Com. v. Carty, O.

J-S78020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OSCAR TERRETO CARTY
Appellant No. 1042 MDA 2014
Appeal from the Judgment of Sentence May 15, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003824-2013
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 24, 2014
Oscar Carty attacked another male on a Reading street and stabbed
him with a sharp object measuring 6-8 inches. The victim nearly died. A
jury found Carty guilty of two counts of aggravated assault1 and one count
of possession of an instrument of crime (“PIC”) 2. In this direct appeal, Carty
challenges the sufficiency and weight of the evidence underlying his
convictions3. We affirm.
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1
The jury found Carty guilty of one count of aggravated assault under 18
Pa.C.S. § 2702(a)(1) and a second count under 18 Pa.C.S. § 2702(a)(4).
2
18 Pa.C.S. § 907.
3
The trial court determined that the two aggravated assault convictions
merged for purposes of sentencing. It sentenced Carty to 7-15 years’
imprisonment for aggravated assault plus two years’ consecutive probation
for PIC. Carty filed timely post-sentence motions, which the trial court
denied, and a timely notice of direct appeal. Both Carty and the trial court
complied with Pa.R.A.P. 1925.
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Carty raises the following issues on appeal:
The evidence presented at trial was insufficient to
establish beyond a reasonable doubt the guilty
verdicts due to [Carty’s] justification defense which
was not disproved by the Commonwealth.
The guilty verdicts were contrary to the weight of the
evidence, where [Carty] established a justification
defense that was not otherwise disproved by the
Commonwealth.
Brief For Appellant, pp. 10-16.
Carty’s first argument is a challenge to the sufficiency of the evidence.
Our standard of review for challenges to the sufficiency of the evidence is
well-settled:
[W]hether[,] viewing all the evidence admitted at
trial in the light most favorable to the
[Commonwealth as 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
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.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations
omitted).
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A person is guilty of aggravated assault under 18 Pa.C.S. § 2702(a)(1)
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.” “Bodily injury” is
“impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.
“Serious bodily injury” is “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.” Id. A
person acts “intentionally” with regard to a material element of an offense
when, “if the element involves the nature of his conduct or a result thereof,
it is his conscious object to engage in conduct of that nature or to cause
such a result.” 18 Pa.C.S. § 302(b)(1)(i). A person acts recklessly with
respect to a material element of an offense
when he consciously disregards a substantial and
unjustifiable risk that the material element exists or
will result from his conduct. The risk must be of such
a nature and degree that, considering the nature and
intent of the actor's conduct and the circumstances
known to him, its disregard involves a gross
deviation from the standard of conduct that a
reasonable person would observe in the actor's
situation.
18 Pa.C.S. § 302(b)(3).
A person is guilty of aggravated assault under 18 Pa.C.S. § 2702(a)(4)
if he “attempts to cause or intentionally or knowingly causes bodily injury to
another with a deadly weapon.” A “deadly weapon” is “any firearm, whether
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loaded or unloaded, or any device designed as a weapon and capable of
producing death or serious bodily injury, or 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.” 18
Pa.C.S. § 2301. A person acts “knowingly” with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct
or the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances
exist; and
(ii) if the element involves a result of his conduct, he
is aware that it is practically certain that his conduct
will cause such a result.
18 Pa.C.S. § 302(b)(2).
Construed in the light most favorable to the Commonwealth, the
evidence is as follows: at 12:30 a.m. on June 28, 2013, two friends, Frankie
Cordova and Jarrod Care, left Care's residence in Reading, Pennsylvania to
go to a convenience store. N.T., pp. 57-58. En route to the store, they
encountered a female named Kim Larrabee sitting in her vehicle. N.T., p. 59,
99. Larrabee and Carty have a child together N.T., p. 145. Cordova
approached Larrabee's vehicle to discuss an affair between Larrabee and the
mother of Care's children. N.T., p. 60.
A taxi approached, and Carty exited from the taxi. N.T., pp. 62-63.
Carty began yelling at Larrabee to the effect of "this is what you do when
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I’m not around?" N.T., p. 103. Carty then approached Care and began
yelling and pointing his finger. N.T., p. 64-65. Carty and Cordova
exchanged words and began punching each other. N.T.,pp. 66-67. Care was
not involved in the altercation but stood 10-15 feet away. N.T., p. 105.
During the fight, Carty reached towards his back pocket, pulled out a
"sort-of-shiny object" and struck Cordova twice with the object, once in the
chest and once in the upper abdomen. N.T., pp. 68-70, 106, 126, 131.
Feeling pain in his ribs, Cordova backed away and began stumbling towards
Care's house. N.T., p. 68-70. With his arm around Care for support,
Cordova lifted his shirt, and Care stated that it looked like Cordova had been
stabbed. N.T., p. 71.
When Care and Cordova arrived at Care's house, another family
member took Cordova to Reading Hospital for treatment. N.T., p. 110.
Cordova left the hospital due to the wait and his belief that the injury was
not serious. N.T., p. 75. He returned to Care's house and went to sleep,
thinking that rest and food would help him. N.T., p. 75 Roughly four hours
later, he woke up and had difficulty breathing. N.T., p. 76. He was driven
back to Reading Hospital, where he collapsed in front of the entrance and
began vomiting. N.T., pp. 77-78. Medical personnel determined that the
stab wound to the upper abdomen had lacerated his liver and "nicked" his
pericardium, which caused blood to pool in his pericardium and disrupt the
functioning of his heart. N.T., pp. 126, 131.
