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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSE EL RIVERA ANDRADES,
Appellant No. 272 WDA 2015
Appeal from the Judgment of Sentence January 29, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001253-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 27, 2016
Appellant, Jose El Rivera Andrades, appeals from the judgment of
sentence1 entered following his convictions of aggravated assault, terroristic
threats, simple assault (2 counts), and recklessly endangering another
person (“REAP”). We affirm.
The trial court summarized the factual history of this case as follows:
On August 18, 2013, Appellant assaulted his then-
girlfriend, Wanda Crespo at their residence. . . . .
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1
We note that, inexplicably, the Commonwealth and Appellant indicate on
the front pages of their briefs that this case involves an appeal from the
dismissal of a petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Moreover, the Commonwealth’s brief
sets forth the standard for review of a PCRA petition in the argument section
of its brief. As indicated by the record, Appellant has filed a direct appeal
from entry of his judgment of sentence.
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On that date, Appellant arrived home and Ms. Crespo
observed that his speech was slurred, his face was “droopy”, and
he appeared “high”. After she asked Appellant if he was taking
her medication, Appellant became upset and hit Ms. Crespo in
the face. Appellant then began strangling her to the point that
she almost lost consciousness. Appellant also grabbed a knife
and stabbed at the wall directly next to Ms. Crespo’s face.
During the assault, Appellant threatened to kill her.
After the assault, Appellant told Ms. Crespo not to tell
anyone, or he would [ ] kill her and her family, starting with the
young children first. Out of fear, Ms. Crespo waited
approximately one week before she contacted police.
Trial Court Opinion, 5/12/15, at 1 (internal citations omitted).
Following a jury trial, Appellant was convicted of the afore-mentioned
offenses. On January 29, 2015, Appellant was sentenced to a term of eighty
to one-hundred-and-sixty months of incarceration at count 1 (aggravated
assault) and a concurrent ten to twenty-four months of incarceration at
count 4 (terroristic threats). The remaining counts merged for sentencing
purposes.
Appellant filed a timely appeal.2 Both the trial court and Appellant
complied with the requirements of Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Did the Lower Court ERR by allowing the jury to find the
Appellant guilty of attempted Aggravated Assault when the
evidence as submitted by the Commonwealth was insufficient to
establish the elements of the charge?
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2
Although Appellant chose to represent himself at trial, Appellant has
appointed appellate counsel.
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II. Did the Lower Court ERR in its’ instructions to the jury on
the charge of Attempted Aggravated Assault?
Appellant’s Brief at 1 (verbatim).
In his first issue, Appellant argues that the evidence at trial was
insufficient to establish that he was guilty of aggravated assault. Appellant’s
Brief at 4. Appellant asserts that although the victim’s testimony established
that Appellant hit and choked her, there was no testimony establishing that
the victim suffered serious bodily injury. Id. Appellant further contends
that the fact that there was no serious bodily injury to the victim at the time
of or after the altercation “proves he did not have the requisite intent and
therefore the evidence was insufficient to substantiate the jury’s finding of
guilt on the Attempted Aggravated Assault charge.” Id. at 5.
Our standard of review for a sufficiency claim is well settled:
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,
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.
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Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011).
Appellant was convicted of aggravated assault under 18 Pa.C.S.
§ 2702(a)(1), which provides as follows:
Aggravated assault
(a) Offense defined.--A person is guilty of aggravated assault
if he:
(1) 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. § 2702(a)(1). “Serious bodily injury” is defined 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. § 2301. “For aggravated assault purposes, an ‘attempt’ is found
where the accused, with the required specific intent, acts in a manner which
constitutes a substantial step toward perpetrating a serious bodily injury
upon another.” Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.
Super. 2012).
Where the victim does not suffer serious bodily injury, the
charge of aggravated assault can be supported only if the
evidence supports a finding of an attempt to cause such injury.
A person commits an attempt when, with intent to commit a
specific crime, he does any act which constitutes a substantial
step toward the commission of that crime. An attempt under
Subsection 2702(a)(1) requires some act, albeit not one causing
serious bodily injury, accompanied by an intent to inflict serious
bodily injury. A person acts intentionally with respect to a
material element of an offense when ... it is his conscious object
to engage in conduct of that nature or to cause such a result. As
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intent is a subjective frame of mind, it is of necessity difficult of
direct proof. The intent to cause serious bodily injury may be
proven by direct or circumstantial evidence.
Martuscelli, 54 A.3d at 948 (internal citations and quotation marks
omitted).
Testimony at trial established that after the victim questioned
Appellant about taking the victim’s medication, Appellant became very
upset. N.T., 11/12/14, at 8. Appellant first started shouting and yelling at
the victim, and then he proceeded to hit the victim in the face and strangle
her. Id. at 9. While strangling the victim, Appellant pulled her to the floor.
Id. Appellant threatened to kill the victim and mused aloud to the victim
how easy it would be to kill her and get rid of her by putting her body in the
trunk of the car. Id. After the victim was able to get up, the confrontation
moved to the kitchen of the victim’s home. Id. at 10. There, Appellant
grabbed a knife and swung it at the victim, sticking the knife in the wall very
close to the victim’s face. Id. at 10.
Thus, the evidence of record supports the finding of an attempt to
cause serious bodily injury. Appellant’s actions of hitting, strangling,
threatening, and aiming a knife at the victim’s head constituted substantial
steps toward causing serious bodily injury and reflected his intent to do so.
Based on the totality of circumstances, we agree with the trial court’s
conclusion that there was sufficient evidence of record to support Appellant’s
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conviction of aggravated assault under 18 Pa.C.S. § 2702(a)(1). Appellant’s
first claim is meritless.
Appellant next argues that the trial court failed to properly instruct the
jury on the “attempted aggravated assault” charge. Appellant’s Brief at 6.
Appellant maintains that the trial court’s instructions on “attempted
aggravated assault were not clear as to the two elements: intent to commit
serious bodily injury and a substantial step toward serious bodily injury.”
Id. (emphasis in original). Accordingly, Appellant contends the verdict as to
that charge should be vacated. Id.
We are precluded from addressing the merits of this claim because
Appellant has waived this issue. To preserve error regarding jury
instructions, a defendant must make a specific objection at trial.
Pa.R.Crim.P. 647(B); Pa.R.A.P. 302(b). “A specific and timely objection
must be made to preserve a challenge to a particular jury instruction.
Failure to do so results in waiver.” Commonwealth v. Charleston, 16
A.3d 505, 527 (Pa. Super. 2011) (quoting Commonwealth v. Moury, 992
A.2d 163, 178 (Pa. Super. 2010)). Here, Appellant failed to raise any
objection to the jury charge at trial. N.T., 11/12/14, at 69, 72-74.
Therefore, he has waived any claim of error to the charge.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2016
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