J-A05043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE GARCIA :
:
Appellant : No. 2349 EDA 2019
Appeal from the Judgment of Sentence Entered April 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005886-2018
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: March 11, 2021
Appellant Bruce Garcia appeals from the judgment of sentence of one
(1) year to two (2) years in prison entered in the Court of Common Pleas of
Philadelphia County on April 8, 2019, for his convictions of Simple Assault and
Possession of an Instrument of Crime (PIC) following a non-jury trial.1 We
affirm.
The trial court detailed the facts and procedural history herein as
follows:
[Appellant] and Caroline Axan (“Complainant”) were once
romantic partners who became engaged to be married in April
2017. N.T. 2/1/19 at 11. They shared a home together on North
Percy Street in the city and county of Philadelphia. N.T. 2/1/19 at
12. On the night of July 29, 2018, Complainant's son, Dominic
Rodriguez (“Rodriguez”), then sixteen years old, was visiting for
the weekend. N.T. 2/1/19 at 12-13, Rodriguez arrived at the
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2701(a) and 907(a), respectively.
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house at approximately 7:00 PM to an already irritable
[Appellant]. N.T. 2/1/19 at 13-14. [Appellant] and Complainant
argued when Complainant asked [Appellant] for a cigarette. N.T.
2/1/19 at 14. Knowing Complainant was trying to quit smoking,
Rodriguez had thrown away a pack containing three cigarettes.
N.T. 2/1/19 at 69. Learning this, [Appellant] became verbally
aggressive toward Rodriguez, accusing Rodriguez of disrespecting
his mother. Id. [Appellant] shouted, and Rodriguez said, “don't
get loud with my mom.” N.T. 2/1/19 at 14. Rodriguez then saw
[Appellant] go to the kitchen and get a large kitchen knife,
measuring approximately twelve inches long.3 N.T. 2/1/19 at 18
and 70. [Appellant] began saying things like, “I'm a crazy mother
fucker, I'm not afraid of jail, and so on.” N.T. 2/1/19 at 14 and
70.
Rodriguez tried to deescalate the situation by walking
outside and speaking to his girlfriend on the phone who had been
on the phone throughout the argument. N.T. 2/1/19 at 29, 70,
and 77-78. [Appellant] followed Rodriguez and sat on one of the
steps leading to the house. N.T. 2/1/19 at 17. Complainant
followed [Appellant], and saw him holding the knife behind his
back. Id. Complainant tried to get around [Appellant] to be near
Rodriguez standing close by. Id. As Rodriguez stepped forward to
get between [Appellant] and Complainant, [Appellant] stood up
and grabbed Complainant by her hair and pulled her backward,
while continuing to hold the knife in his other hand. N.T. 2/1/19
at 17-24, 40. Complainant fell over the step, cutting her knee.4
N.T, 2/1/19 at 31. [Appellant] held the knife, pointing it toward
Complainant, holding it only two or three inches from her face.
N.T. 2/1/19 at 20. [Appellant] declared, “I’m a crazy mother
fucker. I’m not going to jail.” Id. [Appellant] pointed at Rodriguez
with his right hand, continuing to hold the knife on his left side.
N.T. 2/1/19 at 25 and 73-75. Rodriguez got his foot behind
[Appellant’s] foot and [Appellant] tripped, falling backward to the
ground. N.T. 2/1/19 at 76. Complainant got the knife away from
Defendant and placed it in a nearby trash can. N.T. 2/1/19 at 27
and 77.
The police arrived at 1:30 AM on July 30, 2018.5 They
recovered the knife from the trash can, arrested [Appellant], and
transported Complainant to the hospital to be treated for injuries.
N.T. 2/1/19 at 34. Complainant was not injured by the knife. N.T.
2/1/19 at 31.
