Com. v. Mendez, A., Jr. ( 2021 )

J-A28010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL L. MENDEZ, JR. :
:
Appellant : No. 243 MDA 2021
Appeal from the Judgment of Sentence Entered November 6, 2019
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001148-2018
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: DECEMBER 14, 2021
Angel L. Mendez, Jr., appeals from the judgment of sentence,1 entered
in the Court of Common Pleas of Lebanon County, following his convictions for
aggravated assault causing serious bodily injury,2 simple assault causing
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Although Mendez purports to appeal from the January 4, 2021, order denying
post-sentence motions, Johnson’s appeal properly lies from the November 6,
2019 judgment of sentence. See Commonwealth v. Chamberlain, 658
A.2d 395, 397 (Pa. Super. 1995) (order denying post-sentence motion
finalizes judgment of sentence; thus, appeal is taken from judgment of
sentence, not order denying post-sentence motion). See also
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001).
Accordingly, we have corrected the caption.
2 18 Pa.C.S.A § 2702(a)(1).
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bodily injury,3 simple assault by mutual affray;4 disorderly conduct,5 and
public drunkenness.6 After careful consideration, we affirm.
On June 16, 2018, Mendez attended a cookout at the home of his
brother-in-law and half-sister, Richard and Adrienne Ruhl,7 starting at 1:00
p.m. N.T. Jury Trial, 7/23/19, at 16-17. Richard testified that Mendez took
a bottle of tequila from Richard’s room and became increasingly aggressive
and drunk. Id. Richard, Adrienne, and Mendez left to get food at a diner
where, according to Richard, Mendez laid on a sofa and passed out causing a
diner employee to tell Richard that Mendez could not be there. Id. at 18-19.
Mendez and Richard returned to Richard’s house and drank beer by the
garage while Adrienne took her kids to get slushies. Id. at 19-20. Richard
testified that Mendez began to use profanity and show attitude by calling
himself the “N-word;” claiming he was from New Jersey; calling himself Angel
Lucifer Mendez instead of his real name, Angel Luis Mendez; and stating that
“he gives life; he takes life.” Id. at 20. Richard told Mendez he was from
Pennsylvania, not New Jersey, which Richard claims caused Mendez to become
“aggressive and nasty,” and led Richard to attempt to calm Mendez down. Id.
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3 18 Pa.C.S.A § 2701(a)(1).
4 18 Pa.C.S.A § 2701(b)(1).
5 18 Pa.C.S.A. § 5503.
6 18 Pa.C.S.A. § 5505.
7 Hereinafter, we refer to both Richard and Adrienne Ruhl by their first names
to avoid confusion.
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Richard testified that he told Mendez that once Adrienne came back, Richard
and Adrienne would take Mendez home. Id.
Richard testified that after he closed the garage door, Mendez charged
at him. Id. at 21. Richard claimed he put down his beer shortly before
Mendez tackled him to the ground, and that once Richard got back up, Richard
was hit and fell unconscious. Id. While Mendez claimed Richard hit him with
a beer bottle, Richard claimed that he never knew how or if his beer bottle
struck Mendez, but he pled guilty to simple assault without justification
because of a bruise and laceration on Mendez’s face, the fact that the beer
bottle was broken after the fight, and the possibility that his actions caused
“glancing contact” with Mendez. Id. at 22, 30, 41.
Adrienne testified that, after returning home from getting slushies, she
found Mendez standing over Richard, who was lying in the driveway. Id. at
61. Adrienne testified that Mendez told her Richard hit him with a bottle, so
Mendez defended himself. Id. Adrienne also stated that both Richard and
Mendez had been drinking that day, although she did not remember if Mendez
took a tequila bottle from her and Richard’s room. Id. at 63.
