Com. v. Lorenzo-Mercedes, Y. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
YEURY LORENZO-MERCEDES :
:
Appellant : No. 1057 MDA 2020
Appeal from the Judgment of Sentence Entered June 17, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005570-2016
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 15, 2021
Appellant, Yeury Lorenzo-Mercedes, appeals from the judgment of
sentence entered in the Court of Common Pleas of Dauphin County after a
jury found him guilty of aggravated assault.1 Sentenced to three to ten years’
imprisonment, he contends the evidence neither disproved that he acted in
self-defense during his conflict with the alleged victim nor proved that he
caused or intended to cause serious bodily injury. After careful review, we
affirm.
The following evidence was adduced at trial: Sebastian Roman, the
victim in this case, testified that he met Appellant in 2013 and eventually
formed a disagreement with Appellant’s friend “Jordy,” after Jordy’s ex-
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2702(a)(1).
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girlfriend began to date Mr. Roman. N.T., 6/10/19, at 52-54. About one week
prior to the evening in question, Mr. Roman was a patron at Sawyers bar in
Harrisburg when Jordy spotted him, antagonized him, and spit in his face while
talking too close. Roman pushed Jordy back, but nothing further materialized
between the men that evening. N.T. at 54-55.
One week later, on August 6, 2016, Roman again went to Sawyers,
where he consumed two or three beers by approximately 2:00 a.m., at which
time he noticed Jordy in the bar. As Roman was leaving, he saw Appellant
standing on Locust Street wearing a light-colored shirt. N.T. at 56. Appellant
motioned to Roman to come over.
As Roman approached, someone from behind hit him sharply in the back
of his head, knocking off his eyeglasses. He testified that without his glasses
he could see only colors and outlines of shapes. As he searched for his
glasses, he estimated three or four other people surrounded him in the alley
and started to hit him, including Appellant, whom Roman recognized from the
color of his shirt. N.T. at 56-58.
Appellant punched and kicked Mr. Roman multiple times. N.T. 59, 81.
When asked if he ever struck Appellant, Roman answered that he managed to
hit Appellant only once in his attempt to defend himself. Roman recalled
eventually collapsing and, after that, being put on a stretcher and taken to
the hospital in an ambulance. N.T. at 59.
Officer Daril Foose of the Harrisburg City Police Department was the van
driver for the patrol platoon that evening and was dispatched to a fight on
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Locust Street at approximately 2:00 a.m. on August 6, 2016. N.T. at 83-84.
Initially, she received a follow-up radio report that the fight had dispersed,
but as her van was stopped at a red light at Second and Locust Streets, she
noticed the assault in question unfolding to her right. N.T. at 87-89.
Officer Foose testified that there were four or five individuals near
Roman. N.T. at 89. A man, whom she identified as Appellant, walked towards
Roman and, after a brief exchange of words, punched him hard in the face.
Id. Officer Foose radioed that there was a fight, and she exited the van. N.T.
at 90. She witnessed Appellant strike Roman again with a closed fist punch
causing him to drop to the ground. Id. According to Officer Foose, Roman
did not have his hands up when Appellant landed the blows. N.T. at 96.
As Roman lay motionless, Appellant kicked him in the head at least three
times. Officer Foose described Appellant’s method of kicking as “curb-
stomping,” whereby Appellant raised his leg and “aggressively” stomped down
at a high rate of speed upon Roman’s head. N.T. at 90-91. As the officer
raced toward Appellant to intervene, she could see Roman was entirely unable
to defend himself and bleeding profusely; she expounded there was “a ton of
blood” that one would expect to find at a “homicide scene.” N.T. at 91.
Appellant was still stomping Roman when Officer Foose tackled him into a
garbage can. N.T. at 91-92.
Officer John Rosinski of the Harrisburg City Police Department, the
primary investigator for this case, testified that he was dispatched on August
6, 2016, at approximately 2:00 a.m. to an altercation happening on Locust
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Street. N.T. at 103. The dispatch followed a 911 call, where the caller
reported there was someone lying on the ground. When Officer Rosinski first
arrived near the designated area on Locust Street, directly behind Officer
Foose's van, he did not see anything happening.