[Appellant] was convicted of simple assault and PIC before
this Honorable Court on February 1, 2019. A Presentence
Investigation (“PSI”) was ordered and [Appellant] appeared for
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sentencing on April 8, 2019. [Appellant’s] offense gravity score
was a three, and after some discussion, his prior record score was
determined to be a five.6 N.T. 4/8/19 at 3-6. The guidelines call
for a range of six to sixteen, plus or minus 3. N.T. 4/8/19 at 6.
Defense counsel asked for a time-served probationary sentence,
citing a difficult childhood and low IQ, clean criminal history for
nearly ten years, and his housing accommodations once he is
released as mitigating factors, and his good behavior as an
inmate. N.T. 4/8/19 at 8, Defense counsel conceded that
[Appellant] had yet to complete anger management but stated
that “JJPI has a much more complex program and that's
something that he is planning to do going forward.” N.T. 4/8/19
at 9. Additionally, Defense Counsel admitted exhibit D-2, a
mitigation memo prepared by counsel on [Appellant’s] behalf. N.
T. 4/8/19 at 7.
The Commonwealth asked for a sentence of two to four
years’ incarceration followed by one year of probation, to be
supervised by the Mental Health Unit and with domestic violence
conditions. N.T. 4/8/19 at 11. The Commonwealth cited numerous
aggravating factors, including [Appellant’s] prior criminal history
involving violence against women, and even previous arrests
involving this same [C]omplainant. N.T. 4/8/19 at 13-15.
Additionally, the Commonwealth admitted exhibit C-2,
excerpts from calls made by [Appellant] from custody. In those
calls, [Appellant] repeatedly tried to convince Complainant not to
show up to court so the charges would be dropped. In a call on
August 29, 2018, [Appellant] said to Complainant, “If this goes to
trial and no one shows up, I could get out; If they send you a
subpoena and you don’t show up two times, they’ll cut me lose.”
[Appellant] also implored Complainant to outright lie about what
happened on July 29-30, 2018. On August 30, 2018, [Appellant]
said to Complainant, “You are a pretty good liar, if you fill out my
affidavit my attorney will back you up.” Furthermore, [Appellant]
showed no remorse for his actions, telling Rodriguez on
September 6, 2018, “If you were somebody else you would help
me you would forget everything. You did this to yourself.” Finally,
[Appellant] told Complainant on September 18, 2018, “I don't
know what's going to happen, my freedom is in your hands and
on your son’s hands.”
During his allocution, [Appellant] recited a statement he had
prepared for the court. He read:
When I get out of jail-I mean, when I get out, my
goals are to continue to go to my probation, take care of
my family and kids. I'm going to keep doing my mental
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health and I am going to try to find a legal job, even
though I get SSI. I really want to do good with myself,
like a normal person. I want to depend on myself and
not my SSI.
I will never, ever, ever bother the [C]omplainant
that put this case on me, because this time I have been
locked up and I have learned my lesson. And from now
on, I'm going to do the best of me. I'm going to move
forward and not look back. And I promise that I won't
fail you or my probation officer, especially my kids and
family or myself.
That's why I'm asking you to give me an
opportunity to come back to my community and be a
man at this time and prove to my community and family
that I am a way better man than I ever was. Thank you.
That is all I have to say for now.
N.T. 4/8/19 at 18. The [c]ourt thanked [Appellant] for his
statement, and asked if [Appellant] had anything else he would
like to add, to which [Appellant] assented, and the following
exchange ensued:
THE [APPELLANT]: When the DA said that I was calling
the [C]omplainant, I didn't want to call her. She told my
sister for me to call her.
MS. EAGAN: Mr. Garcia-
THE COURT: Well, he could say whatever he wants.
Anything else?
THE [APPELLANT]: I didn’t want to call her. I didn’t want
to contact her.
THE COURT: You didn’t want any contact, but, yet, you
called her on the phone.
Got it.
THE [Appellant]: I stopped calling her, thought [sic]. I
stopped calling her.
THE COURT: All right.
I see.
