Com. v. Villafane, H.

J-S42039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HERMAN VILLAFANE :
:
Appellant : No. 432 EDA 2020
Appeal from the Judgment of Sentence Entered December 18, 2019
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004261-2018
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: JANUARY 22, 2021
Herman Villafane (“Villafane”) appeals from the judgment of sentence
imposed following his convictions of robbery, simple assault, and retail theft.1
We affirm.
On November 30, 2018, at approximately 9:15 a.m., Villafane and
Kristin Pacropis (“Pacropis”) arrived at the ACME Markets (“ACME”) located at
the West Goshen Shopping Center in West Chester, Pennsylvania. Pacropis
remained in the vehicle as Villafane entered ACME. After Villafane had entered
ACME, Betty Tacket (“Tacket”), an ACME employee, observed Villafane placing
various pharmaceutical and cleaning items into his cart. Tacket followed
Villafane throughout the store, and saw Villafane bypass the checkout lines
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1 18 Pa.C.S.A. §§ 3701(a)(1)(iv), 2701(a)(1), 3929(a)(1)
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and proceed towards the exit. As Villafane exited, Tacket shouted for Calin
Bailey (“Bailey”), another ACME employee, to stop Villafane. Bailey grabbed
the cart and Villafane released it.
Villafane ran out of the store, and Bailey followed him. When Bailey
caught up to Villafane, Villafane placed Bailey in a headlock and punched
Bailey in the head multiple times. During this time, Pacropis approached in
her vehicle. Villafane released Bailey, entered Pacropis’s vehicle, and together
they drove away. At some point thereafter, the police arrived and called an
ambulance for Bailey. Bailey was taken to Chester County Hospital and
treated for bruising to his head.
Later that day, Villafane was arrested and charged with two counts of
robbery, and one count each of retail theft, criminal conspiracy, and simple
assault. Villafane filed an Omnibus Pre-Trial Motion, which included, inter alia,
a Motion to Dismiss one count of robbery. The trial court granted Villafane’s
Motion to Dismiss one of the robbery counts. Prior to trial, the Commonwealth
withdrew the charge of criminal conspiracy.
A jury found Villafane guilty of robbery, simple assault, and retail theft.
The trial court deferred the sentencing hearing and ordered the preparation
of a pre-sentence investigation report (“PSI”).
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On December 18, 2019, the trial court sentenced Villafane, in the
aggravated range, to five to ten years in prison for his robbery conviction.2
On December 27, 2019, Villafane filed a Motion to Modify and Reduce
Sentence in which he claimed, inter alia, that the trial court considered
Villafane’s exercise of his right to a jury trial as an improper sentencing factor.
The trial court denied Villafane’s Motion. Villafane filed a timely Notice of
Appeal3 and court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors
complained of on appeal.
Villafane now raises the following issues for our review:
1. Was evidence presented at trial insufficient to prove [r]obbery,
count 2, 18 Pa.C.S.A. § 3701(a)(1)(iv), and [s]imple [a]ssault,
count 5, 18 Pa.C.S.A. § 2702(a)(1)?
2. Did the trial court abuse its discretion in sentencing [Villafane]
to five to ten years [of] confinement when it inappropriately
considered [Villafane]’s assertion of his right to trial?
Brief for Appellant at 5.
In his first claim, Villafane challenges the sufficiency of the evidence
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2 The remaining offenses merged for sentencing purposes.
3 Villafane purports to appeal from the trial court’s December 30, 2019, Order
denying his post-sentence Motion. However, in criminal matters, an appeal
properly lies from the imposition of the judgment of sentence. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc) (citation omitted). We have corrected the caption accordingly.
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supporting his robbery and simple assault convictions.4 Id. at 12-13.