Carl Brubaker, who lived across the street diagonally from Richard and
Adrienne’s home, testified that he heard shouting and somebody saying,
“[Y]ou are nothing but a New Jersey n@#ger,” and someone called the other
a “f@#got.” Id. at 66, 68. Shortly after that, somebody said, “[D]on’t come
at me.” Id. at 66. This led Brubaker to call the police, and during the call,
Brubaker heard “about a dozen hits that may have landed.” Id. After it got
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quiet, Brubaker heard somebody say something like, “I always loved you. You
always hated me. You were always against me, but yet you hit me in the face
with a bottle.” Id.
Officer Ryan Haase of the North Lebanon Township Police Department
responded to the scene that night, and shortly after arrival, arrested Mendez.
Id. at 74-75. Mendez told Officer Haase that he only hit Richard two or three
times after Richard threw a beer bottle at him. Id. at 75-76.
Officer Randall Morgan of the North Lebanon Township Police
Department arrived at the scene of the fight after Officer Haase and followed
the ambulance carrying Mendez to the hospital. Id. at 82-83. Officer Morgan
gave Mendez a Miranda8 waiver, which Mendez signed, and Mendez agreed
to give Officer Morgan a written statement, which read: “I, Angel Mendez,
was attacked, hit numerous times with a bottle, [used] self-defense to protect
myself, [and] struck [my] opponent back for my defense.” Id. at 85. Officer
Morgan testified that Mendez had glassy eyes and an odor of alcohol on his
breath and that Mendez stated he had a couple drinks that day. Id. at 85-86.
Mendez told Officer Morgan that he hit Richard two or three times and, after
initially stating that he did not know what started the fight, Mendez said the
fight started because he believed Richard was racist. Id. at 86, 90. Officer
Morgan testified that Mendez suffered a laceration on his pinky and ring
fingers on his right hand, suffered a laceration and a contusion above his left
____________________________________________
8 Miranda v. Arizona, 348 U.S. 436 (1966).
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eye, had a very swollen left-side of his face, and had blood all over his clothing.
Id. at 88.
Mendez testified that, at some point after 5:00 p.m., Richard told
Mendez to go upstairs to retrieve a bottle of tequila that contained less than
a shot, which Richard drank. Id. at 116. Mendez testified that he and Richard
drank three beers each before he, Adrienne, and Richard went to the diner,
where he did not pass out and just used the bathroom before leaving. Id. at
115. Mendez testified that after returning to Adrienne and Richard’s house,
Richard asked him to hang out outside while Adrienne took the kids to get
slushies. Id. at 117-18. Mendez testified that Richard complained about
sending Mendez and his mother a generator in Puerto Rico, where Mendez
temporarily stayed, while Richard lost power for two days over that summer.
Id. Richard told Mendez that he did not really go through a disaster from
hurricanes in Puerto Rico. Id. at 118. Mendez testified that he told Richard
that Richard did not have to help Mendez and Mendez’s mother, which caused
Richard to call him a “n@#ger” and “f@#got”. Id. Mendez testified he paid
Richard no attention until Richard stood up and hit Mendez in the eye with his
beer bottle while Mendez was sitting down. Id. at 119.
Mendez said he stood up and asked Richard “why he hit him” and begged
him to “not come at him” while Mendez walked away, but Richard laughed
and, using the bottle, hit Mendez in the back of the head twice more, breaking
the bottle and leading Mendez to defend himself. Id. at 119-20. Mendez said
he subsequently punched Richard three times with his fists; the first punch
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buckled him, but then Richard got back up, so Mendez hit him twice more,
fearing Richard’s size difference.9 Id. at 23, 121. Richard subsequently fell
over, leading Mendez to state, “I love you. Why did you hit me with a bottle?”
N.T. Jury Trial, 7/23/19, at 122.
