Com. v. Cuadro, J. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAIME CUADRO, : No. 2452 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, July 21, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010826-2014
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 12, 2016
Jaime Cuadro appeals the judgment of sentence entered in the Court
of Common Pleas of Philadelphia County following his conviction in a waiver
trial of one count of aggravated assault and two counts each of simple
assault and recklessly endangering another person (“REAP”).1 The trial
court sentenced appellant to serve 11½-23 months’ imprisonment on the
aggravated assault count. The trial court imposed no further penalty on the
remaining counts. We affirm.
The trial court set forth the following:
On May 17, 2014, at approximately 9:40 a.m.
on the 3900 block of L Street, [complainant] testified
that he backed up his Ford Explorer from an
alleyway partially onto the street when [appellant]
blocked his car by driving behind [c]omplainant’s
1
18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, respectively.
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Ford Explorer. Complainant exited his car and made
a waving hand motion for [appellant] to back up his
car. [Appellant] screamed at [c]omplainant, exited
his car, and angrily approached him. Complainant
grabbed a tire iron from a tool box in his car as
[appellant] was approaching and placed it down
when [appellant] stopped. Complainant did not
move or act aggressively while he held onto the tire
iron. Complainant told [appellant] to calm down as
[appellant] screamed and angrily approached.
[Appellant] proceeded to punch [c]omplainant on the
nose and [c]omplainant fell to the ground.
[Appellant] got on top of him and punched him five
to six more times, causing him to lose consciousness
for five to ten seconds. Complainant never punched
[appellant] back and was only trying to block off
[appellant]’s punches. When [c]omplainant opened
his eyes, he saw his mother [] come in between
them, pushing [appellant] off of him. [Appellant]
turned around and choked [complainant’s mother]
who is a fragile 58 years old [sic] woman whom had
undergone multiple prior surgeries. At the same
time, [c]omplainant’s sister, who was a passenger of
the Ford Explorer, exited the car to help but
[appellant] shoved her aside. Complainant
eventually regained his footing and pulled out his
licensed firearm from his hip, warding [appellant] off
his mother. The police later arrived and
[c]omplainant went to the hospital for six hours to
treat a broken nose, fractured jaw, a hole inside his
mouth, and an injury which required three stitches.
As a result of this incident, [c]omplainant sustained
permanent injuries, including a scar on his face, a
bent nose, and breathing difficulties. Complainant
testified that [complainant’s mother] suffered neck
pain after this incident. Throughout the entire
encounter, [c]omplainant did not strike [appellant]
or [appellant]’s son with the tire iron or gun.
[Appellant]’s son then testified. [The son]
stated that on the day in question, [appellant] was
driving to their cousin’s house when they
encountered [c]omplainant’s car blocking the
alleyway on L Street. After they waved
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[c]omplainant to move his car, the [c]omplainant
quickly backed up very close to their car.
[Appellant] backed up his car in response, but
[c]omplainant walked over to exchange words with
[appellant]. Complainant walked back to his own car
afterwards, reached for a tire iron, and then placed it
on the ground before coming back to [appellant]’s
car again. He saw [appellant] get out of the car and
[c]omplainant threw a punch. [Appellant’s son]
testified that a young lady jumped on [appellant],
while an older couple came out and hit [appellant].
He then saw [c]omplainant leave the scene and
return with a gun. He further stated that
[c]omplainant punched him on the right cheek since
he was in the way between [c]omplainant and
[appellant].
[Appellant] testified that [] he backed up his
car 30-40 feet to allow room for the [c]omplainant to
back up his car on that day in question. He testified
that [c]omplainant came out of the car, exchanged
words, and returned to his car to retrieve a tire iron.
After [c]omplainant threw the tire iron on the
ground, [c]omplainant walked over to [appellant]’s
car and exchanged words again. [Appellant] got out
of the car and punched [c]omplainant, causing
[c]omplainant to fall backwards. At that time,
[appellant] testified that a young lady grabbed onto
his back, while an older couple grabbed onto him.
