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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FIDEL G. MONTANEZ,
Appellant No. 1127 MDA 2014
Appeal from the Judgment of Sentence entered June 17, 2014,
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No(s): CP-36-CR-0002170-2013
BEFORE: BOWES, DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED JUNE 10, 2015
Fidel G. Montanez (“Appellant”) appeals from the judgment of
sentence imposed after the trial court convicted him of aggravated assault
and recklessly endangering another person.1 We affirm Appellant’s
convictions but remand for re-sentencing for the reasons discussed below.
The pertinent facts and procedural history are as follows: On March
24, 2013, Officers from the Lancaster City Bureau of Police received a report
of a shooting at a bar on 243 West King Street in Lancaster, Pennsylvania.
Affidavit of Probable Cause, 3/27/13. Upon arrival, the officers encountered
the victim, identified as Esau Gomez, lying on the ground of a parking lot
with a gunshot wound to his leg. Id. The victim related that he had been
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1
18 Pa.C.S.A. §§ 2702(a)(1) and 2705.
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involved in an altercation with three Hispanic males, one of whom pointed a
gun at him and fired four to five shots in his direction, hitting him once in
the leg. Id. Following an investigation, police arrested Appellant and
charged him with attempted murder, aggravated assault, and recklessly
endangering another person.
A non-jury trial commenced on March 17, 2014, at the conclusion of
which on March 19, 2014, the trial court found Appellant not guilty of
attempted murder, and guilty of aggravated assault and recklessly
endangering another person. After rendering its verdict, the trial court
made a separate, specific factual finding that a firearm was visibly possessed
during the course of the commission of the crime, for purposes of the
mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712. N.T.,
3/19/14, at 253-254.
Following a hearing on June 17, 2014, the trial court sentenced
Appellant to a term of imprisonment of 5 to 10 years for aggravated assault,
under the mandatory minimum sentencing provisions of § 9712. The
sentence for recklessly endangering another person merged with aggravated
assault for sentencing purposes.
Appellant filed a timely post-sentence motion, which the trial court
denied on June 23, 2014. Appellant filed a timely appeal, and both
Appellant and the trial court complied with Pa.R.A.P. 9125(b). Appellant
presents three issues for our review:
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I. WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF
LAW WHEN IT DENIED APPELLANT’S MOTION FOR JUDGMENT
OF ACQUITTAL AND FOUND THERE WAS SUFFICIENT EVIDENCE
TO CONVICT APPELLANT OF AGGRAVATED ASSAULT BEYOND A
REASONABLE DOUBT, WHEN THE ONLY EYEWITNESS
TESTIMONY REGARDING APPELLANT POINTING A FIREARM AT
THE VICTIM WAS EXPLICITLY CONTRADICTED AND PROVEN
FALSE BY OBJECTIVE VIDEO FOOTAGE OF THE EVENTS IN
QUESTION?
II. WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
WHEN IT DENIED APPELLANT’S MOTION FOR A NEW TRIAL,
FINDING THE AGGRAVATED ASSAULT VERDICT WAS NOT
AGAINST THE WEIGHT OF THE EVIDENCE, DESPITE THE ONLY
EYEWITNESS TESTIMONY CONCERNING APPELLANT’S POINTING
A FIREARM AT THE VICTIM BEING EXPLICITLY CONTRADICTED
AND PROVEN FALSE BY OBJECTIVE VIDEO FOOTAGE OF THE
EVENTS IN QUESTION?
III. WHETHER THE [TRIAL] COURT’S “MANDATORY” SENTENCE
IMPOSED PURSUANT TO 42 PA.C.S.A. § 9712 WAS ILLEGAL, IN
THAT THE SENTENCING STATUTE’S UNCONSTITUTIONAL
PORTIONS ARE NON-SEVERABLE FROM ITS REMAINING
PORTIONS AND THE STATUTE IGNORES THE MANDATES OF
ALLEYNE AND ITS PROGENY?
Appellant’s Brief at x.
In his first issue, Appellant argues that the evidence was insufficient to
support his aggravated assault conviction. When reviewing a challenge to
the sufficiency of the evidence, we are bound by the following:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
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part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth's
burden may be met by wholly circumstantial evidence and 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.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).
Appellant maintains that the evidence was insufficient for the trial
court as fact finder to determine how and when the victim was shot, in order
to establish Appellant’s guilt beyond a reasonable doubt and support his
aggravated assault conviction. Appellant’s Brief at 12-23.
To support a conviction for aggravated assault pursuant to 18 Pa.C.S.A
§ 2702(a)(1), the Commonwealth is required to demonstrate that Appellant
“attempt[ed] to cause serious bodily injury to another, or cause[d] such
injury intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” “Where serious bodily
injury is inflicted, the Commonwealth is not required to prove a specific
intent; this is because aggravated assault may be proven if the defendant
acted recklessly.” Commonwealth v. Hlatky, 626 A.2d 575, 581 (Pa.