Richard spent three days in the hospital. Id. He suffered two orbital
tears, bruising to the neck, a broken nose, a broken jaw, and three missing
teeth. Id. at 23. Richard stated that the hospital staff informed him he was
lucky to not have severe brain injuries and that after his swelling lessened,
they would need to perform a facial surgery, which had a “good chance” of
killing him. Id. at 22-23. After the staff wired Richard’s jaw shut, he lost 30
pounds over the following six weeks. Id. at 23. Following the incident,
Richard’s foot dropped,10 causing him to walk with a limp, wear a leg brace,
and undergo physical therapy. Id. at 26. The assault also caused Richard to
suffer some memory issues. Id. at 44.
Karima Fitzgerald, M.D., who was qualified as an expert in the field of
general surgery, testified that as a result of the assault, Richard suffered: two
orbital fractures; nasal fractures near his sinus, mid-face, and teeth; facial
swelling; and fractures at the base of his skull. Id. at 56. Doctor Fitzgerald
____________________________________________
9 Richard weighed around 202 pounds at the time, while Mendez weighed
about 170 pounds. Presentence Face Sheet, 8/12/19, at 5.
10Foot drop is a general term for difficulty lifting the front part of the foot and
results from an underlying neurological, muscular, or anatomical problem.
See https://www.mayoclinic.org/diseases-conditions/foot-drop/symptoms-
causes/syc-20372628 (last visited Nov. 24, 2021).
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testified that these facial fractures could lead to a stroke or, with enough
swelling, impede Richard’s airways. Id. at 56-57. Thus, the fractures
required surgical treatment. Id.
During jury deliberations, the trial court allowed all photographs,
including those photos depicting Richard’s injuries following the assault, to be
published to the jury, but the jury saw no other exhibits. Id. at 135. Defense
counsel did not formally object to the trial court’s decision but requested the
court not to publish to the jury any of the exhibits unless the jury requested
them. Id. When asked to explain his reasoning, defense counsel simply
reiterated that the jury had not requested them. Id. During trial, defense
counsel only objected to the admission and publication to the jury of Exhibit
Eleven, which depicted Richard’s injuries, but acquiesced to the admission and
publication to the jury of all other exhibits. Id. at 24-25, 76-77, 87-88, 97.
Shortly before deliberations, the trial court asked each attorney’s opinion as
to which exhibits should be published to the jury for deliberations. Id. at 135.
The Commonwealth moved to publish all exhibits, and defense counsel
responded that exhibits should only be published upon request. The trial court
informed counsel all photographic exhibits would be published. Id. Defense
counsel did not object. Id.
During deliberation, the jury asked the trial judge the following
question: “Regarding substantial risk of death. Does it apply to the surgery
that resulted from the offense or from the assault that night?” Id. at 137.
The trial court answered: “If somebody would not have needed a surgical
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intervention, but only needed the surgical intervention because of the assault,
and the surgical intervention, itself, created a substantial risk of death, then
the assault by definition creates a substantial risk of death.” Id. at 137. After
receiving the court’s answer to the question, defense counsel did not object.
However, the following exchange took place before the court issued its
response to the jury:
[Defense Counsel]: Your Honor, in this case the Commonwealth
called an expert witness who described the various injuries [that]
required that level of surgery. I believe the basis of evidence
before that was a layman’s understanding of what was perhaps,
and to put the fate of that on that level of testimony would be –
[Trial Court]: I’m answering the question. I think it is a legal
question. I don’t know what they are basing their decision on. I
don’t know what their analysis of the facts is, but it is a simple
legal question. I am going to answer it.
[Defense Counsel]: [Alright].
Id. The instruction was then given with no objection. Id. at 138.
On July 23, 2019, a jury convicted Mendez of the above-listed offenses.
The trial court merged the two simple assault convictions with the aggravated
assault conviction and sentenced Mendez to an aggregate term of forty-two
to eighty-four months of incarceration and to pay restitution in the amount of
$13,276.23 to Richard and $64,758.50 to Health Analytics. Mendez did not
file post-sentence motions or a direct appeal.
