Com. v. Lorenzo-Mercedes, Y.

• Court: Superior Court of Pennsylvania
• Decided: April 15, 2021
• Docket: 1057 MDA 2020
• Status: Unpublished

Opinion

J-S08032-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : YEURY LORENZO-MERCEDES : : Appellant : No. 1057 MDA 2020

Appeal from the Judgment of Sentence Entered June 17, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005570-2016

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 15, 2021

Appellant, Yeury Lorenzo-Mercedes, appeals from the judgment of

sentence entered in the Court of Common Pleas of Dauphin County after a

jury found him guilty of aggravated assault.1 Sentenced to three to ten years’

imprisonment, he contends the evidence neither disproved that he acted in

self-defense during his conflict with the alleged victim nor proved that he

caused or intended to cause serious bodily injury. After careful review, we

affirm.

The following evidence was adduced at trial: Sebastian Roman, the

victim in this case, testified that he met Appellant in 2013 and eventually

formed a disagreement with Appellant’s friend “Jordy,” after Jordy’s ex-

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 2702(a)(1). J-S08032-21

girlfriend began to date Mr. Roman. N.T., 6/10/19, at 52-54. About one week

prior to the evening in question, Mr. Roman was a patron at Sawyers bar in

Harrisburg when Jordy spotted him, antagonized him, and spit in his face while

talking too close. Roman pushed Jordy back, but nothing further materialized

between the men that evening. N.T. at 54-55.

One week later, on August 6, 2016, Roman again went to Sawyers,

where he consumed two or three beers by approximately 2:00 a.m., at which

time he noticed Jordy in the bar. As Roman was leaving, he saw Appellant

standing on Locust Street wearing a light-colored shirt. N.T. at 56. Appellant

motioned to Roman to come over.

As Roman approached, someone from behind hit him sharply in the back

of his head, knocking off his eyeglasses. He testified that without his glasses

he could see only colors and outlines of shapes. As he searched for his

glasses, he estimated three or four other people surrounded him in the alley

and started to hit him, including Appellant, whom Roman recognized from the

color of his shirt. N.T. at 56-58.

Appellant punched and kicked Mr. Roman multiple times. N.T. 59, 81.

When asked if he ever struck Appellant, Roman answered that he managed to

hit Appellant only once in his attempt to defend himself. Roman recalled

eventually collapsing and, after that, being put on a stretcher and taken to

the hospital in an ambulance. N.T. at 59.

Officer Daril Foose of the Harrisburg City Police Department was the van

driver for the patrol platoon that evening and was dispatched to a fight on

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Locust Street at approximately 2:00 a.m. on August 6, 2016. N.T. at 83-84.

Initially, she received a follow-up radio report that the fight had dispersed,

but as her van was stopped at a red light at Second and Locust Streets, she

noticed the assault in question unfolding to her right. N.T. at 87-89.

Officer Foose testified that there were four or five individuals near

Roman. N.T. at 89. A man, whom she identified as Appellant, walked towards

Roman and, after a brief exchange of words, punched him hard in the face.

Id. Officer Foose radioed that there was a fight, and she exited the van. N.T.

at 90. She witnessed Appellant strike Roman again with a closed fist punch

causing him to drop to the ground. Id. According to Officer Foose, Roman

did not have his hands up when Appellant landed the blows. N.T. at 96.

As Roman lay motionless, Appellant kicked him in the head at least three

times. Officer Foose described Appellant’s method of kicking as “curb-

stomping,” whereby Appellant raised his leg and “aggressively” stomped down

at a high rate of speed upon Roman’s head. N.T. at 90-91. As the officer

raced toward Appellant to intervene, she could see Roman was entirely unable

to defend himself and bleeding profusely; she expounded there was “a ton of

blood” that one would expect to find at a “homicide scene.” N.T. at 91.

Appellant was still stomping Roman when Officer Foose tackled him into a

garbage can. N.T. at 91-92.

