Com. v. Nieves, D.

J-S01037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL NIEVES
Appellant No. 2851 EDA 2014
Appeal from the Judgment of Sentence August 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000697-2013
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 29, 2015
Appellant, Daniel Nieves, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for aggravated assault, simple assault, and recklessly
endangering another person (“REAP”).1 We affirm.
In its opinion, the trial court fully sets forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate
them.2 We add only that Appellant timely filed post-sentence motions on
September 8, 2014, which the court denied on September 12, 2014.
____________________________________________
1
18 Pa.C.S.A. §§ 2702(a); 2701(a); 2705, respectively.
2
On the first page of its opinion, the trial court inadvertently states that the
events which gave rise to Appellant’s convictions occurred on December 8,
2012. The correct date is December 29, 2012.
J-S01037-16
Appellant timely filed a notice of appeal on September 23, 2014. On
September 29, 2014, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which
Appellant timely filed on October 20, 2014.
Appellant raises three issues for our review:
DID THE TRIAL COURT ERR WHEN IT HELD THAT
APPELLANT’S OWN STATEMENTS REGARDING HIS
INVOLUNTARY INTOXICATION WERE INSUFFICIENT IN
AND OF THEMSELVES TO SUSTAIN, BY A PREPONDERANCE
OF THE EVIDENCE, THE DEFENSE OF INVOLUNTARY
INTOXICATION IN A NON-DUI CASE UNDER THE LAW OF
THE COMMONWEALTH OF PENNSYLVANIA?
DID THE TRIAL COURT ERR WHEN IT HELD THAT
APPELLANT WAS REQUIRED TO PRESENT MEDICAL
RECORDS, MEDICAL TESTS, EVIDENCE OF HIS
CONDITION IN POLICE CUSTODY, OR EXPERT TESTIMONY
TO PROVE, BY A PREPONDERANCE OF THE EVIDENCE, THE
DEFENSE OF INVOLUNTARY INTOXICATION IN A NON-DUI
CASE UNDER THE LAW OF THE COMMONWEALTH OF
PENNSYLVANIA?
DID THE TRIAL COURT ERR IN FINDING APPELLANT
GUILTY OF AGGRAVATED ASSAULT, SIMPLE ASSAULT,
AND RECKLESSLY ENDANGERING ANOTHER PERSON
WHERE APPELLANT’S INVOLUNTARY INTOXICATION
NEGATED THE MENS REA NECESSARY TO SUSTAIN A
VERDICT OF GUILT FOR EACH OF THE CHARGES?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Charles A.
Ehrlich, we conclude Appellant’s issues merit no relief. The trial court’s
opinion comprehensively discusses and properly disposes of the questions
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presented. (See Trial Court Opinion, filed March 23, 2015, at 3-8) (finding:
(issues 1-2) Pennsylvania courts have not formally recognized defense of
involuntary intoxication in non-DUI cases; moreover, even if court accepted
involuntary intoxication as viable defense in this case, Appellant’s claim is
still meritless because Appellant did not meet burden to prove defense of
involuntary intoxication by preponderance of evidence; Appellant offered
only his own testimony to support claimed defense; Appellant presented no
expert testimony or medical records to corroborate his purported
intoxication; Appellant testified very little regarding effects of cigarette on
him, other than relating that he “blacked out”; Appellant’s testimony, by
itself, did not satisfy proposed defense of involuntary intoxication by
preponderance of evidence;3 (issue 3) Victim testified that Appellant
____________________________________________
3
Specifically, at the conclusion of trial, the court stated:
[Appellant] said that he was playing pool next door, was
drinking, came outside, had a cigarette. After the
cigarette he doesn’t really remember anything. There is
no evidence presented regarding [Appellant] saying
anything to the police afterwards regarding anything that
happened, nor was there any evidence presented
regarding any medical tests done on [Appellant] or
[Appellant’s] condition when the police had him or
subsequently when he was being processed for arrest.
And based on the testimony that I heard, [Appellant’s]
own statement alone under the case law I read and under
[this] jurisdiction is insufficient to prove [the defense] of
involuntary intoxication. And therefore, based on that, I
am going to find [Appellant] guilty of the charges.
(Footnote Continued Next Page)
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entered her store, grabbed her by her arms, and punched her multiple
times; Victim suffered bruising and lacerations to her face and needed
medical treatment following Appellant’s assault; Victim received stitches in
her lip and eyebrow and sustained long-term damage to her sense of smell
and taste following Appellant’s attack; Victim had seen Appellant multiple
times before this incident and readily identified Appellant as her assailant;
Commonwealth presented sufficient evidence to convict Appellant of
aggravated assault, simple assault, and REAP; by contrast, Appellant failed
to prove claimed defense of involuntary intoxication).4 Accordingly, we
affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
(N.T. Trial, 6/13/14, at 4-5; R.R. at 30a-31a).
