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[U] Commonwealth v. Gutierrez

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
EDDIE GUTIERREZ, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 16, 2012 in the Court of Common Pleas of York County Criminal Division at No. CP-67-CR-0002280-2011.

BEFORE: DONOHUE, J., OTT, J., and PLATT, J.[*]

MEMORANDUM

PLATT, J.

Appellant, Eddie Gutierrez, appeals from the judgment of ssentence entered on April 16, 2012 after his jury conviction of aggravated assault causing serious bodily injury, aggravated assault causing serious bodily injury with a deadly weapon, simple assault, and reckless endangerment.[1]We affirm.

We take the following facts from our review of the trial notes of testimony in this matter. On February 18, 2011, after having lunch together at a local soup kitchen, the victim, Felito Rosario-Morales, and Appellant returned to their respective rooms at the Hanover Motel, where Rosario-Morales lived on the second floor and Appellant resided on the third. (See N.T. Trial, 2/06/12, at 72, 88; N.T. Trial, 2/07/12, at 181-82). Rosario-Morales was scheduled to work one-half hour later at the National Pretzel factory in his job as a forklift operator, and he had a pocketknife in his jeans, which he used for opening boxes. (See N.T. Trial, 2/06/12, at 75-77; N.T. Trial, 2/07/12, at 140-42). Rosario-Morales telephoned Appellant regarding loans between them, although each man argued that the other owed him money. (See N.T. Trial, 2/06/12, at 83-84; N.T. Trial, 2/07/12, at 271). During a later phone call, Appellant invited Rosario-Morales to come upstairs. (See N.T. Trial, 2/06/12, at 88). Thereafter, Appellant retrieved a kitchen knife, which he concealed behind his back while he waited in the hallway for Rosario-Morales' arrival. (See N.T. Trial, 2/07/12, at 289, 316). On the victim's arrival, the two men engaged in a verbal altercation. (See id. at 154, 315). Detective Craig Culp testified that Appellant told him that Rosario-Morales did not appear to be armed. (See N.T. Trial, 2/09/12, at 344).

Video surveillance and Rosario-Morales' testimony showed that Appellant stabbed Rosario-Morales as he was turning away. (See N.T Trial, 2/06/12, at 92-93; N.T. Trial, 2/07/12, at 316). Hanover Motel resident Jerome Small observed Appellant, still armed with the knife, chase an unarmed Rosario-Morales down the hall as he attempted to flee. (See N.T. Trial, at 2/07/12, at 155, 158). When Rosario-Morales collapsed, he and Appellant continued to exchange words until Appellant left the building. (See N.T. Trial, 2/06/12, at 92-93). Upon their arrival, the police observed Rosario-Morales in what appeared to be extreme pain, with a stab wound and a brown, flesh-colored organ hanging out of his wound about three inches. (See N.T. Trial, 2/07/12, at 214-15).

Paramedics transported Rosario-Morales to York Hospital, where he received immediate surgery for a tear in the outer layer of his colon, a large hematoma in the upper right side of the abdomen, a damaged duodenum, two stab wounds to the small intestine, and three stab wounds to the mesoderm. (See id. at 167-72). Rosario-Morales remained in the hospital for eighteen days following surgery. (See N.T. Trial, 2/06/12, at 99).

On February 13, 2012, a jury convicted Appellant of the above-mentioned crimes.[2] On April 16, 2012, the trial court sentenced Appellant to no less than nine nor more than eighteen years' incarceration in a state correctional institution. The court denied Appellant's post-sentence motion and motion for reconsideration of sentence on September 25, 2012. Appellant timely appealed.[3]

Appellant raises three questions for our review:

I. Whether the evidence submitted at trial was insufficient to support the verdict of guilty when the Commonwealth failed to prove Appellant's actions were not justifiable self-defense[?]
II. Whether the verdict was against the weight of the evidence submitted at trial and failed to rise to the level of proof required to support a conviction of aggravated assault when the evidence presented at trial established [the] victim came to Appellant's home armed with a knife and threatening Appellant with physical harm[?]
III. Whether the sentence of nine to eighteen years imposed by [the trial] court constitutes an abuse of discretion when the sentence imposed is inconsistent with the gravity of the offense and protection of the public and does not consider relevant mitigating factors[?]

(Appellant's Brief, at 4).

In his first issue, Appellant argues that "the Commonwealth failed to meet [its] burden of proof to disprove [his] claim of justifiable self-defense beyond a reasonable doubt." (Id. at 7). Specifically, he claims that the Commonwealth "failed to prove that [he] did not reasonably believe he was in imminent danger of death or great bodily harm and that it was necessary to use deadly force in order to save himself from such harm" and that he "had a duty to retreat or that [he] violated any such duty." (Id. at 11, 15; see id. at 9-16). We disagree.

Our standard of review of a challenge to the sufficiency of the evidence is well-settled:

In reviewing sufficiency of evidence claims, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all the elements of the offense. Additionally, to sustain a conviction, the facts and circumstances which the Commonwealth must prove, must be such that every essential element of the crime is established beyond a reasonable doubt. Admittedly, guilt must be based on facts and conditions proved, and not on suspicion or surmise. Entirely circumstantial evidence is sufficient so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. The fact finder is free to believe all, part, or none of the evidence presented at trial.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa.Super. 2011), appeal denied, 44 A.3d 1161 (Pa. 2012) (citations omitted).