Villafane argues that the Commonwealth failed to establish that he had
intended to cause, or did cause, bodily harm to Bailey. Id. at 13-14. Villafane
acknowledges Bailey’s testimony that Villafaine had placed Bailey in a
headlock and punched Bailey twice in the head. Id. However, Villafane
contends that the injuries sustained by Bailey “do not rise to the level of bodily
injury as contemplated in the statute[s].” Id. at 14-15.
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 weigh the evidence and substitute our judgment for
a 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. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence received must be considered. Finally, the [trier] of
fact[,] while passing upon the credibility of witnesses and the
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4 In the Argument section of his brief, Villafane titles this claim as a challenge
to the weight of the evidence. Brief for Appellant at 12; See also
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (stating that
sufficiency of the evidence claims are distinct from weight of the evidence
claims, as there are different standards of review as well as separate
remedies). To the extent that Villafane raises a weight of the evidence claim,
it is waived, because Villafane did not raise it in a post-sentence motion before
the trial court. See Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa.
2009) (stating that when an appellant fails to raise a weight claim before the
trial court, such a claim is waived).
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weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation
omitted).
The Crimes Code, in relevant part, provides that “[a] person is guilty of
robbery if, in the course of committing a theft, he … (iv) inflicts bodily injury
upon another or threatens another with or intentionally puts him in fear of
immediate bodily injury[.]” 18 Pa.C.S.A. § 3701(a)(1)(iv).
Additionally, the Crimes Code provides that “[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(a)(1). “Bodily injury”
is defined as “[i]mpairment of physical condition or substantial pain.” 18
Pa.C.S.A. § 2301.
In its Opinion, the trial court addressed Villafane’s sufficiency claims as
follows:
The evidence introduced at trial established the following:
On November 30, 2018, [Villafane] asked [] Pacropis to take him
to the A[CME] located in West Goshin Township, which is in
Chester County[,] Pennsylvania. They arrived at approximately
9:15 a.m. [] Pacropis stayed in the car and [Villafane] went into
the store. [Tacket] saw [Villafane] swiping items off the shelf from
the aisle where medicine was displayed and put them in his cart.
[Villafane] then left the store without going to the register area
and paying for the items. He exited out of the doors[,] where an
employee, [] Bailey, was vacuuming the carpet. [Tacket] yelled
for [] Bailey to stop [Villafane]. [] Bailey ran after [Villafane] and
got a hold of the cart. [Villafane] pushed the cart at [Bailey] in
an attempt to get [Bailey] to let go. When that did not work,
[Villafane] put [] Bailey in a headlock and punched him on the side
of his head. [] Bailey could not breathe and he [] thought
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[Villafane] was going to kill him. [Villafane] released him, [] got
into [] Pacropis’[s] car[,] and they drove away. When [Villafane]
entered the car, he told [] Pacropis that he hit someone in order
to get away.
After the incident, [] Bailey was upset, scared and shaking,
and he had a red mark on his neck and a lump the size of a golf
ball on the side of his head. Police arrived at the scene, an
ambulance was called for [] Bailey, [and he was subsequently]
taken to the hospital. The red lump on his head remained for
several days. In addition, Bailey was sore, his head was throbbing
and he had a headache for several days after the incident. []
Bailey, who worked at the A[CME] for twelve years prior to this
[incident], no longer works there because he is scared to return.
… [T]he items [Villafane] attempted to steal were scanned
and totaled by A[CME] employees. The total value of the items
[Villafane] attempted to take was $2,117.22.
Based on the record, it is clear that the Commonwealth
presented [] testimony and evidence from which the jury could
find that every element of the crimes of [r]obbery and [s]imple
[a]ssault were established beyond a reasonable doubt. Even
though [Villafane claims] that [he] never struck [] Bailey, it is
clear that the jury found [] Bailey credible and determined that
[Villafane]’s version of events was not credible. It is within the
jury’s province to do so. In addition, [] Pacropis corroborated []
Bailey’s version of events when she testified that [Villafane]
admitted to her that he “hit that guy” in order to get away….
Trial Court Opinion, 4/21/20, at 4-5.
