Com. v. Hernandez, S.

J. A17043/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SANDRA HERNANDEZ, : No. 763 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered February 12, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009866-2016
BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 16, 2019
Sandra Hernandez appeals from the February 12, 2018 aggregate
judgment of sentence of 4 to 8 years’ imprisonment, followed by 2 years’
probation, imposed after a jury found her guilty of aggravated assault, simple
assault, recklessly endangering another person (“REAP”), and criminal
conspiracy.1 After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows:
The underlying charges stem from the arrest of
[appellant] on August 23, 2016, for her active
participation in the brutal attack of complainant,
Stephanie Hernandez [(hereinafter, “victim”)]. First
and foremost, it is worth mentioning that [a]ppellant
[] shares no blood relationship with [victim], even
though they have the same last name. . . . On the
night of August 22, 2016, [a]ppellant, her boyfriend
and co-defendant, Tommy Camacho, and roughly
1 18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, and 903(a), respectively.
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ten adult persons appeared en masse at the home
where they knew victim [] and her boyfriend,
Nicholas Torres Jr., had been staying to provoke an
altercation. The violence that erupted was the
culmination of a tortured history of animosity between
the parties because of complicated familial
relationships.
Appellant and co-victim Nicholas Torres Jr. shared
custody of two minor children produced during their
tumultuous prior romantic relationship. Appellant had
falsely named Nicholas Torres Jr. as the biological
father of her third biological child after birth when
really the third child had been fathered by
Tommy Camacho, the co-defendant in the present
case. The bouts of infidelity and lying about paternity
led to hostile verbal telephone conversations and
confrontations during custody exchanges. On
August 22, 2016, the dispute escalated viciously.
That night, [a]ppellant, her boyfriend and
co-defendant Tommy Camacho, and about ten of their
friends and family members showed up at the home
of Nicholas Torres’ parents’ property in three vehicles.
Tommy Cam[a]cho’s [] white Chevy van contained
[a]ppellant, her sister, Tommy Cam[a]cho and the
three minor children who had remained vulnerable
witnesses in that van during the entire events. They
parked, exited, and approached the Torres’ house,
where [victim] was outside. Tommy Camacho
reportedly carried a firearm with him. Appellant
targeted victim [] and called out to her with certain
fighting words. [Appellant] then repeatedly punched
[victim] as a few of [appellant’s] friends joined in the
attack.
As Nicholas Torres and his father, Jose Torres,
stepped in to try to separate the fighting women,
other men circled Jose Torres to prevent his aid and
physically attacked Nicholas Torres. Two more
carloads containing allies of [appellant] and Tommy
[Camacho] arrived and joined in the attack of [victim
and Nicholas Torres]. One of the men who had exited
a vehicle was observed holding a firearm. Additional
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observations had been made of Tommy Camacho
running back to his vehicle and retrieving a firearm.
[A p]erson observed both Tommy Camacho and the
unidentified other man beg[i]n shooting wildly in the
direction of both [victim] and Nicholas Torres. The
victims escaped being shot by diving under a vehicle
and running into the residence. A vehicle that
happened to be driving into the block was shot.
Fortunately[,] that innocent female miraculously
escaped injury. Nicholas Torres’ parents also fearfully
ran from the shooting inside their home and
immediately called 911. Fortunately, no one was
shot, but [victim] sustained multiple physical injuries
from the pack-like attack of [a]ppellant and her allies.
....
[V]ictim [] was transported and treated at Einstein
Hospital for the injuries she suffered from the
assault[,] which included a concussion, broken lip,
scratched and obstructed vis[i]on to her eye, and
multiple bruises and scratches all over her body.
[Victim] was prescribed painkillers, and at trial she
testified that she still had blocked vision in her right
eye, from the severe blows she had received from
multiple people[,] particularly [a]ppellant.
Trial court opinion, 12/20/18 at 1-4 (citations to notes of testimony omitted).
Appellant proceeded to a jury trial in connection with this incident and
was found guilty of aggravated assault, simple assault, REAP, and criminal
conspiracy on August 11, 2017. On November 17, 2017, the trial court
sentenced appellant to an aggregate term of 5 to 10 years’ imprisonment,
followed by 2 years’ probation. Appellant filed a timely post-sentence motion
on November 27, 2017.