Officer John Rosinski of the Harrisburg City Police Department, the

primary investigator for this case, testified that he was dispatched on August

6, 2016, at approximately 2:00 a.m. to an altercation happening on Locust

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Street. N.T. at 103. The dispatch followed a 911 call, where the caller

reported there was someone lying on the ground. When Officer Rosinski first

arrived near the designated area on Locust Street, directly behind Officer

Foose's van, he did not see anything happening.

While he was sitting in traffic, he heard Officer Foose address him by his

nickname, stating, “Riz, Riz, to the right, to the right.” N.T. at 106. He

witnessed her jump from the van and, upon looking to his right, observed the

assault in progress. Specifically, Officer Rosinski testified that he saw

Appellant holding onto a railing while forcefully kicking Roman, who was not

moving. Id. Appellant continued kicking Roman until Officer Foose tackled

him. N.T. at 107. Officer Rosinski confirmed observing the large amount of

blood all over the ground and on Roman, whom Officer Rosinski believed was

dead. N.T. at 108. He noted Appellant, in contrast, appeared to have no

injuries except for a slight bruise on his lip. N.T. at 110.

Johanna Lorenzo, Appellant’s cousin, testified for the defense and stated

she was out with Appellant, his brothers, other cousins, and friends, including

Jordy, on the evening of August 6, 2016, to celebrate the birthday of

Appellant’s stepmother at the downtown club, “Level 2.” Shortly after 2:00

a.m., she had just left the club and was walking to her car when she witnessed

approximately seven people jump Appellant, some of whom were throwing

punches. N.T., 6/11/19, at 128-129. Appellant was punching in return, she

testified, in an effort to defend himself against this group. N.T. at 131. She

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ran back inside the club for help, but when she returned police were at the

scene.

On cross-examination, Ms. Lorenzo explained that she did not call for

emergency assistance when she witnessed her cousin being beaten by seven

men because she had no phone on her, nor did she ask if anyone else could

call for help because she became too scared. N.T. at 133-34. She admitted

that she never contacted the police or the District Attorney’s office in the

ensuing three years to report Appellant’s strictly defensive role in the fight.

N.T. at 136-37.

Fabiola Colon, Appellant’s girlfriend at the time in question, also testified

for the defense. According to Ms. Colon, she and a friend were stopped at a

red light on Second Street that evening when she saw Appellant walking

backwards from five or six men who were converging upon him. N.T. at 139.

Concerned that the men were ready to “jump” Appellant, Ms. Colon got out of

her car, but she turned back when one of the men warned her that if she

interfered, she would get hurt. N.T. at 142, 146. She claimed the group of

men started to attack Appellant, kicking and punching him everywhere as he

lay on the ground. N.T. at 141. As Appellant was getting up off the ground,

Ms. Colon noticed another man confront him and initiate a fight, which she

was able to observe until the two men went around the corner. N.T. at 137-

141.

On cross-examination, Ms. Colon explained that she did not call 9-1-1

in an attempt to assist Appellant because she lost her cellphone that evening.

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She, too, acknowledged that never in the three years between the time

charges were filed and trial was commenced did she approach authorities with

her exculpatory eyewitness account. N.T. at 146-149.

Ms. Colon’s testimony was further rebutted by the testimony of Officer

Abigail Roberts of the Harrisburg Police Department, who interviewed Ms.

Colon at the fight scene that same early morning. According to Officer

Roberts, Ms. Colon reported only that she had attempted to make Appellant

stop fighting, and she never alleged Appellant had been attacked by a group

of men. N.T. at 159-160, 164.

Mr. Roman testified as to his numerous injuries which required stitches

in the left side of his head, nose, inside his lips, his ear lobe, and the top of

his ear. He also suffered brush burns on the left side of his head, arms, and

hands. N.T., 6/10/21, at 60, 64. His driver’s license photo, which was taken

twelve days after his injuries on August 18, 2016, was admitted at trial to

show that the stitches were still on his nose at that time. N.T. at 63.

Roman claimed that his injuries affected his life in many ways. He could

not sleep on the injured side of his head for months, and his ear was still

sensitive to the cold and wind. His eye was closed for a couple of weeks due

to a blood clot, the occurrence of which negatively affected his vision for nearly

one year afterward. Pain from the hairline fracture in his jaw prevented him

from eating solid food for weeks and has continued to occur whenever he bites

down hard. His broken nose caused long-term breathing issues requiring a

future surgery, and the hematoma on his head has caused chronic problems

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with balance, equilibrium, lightheadedness, dizziness, and sensitivity to light.

