Com. v. Lugaro, S.

J-S02035-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMUEL LUGARO :
:
Appellant : No. 958 MDA 2022
Appeal from the Judgment of Sentence Entered January 25, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001893-2019
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED: APRIL 17, 2023
Appellant, Samuel Lugaro, appeals from the January 25, 2022 Judgment
of Sentence imposed by the Dauphin County Court of Common Pleas. He
challenges the sufficiency and weight of the evidence supporting his conviction
for Aggravated Assault.1 After careful review, we affirm.
A.
We glean the facts and procedural history from the trial court’s opinion
and the record. Appellant and Sierra Morales lived together in the Hall Manor
housing community with their two children and had an historically volatile
relationship for over 7 years that involved physical, verbal, and emotional
abuse.
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1 18 Pa.C.S. §2702(a)(1).
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On the evening of March 1, 2019, Ms. Morales was at her cousin’s house
for a bingo night with her aunt and other family members. After Appellant
discovered that Ms. Morales was not at home, he telephoned her several
times. Ms. Morales ignored Appellant’s calls, so Appellant showed up at the
cousin’s house and started yelling at her. Ms. Morales agreed to return to
their home, but as Ms. Morales was attempting to enter Appellant’s car,
Appellant sped off. Ms. Morales then walked the short distance to their home,
saw food thrown all over the kitchen, and found Appellant sitting in his car.
Their argument resumed and escalated to a physical altercation. Appellant
punched Ms. Morales in the face five times with a closed fist and choked her
with both hands while violently shaking her and threatening to kill her. Ms.
Morales lost consciousness several times. She ultimately escaped and ran back
to her cousin’s house.
When Ms. Morales arrived, her nose and mouth were bloody, she had
marks on her neck, and was shaking and sobbing. Someone called 911. When
police officers arrived, Officer Mark Howell took statements from Ms. Morales,
her cousin, Katheria Figueroa, and others. The officers also photographed the
injuries on Ms. Morale’s face and neck. Ms. Morales did not go to the hospital
for treatment of her injuries. She did, however, complete a domestic violence
form and submitted a strangulation report.
The Commonwealth arrested Appellant and charged him with
Aggravated Assault and Strangulation. Prior to opening arguments, the
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parties stipulated that evidence of the volatile nature of Appellant’s and Ms.
Morales’s relationship would be admissible.
The Commonwealth presented testimony from Ms. Morales, Ms.
Figueroa, and Officer Howell, each of whom testified regarding the March 1,
2019 incident consistent with the above facts. In addition, Ms. Morales
testified to Appellant’s controlling and overbearing nature, as well as several
prior incidents when Appellant physically and verbally abused her and
threatened to kill her. Ms. Figueroa also testified that she observed Appellant
verbally and physically abusing Ms. Morales. Ms. Figueroa attempted to
protect Ms. Morales by persuading Ms. Morales not to return to her home with
Appellant.
Appellant initially elected not to testify, and the court conducted a
thorough waiver colloquy. However, the next morning before the jury entered
the courtroom, Appellant requested that his attorney be discharged and
informed the court that he (Appellant) “may want to testify.”2 He explained
that he wanted to subpoena telephone and text message records that he
believed would show that Ms. Morales and her family had lied and conspired
against him, thus, exonerating him. Appellant then expounded at length
about Ms. Morales’s past violent conduct towards him, stating that it was she
who had physically abused him. He also stated that Ms. Morales and Ms.
Figueroa had lied on the stand to get him sent to jail. He added that he was
____________________________________________
2 N.T. Trial, 10/19/21, at 113.
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worried about their children and stated that he had been taking care of them
for the past year because Ms. Morales had been in jail.3
The trial court denied Appellant’s motion to dismiss his counsel and
indicated it would not continue the trial for Appellant to subpoena records,
noting that Appellant had had ample opportunity to do that before trial. When
the court again asked Appellant if he wanted to testify, Appellant said no.
Defense counsel presented no evidence. Counsel presented closing arguments
and the court instructed the jury.
The jury found Appellant guilty of both Aggravated Assault and
Strangulation. The court ordered a Pre-Sentence Investigation.4
On January 25, 2022, the court sentenced Appellant to a mitigated
range sentence of 3½ to 7 years’ incarceration on each conviction, to be
served concurrently. Appellant filed a post-sentence motion, which the court
denied. Appellant appealed to this Court and both Appellant and the trial court
complied with Pa.R.A.P. 1925.
B.
____________________________________________
3 On September 11, 2020, Ms. Morales was convicted of a crime involving food
stamps and the court released her on probation that same day. Id. at 131.
She remained on probation until approximately one week prior to Appellant’s
trial when she was incarcerated for an offense unrelated to Appellant’s case.
Id. at 119. Ms. Morales testified that she had been convicted twice for
endangering the welfare of children. The trial court instructed the jury to
consider evidence of Ms. Morales’s prior convictions only to determine whether
she had a motive that would affect her testimony. Id. at 149.