On March 10, 2020, Mendez filed a petition pursuant to the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, alleging that trial
counsel was ineffective for failing to file a direct appeal. The court scheduled
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a hearing for October 1, 2020, but on August 21, 2020, the parties stipulated
to the reinstatement of Mendez’s post-sentence and direct appellate rights.
On August 25, 2020, the PCRA court issued an order reinstating those rights.
Mendez filed his post-sentence motions on September 4, 2020, which were
denied on January 4, 2021. On January 26, 2021, Mendez filed a timely notice
of appeal. Both the trial court and Mendez complied with Pa.R.A.P. 1925.
On appeal, Mendez raises five issues for our review:
1. Whether the evidence was insufficient to establish crimes of
[a]ggravated [a]ssault[,] [s]imple [a]ssault[,] [d]isorderly
[c]onduct[,] [p]ublic [d]runkenness when [Mendez] raised
the claim of self-defense at trial?
2. Whether the verdicts on the counts of [a]ggravated
[a]ssault[,] [s]imple [a]ssault[,] [d]isorderly [c]onduct[,
and] [p]ublic [d]runkenness are against the weight of the
evidence because the jury placed too great a weight on the
testimony of the Commonwealth’s witness [Brubaker,] who
did not see what happened between [Mendez] and
[Richard], but only heard what happened?
3. Whether the trial court abused its discretion by allowing the
publication of the victim’s photograph[s, which were]
prejudicial to the outcome of [Mendez’s] case?
4. Whether the trial court abused its discretion by
implementing an improper jury instruction as to the
definition of [“]substantial risk of death[”] and its
application to [the offense of a]ggravated [a]ssault?
5. Whether the [m]otion for [r]econsideration/[m]odification
of [s]entence should be granted because [Mendez]’s
sentence is unduly excessive in light of the circumstances
raised above[?]
Appellant’s Brief, at 6-7.
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Mendez’s first argument challenges the sufficiency of the evidence.
Specifically, Mendez argues that he properly raised a self-defense claim at trial
and that the Commonwealth failed to rebut it. Appellant’s Brief, at 15.
Mendez points out that Richard pled guilty to simple assault and started the
ensuing violence by throwing his beer bottle at Mendez. Id. at 15-16. He is
entitled to no relief.
We begin by noting that Mendez’s Rule 1925(b) statement raised the
issue of sufficiency only as it relates to his convictions for aggravated and
simple assault. Accordingly, insofar as he now seeks to challenge the
sufficiency of the evidence supporting his disorderly conduct and public
drunkenness convictions, those claims are waived. See Pa.R.A.P.
1925(b)(4)(vii) (issues not raised in 1925(b) statement are waived).
The standard of review for a challenge to the sufficiency of the evidence
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. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted). This Court accepts as true all direct and circumstantial
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evidence, and all reasonable inferences, upon which the jury could have based
its verdict. Commonwealth v. Sexton, 222 A.3d 405, 416 (Pa. Super.
2019); Commonwealth v. Perez, 931 A.2d 703, 706-07 (Pa. Super. 2007).
“A person is guilty of aggravated assault if he . . . causes [serious bodily
injury] intentionally, knowingly[,] or recklessly under circumstances
manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A §
2702(a)(1). Serious bodily injury is “[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.A. § 2301. If the victim suffers serious bodily injury, the
Commonwealth does not need to prove specific intent to establish aggravated
assault, but only needs to prove the defendant acted recklessly under
circumstances manifesting extreme indifference to the value of human life.
Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997). To
establish recklessness for aggravated assault, an offensive act must be
performed under circumstances which almost assure that injury or death will
ensue. Id.A defendant guilty of aggravated assault is per se guilty of simple assault
as “simple assault is a lesser included offense of aggravated assault.”
Commonwealth v. Channell, 484 A.2d 783, 787 (Pa. Super. 1984). A
person is guilty of simple assault by mutual affray if the simple assault is
committed while “in a fight or scuffle entered into by mutual consent,” which
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reduces the charge to a third-degree misdemeanor. 18 Pa.C.S.A §
2701(b)(1).