While he was sitting in traffic, he heard Officer Foose address him by his
nickname, stating, “Riz, Riz, to the right, to the right.” N.T. at 106. He
witnessed her jump from the van and, upon looking to his right, observed the
assault in progress. Specifically, Officer Rosinski testified that he saw
Appellant holding onto a railing while forcefully kicking Roman, who was not
moving. Id. Appellant continued kicking Roman until Officer Foose tackled
him. N.T. at 107. Officer Rosinski confirmed observing the large amount of
blood all over the ground and on Roman, whom Officer Rosinski believed was
dead. N.T. at 108. He noted Appellant, in contrast, appeared to have no
injuries except for a slight bruise on his lip. N.T. at 110.
Johanna Lorenzo, Appellant’s cousin, testified for the defense and stated
she was out with Appellant, his brothers, other cousins, and friends, including
Jordy, on the evening of August 6, 2016, to celebrate the birthday of
Appellant’s stepmother at the downtown club, “Level 2.” Shortly after 2:00
a.m., she had just left the club and was walking to her car when she witnessed
approximately seven people jump Appellant, some of whom were throwing
punches. N.T., 6/11/19, at 128-129. Appellant was punching in return, she
testified, in an effort to defend himself against this group. N.T. at 131. She
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ran back inside the club for help, but when she returned police were at the
scene.
On cross-examination, Ms. Lorenzo explained that she did not call for
emergency assistance when she witnessed her cousin being beaten by seven
men because she had no phone on her, nor did she ask if anyone else could
call for help because she became too scared. N.T. at 133-34. She admitted
that she never contacted the police or the District Attorney’s office in the
ensuing three years to report Appellant’s strictly defensive role in the fight.
N.T. at 136-37.
Fabiola Colon, Appellant’s girlfriend at the time in question, also testified
for the defense. According to Ms. Colon, she and a friend were stopped at a
red light on Second Street that evening when she saw Appellant walking
backwards from five or six men who were converging upon him. N.T. at 139.
Concerned that the men were ready to “jump” Appellant, Ms. Colon got out of
her car, but she turned back when one of the men warned her that if she
interfered, she would get hurt. N.T. at 142, 146. She claimed the group of
men started to attack Appellant, kicking and punching him everywhere as he
lay on the ground. N.T. at 141. As Appellant was getting up off the ground,
Ms. Colon noticed another man confront him and initiate a fight, which she
was able to observe until the two men went around the corner. N.T. at 137-
141.
On cross-examination, Ms. Colon explained that she did not call 9-1-1
in an attempt to assist Appellant because she lost her cellphone that evening.
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She, too, acknowledged that never in the three years between the time
charges were filed and trial was commenced did she approach authorities with
her exculpatory eyewitness account. N.T. at 146-149.
Ms. Colon’s testimony was further rebutted by the testimony of Officer
Abigail Roberts of the Harrisburg Police Department, who interviewed Ms.
Colon at the fight scene that same early morning. According to Officer
Roberts, Ms. Colon reported only that she had attempted to make Appellant
stop fighting, and she never alleged Appellant had been attacked by a group
of men. N.T. at 159-160, 164.
Mr. Roman testified as to his numerous injuries which required stitches
in the left side of his head, nose, inside his lips, his ear lobe, and the top of
his ear. He also suffered brush burns on the left side of his head, arms, and
hands. N.T., 6/10/21, at 60, 64. His driver’s license photo, which was taken
twelve days after his injuries on August 18, 2016, was admitted at trial to
show that the stitches were still on his nose at that time. N.T. at 63.
Roman claimed that his injuries affected his life in many ways. He could
not sleep on the injured side of his head for months, and his ear was still
sensitive to the cold and wind. His eye was closed for a couple of weeks due
to a blood clot, the occurrence of which negatively affected his vision for nearly
one year afterward. Pain from the hairline fracture in his jaw prevented him
from eating solid food for weeks and has continued to occur whenever he bites
down hard. His broken nose caused long-term breathing issues requiring a
future surgery, and the hematoma on his head has caused chronic problems
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with balance, equilibrium, lightheadedness, dizziness, and sensitivity to light.
Roman explained that he had to participate in physical therapy four days a
week for four months. N.T. at 63-71.
