Com. v. Gonzalez-Lopez, V. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
VICTOR MANUEL GONZALEZ-LOPEZ, : No. 1776 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered September 17, 2019,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0006754-2017
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 24, 2020
Victor Manuel Gonzalez-Lopez appeals from the September 17, 2019
judgment of sentence entered by the Court of Common Pleas of Dauphin
County following his conviction of aggravated assault, possession of a firearm
by a prohibited person, discharge of a firearm into an occupied structure, and
recklessly endangering another person.1 The trial court sentenced appellant
to an aggregate term of 6-16 years’ imprisonment. After careful review, we
affirm.
The trial court provided the following factual history:
Ivette Patricia Erazo [(“Erazo”)] testified that she met
[appellant] in 2015. After going through a
separation/divorce, [Erazo] and her daughter
Alejandra (“Ally”) found a home to rent and needed a
roommate to share the costs. [Appellant] moved in
1 18 Pa.C.S.A. §§ 2702(a)(4), 6105(a)(1), 2707.1(a), and 2705, respectively.
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with [Erazo] and Ally[,] and he and [Erazo] started
dating in September of 2015. After a few weeks,
[appellant] had trust issues with [Erazo], accusing her
of seeing other men, including her ex-husband. He
told [Erazo] that he would move out if she gave him
$5,000 to leave. [Erazo] did not give [appellant] the
money; instead, she and Ally moved out. In
November of 2015, [appellant] repeatedly called
[Erazo] and she agreed to talk. [Appellant] convinced
her that he was drunk the night that he asked her for
money, that he did not want to lose her, and that he
was sorry. Afterwards, [appellant, Erazo,] and Ally
moved in together again and rented an apartment at
3414 Walnut Street. [Erazo] also testified that Ally
did not approve of the reconciliation.
On January 9, 2016, the Susquehanna Township
Police Department was called after [Erazo] was
physically abused by [appellant]. She testified that
he hit her all over her body, put his hands on her neck,
pushed her against a wall, and caused damage to the
wall. Following this incident, on January 11, 2016,
[Erazo] filed for a protection from abuse ([“]PFA[”])
order. However, because [appellant] again convinced
[Erazo] that he was drunk and did not want to lose
her, the PFA was withdrawn and dismissed. [Erazo]
testified that during the relationship, [appellant] had
a list of rules. She could not visit neighbors, could not
have friends over, could not use her phone unless she
was in [appellant’s] presence, could only go shopping
if [appellant] accompanied her, and could not talk to
other men. [Appellant] began hitting [Erazo] again,
and was verbally abusive, even after he took classes
for anger management. [Erazo] ended the
relationship again in April of 2017. A petition for a
PFA was filed against [appellant] on May 1, 2017, and
was granted on May 9, 2017. [Appellant] continued
to text [Erazo] with messages threatening to kill
himself, that he couldn’t live without her, and
apologies. [Erazo] asked him to stop contacting her,
but agreed to remain friends. After refusing to date
[appellant] again, [Erazo] received threatening texts,
and [appellant] took the license plate off of her car
and did not return it. [Erazo] filed for another PFA on
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August 9, 2017, because [appellant] continued to
threaten her, scare her, and follow her around. The
PFA order became effective on September 12, 2017,
and such order included a provision for [appellant] to
relinquish weapons. While the September 12th PFA
order was in effect, [Erazo] discovered that sugar had
been poured into the gas tank of her car, prompting
her to purchase a camera that she hid on the porch of
her home.
On the evening of October 8, 2017, [Erazo] was at
home in her bedroom watching TV on her phone. Her
daughter Ally was out, and [Erazo] heard her come in
at around 12:30 a.m. At 12:28 a.m., [Erazo] heard
an “explosion . . . . like someone was shooting at the
house.” The camera captured the explosion. [Erazo]
jumped out of bed and went directly to Ally’s room.
Ally’s leg had a red mark on it that was left by a bullet.