N.T. 4/8/19 at 19. The Court then stated:
I need to take into consideration the need of
protection of the public. And although you were just
convicted of misdemeanors, this is a serious case and
you have a serious record...
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The fact that you have some very serious cases -
your background gives me great concern. And even
today, it’s your opportunity for allocution, after reading
a very well-written statement, you continued saying that
it's the [C]omplainant that was the one initiating this
contact.
Sir, I think C-2 speaks for itself. And if this is
appealed, this would certainly be in the record. There
are multiple phone calls and conversations. And your
inability to stay away from the [C]omplainant and the
attempts to affect this case, are sickening to me.
N.T. 4/8/19 at 20-21. The [c]ourt imposed a sentence of one to
two years on both charges, to run concurrently, with no probation
tail.7 N.T. 4/8/19 at 22. The [c]ourt noted that [Appellant] was
recommended for boot camp, if eligible. Id. Finally, the [c]ourt
explained, “You've been on probation for 10 years. I think when
you’re on probation, you do pretty well. But I don't want you to
be on probation when you've already been on probation for 10
years.” N.T. 4/8/19 at 23.
Through counsel, [Appellant] filed a timely motion for
reconsideration of sentence on April 18, 2019, raising issues
pertaining to his VOP sentences, rather than those of the
underlying offense. Defendant's motion was denied by operation
of law on August 19, 2019. [Appellant] filed a timely notice of
appeal on August 20, 2019. [Appellant] was ordered by this
Honorable Court to file a Concise Statement of Matters
Complained of on Appeal, under Pa.R.A.P. 1925(b). [Appellant]
filed a 1925(b) statement on August 30, 2019; however, issues
regarding a previously-employed court reporter delayed
production of the notes of testimony, which were produced on
October, 8, 2019 and [Appellant] was ordered to file a 1925(b)
statement by October 29, 2019.8 On November 5, 2019, this
[c]ourt issued a final warning ordering [Appellant] submit his
supplemental 1925(6) statement by November 15, 2019.
[Appellant] filed his 1925(b) statement on November 15, 2019.
____
3 The photo of the knife was admitted as Commonwealth exhibit
C-1. N.T. 2/1/19 at 19.
4 Complainant also reported injuries to her neck and arm, but no
photographs nor medical records were provided to that effect.
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5 Complainant could not recall exactly how much time had passed
throughout the evening and how long the incident lasted;
however, it was stipulated by and between counsel that the police
arrived at approximately 1:30am the following day. N.T. 2/1/19
at 33.
6 There was some discrepancy as to whether [Appellant] should
be considered a RFEL or a five for purposes of prior record. N.T.
4/8/19 at 3-6.
7 [Appellant] also had two VOPs related to this matter, which were
not appealed in the instant matter. [Appellant’s] total
commitment came to two to four years on the misdemeanors and
VOPs: N.T. 4/8/19 at 22 and 25.
8 Turnover in the Office of the Court Reporter led to significant
delays in production of notes of testimony. On September 18,
2019, this [c]ourt issued an order directing the Office of the Court
Reporter to produce the necessary notes of testimony by
September 27, 2019. The Court's Judicial Law Clerk emailed
counsel that the notes were available and provided notice of the
new due date for [Appellant’s] 1925(b) statement.
Trial Court Opinion, filed 12/20/19, at 1-6.
On March 20, 2020, Appellant filed a “Motion to Allow Appellant to
Supplement Appellant’s Brief with Additional Questions Presented, or, in the
Alternative, Vacate the Briefing Schedule and Remand to the Trial Court to
Permit Appellant to file a Supplemental Statement of Errors Complained of on
Appeal.” Upon consideration thereof, this Court entered a Per Curiam Order
on April 13, 2020, wherein we stated the following:
[T]he record and the petition are hereby REMANDED to the trial
court for a period of sixty (60) days. Appellant shall be permitted
to file in the trial court and serve upon the trial judge a
supplemental Pa.R.A.P. 1925(b) statement of errors complained
of on appeal, within thirty (30) days of the date that this Order is
filed. The trial judge shall prepare a supplemental opinion,
pursuant to Pa.R.A.P. 1925(a), in response to the supplemental
Rule 1925(b) statement, if necessary, within thirty (30) days of
the date the supplemental statement is received. The trial court
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shall include the supplemental Rule 1925(b) statement and any
supplemental opinion in the certified record.