Self-defense is the use of force toward another person “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.” 18 Pa.C.S.A.
§ 505. Where the defendant successfully raises a self-defense claim, “the
burden is on the Commonwealth to prove beyond a reasonable doubt that the
defendant’s act was not justifiable self-defense” by establishing “at least one
of the following: (1) the accused did not reasonably believe that he was in
danger of death or serious bodily injury; or (2) the accused provoked or
continued the use of force; or (3) the accused had a duty to retreat and the
retreat was possible with complete safety.” Commonwealth v. McClendon,
874 A.2d 1223, 1229-30 (Pa. Super. 2005). Whether the defendant was
acting in self-defense is an issue for the jury to decide. Commonwealth v.
Mayfield, 585 A.2d 1069, 1078 (Pa. Super. 1991).
Here, Richard suffered serious bodily injury because of the blows
inflicted by Mendez, including drop foot, missing teeth, multiple facial
fractures, and memory loss problems. N.T. Jury Trial, 7/23/19, at 22-23, 56;
18 Pa.C.S.A. § 2301; Commonwealth v. Rife, 312 A.2d 406, 409 (Pa. 1973)
(skull fracture and concussion resulting in loss of memory were sufficient to
sustain grievous bodily harm for purposes of aggravated assault). Richard’s
injuries also put him at risk of a stroke and required him to undertake life-
threatening surgery and wear jaw wiring for six weeks. N.T. Jury Trial,
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7/23/19, at 22-23, 56; see Nichols, supra (blows to head forcing victim to
wear jaw wiring constituted serious bodily injury). Similarly, Mendez’s
repeated blows with his fist to Richard’s head were sufficient to demonstrate
Mendez acted recklessly with extreme indifference to human life. See
Commonwealth v. Burton, 2 A.3d 598, 603 (Pa. Super. 2010) (single punch
to head causing serious bodily injury showed recklessness sufficient for
aggravated assault).
Despite Mendez’s claim of self-defense, the record supports the jury’s
finding as the jury, in weighing credibility, may have chosen to believe
Richard’s testimony, which completely contradicts Mendez’s; Richard
describes Mendez as the initial aggressor following a simple dispute, where
Mendez would have no reasonable basis to believe he was ever in danger, and
that Mendez provoked or continued the use of force, making self-defense
unavailable. N.T. Jury Trial, 7/23/19, at 21; see McClendon, supra;Commonwealth v. Rohach, 496 A.2d 768, 771 (Pa. Super. 1985)
(testimony alleging that defendant attacked victim without provocation in
contrast to defendant’s self-defense claim was sufficient to disprove self-
defense).
Further, the photographic evidence presented at trial clearly showed the
brutality of the assault, which, combined with Brubaker’s testimony that he
heard about a dozen hits, allowed the jury to infer that, even if Mendez
defended himself, he took it too far and continued the use of force beyond
that which was necessary to defend himself. N.T. Jury Trial, 7/23/19, at 24,
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25, 66-68, 76-77, 87-88, 97; see McClendon, supra; Commonwealth v.
Gillespie, 434 A.2d 781, 783-84 (Pa. Super. 1981) (evidence that defendant
beat aggressor-victim after aggressor-victim fell unconscious was sufficient to
disprove self-defense and established defendant breached duty to retreat).
Similarly, that evidence supports the finding that Mendez and Richard both
consented to fight, which sustains the verdict of simple assault by mutual
affray. 18 Pa.C.S.A § 2701(b)(1); Commonwealth v. Mathis, 464 A.2d 362,
366 (Pa. Super. 1983) (contradicted testimony regarding defendant striking
victim after victim grabbed defendant was sufficient to sustain simple assault
by mutual affray). We conclude, therefore, that the Commonwealth disproved
self-defense beyond a reasonable doubt, Mayfield, supra, and that the
evidence was sufficient to sustain the aggravated and simple assault
convictions. Widmer, supra; Channell, supra.
