Com. v. Morales, J. (memorandum)
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J-S32004-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOSE VASQUEZ MORALES Appellant No. 147 WDA 2013 Appeal from the Judgment of Sentence March 8, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011282-2009 BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J. MEMORANDUM BY PANELLA, J.: FILED JULY 10, 2014 Appellant, Jose Vasquez Morales, appeals from the judgment of sentence, nunc pro tunc, entered by the Honorable Kathleen A. Durkin, Court of Common Pleas of Allegheny County. - appointed counsel, Christy Foreman, Esquire, has petitioned to withdraw and has submitted an Anders1 to The Commonwealth of Pennsylvania charged Morales with a multitude of crimes arising from his actions during the evening of April 6, 2009. On that night, Morales was staying with Wilma Stevens. ____________________________________________ 1 Anders v. California, 386 U.S. 738 (1967). At one point in the J-S32004-14 night, Stevens believed that Morales was trying to steal from her, and the two began fighting. Morales took a gun from Stevens during the fight, and eventually, Stevens forced Morales from her home by hitting him over the head with a ceramic vase and pushing him out the back door. Immediately thereafter, Stevens heard gunshots coming from outside her home. She proceeded to her front door to ensure that it was secured to find that Morales was shaking the door knob in attempt to re-enter the house. Stevens did not call for help, believing that Morales merely needed time to cool off. Several minutes later, Stevens again heard gunshots. At around that time, Officer Ryan Young observed Morales crossing the street and could see that Morales was covered in blood. Hoping to assist Morales, Officer Young stopped his vehicle approximately 25 feet from Morales. Once Officer Young trained his spotlight on Morales, he noticed that Morales was wielding a single firearm with both hands. As Officer Young radioed for backup, he observed that Morales was running towards him. Officer Young began to exit his cruiser in case he needed to draw his service weapon, at which point Morales rounded the front of the cruiser and raised the firearm above his head and ultimately pointed it at Officer Young. Shortly thereafter, Morales pulled the trigger on his weapon in an attempt to fire at Officer Young. With the help of Officer Aaron Loughran, Officer Young managed to disable Morales. -2- J-S32004-14 During the subsequent investigation, 4 empty shells were found in the .38 caliber revolver used by Morales. 3 bullets were found in the back door .38 caliber revolver. After a trial, a jury convicted Morales of one count of attempted homicide, one count of aggravated assault, one count of discharging a firearm into an occupied structure, and one count of resisting arrest. On March 8, 2011, the trial court sentenced Morales to a term of imprisonment of thirteen and one-half years to twenty-seven years. Counsel for Morales filed post-sentence motions, but did not file a notice of appeal when the motions were denied by operation of law. Morales subsequently filed a petition pursuant to the Post Conviction Relief Act, and on December 21, 2012, the PCRA court granted Preliminarily, we note that Attorney Foreman has petitioned to withdraw and has submitted an Anders brief in support thereof contending articulated the procedure to be followed when court-appointed counsel seeks to withdraw from representing an appellant on direct appeal as follows: [I]n the Anders brief that accompanies court-appointed a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel arguably believes supports the appeal; (3) -3- J-S32004-14 appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361 (2009). We note that Attorney Foreman has complied with all of the requirements of Anders as articulated in Santiago.2 We will now proceed to examine the issues set forth in the Anders brief, which Morales believes to be of arguable merit.3 Morales seeks to raise two issues on appeal: 1. Whether the evidence in this matter was insufficient to convictions of criminal attempt-criminal homicide, aggravated assault, discharging firearm into an occupied structure and resisting arrest. 2. the weight of the evidence. ____________________________________________ 2 Additionally, Attorney Foreman confirms that she sent a copy of the Anders brief to Morales as well as a letter explaining to Morales that he has the right to proceed pro se or the right to retain new counsel. A copy of the decision in Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005), must attach as an exhibit to the petition to withdraw filed with this Court a copy of the Id., at 749 (emphasis in original). 