Ally Erazo also testified at trial. She stated that
[appellant] mistreated [Erazo], tried to use extortion
to end the relationship, and that she asked [appellant]
to move out. On the evening of October 8, 2017, Ally
came home from a friend’s house at approximately
12:30 a.m., entered her home via the front porch, and
went into her bedroom, which was on the second floor
in the front with the window facing the street. She
turned on the lights, put her shoes and coat in her
closet, turned off the light, and went to her bed.
Seconds after taking her phone out, Ally heard a loud
noise and thought her window air conditioning unit
had fallen. At that point[,] her leg started burning and
she discovered that a bullet had fallen on her and was
hot. She realized that the bullet had come from
outside, through her closet door, right where she had
been standing just moments before. When Ally
realized it was a gunshot, she got to the ground and
called the police. At the same time, [Erazo] was
knocking at her door and Ally told her to get down
when she let her mom in.
As testified to by Detective James Glucksman of the
Lower Paxton Township Police Department,
[appellant’s] path on the evening of the shooting was
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evidenced by his cell phone records.
Detective Glucksman created a map to show the
distance of the closest cell tower to the location of the
crime. There was a tower 155 feet away from [Erazo]
and Ally’s residence, and on the night in question,
[appellant’s] phone connected to that tower
approximately 3½ hours before the shooting. At
12:09 a.m. that evening, [appellant] received a cell
phone call but it did not connect to any towers –
meaning that the phone was off or in an area of no
reception. At 1:33 a.m., [appellant’s] cellphone
connected to a tower directly next to the Nuevo
Mexico restaurant. An employee of Nuevo Mexico, Ali
Cordova, testified that [appellant] came into the
restaurant on October 8, 2017 after 1:00 a.m.
Officer Joshua Reager of the Highspire Police
Department received a dispatch just before 1:00 a.m.
on October 8, 2017, asking to locate [appellant], who
lived at 105 Roop Street in the Borough of Highspire
with his sister. Officer Reager and other officers
arrived at the Roop Street address about 15 minutes
after the dispatch. [Appellant] was not there, but his
sister, Carmen Gonzalez, was home and gave the
officers permission to search the house. [Appellant]
did not return home until approximately 1:45 a.m.
Testimony was also presented regarding [appellant’s]
gun possession/ownership. According to Sergeant
Darin Sherfey of the Dauphin County Sheriff’s Office,
[appellant] completed an affidavit of non-ownership
of a firearm in October of 2017. For PFA purposes,
the affidavit explains that a person . . . cannot
possess or own any firearms or a gun permit.
Kenneth Glasgow, a Bass Pro Shop employee who also
offered testimony at trial, averred that there are
records showing that on April 13, 2017, [appellant]
purchased a .40 caliber Ruger firearm. Notably, it was
stipulated by the parties at trial that the bullet
collected from Ally’s bedroom at 3414 Walnut Street
was a .40 caliber, 10 millimeter class
bullet.[Footnote 1]
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[Footnote 1] The bullet, Commonwealth
Exhibit 34, was received and analyzed by
Trooper Todd Neumeyer. Based on the
caliber, rifling, and twist of the .40 caliber
bullet, Trooper Neumeyer compiled a list
of 13 manufacturers that could have
created the gun that fired the bullet, one
of which was Ruger. Because a gun was
never submitted to Trooper Neumyer [sic]
for comparison, he was not able to
identify the specific gun that fired the
bullet.
Forensic scientist Albert Lattanzi, Jr. of the
Pennsylvania State Police Bureau of Forensic Services
testified in his capacity as an expert in gunshot
residue. In November of 2017, Mr. Lattanzi received
a [gunshot] residue kit containing samples from
[appellant’s] palms after his apprehension. The
analysis revealed that all three elements of gunshot
residue were found in the samples taken from
[appellant’s] right back, left palm, and left back areas.
Mr. Lattanzi’s opinion was that [appellant] may have
either handled or discharged a firearm, was in close
proximity to a firearm when it was fired, or may have
come into contact with an object that had gun residue
on it.