4
To the extent Appellant challenges the weight of the evidence in any of his
issues on appeal, he waived that claim because he did not preserve it
properly in his post-sentence motions. See Pa.R.Crim.P. 607 (stating claim
that verdict was against weight of evidence shall be raised with trial judge in
motion for new trial orally at any time before sentencing, by written motion
before sentencing, or in post-sentence motion); Commonwealth v.
Washington, 825 A.2d 1264 (Pa.Super. 2003) (holding failure to raise
challenge to weight of evidence in accordance with Rule 607 constitutes
waiver of claim on appeal). Appellant mentioned “weight of the evidence”
generically in his post-sentence motions but the crux of his complaint and
his request for acquittal are consistent only with a challenge to the
sufficiency of the evidence. See Commonwealth v. Widmer, 560 Pa. 308,
744 A.2d 745 (2000) (explaining differences between challenge to weight of
evidence and sufficiency of evidence; distinction between those complaints is
critical).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
Commonwealth of Pennsylvania CP-51-CR-0000697-2013
v.
SUPERIOR COURT
Daniel Nieves NO. 2851 EDA 2014
FILED
CP-51-CR-0000697-2013 Comm. v. Nieves, Daniel
Opinion MAR 2 3 ·2015
OPINION
. Crimin~~ Appeals Unit
Ehrlich, J. l\111 Ill7272861671
\111111111 Ill 11\l First Jud1c1al District of PA
Daniel Nieves, hereinafter Appellant, was found guilty of aggravated assault, simple
assault, and recklessly endangering another person ("REAP") after a non-jury trial on June 13,
2014.1
The charges stem from an assault in J.R. Groceries in the West Kensington section of
Philadelphia on December 8, 2012. Appellant was sentenced on August 29, 2014, to a term of five
to fifteen years' incarceration. A timely appeal followed.
On appeal, Appellant avers three points of error:
I. The trial court erred when it held that appellant's own statements
regarding his involuntary intoxication were insufficient in and of
themselves to sustain, by a preponderance of the evidence, the
defense of involuntary intoxication in a non-DUI case under the law
of the Commonwealth of Pennsylvania.
II. The trial court erred when it held that appellant was required to
present medical records, medical tests, evidence of his condition
while in police custody, or expert testimony, to prove, by a
preponderance of the evidence, the defense of involuntary
1 18 Pa.C.S.A. §§ 2702(a), 270 l(a), and 2705, respectively.
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intoxication in a non-DUI case under the law of the Commonwealth
of Pennsylvania.
III. The trial court erred in finding appellant guilty of aggravated
assault, simple assault, and recklessly endangering another person,
where appellant's involuntary intoxication negated the mens rea
necessary to sustain a verdict of guilt for each of the charges.
Appellant's Pa.R.A.P. 1925(b) Statement.
As will be discussed below, these claims are without merit. Accordingly, no relief is due.
The Evidence
Commonwealth's Case
Christina Santos owns and operates J.R. Groceries, which is located at 133 West
Huntingdon Street in Philadelphia. Notes of Testimony ("N.T."), 06/05/2014, at 9. Ms. Santos
first saw Appellant on December 29, 2012, when he came into her store that morning. Id. at 10.
He purchased juice, drank it there, and then left the store. Id. at 19. Ms. Santos saw Appellant on
a security camera making flexing movements with his arms that morning. Id. She had also seen
Appellant in the store several times before. Id. at 21. Ms. Santos testified that Appellant had never
caused any trouble in the past and always paid for his purchases. Id. At approximately 3 :45 p.m.
on December 29, Ms. Santos was in the store alone when Appellant returned. Id. at 9. She was
walking towards the counter when he said "come here." Id. at 10. She didn't respond. He then
grabbed her by both arms and started to punch her with his fist. Id. She remembered falling to the
ground as he continued his attack. Id. at 10-11. The police took Ms. Santos to the hospital for
treatment and to interview her. Id. at 14. She received four stitches in her left eyebrow and two
stitches on her right upper lip. Id. Ms. Santos testified that she now suffers from high blood
pressure and has a diminished sense of taste and smell. Id. at 15-16. Ms. Santos did not reopen
her store following the incident, testifying that she was afraid to be in the store. Id. at 25.