Once a defendant raises self-defense, [4] "the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense." Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (citation omitted). The Commonwealth meets its burden if it proves one of the following: the defendant did not reasonably believe he was in danger of death or serious bodily injury; the defendant was the initial aggressor; or the defendant violated his duty to retreat. See id.

Here, at trial, the Commonwealth submitted evidence that Appellant asked Rosario-Morales to come to his room. (See N.T. Trial, 2/06/12, at 88). Video surveillance and Rosario-Morales' testimony established that Appellant stabbed Rosario-Morales when the man turned away. (See N.T. Trial, 2/06/12, at 92-93; N.T. Trial, 2/07/12, at 316). Additionally, although Rosario-Morales admitted that he did have a knife, he stated that it was folded in his pocket and that Appellant did not see it. (See N.T. Trial, 2/06/12, at 92; N.T. Trial, 2/07/12, at 141-42, 219, 344). Commonwealth eyewitness Jerome Small testified that he observed the armed Appellant chase an unarmed Rosario-Morales down the hall. (See N.T. Trial, 2/07/12, at 158).

Additionally, Appellant testified that he followed Rosario-Morales after the stabbing to get away from him, although Appellant knew that there was another exit from the third floor he could have used. (See id. at 291). After the incident, instead of going to the police station or turning himself in to authorities, Appellant testified that he got rid of the knife and fled. (See id. at 306, 319-20).

Based on the foregoing, viewing the evidence in the light most favorable to the Commonwealth, we conclude that it was sufficient to prove that Appellant was not in reasonable fear of death or serious bodily injury, that he was the aggressor, and that Appellant violated his duty to retreat. Mouzon, supra at 740; Moreno, supra at 136. Appellant's first issue does not merit relief.

In his second issue, Appellant argues that the weight of the evidence did not support his conviction for aggravated assault. (See Appellant's Brief, at 17-20). Specifically, Appellant claims that "the evidence established the victim came to [his] home armed with a knife and threaten[ed] Appellant with physical harm." (Id. at 17). We disagree.

The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses.
As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury's verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one's sense of justice. A verdict is said to be contrary to the evidence such that it shocks one's sense of justice when the figure of Justice totters on her pedestal, or when the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.
Furthermore, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa.Super. 2013) (citations and quotation marks omitted).

Here, the court found that:
[a]fter review, the ultimate result in the case does not shock the [t]rial [c]ourt's [conscience]. . . . [E]ven if inconsistencies were established during trial, there was NO inconsistency by the victim in the instant case as to the events which led to his injuries. . . . [A]s the trier of fact, it was within [the jury's] province to find an insufficient self[-]defense claim.

(Trial Court Opinion, 5/28/13, at 3). We agree.

Preliminarily, we note that we decline Appellant's request that we re- weigh the evidence. (See Appellant's Brief, at 18-20); see also Moreno, supra at 136. As discussed above, the Commonwealth presented evidence that Appellant did not see Rosario-Morales' knife, that Appellant was the aggressor, and that, instead of using an alternate exit to leave the area, he chased Rosario-Morales down the hall after he stabbed him. Based on the foregoing, we conclude that the trial court did not "palpably abuse its discretion in ruling on the weight claim." Boyd, supra at 1275; (see also Trial Ct. Op., at 3). Appellant's second issue lacks merit.

In his third issue, Appellant challenges the discretionary aspects of his sentence, which "must be considered a petition for permission to appeal." Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.Super. 2011) (citation omitted); (see also Appellant's Brief, at 8). To preserve claims relating to the discretionary aspects of a sentence properly, an appellant must first raise them with the trial court. See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011).

Further,

In order for such an appeal to be valid, an appellant's brief must contain a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence and must also show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. In order to raise a substantial question, an appellant's Pa.R.A.P. 2119(f) statement must argue the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process.

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.Super. 2012), appeal denied, 63 A.3d 776 (Pa. 2013) (citations omitted).

Here, Appellant has met his procedural requirements of raising his issue with the trial court and including a Rule 2119(f) statement in his brief. (See Motion for Post-Sentence Relief Pursuant to Pa.R.Crim.P. 720, 4/25/12, at unnumbered pages 2-3; Appellant's Brief, at 8). Accordingly, we must consider whether Appellant's statement raises a substantial question. See Riggs, supra at 786.

Appellant's Rule 2119(f) statement asserts that "the sentence imposed is inconsistent with the gravity of the offense and protection of the public and that the trial court abused its discretion by not taking into consideration relevant mitigating factors[.]" (Appellant's Brief, at 8). We first note that an allegation that the court failed to consider all relevant factors does not raise a substantial question. See Commonwealth v. Moury, 992 A.2d 162, 175 (Pa.Super. 2010) ("That the court refused to weigh the proposed mitigating factors as Appellant wished, absent more, does not raise a substantial question.") (citations omitted). Additionally, Appellant fails to "argue the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process." Riggs, supra at 786. Accordingly, Appellant has failed to raise a substantial question. See id.[5]

Judgment of sentence affirmed.

Judgment Entered.


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