Commonwealth v. Amaro, J-A08001-15

• Decision Date: 18 May 2015
• Docket Number: J-A08001-15,No. 551 MDA 2014,551 MDA 2014
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. HERIBERTO LABOY AMARO, Appellant

COMMONWEALTH OF PENNSYLVANIA, Appellee v. HERIBERTO LABOY AMARO, Appellant

J-A08001-15

No. 551 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 18, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered February 18, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0001629-2013

BEFORE: SHOGAN, WECHT, and STRASSBURGER,^* JJ.

MEMORANDUM BY SHOGAN, J.:

Appellant, Heriberto Laboy Amaro, appeals from the judgment of sentence entered on February 18, 2014, in the Dauphin County Court of Common Pleas. We affirm.

The trial court set forth the relevant facts underlying this case as follows:

Appellant, Heriberto Amaro and Juanita Caban, a woman with whom he had a prior romantic relationship, are the biological parents of one child. Ms. Caban testified that dealings between [her] and Appellant had been tense because he wanted to resume their romantic relationship but she refused. On September 7, 2012, [after their] romantic relationship had ended, a verbal and physical altercation occurred between Appellant and Ms. Caban during a custody exchange. The incident took place outside of Ms. Caban's apartment in the Hall Manor apartment complex in Harrisburg City. After the altercation, Appellant took custody of his child and Ms. Caban, along with two of her other children travelled to Hershey to pick up her boyfriend, Alberto Almestica. At the time, she owned and drove a red Chrysler Town and Country minivan. Ms. Caban stated that while in the car with Mr. Almestica, Appellant called and threatened her. Mr. Almestica testified that Ms. Caban was arguing with someone on the cellphone while he was in the car.

They proceeded to Palmyra to Mr. Almestica's house, and then returned to Harrisburg to make a police report regarding the earlier altercation with Appellant. Ms. Caban provided a written statement to Officer Stephanie Barrelet of the Harrisburg Bureau of Police (HBP). Officer Barrelet confirmed that she had felt lumps on the back of Ms. Caban's head where she had described being struck by Appellant.

Once the report was completed, Ms. Caban, Mr. Almestica and her children drove to the Park Apartments in Harrisburg where Mr. Almestica's brother, Miguel, lives. Upon arrival, Ms. Caban received a call from her sister, Natasha Ortiz. Mr. Almestica stated that, based on Ms. Caban's reaction, the call was about something very serious.

Ms. Ortiz testified that Appellant and two other men, including one named Kevin Garcia who she knew to be Appellant's cousin, came to her house in an older blue pickup truck. Ms. Ortiz stated that Appellant and Mr. Garcia entered the house and wanted to speak with her. She and Appellant went into the kitchen, but Mr. Garcia left the house. Ms. Ortiz testified that, while in the kitchen, Appellant said that "if [her] sister [Ms. Caban] couldn't be with him that she can't be with anybody else." Ms. Ortiz responded by saying "you can't force [someone] to be with you." Appellant then displayed a gun he retrieved from his hip area and left the house. Ms. Ortiz stated that when she went outside, the three men appeared to be together and, after having a discussion she could not hear, they left in the blue truck. Ms. Ortiz called Ms. Caban to tell her about what had happened during her encounter with Appellant.

When Ms. Caban arrived at the Park Apartments and received the call from her sister, she, Mr. Almestica and the children rushed to his brother's third floor apartment just about the time she had seen Appellant drive [the] blue truck into the parking lot. From the apartment window, Ms. Caban and Mr. Almestica saw the three men exit the truck and go into and out

of neighboring apartment buildings. When Mr. Garcia spotted Ms. Caban's red minivan, Appellant backed the blue truck behind the van, in a perpendicular fashion, which blocked it from moving. Both Ms. Caban and Mr. Almestica saw Mr. Garcia shoot a gun at the van. Mr. Almestica testified that the man he identified in court as the Appellant was standing by Mr. Garcia and speaking to him during the shooting. The men got back into the truck and, with Appellant at the wheel, drove away out of the parking lot.

Ms. Caban called 911 to report the incident and Detective Dennis Simmons of the HBP, responded to the scene within 5 minutes of the dispatch order. At the time of the incident, Detective Simmons had been a uniformed patrol officer assigned to the Housing Authority Unit. Detective Simmons had been told that the incident involved a domestic dispute with shooting involved. When he arrived to the address provided, #1141 Park Apartments, 3rd floor, he found several adults including Ms. Caban and Mr. Almestica in a distraught, afraid and nervous state. Ms. Caban relayed the actions of Appellant and Mr. Garcia that she had observed.