3 Morales filed a handwritten document, in Spanish, in response to Attorney F Anders brief. To the best of our ability to translate the document, it appears that Morales is alleging police and prison staff corruption, the denial of a translator to write his response for him, and assorted other inconveniences in his daily prison life, such as the lack of a television. -4- J-S32004-14 In his first issue, Morales argues that the evidence at trial was insufficient to support his convictions for attempted homicide, aggravated assault, discharging a firearm into an occupied structure, and resisting arrest. Our standard of review is well established. whether the evidence admitted at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, support all of the elements of the offense beyond a reaso Commonwealth v. Cooper, 596 Pa. 119, 130, 941 A.2d 655, 662 (2007). Our scope of review is plenary. See Commonwealth v. Weston, 561 Pa. 199, 203 n.8, 749 A.2d 458, 460 n.8 (2000). We may not weigh the evidence and substitute our judgment for the fact- - finder solely determines the credibility of witnesses and is free to believe all, part or none of the evidence submitted. See Cooper, 596 Pa. at 130, 941 the evidence is circumstantial rather than direct so long as the combination of Commonwealth v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super. 1994) (citation omitted). To sustain an attempted homicide conviction the Commonwealth must -5- J-S32004-14 the commission of the crime with a specific intent to kill. v. Dale, 836 A.2d 150, 152-153 (Pa. Super. 2003). Commonwealth law permits the fact finder to infer that one intends the natural and probable consequences Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008). Id y may properly infer malice from the use of a deadly Id. Officer Young testified that Morales pointed a firearm at him. See N.T., Trial, 12/13Id. Even though Officer Young began shooting at Morales, Morales continued to charge Officer Young with his firearm pointed at Officer Young. See id., at 85-86. Officer Aaron Loughran testified that when he arrived on the scene, he felt that Morales was shooting at Officer Young, trying to kill him. See id., at 99-100. Detective Margaret Sherwood testified that she discovered four empty shell casings in the .38 caliber revolver used by Morales. See id., at 51-52. However, only th See id., at 56. This evidence is sufficient for a jury to conclude that Morales pointed his firearm at Officer Young and fired one bullet at him. Thus, the jury could reasonably infer that Morales had utilized a deadly weapon in an attempt to -6- J-S32004-14 strike Officer Young in a vital area. This is sufficient to support a verdict of attempted homicide. of a police officer, we note that aggravated assault of a police officer is attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily me Commonwealth v. Gruff, 822 A.2d 773, 776 (Pa. Super. 2003) (citing Commonwealth v. Galindes, 786 A.2d 1004, 1009 (Pa. Super. 2001)). Based upon the same evidence outlined above, the jury was entitled to conclude that Morales attempted to cause serious bodily injury to Officer Young. Next, Morales challenges his conviction for discharging a firearm into an occupied structure. Wilma Stevens testified that immediately after closing her back door on Morales, she heard gunshots. 12/13-14/10, at 38. See N.T., Trial, As noted above, later investigation revealed three -7- J-S32004-14 bullet holes in the back door. See id., at 55-56. This evidence, in conjunction with the evidence regarding the empty shells in the firearm used by Morales set forth previously, was sufficient to allow the jury to conclude home while she was inside. In his final sufficiency challenge, Morales claims that the evidence at trial was insufficient to support his conviction for resisting arrest. A person servant from effecting a lawful arrest, or discharging any other duty, creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the PA. CONS. STAT. ANN. ยง 5104. We conclude that the evidence set forth above is more than sufficient to allow a jury to conclude that Morales intentionally interfered with Office duties and created a substantial risk to Officer Young, as well as requiring Officer Young and Officer Loughran to use substantial force in return. Thus, ave any merit. Morales also challenges the weight of the evidence supporting his convictions. Our standard of review for a challenge to the weight of the evidence is well settled. We may not substitute our judgment for that of the fact finder, who is free to believe all, part, or none of the evidence and to -8- J-S32004-14 determine the credibility of the witnesses. Commonwealth v. Diggs, 949 A.2d 873, 879 (2008). The trial court may only award a new trial where the Id rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa. Super. 2007) (citation omitted). Our review is thus limited to whether the trial court properly exercised its discretion, Diggs, 949 A.2d at 879. -sentence motion raising weight of the evidence, we have no difficulty in concluding that it did not abuse its discretion in denying the motion by operation of law. The factual scenario set forth above contains independent eyewitness testimony and forensic evidence supporting the convictions. There is no reaso After examining the issues contained in the Anders brief and after undertaking our own independent review of the record, we concur with -9- J-S32004-14 Judgment of sentence affirmed. Permission to withdraw as counsel is granted. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/10/2012 - 10 -
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