Com. v. Baez-Benitez, K. ( 2023 )


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  • J-S04036-23
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    KEVIN JAVIER BAEZ-BENITEZ                  :
    :
    Appellant               :   No. 738 EDA 2022
    Appeal from the Judgment of Sentence Entered December 1, 2021
    In the Court of Common Pleas of Lehigh County Criminal Division at
    No(s): CP-39-CR-0002462-2020
    BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
    MEMORANDUM BY PELLEGRINI, J.:                            FILED MARCH 1, 2023
    Kevin Javier Baez-Benitez (Baez-Benitez) appeals from the judgment of
    sentence imposed in the Court of Common Pleas of Lehigh County (trial court)
    pursuant to his jury conviction of firearms not to be carried without a license,
    terroristic threats, recklessly endangering another person (REAP) and simple
    assault by physical menace.1 He challenges the sufficiency of the evidence.
    We affirm.
    We take the following factual background and procedural history from
    the trial court’s April 27, 2022 opinion and our independent review of the
    record.
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   18 Pa.C.S. §§ 6106(a)(1), 2706(a)(1), 2705 and 2701(a)(3), respectively.
    J-S04036-23
    I.
    The trial court aptly describes:
    On July 2, 2020, at approximately 4:00 a.m., members of
    the Allentown Police responded to the vicinity of 1030 Linden
    Street. The initial call was a disturbance, but an additional
    dispatch warned that the dispatcher during a 9-1-1 call heard a
    shot fired. Upon the officers’ arrival, a search of the parking lot
    revealed a bullet hole above a wheel-well of a white Toyota
    Camry. It was determined that a “bullet traveled through the
    front of the fender, hit a shock absorber, went through an inner
    fender and came out into the engine compartment.” (N.T. Trial
    10/13/21, at 113-17).        Two fragments of the bullet were
    recovered.     A further search located a 9mm shell casing
    approximately twenty (20) feet north of the Toyota Camry.
    The Toyota Camry belonged to Jalessa Nuez, the victim in
    this case. Ms. Nuez … testified that earlier in the evening she went
    to the home of her friend, Danielle Smith, who resided with [Baez-
    Benitez] at 1030 West Linden Street. Ms. Nuez did not know
    Baez-Benitez very well, having met him only twice. Before the
    night of this incident, there was no ill will between [Baez-Benitez]
    and Ms. Nuez.
    Ms. Nuez arrived at the residence, and after some stops and
    starts, [Baez-Benitez] drove Ms. Nuez and Ms. Smith to a local
    tavern named Greg’s. Everyone consumed alcohol, and in the
    words of Ms. Nuez, “everyone was chillin’, having a good time.”
    (N.T. Trial, 10/12/21, at 78). Unfortunately, she had a kerfuffle
    with a female patron at the tavern, and her group was asked to
    leave.
    The group went back to Ms. Smith’s apartment, [where]
    [Baez-Benitez], Ms. Nuez, Ms. Smith, and a Melvin Castillo [hung
    out]. Ms. Smith, who was very intoxicated, began crying about
    [Baez-Benitez] and his cheating ways. Ms. Nuez, at some point,
    went outside to smoke a cigarette, and Ms. Smith followed her.
    [Baez-Benitez] then began yelling out the window at Ms.
    Smith, and then came downstairs and continued the argument.
    He demanded Ms. Smith come back to the apartment, and when
    she declined, the argument became physical.
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    Ms. Nuez told [Baez-Benitez] to remove his hands from Ms.
    Smith, and offered Ms. Smith a place to stay until things “cooled
    down.” [Baez-Benitez] responded that Ms. Smith was “not going
    anywhere.” Ms. Nuez then went upstairs to grab her purse and
    keys, and as she was leaving … [Baez-Benitez] … put the gun in
    her face. (See N.T. Trial, 10/12/21, at 86). She then called 9-1-
    1.
    The 9-1-1 call reveals that Ms. Nuez told the 9-1-1
    dispatcher that she was being threatened, and that “he’s gonna
    blow my head off ….” (Exhibit 9A, Transcript of 911 Call). [Baez-
    Benitez] is heard saying, “Oh, I’ll hurt you now that’s what I do,
    I’ll hurt you, that’s what I do, that’s what I do I hurt people.”