4 Prior to sentencing, the court allowed trial counsel to withdraw and after
Appellant petitioned for the appointment of a public defender, the court
appointed current counsel, Drew F. Deyo, Esq., as conflict counsel.
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Appellant presents the following questions for our review:
[1]. Whether the trial court should have granted Appellant’s Post-
Sentence Motion for acquittal on the charge of Aggravated Assault
because there was insufficient evidence presented at trial to prove
beyond a reasonable doubt that [Ms. Morales] suffered serious
bodily injury or that Appellant attempted to cause [Ms. Morales]
serious bodily injury?
[2]. Whether Appellant should be granted a new trial because the
Jury’s verdict finding him guilty of Aggravated Assault was against
the weight of the evidence with respect to the element of serious
bodily injury?
Appellant’s Br. at 6.
C.
In his first issue, Appellant argues that the court erred in denying his
motion for acquittal of the Aggravated Assault charge because “there was
insufficient evidence produced at trial for the Jury to conclude that [Ms.
Morales] suffered an injury of the type that would cause substantial risk of
death[,] . . . a serious permanent disfigurement, or . . . a protracted loss or
impairment of the function of any bodily member or organ.” Id. at 9.
Appellant also contends that “the record is also void of sufficient evidence that
Appellant attempted to cause [Ms. Morales] serious bodily injury.” Id.
Our review of a challenge to the sufficiency of the evidence is well-
settled. “A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We
review claims regarding the sufficiency of the evidence by considering
whether, viewing all the evidence admitted at trial in the light most favorable
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to the verdict winner, there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal
quotation marks and citations omitted). “Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—while
passing on the credibility of the witnesses and the weight of the evidence—is
free to believe all, part, or none of the evidence.” Id. “In conducting this
review, the appellate court may not weigh the evidence and substitute its
judgment for the fact-finder.” Id.“A person is guilty of [A]ggravated [A]ssault 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. § 2702(a)(1) (emphasis added). The
Crimes Code defines “serious bodily injury” as “[b]odily 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.” 18 Pa.C.S. § 2301.
“Attempt, for aggravated assault purposes, is found where ‘the accused
intentionally acts in a manner which constitutes a substantial or significant
step toward perpetrating serious bodily injury upon another.’”
Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001)
(internal citation omitted). “A person acts intentionally with respect to a
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material element of an offense when . . . 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). “Intent can be proven by direct or circumstantial evidence; it
may be inferred from acts or conduct or from the attendant circumstances.”
Miller, 172 A.3d at 641 (citation omitted).
Where the defendant inflicts on the victim an injury that does not rise
to the level of a “serious bodily injury,” a factfinder may still convict a
defendant of Aggravated Assault if the factfinder determines that the
defendant intended to inflict a “serious bodily injury.” Commonwealth v.
Dailey, 828 A.2d 356, 359 (Pa. Super. 2003) (citation omitted). See, e.g.,
id. at 361-62 (concluding that two punches to the victim’s face before the
defendant could be restrained “while positioned to continue the attack” was
sufficient to support an aggravated assault conviction); Commonwealth v.
Alexander, 383 A.2d 887, 889 (Pa. 1978) (concluding that where the
appellant punched the victim once in the back of the head and walked away,
the Commonwealth failed to prove aggravated assault because there was no
evidence that the defendant would have escalated the attack and no evidence
of statements made before, during, or after the attack indicating an intent to
inflict further injury on the victim).
In denying Appellant’s post-trial motion for acquittal of the Aggravated
Assault charge, the court concluded that Ms. Morales’s testimony regarding
Appellant’s multiple punches to her face, his threats to kill her, and his choking
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her to the point of her blacking out established that Appellant attempted to
inflict a “serious bodily injury” on Ms. Morales:
In the instant matter, Ms. Morales testified that she and
[Appellant] were arguing in [Appellant’s] car when the argument
turned physical. Ms. Morales testified that [Appellant] struck her
in the face with a closed fist approximately five times.
Additionally, Ms. Morales testified that [Appellant] choked her
using both hands, causing her to lose consciousness for a couple
of seconds to a minute. He also violently shook her head while he
choked her and threatened to kill her. According to Ms. Morales’s
testimony, the assault and choking only stopped because she was
able to fight back against [Appellant] and escape. We find that
this Testimony is more than sufficient to show that [Appellant]
attempted to cause serious bodily injury to Ms. Morales. Thus,
[Appellant’s] conviction of aggravated assault is supported by
sufficient evidence, and he is not entitled to relief.
Tr. Ct. Op., 6/2/22, at 3.
