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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VICTOR SALGADO
Appellant No. 3262 EDA 2014
Appeal from the Judgment of Sentence October 9, 2014
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001059-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 14, 2015
Appellant Victor Salgado appeals from the judgment of sentence
entered in the Lehigh County Court of Common Pleas following his jury trial
conviction for escape.1 We affirm.
In early 2014, Appellant was resident at the Lehigh County Community
Corrections Center (“CCC”), a county work release facility. On February 18,
2014, Appellant left the facility at 6:30 a.m. to engage in a job search.
Appellant was scheduled to return to CCC no later than 12:30 p.m. on the
afternoon of February 18, 2014. Appellant did not return or contact the
facility to inform authorities of his whereabouts. On March 3, 2014, the
Lehigh County Sheriff’s Department received a tip about Appellant’s
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18 Pa.C.S. § 5121(a).
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whereabouts and, after a brief investigation, located and arrested him
without incident.
On October 7, 2014, a jury convicted Appellant of escape. The trial
court sentenced him to 15 to 36 months’ incarceration. Appellant filed a
timely post-trial motion based on the sufficiency and weight of the evidence,
which the trial court denied on October 27, 2014. On November 26, 2014,
Appellant filed a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
A. Whether or not the evidence as presented was sufficient as a
matter of law to support the conviction for escape when
[Appellant] presented evidence that he acted under duress in
escaping from the work release facility as he was threatened
with serious bodily injury and the Commonwealth failed to
disprove the defense of duress?
B. Was the verdict against the weight of all the evidence in
regards to the proof of whether or not [Appellant] acted under
duress in committing the escape?
Appellant’s Brief, p. 7 (all capitals removed).
Appellant first claims that the Commonwealth adduced insufficient
evidence to support his conviction for escape. See Appellant’s Brief, pp. 11-
13. Specifically, Appellant argues that the Commonwealth failed to disprove
that he committed the crime of escape under duress. See id. This claim
lacks merit.
When examining a challenge to the sufficiency of evidence, this Court’s
standard of review is as follows:
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. 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 Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).
The Crimes Code defines escape as follows:
Escape.--A person commits an offense if he unlawfully removes
himself from official detention or fails to return to official
detention following temporary leave granted for a specific
purpose or limited period.
18 Pa.C.S. § 5121(a).
Duress is a defense to criminal culpability. Commonwealth v.
Markman, 916 A.2d 586, 606 (Pa.2007). The Crimes Code provides:
It is a defense that the actor engaged in the conduct charged to
constitute an offense because he was coerced to do so by the
use of, or a threat to use, unlawful force against his person or
the person of another, which a person of reasonable firmness in
his situation would have been unable to resist.
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18 Pa.C.S. § 309(a). To successfully employ the defense of duress, a
defendant must establish the following:
[1] the escapee must be confronted with a specific threat of
death or serious bodily injury; [2] there must either be no time
to complain to authorities, or a history of futile complaints; [3]
there must be no evidence of force by the escapee against
prison personnel or others in the escape; [4] and the escapee
must return to official detention as soon as possible after leaving
the prison.
Commonwealth v. Kaminski, 502 A.2d 1281, 1285 (Pa.Super.1985)
(internal quotations and citation omitted). “[U]nless all four requirements
exist, the defense of duress fails.” Id. Therefore, “if the Commonwealth
disproved, beyond a reasonable doubt, one of these prerequisites, such as
the specific threat, or the expeditious return to the authorities, the
Commonwealth has met its burden.” Id. at 1285-86.
The trial court summarized the trial evidence thusly:
The parties presented the jury with a stipulation (Exhibit
C-9) that [A]ppellant was lawfully incarcerated at the CCC on the
date of the alleged escape. Timothy Carver, the warden of CCC,
testified that [A]ppellant was an inmate at CCC in January and
February of 2014. He authenticated Commonwealth Exhibit C-8,
[A]ppellant’s CCC time card. According to the time card for
February 18, 2014, [A]ppellant permissibly left the work release
facility at 6:30 a.m. to engage in a job search. According to the
warden, [A]ppellant had to return to CCC by no later than 12:30
p.m. that day. However, there was no return time on the time
card. Warder Carver confirmed that [A]ppellant failed to return
to the facility.
Clifford Knappenberger, the Internal Affairs Director for the
Lehigh County Department of Corrections, testified that he was
contacted by Warden Carver after [A]ppellant failed to return to
CCC. Knappenberger then prepared a criminal complaint and
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arrest warrant for [A]ppellant which were signed by District
Judge Karen Devine.
The Commonwealth’s final witness was Matthew Joseph, a
deputy in the Lehigh County Sheriff’s Department. Deputy
Joseph testified that he received the arrest warrant for
[A]ppellant. On March 3, 2014, Deputy Joseph received a tip
from a Lehigh County Jail official that [A]ppellant was at a blood
clinic in Allentown. Deputy Joseph went to the clinic and took
with him a photograph of the [A]ppellant. Appellant was not at
the blood clinic. The deputy then began to search the area
around the clinic and located [A]ppellant in the 1300 block of
Wayne Street. Deputy Joseph approached [A]ppellant and asked
for identification. Appellant gave it and was cooperative. He
was taken into custody without incident.