    (Id.). The 9-1-1 dispatcher also learned from Ms. Nuez that
    “Kevin” fired a “shotgun” at her. Something was lost in the
    translation, because it was clarified that [Baez-Benitez] shot a
    gun, not a shotgun. Ms. Nuez, during her testimony, described a
    handgun. “It’s a gun that a police officer holds,” approximately
    seven or eight inches in length. (N.T. Trial, 10/12/21, at 86-87,
    102, 143-44).
    Ms. Nuez made her way out of the apartment building, and
    while still on the phone with the 9-1-1 dispatcher, a gunshot is
    heard. The shot was fired as Ms. Nuez was headed towards her
    vehicle. “As I was walking across the street, he shot fire.... He
    was on the opposite side of my car” when he discharged the
    firearm. (Id. at 97-98, 118-19). She was unsure if [Baez-
    Benitez] was pointing the firearm at her or her vehicle.
    A video corroborating Ms. Nuez’s testimony was retrieved
    from a video camera that was attached to the south wall of a
    vacant building. The video depicts an individual, identified as
    [Baez-Benitez], firing the firearm, and Ms. Nuez is seen in close
    proximity to that event.
    Baez-Benitez, after discharging the firearm, fled in his
    vehicle, but later returned to the apartment building while the
    police were present. He told the officers that Danielle Smith had
    called him, and then departed the building. He did not identify
    himself to the officers, and the officers, who were still sorting out
    the incident, did not ask him for identification. The investigation
    later pinpointed [Baez-Benitez], and he was arrested in Reading.
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    J-S04036-23
    (Trial Court Opinion, 4/27/22, at 4-7) (footnotes omitted; record citations
    added).
    On October 14, 2021, a jury convicted Baez-Benitez of the foregoing
    charges.      The trial court ordered the preparation of a presentence
    investigation (PSI) report and held a sentencing hearing on December 1,
    2021, at which it sentenced him to a term of incarceration of not less than
    forty-two nor more than eighty-four months on the firearms charge, with all
    other sentences2 to run concurrently.            Baez-Benitez filed post-sentence
    motions that the trial court denied. He timely appealed and filed a court-
    ordered statement of errors complained of on appeal.               See Pa.R.A.P.
    1925(b).3
    ____________________________________________
    2 Specifically, the court sentenced [Baez-Benitez] to terms of not less than
    eighteen nor more than thirty-six months for terroristic threats, not less than
    twelve nor more than twenty-four months for REAP, and not less than twelve
    nor more than twenty-four months for simple assault.
    3 The trial court observes that Baez-Benitez’s sufficiency claims are waived
    because his Rule 1925(b) statement contains boilerplate allegations of
    insufficiency that lack specificity. (See Trial Ct. Op., at 7). It is well-settled
    that, “[i]n order to preserve a challenge to the sufficiency of the evidence on
    appeal, an appellant’s Pa.R.A.P. 1925(b) statement must state with specificity
    the element or elements upon which the appellant alleges that the evidence
    was insufficient[,]” and an appellant’s failure to do results in waiver.
    Commonwealth v. Ellison, 
    213 A.3d 312
    , 320-21 (Pa. Super. 2019)
    (brackets and citations omitted). Baez-Benitez’s Rule 1925(b) statement fails
    to identify the element or elements upon which he alleges the evidence is
    insufficient and merely states that “the evidence was insufficient as a matter
    of law to sustain the verdict of guilty” on each charge. (Rule 1925(b)
    Statement, at 1). Therefore, we deem his claims waived. Moreover, as
    explained above, they do not merit relief.
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    J-S04036-23
    On appeal, Baez-Benitez complains that the evidence was insufficient4
    to support his conviction of firearms not to be carried without a license,
    terroristic threats, REAP or simple assault.5
    ____________________________________________
    4   Our standard of review of this matter is well-settled:
    The standard of review for a challenge to the sufficiency of
    the evidence is to determine whether, when viewed in a light most
    favorable to the verdict winner, the evidence at trial and all
    reasonable inferences therefrom is sufficient for the trier of fact to
    find that each element of the crimes charged is established beyond
    a reasonable doubt. The Commonwealth may sustain its burden
    of proving every element beyond a reasonable doubt by means of
    wholly circumstantial evidence.