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Detective Charles Buck, of East Detective Division, interviewed Ms. Santos at Temple
University Hospital that day. Id. at 27. He observed multiple bruises and lacerations on her face,
as well as a swollen eye. Id. at 28. Detective Buck testified that Ms. Santos was emotional and
crying when he spoke with her. Id. at 29.
Defense Case
Appellant testified that on December 29, 2012, he was at Spolito's Bar, around the comer
from J.R. Groceries. Id. at 32. Appellant was playing pool and stepped outside to smoke a
cigarette. Id. He realized he did not have any cigarettes, and asked two women if he could get a
cigarette from them. Id. One of the women said she would save him some of the cigarette she
was smoking. Id. at 33. She handed him her partially smoked cigarette and he smoked it. Id. He
then testified that he was " ... sitting there staring. I'm staring, just staring." Id. The women then
sat him down on a stoop and took money from his pockets. Id. at 34. He testified that he
remembers nothing after the women walked away, until he was in police custody. Id. at 35. He
claimed he did not remember going to J.R. Groceries, attacking Ms. Santos, or getting arrested.
Id. He believed there was something in the cigarette, and that he was drugged. Id. at 36. Appellant
acknowledged that he was not forced to drink that day or to smoke a cigarette. Id. at 38.
Discussion
Each of Appellant's contentions on appeal refer to this court's rejection of Appellant's
defense of involuntary intoxication. The appellate courts of Pennsylvania, however, have not
recognized the defense of involuntary intoxication. Moreover, Appellant failed to meet the
preponderance of the evidence standard required to establish involuntary intoxication. For these
reasons, Appellant's claims are without merit.
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Pennsylvania courts have not formally recognized the defense of involuntary intoxication
beyond driving under the influence ("DUI") cases. Commonwealth v. dul'ont, 860 A.2d 525,
536-37 (Pa. Super. 2004); see also Commonwealth v. Kuhn, 475 A.2d 103, 110 (Pa. Super.
1984) (Montemuro, J., concurring) ("No Pennsylvania case has ever held that the defense of
involuntary intoxication is a viable one."). Although courts have discussed it in a theoretical or
abstract sense, the law of this Commonwealth does not recognize such a defense in non-DUI
cases. Commonwealth v. Griscom, 600 A.2d 996, 997 (Pa. Super. 1991).
Even if this court accepted involuntary intoxication as a defense, Appellant's claim is still
without merit, because he did not meet the requisite burden of proof. "[Wjhen a defense is asserted
that relates to the defendant's mental state ... the general rule is that the defendant has the burden
of proving the defense by a preponderance of the evidence." Commonwealth v. Collins, 810 A.2d
698, 701 (Pa. Super. 2002).
A preponderance of the evidence is defined as the greater weight of the evidence.
Commonwealthv. Brown, 567 Pa. 272, 283-84, 786 A.2d 961, 968 (2001). Injury instructions,
this has been described as follows: "if you take a scale that's even, to tip it slightly is the criteria
or requirement for preponderance of the evidence, which, as you can appreciate, is by the greater
weight of the evidence." Id. at 283, 786 A.2d at 968; see also Commonwealth v. Wayne, 553 Pa.
614, 640, 720 A.2d 456, 468 (1998). The standard jury instructions for involuntary intoxication
note that: "[P]roof to a preponderance means that the defendant must prove to you that it is more
likely than not that he/she was involuntarily intoxicated." Pa. SSJI (Crim), §8.308C (2008).
This court relied on precedent in determining whether Appellant had presented enough
evidence to meet this burden. In Commonwealth v. Smith, the defendant asserted a defense of
involuntary intoxication based on a mixture of alcohol consumption and use of an analgesic patch.
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831 A.2d 636, 637 (Pa. Super. 2003). There, defendant stated that she had not read the warning
label and was unaware of the effects of drinking alcohol while using the patch. Id. at 63 8. The
Superior Court concluded that if the defense of involuntary intoxication is to be successful,
"Appellant must show that the combination [of drugs and alcohol] is capable of causing the
extreme intoxication which is alleged. The trial court cannot take judicial notice of this fact." Id.
at 641. The defendant in Smith had only her own testimony in support of this defense, and the
Court found this insufficient to establish involuntary intoxication by a preponderance of the
evidence. Id.Similarly, in the instant case, Appellant's only offer of evidence in support of his defense
of involuntary intoxication was his own self-serving testimony. No expert testimony or medical
records were presented to demonstrate Appellant's purported intoxication. Appellant himself
testified very little regarding the effects of the cigarette on him, other than relating that he had
blacked out. This evidence, taken alone, does not meet the burden of preponderance of the
evidence.
