Com. v. Cruz, G. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GABRIEL M. CRUZ,
Appellant No. 611 EDA 2014
Appeal from the Judgment of Sentence January 13, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CR-51-CP-0011957-2011
BEFORE: BOWES, JENKINS, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 12, 2015
Gabriel M. Cruz appeals from the January 13, 2014, judgment of
sentence of thirty to sixty years imprisonment, which was imposed following
his convictions for attempted murder, aggravated assault, and conspiracy to
commit aggravated assault.1 We affirm.
The facts as recited by the trial court are as follows:
On May 9, 2010, at approximately 8:15 p.m., Felix Santos
was rushed to Temple University Hospital after suffering multiple
stab wounds to the chest and torso. Due to extreme blood loss
and the resulting loss of oxygen to the brain, he was put on life
support, and is expected to remain in a vegetative state for the
duration of his life. The stabbing occurred as a result of a
dispute over a parking space located on the 700 block of West
Butler Street in Philadelphia. The detectives recovered a bloody
kitchen knife belonging to the complainant on the porch of 712
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The jury acquitted Appellant of conspiracy to commit murder.
*
Retired Senior Judge assigned to the Superior Court.
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West Butler Street. The complainant resided at 712 West Butler
Street with his wife and children.
On the day of the stabbing, Mr. Santos had returned home
from shopping with his wife and two children at approximately
6:30 p.m., and temporarily parked his car in front of a fire
hydrant. When the parking spot directly in front of his house
became available shortly thereafter, Mr. Santos’ eighteen-year-
old son moved their car into that spot. Upon viewing the parked
car, Mr. Santos’ neighbor, who is the mother-in-law of the
Defendant, approached him and insisted he move his car. The
interaction became increasingly hostile and ended when the
neighbor spit in the complainant’s face. The complainant then
returned to his house with his family and called the police. A
few minutes later the neighbor’s son, and brother-in-law of the
Defendant, co-defendant Jose Torres, began knocking on Mr.
Santos’ porch door threatening to kill him. When the
complainant offered no response to Torres’ threats, Torres got a
shovel and proceeded to repeatedly hit the complainant’s car
with it. Several members of Torres’ family were outside their
house during this altercation. Upon hearing the car alarm, Mr.
Santos took his child’s baseball bat and approached Torres
outside. His wife and children followed him. Mr. Santos struck
Torres with the bat. The police arrived and instructed everyone
to return to their residences. Before the police left, the
complainant’s other son returned home from the store with his
uncle. He testified to seeing ten people outside on the street,
including the Defendant.
Shortly after returning to his residence, Mr. Santos
received a call from his cousin, who resided across the street at
711 West Butler, concerning Mr. Santos’ fourteen-year-old
nephew. Co-defendant Torres and several other unidentified
men had attacked Mr. Santos’ nephew outside of the house
because they knew he was a member of the complainant’s
family. The complainant’s nephew also resided at 711 West
Butler and had been on his way home from the park on his bike.
After receiving this telephone call, Mr. Santos, his wife, his
brother, and his two sons went out of the house towards the
street. At this point, a “melee” erupted between the Torres
family and the Santos family.
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Trial Court Opinion, 6/30/14, at 2-3.
Christina Santos, the victim’s wife, testified that Appellant’s wife
grabbed her by the hair and threw her down to the ground. While
restrained, she saw her husband running up the porch steps with Jose
Torres, Appellant, and Khalief Green in pursuit. Mrs. Santos watched as
Appellant held her husband’s arms while Torres stabbed him multiple times.
Mr. Santos’s son Delmy, who was fourteen years old at the time of the
incident, placed Appellant at the scene during the first disturbance quelled
by police. Delmy saw his father on the telephone and then followed him as
he ran outside with a baseball bat. He witnessed his cousin, aunt, and older
brother on the ground being assaulted and his father striking an unknown
man with the bat. Delmy recounted how an unidentified man threatened to
kill him with a knife. The last thing he remembered prior to waking up in an
ambulance was being punched in the face by Appellant.
Carmen Santos, the victim’s sister, saw Appellant beat her fourteen-
year-old son. When she tried to intervene, he attacked her. She testified
that Mr. Santos came to her defense and swung the bat at Appellant,
knocking him down, but Appellant took the bat and hit the victim on the
head with it. Carmen witnessed Appellant punch the victim’s son in the
head. She also saw her brother being restrained by Appellant on his own
porch while Torres stabbed him. She did not tell police that day that she
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witnessed the stabbing for fear of retaliation. She identified the perpetrators
four days later after witnessing several members of the Torres family
celebrating that they had killed her brother.
Mr. Santos’s oldest son, eighteen-year-old Felix, identified Appellant
and co-defendant Green as the men restraining his father, but he did not
actually see the stabbing. He confirmed his aunt’s testimony that Appellant
fled toward a red car and added that Appellant had a shiny object in his
hand that was about three or four inches long.
