from
his waistband. Aviles ducked behind a nearby parked truck. As Appellant
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1 18 Pa.C.S. § 2702(a)(1) and 18 Pa.C.S. § 3925(a), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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backed away, he cocked the gun, aimed at Aviles, and fired once from
approximately twelve feet away. Appellant’s first shot hit the truck’s tire,
barely missing Aviles. The gun then jammed; Appellant quickly cleared the
jam, reloaded the gun, and fired at Aviles a second time. Appellant then fled
down a nearby alley with another person, who had been watching from across
the street.
A few hours later, Appellant and his co-conspirator patronized a gas
station in a red BMW. After observing Appellant and his co-conspirator
throwing away valuables and having difficulty starting the BMW, another
motorist approached them to offer his assistance. The motorist noticed that
Appellant and his co-conspirator did not have the car keys and were trying to
start the car with a knife; the motorist also observed a firearm on the floor of
the vehicle. The motorist departed and called police to report the firearm and
the possible stolen vehicle. Police responded to the gas station, apprehended
Appellant and his co-conspirator, and recovered the distinctive firearm, which
had pink paint along the rail, a missing screw, and an illegible serial number
under the barrel.
The Commonwealth charged Appellant with, inter alia, Aggravated
Assault and Receiving Stolen Property. Appellant proceeded to a bench trial,
at which the Commonwealth presented testimony from Aviles, the motorist,
the registered owners of the BMW and the distinctive firearm, and several
police officers. Aviles identified Appellant as the shooter. Both the firearm
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owner and the BMW owner testified that Appellant did not have permission to
take their stolen property.2
The parties stipulated to several facts, including: (1) Appellant was
ineligible to obtain a license to carry a firearm since he was 17 years old on
the date of the shooting; (2) Appellant had been adjudicated delinquent for
Burglary in 2014, which rendered him ineligible to possess a firearm; and (3)
expert analysis concluded that the same distinctive firearm recovered from
the BMW—an operable .40-caliber Springfield Armory Model XD-40 handgun—
had fired a discharged .40-caliber cartridge casing recovered from the scene
of the earlier shooting.
Following a one-day bench trial, the trial court found Appellant guilty of
numerous offenses, including Aggravated Assault and Receiving Stolen
Property.3 On April 24, 2017, the trial court imposed an aggregate term of
five to ten years’ incarceration.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents the following two issues for our review:
1. Whether there was sufficient evidence to support the trial
court’s verdict as to the charge of Aggravated Assault as the
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2 The registered firearm owner testified that he last observed the firearm in
his garage in July 2016 and that the serial number was previously legible.
3The trial court found Appellant not guilty of Criminal Attempt (First-Degree
Murder).
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Commonwealth failed to establish Appellant’s intent to
cause serious bodily injury?
2. Whether there was sufficient evidence to support the trial
court’s verdict as to the charge of Receiving Stolen Property
as the Commonwealth failed to establish Appellant’s
knowledge that the gun was stolen or that the Appellant
believed that the gun has probably been stolen?
Appellant’s Brief at 4.
Appellant first challenges the sufficiency of the evidence supporting his
conviction for Aggravated Assault. Appellant avers that there is no evidence
that he intended to cause serious bodily injury, and claims that there is “an
equally reliable inference” that he simply intended to scare the victim rather
than cause serious bodily injury. Appellant’s Brief at 12-13.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review
claims regarding the sufficiency of the evidence by considering whether,
viewing all the evidence admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt.” Commonwealth v.
Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and
citations omitted). “Further, a conviction may be sustained wholly on
circumstantial evidence, and the trier of fact—while passing on the credibility
of the witnesses and the weight of the evidence—is free to believe all, part, or
none of the evidence.” Id. “In conducting this review, the appellate court
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may not weigh the evidence and substitute its judgment for the fact-finder.”
Id.Appellant challenges the sufficiency of the evidence supporting his
conviction for Aggravated Assault. “A person is guilty of [A]ggravated
[A]ssault 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). The Crimes Code defines “serious bodily injury” as “[b]odily
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.
“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[.]” 18 Pa.C.S. § 302(b)(1)(i). “As intent is a
subjective frame of mind, it is of necessity difficult of direct proof. Intent can
be proven by direct or circumstantial evidence; it may be inferred from acts
or conduct or from the attendant circumstances.” Miller, 172 A.3d at 641
(citations and quotation marks omitted).
