J-S10035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
JOSE GONZALEZ Appellant No. 2653 EDA 2015
Appeal from the Judgment of Sentence dated August 3, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000746-2015
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J. MEMORANDUM BY SOLANO, J.: FILED MAY 16, 2017 Appellant, Jose Gonzalez, appeals from the judgment of sentence imposed after the trial court convicted him of three counts of aggravated assault, two counts of conspiracy to commit aggravated assault, five counts of simple assault, two counts of conspiracy to commit simple assault, five counts of terroristic threats, five counts of recklessly endangering another person, one count of conspiracy to commit burglary and one count of trespass.1 We affirm.
The record reveals that on December 30, 2014, Appellant and two co-
conspirators forcibly entered the Philadelphia apartment of Denice Davilla.
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1 18 Pa. C.S. §§ 2702, 903, 2701, 903, 2706, 2705, 3502, 903 and 3503, respectively.
J-S10035-17
Ms. Davilla was pregnant, and there were six other people inside the apartment with her, including two children.
During the invasion, Appellant stood guarding the door while a co-
conspirator, Michael, wielded a baseball bat, and another co-conspirator, “Boo”, brandished a knife. Boo proceeded to threaten and menace the inhabitants of the apartment, grabbing, punching, attempting to stab, and spitting while he sought to locate a woman named Latisha. Eventually, one of the victims – Mr. Toler – persuaded the three intruders to leave the apartment by telling them he would help locate Latisha. Upon being contacted, the Philadelphia Police recovered Boo’s knife outside of the apartment building. Appellant was charged with the above offenses.
Appellant was tried before the trial court on May 27, 2015. The Commonwealth introduced the testimony of Mr. Toler and another apartment inhabitant and victim, Lisette Negron. The Commonwealth also introduced the knife into evidence. Thereafter, the trial court rendered its verdicts and deferred sentencing. On August 3, 2015, the trial court imposed an aggregate sentence of 10 to 20 years’ incarceration.2 Appellant filed a post-sentence motion which the trial court denied. Appellant filed this timely appeal and presents two issues for our review:
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2 Appellant’s aggregate sentence consists of three concurrent 10 year mandatory minimums for the first-degree felonies of aggravated assault, conspiracy to commit aggravated assault, and burglary. The trial court imposed no further sentences on Appellant’s remaining convictions.
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J-S10035-17
1. Did the trial court err in entering verdicts of guilty against [Appellant] supported by insufficient evidence presented at trial?
2. Did the trial court err in entering verdicts of guilty against the weight of the evidence presented at trial?
Appellant’s Brief at 9.
Appellant argues that the evidence was insufficient to support his convictions because he “did not participate as a principal or accomplice in the events at the apartment” and “was merely present during the incident.” Appellant’s Brief at 14. Appellant contests the weight of the evidence, stating that Ms. Negron, “the only witness that indicated the Appellant used an intimidating face or demeanor,” was not credible. Id.
With regard to Appellant’s first issue assailing the sufficiency of the evidence:
The standard of review for a challenge to the sufficiency of the evidence is to determine whether, when viewed in a light most favorable to the verdict winner, the evidence at trial and all reasonable inferences therefrom is sufficient for the trier of fact to find that each element of the crimes charged is established beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.Super.2003). The Commonwealth may sustain its burden of proving every element beyond a reasonable doubt by means of wholly circumstantial evidence. See Commonwealth v. Bruce, 207 Pa.Super. 4, 916 A.2d 657, 661 (2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).
The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. See id. Any doubt raised as to the accused's guilt is to be resolved by the fact-finder. See id. As an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa.Super.2004), appeal denied, 584 Pa. 685, 881 A.2d 819
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(2005). Therefore, we will not disturb the verdict “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.” Bruce, 916 A.2d at 662 (citation omitted).
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014).
An appellate court’s standard of review when presented with a weight of the evidence claim is distinct from the standard applied by the trial court in assessing the weight of the evidence. Commonwealth v. Mucci, 143 A.3d 399, 410–411 (Pa. Super. 2016) (citation omitted). Appellate review of a weight claim is a review of the trial court’s exercise of discretion in assessing the weight of the evidence; the appellate court does not engage in its own independent assessment of whether the verdict is against the weight of the evidence. Id. at 411. In order for an appellant to prevail on a challenge to the weight of the evidence, “the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court.” Id.
The trial court determined that Appellant was guilty under the theory of accomplice liability. In discussing accomplice liability, this Court has summarized:
“[T]wo prongs must be satisfied for a person to be labeled an ‘accomplice.’ First, there must be evidence that the person intended to aid or promote the underlying offense. Second, there must be evidence that the person actively participated in the crime by soliciting, aiding, or agreeing to aid the principal.
