Com. v. Hernandez, J.

J-S34009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE HERNANDEZ
Appellant No. 1403 MDA 2015
Appeal from the Judgment of Sentence July 16, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002954-2014
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED JUNE 22, 2016
Appellant, Jose Hernandez, appeals from the judgment of sentence
entered on July 16, 2015, in the Court of Common Pleas of Luzerne County.
We affirm.
Appellant was arrested on August 1, 2014, after he brutally attacked
Stefan Smith (“the victim”) with a machete.1 On August 4, 2014, the victim
gave a signed statement to police identifying Appellant as his attacker. At
trial, however, the victim prevaricated and stated that he could no longer
recall the events that occurred on August 1, 2014, and refused to identify
Appellant as his attacker. Without objection, the Commonwealth admitted
the victim’s prior statement into evidence. At the close of the
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Appellant’s sister and the victim have a child.
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Commonwealth’s case, Appellant moved for judgment of acquittal, which the
trial court denied. The jury ultimately convicted Appellant of two counts of
aggravated assault, one count of simple assault, and one count of recklessly
endangering another person.2 On July 16, 2015, the trial court sentenced
Appellant to a term of six to twelve years’ incarceration. Appellant did not
file a post-sentence motion. This timely appeal followed.
Appellant’s argument on appeal is two-fold:
Whether the lower/trial [c]ourt erred in determining that a
curative instruction to the jury was unnecessary and not given
regarding the statements given by Commonwealth witness
Ste[f]an Andrew Smith, with respect to calling into question the
grading of the charges pending before the [Appellant], and
further by not granting [Appellant’s] Motion for Acquittal based
also on the recanted testimony of Stefan Andrew Smith?
Appellant’s Brief at 2-3.
Appellant first argues that the trial court erred when it neglected to
issue a curative instruction to the jury to disregard the statements the victim
made pertaining to the potential grading of the crimes with which Appellant
was charged. As aptly noted by the trial court, however, “defense counsel
neither requested such an instruction, nor objected to its omission from the
instructions actually given.” Trial Court Opinion, 10/23/15 at 6. It is well-
settled that to preserve a challenge to a particular jury instruction, a
defendant must make a specific and timely objection, and his failure to do so
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18 Pa.C.S.A. §§ 2702(a)(1); 2702(a)(4); 2701(a)(1); and 2705,
respectively.
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results in waiver. See Pa.R.Crim.P. 647(B) (“No portions of the charge nor
omissions from the charge may be assigned as error, unless specific
objections are made thereto before the jury retires to deliberate.”); see
also Pa.R.A.P. 302(b) (“A general exception to the charge to the jury will
not preserve an issue for appeal. Specific exception shall be taken to the
language or omission complained of.”). As Appellant did not request a jury
instruction in this regard or otherwise objection to its omission, Appellant
has waived this issue for purposes of appellate review.
Appellant’s claim that the trial court erred when it permitted the victim
to testify without an offer of proof is similarly waived, as defense counsel
neither requested an offer of proof nor objected to its absence in the court
below. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”). To the extent
that Appellant suggests that the trial court erroneously disregarded defense
counsel’s request to advise the victim of his Fifth Amendment right against
self-incrimination, Appellant lacks standing necessary to raise such a
complaint. See Commonwealth v. Kinnard, 326 A.2d 541, 544 (Pa.
Super. 1974) (“[T]he right of a witness to refuse to testify on the ground
that his testimony may incriminate him is a right personal to him alone. The
person against whom the witness is called has no rights in relation to the
matter.”). Accordingly, we find Appellant’s allegations of error with regard to
the victim’s testimony at trial are wholly without merit.
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Appellant additionally argues that the trial court erred when it denied
his motion for judgment of acquittal based on the victim’s “recanted
testimony.” Appellant’s Brief at 18. “A motion for judgment of acquittal
challenges the sufficiency of the evidence to sustain a conviction on a
particular charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge.” Commonwealth v.
Manley, 985 A.2d 256, 271-272 (Pa. Super. 2009) (citation omitted). In
reviewing a challenge to the sufficiency of the evidence, 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.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super. 2009)
(citation omitted).
Evidence will be deemed sufficient to support the verdict when it
established each 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, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Id. (citation and quotation marks omitted). “Any doubt about the
defendant’s guilt is to be resolved by the factfinder 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. Scott, 967
A.2d 995, 998 (Pa. Super. 2009).
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Appellant argues that the Commonwealth failed to present sufficient
evidence to establish that he was the perpetrator of the machete attack. At
trial, the victim admitted that Appellant was in the apartment with him on
the night in question, but denied remembering anything further. See N.T.,
Jury Trial, 5/20/15 at 25. The victim acknowledged giving a statement to the
police, acknowledged that the contents of the statement fairly and
accurately depicted what he told police, and acknowledged that the
statement bore his signature. See id. at 27-32, 35. Although the victim
identified Appellant as the perpetrator of the attack in the statement given
to police on August 4, 2014, he alleged at trial that he was unable to recall
the details of the attack and testified, “I’m not sure if he’s the one who
attacked me that night.” Id. at 36.
The Commonwealth called Detective David Sobocinski, who confirmed
that the victim identified Appellant as his assailant. See id. at 66.
Additionally, the Commonwealth admitted into evidence and read into the
record the victim’s August 4, 2014 statement. See id. at 36, 67-68. Defense
counsel did not object to the admission of the victim’s prior inconsistent
statement and he does not do so now on appeal. See id. at 36. The jury
clearly credited the victim’s prior statement, made only three days after the
attack, over his recantation testimony at trial. See Commonwealth v.
Valentine, 101 A.3d 801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d
309 (Pa. 2015) (noting factfinder is free to believe all, part or none of the
evidence presented). We may not substitute our judgment for that of the
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factfinder. See Bibbs, supra. Thus, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, including the victim’s
prior statement, we do not hesitate to conclude that the evidence was
sufficient to establish Appellant’s identity as the perpetrator of the machete
attack.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2016
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Appellant additionally argues that the trial court erred in failing to instruct
the jury regarding “any possible confusion specifically the differences
between the written statement and the oral testimony given [b]y
Commonwealth witness Stefan Andrew Smith and the recantation that was
[p]resented before them.” Appellant’s Brief at 19. Our review of the record
reveals that Appellant never requested such an instruction. Thus, his
allegation of error is waived. See Pa.R.Crim.P. 647(B).
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