After closing arguments, the trial court instructed the jury, in relevant
part, that in order to find that the Appellant attempted to cause serious bodily
injury, it first must find he engaged in conduct that constituted a substantial
step towards causing serious bodily injury to Mr. Roman; and second, that the
Appellant’s conduct in this regard was intentional. In other words, it was his
conscious object or purpose to cause such serious bodily injury. N.T. at 187.
The court further instructed that if the jury finds that the intervention of a
third party to stop the attack prevented serious bodily injury from occurring,
it may consider this as evidence as to whether Appellant’s substantial step
was done with the intent necessary to support a verdict of guilty. N.T. at 188.
The jury returned a verdict of guilty on the single count of aggravated
assault. In accordance with both this conviction and his prior guilty pleas to
the remaining counts of possession of a controlled substance, unlawful
possession of drug paraphernalia, and public drunkenness, the court
sentenced Appellant to three to ten years in prison. Appellant filed post-
sentence motions, which were denied, and he filed no direct appeal.
Subsequently, Appellant filed a petition pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, alleging trial counsel failed
to file a requested direct appeal on his behalf. Following a hearing on June
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16, 2020, the court reinstated Appellant’s direct appeal rights nunc pro tunc.
This counseled direct appeal followed.
Appellant presents the following questions for our consideration:
1. Was the evidence insufficient for the Commonwealth to
establish beyond a reasonable doubt that the Appellant was not
acting in self-defense during the alleged attack?
2. Was the evidence insufficient to show that the Appellant caused
or intended to cause serious bodily injury to the alleged victim,
as required to convict him of aggravated assault?
Appellant’s brief, at 7.
Appellant's issues challenge the sufficiency of the evidence to sustain
his convictions.
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict[-]winner, are sufficient to establish all
elements of the offense beyond a reasonable doubt. We may not
weigh the evidence or substitute our judgment for that of the fact-
finder. Additionally, the evidence at trial need not preclude every
possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant's guilt 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. When
evaluating the credibility and weight of the evidence, the fact-
finder is free to believe all, part, or none of the evidence.
Commonwealth v. Emler, 903 A.2d 1273, 1276 (Pa. Super. 2006) (citation
omitted).
A person is guilty of aggravated assault under 18 Pa.C.S.A.
§ 2702(a)(1) when he “attempts to cause serious bodily injury to
another ... under circumstances manifesting extreme indifference
to the value of human life.”
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The Crimes Code defines bodily injury as “impairment of physical
condition or substantial pain,” 18 Pa.C.S.A. § 2301, and 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.” Id.
“For aggravated assault purposes, an attempt is found where an
accused who possesses the required, specific intent acts in a
manner which constitutes a substantial step toward perpetrating
a serious bodily injury upon another.” Commonwealth v.
Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (internal quotations
omitted). Under the plain language of Sections 2702(a)(1), the
Commonwealth need only show that the defendant attempted to
cause serious bodily injury to another, not that serious bodily
injury actually occurred. Commonwealth v. Galindes, 786 A.2d
1004, 1012 (Pa. Super. 2001).
...
“If a defendant introduces evidence of self-defense, the
Commonwealth bears the burden of disproving the self-defense
claim beyond a reasonable doubt.” Commonwealth v. Houser,
610 Pa. 264, 18 A.3d 1128, 1135 (2011). The use of force against
a person is justified “when the actor believes that such force is
immediately necessary for the purpose of protecting himself
against the use of unlawful force” by the other person. 18
Pa.C.S.A. § 505(a). A self-defense claim thus entails three
elements: (1) the defendant reasonably believed that he was in
imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such
harm; (2) the defendant was free from fault in provoking the
difficulty which culminated in his use of deadly force; and (3) the
defendant did not violate any duty to retreat. Commonwealth
v. Mouzon, 617 Pa. 527, 53 A.3d 738, 740 (2012).
Commonwealth v. Steele, 234 A.3d 840, 846 (Pa. Super. 2020).
Appellant first argues that the evidence was insufficient to sustain his
conviction because the Commonwealth failed to disprove, beyond a
reasonable doubt, that Appellant acted in self-defense. Specifically, he points
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to Roman’s own testimony that other persons initiated the physical assault
against Roman by punching him in the back of the head and attacking him as
a group, and that it was Roman who responded with force directed against
Appellant.