    The facts and circumstances established by the
    Commonwealth need not preclude every possibility of innocence.
    Any doubt raised as to the accused’s guilt is to be resolved by the
    fact-finder. As an appellate court, we do not assess credibility nor
    do we assign weight to any of the testimony of record. Therefore,
    we will not disturb the verdict 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.
    Commonwealth v. Vogelsong, 
    90 A.3d 717
    , 719 (Pa. Super. 2014)
    (citations and quotation marks omitted).
    5 The Commonwealth argues that Baez-Benitez’s arguments challenge Ms.
    Nuez’s credibility and the weight that was afforded to her testimony, which is
    not a proper sufficiency argument. (See Commonwealth’s Brief, at 7-9).
    While we agree with the Commonwealth’s observation, because we can clearly
    interpret his claims, we will review them under the proper sufficiency
    standard, but decline Baez-Benitez’s invitation to re-weigh the evidence. See
    Vogelsong, 
    90 A.3d at 719
     (“As an appellate court, we do not assess
    credibility nor do we assign weight to any of the testimony of record.”)
    (citation omitted); Commonwealth v. Betz, 
    664 A.2d 600
    , 604 (Pa. Super.
    1995) (sufficiency analysis does not permit re-examination of the credibility,
    reliability or weight of the evidence).
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    II.
    A.
    Baez-Benitez argues that the evidence was insufficient to convict him of
    firearms not to be carried without a license because it failed to establish that
    he possessed a firearm since Ms. Nuez was intoxicated6 and unable to see
    clearly on the night in question and she provided multiple accounts of the
    night’s events. (See Baez-Benitez’s Brief, at 14-15).
    Section 6106 of the Crimes Code provides, in pertinent part:
    [A]ny person who carries a firearm in any vehicle or any person
    who carries a firearm concealed on or about his person, except in
    his place of abode or fixed place of business, without a valid and
    lawfully issued license under this chapter commits a felony of the
    third degree.
    ____________________________________________
    6 The trial court notes that Baez-Benitez “overstates [Ms. Nuez]’s level of
    intoxication” in an attempt to discredit her. (Trial Ct. Op., at 10). Not only
    does his claim challenge the weight of Ms. Nuez’s testimony, our review of the
    record supports this observation. As the trial court observes:
    [Baez-Benitez]’s theory of misidentification is far-fetched. If Ms.
    Nuez, who was familiar with [him], was incorrect in her
    identification, then some gun-toting stranger threatened her, and
    for some unknown reason engaged in target practice with her
    vehicle. All of the events, which were corroborated, unfolded
    before her eyes. Her intoxication did not affect her identification
    of [Baez-Benitez.] …
    (Id. at 11).
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    J-S04036-23
    18 Pa.C.S. § 6106(a)(1).7 “In addition to proving the statutory elements of
    the crimes charged beyond a reasonable doubt, the Commonwealth must also
    establish the identity of the defendant as the perpetrator of the crimes.”
    Commonwealth v. Smyser, 
    195 A.3d 912
    , 915 (Pa. Super. 2018) (citation
    omitted).    “A victim’s in-court testimony, identifying the defendant as the
    perpetrator of a crime, is by itself sufficient to establish the identity element
    of that crime.” Commonwealth v. Johnson, 
    180 A.3d 474
    , 478 (Pa. Super.
    2018) (citations omitted). In fact, “[d]irect evidence of identity is, of course,
    not necessary and a defendant may be convicted solely on circumstantial
    evidence.” Smyser, 
    195 A.3d at 915
     (citation omitted).