The Prothonotary of this Court is directed to provide copies
of this Order to the trial court clerk of courts and the Honorable
Zachary C. Shaffer. The briefing schedule is hereby VACATED, to
be re-established by the Prothonotary of this Court upon the
return of the certified record. Jurisdiction is retained.
In compliance with this Court’s Order, on April 23, 2020, Appellant filed
his Second Supplemental Statement of Matters Complained of on Appeal, and
the trial court filed its Supplemental Opinion pursuant to Pa.R.A.P. 1925(a)
addressing Appellant’s supplemental issues on July 22, 2020.
In its Supplemental Opinion, the trial court fully incorporated its
December 20, 2019, Rule 1925(a) Opinion. Additionally, the court found that
to the extent Appellant’s argument could be construed as a challenge to the
charging documents, Appellant had waived any challenge to the Bill of
Information for counsel’s failure to preserve such a challenge at trial.
The trial court further construed Appellant’s references in his
Supplemental Statement of Matters Complained of on Appeal to understaffing
at the Defender Association of Philadelphia as an ineffective assistance of
counsel claim which it deemed “should be properly addressed by way of
collateral appeal under the Post-Conviction Relief Act.” Trial Court Opinion,
filed 7/22/20, at 1-3.
In his brief, Appellant presents the following issue for our review:
Did not the trial court err in finding the evidence sufficient
to sustain a verdict of guilt beyond a reasonable doubt for the
charges of simple assault and possessing instruments of crime
where the evidence of record, viewed in the light most favorable
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to the Commonwealth, was equally consistent with Appellant's
guilt as it was with his innocence insofar that the evidence
supported the diametrically opposed conclusions that Appellant
intended his conduct for the named complainant, Carolyn Axten,
and that he, alternatively, intended his conduct exclusively for
Dominic Rodriguez, against whom Appellant was not accused of
committing any crime?
Brief for Appellant at 3.
Appellant states “[t]he evidence of record is confusing and difficult to
reconcile given the patent inconsistencies between the witnesses’ testimonies,
and the internal contradictions within [the Complainant’s] individual
testimony.” Brief for Appellant at 4. Appellant maintains when the evidence
is viewed in a light most favorable to the Commonwealth as the verdict winner,
it supports two diametrically opposed inferences, namely, that Appellant
intended to direct his conduct toward both the Complainant and Rodriguez
and that he intended it only toward Rodriguez, who was not named as a
complainant.
Relying upon the Pennsylvania Supreme Court’s decision in In re J.B.,
189 A.3d 390, 409 (Pa. 2018), Appellant urges this Court to apply the
exception to the rule of appellate deference, because “[the Complainant’s]
testimony was, on its own, ‘so unreliable or contradictory that it is insufficient
as a matter of law to convict’ 189 A.3d at 415, n. 26.” Brief for Appellant at
21-27. Appellant reasons this is so because the trial court “exclusively relied”
on the Complainant’s contradictory testimony she provided in her direct and
cross-examination rather than upon the “consistently more cogent and
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consistent” testimony of Rodriguez. Id. at 28. Following our review, we
disagree.