On December 14, 2017, appellant’s instant counsel, Laurence Anthony
Narcisi, III, Esq. (“Attorney Narcisi”), was appointed to represent her in
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post-sentence and direct appeal matters. On January 26, 2018, appellant filed
a post-sentence motion alleging the ineffectiveness of trial counsel,2 and
sought reconsideration of her sentence based on an alleged miscalculation of
her offense gravity score (“OGS”). On February 12, 2018, the trial court held
an evidentiary hearing on appellant’s ineffectiveness claims and her request
for reconsideration of sentence. Following said hearing, the trial court granted
appellant’s post-sentence motion in part and denied it in part. Thereafter, the
trial court resentenced appellant to an aggregate term of 4 to 8 years’
imprisonment, followed by 2 years’ probation. This timely appeal followed.3
Appellant raises the following issues for our review:
[1.] After what can only be described as a bungled
plea negotiation, trial defense, and an
admission of ineffectiveness by trial counsel, did
the trial court err in denying [a]ppellant relief
2 Appellant was represented at trial by Janine Vinci, Esq.
3 We note that on March 9, 2018, the trial court ordered appellant to file a
concise statement of errors complained of on appeal, in accordance with
Rule 1925(b), within 21 days. Appellant did not file her Rule 1925(b)
statement until April 10, 2018, well past the expiration of the 21-day filing
period. Generally, the failure to comply with the minimal requirements of
Rule 1925(b) will result in the waiver of all issues raised on appeal.
Commonwealth v. Eldred, 207 A.3d 404, 407 (Pa.Super. 2019).
Nonetheless, we decline to find waiver in this instance, as the trial court’s
Rule 1925(b) order did not properly inform appellant “that any issue not
properly included in the Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.” Pa.R.A.P. 1925(b)(3)(iv); see also
Commonwealth v. Jones, 193 A.3d 957, 962 (Pa.Super. 2018) (declining to
quash an appeal for noncompliance with Rule 1925(b) where the trial court’s
Rule 1925(b) order did not specifically track the language set forth in
Subsection (b)(3)(iii) and (iv)).
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under the [PCRA4] by finding trial counsel was
effective?
[2.] Was using the offense gravity source [(“OGS”)]
of eleven when the jury did not find [sic]
specifically find serious bodily injury an abuse of
the [trial] court’s discretion resulting in the
imposition of a sentence of four to eight years[’]
incarceration followed by two years[’] probation
on a young single mother with three young
children[?]
Appellant’s brief at 7.5
We begin by addressing appellant’s argument that the sentencing court
abused its discretion in applying an incorrect OGS for her aggravated assault
conviction “where there had been no specific finding of serious bodily injury
by the jury.” (Id. at 18.) Appellant avers “[t]he correct [OGS] should be six.”
(Id. at 14, 18.) The record belies appellant’s contention.
“A claim that the sentencing court used an incorrect OGS is a challenge
to the discretionary aspects of one’s sentence.” Commonwealth v.
Williams, 151 A.3d 621, 625 (Pa.Super. 2016) (citation omitted). Where an
appellant challenges the discretionary aspects of his sentence, the right to
appellate review is not absolute. Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Rather, an appellant challenging the discretionary
4 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
5 For the ease of our discussion, we have elected to address appellant’s claim
in a different order than presented in her appellate brief.
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aspects of his sentence must invoke this court’s jurisdiction by satisfying the
following four-part test:
(1) whether the appeal is timely; (2) whether
appellant preserved his issue; (3) whether appellant’s
brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the sentencing
code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Here, appellant filed a timely notice of appeal and preserved her claim
in her supplemental post-sentence motion for reconsideration of sentence.
(See “Supplemental Post Sentence Motions,” 1/26/18 at ¶ 30.) Appellant has
failed to include a statement in her brief that comports with the requirements
of Pa.R.A.P. 2119(f), but the Commonwealth has not objected to this
omission. “[W]hen the appellant has not included a Rule 2119(f) statement
and the [Commonwealth] has not objected, this [c]ourt may ignore the
omission and determine if there is a substantial question that the sentence
imposed was not appropriate.” Commonwealth v. Kiesel, 854 A.2d 530,
533 (Pa.Super. 2004) (citation omitted). This court has recognized that a
claim that a sentencing court applied an incorrect OGS raises a substantial
question. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012),
appeal denied, 75 A.3d 1281 (Pa. 2013). Accordingly, we proceed to
consider the merits of appellant’s claim.
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Upon review, we find that appellant’s contention that the sentencing
court improperly applied an incorrect OGS is erroneous. The jury found
appellant guilty of, inter alia, aggravated assault in violation of
Section 2702(a)(1), which contrary to appellant’s contention required a
finding that she “attempt[ed] to cause serious bodily injury to [victim], or
cause[d] 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). The crime of aggravated assault – attempt to cause
serious bodily injury under Section 2702(a)(1) has an OGS of 10. See 204
Pa.Code § 303.15. Appellant echoes this assessment in her supplemental
post-sentence motion for reconsideration of sentence. (See “Supplemental
Post Sentence Motions,” 1/26/18 at ¶ 20.) At the February 12, 2018 hearing,
the sentencing court reiterated that “it was undisputed that the guidelines
were ten/zero, which provided a range of twenty-two to thirty-six months,
plus or minus twelve months.” (Notes of testimony, 2/12/18 at 154). The
record indicates that the sentencing court correctly applied an OGS of 10, and
thereafter imposed a sentence within standard-range recommended by the
Sentencing Guidelines. Accordingly, appellant’s claim that the sentencing
court abused its discretion in utilizing an incorrect OGS warrants no relief.