    Ms. Nuez and Baez-Benitez were acquainted prior to the night of the
    incident. Ms. Nuez testified that she, Baez-Benitez and Ms. Smith returned to
    Ms. Smith’s apartment after being out at a bar and that Ms. Smith and Baez-
    Benitez began arguing. When Ms. Nuez and Ms. Smith went outside, Baez-
    Benitez put his hands on Ms. Smith and Ms. Nuez told her she could stay with
    her, and Baez-Benitez said, “[s]he’s not going anywhere.” (N.T., 10/12/21,
    at 85); (see id. at 84). Ms. Nuez went back inside to get her belongings and,
    as she is walking down the stairs of the building, she heard Ms. Smith scream
    and running footsteps behind her. (See id. at 85-86). When Ms. Nuez turned,
    ____________________________________________
    7  It is undisputed that Baez-Benitez was not licensed to carry a concealed
    firearm. (See Baez-Benitez’s Brief, at 14).
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    she saw Baez-Benitez with the gun in his hand, which he pointed at her face.
    (See id. at 86).
    Ms. Nuez called 9-1-1 and told the dispatcher that Baez-Benitez was
    going to “blow [her] head off.” (Exhibit 9A, Transcript of 9-1-1 call). Baez-
    Benitez could be heard in the background saying, “Oh, I’ll hurt you now that’s
    what I do … that’s what I do I hurt people.” (Id.). Ms. Nuez left the building
    while still on the telephone with the dispatcher, she said, “he shot fire … He
    was on the opposite side of my car” when he discharged the gun.         (N.T.
    Volume I, at 97-98, 118-19).
    Ms. Nuez testified that she is familiar with guns and that the one in
    Baez-Benitez’s hand was a 9mm handgun like the ones that police officers
    carry. (See id. at 86-87). A video attached to the wall of a building showed
    an individual, identified as Baez-Benitez, firing the gun near Ms. Nuez. (Id.
    at 111-12).
    Viewing this evidence in the light most favorable to the Commonwealth
    as verdict winner, it was more than sufficient to establish that Baez-Benitez
    unlawfully possessed a firearm. See Vogelsong, 
    90 A.3d at 719
    ; 18 Pa.C.S.
    § 6106(a)(1).
    B.
    Baez-Benitez argues that his conviction for terroristic threats arose out
    of his pointing a gun in Ms. Nuez’s face and, because there was no additional
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    evidence of an action or threat, the evidence was insufficient. (See Baez-
    Benitez’s Brief, at 15-16).
    Section 2706 of the Crimes Code provides, in pertinent part that, “[a]
    person commits the crime of terroristic threats if the person communicates,
    either directly or indirectly, a threat to[] commit any crime of violence with
    intent to terrorize another[.]” 18 Pa.C.S. § 2706(a)(1). “Accordingly, the
    Commonwealth must prove that 1) the defendant made a threat to commit a
    crime of violence, and 2) the threat was communicated with the intent to
    terrorize another or with reckless disregard for the risk of causing terror.”
    Commonwealth v. McCalman, 
    795 A.2d 412
    , 418 (Pa. Super. 2002), appeal
    denied, 
    812 A.2d 1228
     (Pa. 2002) (citation omitted). “[I]t is unnecessary for
    the defendant to specifically articulate the crime of violence which he or she
    intends to commit where the type of crime may be inferred from the nature
    of the statement and the context and circumstances surrounding the utterance
    of the statement.” In re Maloney, 
    636 A.2d 671
    , 675-76 (Pa. Super. 1994)
    (citation and brackets omitted).
    Baez-Benitez argues that in McCalman, the court found that the
    evidence was sufficient to support a charge of terroristic threats because the
    defendant pointed a gun in the faces of the victims and said, “go the f— away”
    to one of them, but that there was no evidence of an action or threat in this
    case. (See Baez-Benitez’s Brief, at 15-16). This argument is not supported
    by the record.
    -9-
    J-S04036-23
    Ms. Nuez testified that Baez-Benitez pointed a gun in her face and when
    she called 9-1-1, she told the dispatcher that she was being threatened and
    that “he’s gonna blow my head off.” (Exhibit 9A, Transcript of 9-1-1 Call). In
    the background, Baez-Benitez could be heard saying, “Oh, I’ll hurt you now
    that’s what I do … that’s what I do I hurt people.” (Id.).