First, an argument that the finder of fact should have credited one
witness’s testimony over that of another witness goes to the weight of the
evidence, not the sufficiency of the evidence. Commonwealth v. W.H.M.,
932 A.2d 155, 160 (Pa.Super. 2007) (explaining claim that jury should have
believed appellant's version of events rather than that of victim goes to
weight, not sufficiency of evidence); Commonwealth v. Wilson, 825 A.2d
710, 713–14 (Pa.Super. 2003) (concluding sufficiency of evidence does not
include assessment of credibility of testimony; such claim goes to weight of
evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997)
(stating credibility determinations are made by finder of fact and challenges
to those determinations go to weight, not sufficiency of evidence).
Instantly, Appellant's contention the Complainant’s testimony was
inconsistent and that the jury should have credited Rodriguez’s testimony
rather than hers is not a proper challenge to the sufficiency of the evidence;
rather, this issue implicates the weight of the evidence. See W.H.M., supra;
Wilson, supra; Gaskins, supra. Because Appellant did not preserve a
challenge to the weight of the evidence before the trial court, he waived that
claim on appeal. See Pa.R.Crim.P. 607(A) (explaining claim that verdict is
against weight of evidence shall be raised with trial judge in motion for new
trial orally before sentencing, by written motion before sentencing, or in post-
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sentence motion); Wilson, supra (explaining challenge to weight of evidence
is waived if not raised before trial court).
Further, even assuming, arguendo, we could construe Appellant's issue
as a challenge to the sufficiency of the evidence, it would not merit relief.
When examining a challenge to the sufficiency of evidence, this Court employs
a well-settled standard of review:
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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
The Pennsylvania Crimes Code defines simple assault as follows:
§ 2701. Simple Assault
(a) Offense defined.—Except as provided under section 2702
(relating to aggravated assault), a person is guilty of assault if he:
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(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly
weapon;
(3) attempts by physical menace to put another in fear of
imminent serious bodily injury; or
(4) conceals or attempts to conceal a hypodermic needle on
his person and intentionally or knowingly penetrates a law
enforcement officer or an officer or an employee of a correctional
institution, county jail or prison, detention facility or mental
hospital during the course of an arrest or any search of the person.
***
18 Pa.C.S.A § 2701(a). PIC requires:
§ 907. Possessing instruments of crime
(a) Criminal instruments generally.--A person commits a
misdemeanor of the first degree if he possesses any instrument
of crime with intent to employ it criminally.
***
18 Pa.C.S.A. § 907(a). An “instrument of crime” is defined, in pertinent part,
as “[a]nything specially made or specially adapted for criminal use.” 18
Pa.C.S.A. § 907(d).
When determining the evidence was sufficient to find Appellant guilty of
Simple Assault and PIC, the trial court reasoned as follows:
Here, [Appellant] brandished a twelve-inch kitchen knife,
and pulled Complainant by her hair, causing her to fall and hurt
her knee. N.T. 1/2/19, at 18, 31 and 70.[2] Appellant’s language
communicated his intent to at least place Complainant in fear of
imminent serious bodily injury, as well as his complete disregard
for the law or safety of others. N.T. 2/1/19 at 14 and 20.
____________________________________________
2 The Commonwealth presented a photograph of the Complainant’s injured
knee as Commonwealth Exhibit 2.
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[Appellant’s] language together with actually injuring Complainant
established that [Appellant] had a minimum mens rea of
negligence, which is sufficient to find [Appellant] guilty of Simple
Assault and PIC.
Trial Court Opinion, filed 12/20/19, at 7.
Appellant’s arguments to the contrary, the trial court relied upon both
the Complainant’s words as well as Appellant’s own hostile statements heard
by both Rodriguez and the Complainant in reaching its verdict. Upon our
review of the trial testimony, we agree with the trial court’s summary thereof
which, when read in its totality, establishes, at a minimum, that Appellant
recklessly caused the Complainant bodily injury. It also shows that Appellant
placed the Complainant in fear of serious bodily injury when during an intense
argument he waved a large kitchen knife in her face which, when utilized in
such a manner, constitutes an instrument of crime. 18 Pa.C.S.A. § 907(d).
In fact, Appellant admits in his appellate brief that he “pointed a knife towards
her[.]” Brief for Appellant at 8.