Super. 1993).
Reckless conduct is defined at 18 Pa.C.S.A § 302(b)(3) as follows:
A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor's conduct
and the circumstances known to him, its disregard involves a
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gross deviation from the standard of conduct that a reasonable
person would observe in the actor's situation.
At trial, the victim, Esau Gomez, testified that on the date in question,
he, along with his brother-in law, Manuel Diego Esteban, and a friend named
Hernan Hernandez, became involved in a verbal altercation with Appellant
and his companions inside a bar on 243 West King Street. N.T., 3/17/14, at
17-22. After leaving the bar, the verbal altercation escalated into a physical
fight in the parking lot. Id. at 35-36. The victim testified that Appellant
retrieved a gun, pointed it up in the air, and then raised his hand, pointed it
towards the victim, and fired a shot which struck the victim in the thigh. Id.
at 36-37. Appellant then fired four or five more shots towards the victim’s
companions, who fled the scene. Id. at 38-40. Appellant and his
companions proceeded to kick and punch the victim for several more
minutes, but left before police arrived. Id. at 40-42. The Commonwealth
additionally presented the testimony of Appellant’s brother-in-law, Manuel
Diego Esteban, who testified that he saw an individual with a gun raise it,
fire in the air, and then shoot the victim in the leg. Id. at 84-86, 101.
Appellant, who testified at trial, offered a different version of events.
Although Appellant admitted he had a gun and fired it on the night of the
incident, he testified that he “never leveled” his gun to shoot the victim, that
he only shot multiple times “up in the air” in an effort to “clear everybody
out”, and that it was not his intent to hurt anybody. N.T., 3/19/14, at 213-
221. The trial court, however, did not find Appellant’s testimony credible,
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and concluded that the evidence established that Appellant shot the victim,
and in doing so, acted recklessly, explaining in its Pa.R.A.P. 1925(a) opinion
that “[t]estimony at trial indicated that [Appellant] knowingly, under the
circumstances, manifested extreme indifference to the value of human life
by running and firing a gun multiple times.” Trial Court Opinion, 10/2/14, at
2-3. The trial court reasoned that “based upon the shell casings, [Appellant]
must have been moving as the weapon was discharged [and that] to say
that somehow it was just an accident that it went off and it was an accident
that it struck [Appellant] defies credibility.” N.T., 3/19/14, at 252-253. The
trial court concluded that “[Appellant’s] conduct in this case consciously
disregarded a substantial and unjustifiable risk that serious bodily injury
would result from his conduct.” Id.
Upon review, we conclude that the Commonwealth presented sufficient
evidence to support the trial court’s determination that Appellant acted
recklessly. Although Appellant argues that the video surveillance footage did
not support the victim’s assertion that Appellant levelled the gun at him, the
victim testified that Appellant shot him, and the evidence, including the
video surveillance footage, was sufficient to establish that in the course of an
altercation, Appellant retrieved a weapon and while standing in close
proximity to the victim, fired the weapon multiple times, resulting in the
victim sustaining a gunshot injury to the leg. Although Appellant presented
a different version of events, we reiterate that the trial court as fact-finder is
free to believe all, part, or none of the evidence, and that the evidence
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established at trial need not preclude every possibility of innocence. See
e.g., Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)
(citations omitted). Moreover, it is not within the province of this Court to
re-weigh the evidence and substitute our judgment for that of the fact-
finder. Id. We thus find no error in the trial court’s determination that the
Commonwealth sustained its burden of proving beyond a reasonable doubt
that Appellant recklessly caused serious bodily injury to another under
circumstances manifesting extreme indifference to the value of human life,
to satisfy every element of the crime of aggravated assault. Appellant's
sufficiency claim is without merit.
Appellant next challenges the weight of the evidence. Our scrutiny of
whether a verdict is against the weight of the evidence is governed by the
principles set forth in Champney, supra:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence and
to determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.
Moreover, 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.
In his weight claim, Appellant argues that the trial court’s
determination that Appellant aimed his weapon at the victim was based on
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speculation and assumptions that were disproved by the evidence of record.
Appellant’s Brief at 24-27. Specifically, Appellant claims that the victim’s
version of events – that Appellant pointed the gun at him and shot him - was
refuted by the video surveillance footage of the shooting and could not be
believed, and therefore the trial court’s verdict was against the weight of the
evidence. Id.
“A new trial is warranted on a challenge to the weight of the evidence
only if the verdict is so contrary to the evidence as to shock one’s sense of
justice. Furthermore, issues of credibility are left to the trier of fact; the
[factfinder] is free to accept all, part, or none of the witness testimony.”