We agree with and adopt the trial court’s well-reasoned Opinion in
regards to Villafane’s first claim. See id. Moreover, to the extent that
Villafane contends that the Commonwealth failed to prove that Bailey suffered
actual injury, his argument is without merit for the reasons stated by the trial
court. See id.; see also Commonwealth v. Richardson, 636 A.2d 1195,
1196 (Pa. Super. 1994) (concluding that the Commonwealth had presented
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sufficient evidence of bodily injury where the appellant had punched the victim
in the face and caused pain for a few days).
Additionally, even if the Commonwealth’s evidence did not establish
actual injury, it established an attempt to cause injury, as Villafane had placed
Bailey in a headlock and punched Bailey in the head. See Commonwealth
v. Martuscelli, 54 A.3d 940, 948-49 (Pa. Super. 2012) (stating that “it is
sufficient to support a conviction [of simple assault] if the Commonwealth
establishes an attempt to inflict bodily injury[,]” and that such attempt may
be shown by circumstances reasonably suggesting that a defendant intended
to cause injury); see also Commonwealth v. Brunson, 938 A.2d 1057,
1060-61 (Pa. Super. 2007) (concluding that the Commonwealth had
demonstrated an attempt to cause bodily injury where the defendant had
grabbed the victim’s neck and punched him in the head). Thus, to the extent
that Villafane contends that the Commonwealth failed to prove that he
attempted to cause injury to Bailey, his argument is without merit.
Accordingly, we cannot grant Villafane relief on this claim.
In his second claim, Villafane argues that the trial court abused its
discretion in considering his decision to go to a trial as a sentencing factor.
Brief for Appellant at 11. Villafane directs our attention to the trial court’s
following statement at sentencing:
What we do know is that he was intellectually disabled when you
had him go through the trauma of testifying. You have the right
to trial, but that young man in this case that really is contrary to
your opinion, it looked solid. It’s a very strong Commonwealth
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case. The jury thought so too. I don’t know what they offered
you. Maybe it was high, but that young man had to go through
the gauntlet of testifying. So his initial trauma of this assault
which may have been a bam[-]bam thing from your perspective,
it becomes a horrible issue where he has to testify at a pretrial
and trial. That’s wrong.
Id. at 16 (quoting N.T. (Sentencing Hearing), 12/18/19, at 26).
Villafane challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. See Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010) (stating that a claim of whether the trial
court considered a defendant’s exercise of his right to a jury trial, as a
sentencing factor, is a challenge to the discretionary aspects of his sentence).
Rather, when an appellant challenges the discretionary aspects of his
sentence, we must consider his brief on this issue as a petition for permission
to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997);
see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa. 1987). Prior
to reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (quotation marks and come citations omitted).
Here, Villafane filed a timely Notice of Appeal, preserved his claim in his
post-sentence Motion to Modify and Reduce Sentence, and included a Rule
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2119(f) Statement in his brief. Additionally, Villafane’s claim that the trial
court relied on an impermissible factor, i.e., his decision to exercise his right
to a jury trial, raises a substantial question for our review. See Moury, 992
A.2d at 170 (stating that “[a] court’s reliance on a defendant’s decision to go
to trial rather than accept a plea bargain … presents a substantial question.”).
Thus, we will review Villafane’s discretionary sentencing claim.
We adhere to the following standard of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias, or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007) (citation
omitted).
“In every case in which the court imposes a sentence for a felony … the
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reasons or reasons for the sentence
imposed.” See Commonwealth v. Mouzon, 812 A.2d 617, 620-21 (Pa.
2002) (plurality) (quoting 42 Pa.C.S.A. § 9721(b)). “[T]he [trial] court shall
follow the general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim, and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A.
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§ 9721(b); see also Commonwealth v. McClendon, 589 A.2d 706, 713 (Pa.