Mendez’s second argument challenges the weight of the evidence.
Appellant’s Brief, at 16-17. Without citing case law or identifying an abuse of
discretion, Mendez argues only that the jury relied too much on [Brubaker]’s
testimony, which only described what Brubaker heard, as he did not witness
the incident. Id.
We review weight of the evidence claims using an abuse of discretion
standard. Widmer, 744 A.2d at 753. “The weight of the evidence is
exclusively for the finder of fact[,] who is free to believe all, none[,] or some
of the evidence and to determine the credibility of the witnesses.”
Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995). Our review on
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appeal is limited to determining whether the trial court abused its discretion
in denying the motion for a new trial on this ground. Commonwealth v.
Chamberlain, 30 A.3d 381, 396 (Pa. 2011). A trial court’s denial of a weight
of the evidence claim is one of the least assailable reasons for denying a new
trial. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). A new trial
should be awarded only when “the jury’s verdict is so contrary to the evidence
as to shock one’s sense of justice and the award of a new trial is imperative
so that right may be given another opportunity to prevail.” Id. (internal
quotation omitted). When reviewing weight of the evidence, “an appellate
court must first determine whether the trial judge’s reasons and factual basis
can be supported. Unless there are facts and inferences of record that disclose
a palpable abuse of discretion, the trial judge’s reasons should prevail.” Id.
at 1056.
The trial court found that the jury’s verdict was not against the weight
of the evidence, stating:
The Commonwealth established with credible evidence that both
[Mendez] and [Richard] were intoxicated at a cook-out that
occurred on July 23, 2019. An argument ensued between the two
men that was probably fueled by their intoxication. The
disagreement devolved into a physical fight. It was a fight that
[Mendez] “won.” However, [Mendez] was not satisfied in simply
getting the upper hand. Instead, [Mendez] brutalized [Richard]
to the point where he was unconscious and without several teeth.
Ultimately, [Richard] required hospitalization, surgery[,] and the
wiring shut of his jaw.
* * * * * * * *
It is obvious that the jury was offended by the sheer brutality of
the beating inflicted upon [Richard] by [Mendez]. It is obvious
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that [Mendez] lost control of his emotions and utilized force well
beyond what was necessary to ward off an attack upon himself.
The fact that [Richard] was beaten to the point where he lost
consciousness, he lost several teeth, he required transport by
ambulance to a hospital, he required inpatient hospitalization, he
required surgery and he was forced to live with a jaw that was
wired shut for six (6) weeks all support the jury’s determination
that [Mendez] committed [a]ggravated [a]ssault. For the same
reason, the jury’s decisions did not shock our conscience and were
therefore not against the weight of evidence.
Trial Court’s Opinion, 1/4/21, at 7-8.
The trial court’s reasoning and factual basis are supported by the record.
Clay, supra; N.T. Jury Trial, 7/23/19, at 21-24, 25, 56-58, 66-68, 76-77, 87-
88, 97. We find no abuse of discretion. Clay, supra; Widmer, supra.
Mendez next asserts that the trial court abused its discretion in
permitting the jury to view all photographic exhibits depicting Richard’s
injuries during deliberations before the jury requested such exhibits.