Further, a person cannot be an accomplice simply based on evidence that he knew about the crime or was present at the crime scene. There must be some additional evidence that the person intended to aid in the commission of the underlying
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crime, and then aided or attempted to aid.” Commonwealth v.
Rega, 593 Pa. 659, 933 A.2d 997, 1015 (2007) (citations omitted). For purposes of accomplice liability, “[n]o agreement is required, only aid.” Commonwealth v. Kimbrough, 872 A.2d 1244, 1251 (Pa.Super.2005). “With regard to the amount of aid, it need not be substantial so long as it was offered to the principal to assist him in committing or attempting to commit the crime.” Commonwealth v. Murphy, 577 Pa. 275, 844 A.2d 1228, 1234 (2004). “[T]he least degree of assistance in committing the offense is adequate to sustain the finding of responsibility as an accomplice.” Commonwealth v. Gladden, 445 Pa.Super. 434, 665 A.2d 1201, 1209 (1995).
Commonwealth v. Adams, 39 A.3d 310, 324 (Pa. Super. 2012), aff'd, 104 A.3d 511 (Pa. 2014).
Here, the evidence supports the trial court’s determination that Appellant was liable as an accomplice. The trial court stated:
Ms. Negron and Mr. Toler credibly testified that Appellant and his two companions, Boo and Michael, forced their way into Ms. Davilla’s apartment. Once inside the premises, Appellant’s one fellow intruder, Boo, wielded his knife and search for a woman whom he said he would kill, and Appellant’s other fellow intruder, Michael, followed Boo with a baseball bat in hand.
Appellant meanwhile stood guard by the door and intimidated anyone from leaving the apartment. While rampaging through the apartment, Boo punched Mr. Negron and attempted to stab him with a knife, but was thwarted in his stabbing attempt by Mr. Negron’s sister who pushed Boo’s arm away. When the three intruders exited the apartment, Appellant took the deadly weapon (i.e., the knife) from his companion and discarded it next to the building’s exterior steps.
Trial Court Opinion, 4/19/16/ at 11.
Upon review, we discern no error by the trial court relative to Appellant’s sufficiency and weight claims. The trial court explained that its convictions were supported by both the sufficiency and weight of the
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evidence. Our review convinces us that the Honorable Susan I. Schulman, sitting as the trial court, has provided a detailed and comprehensive analysis, with appropriate reference to both the record and prevailing legal authority, in finding that Appellant’s sufficiency and weight claims are without merit, and concluding that the “evidence proves that Appellant and his companions forcibly entered an apartment with a contemporaneous intent to commit crimes therein.” Tr. Ct. Op. at 14. Accordingly, we adopt Judge Schulman’s opinion as our own in affirming Appellant’s judgment of sentence.
Judgment of sentence affirmed. The parties shall attach a copy of the trial court’s April 19, 2016 opinion to any future filings.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/16/2017
Circulated 04/18/2017 03:13 PM
1 -~
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY . FIRST JUDICIAL DISTRICT OF PENNSYL VANTA CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0000746-2015
vs. CP-51-CR,0000746.;>015Comm v Gonzalez Jose Opimor,, 2653 EDA 2015
F~LED
JOSE GONZALEZ.
I I II
II I l II I II I I l 11111111 7435273161
APR 1 9 2016
OPINION Crlmma1 Appeals Unit First Judicial District of PA SCHULMAN, S.I., J.
Appellant appeals his convictions and sentence. This Court submits the following Opinion pursuant to Pa. R.A.P. No. 1925 arid recommends that AppTllant's appeal be denied.
PROCEDURAL HISTORY
On May 27, 2015, this Court held. a bench trial and found Appellant guilty of three counts of aggravated assault ( 18 Pa. C.S.A. § 2702); two counts of conspiracy to commit aggravated assault ( 18 Pa. C.S.A. § 903); five counts of simple assault (18 Pa. C.S.A. § 2701 ); two counts of conspiracy to commit simple assault (18 Pa. C.S.A. § 903); five couCltS of terroristic threats with intent to terrorize another (18 Pa. C.S.A. § 2706); five counts of recklessly endangering another person ( 18 Pa. C.S,A. § 2705); one count of burglary (18 Pa. C.S.A. \§ 3502(a)(l )); one count of conspiracy to commit burglary ( 18 Pa. C.S.A. § 903); and one count'of criminal trespass ( 18 Pa.
C.S.A. §3503(a)(1)(ii)).
On August 3, 2015, following a sentencing hearing, this Court sentenced Appellant to a term of ten (10) to twenty (20) years' incarceration on one· count of aggravated assault, a
concurrent term of ten (10) to twenty (20) years' incarceration on one count of conspiracy to ;
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commit aggravated assault, and a concurrent term of ten ( 10) to twenty (20) years' incarceration
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on one count of burglary. This Court imposed no sentence on any of the remaining verdicts.
