Commonwealth v. Rigo, J-S17024-16

• Decision Date: 02 May 2016
• Docket Number: No. 1069 WDA 2015,J-S17024-16,1069 WDA 2015
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT L. RIGO, Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT L. RIGO, Appellant

J-S17024-16

No. 1069 WDA 2015

SUPERIOR COURT OF PENNSYLVANIA

MAY 2, 2016

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence November 5, 2014

In the Court of Common Pleas of Somerset County

Criminal Division at No(s): CP-56-CR-0000305-2014

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,^* JJ.

MEMORANDUM BY SHOGAN, J.:

Robert L. Rigo ("Appellant") appeals from the judgment of sentence imposed in the Somerset County Court of Common Pleas on November 5, 2014. We affirm.

In the early morning of March 14, 2014, Appellant and David E. Kimmel, Jr. ("the victim") attended a party. A dispute arose between the men, which resulted in Appellant delivering a left-right punch combination to the victim's head. The victim suffered multiple mandible fractures, a maxillary sinus fracture, nasal fractures, a skull fracture, a lip laceration, bruising, and swelling. Commonwealth Trial Exhibit C. The traumaphysician noted that the victim would have "significant long-term disability due to this injury." Commonwealth Trial Exhibit D.

Appellant was arrested on charges of aggravated assault, simple assault, and harassment. He proceeded to a two-day jury trial in August of 2014. Following Appellant's conviction of all three offenses, the trial court sentenced him on November 5, 2014, to incarceration for a term of three-and-one-half to eight years. Defense counsel moved for permission to withdraw, which the trial court granted. New counsel was appointed, and she filed post-sentence motions on Appellant's behalf. Following a hearing on May 27, 2015, the trial court denied Appellant's motions. Order, 7/7/15. This appeal followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following questions for our consideration:

1. Whether the weight of the evidence offered by the Commonwealth is inconsistent with the rendered jury verdict.

2. Whether the trial court erred in admitting the complainant's statement as stated on trial transcript page 1.80 as a present sense impression.

3. Whether the trial court erred in admitting Commonwealth Exhibits B and F as these exhibits were used to unfairly bolster the credibility of the Commonwealth's witnesses.

4. Whether the trial court erred in denying defense counsel's motion for judgment of acquittal when the evidence presented did not meet the Commonwealth's burden of proof.

5. Whether the trial court erred in instructing the jury in "false in one, false in all" without an offer of proof from the Commonwealth.¹

6. Whether the trial court erred in prohibiting Appellant from making an oral motion for extraordinary relief prior to his sentencing.

7. Whether the trial court erred in forcing Appellant to pick a jury with his trial counsel, despite Appellant's numerous assertions to the court of trial counsel's ineffectiveness.

8. Whether the cumulative effect of the aforementioned errors at Appellant's trial and sentencing deprived Appellant of a fair and impartial trial and his due process of law.

Appellant's Brief at 19-20 (full capitalization omitted).

We first address Appellant's fourth issue regarding the sufficiency of the evidence. See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) ("Because a successful sufficiency of the evidence claim warrants discharge on the pertinent crime, we must address this issue first."). After the Commonwealth rested, Appellant moved for a judgment of acquittal on the charge of aggravated assault. N.T., 8/11/14, at 2.188. According to Appellant, the Commonwealth did not prove that Appellant intended to cause serious bodily injury or that the victim suffered serious bodily injury. Id.; Appellant's Brief at 38-39. The trial court opined, "I am satisfied that thereis sufficient evidence to allow the case to go to the Jury on certainly the simple assault and the aggravated assault." N.T., 8/11/14, at 2.190.²

"A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge." Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014) (citation omitted); Commonwealth v. Devries, 112 A.3d 663, 667 (Pa. Super. 2015) (quoting Emanuel). Our standard of review of a sufficiency challenge is well settled:

In reviewing a claim regarding the sufficiency of the evidence, an appellate court must determine whether the evidence was sufficient to allow the fact finder to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. LaCava, 542 Pa. 160, 171, 666 A.2d 221, 226 (1995). In doing so, a reviewing court views all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. Id. Furthermore, in applying this standard, the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032 (2007). . . . Additionally, we note that the trier of fact, while passing on the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence. Id. at 217, 928 A.2d at 1032-33.