[Appellant] then saw [c]omplainant walk towards
[appellant]’s car, grab the keys to the car and put
them in his pockets. [Appellant] also saw the police
hug [c]omplainant before being arrested.
Trial court opinion, 10/20/15 at 2-4 (citations to the notes of testimony
omitted).
Appellant raises the following issues for our review:
I. WAS THE EVIDENCE SUFFICIENT TO SUPPORT
APPELLANT’S CONVICTIONS FOR
AGGRAVATED ASSAULT AND RELATED
OFFENSES WHERE THE COMMONWEALTH
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FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT APPELLANT DID NOT
JUSTIFIABLY ACT IN SELF-DEFENSE WHEN
THE COMPLAINANT ADVANCED UPON HIM
WHILE SCREAMING AND WIELDING A TIRE
IRON?
II. WAS THE EVIDENCE SUFFICIENT TO SUSTAIN
APPELLANT’S CONVICTIONS FOR SIMPLE
ASSAULT AND RECKLESSLY ENANGERING
[SIC] ANOTHER PERSON WITH RESPECT TO
HIS SUPPOSED ATTACK ON [THE
COMPLAINANT’S MOTHER] WHRE [SIC] [THE
MOTHER] DID NOT TESTIFY AND NO
EVIDENCE WAS PRESENTED TO ESTABLISH
THAT SHE WAS INJURED IN ANY WAY DURING
THE CONFRONTATION?
III. WERE APPELLANT’S CONVICTIONS AGAINST
THE CLEAR WEIGHT OF THE EVIDENCE
WHERE: (1) THE TRIAL TESTIMONY OF THE
COMPLAINANT WAS INCONSISTENT WITH
STATEMENTS HE HAD MADE TO A POLICE
OFFICER FOLLOWING THE INCIDENT ABOUT
WHETHER HE WAS CARRYING HIS GUN AT
THE TIME OF THE CONFRONTATION; AND
(2) THE COMPLAINANT’S TESTIMONY THAT HE
DID NOT INJURE APPELLANT WAS
CONTRADICTED BY THE TESTIMONY OF A
POLICE OFFICER, DEFENSE WITNESS, AND
PHOTOGRAPHS?
Appellant’s brief at 4.
Appellant first complains that the evidence was insufficient to convict
him of aggravated assault, simple assault, and REAP with respect to
complainant because he acted in self-defense.
We are subject to the following standard of review on sufficiency
claims:
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In reviewing the sufficiency of the evidence, we view
all the evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to see whether there is sufficient evidence to enable
[the factfinder] to find every element of the crime
beyond a reasonable doubt. This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of the
evidence, this Court may not substitute its judgment
for that of the fact-finder; if the record contains
support for the convictions they may not be
disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted). Under the Crimes Code, a person commits aggravated assault
when he or she “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.A.
§ 2702(a). A person commits simple assault if he ”attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another;” or
“attempts by physical menace to put another in fear of imminent serious
bodily injury.” 18 Pa.C.S.A. §§ 2701(a)(1), 2701(a)(3). The Crimes Code
defines recklessly endangering another person as “conduct which places or
may place another person in danger of death or serious bodily injury.”
18 Pa.C.S.A. § 2705.
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The defendant has no burden to prove self-defense. Commonwealth
v. Smith, 97 A.3d 782, 787 (Pa.Super. 2014). If the defendant properly
raises self-defense under Section 505 of the Crimes Code, the burden is on
the Commonwealth to prove beyond a reasonable doubt that the defendant’s
act was not justifiable self-defense. Id. With respect to self-defense, the
Crimes Code states, “[t]he use of force upon or toward another person is
justifiable when the actor believes that such force is immediately necessary
for the purpose of protecting himself against the use of unlawful force by
such other person on the present occasion.” 18 Pa.C.S.A. § 505(a). The
use of force is not justifiable when:
the actor knows that he can avoid the necessity of
using such force with complete safety by retreating,
except the actor is not obliged to retreat from his
dwelling or place of work, unless he was the initial
aggressor or is assailed in his place of work by
another person whose place of work the actor knows
it to be.