“[F]iring a gun constitutes the type of conduct that is likely to result in
serious bodily injury. Further, the intent to injure, as required by the statute,
is also inferred from such conduct.” Commonwealth v. Galindes, 786 A.2d
1004, 1012 (Pa. Super. 2001). “Even though [the victim] was not struck by
any bullets, the act of firing a gun toward him constitutes an attempt to cause
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serious bodily injury.” Id. “[I]n instances where the defendant has both
drawn and fired (or drawn and misfired) a gun, we have consistently held that
an [A]ggravated [A]ssault occurred.” Commonwealth v. Matthews, 870
A.2d 924, 929 (Pa. Super. 2005) (en banc). See also Commonwealth v.
Thompson, 739 A.2d 1023, 1028-29 (Pa. 1999) (holding that evidence that
the defendant shot at and “narrowly missed hitting” the victim sufficient to
sustain a conviction for Aggravated Assault).
Our review of the certified record in the instant case indicates that the
evidence is more than sufficient to sustain Appellant’s conviction for
Aggravated Assault. As the victim testified, Appellant brandished a firearm at
him when he interrupted Appellant’s attempt to break into a garage. Without
saying anything, Appellant pulled out a gun, slowly backed away, and then
fired directly at the unarmed victim, hitting the tire of a truck behind which he
had seen the victim hide. After the firearm jammed, Appellant cleared the
jammed firearm, reloaded, and fired a second time at the hiding victim. This
evidence clearly supported the court’s conclusion that Appellant acted with the
intention to cause serious bodily injury to the victim, rather than simply to
scare him. The fact that Appellant’s gunshots missed the victim is of no
moment. See Galindes, 786 A.2d at 1012; Thompson, 739 A.2d at 1028-
29.
We, thus, conclude after viewing the totality of the evidence in the light
most favorable to the Commonwealth as the verdict winner, it is clear that the
Commonwealth proved each element of Aggravated Assault.
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In his second issue, Appellant contends that the evidence was
insufficient to sustain his conviction for Receiving Stolen Property. Appellant
avers that there is no evidence that he “had knowledge that the gun was
stolen or that he believed that it had probably been stolen.” Appellant’s Brief
at 16. He argues that it was not obvious that a serial number underneath the
barrel of the gun had been altered. Id. at 15.
A person is guilty of Receiving Stolen Property “if he intentionally
receives, retains, or disposes of movable property of another knowing that it
has been stolen, or believing that it has probably been stolen, unless the
property is received, retained, or disposed with intent to restore it to the
owner.” 18 Pa.C.S. § 3925(a).
“In order to obtain a conviction for [R]eceiving [S]tolen [P]roperty, the
Commonwealth must establish the following elements beyond a reasonable
doubt: (1) the property was stolen; (2) the defendant was in possession of
the property; and (3) the defendant knew or had reason to believe the
property was stolen.”4 Commonwealth v. Foreman, 797 A.2d 1005,
1011 (Pa. Super. 2002) (emphasis added).
The Commonwealth may prove that the defendant knew or had reason
to believe the property was stolen through direct or circumstantial evidence.
Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en
banc). Circumstantial evidence showing a defendant’s guilty knowledge may
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4 We note that Appellant does not contend that the Commonwealth failed to
satisfy its burden of proof as to the first two elements of the crime.
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include: (1) “the lapse of time between possession and theft[;]” (2) “whether
the property has alterations indicative of being stolen[;]” (3) “the nature of
the goods,” including the special status of handguns as “highly regulated”
goods that “cannot be easily obtained from legitimate dealers[;]” and (4) a
defendant’s status as a formerly convicted felon and the consequent
knowledge that (i) it is illegal for such felons to obtain a handgun, and (ii) a
criminal background check would have prevented a purchase from a legitimate
dealer in legal trade channels. Commonwealth v. Parker, 847 A.2d 745,
751-52 (Pa. Super. 2004).
Here, the Commonwealth provided ample evidence from which the
factfinder could infer that Appellant knew or had reason to believe the firearm
was stolen: (1) the firearm had been stolen from the owner at some point in
the past month before the shooting; (2) the serial number underneath the
firearm’s barrel had been altered in the past month and was illegible; (3) the
stolen property was a firearm, which has a unique status as a highly regulated
good that cannot be obtained easily from legitimate dealers;5 and (4)
Appellant’s status as both a juvenile and previously adjudicated delinquent,
rendering him ineligible to obtain any firearm legally and unable to pass a
background check required by legitimate dealers in legal trade channels.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, this evidence was sufficient to support the inference of
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5 See 18 Pa.C.S. § 6111 (“Sale or transfer of firearms”).
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guilty knowledge required for Appellant’s conviction for Receiving Stolen
Property. Accordingly, we affirm the Judgment of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/07/2018
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