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COMMONWEALTH PENNSYLVANIA v. ANGEL R. MOLINA (10/24/86)

filed: October 24, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
ANGEL R. MOLINA, APPELLANT



Appeal from Judgment of Sentence February 11, 1986 in the Court of Common Pleas of Philadelphia County, Criminal No. 82-08-154, 155, 156, 157.

COUNSEL

Peter D. Bludman, Philadelphia, for appellant.

Maxine Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Olszewski and Beck, JJ.

Author: Olszewski

[ 358 Pa. Super. Page 31]

This appeal follows judgment of sentence for aggravated assault. Appellant, Angel Molina, was tried and convicted by a jury in the shooting of Monserate Quiles. We affirm the judgment of sentence.

On the evening of June 18, 1982, appellant visited his neighbors, Monserate Quiles and Olga Cuevas, husband and wife. Trial witnesses presented two stories. First, according

[ 358 Pa. Super. Page 32]

    to Quiles (the victim), appellant flirted with his wife. Angered, Quiles followed appellant home when appellant left. Quiles testified that he had a knife in his back pocket, which he used to open boxes at work, and a wrench in his hand. Quiles further testified that he would have used the wrench to defend himself if attacked, but stated that he did not threaten appellant with it. Quiles knocked on appellant's door and a few minutes later, appellant emerged from his home holding a gun. Appellant pushed Quiles' wife, who was standing at the bottom of the steps, and fired two shots, one of which struck Quiles in the neck.

According to defense witnesses, appellant shot in self-defense. Appellant denied flirting with Quiles' wife, Olga Cuevas. He stated that he left Quiles' house and went home to bed. About a half hour later someone knocked on appellant's door. Appellant went downstairs, opened the door and saw Quiles holding a knife-like object. According to appellant, Quiles said, "I came here to kill you because you got fresh with my wife." (N.T. p. 122). Appellant then closed the door, went upstairs and told his daughter to call the police. When fifteen minutes passed and the police had not arrived, appellant got his gun, went out on the steps and called to Pablo Melendez who was on the sidewalk near appellant's house. Quiles then approached appellant and, threatening to kill him, lunged at him with the knife. At that point, Pablo Melendez knocked the knife out of Quiles' hand. When Quiles retrieved the knife, appellant fired one shot.

In November of 1982, a jury convicted appellant of aggravated assault and possession of an instrument of crime. At the sentencing hearing held following the denial of post-trial motions, the trial court refused to apply the mandatory minimum sentence of five years' imprisonment for aggravated assault committed with a firearm, as required by Section 9712 of the Mandatory Sentencing Act, 42 Pa.Cons.Stat.Ann.Sec. 9712 (Purdon 1982). Instead, the court imposed probation for both convictions. Following denial of its motion to modify sentence, the Commonwealth filed an

[ 358 Pa. Super. Page 33]

    appeal challenging the trial court's refusal to impose the minimum sentence provided by section 9712. On August 2, 1985, a panel of this Court vacated the sentence of probation for aggravated assault and remanded for resentencing. ...


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