Appellant took the stand in his own defense at trial. He
did not contest that he consciously failed to return to CCC.
However, he claimed that other inmates at the CCC were
threatening violence against him so he left the facility to ensure
his safety.
Appellant explained he was an inmate at the main Lehigh
County Jail prior to being placed in CCC. He claimed that he was
assaulted by several inmates at the jail on January 9, 2014. He
explained that he wrote to jail staff and expressed a desire to file
a private criminal complaint against his attackers. On January
16, 2014, Director Knappenberger responded to [A]ppellant’s
inquiry and provided him with the forms and directions needed
to file a private criminal complaint. Appellant admitted that he
never filed the complaint because he did not know the names of
his attackers.
Appellant testified that he was transferred to CCC on
January 28, 2014. Appellant stated that, on February 11, 2014,
he was confronted by a group of inmates at CCC. Two in the
group had box cutters. Some in the group told [A]ppellant to
leave CCC or he would be attacked. Immediately after the
confrontation, [A]ppellant filled out an unsigned request form
about the threat and placed it under the door of his case
manager. He also got a copy of the form to Sergeant Douglas
Moyer of CCC. Appellant did not reveal to his case manager or
Sergeant Moyer that he filled out the information on the form.
The next day, according to Appellant, he saw Sergeant Moyer
searching the lockers of the inmates who had confronted him.
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Appellant approached Moyer and told him to search inside a
jacket in one of the lockers. Sergeant Moyer did so and he
found box cutters there.
Appellant testified that, on February 18, 2014, he was
scheduled to leave CCC for a job search. At 4:45 a.m. prior to
his leaving CCC, [A]ppellant said he was confronted by two CCC
inmates in a bathroom. The inmates told [A]ppellant that they
knew that he was the person who had complained to CCC staff
about the box cutters. According to [A]ppellant, they told him to
leave the CCC or he would be attacked. Appellant left CCC as
scheduled without complaining to staff about the altercation.
Appellant told the jury that he went to his sister’s residence and
decided not to return to CCC because he feared that his life was
in danger.
Trial Court Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion)”, filed January 22,
2015, pp. 3-5.
Appellant’s own testimony established that there was no evidence of “a
history of futile attempts” to complain to authorities. To the contrary, CCC
staff took steps to ensure Appellant’s safety following his February 11, 2014
complaint. Further, Appellant’s testimony established that he did not
expeditiously return to the authorities once safe from the immediate harm
he alleged caused him to flee CCC. He did not need to return to CCC, he
simply needed to timely surrender to law enforcement officials somewhere.
He did not and testified he did not intend to do so.
Because Appellant’s own testimony defeated multiple duress
prerequisites, the Commonwealth met its burden of disproving the defense
of duress. See Kaminski, supra. Accordingly, Appellant’s sufficiency of
the evidence claim fails.
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Appellant next claims that the verdict was against the weight of the
evidence. See Appellant’s Brief, p. 13-14. Appellant bases this claim on his
conviction that his own testimony was “clear and wholly believable.” See id.
at 14. He is again incorrect.
The denial of a new trial based on a lower court’s determination that
the verdict was not against the weight of the evidence is one of the least
assailable reasons for granting or denying a new trial. See
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013). This Court
reviews weight of the evidence claims pursuant to the following standard:
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the
weight of the evidence is addressed to the discretion of the trial
court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge must
do more than reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal
citations, quotations, and footnote omitted).
Stated differently, a court may award a new trial because the verdict is
against the weight of the evidence only when the verdict is so contrary to
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the evidence as to shock one’s sense of justice, 2 “such that right must be
given another opportunity to prevail.” Commonwealth v. Goodwine, 692
A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight
claim consists of a review of the trial court’s exercise of discretion, not a
review of the underlying question of whether the verdict is against the
weight of the evidence. Widmer, 744 A.2d at 753. When reviewing the
trial court’s determination, this Court gives the gravest deference to the
findings of the court below. We review the court’s actions for an abuse of
discretion. Id.
Simply stated, the jury’s verdict in this matter illustrates that the jury
found the testimony of the Commonwealth’s witnesses credible, and
Appellant’s testimony incredible. The Commonwealth, as discussed supra,
proved every element of the crime of escape and disproved the defense of
duress. The trial court agreed with the jury’s assessment in denying
Appellant’s post-sentence motion for a new trial based on the weight of the
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This Court has explained the notion of “shocking to one’s sense of justice”
as follows:
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.
Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).
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evidence. As the trial court noted, “nothing about the jury’s verdict [] could
shock a reasonable person’s sense of justice.” See 1925(a) Opinion, p. 8.
Thus, Appellant’s weight of the evidence claim warrants no relief.
For the preceding reasons, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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