Com. v. Rodriguez, J. ( 2023 )

J-S24020-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOCELYNN LEE RODRIGUEZ :
:
Appellant : No. 1310 MDA 2022
Appeal from the Judgment of Sentence Entered August 16, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000681-2021
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 30, 2023
Jocelynn Lee Rodriguez appeals from the judgment of sentence,1
entered in the Court of Common Pleas of Luzerne County, following her
conviction of two counts each of aggravated assault2 and simple assault,3 and
one count each of criminal conspiracy to commit aggravated assault,4 criminal
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 We note Rodriguez has incorrectly captioned her appellate brief as “appeal
from the denial of Petition for Post-Conviction Collateral Relief[.]” This appeal
is a direct appeal from her judgment of sentence, not a collateral appeal. We
also note the Commonwealth has not filed a brief.
2 18 Pa.C.S.A. § 2702(a)(1), (a)(4).
3 Id. at § 2701(a)(1), (a)(2).
4 Id. at § 903(a)(1); § 2702(a)(1).
J-S24020-23
conspiracy to commit simple assault,5 recklessly endangering another person
(REAP),6 and criminal conspiracy to commit REAP.7 We affirm.
The victim, Ayanna Warren, testified that she ended her three-year
relationship with Malik Macon because he was abusive, and that Macon was
angry about the breakup. N.T. Jury Trial, 6/14/22, at 43-44, 48. On March
16, 2020, Macon texted Warren to arrange a meeting because he had some
items to return to her, including her house key, and she had items to return
to him, including his birth certificate and Social Security card. Id. at 44.
Warren testified that in the text messages, Macon warned her about “setting
him up,” and, after telling him she was not setting him up, he told her he
“could’ve [] bitches” with him, which Warren testified meant he could “bring
females with him.” Id. at 49.
Warren drove to the meeting place on Simpson Street in Wilkes-Barre.
Id. at 46, 51. While she was looking for Macon, Warren noticed a silver Nissan
pull out behind her; she drove around the block, and she saw the Nissan drive
past her, come back, and then park on the right side of the road behind her.
Id. at 55. Warren then saw Macon walking toward her; he got into the
passenger side of her car, she gave him his belongings, but he told her he was
not giving her anything because she was playing with his feelings. Id. at 56.
____________________________________________
5 Id. at 903(a)(1).
6 Id. at § 2705.
7 Id. at § 903(a)(2).
-2-
J-S24020-23
At that point, Warren heard someone scream her name; she turned
toward the sound, on her left, and saw Jocelyn Rodriguez, whom she and
Macon both knew. Id. at 57, 62-63. Warren said she never had issues with
Rodriguez, but “[s]he had an issue with me, I guess, prior to my face being
sliced.” Id. at 62. About six months prior to the incident, Rodriguez accused
Warren of “dealing with the father of her child.” Id. at 62. Warren denied
the accusation. Id.
Rodriguez got into Warren’s car and started assaulting her. Id. at 57-
58. Warren testified that she fought back and tried to crawl out of the car
through the passenger side, but Rodriguez screamed for another girl named
Myesha to come to the car, and Myesha pushed Warren back into the car. Id.
at 59. Warren also testified that Rodriguez said, “I’m going to kill you bitch.”
Id. at 60. Warren stated she tried to fend off the attack but got tired of
fighting and curled up in a ball as Rodriguez continued to attack her. Id.
Eventually, Rodriguez and Myesha ran away, and when Warren got out of her
car, Rodriguez’s car was gone. Id. at 60-61.
Warren drove to her mother’s house, and her sister drove her to
Geisinger Hospital. Id. at 61. There, Warren received medical treatment for
wounds to her neck, arms, face, ear, and eye area. Id. at 65-66.