The Commonwealth counters that Appellant was one of three or four
men who effectuated a planned group attack that instantly overwhelmed
Roman, and he eventually acted alone in brutally knocking out Roman and
kicking him in the head as he lay incapacitated. The evidence, the
Commonwealth maintains, demonstrates that Appellant was never justified to
use such force, as he provoked the violence and had no reason to believe
Roman placed him in danger of incurring serious bodily injury.
As discussed, Appellant raised a self-defense defense through
testimonies claiming he was the victim of Roman’s aggressions. The
Commonwealth set out to disprove this defense beyond a reasonable doubt
mainly through the respective testimonies of Roman and Officer Foose.
According to Mr. Roman, he was the victim of an ambush-style attack
from behind as he was walking toward Appellant, who had summoned him as
if wanting to discuss something. He described how the initial blow to the back
of his head knocked his glasses off, leaving him unable to see anything other
than shapes and colors and incapable of defending himself. While he managed
to land a single punch against Appellant in his early defensive efforts, he was
quickly overtaken by Appellant and his cohorts.
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Officer Foose testified that when she and Officer Rosinski arrived, she
witnessed Appellant, on his own, engaging a beaten and defenseless Mr.
Roman, who stood motionless with his hands by his side. She observed
Appellant deliver two uncontested punches to Roman’s face that dropped him
to the ground, and she ran to Roman’s aid as Appellant commenced curb
stomping his victim’s head. Only her running tackle of Appellant abated the
brutal attack.
Such evidence, reasonably accepted as true by the jury acting within its
province as sole finder of fact, demonstrated that Appellant not only provoked
the confrontation at issue but also had no reason to believe such extreme
force was necessary for his own protection against Mr. Roman. “[F]orce may
be met with force so long as it is only force enough to repel the attack.”
Steele, 234 A.3d at 847 (quoting Commonwealth v. Pollino, 467 A.2d
1298, 1300 (Pa. 1983)). Mr. Roman presented no threat of attack justifying
the extreme final salvo he received, as he had already been beaten into
submission by the group attack initiated by Appellant.
Discerning no reason to disturb the jury’s assessment of the evidence
in this regard, we conclude that the Commonwealth disproved beyond a
reasonable doubt Appellant’s claim of self-defense.
In Appellant’s remaining issue, he contends the evidence failed to show
that his acts demonstrated an “attempt[ ] to cause serious bodily injury to
another … under circumstances manifesting extreme indifference to the value
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of human life.” 18 Pa.C.S.A. § 2702(a)(1); Galindes, 786 A.2d at 1012. We
disagree.
“The intent to cause serious bodily harm may be shown by
circumstances surrounding the incident.” Commonwealth v. Caterino, 678
A.2d 389, 391 (Pa. Super. 1996). See also Commonwealth v. Glover, 449
A.2d 662, 665–66 (Pa. Super. 1982) (holding a jury could infer intent to cause
serious bodily injury where a group of three people hit a relatively smaller-
sized victim in the head and kicked him); Commonwealth v. Rodriquez,
673 A.2d 962, 965–67 (Pa. Super. 1996) (same). Moreover, repeatedly
punching a person in the face and stomping on his head while he is on the
ground all but guarantees the person will experience a serious bodily injury.
See Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa. 2006) (noting
a fact-finder is justified in finding intent based upon the intent suggested by
the conduct).
As described above, Appellant drew Mr. Roman into a group attack
which culminated with Appellant, on his own, beating a helpless Roman to the
ground with blows to the face and relentlessly stomping on the unconscious
man’s head afterward, with only Officer Foose’s forcible intervention
preventing Appellant’s continued onslaught. According to the officers, Roman
lay motionless in a pool of his own blood so copious that they were surprised
to discover he was still alive.
These facts show Appellant caused or intended to cause serious injury
to Roman. Indeed, Roman sustained serious injuries from this beating,
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including a concussion, a blood clot in his eye, a fractured jaw that continues
to cause pain when he bites down hard, a broken nose that requires further
surgery, and lingering problems with his balance that has prevented him from
participating in activities with his children. Accordingly, we deem Appellant’s
claim meritless, and hold the evidence was sufficient to sustain Appellant's
conviction for aggravated assault.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/15/2021
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