Detective Simmons secured the crime scene and noted holes in the back bumper and window of the van. He remained there until Karen Lyda, a forensics investigator for the HBP arrived then continued to interview those present in the apartment. Subsequently, Ms. Caban provided Detective Simmons a written statement and identified Mr. Garcia's picture in a photo array. At trial, Mr. Almestica identified Appellant as the driver of the blue truck.

When Officer Karen Lyda investigated the crime scene for evidence, she collected two mutilated metal projectiles. One was found in a bag of clothes located inside the van near the second row of seats, Officer Lyda found the other projectile lodged in a pile of mulch in front of a nearby apartment building, #1406, after a bystander alerted her to that location as the bullet had passed by his head. Officer Lyda observed a hole at the top of the broken rear window that appeared to be caused by a bullet, a bullet strike at the bottom of the rear bumper, damage to the headrest on the second row seat, and damage to the top of the van by the rear window that may have also been caused by a bullet. After testing by the Pennsylvania State Police laboratory, it was determined that both projectiles were .32 caliber bullet jackets had been fired from the same unknown firearm.

Trial Court Opinion, 7/24/14, at 3-6. Appellant was arrested and charged at Dauphin County Criminal Docket Number 1629 CR 2013 as follows: count one - possession of firearm prohibited; count two - simple assault; count three - recklessly endangering another person; count four - harassment; count five - conspiracy (recklessly endangering another person); count six - unlawful firing of weapon in city limits; count seven - simple assault; count eight - recklessly endangering another person; and count nine - conspiracy (recklessly endangering another person).

Following a jury trial on February 10, 2014 through February 12, 2014, the jury found Appellant guilty at counts two, four, and five. The jury acquitted Appellant of the charges at counts one, three, and six, and counts seven, eight, and nine were withdrawn. On February 18, 2014, the trial court sentenced Appellant to consecutive terms of one to two years of incarceration on counts two and five, for an aggregate term of two to four years of imprisonment in a state correctional institution.¹ Appellant filed a timely post-sentence motion, which was denied on March 13, 2014. On March 26, 2014, Appellant filed a timely notice of appeal.

On appeal, Appellant raises two issues for this Court's consideration:

1. Was the evidence at trial insufficient to prove beyond a reasonable doubt that the Appellant was guilty of simple assault by physical menace where the Commonwealth failed to show that the [A]ppellant put another in fear of imminent serious bodily injury by physical menace?

2. Whether the trial court erred in denying Appellant's post-sentence motion for arrest of judgment where the jury verdict of guilty on the charge of conspiracy to recklessly endanger another person was against the weight of the evidence because the Commonwealth failed to show that Appellant was in possession of a gun, that the alleged victims were in the immediate area where the shots were fired, and where the Commonwealth's witnesses statements and testimony conflicted on numerous occassions [sic]?

Appellant's Brief at 6 (full capitalization and underlining omitted).

In Appellant's first issue on appeal, he challenges the sufficiency of the evidence with respect to his conviction for simple assault. Appellant's Brief at 13. Appellant asserts that the Commonwealth established only that he was at the scene near the gunman, Kevin Garcia, when Mr. Garcia shot at Ms. Caban's vehicle. Id. at 15. We conclude that Appellant's claim lacks merit.

Our standard of review is as follows:

[W]hen reviewing a challenge to the sufficiency of the evidence, we must determine 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, supports all of the elements of the offense beyond a reasonable doubt. In making this determination, we consider both direct and circumstantial evidence, cognizant that circumstantial evidence alone can be sufficient to prove every element of an offense. We may not substitute our own judgment for the jury's, as it is the fact-finder's province to weigh the evidence, determine the credibility of witnesses, and believe all, part, or none of the evidence submitted.

Commonwealth v. Sanchez, 82 A.2d 943, 972 (Pa. 2013) (internal citations omitted). Simple assault by physical menace is defined in the Crimes Code as:

2701. Simple assault

(a) Offense defined.-- Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:

* * *

(3) attempts by physical menace to put another in fear of imminent serious bodily injury[.]

18 Pa.C.S. § 2701(a)(3).

Additionally, it is well settled that "[a]n actor and his accomplice share equal responsibility for the criminal act if the accomplice acts...