Commonwealth v. Carrasquillo

1

COMMONWEALTH OF PENNSYLVANIA v. ELIEZAR LAZU CARRASQUILLO Appellant

No. 621 MDA 2022

No. J-S02012-23

Superior Court of Pennsylvania

April 13, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered March 29, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003522-2020

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM

PANELLA, P.J.:

Eliezar Lazu Carrasquillo appeals from the judgment of sentence imposed following his convictions of two counts each of aggravated assault and aggravated assault with a deadly weapon. See 18 Pa.C.S.A. §§ 2702(a)(1) (4). Carrasquillo argues that the evidence was insufficient to support his convictions; the verdict was against the weight of the evidence; the trial court erred in clearing the courtroom when a witness testified; and the trial court erred in providing the jury instructions. We affirm.

For purposes of this appeal, the essential facts of this case are undisputed. The central dispute at trial involved Carrasquillo's state of mind. On June 10, 2014 Carrasquillo's brother, Xavier a/k/a "Sapo," got into a verbal altercation with Breeze Johnson in a bar in Reading. Sapo and Johnson separated and left the bar with their respective groups. Once outside the bar, Sapo contacted Carrasquillo, who arrived shortly thereafter armed with a gun.

Carrasquillo confronted Johnson and suggested that both groups go to 11th and Chestnut Streets to allow Johnson and Sapo to have a fair fistfight. When Johnson's group arrived at the intersection, they observed Armando Ortega in a nearby alley, while Carrasquillo and Sapo approached from the opposite direction. After words were exchanged, Carrasquillo fired three rounds into the ground.

More shots rang out from an unidentified source. Johnson and several of his compatriots began running towards Chestnut Street. Carrasquillo started shooting in their direction until his gun ran out of bullets. One of Johnson's compatriots, Brock Neely, was struck twice by bullets, and ultimately died from his wounds. Another of Johnson's associates, Jordan Almodovar, was shot in the leg but survived.

The Commonwealth charged Carrasquillo with first-degree murder, third-degree murder, and multiple counts of aggravated assault. Carrasquillo was tried jointly with Ortega before a jury. Ultimately, the jury found Carrasquillo guilty of two counts each of aggravated assault and aggravated assault with a deadly weapon, but acquitted Ortega on all charges. The trial court sentenced Carrasquillo to 99 to 210 months in prison. This timely appeal followed.

On appeal, Carrasquillo raises the following questions for our review:

A. Whether the evidence present at trial was insufficient as a matter of law wherein the Commonwealth's evidence presented at trial failed to establish that [Carrasquillo] caused serious bodily injury [to] another?

B. Whether the verdict was against the weight of the evidence wherein the verdict is so contrary to the evidence and shocks one's sense of justice where the Commonwealth's evidence presented at trial failed to establish that [Carrasquillo] intended to and did cause serious bodily injury to another in that the verdict does not make logical sense in the fact that one of the victims is deceased and there was no cause attributable to [Carrasquillo]?

C. Whether the court erred in allowing the courtroom to be cleared to allow the testimony of Alberto Dunn, after he claimed to be intimidated by individuals in the defendants' families, thereby giving the jury the ability to see that the persons in the courtroom had changed and thus permitting the improper impression that the defendants were intimidating?

D. Whether the court erred in failing to read all of the jury instructions at once and then read in an order which would have caused jury confusion especially in regard to the claim of self-defense and how that would weigh into the verdict; such being evidenced, by way of example, by the jury coming back with an aggravated assault conviction even though there is a deceased victim?

Appellant's Brief at 5-6 (some capitalization omitted).

In his first claim, Carrasquillo contends that the evidence was insufficient to support his convictions because the Commonwealth failed to prove he caused serious bodily injury to another person. See id. at 16, 17-18. Carrasquillo argues he acted in self-defense by returning fire in response to a gun fired at him from the alleyway. See id. To that end, Carrasquillo asserts the Commonwealth failed to prove that the gunman in the alley was associated with him, as Ortega was acquitted. See id. at 17. According to Carrasquillo, the evidence established he fired his gun into the ground and there was no evidence that his bullets were found in the bodies of Neely or Almodovar. See id. Carrasquillo highlights that he was carrying a .45-caliber firearm, while a .40-caliber bullet was found in Neely. See id. Carrasquillo claims there was no reason for him to shoot Neely or Almodovar, and if he wanted to aid his brother, he would have shot Johnson. See id. at 17-18.

Our standard of review for sufficiency claims is as follows:

The standard we apply is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Edwards, 229 A.3d 298, 305-06 (Pa. Super. 2020) (citation, brackets, and ellipses omitted).

"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[.]" 18 Pa.C.S.A. § 2702(a)(1). A person is also guilty of aggravated assault if he "attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]" 18 Pa.C.S.A. § 2702(a)(4). Deadly weapon is defined as "[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." 18 Pa.C.S.A. § 2301.

"For aggravated assault purposes, an 'attempt' is found where the accused, with the required specific intent, acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another." Commonwealth v. Alford, 880 A.2d 666, 670 (Pa. Super. 2005) (citation omitted). The Commonwealth may establish the defendant's intent solely from "circumstantial evidence and inferred from acts, conduct or attendant circumstances." Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (citation omitted). Further, for aggravated assault, the intended harm need not be directed at a specific person. See Commonwealth v. Palmer, 192 A.3d 85, 95 (Pa. Super. 2018).

"Pursuant to Section 505 of the Crimes Code, self-defense is established and the use of force is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." Commonwealth v. Busanet, 54 A.3d 35, 51 (Pa. 2012) (citation and quotation marks omitted).

While there is no burden on a defendant to prove the self-defense] claim, before that defense is properly at issue at trial, there must be some evidence, from whatever source to justify a finding of self-defense. If there is any evidence that will support the claim, then the issue is properly before the fact finder.

If the defendant properly raises self-defense under Section 505 of the Pennsylvania Crimes Code, the burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant's act was not justifiable self-defense.

The Commonwealth sustains this burden if it establishes at least one of the following: 1) the accused did not reasonably believe that he was in danger of death or serious bodily injury; or 2) the accused provoked or continued the use of force; or 3) the accused had a duty to retreat and the retreat was possible with complete safety. The Commonwealth must establish only one of these three elements beyond a reasonable doubt to insulate its case from a self-defense challenge to the evidence.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citations, brackets, formatting, and quotation marks omitted).

Here in June 2014, Jordan Almodovar, Brock Neely, Gilbert Concepcion, Breeze Johnson, and Joshua Rivera were at a bar in Reading. See N.T., 2/16/22, at 266, 268, 326, 405; see also N.T., 2/17/22, at 720-21 (Criminal Investigator ...