Appellant filed a post-sentence motion on August 10, 2015, which this Court denied by order entered on August 14, 2015. Appellant subsequently filed a notice of appeal on August 26, 2015, and a Statement of Matters Complained of on Appeal on January 11, 2016.
RELEVANT FACTS The Commonwealth identified the following five (5) individuals as the victims in this case: Lisette Negron ("Ms. Negron"), Leslie Negron ("Mr. Negron"), Denice Davilla ("Ms.
Davilla");
. .
Steven Rosario, and Lawrence Toler ("Mr. Toler"). Ms. Negron and Mr. Negron are
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sister and brother, Ms. Davilla is Ms. Negron's niece, Steven Rosario is Ms. Negron's 13-year-
old son, arid Mr. Toler is the father of Ms. Davilla's child (or children). At trial, the Commonwealth presented only Ms. Negron and Mr. Toler as witnesses.
The trial testimony established that on December 30, 2014, Ms. Negron, her minor son Steven, her daughter Stephanie, her grandsonAlden, a two-year-oldichild named Dante, Mr. Toler, and Mr. Negron were inside the l th floor apartment of Ms. Davilla located at 2443 North l l 1h Street in the city and county of Philadelphia, Pennsylvania. Ms; Negron had been living with Ms. Davilla for the previous four (4) months and Mr. Toler had been living in the apartment about one{l) year: (N.T., 5/27/15 pgs. 12-16, 52). Around 11 :30 P·f·• Ms. Negron heard a
knock on the apartment's door and looked through the peephole. Sile
j
sawan individual
.
called
"Boo" standing outside the apartment and went to inform Ms. Davilia ofBoo's presence. Mr. Toler meanwhile "cracked" open the door about two (2) inches to see who was there, and Appellant, Boo, and another male named Michael "just bull-rushed ~n." Boo carried a knife and all three men forcibly pushed open the door as Mr. Toler resisted. (Id., pgs. 16-20, 49-50, 55).
"[Floaming at the mouth" and wielding a knife, Boo "startled] to curse and yell" and demanded to know the location of a woman named "Latisha." Boo said he was "going to kill
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,.
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that bitch." (Id., pgs. 16-20). While Boo threatened to kill Latisha, his one fellow intruder,
Michael, picked up a baseball bat that was lying inside the apartment and his other fellow intruder, Appellant, stood by the door. Mr. Toler testified that because Appellant stood by the door bearing a "look like don't come near the door," he did not feel free to leave:
I mean, you can tell when somebody got a threatening look. If I were to approach the door, either.lget hitwith a baseball bat or I get jumped.
Mr. Toler feared leaving the apartment ''[b]ecause [he] didn't feel like getting hit with a bat ... [and] didn't want nothing to happen to [his] family members inside." (Id., pgs. 49-50).
Ms. Negron similarly testified that Appellant "stood right in front o~the door" giving !
"everybody a certain look, like you not passing me by." Appellant did not say anything or touch
anybody, but he just "look[ed] at everybody like mean" and Ms. Negron did not "at all" believe he would permit anyone to freely leave the apartment. (Id., pgs. 19-/20,41 ).
Although Latisha fortunately was not present in the apartment, Boo continued
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"waivling]" his knife and threatening "to kill" her and demanded the inhabitants to disclose her '
location. Ms. Davilla, who was pregnant, had by now exited her beqroorn and encountered Boo
in the apartment's hallway .. With his knife in one hand, Boo "gripped" the neck portion of Ms.
Davilla's shirt with his other hand and pressed her against the wall While bellowing "where the fuck is that bitch?" (Id., pgs. 22~23). After releasing Ms. Davilla, B90 proceeded into her
bedroom where Mr. Negron and the two-year-old Dante were located. Ms. Negron followed Boo ' .
into the room and grabbed the toddler from her brother, upon which Boo wielded his knife over · · Mr. Negron's head and punched him several times in the face. 1 Boo then thrust his knife downward and attempted to stab Mr. Negron, but Ms. Negron pushed Boo's arm "upwards" and
I Mr. Negron was bleeding from the mouth as a result of being struck by Boo. (Id., pg. 53).
·, away from her brother. Turning to Ms. Negron, Boo raised his knife toward her and said "don't fucking touch me." (Id., pgs. 25-28).
Boo continued his rampageintothe adjacent bedroom where:Ms.Negron's 13-year-old ;
son (Steven) and grandson (Aiden) were located. Boo stuck his knife just two inches from Steven's neck and said, "where the fuck is she? Where the fuck is she?" Ms. Negron again intervened and pulled Boo away from her son, prompting Boo to turn around and "stab" a closet door. (lg., pgs. zg.:.Jo).
