Commonwealth v. Colon
| Decision Date | 31 March 2021 |
| Docket Number | J-S53005-20,No. 542 EDA 2020,542 EDA 2020 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. HENRY RESTO COLON Appellant |
| Court | Pennsylvania Superior Court |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appellant, Henry Resto Colon, appeals from the judgment of sentence entered September 16, 2019, following his conviction by a jury of attempted homicide, aggravated assault, robbery, and burglary. We affirm.
The facts of the crime are as follows: Allentown Police Officer Andrew Bloomberg responded to a call at 389 North Bradford Street, Allentown, Pennsylvania, at approximately 8:00 a.m. on October 31, 2017, and was the first officer to arrive on the scene. N.T., 7/30/19, at 10. Upon arrival, people on the street were pointing at the residence and screaming, a situation he described as "chaotic." Id. When Officer Bloomberg entered the residence, he saw a male, later identified as Matilde Malave Arvelo ("the victim"), lyingon the kitchen floor in a pool of blood. Id. at 10, 21. The victim had a large gaping wound to his abdomen with intestines protruding, as well as a wound to his neck. Id. at 10-11. Shortly thereafter, emergency medical services arrived. Id. at 11. Because both medics were needed to attend to the victim, Officer Bloomberg drove the ambulance to the hospital. Id. at 11, 15.
As described by St. Luke Hospital Physician's Assistant John D'Allessandro, upon the victim's arrival at the hospital, doctors determined that his bowel had been lacerated, he had been stabbed in the neck, and surgery was required. N.T., 7/30/19, at 18, 23. The victim remained hospitalized for three weeks, until November 22, 2017. Id. at 24.
Officer Bloomberg described the kitchen where the victim was found. There was a large amount of blood on the floor as well as blood smeared on numerous items around the kitchen, such as the refrigerator and stove. N.T., 7/30/19, at 43. A garbage can was knocked down with the lid off, and household garbage was strewn around the kitchen. Id. at 43-44. Pieces of a broken coffee pot were also found in the kitchen. Id. at 46. A charger for a cellular telephone was plugged into the wall, but no telephone fitting the charger was found on the victim's person or in his home. Id. at 45.
Allentown Police Detective Raymond Ferraro also responded to the scene, and he was the lead investigator. N.T., 7/31/19, at 204. The victim's relatives provided the detective with the victim's cell phone number. Id. at 205. With that information, Detective Ferraro received approval to "ping" thetelephone to determine its general location. Id. Eventually, the victim's cell phone was recovered from a black garbage bag inside a dumpster that was located on the northeast corner of Pioneer and Washington Streets in Allentown, which was one-half block from Appellant's residence. N.T., 7/30/19, at 29-31, 55; N.T. 7/31/19, at 215. Police also recovered bloody clothing, a yellow hand towel, household trash, a pair of Levi jeans with the victim's cellular telephone in one of the pockets and pieces of broken glass from a broken coffee pot in the other pocket. N.T., 7/30/19, at 52-70.
Appellant's fingerprints were lifted from some of the household trash found in the garbage bag. N.T., 7/30/19, at 73, 81; N.T., 7/31/19, at 125. Appellant's DNA was found on the yellow hand towel, a hoodie, and sweatpants, all of which were found inside the garbage bag with the victim's cell phone. N.T., 7/31/19, at 125, 182-186.
Wendy Christman, the victim's daughter-in-law, testified that the victim always wore a necklace with his deceased wife's wedding ring attached. N.T., 7/31/19, at 129, 136-137. When the victim was found by police, he was not wearing this necklace, and it was never found. Id. at 137.
The procedural history is as follows. Appellant was arrested on December 1, 2017. Following a jury trial, Appellant was convicted ofattempted homicide, aggravated assault, robbery, and burglary.1 Following a presentence investigation ("PSI"), the trial court sentenced Appellant on September 16, 2019:
to an aggregate term of 25 to 60 years in a State Correctional Institut[ion]. On September 26, 2019, [Appellant] filed a timely Post-Sentence Motion challenging the sufficiency and weight of the evidence, alleging a violation of [the] ruling on a motion in limine, and asking for reconsideration of his sentence. A hearing was held on November 7, 2019, following which [the trial court] took the motions under advisement and the parties submitted briefs.
Trial Court Opinion, 1/23/20, at 1. The trial court denied post-sentence motions on January 23, 2020. Both Appellant and the trial court complied with Pa.R.A.P. 1925.2
Appellant raises the following issues on appeal:
Appellant's Brief at 10-11 (full capitalization omitted).
Appellant's first issue assails the sufficiency of the evidence supporting his convictions. In reviewing a sufficiency challenge, "we must decide whether the evidence admitted at trial, and all reasonable inferences drawn therefrom in favor of the Commonwealth, as verdict winner," are sufficient to support all elements of the offense. Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015). The jury, as fact-finder, is free to believe some, all, or none of the evidence. Commonwealth v. Gomez, 224 A.3d 1095, 1099 (Pa. Super. 2019). Moreover, the Commonwealth may sustain its burden of proof by wholly circumstantial evidence. Commonwealth v. Diggs, 949 A.2d 873 (Pa. 2008); Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).
Appellant argues that the Commonwealth failed to identify him as the perpetrator of the crimes. Appellant's Brief at 20. He suggests that because there was no direct evidence identifying him as the perpetrator, the Commonwealth did not establish the requisite intent to sustain his convictions. Id. at 21. As noted by the Commonwealth, Appellant's argument focusesupon the absence of eyewitness or other direct evidence of his identity. Commonwealth's Brief at 10.
It is important to reiterate that in applying the standard to determine whether the evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to enable the jury to find every element of the crimes beyond a reasonable doubt, the Commonwealth's burden may be sustained by means of wholly circumstantial evidence. Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008). "Further, we note that the entire trial record is evaluated and all evidence received against the defendant is considered, being cognizant that the trier of fact is free to believe all, part, or none of the evidence." Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014). It is for the finder of fact to pass upon the credibility of the witnesses and weight of the evidence presented. Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014).
Specifically, regarding the issue of identity, our Supreme Court has stated:
Proof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction. The evidence of identification, however, needn't be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight. Direct evidence of identity is, of course, not necessary and a defendant may be convicted solely on circumstantial evidence.
Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (internal citations and quotation marks omitted).
As noted above, the factfinder was free to believe all, some, or none of the evidence. Commonwealth v. Benito, 133 A.3d 333, 335 (Pa. Super. 2016). We will not disturb the factfinder's credibility findings, which are supported by the evidence of record.
In determining the evidence was sufficient, the trial court explained as follows:
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