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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANNY RIVERA :
:
Appellant : No. 237 MDA 2020
Appeal from the Judgment of Sentence Entered October 16, 2019,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0003257-2018
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 24, 2020
Danny Rivera appeals from the judgment of sentence imposed following
his conviction of aggravated assault—bodily injury with a deadly weapon.1 We
affirm.
The trial court summarized the relevant factual history as follows:
Late on the night of June 2, 2018, Elizabeth Hall arrived
home from her job at the Family Dollar Store at about 11:50 p.m.
She had difficulty finding a parking place near her house because
of the presence of police vehicles. Ms. Hall lived at 73 North 18th
Street in Harrisburg. Two other people, Elizabeth Henderson and
Omar Alvarado lived there with her. Another person, Candi Potts
was staying at the house.
Elizabeth Henderson, Omar Alvarado, Candi Potts, her friend
Daisha, and several children were on Ms. Hall’s porch. Ms. Hall
learned that the police were responding to a call regarding
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2702(a)(4).
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[Rivera], although [Rivera] was not there at the time. Ms. Hall
knew [Rivera] as a customer who frequented the Family Dollar
Store where she worked.
Approximately fifteen minutes after police left, as the group
sat on the porch, Ms. Hall noticed a person she recognized as . . .
Rivera run up an alley toward the house. Ms. Hall heard him say
“I want you, you f------ b-----. I am going to get you, you f------
b-----.” Ms. Hall understood the comment to be directed to Candi
Potts. Potts began staying with Ms. Hall after she separated from
[Rivera]. Ms. Hall called 911 and reported that [Rivera] had
returned. [Rivera] banged on the door. Ms. Hall yelled through
the door that she had called the police. Police responded quickly
but did not find [Rivera]. After the police left, Ms. Hall saw
[Rivera] run toward the porch. Police again responded to her call,
but did not find [Rivera].
[Rivera] returned, this time in his truck. Ms. Hall saw him
get out of his truck, leave the door open, and point a gun at the
people on the porch. Everyone attempted to rush into the house.
Ms. Hall grabbed the children and pushed them indoors. [Rivera]
raised the pointed gun toward the second or third floor of the
house and fired a shot. Omar Alvarado and Candi Potts did not
make it into the house. [Rivera] yelled to Candi Potts, “I am going
to kill you, you f------ b---- .” Omar Alvarado grabbed [Rivera].
A scuffle ensued. [Rivera] put the gun to Alvarado’s head. Ms.
Hall could hear them arguing in Spanish. Alvarado yelled for her
to open the door. Ms. Hall called the police. Ms. Hall saw a
crescent shaped cut on Omar Alvarado’s face which was bleeding
and swollen.
Harrisburg Police Officer Martise Scott was working the night
shift and responded to multiple calls that [Rivera] was harassing
his ex and residents of the house. As Officer Scott left the
property following one of the responses, he saw the vehicle
described as [Rivera’s]. As Officer Scott radioed to another officer
that he would return to the address, he received a dispatch which
indicated that a gun was involved. Officer Scott turned the lights
on his police vehicle off and approached [Rivera’s] vehicle. Officer
Scott saw [Rivera] on the porch striking Omar Alvarado multiple
times with a black object in his hand. Officer Scott yelled for
[Rivera] to stop what he was doing. [Rivera] threw the black
object off the porch and resumed striking Alvarado. Another
Officer, Tyler Auerbeck, arrived to assist. Officer Scott told
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Auerbeck that [Rivera] had thrown an object off the porch to the
neighboring property. [Rivera] followed the officers’ commands
to stop and came off the porch, where they placed him in a prone
position and searched him for firearms.
Omar Alvarado told Officer Auerbeck that [Rivera] pistol
whipped him. Officer Auerbeck observed an injury on Omar
Alvarado’s face. Officer Auerbeck searched the porch of the
property next door and found a loaded and operational black 40
caliber pistol. He cleared the firearm and secured it in his vehicle
to be sent to the Pennsylvania State Police ballistics lab.
Officer Nathaniel Pucciarello also responded to the
numerous calls to 73 North 18th Street that evening of an ongoing
domestic incident involving [Rivera]. During those visits, Officer
Pucciarello counseled Ms. Potts as to protection from abuse and
victim/witness resources. In his last response, he arrived as
Officers Scott and Auerbeck were taking [Rivera] into custody.
Officer Pucciarello located an unfired 40 caliber handgun round.
Officers swept the area for the casing of a fired bullet but were
unable to find one.
Officer Gregory Hill also responded that evening to the
various calls. Following his response to an unrelated incident,
Officer Hill arrived at the scene to take custody of evidence and
assist with interviews. Ms. Potts refused to speak with Officer Hill.
Ms. Hall and others provided statements. Officer Hill placed
[Rivera] in his vehicle and read him his Miranda rights. [Rivera]
denied what the witnesses reported or that he had gun or pistol
whipped anyone.
Pennsylvania State Police firearm and tool mark examiner
Todd Neumyer examined the firearm and found that the magazine
cartridge, which could hold up to ten cartridges, contained eight
undischarged cartridges. The firearm had visible powder residue
in the barrel. The serial number of the firearm was obliterated
but retrieved by Mr. Neumyer.
Candi Potts testified that she and [Rivera] had broken up on
the day of the incident because she learned that [Rivera] had been
cheating on her. Ms. Potts acknowledged that she refused to talk
to police that night. She denied that [Rivera] was yelling when he
arrived that night, that she heard gunshots, or saw [Rivera] with
a gun. Ms. Potts claimed that another person, a Michael Bell, with
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whom she had a previous relationship, put the gun on the property
next door.
Trial Court Opinion, 3/26/20, at 1-4 (footnote and citations to the record
omitted).