Mr. Toler ultimately persuaded the three intruders to leave the apartment by telling them
he knew Latisha's location and would take them to her. Mr. Toler testified he did not actually .
know the whereabouts . .
of Latisha but "had to get [the intruders] out of there because [his]
f
grandson was there and other kids. were there." With Boo still brandishing his kni~e and Michael still carrying the baseball bat, Mr. Toler led the intruders out of the apartment and into an elevator.2 Once outside the apartment building, Appellant took Boots knife and threw it next to the building's exterior steps. (Id., pgs. 50-52).
The knife was introduced at trial as Commonwealth Exhibit •:•cs," and the parties stipulated that a Philadelphia Police Officer (Officer Whittaker) recovered the knife and placed it
on a property receipt. (Id., pgs. 56-57).
Based on the above testimony and evidence, this Courtfound Appellant guilty of three counts ofaggravated assault (18 Pa. C.S.A. § 2702); two counts ofconspiracy to commit aggravated assaultfl S Pa. C.S.A. § 903); five counts of simple assault (18 Pa. C.S.A. § 2701);
two counts of conspiracy to commit simple assault (18 Pa. C.S.A. § ?03); five counts of terroristic threats with intent to terrorize another ( 18 Pa. C.S.A. § 2796); five counts of recklessly
2 While the men descended in the elevator, Boo "constantly" spit in Mr. Taler's face. (Id., pg.
51 ).
.
endangering another person ( 18 Pa. C.S.A. § 2705); one count of burglary ( 18 Pa. C.S.A. §
3502(a)(l )); one count of conspiracy to commit burglary(] 8 Pa. C.S.A. § 903); and one count of criminal trespass (18 Pa. C.S.A. § 3503(a)(l )(ii)). (Id., pgs. 63-64)J DISCUSSION Appellant raises the following issues in his Statement of Matters Complained of on Appeal:
"l. The evidence was insufficient as a matter of law to convict [Appellant] of all crimes charged as set forth in the bill of information because competent evidence of record did not establish beyond a reasonable doubt that defendant committed those crimes where:
;
a. the witness, Lisette Negron, failed to testify that the [Appellant] acted in a manner to support a conviction on any of the charges or that the [Appellant} acted as part of a conspiracy in the incident; ·
b. thewitness, Lawrence Tollcr[sic], failed to testify that the [Appellant) acted in a manner to support a conviction on any of the charges or that the [Ap~ellantJ acted as part of a conspiracy in the Incident;
'
c. the witnesseslsfc] testimony contradicted their own prior statements to police and in court testimony raising credibility concerns and undermines the reliability of said testimony; '
d. the witnessesjsfc] testimony contradicted each other's in court testimony raising credibility concerns and undermines the reliability of said testimony;
2. The verdict was against the weight of the evidence: and is so contrary to the evidence that it shocks one's sense of justice due t~ the following:
a. the witnessesjsfc] testimony contradicted their own prior statements to police and in court testimony raising credibility concerns and undermines the reliability of said testimony; ·
b. thewitnessesjsfc] testimony contradicted each other's in court testimony raising credibility concerns and undermines the reliability of said testimony;
3. the Court erred in denying the [Appellant's] post-sentence motion pursuant to Pa. R. Crim. P. 720;
3 This Court found Appellant not guilty of possessing an instrument pf a crime and endangering the welfareof a child, (Id., pgs. 63·64). :
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4. the sentence imposed by the Court was harsh and !excessive under the circumstances."
This Court will address Appellant's claims in the above order.
1-2. Appellant's challenges to the sufficiency and weight of the evidence are waived.
"[WJhen challenging the sufficiency [ or weight) of the evidence on appeal, the Appellant's 1925 statement must specify the element or elements up,on which the evidence was
insufficient in order to preserve the issue for appeal." Commonweal~h v. Gibbs, 981 A.2d 274, ;
281 (Pa. Super. 2009) (citing Commonwealth v. Williams, 959A.2d: 1252, 1257 (Pa. Super.
2008)). "Such specificity is of particular importance in cases where, 'as here, the Appellant was, convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Id. If an appellant files a 1925(b) statement that lacks
such specificity, he waives his challenges to the sufficiency and weight of the evidence. Gibbs, '
981 A.2d 274, 281; :Williams, 959 A.2d 1252, 1257; Commonwealth v. Garland, 63 A.3d 339,
344 (Pa. Super. 2013); Commonwealth v. Veon, 109 A.3d 754, 775 (Pa. Super. 2015);
' .
