Com. v. Cora, B.

J-S41014-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BENJAMIN LUIS CORA :
:
Appellant : No. 760 MDA 2018
Appeal from the Judgment of Sentence April 12, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006124-2017
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 03, 2019
Benjamin Luis Cora appeals from his judgment of sentence, entered in
the Court of Common Pleas of York County, after a jury convicted him of
aggravated assault,1 resisting arrest2 and possession of drug paraphernalia.3
On appeal, counsel has filed an Anders4 brief and a motion to withdraw as
counsel. Based on our review of the record, we affirm the judgment of
sentence and grant counsel’s motion to withdraw.
The trial court set forth the facts of this case as follows:
[Cora]’s jury trial began with testimony from Lieutenant Glenn
Knauer. Lieutenant Knauer testified that on August 8th, 2017, he
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1 18 Pa.C.S.A. § 2702.
2 18 Pa.C.S.A. § 5104.
3 35 P.S. § 780–113(a)(32).
4 Anders v. California, 386 U.S. 738 (1976).
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* Retired Senior Judge assigned to the Superior Court.
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and Officer Benjamin Smith were dispatched to 376 Pennsylvania
Avenue in York, Pennsylvania to respond to a domestic dispute
between father and son. The officers approached [Cora] to speak
with him, and Lieutenant Knauer testified that [Cora] was in an
agitated state. Officer Smith advised [Cora] he was taking him
into custody for a warrant. Officer Smith began to handcuff
[Cora], at which point [Cora] began flailing around. Lieutenant
Knauer came to assist, at which point all three men lost their
footing and began to slide down the sloped backyard of [Cora]’s
residence. Lieutenant Knauer tried to hold onto Officer Smith and
[Cora], however they slipped out of his grip and rolled down the
hill.
As they came to a stop, Lieutenant Knauer witnessed [Cora] rear
back and kick Officer Smith in the chest, resulting in Officer Smith
falling off the vertical embankment at the bottom of the hill.
Lieutenant Knauer then began yelling commands at [Cora] to put
his hands behind his back and lay on his stomach, with which
[Cora] did not comply. Rather, he instead began to tense up and
clench his fists. In light of [Cora]’s non-compliance, Lieutenant
Knauer deployed his Taser by shooting the prongs at [Cora]. As
Officer Smith was getting to his feet, Lieutenant Knauer gave
more commands to [Cora], but he noticed [Cora] was once again
tensing up, so he employed the Taser a second time for another
5 second burst. [Cora] was then handcuffed and taken into
custody, but as the officers were taking [Cora] from the back of
the house to the front, he continued attempting to break free and
get away from them, at one point necessitating Officer Smith to
take him to the ground. The officers finally got [Cora] into the
back of their patrol vehicle, and Lieutenant Knauer testified that
during the struggle with [Cora], Lieutenant Knauer’s shoulder was
injured. Lieutenant Knauer also noticed bleeding wounds on
Officer Smith’s left arm.
The Commonwealth then presented the testimony of Officer
Benjamin Smith. Officer Smith testified as to the encounter with
[Cora], in which [Cora] resisted being taken into custody, causing
[Cora] and Officer Smith to fall down the hill. When they came to
a stop at the bottom of the hill, Officer Smith was below [Cora]
and felt a kick to his chest. This kick caused Officer Smith to roll
over a retaining wall onto the concrete patio below, a five[-]foot
drop that knocked the wind out of him. Officer Smith and
Lieutenant Knauer were eventually able to get [Cora] into custody
and to their police cruiser, though he continued to resist during
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this process. The officers recovered a glass pipe with suspected
marijuana residue from [Cora]. The Commonwealth then played
Officer Smith’s body camera video from the time of the incident.
The Commonwealth last called Officer Christopher Husted, the
affiant, who testified that he filed the charges in this case, as the
York City Police Department’s policy for assaults on officers seeks
to avoid any conflict of interest in having a victim be the affiant.
The Commonwealth then rested and the [d]efense presented no
evidence[.]
Trial Court Opinion, 4/11/19, at 2–4 (citations to record omitted).
On August 8, 2017, Cora was charged with two counts of aggravated
assault, one count of resisting arrest, and one count of possession of drug
paraphernalia. On April 12, 2018, the trial court sentenced Cora to 40 to 80
months in prison on the aggravated assault charge, time served to 12 months
on the resisting arrest charge, and 12 months’ probation on the possession
charge. Cora timely filed post-sentence motions, which were denied after a
hearing on April 30, 2018. On May 2, 2018, Cora filed a notice of appeal, an
application to proceed in forma pauperis, and requests for transcripts. Both
the trial court and Cora complied with Pa.R.A.P. 1925.
Prior to addressing Cora’s appellate claims, we must review counsel’s
request to withdraw. To withdraw, counsel must: (1) petition the court for
leave to withdraw, certifying that after a conscientious review of the record,
counsel concluded the issues raised are frivolous; (2) file a brief referring to
anything that might arguably support the appeal; and (3) furnish a copy of
the brief to Cora and advise him of his right to retain new counsel, proceed
pro se, or raise any additional points counsel deems necessary.
Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001).
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Counsel must also state his reasons for concluding his client’s appeal is
frivolous. See Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
Here, counsel’s petition states that he thoroughly reviewed the record
and concluded the appeal is wholly frivolous. Counsel also submitted a brief,
setting out the issues raised by Cora and, pursuant to Santiago, explains why
he believes the appeal to be frivolous. Counsel supplied Cora with a copy of
the brief and a letter explaining his right to retain new counsel or proceed pro
se. The letter also explains that Cora may raise any other issues he believes
might have merit. Thus, counsel substantially complied with the requirements
for withdrawal.5
Counsel having satisfied the above requirements, this Court must
conduct its own review of the proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Cora first challenges the sufficiency of the evidence to demonstrate his
intent to injure Officer Smith. Cora is entitled to no relief.
The standard we apply in reviewing the sufficiency of the
evidence is whether 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 the above test, we
may not [re-]weigh the evidence and substitute our judgment
for [that of] 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
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5 Cora has not filed a response to counsel’s Anders brief or petition to
withdraw.
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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 finder
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. Giordano, 121 A.3d 998, 1002–1003 (Pa. Super. 2015).
The jury convicted Cora of aggravated assault of an enumerated
person.6 A person is guilty of aggravated assault if he “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)(1). A person acts intentionally
when “it is in his conscious object to engage in conduct of that nature or to
cause such a result.” 18 Pa.C.S.A. § 302(b)(1)(i). The Commonwealth can
prove intent through direct or circumstantial evidence. Commonwealth v.
Lewis, 911 A.2d 558, 564 (Pa. Super. 2006). Further, a person acts
knowingly with respect to a material element of the offense when “he is aware
that it is practically certain that his conduct will cause such a result” if the
element involves a result of his conduct. 18 Pa.C.S.A. § 302(b)(2)(ii).
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6 18 Pa.C.S.A. § 2702(c)(1) (stating police officer constitutes enumerated
person).
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Here, Cora argues that the Commonwealth failed to prove that he acted
intentionally or knowingly. However, both Lieutenant Knauer and Officer
Smith testified—and Cora conceded—that Cora was in an agitated state and
resisted arrest. N.T. Trial, 3/15/18, at 67, 69, 91–92. Lieutenant Knauer
stated he encountered Officer Smith and Cora as they were brawling down the
hill. Id. at 70. Lieutenant Knauer testified that he witnessed Cora kick Officer
Smith in the chest after they tussled down the hill. Id. at 68, 70. He further
explained that the kick occurred after everyone stopped moving, and when
Officer Smith was in a precarious position. Id. He stated the kick was
“deliberate,” as Cora “reared back” to kick Officer Smith in the chest, causing
Officer Smith to fall off the embankment. Id. This evidence demonstrates
that Cora intended to injure Officer Smith by rearing back to kick Officer Smith
while he was in a vulnerable position. 18 Pa.C.S.A. § 302(b)(1)(i). Further,
the Commonwealth also presented testimony from Officer Smith who stated
the kick knocked the wind out of him and caused him to fall five feet off the
retaining wall onto a concrete patio. N.T. Trial, 3/15/18, at 92–93. Officer
Smith also testified that he suffered elbow, knee and shoulder injuries from
the fall. Id. at 93. Under the circumstances, Cora would have been
practically certain that the kick would cause Officer Smith’s bodily injuries. 18
Pa.C.S.A. § 302(b)(2)(ii).
Based on the foregoing evidence, as well as the reasonable inferences
derived therefrom, the jury could have found Cora guilty of aggravated assault
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of an enumerated person. Giordano, supra. Accordingly, he is entitled to
no relief.
Cora next claims that the verdict was contrary to the weight of the
evidence.
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well[-]settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the evidence, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135–36 (Pa. 2011) (citations
and internal quotation marks omitted).
Here, Cora contends the jury’s verdict for aggravated assault is against
the weight of the evidence and shocks the conscience. However, the
Commonwealth produced video from Officer Smith’s body camera, and
testimony from Lieutenant Knauer and Officer Smith, who were both involved
in the fight. Lieutenant Knauer testified to witnessing Cora “deliberately” kick
Officer Smith. N.T. Trial, 3/15/18, at 70. Officer Smith testified to
experiencing the kick and falling off the edge of the wall. Further, he testified
to suffering injuries as a result of the kick and the fall. “The jury . . . was free
to believe all, part, or none of the evidence.” Commonwealth v. Sebolka,
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205 A.3d 329, 337 (Pa. Super. 2019). It is within the sole discretion of the
jury to assess the credibility of the testimony presented at trial. Id. In this
case, the trial court did not abuse its discretion by denying Cora a new trial
on grounds that the verdict was against the weight of the evidence. See
Houser, supra; see also Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.
2013) (“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.”).
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/03/2019
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