We agree that the evidence supports Appellant’s conviction for
Aggravated Assault because Appellant attempted to inflict “serious bodily
injury” on Ms. Morales. Ms. Morales testified that Appellant punched her in the
face with a closed fist approximately five times, followed by his choking her
until she briefly lost conscientiousness. N.T. Trial, 10/18, 2021, at 56-57. She
also testified that she suffered pain around her neck, head, and face for a day
or two after the event. Id. at 73. In addition to Ms. Morales’s testimony, Ms.
Figueroa testified that Ms. Morales returned to her house with a bloody nose
and mouth and marks around her neck that were not there before the incident.
Id. at 37. Finally, photographs taken by a police officer after the incident
depicted Ms. Morales’s bloody face after the assault. See id. at 38-39 (where
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Ms. Figueroa testified that Ms. Morales “actually had more blood on her” when
she got to the house than depicted in the photographs).
Considering the totality of this evidence and the reasonable inferences
to be drawn therefrom, we conclude that the Commonwealth presented
sufficient evidence from which the jury could reasonably conclude that
Appellant took substantial and significant steps to inflict serious bodily injury
on her and, thus, established Appellant’s intent to cause serious bodily injury
and the elements of Aggravated Assault.
Appellant’s argument on this issue is conclusionary and we reject it as
meritless.
D.
In his last issue, Appellant summarily avers that he should be granted
a new trial based on the weight of the evidence because Ms. Morales “did not
suffer a serious bodily injury, and [ ] Appellant did not attempt to cause her
the type of injury that would cause a substantial risk of death.” Appellant’s
Br. at 15-16. No relief is due.
A trial court will not grant relief on a weight of the evidence claim unless
the verdict is so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007). On appeal,
this Court may not consider the underlying question of whether the verdict is
against the weight of the evidence; instead, we are limited to evaluating only
the trial court’s exercise of discretion in denying that claim. Commonwealth
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v. Morales, 91 A.3d 80, 91 (Pa. 2014). As our Supreme Court has made
clear, reversal is only appropriate “where the facts and inferences disclose a
palpable abuse of discretion[.]” Id. (emphasis in original). The trial court’s
denial of a weight claim is the least assailable of its rulings. Commonwealth
v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). See Commonwealth v.
Morgan, 913 A.2d 906, 909 (Pa. Super. 2006) (stating that because the trial
court is in best position to view the evidence presented, an appellate court will
give that court “the utmost consideration” when reviewing its weight
determination).
In its Opinion denying Appellant’s post-sentence motion for a new trial,
the trial court noted that “the jury was free to weigh the testimony of Ms.
Morales and judge her credibility which they did in ultimately finding
[Appellant] guilty of Aggravated Assault.” Tr. Ct. Op. at 4. The court observed
that Ms. Morales testified that “the assault and choking only stopped because
she was able to fight back against [Appellant] and escape.” Id. at 3.
Appellant argues that the verdict is against the weight of the evidence
because (1) neither Ms. Morales nor her cousin “describe[d] seeing any
physical injuries consistent with serious bodily injury,” (2) Ms. Morales “did
not go to the hospital following the incident,” (3) Ms. Morales “was able to
‘run’ away following the incident,” and (4) “[Ms. Figueroa] testified that [Ms.
Morales] walked to her house fifteen to thirty minutes following the incident,
. . . the weight of the evidence presented shows that [Ms. Morales] did not
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suffer a serious bodily injury and that Appellant did not attempt to cause her
the type of injury that would cause a substantial risk of death.” Appellant’s
Brief at 16. He concludes that he ”should, therefore, be afforded a new trial.”
Id. at 17.
Appellant’s argument is neither legally nor factually supportable. As
noted above, the fact that Ms. Morales did not actually suffer a serious bodily
injury is irrelevant to the issue of whether Appellant intended to inflict a
serious bodily injury. Dailey, 828 A.2d at 359. In addition, while Appellant
argues that the fact that Ms. Morales managed to flee from Appellant
demonstrates that he did not intend to inflict serious bodily injury, the jury
chose not to place substantial weight on the fact that Ms. Morales managed
to flee from Appellant. Rather, the jury relied on the fact that Appellant hit
Ms. Morales five times, leaving her face bloody, to conclude that Appellant
intended to inflict serious bodily harm.
Based on the “facts and inferences” presented in this case, we conclude
that the trial court did not abuse its discretion in finding that the verdict was
not “so contrary to the evidence as to shock one’s sense of justice and make
the award of a new trial imperative.” West, 937 A.2d at 521. Accordingly,
Appellant’s weight challenge merits no relief.
D.
In sum, the Commonwealth’s evidence—that Appellant repeatedly
punched and strangled Ms. Morales to the point of unconsciousness while
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threatening to kill her—supports Appellant’s conviction for Aggravated
Assault. The jury weighed the evidence and judged the credibility of the
witnesses in reaching its verdict, as was its task as factfinder. Appellant has
failed to convince us that the trial court abused its discretion in denying him
a new trial based on the weight of the evidence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2023
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