'
Commonwealth v; Freeman, 128 A.3dl23i, 1248-1249 (Pa. Super. 2015); Commonwealth v.
Seibert, 799 A.2d 54, 62 (Pa. Super. 2002). Even if a trial court "address] es] the topic of sufficiency in its opinion ... this is of no moment to [the Superior Court's] analysis because [the
Court] appl[ies] Pa. R.A.P. 1925(b) in a predictable, uniform fashion, not in a selective manner <
dependent on an appellee's argument or a trial court's choice to address an unpreserved claim."
. 1
Gibbs, 981 A.2d 274, 281.
Appellant generically alleges that the testimony of Ms. Negron and Mr. Toler was insufficient to sustain the verdicts. Appellant does not specifically reference any of the25
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counts of the 9 crimes of which he was convicted - i.e., the 3 counts: of aggravated assault, 2
counts of conspiracy to commit aggravated assault, 5 counts of simple assault, 2 counts of . . j
conspiracy to commit simple assault, 5 counts of terroristic threats, 5 counts of recklessly endangering another person, 1 count of burglary, I count of conspiracy to commit burglary, and
1 count of criminal trespass. Nor does Appellant specifically reference any element of any of these crimes; let alone state why the evidence does not sustain a finding of a single element of a single crime. Because Appellant's superficial I 925(b) statement is galaxies away from the requisite specificity mandated by Pennsylvania law, his challenges to the sufficiency and weight
of the evidence are waived. Gibbs, 981 A.2d 274, 281; Williams, 959 A.2d 1252, 1257; Garland,
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63 A.3d 339, 344;Veon, 109 A.3d 754, 775; Freeman, 128 A.3d 12?1, 1248~1249; Seibert, 799
A.2d 54, 62.
To the extent Appellant's perfunctory 1925(b) statement can'be construed as specifically challenging his convictions on the charges for which Appellant actu~lly was sentenced - i.e.,
first-degree aggravated assault, conspiracy to commit first-degree aggravated assault, and first-
'
degree burglary - his appeal is rneritless.
a. Sufficiency I Weight Standard
"The standard ... when reviewing the sufficiency of the evidence is whether viewing all !
I
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."
Gibbs, 981 A.2d 274, 280-281 (citations omitted here). "[TJhe factsand circumstances
established by the Commonwealth need not preclude every possibility of innocence." Id. "Any . i doubts regarding a-defendant's guilt may be resolved by the fact-fin?er unless the evidence is so
weak and inconclusive that as a matter oflaw no probability of fact may be drawn from the
8
- combined circumstances." Id. "The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence."
Id. "Moreover, in applying the above test, the entire record must beevaluated and all evidence . '
'
actually received must be considered." Id. "Finally, the trier of fact ~vhile passing upon the
credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence." Id.
In considering a challenge to the weight of the evidence; an appellant "concedes that the evidence was sufficient to sustain the verdict." Commonwealth v. Manley, 985 A.2d 256, 261 (Pa. Super. 2009)(emphasis in original). "The weight of the evidence is a matter exclusively for the finder of fact.who is free to believe all, part, or none of the evidence and to determine the credibility ofthe witnesses." Commonwealth v. Gonzales, l09A.3q 711, 723 (Pa. Super. 2015). "A new trialis not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of the witnesses." Id. "Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the facts is to deny
1
justice." Id. The appellate court's "purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the ... verdict did not shock its conscience." Id. "Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence." Id. "An appellate court may not reverse a verdict unless it is so contrary to the evidence as to shock one's sense of justice." Id.
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; ..
b. Accomplice Liability
"It is well-established ... that a defendant, who was not a principal actor in committing the crime, may nevertheless be liable for the crime if he was an accomplice of a principal actor."
Commonwealth v. Murphy, 577 Pa. 275;285-286 (2004). "[T]he actor and his accomplice share equal responsibility for commission of a criminal act" Id. (citing Cdmmonwealth v. Bradley, 481 Pa. 223 (1978)). "A person is deemed an accomplice of a principal if with the intent of promoting or facilitating the commission of the offense, he: (i) solicited the principal to commit it; or (ii) aid[ ed] or agree[ d] or attempt[ ed] to aid such other person in planning or committing it." Id.
"Accordingly, two prongs must be satisfied for a defendant to be found guilty as an
'accomplice."' Murphy, 577 Pa. 275, 286. "First, there must be evidence ,
that the defendant
intended to aid or promote the underlying offense." Id. "Second, there must be evidence that the defendant actively participated in the crime by soliciting, aiding, or ~greeing to aid the principal." ld. "[A] defendant's association with the perpetrators of a crime, his presence at the scene of the crime, or his knowledge that a crime is being committed are not sufficient to establish his complicity in that crime." Commonwealth v. Shank, 88,3 A.2d 658, 666 (Pa. Super.