This court, as the finder of fact, was required to determine whether the Commonwealth met
its evidentiary burden in proving Appellant guilty beyond a reasonable doubt. This court was also
required to determine whether Appellant met the burden of proving his defense of involuntary
intoxicationby a preponderance of the evidence. As the verdict makes clear, the Commonwealth's
burden was met; the Appellant's was not.
Appellant's final claim on appeal would seem to be challenging the sufficiency of the
evidence determination made by this court.
The standard ofreview of sufficiency claims 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
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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 oflaw. 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. Thompson, 93 A.3d 478, 489 (Pa. Super. 2014) (quoting Commonwealth v.
Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000) (internal citations omitted)).
A conviction may be sustained on wholly 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. Commonwealth v. Burton, 2 A.3d 598, 601 (Pa. Super. 2010)
(quoting Commonwealth v. Galvin, 603 Pa. 625, 634-35, 985 A.2d 783, 789 (2009)). Any doubts
as to 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 can be drawn from the combined
circumstances. Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007).
Appellant was convicted of aggravated assault, which is defined, in relevant part, as
follows:
§ 2702. Aggravated Assault
( a) Offense Defined. -- A person is guilty of aggravated assault if he:
(1) 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.
Serious bodily injury is defined as "bodily 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.
Appellant was also convicted of simple assault, which is defined by statute:
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§ 2701. Simple Assault
(a) Offense defined. -- Except as defined under section 2702 (relating to aggravated
assault), a person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily
injury to another.
18 Pa.C.S.A. § 2701.
Bodily injury is defined as "impairment of physical condition or substantial pain." 18
Pa.C.S.A. § 2301.
Finally, Appellant was convicted of recklessly endangering another person. The offense is
defined by statute as follows:
§ 2705. Recklessly Endangering Another Person
A person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of
death or serious bodily injury.
18 Pa.C.S.A. § 2705.
In the instant case, Ms. Santos testified that Appellant entered her store, grabbed her by
the arms, and punched her multiple times. Ms. Santos suffered bruising and lacerations to her face
and required medical treatment following the assault. She received stitches in both her lip and
eyebrow. She also suffered long-term damage to her sense of smell and taste following the attack.
Ms. Santos had seen Appellant multiple times before this incident and was able to readily identify
him as her assailant. This evidence was sufficient for the finder of fact to conclude that Appellant
was guilty of aggravated assault, simple assault, and reckless endangerment.
"In evaluating the sufficiency of the evidence in a criminal case, the test to be employed is
whether the finder of fact could reasonably have found that all elements of the crime charged had
been proved beyond a reasonable doubt." Commonwealth v. Richbourg, 394 A.2d 1007, 1010 (Pa.
Super. 1978). Here, eyewitness testimony from the complainant identified Appellant as the man
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responsible for beating her. She had met him before, as he was a fairly regular customer in her
grocery store. Appellant's only testimony claimed that he has no memory of the incident that
afternoon.
This court relied on evidence presented at trial, as well as case law presented by the
Commonwealth and defense regarding involuntary intoxication. Further, this court determined
that Appellant's self-serving statement alone, without any other evidence provided to corroborate
his theory of involuntary intoxication, was not sufficient to meet the preponderance of the evidence
standard. Moreover, given all the testimony and evidence presented, it was reasonable for the fact
finder to conclude that Appellant was guilty of the crimes charged.
For the reasons discussed herein, Appellant's assertion of the defense of involuntary
intoxication is without merit, and the ruling of this court should be upheld.
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Conclusion
In summary, this court has carefully reviewed the entire record and finds no harmful,
prejudicial, or reversible error and nothing to justify the granting of Appellant's request for relief.
For the reasons set forth above, the judgment of the trial court should be affirmed.
J.
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Commonwealth v. Daniel Nieves CP-5 I-CR-00000697-20 I 3
2851 EDA 2014
AFFIDAVIT OF SERVICE
I hereby certify that I am this day serving the foregoing Court Opinion upon the
person(s), and in the manner indicated below, which service satisfies the requirements of Pa. R.
Crim. P. 114:
Defense Attorney: Leo M. Mulvihill Jr., Esquire
2424 East York Street, Suite 316
Philadelphia, PA 19125
Type of Service: (x) First Class Mail ( ) Certified ( ) Personal Service
District Attorney: Hugh J. Burns Jr., Esquire
Chief, Appeals Unit
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19 I 07
Type of Service: (x) Inter-Departmental Mail ( ) Certified ( ) Personal Service
Date: March 23, 2015
Samuel M. I, Esquire
Law Clerk to the Honorable Charles A. Ehrlich