Commonwealth v. Rivera

11 Pa. D. & C.5th 540
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedMarch 19, 2010
Docketno. 2007-5697
StatusPublished

This text of 11 Pa. D. & C.5th 540 (Commonwealth v. Rivera) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Rivera, 11 Pa. D. & C.5th 540 (Pa. Super. Ct. 2010).

Opinion

BOYLAN, J,

Defendant, Justo Tuty Rivera, pled guilty to criminal attempt — first-degree murder, criminal attempt — rape by forcible compulsion, aggravated assault, and related offenses. Following his plea, defendant received an aggregate sentence of 22 1/2 [541]*541to 45 years in a state correctional facility. Defendant now appeals the dismissal of his first petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §9541 et seq.

The following is a summary of the relevant facts. On June 8, 2007, officers from Bensalem Township Police Department responded to the Neshaminy Mall, located in Bucks County, Pennsylvania, to the area of the family restroom for the report of an assault with a knife. N.T. 12/4/07, p. 19. The victim advised the police that she had been working at the Dunkin’ Donuts in the food court area of the mall and that she went to use the bathroom, which was a family bathroom. N.T. 12/4/07, pp. 19-20. When the victim entered the family bathroom, the defendant was seated on a bench. N.T. 12/4/07, p. 20. The victim asked the defendant which bathroom was unlocked and he pointed to the right side. N.T. 12/4/07, p. 20. The victim entered that bathroom and as she was closing the door, the defendant approached her from behind, and grabbed her around the neck. N.T. 12/4/07, pp. 20-21. The defendant said “fuck you, open yourself” to the victim and began to unbuckle his pants. N.T. 12/4/07, pp. 21, 23.

The victim screamed and begged him to stop. N.T. 12/4/07, p. 24. The defendant then pulled out a knife and placed it against the victim’s throat and began to cut her. N.T. 12/4/07, p. 24. The defendant told the victim that he was going to kill her and she grabbed the knife and in the process cut her hand. N.T. 12/4/07, p. 24. The victim began to scream and the defendant fled. N.T. 12/4/07, p. 24.

[542]*542Bensalem police officers and mall security reviewed the mall’s video surveillance tapes and they observed the defendant, after the incident, exit the mall near the engineering dock doors. N.T. 12/4/07, pp. 24-25. He set his shirt and knife on the ground and placed a barrel over top of them. N.T. 12/4/07, pp. 24-25. These items were recovered by the police and placed into evidence. N.T. 12/4/07, p. 25.

The victim was treated at a local hospital for lacerations under her chin, on her neck, and several lacerations to her left hand and fingers. N.T. 12/4/07, p. 29. She received 26 stitches in her hand. N.T. 12/4/07, p. 29. As a result of the attack, she still has numbness and pain in her left hand, and has been unable to return to work. N.T. 12/4/07, p. 29.

On June 9,2007, Bensalem police received an anonymous call that identified the male actor as the defendant. N.T. 12/4/07, p. 25. Later that night, at police headquarters, the victim positively identified the defendant in a photograph lineup as the actor who assaulted her. N.T. 12/4/07 pp. 25-26. Police apprehended the defendant in his home and recovered a white tank top with visible blood stains on it. N.T. 12/4/07, p. 26. Back at headquarters, defendant admitted that he was at the mall and gave the following statement:

“I hurt somebody for no reason last night. I just decided to go to Neshaminy Mall. I got the knife from the apartment. Nothing special made me pick the Indian lady. I just saw her..... I was gonna rob and fuck the Indian lady. I didn’t do it because she was making too much noise. I knew I cut her... I undid my belt buckle because I was gonna fuck her ....” N.T. 12/4/07, pp. 26-28.

[543]*543On December 4, 2007, defendant entered a plea of guilty to one count of criminal attempt — first-degree murder,1 one count of criminal attempt — rape by forcible compulsion,2 two counts of aggravated assault,3 one count of recklessly endangering another person,4 one count of terroristic threats with the intent to terrorize another,5 one count of possession of a weapon,6 and two counts of simple assault.7 During the plea, the defendant stated that he did not recall the events that night because he was high at the time. Sentencing was deferred for a sexual offender assessment pursuant to 42 Pa.C.S. §9795.4. The assessment determined that defendant did not meet the criteria for a sexually violent predator. N.T. 3/6/08, p. 7.

On February 25, 2008, Defendant filed a pro se “motion for change of venue” and “motion to withdraw guilty plea.” On March 4,2008, defense counsel filed a “motion to withdrawal guilty plea and motion to appoint private counsel” on the defendant’s behalf.

On March 6, 2008, defendant withdrew the “motion for change of venue,” “motion to withdraw guilty plea,” and “motion to withdraw guilty plea and motion to appoint private counsel,” and he renounced a letter he wrote to the undersigned requesting to withdraw his plea. N.T. 3/6/08, pp. 2-6, 9-10. Sentencing was deferred again at [544]*544the request of the defense for further preparation. N.T. 3/6/08, pp. 7-8.

On March 18, 2008, after exercising his right of allocution, defendant received a total sentence of 22 1/2 years to 45 years in a state correctional facility. Specifically, defendant was sentenced to 10 to 20 years for Count 1, criminal attempt — first-degree murder; a consecutive 10 to 20 years for Count 2, criminal attempt — rape by forcible compulsion; and a consecutive 2 1/2 years to 5 years for Count 5, terroristic threats. N.T. 3/18/08, p. 18. Defendant also received a consecutive five years probation for Count 6, possession of a weapon. N.T. 3/18/08, pp. 17-18. No further penalty was imposed for the remaining offenses.

Additionally, we note that defendant was not a neophyte. At the time of his arrest, defendant was on federal parole for bank robbery. Defendant’s prior record also includes convictions for possession with intent to deliver in 1999 and escape in 2006.

On March 28, 2008, defendant filed a “motion to modify and reconsideration of sentence.” A hearing was scheduled for April 28, 2008, but cancelled because the defendant was taken into custody by the federal authorities two days prior to his hearing. On June 6, 2008 defendant filed a “motion to reschedule hearing.” On July 3, 2008, a hearing was held on defendant’s post-sentence motions. During the hearing, defendant apologized to the victim for this “heinous act” blaming it on the “combination of drugs and alcohol and the things that [he] had gone through in [his] life” and stated that he “wished it never happened.” N.T. 7/3/08, pp. 7-8. [545]*545After the hearing, defendant’s motion was denied. Defendant did not file a direct appeal.

On July 6,2009, defendant filed his first Post Conviction Relief Act (PCRA) petition. On August 6, 2009, counsel was appointed. On September 14, 2009, the Commonwealth filed an answer. On October 15, 2009, defendant filed an amended PCRA petition. Hearings were held on defendant’s PCRA petition on October 29, 2009 and October 30, 2009. At the conclusion of the hearings, the petition was denied.

On November 13, 2009, defendant filed a notice of appeal to the Superior Court. On November 30, 2009, defendant filed a statement of matters complained of on appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
11 Pa. D. & C.5th 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rivera-pactcomplbucks-2010.