Warren Mayo met [appellant] in prison, and also
offered testimony at trial. At the time of trial Mr. Mayo
was on probation. In the past he had pled guilty of
theft by unlawful taking, theft by deception, and retail
theft. In July of 2018, Mr. Mayo approached the
Susquehanna Township Police Department with
information about [appellant], and provided a
statement the following month. After Mr. Mayo and
[appellant] befriended one another and [appellant]
became comfortable opening up to Mr. Mayo, he
started talking about his case. He told Mr. Mayo that
he shot through the home of his ex-girlfriend.
Specifically, Mr. Mayo testified that [appellant] told
him he was familiar with the house, knew where the
camera was, and said it was impossible for anyone to
see him because he stayed at a certain angle and shot
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up through the house. [Appellant] also shared that it
was dark, and he parked his car in some gravel near
some school buses. He told Mr. Mayo how “dumb”
[Erazo] and Ally were, and mentioned that he “rolled
right by the daughter going into the house” and she
looked right in his direction and didn’t even see him.
He also referred to [Erazo] as “the bitch and her
daughter.” [Appellant] referred to Ally in an angry
manner and indicated they did not get along.
Not only did [appellant] deny owning a firearm, but
his story regarding the evening of the crime changed
depending on who was interviewing him. This was
demonstrated by testimony given by Detective
Darryl Brown and Lieutenant Frances Done.
Trial court opinion, 2/11/20 at 1-6 (citations to the record omitted).
A jury convicted appellant of the aforementioned offenses on July 12,
2019. On September 17, 2019, the trial court imposed its sentence. Appellant
filed a post-sentence motion on September 26, 2019, which the trial court
denied on October 3, 2019.
On October 28, 2019, appellant filed a timely notice of appeal. The trial
court ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. On
February 11, 2020, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
I. Was not the evidence insufficient to sustain a
conviction for aggravated assault under
18 Pa.C.S.[A.] § 2702(a)(4) when the
complainant did not suffer bodily injury and
when the evidence was insufficient to show that
[appellant] attempted to cause bodily injury?
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II. Did not the lower court abuse its discretion by
failing to grant [appellant] a new trial on the
basis that the guilty verdicts on all charges were
against the weight of the evidence when the
totality of the evidence regarding [appellant’s]
identity as the perpetrator of the crimes was
unreliable, contradictory, and incredible?
Appellant’s brief at 6 (full capitalization omitted).
Appellant first contends that the Commonwealth brought forth sufficient
evidence to warrant his conviction of aggravated assault. Specifically,
appellant argues that the Commonwealth failed to establish beyond a
reasonable doubt that appellant attempted to cause bodily injury. (Id. at 26.)
Our standard of review for sufficiency of the evidence claims is well
settled:
As a general matter, our standard of
review of sufficiency claims requires that
we evaluate the record in the light most
favorable to the verdict winner giving the
prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
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.
Nevertheless, the Commonwealth need
not establish guilt to a mathematical
certainty. 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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The Commonwealth may sustain its
burden by means of wholly circumstantial
evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s
participation in a crime is circumstantial
does not preclude a conviction where the
evidence coupled with the reasonable
inferences drawn therefrom overcomes
the presumption of innocence.
Significantly, we may not substitute our
judgment for that of the fact finder; thus,
so long as the evidence adduced,
accepted in the light most favorable to the
Commonwealth, demonstrates the
respective elements of a defendant’s
crimes beyond a reasonable doubt, the
appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23
(Pa.Super. 2013) (internal quotations and citations
omitted). Importantly, “the jury, which passes upon
the weight and credibility of each witness’s testimony,
is free to believe all, part, or none of the evidence.”
Commonwealth v. Ramtahal, [], 33 A.3d 602, 607
([Pa.] 2011).
Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).