Roman explained that he had to participate in physical therapy four days a

week for four months. N.T. at 63-71.

After closing arguments, the trial court instructed the jury, in relevant

part, that in order to find that the Appellant attempted to cause serious bodily

injury, it first must find he engaged in conduct that constituted a substantial

step towards causing serious bodily injury to Mr. Roman; and second, that the

Appellant’s conduct in this regard was intentional. In other words, it was his

conscious object or purpose to cause such serious bodily injury. N.T. at 187.

The court further instructed that if the jury finds that the intervention of a

third party to stop the attack prevented serious bodily injury from occurring,

it may consider this as evidence as to whether Appellant’s substantial step

was done with the intent necessary to support a verdict of guilty. N.T. at 188.

The jury returned a verdict of guilty on the single count of aggravated

assault. In accordance with both this conviction and his prior guilty pleas to

the remaining counts of possession of a controlled substance, unlawful

possession of drug paraphernalia, and public drunkenness, the court

sentenced Appellant to three to ten years in prison. Appellant filed post-

sentence motions, which were denied, and he filed no direct appeal.

Subsequently, Appellant filed a petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, alleging trial counsel failed

to file a requested direct appeal on his behalf. Following a hearing on June

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16, 2020, the court reinstated Appellant’s direct appeal rights nunc pro tunc.

This counseled direct appeal followed.

Appellant presents the following questions for our consideration:

1. Was the evidence insufficient for the Commonwealth to establish beyond a reasonable doubt that the Appellant was not acting in self-defense during the alleged attack?

2. Was the evidence insufficient to show that the Appellant caused or intended to cause serious bodily injury to the alleged victim, as required to convict him of aggravated assault?

Appellant’s brief, at 7.

Appellant's issues challenge the sufficiency of the evidence to sustain

his convictions.

Our standard when reviewing the sufficiency of the evidence is whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict[-]winner, are sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact- finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of the evidence, the fact- finder is free to believe all, part, or none of the evidence.

Commonwealth v. Emler, 903 A.2d 1273, 1276 (Pa. Super. 2006) (citation

omitted).

A person is guilty of aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) when he “attempts to cause serious bodily injury to another ... under circumstances manifesting extreme indifference to the value of human life.”

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The Crimes Code defines bodily injury as “impairment of physical condition or substantial pain,” 18 Pa.C.S.A. § 2301, and serious bodily injury as “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.

“For aggravated assault purposes, an attempt is found where an accused who possesses the required, specific intent acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another.” Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (internal quotations omitted). Under the plain language of Sections 2702(a)(1), the Commonwealth need only show that the defendant attempted to cause serious bodily injury to another, not that serious bodily injury actually occurred. Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001).

...

“If a defendant introduces evidence of self-defense, the Commonwealth bears the burden of disproving the self-defense claim beyond a reasonable doubt.” Commonwealth v. Houser, 610 Pa. 264, 18 A.3d 1128, 1135 (2011). The use of force against a person is justified “when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force” by the other person. 18 Pa.C.S.A. § 505(a). A self-defense claim thus entails three elements: (1) the defendant reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (2) the defendant was free from fault in provoking the difficulty which culminated in his use of deadly force; and (3) the defendant did not violate any duty to retreat. Commonwealth v. Mouzon, 617 Pa. 527, 53 A.3d 738, 740 (2012).

Commonwealth v. Steele, 234 A.3d 840, 846 (Pa. Super. 2020).

Appellant first argues that the evidence was insufficient to sustain his

conviction because the Commonwealth failed to disprove, beyond a

reasonable doubt, that Appellant acted in self-defense. Specifically, he points

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to Roman’s own testimony that other persons initiated the physical assault

against Roman by punching him in the back of the head and attacking him as

a group, and that it was Roman who responded with force directed against

Appellant.