Officer Richard Harding of the Wilkes-Barre Police Department testified
that, on the night in question, he received a dispatch to respond to Geisinger
Hospital “for a report of a female that had a cut face, slashed face.” Id. at
90. Officer Harding testified he went to the emergency room at Geisinger
-3-
J-S24020-23
Hospital, observed Warren on a gurney with slash marks to her face and neck,
and photographed Warren’s injuries. Id. at 91-94. Rodriguez was arrested
that evening, and arrest warrants were issued for Macon and Myesha. Id. at
94, 106.
Nicole Bidding, who lived on Simpson Street, testified for the
Commonwealth. She stated that on the date in question, March 16, 2020,
she was on her porch and saw a car pull up behind her car and observed
another car drive up and block in the first car. Id. at 30-31. She testified she
saw a person get out of the passenger side of the second car, open the driver’s
side door of the first car, and get inside. Id. at 31, 36. She stated she could
see what looked like punching or hitting going on, and that both participants
appeared to be female. Id. at 31-32. Bidding testified that she called 911,
and then stayed in her doorway and watched as the second car drove away
first, followed by the first car. Id. at 31-40.
Warren testified that she recovered at her mother’s house, that she has
scarring on her face, and that she suffered nerve damage and is unable to feel
the left side of her lip or the lower part of her chin. Id. at 66-7.
No weapon was recovered.
Following a two-day trial, a jury convicted Rodriguez of the
aforementioned charges. The court sentenced her to an aggregate term of
imprisonment of ten to twenty years. This appeal followed. Both the trial
court and Rodriguez have complied with Pa.R.A.P. 1925. Rodriguez raises two
issues for our review:
-4-
J-S24020-23
1. Whether there was sufficient evidence to convict [Rodriguez]
of the charges of aggravated assault[?]
2. Whether the trial court erred in applying the Deadly Weapon
Enhancement[?]
Appellant’s Brief, at 1.
Rodriguez first argues the evidence was insufficient to support her
convictions for aggravated assault. Rodriguez contends the Commonwealth
failed to prove that she possessed a deadly weapon, a necessary element of
aggravated assault under subsection 2702(a)(4) of the Crimes Code.
Appellant’s Brief, at 8-9.
Our standard of review is as follows:
[W]hether[,] 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. In applying [this] test, we may not [re-]
weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder 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. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact[,] while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part[,] or none of the
evidence.
Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa. Super. 2011) (citations
and emphasis omitted).
-5-
J-S24020-23
“A person is guilty of aggravated assault if [s]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); see also id. § 2301 (defining “bodily
injury” as “[i]mpairment of physical condition or substantial pain,” and “deadly
weapon” as, in part, “any other device or instrumentality which, in the manner
in which it is used or intended to be used, is calculated or likely to produce
death or serious bodily injury.”).
After careful review, and after viewing the evidence in the light most
favorable to the Commonwealth, we are satisfied that there was sufficient
evidence to sustain the jury’s finding that Warren was guilty of aggravated
assault. Here, the evidence established that Rodriguez got into Warren’s car,
recruited another woman to prevent Warren from going out the passenger-
side door, and assaulted Warren, causing lacerations to her face and throat
and resulting in scarring and nerve damage. The jury heard the testimony of
Warren, Officer Harding, and witness Nicole Bidding; the jury also saw the
photographs taken by Officer Harding, see N.T. Jury Trial, supra at 63-66;
Commonwealth Exhibits 1-12, 28-31, and observed the victim in the
courtroom. The evidence showed that Warren was cut on her face and on her
neck, both vital portions of her body, by a sharp object and with enough force
to cause bleeding, scarring, and nerve damages. Although a weapon was
never recovered, the jury was entitled to infer from the circumstantial
evidence that a sharp weapon was used during the attack. See
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009)
-6-
J-S24020-23
(Commonwealth may sustain burden of proving every element of crime
beyond reasonable doubt by means of wholly circumstantial evidence); see
also Commonwealth v. Walls, 950 A.2d 1028, 1032 (Pa. Super. 2008)
(upholding conviction for aggravated assault when the evidence showed
defendant repeatedly stabbed victim, causing cuts, scratches, and lacerations
to victim’s upper torso).
