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[U] Commonwealth v. Moreno

Superior Court of Pennsylvania

January 9, 2013



Appeal from the Judgment of Sentence April 16, 2012 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0017085-2010

Joseph D. Seletyn, Esq.




William J. Moreno (Appellant) appeals from the judgment of sentence of 8.5 to 20 years' imprisonment, entered April 16, 2012, after he was found guilty of aggravated assault.[1] We affirm.

During the early morning hours of December 6, 2010, Appellant and his codefendant, Michael Szoszorek (Szoszorek), were at the Polish Veteran's Association bar in Pittsburgh, Pennsylvania. Shortly after 3:00 a.m. that morning, bartender Nicole Knouff (Knouff) began asking customers to leave, as the bar was closing. Bar patron Michael Murray (the victim) endeavored to assist Knouff by approaching a group of men, which included Appellant and Szoszorek, and asking them to depart. Instead, Appellant struck the victim in the face. A brawl ensued, during which the victim was punched and kicked by Appellant and Szoszorek. The victim was knocked unconscious and suffered several injuries, including a broken leg and a concussion.

As a result of these events, Appellant was charged with aggravated assault and conspiracy.[2] A bench trial was held on January 25, 2012. At the conclusion of the trial, Appellant was found guilty of the aggravated assault charge, but acquitted of conspiracy.[3] On April 16, 2012, Appellant was sentenced to 8.5 to 20 years' incarceration. Appellant timely filed post sentence motions. A hearing was held, and the trial court denied Appellant's post sentence motions on July 20, 2012. Appellant then timely filed a notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant now raises the following issue on appeal.

Whether there was insufficient evidence to prove that Appellant committed an aggravated assault when the evidence shows that Appellant did not attempt to cause serious bodily injury, did not cause serious bodily injury recklessly under circumstances manifesting extreme [in]difference to the value of human life and did not have an accomplice?

Appellant's Brief at 4.

We consider a challenge to the sufficiency of the evidence pursuant to the following standard.

As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld.

Commonwealth v. Stays, 70 A.3d 1256, 1266 (Pa.Super. 2013) (citations and quotation marks omitted).

Under the Crimes Code, a person may be convicted of aggravated assault, graded as a felony of the first degree … if he or she "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.A. § 2702(a)(1). Serious bodily injury is further defined by the Crimes Code 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." 18 Pa.C.S.A. § 2301.

Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007). "To sustain a conviction for aggravated assault, the Commonwealth need not show that serious bodily injury actually occurred, but only that the defendant attempted to cause serious bodily injury to another person." Commonwealth v. Stevenson, 894 A.2d 759, 774 (Pa.Super. 2006) (citing Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa.Super. 2001)).

Instantly, the trial court concluded that Appellant "attempted to cause serious bodily injury to the victim and, in fact, caused such injury." Trial Court Opinion, 1/17/2013, at 9. The trial court further stated that it "does believe that the actions of [Appellant] incited the others in his group" and that "[t]he actions of those other members of [Appellant's] group ultimately resulted in additional injuries to the victim[.]" Id. at 11. Therefore, the trial court reasoned, "these facts provide yet another basis for [Appellant's] conviction of aggravated assault; that is, accomplice liability." Id.

In response, Appellant argues that he neither caused serious injury to the victim, nor did he intend to cause such injury. Appellant's Brief at 13. Appellant also contends that his conviction cannot be supported under an accomplice liability theory. Id. at 14. Appellant implores us to review the video taken from the security cameras in the Polish Veteran's Association, id. at 8, and much of Appellant's argument revolves around his suggested interpretation of the events depicted in the video. Specifically, Appellant alleges that he merely punched the victim once in the face, and that "[a]fter the initial punching, [Appellant] never touched [the victim] again." Id. at 23-24.

During Appellant's trial, the relevant incident was described by both the victim, and by Knouff. However, neither witness could describe the incident in great detail, as Knouff "fled and went back behind the bar" when the incident began, and because the victim was knocked unconscious and could not remember anything beyond the initial punch by Appellant. N.T., 1/25/2012, at 18, 47-48, 59. We therefore agree with Appellant that the critical evidence in this case is the security camera video taken from the Polish Veteran's Association. After repeated viewings of this video, we must conclude that neither Appellant's nor the trial court's description of its contents is entirely accurate. Our review of this footage shows the following.

Shortly before the incident in question, Appellant, the victim, and several others are seen standing close together, conversing. The victim then turns to his left to face Appellant. Shortly thereafter, Appellant appears to swing at the victim approximately two to three times. The victim stumbles, or falls, backward and Appellant lunges at the victim, continuing his attack. The victim ends up on his feet with his back against a wall. Appellant appears to continue striking the victim or attempting to strike the victim. While this is happening, another bar patron attempts to restrain Appellant, but Szoszorek, who had been standing near Appellant prior to the fight, attacks the bar patron and knocks him to the ground. Appellant then appears to grab the victim by his arm and swing him. Szoszorek punches the victim twice in the face before the victim finally falls to the ground, hitting a nearby table on the way down. Szoszorek kicks the victim twice, in or around his head. Finally, the victim is left alone, Appellant is restrained, and the fight moves to a different part of the room.

Based on our review of this video, and the testimony elicited at trial, we conclude that sufficient evidence was produced to prove that Appellant committed aggravated assault. As noted above, the aggravated assault statute requires only that a defendant attemptto cause serious bodily injury. Our Supreme Court has explained that "[a]n attempt under § 2702(a)(1) requires a showing of some act, albeit not one causing serious bodily injury, accompanied by an intent to inflict serious bodily injury." Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006). A totality of the circumstances test must be used to assess whether a defendant possessed the requisite intent. Id. at 1257-58.[4]

Here, Appellant was captured on video committing a violent attack on the victim. Appellant struck the victim two to three times, causing the victim to stumble, or fall, backward. Appellant then pursued the victim and continued his attack, eventually appearing to grab the victim by the arm and swing him. Appellant only ceased his assault after the victim had been knocked unconscious. Considering the totality of the circumstances, sufficient evidence was presented to prove that Appellant attempted to cause serious bodily injury to the victim.[5] Accordingly, we affirm Appellant's judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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