2005). "There must be some additional evidence that the defendant intended to aid in the commission of the underlying crime, and then did or attempted to do' so." Id. "Such aid need not be substantial, however, and will be sufficient to establish the requisite shared intent so long as it was offered to the principal to assist him in committing or attempting to commit the crime." Id.
Moreover. "an explicit or formal agreement .
to commit crimes can seldom, :
if ever, be proved and
it need not be, for proof of a criminal partnership .
is almost invariablyI extracted from .
the
circumstances that attend its activities." Commonwealth v. Kimbrough, 872 A.2d 1244, 1253-
1:
1254 (Pa. Super. 2005). "Whether an accomplice possesses the same intent ... as his co-
conspirator may be inferred from Words, conduct, the attendant circumstances .... and all . . ! '
reasonable inferences that follow from them." Id. "[T)he least degree of concertor collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice." Commonwealth v. Gladden, 665 A.2d 1201, 1208 (Par Super. 1995) (citations omitted here).
(i) Aggravated Assault ''A person may be convicted of aggravated assault graded as a first degree felony 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." Commonwealth v. Matthew, 589 Pa. 487, 491 (2006) (quoting 18 Pa. C.S. § 2702(a)(l)). '"Serious bodily injury' means 'bodily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement. or protracted loss or impairment of the
r
function of any bodily member or organ." Id. (quoting 18 Pa. C.S. §: 2301). "A person commits an attempt when, with intent to commit a specific crime, he does art)'. act which constitutes a substantial step toward the commission of that crime." [d. (quoting! 8 Pa. C.S. § 90l(a)). "An attempt under§ 2702(a)(l}requires a showing of some act, albeit not one causing serious bodily
injury, accompanied by an intentto inflict serious bodily injury." I& "A person acts intentionally with respect to a material element of an offense when it is his
conscious object to engage in conduct of that nature or to cause such; a result." M.atthew, 589 Pa. 487, 492 (quoting 18 Pa. C.S. § 302(b)(l)(i)). "As intent is a subjecfive frame of mind, it is of necessity difficult ofdirect proof." Id. "The intent to cause serious bodily injury may be proven by direct or circumstantial evidence." Id.
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Pennsylvania courts utilize "a totality of circumstances test, to be used on a case-by-case basis, to determine whether a defendant possessed the intent to intlidt serious bodily injury."
Matthew, 589 Pa. 487, 492 (citing Commonwealth v. Alexander, 38~ A.2d 887, 889-890 (Pa.
1978)). Factors "considered in determining whether the intent to inflict serious bodily injury was present" include "evidence of a significant difference in size or strength between the defendant and the victim, any restraint on the defendant preventing him from escalating the attack, the defendant's use ofa weapon or other implement to aid his attack, and his statements before,
during, or after the attack which might indicate his intent to inflict injury." Id. ___ -------
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Ms. Negron and Mr. Toler credibly testified that Appellant and his two companions, Boo
and Michael, forced their way into Ms. Davilla's apartment. Once inside the premises, '
Appellant's one fellow intruder, Boo, wielded his knife and searched for a woman whom he said
he would kill, and Appellant's other fellow intruder, Michael, followed Boo with a baseball bat
in hand. Appellan~ meanwhile stood guard by the door and intimidated anyone from leaving the . .
apartment. While rampaging through the apartment, Boo punched Mr. Negron and attempted to
stab him with a knife, but was thwarted in his stabbing attempt by Mr. Negron's sister who pushed Boo's arm, away. When the three intruders exited the apartment, Appellant took the deadly weapon (i.e., the knife) from his companion and discarded it rext to the building's exterior steps.
The above evidence firmly supports that Boo attempted to stab Mr. Negron and therefore had "attemptled] to cause serious bodily injury to another ... knowi~gly or recklessly under circumstances manifesting extreme indifference to the value ofhuman life." Quoting 18 Pa. C.S.
§ 2702(a)(1). The above evidence further supports that Appellant aided and intended to aid Boo
I
in committing the aggravated assault by helping Boo break into the apartment, guarding the
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apartment door to prevent the inhabitants from leaving, and then discarding the deadly weapon with which Boo attempted to stab Mr. Negron. This evidence - deemed credible by this Court -- soundly sustains Appellant's conviction of aggravated assault as an accomplice.