Appellant’s remaining claims concern trial counsel’s purported
ineffectiveness in failing to convey the Commonwealth’s alleged plea offer to
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her and in failing to introduce photographs of her minor injuries to support
her claim of “mutual combat.” (Appellant’s brief at 17-18.)
Generally, “claims of ineffective assistance of counsel are to be deferred
to PCRA review; trial courts should not entertain claims of ineffectiveness upon
post-verdict motions; and such claims should not be reviewed upon direct
appeal.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (footnote
omitted). In Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018), our
supreme court recognized that a defendant may raise ineffectiveness claims
on direct appeal in very limited circumstances:
The first exception, . . . affords trial courts discretion
to entertain ineffectiveness claims in extraordinary
circumstances where a discrete claim of trial counsel
ineffectiveness is apparent from the record and
meritorious to the extent that immediate
consideration best serves the interests of justice. The
second exception . . . gives trial courts discretion to
address ineffectiveness claims on post-sentence
motions and direct appeal if there is good cause shown
and the defendant knowingly and expressly waives his
entitlement to seek subsequent PCRA review of his
conviction and sentence.
Id. at 360, citing Holmes, 79 A.3d at 563-564. The third exception requires
“trial courts to address claims challenging trial counsel’s performance where
the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Delgros, 183 A.3d at 361.
In the instant matter, the trial court held an evidentiary hearing on
February 12, 2018, wherein it permitted appellant to pursue the
ineffectiveness claims raised in her supplemental post-sentence motion
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following the waiver of the right to seek subsequent collateral review. (Notes
of testimony, 2/12/18 at 17-18.) In light of the foregoing, we find that the
second exception set forth in Delgros has been satisfied and direct appellate
review of appellant’s ineffectiveness claim is appropriate at this juncture.
To prevail on a claim of ineffective assistance of counsel, appellant must
establish the following three factors: “first the underlying claim has arguable
merit; second, that counsel had no reasonable basis for his action or inaction;
and third, that [a]ppellant was prejudiced.” Commonwealth v. Charleston,
94 A.3d 1012, 1020 (Pa.Super. 2014) (citation omitted), appeal denied, 104
A.3d 523 (Pa. 2014). “A petitioner establishes prejudice when he
demonstrates that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and
internal quotation marks omitted). “Absent a showing of such prejudice, the
claim of ineffectiveness fails, regardless of whether counsel lacked a
‘reasonable basis.’” Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014).
Upon review, we agree with the trial court that appellant has failed to
prove that she was prejudiced by trial counsel’s failure to convey the
Commonwealth’s alleged plea offer to her. Our review of the record
establishes that no plea offer was, in fact, ever tendered to appellant. At the
February 12, 2018 hearing, the prosecutor testified that trial counsel initially
sought a plea agreement to summary offenses and that the Commonwealth
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refused to make such an offer. (Notes of testimony, 2/12/18 at 113-114.)
The trial court, in turn, found the prosecutor’s testimony credible, reasoning
as follows:
the testimony credibly presented by former Assistant
District Attorney Michael Luongo was that no offer had
been formally tendered to [a]ppellant during general
off-handed pre-trial discussions with . . . trial counsel,
[and appellant] would only have agreed to accept a
negotiated guilty plea to the summary graded offense
of Disorderly Conduct. This defense position was
consistent with defense presented at trial and
particularly reflected in the verbal responses given by
[a]ppellant during the painstakingly thorough
colloquy of [appellant] in the presence of her attorney
conducted by this [trial c]ourt just prior to trial.
Moreover, as this [trial c]ourt succinctly identified,
there is no requirement that an offer be tendered to
[appellant]. Additionally, as admitted by all persons
present, general conversations between a prosecutor
and defense counsel at some point about downgrading
charges in some form of fashion, does not mean that
any ‘deal’ that had required communication had come
to fruition. Therefore, [trial] counsel had no duty to
inform her client of any debate she had with the
prosecutor because there [sic] no offer had been
tendered.
Trial court opinion, 12/20/18 at 9 (citations and internal quotation marks
omitted). The record fully supports these conclusions.
Moreover, we agree with the trial court that appellant has failed to prove
that she was prejudiced by trial counsel’s decision not to introduce
photographs of her minor injuries at trial. The photographs in question neither
lend any credulity to appellant’s claim that victim was a mutual combatant in
this altercation, nor alleviate “the overwhelming evidence [that a]ppellant . . .
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secur[ed] her boyfriend[] and carloads of friends and relatives to d[rive] to
[victim’s] location to violently attack [her] . . . .” (Trial court opinion,
12/20/18 at 10.) Accordingly, appellant’s ineffectiveness claims warrant no
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/19
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