As Philadelphia Police Officer Roberto Luciano arrived, he saw a red
Buick carrying three or four passengers fleeing the scene. He was unable to
stop the vehicle. The officer found Mr. Santos unconscious on the porch
steps of his home and arranged for another responding officer to transport
him to the hospital.
Approximately one week later, witnesses identified Appellant from
photographs. The red car was identified as a 2002 Buick LeSabre belonging
to Appellant’s wife. After an arrest warrant was issued for Appellant, he
turned himself in to police and provided a statement in which he admitted
being at the location of the fight, but denied that he had any contact with
any males.
The jury found Appellant guilty of attempted murder, aggravated
assault, and conspiracy to commit aggravated assault. He was sentenced
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initially on September 26, 2013, to a term of imprisonment of twenty to
forty years for attempted murder, ten to twenty years for aggravated
assault, and ten to twenty years for conspiracy, with all sentences to run
consecutively. Appellant filed a motion for reconsideration of sentence on
October 5, 2013, which was denied on October 8, 2013. On October 25,
2013, the trial court granted a motion to reconsider the sentence and
conducted a hearing.
On January 14, 2014, the court concluded that merger applied to the
convictions for attempted murder and aggravated assault. Hence, it
resentenced Appellant to twenty to forty years incarceration for attempted
murder and a consecutive ten to twenty year sentence of imprisonment on
the conspiracy count. Appellant filed a post-sentence motion challenging the
weight and sufficiency of the evidence and the discretionary aspects of his
sentence. Relief was denied. Appellant appealed and complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.
Appellant presents two issues for our review:
A. Was the evidence presented by the prosecution sufficient
enough to support a conviction for the crime of attempted
murder and aggravated assault?
B. Did the trial court commit an abuse of discretion by imposing
upon the Appellant a manifestly excessive sentence of thirty
(30) to sixty (60) years?
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Appellant’s brief at unnumbered 6.2
Appellant’s first issue presents a challenge to the sufficiency of the
evidence of attempted murder and aggravated assault. Our standard of
review is well settled:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light
most favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Kelly, 102 A.3d 1025, 1028 (Pa.Super. 2014) (en
banc).
Appellant was charged and convicted of attempted murder of the first
degree, 18 Pa.C.S. § 901. That section provides:
(a) Definition of attempt. -- 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.
“A criminal homicide constitutes murder in the first degree when it is
committed by an intentional killing.” 18 Pa.C.S. § 2502(a). We held in
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The Commonwealth did not file a brief.
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Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa.Super. 2005),
that “for the Commonwealth to prevail in a conviction of criminal attempt to
commit homicide, it must prove beyond a reasonable doubt that the accused
with a specific intent to kill took a substantial step towards that goal.”
Accord Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008). The
specific intent to kill can be inferred from the circumstances surrounding an
unlawful killing or from the fact that the accused used a deadly weapon to
inflict injury to a vital part of the victim's body. Commonwealth v.
Geathers, 847 A.2d 730, 737 (Pa.Super. 2004); accord Commonwealth
v. Sattazahn, 631 A.2d 597 (Pa.Super. 1993) (specific intent to kill may be
inferred from use of a deadly weapon to inflict injury to a vital part of the
victim's body).
Appellant argues that the facts of the instant case do not establish that
he had a specific intent to kill Mr. Santos. He maintains that the incident
was a brawl, there was no evidence that Appellant and his co-defendants
intended to kill, and that there was no proof that he was aware that his co-
defendant had a knife while he was restraining the victim.
The trial court correctly instructed the jury that, in order to convict for
attempted murder, the jury would have to find that Appellant and his co-
defendants stabbed Mr. Santos with the specific intent to kill him. N.T.,
9/28/12, at 119. The jury found Appellant guilty of attempted murder. The
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trial court found the evidence that Appellant aided his co-defendant in using
a deadly weapon on Mr. Santos’s heart sufficient to support the jury’s finding
of a specific intent to kill. Appellant counters that there was no evidence
that his co-defendant targeted the victim’s heart and that it was just as
likely that his intent was merely to injure him.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we find sufficient evidence to support the attempted
murder conviction. Appellant physically restrained the victim to assist his
co-defendant as he stabbed the victim in the chest area three times with a
knife. The treating trauma surgeon testified that the stab wounds were
located near the armpit, the chest, and the abdomen. One of the stab
wounds injured the victim’s heart, and another nicked his bowel. Evidence
of use of a deadly weapon multiple times on a vital part of the victim’s body
was legally sufficient to support the attempted murder conviction.
Appellant next contends that the evidence was insufficient to convict
him of aggravated assault. Appellant does not dispute that serious bodily
injury was inflicted herein and that even reckless conduct is sufficient to
sustain the aggravated assault conviction.3 However, he maintains that
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3
The victim, Mr. Felix Santos, was hospitalized from May 9, 2010 until June
21, 2010, when he was sent to an LTAC unit due to the fact that he was on a
(Footnote Continued Next Page)
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there is no evidence of intent to cause serious bodily injury to the
complainant because he did not possess the knife used to assault the
complainant.