A person will be found guilty of aggravated assault if he “attempts to
cause or intentionally or knowingly causes bodily injury to another with a
deadly weapon.” 18 Pa.C.S.A. § 2702(a)(4). As noted by the Commonwealth,
this court has repeatedly held that intent is established when a defendant
discharges a firearm into a building he knows to be occupied.
(Commonwealth’s brief at 5.)
As we previously stated, the intent to commit
aggravated assault is established when the accused
intentionally acts in a manner which constitutes a
substantial or significant step toward perpetuating
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serious bodily injury upon another.
[Commonwealth v. Lopez, 654 A.2d 1150, 1154
(Pa.Super. 1995)]. The Commonwealth correctly
notes that this Court has found the requisite intent to
commit aggravated assault when the accused has
fired a gun into a building he knew was occupied. See
Commonwealth v. Eaddy, [] 614 A.2d 1203
([Pa.Super. 1992), appeal denied, [] 626 A.2d 1155
([Pa.] 1993). We have also held that discharging a
weapon into a structure in which people live is enough
to demonstrate the intent to commit aggravated
assault. Commonwealth v. Hunter, [] 644 A.2d
763, 764 ([Pa.Super.] 1994), appeal denied, [] 668
A.2d 1125 ([Pa.] 1995). “Because the possibility
exists that a person in the home could be harmed if
someone were to shoot into the home, an attempt to
cause serious bodily harm to such a person can be
inferred.” Id.
Commonwealth v. Rosado, 684 A.2d 605, 609-610 (Pa.Super. 1996).
During the trial, the Commonwealth presented the testimony of
Warren Mayo, a person in whom appellant confided when they were both
inmates at the Dauphin County Prison. (Notes of testimony, 7/10/19 at 273.)
Mayo testified that appellant told him that he was familiar with Erazo’s house
and where the camera was located. (Id. at 276.) Appellant also told Mayo
that while appellant was driving to Erazo’s house, he had seen Ally coming
home the night of the shooting and appellant specifically noted that Ally looked
right at his face but did not see him. (Id. at 275-276.) Mayo further testified
that appellant explained that, “when he shot up through the window it was
impossible for anyone to have seen him because he was facing [at an angle
away from the window].” (Id. at 277.) Finally, Mayo testified that appellant
had referred to Erazo and Ally as “the bitch and her daughter.” (Id. at 278.)
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Taken in the light most favorable to the Commonwealth, as verdict
winner, we find that the Commonwealth established beyond a reasonable
doubt that appellant possessed the requisite intent to commit aggravated
assault when he discharged a firearm into Erazo’s house. Therefore,
appellant’s first issue is without merit.
In his second issue, appellant raises a weight of the evidence claim.
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:
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.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained:
The term “discretion” imports the exercise
of judgment, wisdom and skill so as to
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reach a dispassionate conclusion within
the framework of the law, and is not
exercised for the purpose of giving effect
to the will of the judge. Discretion must
be exercised on the foundation of reason,
as opposed to prejudice, personal
motivations, caprice or arbitrary actions.
Discretion is abused where the course
pursued represents not merely an error of
judgment, but where the judgment is
manifestly unreasonable or where the law
is not applied or where the record shows
that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, [] 64 A.3d 1049, 1055
([Pa.] 2013) (internal citations omitted).
Commonwealth v. McClelland, 204 A.3d 436, 447 (Pa.Super. 2019),
appeal denied, 217 A.3d 214 (Pa. 2019).
Appellant specifically contends that the evidence against him was,
“unreliable, contradictory, and incredible with respect to establishing his
identity as the individual who fired a gun into the house occupied by the
complaining witness.” (Appellant’s brief at 34.) Put another way, appellant
extends an invitation for us to reassess the jury’s credibility determinations in
his favor. This is an invitation that we must decline. Because we cannot
substitute the jury’s judgment on the credibility of the evidence presented
with our own, we conclude that the trial court did not abuse its discretion when
it denied appellant’s weight of the evidence claims.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2020
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