18 Pa.C.S.A. § 505(b)(2)(ii).
Here, the record reflects that complainant was backing out of the
street in his car when appellant blocked his path. (Notes of testimony,
3/19/15 at 8.) Complainant asked appellant to move his car so complainant
could continue backing out. (Id. at 10.) Appellant then got out of his car
and began moving toward complainant. (Id. at 11.) At this point,
complainant took a tire iron out of his car in an attempt to ward off
appellant. (Id.) As soon as appellant halted his gait, complainant placed
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the tire iron on the ground. (Id.) Once the tire iron was on the ground,
appellant started towards complainant again and hit him in the nose with his
fist. (Id. at 12.) Complainant then fell to the ground, and appellant
continued hitting him five or six more times with his fists. (Id. at 13-14.)
Complainant testified that he lost consciousness during the incident. (Id. at
35.) Complainant also stated that he feared for his life during the
confrontation. (Id. at 17.) Appellant caused serious and permanent injuries
to complainant, including a broken nose, a fractured jaw, and a hole in his
mouth. (Id. at 18.) Complainant currently suffers from breathing problems
due to the assault. (Id. at 17.)
After careful review of the record, we find that, when viewed in the
light most favorable to the Commonwealth as verdict winner, the
Commonwealth produced evidence sufficient to prove that appellant did not
act in self-defense and that he had every opportunity to avoid the necessity
of using force and safely retreat. After complainant placed the tire iron on
the ground, appellant resorted to violence instead of leaving the scene
peacefully. After complainant fell to the ground, appellant continued hitting
complainant with his fists. Appellant was not a victim in this incident; he
was the source of danger. Therefore, appellant’s first claim lacks merit.
Appellant next contends that because complainant’s mother did not
testify, the Commonwealth was unable to produce sufficient evidence to
sustain his convictions of simple assault and REAP with respect to
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complainant’s mother. Alternatively, appellant claims he acted in
self-defense.
Here, the record reflects that complainant testified that his mother is
58 years old with limited physical mobility due to prior surgeries on her leg.
(Id. at 15.) Complainant further testified that after he regained
consciousness, he saw appellant choking his mother, causing her to scream
and attempt to pull his hands off of her. (Id. at 19.) Appellant continued to
choke complainant’s mother, only stopping when complainant drew his
firearm. (Id. at 16.) As a result of appellant choking complainant’s mother,
complainant testified that his mother experienced neck pain. (Id. at 35.)
Here, the trial court rejected appellant’s version of events and
accepted the eyewitness testimony of complainant with respect to
appellant’s assault on his mother. The trial court, sitting as fact-finder, was
free to determine witness credibility and believe all, part, or none of the
testimony. See Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.Super.
2008). Viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, we find that the Commonwealth produced
sufficient evidence to sustain appellant’s convictions of simple assault and
REAP with respect to complainant’s mother. Therefore, this claim is
meritless.
Finally, appellant contends that the verdicts rendered by the trial court
were against the weight of the evidence.
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Our standard of review for determining whether a verdict is compatible
with the weight of the evidence is well settled:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations
omitted) (emphasis omitted).
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the . . . verdict if it is so contrary
to the evidence as to shock one’s sense of justice.
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).
Here, appellant contends “that the testimony of the complainant []
was wholly unreliable and unworthy of belief.” (Appellant’s brief at 19.)
Appellant asks us to re-weigh the evidence and make credibility
determinations. We decline to do so, as that is not our role. After a careful
review of the record, we conclude that the verdicts by the trial court were
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not so contrary to the weight of the evidence as to shock one’s sense of
justice. Therefore, this claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2016
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