Following this incident, police formally arrested Rivera and charged him
with multiple counts of aggravated assault, firearm offenses, and recklessly
endangering another person, as well as other related offenses. The matter
proceeded to trial, at the conclusion of which a jury found Rivera guilty of
aggravated assault—bodily injury with a deadly weapon, and not guilty of the
remaining charges. On October 16, 2019, the trial court sentenced Rivera to
serve thirty-three to eighty-four months in prison. Rivera filed a timely post-
sentence motion which the trial court denied. Rivera filed a timely notice of
appeal.2 Both Rivera and the trial court complied with Pa.R.A.P. 1925.
Rivera raises the following issue for our review:
Whether the trial court abused its discretion in denying [Rivera’s]
post-sentence motion because the jury verdict was so contrary to
the weight of the evidence as to shock one’s sense of justice where
[Rivera] was charged with an element of aggravated assault,
bodily injury with a deadly weapon and was acquitted of that
element/crime?
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2 The notice of appeal incorrectly states that the appeal is taken from “the
judgment of sentence entered in this matter on the 17th day of September
2019 and the denial of Post-Sentence Motions on the 29th day of January
2020.” While the notice indicates an incorrect date for the judgment of
sentence, and purports to appeal from the January 29, 2020 order denying
the post-sentence motions, the appeal properly lies from the judgment of
sentence imposed on October 16, 2019. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (correcting
the caption when appellant misstates where the appeal lies).
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Rivera’s Brief at 5 (excessive capitalization omitted).
Rivera challenges the weight of the evidence supporting his conviction.
The following legal principles apply when a challenge to the weight of the
evidence supporting a conviction is presented to the trial court:
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) (citations,
footnotes and quotation marks omitted). Thus, to allow an appellant “to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
[trial] court.” Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super.
2016) (internal citation omitted).
An appellate court’s standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the
trial court:
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Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
original, internal citations omitted).
The Crimes Code defines aggravated assault—bodily injury with a deadly
weapon as follows: “[a] person is guilty of aggravated assault if he . . .
attempts to cause or intentionally or knowingly causes bodily injury to another
with a deadly weapon.” 18 Pa.C.S.A. § 2702(a)(4).
Rivera claims that the trial court abused its discretion in denying his
post-sentence motion challenging the verdict based on the weight of the
evidence. He argues that the plain language of the aggravated assault statute
includes the use of a deadly weapon as a specific statutory element. Rivera
maintains that the only potentially applicable deadly weapon in this case was
a firearm.
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Rivera points out that the Commonwealth charged him with the separate
crime of persons not to possess a firearm pursuant to 18 Pa.C.S.A. § 6105. 3
He stipulated at trial that he was ineligible to possess a firearm. Thus, Rivera
asserts, the only issue for the jury to decide on that particular count was
whether he possessed, used, or controlled a firearm on the night in question.
Rivera contends that the Commonwealth failed to prove that element beyond
a reasonable doubt because the jury acquitted Rivera of persons not to
possess a firearm.
Rivera does not claim this is a case of inconsistent jury verdicts.
Instead, he claims that “this is a case of the Commonwealth choosing to
charge an element of one crime as a separate crime and what must happen
when the factfinder acquits on that underlying element/crime.” Rivera’s Brief
at 14. According to Rivera, his conviction cannot stand because the jury
specifically found that he did not commit the offense of person not to possess
a firearm.
The trial court considered Rivera’s weight challenge and determined that
the verdict did not shock one’s conscience. It reasoned:
The evidence demonstrated that [Rivera] fired shots toward
the porch and that when Omar Alvarado attempted to intervene,
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3 Section 6105 provides, in relevant part, as follows: “[a] person who has been
convicted of an offense enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or whose conduct meets
the criteria in subsection (c) shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.” 18 Pa.C.S.A. § 6105(a).
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[Rivera] hit Alvarado in the face with a black object, causing
injury. [Rivera] then threw the black object onto a neighboring
property. Police found a black handgun with two bullets missing
from the cartridge. Forensic examination revealed that the gun
ha[d] been discharged. With that evidence, the jury could easily
conclude that [Rivera] struck and injured Alvarado with the
handgun he discarded.
The verdict is consistent with the weight of evidence despite
the jury’s acquittal of [Rivera] on the weapons charges. In
Commonwealth v. Moore, [103 A.3d 1240, 1249 (Pa. 2014)],
the Pennsylvania Supreme Court upheld the defendant’s
conviction for possession of an instrument of crime where the
defendant was acquitted of related offenses involving use of that
instrument of a crime, such as a firearm. The Supreme Court
reiterated the “longstanding principles that juries may issue
inconsistent verdicts and that reviewing courts may not draw
factual inferences in relation to the evidence from a jury’s decision
to acquit defendant of a certain offense.” [Id.] The Supreme
Court reminded that, although verdicts may be logically
inconsistent, inconsistent acquittals are not grounds for reversal
of a conviction. [Id. at 1250].
Trial Court Opinion, 3/26/20, at 6-7.
As discussed above, we give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial court’s
determination that the verdict is not against the weight of the evidence. In
this matter, we discern no abuse of discretion by the trial court in arriving at
its determination that the verdict of guilt did not shock the conscious despite
the fact that the jury acquitted Rivera of persons not to possess a firearm.
Pennsylvania courts have long recognized that jury acquittals may not be
interpreted as specific factual findings with regard to the evidence, as an
acquittal does not definitively establish that the jury was not convinced of a
defendant’s guilt. Moore, 103 A.3d at 1246. Rather, it has been the
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understanding of the courts of this Commonwealth that an acquittal may
merely show lenity on the jury’s behalf, or that “the verdict may have been
the result of compromise, or of a mistake on the part of the jury.” Id.
Accordingly, Rivera’s weight challenge merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2020
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