(ii) Conspiracy to commit Aggravated Assault "To convict a defendant of conspiracy, the trier of fact must find that: ( 1) the defendant intended to commit or aid in the commission of the criminal act; (2) the defendant entered into an agreement with another (a 'co-conspirator') to engage in the crimr; and (3) the defendant or one or more of the other co-conspirators committed an overt act in furtherance of the agreed upon crime." Murphy, 577 Pa. 275, 292 (citing 18 Pa. C.S. § 903). "The essence of a criminal conspiracy, which is what distinguishes this crime from accomplice liability, is the agreement made between the co-conspirators." Id. (citations omitted here). "A~ with accomplice liability, mere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient to establish that a defendant was part of a conspiratorial agreement to commit the crime." Id. "There needs to be some additional proof that the defendant intended to
commit the crime along with his co-conspirator." Id. "Direct evidence of the defendant's !
criminal intent or the conspiratorial agreement, however, is rarely av,ailablc." Id.
'
"Consequently, the defendant's intent as well as the agreement is almost always proven through
circumstantial evidence, such as by the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators." Id. "Once the trier of fact finds that there was an agreement and the defendant intentionally entered into the agreement, that defendant may be liable for the overt acts committed in furtherance of the conspiracy regardless of which co- conspirator committed the act." Id.
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.. M
Ms. Negron's and Mr. Toler's credible testimony established that Appellant and his two companions went to Ms. Davilla's apartment and forced their way through the front door. Mr.
Toler testified that all three men forced open the door as Mr. Toler resisted them. As soon as the men barged into the apartment, Appellant's fellow intruder, Boo, who was brandishing a knife, advised he was looking for a woman whom he sought to kill. While Boo searched the premises, he punched and attempted tostab Mr. Negron but was thwarted in his stabbing attempt by Mr.
Negron's sister, Ms'. Negron, who pushed Boo's knife-wielding arm away from her brother.
After Boo attempted to stab Mr. Negron and stuck his knife within inches of a minor child's
neck, Appellant and , . his companions left the apartment and Appellant discarded Boo's deadly '
weapon. This evidence overwhelmingly establishes that Appellant and his companions conspired at the very least to commit aggravated assault, to say nothing of murder.
(iii) Burglary
18 Pa. C.S.A. § 3502 defines the crime of burglary and in relevant part provides:
!
(ajOffense defined. -A person commits the offense ofhur~lary if,with the intent to commit a crime therein, the person: '
(I) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present. ...
See 18 Pa. C.S.A. § 3502(a).
To sustain a conviction of burglary, "the Commonwealth must prove beyond a reasonable doubt the following three elements: (1) entry of a building or occupied structure by a defendant;
(2) with the contemporaneous intent on thepart of the defendant of committing a crime therein;
(3) at a time when.the premises are not opened to the public and the ;defendant was not then
licensed or privileged·. to enter." Comrnonwealth v. Gonzalez, 443 A..2d , .
301, 304-305 (Pa.
Super. 1982). ''[A] defendant commits first degree burglary if the location illegally entered: (])
- - .,.. .,., .
is adapted for overnight accommodation but no individual is present; (2) is not adopted for
overnight accommodation but an individual is present; or (3) is adapted for overnight ;
I
accommodation and an individual is present." Commonwealth v. Waters, 988 A2d 681, 683 (Pa. Super. 2009) (citations omitted here). "The Commonwealth may prove its case by circumstantial evidence, and the specific intent to commit a crime necessary to establish the
second element of. burglary may thus be found in the defendant's words '
or conduct, or from the
attendant circumstances together with all reasonable inferences therefrom." Gonzalez, 443 A.2d 301, 304-305. "[A] factfinder may conclude beyond a reasonable doubt that when one enters a building by force, he did so with the intent to commit a crime therein." Commonwealth v.
Tingle, 419 A.2d 6, 9 (Pa. Super. 1980) (citations omitted here).
As noted, Ms. Negron's and Mr.Toler's credible testimony established that Appellant and his two companions, Boo and Michael, forced their way into Ms. Davilla' s apartment.
Appellant's one fellow intruder, Boo, wielded his knife and advised he was searching for a woman whom he sought to kill, and Appellant's other fellow intruder, Michael, followed Boo with a baseball bat in hand. Appellant meanwhile stood guard by the door and intimidated
anyone from leaving the apartment. While rampaging through the apartment, Boo punched Mr.
I
Negron and attempted to stab him with a knife, but was thwarted in his stabbing attempt by Mr.
Negron's sister who pushed Boo's arm away. When the three intruders exited the apartment, Appellant took the deadly weapon from his companion and discarded it next to the building's exterior steps.
This evidence proves that Appellant and his companions forcibly entered an apartment with a contemporaneous intent to commit crimes therein, and thus s~uarely sustains Appellant's conviction of first-degree burglary.
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15
. .