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The surgeon who treated Cordova, Dr. Thomas Geng, opined that (1)
the upper abdomen wound was roughly between "1 and 3 to 4 millimeters"
away from Cordova's heart; (2) the object used was 6-8 inches long and
very thin with a sharp point; and (3) a wound less than an inch closer to the
heart would likely have caused Cordova's immediate death. N.T., pp. 129-
30.
Viewed in the light most favorable to the Commonwealth, this
evidence is sufficient to sustain Carty’s conviction for aggravated assault
under 18 Pa.C.S. § 2702(a)(1). Carty interrupted a conversation between
Cordova and Kim Larrabee, and during the ensuing fight, Carty intentionally
(or, at the very least, recklessly) stabbed Cordova twice with a sharp object
that was 6-8 inches long. Cordova suffered serious bodily injuries from the
stabbing, i.e., lacerations to his liver, pooling of blood in his pericardium,
and disruption of normal heart function. Lastly, Carty’s conduct manifests
extreme indifference to the value of human life. The same evidence is
sufficient to sustain Carty’s conviction under section 2702(a)(4), because he
intentionally (or, at the very least, knowingly) caused bodily injury to
Cordova with a deadly weapon.
Carty complains that the evidence is insufficient because he was acting
either in self-defense or to protect Larrabee from Cordova and Care.
Larrabee testified that before Carty arrived, Cordova and Care kicked her car,
and Cordova had snatched her cell phone and smashed it on the ground.
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N.T., pp. 139-40. Larrabee and Carty both testified that Cordova and Care
attacked Carty, and that Cordova threatened to get his “ratchet,” which both
Larrabee and Carty believed was a reference to a gun. N.T., pp. 144, 154-
55.
Carty’s and Larrabee’s testimony does not render the evidence against
Carty insufficient. As stated above, our role in examining the sufficiency of
the evidence is to interpret the evidence in the light most favorable to the
Commonwealth. Viewed in this light, the evidence establishes that Carty did
not act in self-defense or in Larrabee’s defense but instead was the
aggressor against Cordova. By highlighting his own self-serving testimony
and the testimony of his paramour, Larrabee, Carty asks us to view the
evidence in the light most favorable to him instead of the Commonwealth 4.
A person commits the crime of PIC “if he possesses any instrument of
crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a). An
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4
In any event, there were significant inconsistencies in Carty’s and
Larrabee’s testimony. While Larrabee testified at trial that Cordova and Care
attacked Carty, a Reading police investigator testified that Larrabee told him
that (1) she could not identify the male who got out of the taxicab during
her confrontation with Cordova and Care, (2) the male chased Cordova and
Care, and (3) she drove away when the male began chasing Cordova and
Care. N.T., pp. 149, 169.
Carty testified that he first spotted the 6-8 inch object on the street when he
was knocked to the ground in the middle of the fight, and that he did not
know that he cut Cordova until the police charged him with aggravated
assault. N.T., pp. 156, 164-65. A Reading police sergeant testified that
after Carty’s arrest, Carty admitted telling Cordova: “Hey, check yourself. I
think I got you.” N.T., p. 177.
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instrument of crime is (1) “anything specially made or specially adapted for
criminal use” or (2) “anything used for criminal purposes and possessed by
the actor under circumstances not manifestly appropriate for lawful uses it
may have.” 18 Pa.C.S. § 907(d). The sharp, 6-8 inch object that Carty
used to stab Cordova satisfies definition (2). It is the functional equivalent
of a knife, a device “commonly used for criminal purposes.”
Commonwealth v. DeHoniesto, 624 A.2d 156, 161 (Pa.Super.1993).
With regard to the second element of definition (2) – “possessed. . .under
circumstances not manifestly appropriate for lawful uses it may have” -- we
“must look at the context in which the instrument was used.” DeHoniesto,
supra. Carty intentionally used the object to stab Cordova twice, and one
stab wound was nearly fatal. Further, because we view the evidence in the
light most favorable to the Commonwealth, the evidence of PIC is sufficient
notwithstanding Carty’s claim of self-defense or defense of Larrabee.
In his second argument on appeal, Carty argues that his convictions
are contrary to the weight of the evidence. We disagree. When reviewing a
challenge to the weight of the evidence, this Court’s role is not to consider
the underlying question of whether the verdict was against the weight of the
evidence. Commonwealth v. Kane, 10 A.3d 327, 332-333
(Pa.Super.2010). Instead, we must decide if the trial court palpably abused
its discretion when ruling on the weight claim. Id. In performing this task,
we must remember that the initial determination regarding the weight of the
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evidence is for the factfinder, who is free to believe all, some or none of the
evidence. Id. We must not reverse a verdict based on a weight claim
unless that verdict was contrary to the evidence so as to shock one's sense
of justice. Id. Moreover, “[a]n abuse of discretion is not a mere error in
judgment but, rather, involves bias, ill will, partiality, prejudice, manifest
unreasonableness, or misapplication of law.” Id.The trial court acted within its discretion by denying Carty’s weight
claim. The parties presented different accounts as to Carty’s role in the
altercation with Cordova. The Commonwealth presented evidence that Carty
was the aggressor. The defense insisted that Cordova and Case attacked
Carty, and that Carty miraculously spotted the sharp object in the street
during the fight and used it in desperation as a means of defense. It was
within the jury’s province to select which evidence to believe. The fact that
the jury chose to credit the Commonwealth’s version of the events does not
shock our sense of justice.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
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