Furthermore, in In re J.B. supra, our Supreme Court found that the
evidence had been insufficient to establish a juvenile's identity as the person
who killed the victim and her unborn child, as required for his adjudication as
delinquent. The court held:
In sum, then, all of the Commonwealth's forensic and
eyewitness testimony, and all reasonable inferences derived
therefrom, viewed in a light most favorable to it, was, at best, in
equipoise, as it was equally consistent with two possibilities: first,
that a person or persons unknown entered the house in which
J.B.'s stepmother was sleeping and shot her to death after J.B.
and his sister had left for school on the morning of February 20,
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2009; second, the Commonwealth's theory that, after J.B.'s father
left for work, J.B., in full view of J.H., walked upstairs and
retrieved a .20 gauge shotgun from his bedroom, walked back
downstairs, retrieved a shotgun shell from a box of shells located
in an armoire in the victim's bedroom on which the television set
she was watching was located, shot the victim in the back of the
head as she lay on the bed facing that television, took the shotgun
back upstairs and returned it to its former position — after wiping
it clean of any physical evidence caused by the shooting — then
caught the school bus with J.H., and went to school as if it were
any other normal morning. The Commonwealth's evidence was,
therefore, insufficient as a matter of law to overcome Appellant's
presumption of innocence, and the juvenile court's adjudication of
his delinquency for these serious crimes must be reversed. See
Woong Knee New, 47 A.2d at 468 (“When a party on whom rests
the burden of proof in either a criminal or a civil case, offers
evidence consistent with two opposing propositions, he proves
neither.”); Tribble, 467 A.2d at 1132 (“[S]ince the testimony
presented by the Commonwealth to establish appellant's guilt is
at least equally consistent with appellant's innocence, there is
insufficient evidence to sustain appellant's conviction.”).
In Interest of J.B., 647 Pa. 339, 390–91, 189 A.3d 390, 421–22 (2018).
As the above excerpt evinces, in In re J.B., the reliability of the forensic
evidence, which was essential to convict J.B., was in question. To the
contrary, Appellant’s argument herein is essentially that the trial testimony of
Rodriquez and the Complainant, the latter of which was at times inconsistent,
was diametrically opposed and, therefore, insufficient as a matter of law for a
conviction. However, it is well established that:
Existence of inconsistencies in the testimony of a witness does not
alone render evidence insufficient to support a verdict.
Commonwealth v. Long, 425 Pa.Super. 170, 624 A.2d 200, 208
(1993), appeal denied, 535 Pa. 645, 633 A.2d 150 (1993)
(internal citation omitted). See also Commonwealth v. Pierce,
446 Pa. 479, 288 A.2d 807 (1972) (holding where inconsistencies
of each witness's testimony were brought out in cross-
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examination and fairly presented to jury, mere conflict in
testimony does not render evidence insufficient).
Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.Super. 2003).
Viewed in a light most favorable to the Commonwealth as the verdict-
winner, we agree with the trial court's finding that the evidence was sufficient
to convict Appellant of simple assault and PIC. See 18 Pa.C.S.A. §§ 2701(a),
907(a); Hansley, supra. By Appellant’s own admission, the evidence was as
consistent with his guilt as with his innocence of the charged crimes.
The minor inconsistencies in the testimonial evidence about which
Appellant argues were for the trial court to resolove and do not dictate a
finding the evidence was not sufficient for conviction. From the testimony
presented at trial, the trial court, as the finder of fact, could reasonably
conclude that Appellant’s language and aggressive behavior while wielding a
kitchen knife placed the Complainant in fear of serious bodily injury. See
Smith, 97 A.3d at 790 (explaining that the finder of fact is free to believe all,
part or none of the evidence). Accordingly, Appellant’s sufficiency challenge
fails, and we affirm his judgment of sentence.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/21
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Com. v. Garcia, B.
Combined Opinion