    This evidence was sufficient to establish that Baez-Benitez threatened
    to commit a crime of violence with the intent to terrorize another.       See
    McCalman, 
    795 A.2d at 418
    ; In re Maloney, 
    636 A.2d at 67-76
    ; 18 Pa.C.S.
    § 2706(a)(1).
    C.
    Next, Baez-Benitez argues that the evidence was insufficient to prove
    the charge of REAP for shooting at the vehicle because “the undisputed
    evidence at trial established that [the] car was shot while no one was standing
    near it[,] [and t]herefore … [he] did not create an actual present ability to
    inflict harm to another person.” (Baez-Benitez’s Brief, at 17).
    “A person commits [REAP,] a misdemeanor of the second degree[,] if
    he recklessly engages in conduct which places or may place another person in
    danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. The Crimes
    Code defines “serious bodily injury” 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. REAP “requires the creation of danger, so the
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    Commonwealth must prove the existence of an actual present ability to inflict
    harm to another.” Commonwealth v. Shaw, 
    203 A.3d 281
    , 284 (Pa. Super.
    2019), appeal denied, 
    215 A.3d 964
     (Pa. 2019) (citation omitted). Although,
    “the mere act of discharging a firearm does not on its own constitute recklessly
    endangering another person[,]” a defendant’s shooting a handgun into the
    porch ceiling with a witness “mere feet away” is sufficient to support REAP.
    Id. at 284, 286 (citation omitted).
    Baez-Benitez pointed a loaded gun at Ms. Nuez’s face. She testified that
    when she approached her car on the driver’s side of the vehicle, he fired a
    shot from the passenger side. (N.T. Trial Volume I, at 97-98, 118-19). Video
    from a camera on a nearby building depicted an individual identified as Baez-
    Benitez shooting a gun with Ms. Nuez in close proximity. (N.T. Trial, Volume
    I, at 111-12); (N.T. Trial Volume II, at 136-41).
    The foregoing evidence was sufficient to support Baez-Benitez’s
    conviction of REAP where it established that he recklessly engaged in conduct
    that put Ms. Nuez in danger of death or serious bodily injury. See Shaw, 
    203 A.3d at 286
    ; 18 Pa.C.S. § 2705.
    D.
    Finally, Baez-Benitez challenges the sufficiency of the evidence to
    support his simple assault conviction. He maintains that the evidence was
    insufficient because “there was no one else in the parking lot” and “Ms. Nuez
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    J-S04036-23
    was clearly not fearful of imminent serious bodily injury.”    (Baez-Benitez’s
    Brief, at 17-18).
    To prove simple assault by physical menace, the Commonwealth must
    provide sufficient evidence that the accused “intentionally plac[ed] another in
    fear of imminent serious bodily injury through the use of menacing or
    frightening activity.” Commonwealth v. Reynolds, 
    835 A.2d 720
    , 726 (Pa.
    Super. 2003) (citation omitted); see 18 Pa.C.S. § 2701(a)(3) (“[A] person is
    guilty of [simple] assault if he … attempts by physical menace to put another
    in fear of imminent serious bodily injury[.]”).    “Intent can be proven by
    circumstantial evidence and may be inferred from the defendant’s conduct
    under the circumstances.”    Reynolds, 
    835 A.2d at 726
     (citation omitted).
    “[T]he act of pointing a gun at another person [can] constitute simple assault
    as an attempt by physical menace to put another in fear of imminent serious
    bodily injury.” 
    Id.
     (citation omitted).
    As stated elsewhere in this decision, the Commonwealth presented
    evidence that Baez-Benitez pointed a gun in Ms. Nuez’s face. He threatened
    her that he was going to hurt her because that is what he does, he hurts
    people. Later, he shot the gun in her vicinity. This evidence was sufficient to
    prove that Baez-Benitez intentionally placed Ms. Nuez in fear of imminent
    serious bodily injury through the use of menacing or frightening activity. See
    id.; 18 Pa.C.S. § 2701(a)(3). Baez-Benitez is due no relief.
    Judgment of sentence affirmed.
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    J-S04036-23
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/01/2023
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