3. Appellant's post-sentence motion
Appellant's post-sentence motion contains the same vague and undeveloped statements asserted in Appellant's 1925(b) statement, and thus his claim of error is waived for the reasons
stated above. To the extent Appellant's perfunctory motion can be construed as specifically ' .
challenging his convictions on the charges for which Appellant actually was sentenced - i.e., aggravated assault, conspiracy to commit aggravated assault, and burglary - his motion also was meritless for the same reasons stated above.
4. Whether this Court's sentence "was harsh and excessive under the circumstances."
Appellant's convictions of aggravated assault and conspiracy to commit aggravated
assault were first-degree felonies and "crime[s] of violence" under 42 Pa. C.S.A. § 9714(g).
i
Appellant's conviction of burglary under 18 Pa. C.S.A. § 3502(a)(l): also was a first-degree felony and a "crime of violence" under Section 9714(g).4 Appellantlalready had a prior first-
degree felony conviction for aggravated assault (N.T., 8/3/15, pgs. 6~7), and thus his instant
convictions of "crimes of violence" invoked the mandatory sentencing scheme of Section
I
9714(a) and(a.l), which provide:
(a) Mandatory sentence. -
(1) Any person who is convicted in any court of this Commonwealth of a crime of a crime of violence shall, if at the time of the commission ofthe current offense the person had previously been convicted ofa crime of violence, be sentenced to a minimum sentence ofat least ten years oftotal confinement, notwithstanding any other provision of this title or other statute to the contrary ....
4 Section 9714(g) provides, in relevant part, as follows:
(g) Definition. -As used in this section, the term 'crime of violence' means ...
aggravated assault as defined in 18 Pa. C.S. § 2702(a)(1) or (2) (relating to aggravated assault) ... burglary as defined in 18 Pa. C.S. § 3502(a)(l) (relating to burglary) ... or ...
criminal conspiracy ... to commit ... any of the offenses listed above .... " See 42 Pa.
C.S.A. § 99'14(g). .
16
. . ~
(a.I) Mandatory maximum. - An offender sentenced to a mandatory minimum sentence under this section shall be sentenced to a maximum sentence I equal to twice the mandatory minimum sentence ....
See 42 Pa. C.S.A. § 97 l 4(a) and (a.1 ).
Pursuant to Section 9714, this Court was required to impose ten ( I 0) year minimum sentences for Appellant's "second strike" convictions of vcrime[s] of violence," along with maximum sentences of twice the mandatory minimum terms. This Court's sentences therefore were neither "harsh" nor "excessive under the circumstances."
Furthermore, to the extent this Court was permitted discretion in sentencing, its exercise thereof was lenient not harsh. "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." Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super, 2015) (citations omitted here). "In this context, an abuse of discretion is not shown merely by an error in judgment." Id.
"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.'' Id. "An abuse of discretion may not
I
'
be found merely because an appellate court might have reached a different conclusion."
Commonwealth v. Perry, 612 Pa. 557, 565 (2011). "In determining whether a sentence is manifestly excessive, the appellate court must give great weight to t~e sentencing judge's
discretion, as he or she is in the best position to measure factors such as the nature of the crime, . .. . ; I
the defendant's character, and the defendant's display of remorse, defiance, or indifference."
Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super. 1998).
. '"' "
'Where pre-sentence reports exist," appellate courts "presume that the sentencing judge
was aware of relevantinformation regarding the defendant's character and weighed those
considerations along with mitigating statutory factors." Commonwealth v. Devers, 519 Pa. 88, 11 A
101-102 (1988). pre-sentence report constitutes the record and speaks for itself." Id. at 102.
"[S]entencers are under no compulsion to employ checklists or any extended or 'systematic definitions of their punishment procedure." Id. "Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed." Id. "This is particularly true ...
in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there [courts] will presume also that the weighing process took place in a meaningful fashion. !!Id.; see also Commonwealth v., Best, l 20 A.Jd 329, 348-349 (Pa. Super. 2015) (quoting Devers, supra).
Prior to imposing sentence, this Court closely examined Appellants presentence report, '
which reveals a criminal history that is atrocious. Appellant began pis protracted criminal career
as a juvenile, with.six (6) arrests,four (4) adjudications, and five (5) commitments, and his
criminal behavior continued undiminished throughout adulthood. His juvenile and adult record . '
include convictions for aggravated assault, firearms offenses, terroristic threats, and violations of '
probation/parole. '.(N.T., 8/3/15, pgs. 8-15). Given Appellants penchant for crime and rank disregard for his fellow citizens, he is fortunate this Court imposed fOncurrent rather than consecutive sentences. 5
5
It should be noted that Appellant, at his sentencing hearing, requested a ten (IO) to twenty (20)
year sentence. (N.T., 8/3/15, pgs. 9-10).
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