Commonwealth v. Russell, 665 A.2d 1239, 1246-1247 (Pa. Super. 1995)
(citations omitted). Here, the trial court found credible the testimony of the
Commonwealth’s witnesses and evidence. Although Appellant asserts that
the trial court’s determination that Appellant directed his gun in the victim’s
direction was “speculative”, the trial court, within its province as fact finder,
viewed the video surveillance footage, and concluded that at some juncture
in the course of the altercation, Appellant, while firing his gun, directed it at
the victim, shooting him in the leg.
Upon careful review of the record, including the video footage, we
conclude that Appellant’s claim that the evidence was too speculative and
incredible to support his conviction to be meritless. The panning character
of the video footage does not show the victim being shot, and makes it
difficult to determine the precise moment at which the victim was shot, it
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does not disprove that Appellant recklessly fired his gun in the direction of
the victim. We find no abuse of discretion in the trial court’s finding that the
testimony and evidence presented by the Commonwealth was credible. See
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 541 (Pa. Super. 1995)
(it is solely for the finder of fact to determine the credibility of witnesses and
to resolve any conflicts or inconsistencies in the evidence).
In his final issue, Appellant argues that the trial court imposed an
illegal sentence when it sentenced him to the mandatory minimum set forth
in 42 Pa.C.S.A. § 9712. Appellant’s Brief at 27-32. Appellant bases his
argument on the United States Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013), and this Court’s decisions in
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) and
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). Pursuant
to Alleyne, “a fact that increases the sentencing floor is an element of the
crime [that] must be submitted to a fact-finder and proven beyond a
reasonable doubt. The Alleyne decision, therefore, renders those
Pennsylvania mandatory minimum sentencing statutes that do not pertain to
prior convictions constitutionally infirm insofar as they permit a judge to
automatically increase a defendant's sentence based on a preponderance of
the evidence standard.” Commonwealth v. Watley, 81 A.3d 108, 117
(Pa.Super.2013) (footnote omitted).
In Valentine, in reliance on Alleyne and Newman, we found section
9712 to be facially unconstitutional because it permitted a trial judge to
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increase a defendant’s sentenced based on a preponderance of the evidence
standard. In reliance on Newman, we explained that the unconstitutional
provision of § 9712 could not be severed from the remainder of the statute,
and therefore the statute was unconstitutional as a whole.
Here, the record reflects that at the sentencing hearing, the trial court
expressed that it was applying section 9712, stating on the record, “I think
the mandatory minimum ... is an acceptable sentence.” N.T., 6/17/14, at 7.
Because pursuant Valentine, Newman, and Alleyne, section 9712 has
been declared facially unconstitutional, we must vacate the Appellant’s
sentence and remand for re-sentencing without consideration of the § 9712
mandatory minimum sentencing provision.
We recognize that at trial, the trial court as fact finder made a
separate and specific factual determination that Appellant visibly displayed a
gun, which would appear to comport with the requirements of Alleyne that
the factual prerequisites of the mandatory minimum sentence be decided by
the finder of fact beyond a reasonable doubt. However, in Valentine, we
made clear that the unconstitutional provisions of § 9712 were not
severable, but “essentially and inseparably connected” to the rest of the
statute, thereby rendering the statute unconstitutional as a whole. In both
Newman and Valentine, we rejected efforts by the Commonwealth and
trial courts to create new procedures in an effort to impose mandatory
minimum sentences in compliance with Alleyne. See Newman, 99 A.3d at
101 (rejecting Commonwealth’s request for remand for the empanelling of a
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sentencing jury “for the determination, beyond a reasonable doubt, as to
whether the conditions obtain under the evidence such that a mandatory
minimum sentence should be imposed”); Valentine, 101 A.3d at 801
(rejecting Commonwealth’s effort to comply with Alleyne by asking the
jury, on the verdict slip, to determine beyond a reasonable doubt whether
Appellant possessed a firearm that placed the victim in fear of immediate
serious bodily injury in the course of committing a theft for purposes of the
mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712(a), and
whether the crime occurred in whole or in part at or near public
transportation, for purposes of the mandatory minimum sentencing
provisions of 42 Pa.C.S.A. § 9713(a)); Commonwealth v. Fennell, 105
A.3d 13 (Pa. Super. 2014) (rejecting Commonwealth’s assertion that
because the appellant stipulated to the drug weight for the purposes of trial,
any error regarding Alleyne was rendered harmless, and holding instead
that creating such a new procedure in an effort to impose a mandatory
minimum sentence is solely within the province of the legislature).
Similarly, in the instant case, the requirements of Alleyne cannot be
circumvented by presenting to the trial court for determination beyond a
reasonable doubt, whether Appellant visibly possessed the firearm. Because
§ 9712 is unconstitutional in its entirety, the mandatory minimum sentence
imposed under this statute is illegal.
Having found no merit to the sufficiency and weight of the evidence
claims raised by Appellant, we affirm his convictions. However, we are
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constrained to vacate Appellant’s judgment of sentence and remand for
resentencing.
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
Judge Donohue joins the Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2015
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