As such, the use of an instrument to knowingly cause, or attempt to
cause, serious bodily injury is satisfied in this case. We conclude, therefore,
that the evidence was sufficient to support the jury’s verdict that Rodrigues
was guilty of aggravated assault. See 18 Pa.C.S.A. § 2702(a)(4).
Next, Rodriguez challenges the sentencing court’s application of the
deadly weapon enhancement (DWE).
Application of the deadly weapon enhancement implicates the
discretionary aspects of Rodriguez’s sentence. Such a challenge is not
appealable as of right. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010). In order to reach the merits of a discretionary sentencing issue,
we must conduct a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether [Rodriguez]
preserved his issue; (3) whether [Rodriguez’s] brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [in
accordance with 2119(f)]; and (4) whether the concise statement
raises a substantial question that the sentence is appropriate
under the [S]entencing [C]ode. . . . [I]f the appeal satisfies each
of these four requirements, we will then proceed to decide the
substantive merits of the case.
-7-
J-S24020-23
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Here, Rodriguez has satisfied the first three factors of Colon. Further,
this Court has found that application of the DWE presents a substantial
question. See Commonwealth v. Rhodes, 8 A.3d 912 (Pa. Super. 2010);
Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super. 2010).
Therefore, we will address the merits of his sentencing claim.
Specifically, Rodriguez argues the court erred in applying the DWE
because there was no evidence that she possessed a deadly weapon.
Appellant’s Brief, at 3, 6, 14.
Our standard of review of a sentencing claim is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing court, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion, which in this context, is not
shown merely to be an error in judgment; rather the appellant
must establish by reference to the record, that the sentencing
court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.
Commonwealth v. Shull, 148 A.3d 820, 832 (Pa. Super. 2016).
The deadly weapon enhancement applies when a defendant uses a
deadly weapon during the commission of the offense. 204 Pa. Code §
303.10(a)(2). The factual findings triggering an enhancement of the
suggested minimum sentence under section 303.10 require proof by a
preponderance of the evidence. Commonwealth v. Ellis, 700 A.2d 948, 959
(Pa. Super. 1997). See also Commonwealth v. Healey, 494 A.2d 869 (Pa.
-8-
J-S24020-23
Super. 1985) (possession of deadly weapon for purposes of weapon
enhancement of sentencing may be proved by circumstantial evidence).
Here, the jury found the use of a deadly weapon was proven beyond a
reasonable doubt, albeit circumstantially. That finding should end our inquiry.
However, we add that the fact that Warren’s injuries were caused by sharp
object or cutting instrument was specifically noted on the record by the trial
court. See N.T. Jury Trial, supra at 134-35. The trial judge, who saw the
evidence and heard the testimony, described the wounds on Warren’s face as
“horrific.” N.T. Sentencing, 8/16/22, at 34. The court stated the victim was
“lucky she didn’t lose an eye [and] very easily could have been killed.” Id.
The court also stated that “the circumstantial evidence is overwhelming that
some sharp weapon was utilized in this attack.” Id. at 9.
In Commonwealth v. McKeithan, 504 A.2d 294 (Pa. Super. 1986),
this Court determined that evidence that the victim suffered a severe cut on
the neck during a fight with defendant was sufficient to support a finding that
defendant possessed a deadly weapon for purposes of the DWE of the
Sentencing Guidelines. Id. at 299. This Court made that determination
despite the fact that no one saw defendant use a weapon, and no weapon was
ever found. Id. So also in this case. “The fact that the device or
instrumentality employed by [Rodriguez] in committing the aggravated
assault was fortuitously not seen or found will not allow [her] to escape the
application of the weapon enhancement to [her] sentence.” Id.-9-
J-S24020-23
Based upon the foregoing, we conclude that the trial court did not err or
abuse its discretion in applying the DWE. Accordingly, we affirm Rodriguez’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/30/2023
- 10 -