The fact that Appellant did not personally wield the knife does not
relieve him from criminal liability as an accomplice. There was ample
evidence that Appellant restrained the victim to facilitate the stabbing by his
co-defendant. Having already concluded that there was evidence of specific
intent to kill to support the attempted murder conviction, we need not go
further. The specific intent to kill necessarily includes the intent required to
establish aggravated assault, i.e., the intentional, knowing, or reckless
infliction of serious bodily injury. See Commonwealth v. Anderson, 650
A.2d 20, 24 (Pa. 1994) (holding intent necessary to establish specific intent
to kill greater than and necessarily includes intent required to establish
aggravated assault). This claim is without merit.
Appellant’s second issue is a challenge to the discretionary aspects of
his sentence. Acknowledging that he is not entitled to review as of right, we
note that he filed both a post-sentence motion and a Pa.R.A.P. 1925(b)
statement preserving the issue. Two additional requirements must be met
before we review the challenge on the merits. He must set forth in his
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(Footnote Continued)
breathing machine. He sustained a hypoxic brain injury, and at the time of
sentencing, Mr. Santos remained unconscious and in a vegetative state.
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appellate brief a Pa.R.A.P. 2119(f) statement of reasons for allowance of
appeal and demonstrate “that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.”
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014). We
evaluate whether a substantial question has been raised on a case-by-case
basis. Id.
Appellant’s brief contains the concise statement. He claims that his
sentence was excessive and that the trial court failed to explain how it was
the least stringent one “adequate to protect the community and to serve the
rehabilitative needs of the public.” Appellant’s brief at unnumbered 11.
Since Appellant has asserted more than a bald excessive sentence claim, we
find he has raised a substantial question. See Commonwealth v.
Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015) (finding substantial question
where excessive sentence claim was made in conjunction with assertion that
the court did not consider mitigating factors). We now turn to the merits.
In reviewing a sentence, we are highly deferential to the trial court.
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
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Appellant contends that the thirty to sixty year aggregate sentence of
imprisonment was manifestly unreasonable. He alleges that the trial court
did not individualize his sentence or place adequate reasons on the record to
justify the length of the sentence. While conceding that the sentence is
within the statutory maximum, and hence legal, Appellant levels criticism
against the court for focusing too heavily on the injuries of the victim, rather
than the other 42 Pa.C.S. § 9721 factors such as the public’s need for
protection and the defendant’s need for rehabilitation.4
In sentencing beyond the aggravated range, the trial judge must
explain why this particular offense is more severe than the normal crime of
this type. Commonwealth v. Caraballo, 848 A.2d 1018, 1020 (Pa.Super.
2004). The trial court explained that the victim herein sustained more than
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4
We note that the trial court stated in its Rule 1925(b) opinion that
Appellant was convicted of conspiracy to commit murder, which carries an
offense gravity score (“OGS”) of fourteen. Trial Court Opinion, 6/30/14, at
13. It added that, with a prior record score of five, offenses designated with
an offense gravity score of fourteen carry a sentence range of sixteen years
to the maximum allowed by statute, which was not more than forty years.
Id. (citing 18 Pa.C.S. § 1102(c)). It then imposed what it characterized as
an aggravated range sentence of ten to twenty years on the conspiracy
charge.
Appellant was convicted of conspiracy to commit aggravated assault,
rather than conspiracy to commit murder. N.T., 9/28/12, at 141.
Conspiracy to commit aggravated assault carries an OGS of ten. With a
prior record score of five, the standard range is sixty to seventy-two months,
plus or minus twelve months. Appellant, however, does not challenge herein
the trial court’s utilization of the incorrect OGS.
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the serious bodily injury usually associated with these offenses as Mr. Santos
was brain dead and sustained on life support. Additionally, the court
demonstrated its knowledge of Appellant’s role in the events resulting in his
convictions. The court had the opportunity to observe Appellant throughout
trial and consider the remarks of his family members who spoke on his
behalf at the first sentencing hearing. At that hearing, there was an on-the-
record discussion of the applicable sentencing guidelines and Appellant’s
prior record.
At the resentencing, the court stated on the record that it relied upon
a presentence report, a mental health evaluation, arguments of counsel, and
the prior sentencing hearing in arriving at its sentence. N.T. Sentencing,
1/13/14, at 6. “When, as here, the trial court has the benefit of a pre-
sentence report, we presume that the court was aware of relevant
information regarding the defendant's character and weighed those
considerations along with any mitigating factors.” Commonwealth v.
Seagraves, 103 A.3d 839, 842 (Pa.Super. 2014). For these reasons,
Appellant’s discretionary sentencing challenge fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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