The Commonwealth counters that Appellant was one of three or four

men who effectuated a planned group attack that instantly overwhelmed

Roman, and he eventually acted alone in brutally knocking out Roman and

kicking him in the head as he lay incapacitated. The evidence, the

Commonwealth maintains, demonstrates that Appellant was never justified to

use such force, as he provoked the violence and had no reason to believe

Roman placed him in danger of incurring serious bodily injury.

As discussed, Appellant raised a self-defense defense through

testimonies claiming he was the victim of Roman’s aggressions. The

Commonwealth set out to disprove this defense beyond a reasonable doubt

mainly through the respective testimonies of Roman and Officer Foose.

According to Mr. Roman, he was the victim of an ambush-style attack

from behind as he was walking toward Appellant, who had summoned him as

if wanting to discuss something. He described how the initial blow to the back

of his head knocked his glasses off, leaving him unable to see anything other

than shapes and colors and incapable of defending himself. While he managed

to land a single punch against Appellant in his early defensive efforts, he was

quickly overtaken by Appellant and his cohorts.

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Officer Foose testified that when she and Officer Rosinski arrived, she

witnessed Appellant, on his own, engaging a beaten and defenseless Mr.

Roman, who stood motionless with his hands by his side. She observed

Appellant deliver two uncontested punches to Roman’s face that dropped him

to the ground, and she ran to Roman’s aid as Appellant commenced curb

stomping his victim’s head. Only her running tackle of Appellant abated the

brutal attack.

Such evidence, reasonably accepted as true by the jury acting within its

province as sole finder of fact, demonstrated that Appellant not only provoked

the confrontation at issue but also had no reason to believe such extreme

force was necessary for his own protection against Mr. Roman. “[F]orce may

be met with force so long as it is only force enough to repel the attack.”

Steele, 234 A.3d at 847 (quoting Commonwealth v. Pollino, 467 A.2d

1298, 1300 (Pa. 1983)). Mr. Roman presented no threat of attack justifying

the extreme final salvo he received, as he had already been beaten into

submission by the group attack initiated by Appellant.

Discerning no reason to disturb the jury’s assessment of the evidence

in this regard, we conclude that the Commonwealth disproved beyond a

reasonable doubt Appellant’s claim of self-defense.

In Appellant’s remaining issue, he contends the evidence failed to show

that his acts demonstrated an “attempt[ ] to cause serious bodily injury to

another … under circumstances manifesting extreme indifference to the value

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of human life.” 18 Pa.C.S.A. § 2702(a)(1); Galindes, 786 A.2d at 1012. We

disagree.

“The intent to cause serious bodily harm may be shown by

circumstances surrounding the incident.” Commonwealth v. Caterino, 678

A.2d 389, 391 (Pa. Super. 1996). See also Commonwealth v. Glover, 449

A.2d 662, 665–66 (Pa. Super. 1982) (holding a jury could infer intent to cause

serious bodily injury where a group of three people hit a relatively smaller-

sized victim in the head and kicked him); Commonwealth v. Rodriquez,

673 A.2d 962, 965–67 (Pa. Super. 1996) (same). Moreover, repeatedly

punching a person in the face and stomping on his head while he is on the

ground all but guarantees the person will experience a serious bodily injury.

See Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa. 2006) (noting

a fact-finder is justified in finding intent based upon the intent suggested by

the conduct).

As described above, Appellant drew Mr. Roman into a group attack

which culminated with Appellant, on his own, beating a helpless Roman to the

ground with blows to the face and relentlessly stomping on the unconscious

man’s head afterward, with only Officer Foose’s forcible intervention

preventing Appellant’s continued onslaught. According to the officers, Roman

lay motionless in a pool of his own blood so copious that they were surprised

to discover he was still alive.

These facts show Appellant caused or intended to cause serious injury

to Roman. Indeed, Roman sustained serious injuries from this beating,

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including a concussion, a blood clot in his eye, a fractured jaw that continues

to cause pain when he bites down hard, a broken nose that requires further

surgery, and lingering problems with his balance that has prevented him from

participating in activities with his children. Accordingly, we deem Appellant’s

claim meritless, and hold the evidence was sufficient to sustain Appellant's

conviction for aggravated assault.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/15/2021

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