Commonwealth v. Burton, 2 A.3d 598, 601 (Pa. Super. 2010) (quoting Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783, 789 (2009)).

Appellant was convicted under 18 Pa.C.S. § 2702(a)(1), which provides, "A person is guilty of aggravated assault if he ... attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." Serious bodily injury is defined as "[b]odily 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." 18 Pa.C.S. § 2301. "When a victim actually sustains serious bodily injury, the Commonwealth can, but does not necessarily have to, establish specific intent to cause such harm." Burton, 2 A.3d at 602.

Here, the victim testified at trial that Appellant and his girlfriend, Anchilla, were arguing at the party, which Ms. Heather Blank ("Heather") was hosting in her mobile home. N.T., 8/11/14, at 1.34-1.39. The victim intervened between the couple, advising them to calm down and be quiet because they were guests in the home. Id. at 1.38-1.39. The victim then turned away from Appellant to speak with Heather, at which point he heard a thud and turned to see Anchilla on the floor. Id. at 1.39. The victim again admonished Appellant: "Knock the fuck off. We are in somebody's house. No one deserves to be beated on like that." Id. at 1.40. In response, Appellant asked the victim, "How would [you] like it if . . . you just found out your old lady was F'in some dude about two weeks back?" Id. at 1.41. Thevictim turned back to Heather and began talking with her. Id. at 1.41-1.42. While the victim and Heather were talking, Appellant moved into a corner and took a step away from the victim, stating that the victim and Heather "were both going to get [their] fill." Id. at 1.42-1.43. As the victim continued to talk and laugh with Heather, "she starts waving her hands like this and her head goes back and she starts runnin' back the hallway." Id. at 1.44. When the victim turned around, Appellant delivered the left-right blows to the victim's head, and the victim fell to the floor. Id. Appellant remarked, "It ain't so F'in funny now?" and then walked into the living room. Id. at 1.48. The victim was able to leave the mobile home and drive himself to a nearby senior citizen facility where someone called for help; an ambulance transported him to the hospital. Id. at 1.44-1.45. The victim denied taking any swings at Appellant or making any aggressive moves toward Appellant. Id. at 1.46.

The victim described his injuries as a break on each side of his lower jaw which caused it to flap when he tried to talk; a crushed sinus passage; a fracture to his forehead and his chin. N.T., 8/11/14, at 1.48-1.49. The victim required a tracheotomy during surgery to assist his breathing; his jaw was wired shut; plates and screws were inserted to hold his jaw in place; he was in the hospital for over a week; he ate pureed food through a straw; and he missed work from March 14, 2014 until sometime in July of 2014. Id. at 1.49-1.50, 1.52. He testified that future surgeries would be neededto ameliorate his breathing and his hearing and that he requires speech therapy. Id. at 1.51.

Dr. Richard Lammers was the emergency room doctor who first saw Appellant. He testified that Appellant presented with trauma to his face, swelling on the right side of his face, a deformity of his jaw, a nasal fracture, facial fractures, and a skull fracture. N.T., 8/11/14, at 1.100-1.102, 1.104. Dr. Lammers characterized Appellant's injuries as serious and the result of multiple blows to his face. Id. at 1.107-1.108.

Dr. Kamran Shayesteh was the reconstructive plastic surgeon who treated Appellant's facial fractures. Id. at 1.115-1.116. He testified that Appellant had eleven broken facial bones, including the jaw, the maxilla, both sides of his nose, his cheek, and his front bone sinus. Id. at 1.116. He characterized Appellant's injuries as "pretty significant." Id. at 1.117. Dr. Shayesteh explained that Appellant underwent a tracheotomy before surgery because the swelling to his face and mouth precluded a traditional intubation. Id. at 1.118. He further described wiring Appellant's jaw shut for approximately five weeks, affixing permanent titanium plates to Appellant's jaw, and repairing the nasal, cheek bone, and maxilla fractures manually. Id. at 1.119. Dr. Shayesteh indicated that Appellant was required to drink through a straw for several weeks and will require an additional surgery to advance his cheekbones and align his...