Appellant’s Brief, at 18-19. According to his Rule 1925(b) statement, the
specific photos to which Mendez objects are Exhibits One, Two, Three, Four,
Five, Ten, Eleven, Fourteen, Fifteen, Sixteen, and Seventeen. While Mendez
cites to admissibility case law in his argument, he does not raise a question of
admissibility, only publication to the jury, and, further, Mendez only objected
to Exhibit Eleven’s admission and publication. Id.; N.T. Jury Trial, 7/23/19 at
24-25,76-77, 87-88. Mendez neglects to explain how the photographs
published to the jury might be prejudicial or inflammatory. Appellant’s Brief,
at 18-19. Further, immediately preceding deliberations, the trial court asked
both parties their thoughts regarding publication, which led defense counsel
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Mendez to argue that exhibits should only be published upon the jury’s
request; however, after the trial court announced it would publish all the
photographic exhibits, Mendez made no objection, nor did the trial court
consider the argument by Mendez to constitute an objection. Id. at 135; Trial
Court’s Opinion, 1/4/21, at 3. Thus, Mendez has waived his publication claim
and we will not review its merits. See Commonwealth v. Hernandez, 39
A.3d 406, 412 (Pa. Super. 2012) (brief failing to specify issue or analyze
relevant case law waives claim); Commonwealth v. Boyd, 679 A.2d 1284,
1289-90 (Pa. Super. 1996) (party must specifically object at trial to preserve
evidentiary issues); Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.
Super. 2007) (this Court will not act as counsel and will not develop arguments
on behalf of appellant).
Mendez’s next claims that “the trial court abused its discretion in
implementing an improper jury instruction as to the definition of ‘substantial
risk of death’ and its application to [a]ggravated [a]ssault.” Appellant’s Brief,
at 19. Specifically, Mendez argues that the trial judge, the Honorable Bradford
H. Charles, misinterpreted the law when answering the jury’s question
regarding substantial risk of death and whether it applied to the surgical
procedure that Richard was required to undergo as a result of the assault. Id.
at 19-20. Mendez takes issue with Judge Charles’ statement that “[i]f
somebody would not have needed the surgical intervention because of the
assault, and the surgical intervention, itself, created a substantial risk of
death, then the assault by definition creates a substantial risk of death.”
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Appellant’s Brief, at 20, quoting N.T. Jury Trial, 7/23/19, at 136-37. However,
Mendez does not explain what the correct instruction would have been, or the
manner in which Judge Charles misinterpreted the law in his response to the
jury’s question. Id. at 19-20.
Moreover, Mendez never formally objected to the jury instruction;
rather, after Judge Charles told counsel what he would tell the jury, but before
the jury heard the instruction, counsel argued the question was factual and
required an expert witness. N.T. Jury Trial, 7/23/19, at 137-38. Judge
Charles interrupted counsel mid-explanation, stating the question was legal
and not factual. Id. Counsel simply responded “[alright],” conceding the
issue instead of objecting to or preserving it. Id. Thus, Mendez has waived
this claim as well, and we will not review its merits. Pa.R.Crim.P. 647(B);
Commonwealth v. Pressley; 887 A.2d 220, 225 (Pa. 2005) (mere
submission and subsequent denial of proposed points inconsistent with given
jury instructions will not preserve issue).
Mendez’s fifth and final argument asserts that the trial court erred in
denying his motion for sentence modification. Appellant’s Brief, at 21.
Mendez specifically asserts that the sentence was “unduly excessive in light
of . . . [his] acting in self-defense.” Appellant’s Brief, at 21. However, Mendez
did not raise this claim in his Pa.R.A.P. 1925(b) statement, and thus, it is
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waived.11 See Pa.R.A.P. 1925(b)(4)(vii) (issues not raised in Rule 1925(b)
statement are waived); Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.
1998); cf. Pa.R.A.P. 1925(c)(3). While challenges implicating the legality of
a sentence can never be waived, challenges to discretionary sentencing can
be waived. Commonwealth v. Foster, 17 A.3d 332, 336-39 (Pa. 2011).12
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2021
____________________________________________
11 Appellants are not entitled to review of the discretionary aspects of their
sentence as of right. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004). Rather, appellate jurisdiction to review the claim must be
invoked via the following four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006).
12 The sentence imposed was at the minimum of the mitigated range as
applicable to Mendez--42 to 54 months per the Sentencing Guidelines.
Presentence Investigation Report, 8/12/19, at 7.
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