Super. 1991) (stating that “the court should refer to the defendant’s prior
criminal record, age, personal characteristics and potential for
rehabilitation.”). “A sentencing court may consider any legal factor in
determining that a sentence in the aggravated range should be imposed. …
[T]he sentencing judge’s statement of reasons on the record must reflect this
consideration….” Commonwealth v. Stewart, 867 A.2d 589, 592-93 (Pa.
Super. 2005) (citation omitted). Further, the trial court must consider the
Sentencing Guidelines. Commonwealth v. Sheller, 961 A.2d 167, 190 (Pa.
Super. 2008).
Here, the trial court addressed Bailey’s intellectual disability and the
impact that Villafane’s assault had on Bailey. The trial court stated the
following:
Okay, under 42 [Pa.C.S.A. § 9721], the [c]ourt shall consider the
principle sentence should [sic] call for the protection of the public,
the gravity of the offense as it relates to the impact of the
community and the rehabilitative needs of the defendant. I look
at the man. I look at the crime, the effect o[n] the victim[.] You
know, it’s a shame [Bailey] isn’t here today, because I would have
addressed him directly. He showed courage in testifying. I’m
really disheartened by the fact this young man who worked for 12
years at an A[CME] hasn’t gone to work since this incident, and if
it happened the way [] Villafane claims that he never had contact
with him, I don’t think that would be the case. I think [Bailey]
had a traumatic experience and the jury found it that way. It’s
something he’s going to live with the rest of his life. My message
back to him is he went through this trial and testified and he
showed the courage through that. He can do anything. He can
be a bagger again. This is unique, weird, thing that I don’t think
happened normally. … [Bailey] stopped this guy. [Normally, you
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don’t] think a retail theft would blow up to the point where he’s
choked and punched and terrified by it.
***
[Villafane] assault[ed] an intellectually disabled person.
Now, in a delicate area, I think your attorney made a good
argument. How are you suppose[d to] know in a matter of
moments that [Bailey] is intellectually disabled. That may be true.
What you did know is that he was intellectually disabled when you
had him testify[.] You have the right to trial, but th[is case was]
a very strong Commonwealth case. The jury thought so too. I
don’t know what they offered you, maybe it was high, but that
young man had to go through the gauntlet of testifying. So his
initial trauma of this assault which may have been a bam[-]bam
thing from your perspective, it becomes a horrible issue where he
has to testify at a pretrial and trial. I can consider that his
intellectual disability is an aggravating factor.
N.T. (Sentencing hearing), 8/5/20, at 23-24, 26-27 (citations omitted). We
conclude that this exchange signifies that the trial court considered Villafane’s
conduct as it relates to the impact on the life of the victim, rather than
Villafane’s decision to stand trial. See 42 Pa.C.S.A. § 9721 (providing that
“the trial court shall [consider] … the gravity of the offense as it relates to the
impact on the life of the victim.”) (emphasis added).
Moreover, the record reflects that the trial court complied with the
requirements of 42 Pa.C.S.A. § 9721(b), and considered all relevant
sentencing factors, when it imposed Villafane’s sentence. See N.T.
(Sentencing Hearing), 8/5/20, at 2-3, 11-12, 24-30 (wherein the trial court
detailed its consideration of Villafane’s PSI, Villafane’s prior criminal record,
Villafane’s history with drugs and alcohol, the gravity of Villafane’s offense as
it relates to the impact on the life of Bailey, and Villafane’s family history,
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Villafane’s prior conduct in prison, and several other factors); see also
Commonwealth v. P.L.S., 894 A.2d 120, 133 (Pa. Super. 2006) (stating that
even if the trial court considered an inappropriate factor at sentencing, “the
trial court offered significant other support for sentencing in excess of the
guidelines[.]”); Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)
(explaining that where a sentencing judge has considered the PSI, it is
presumed that they are “aware of relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.”). Therefore, we conclude that the trial court did not abuse
its discretion in imposing Villafane’s sentence and that Villafane’s challenge to
the discretionary aspects of his sentence is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/21
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