Commonwealth v. Martinez-Rivera

COMMONWEALTH OF PENNSYLVANIA v. MISAEL JOSUE MARTINEZ-RIVERA Appellant

J-S01009-21

No. 1193 MDA 2020

SUPERIOR COURT OF PENNSYLVANIA

APRIL 16, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered January 29, 2020

In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001593-2019

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.^*

MEMORANDUM BY LAZARUS, J.:

Misael Josue Martinez-Rivera appeals from the judgment of sentence, entered in the Court of Common Pleas of Berks County, following a nonjury trial in which he was convicted of three counts of simple assault;¹ two counts each of recklessly endangering another person (REAP),² terroristic threats,³ and harassment;⁴ and one count each of possession of an instrument of crime(PIC)⁵ and persons prohibited from possessing a firearm.⁶ After careful review, we affirm.

On September 26, 2019, Martinez-Rivera was in the home of Luz Sanchez Aponte in Reading, Pennsylvania, assisting with housecleaning and other general chores. Aponte was pregnant with Martinez-Rivera's child, but the two were not in a committed relationship⁷ and did not live together. On that date, Aponte was watching television with four of her minor children via connection to a Microsoft Xbox. Although the Xbox was normally kept in her son J.R.'s room, because, when left there, it was apparently left turned on at all times, Aponte had moved it to the family room after receiving an excessive electric bill from the utility company.

At approximately 4:30 p.m., Juan Rodriguez, Aponte's adult son, returned to Aponte's home from the grocery store and proceeded up the stairs to the second floor where his bedroom was located. Rodriguez heard his 17-year-old brother, J.R., leave his own room on the same floor and proceed down the stairs to the first floor where Aponte and her four other children were watching television. J.R. announced that he was going to bring the Xbox upstairs to his own room, which was met with resistance from his siblings.Aponte verbally reprimanded J.R. and, in response, J.R. punched Aponte's pregnant stomach. See N.T. Nonjury Trial, 1/14/20, at 86. Martinez-Rivera then admonished J.R., reminding him to treat his mother with respect. Id. at 87.

Rodriguez, hearing the commotion, exited his room and proceeded to the top of the stairs. From his vantage point, Rodriguez observed Martinez-Rivera, who was in the middle of the staircase, "tap" or "just touch[]" the back of J.R.'s head with a "metal rod," which was also described at trial as a "little metal beam" or "stick," as he descended the last few stairs. Id. at 12-13, 36, 47, 50, 87, and 104. Rodriguez then placed Martinez-Rivera in a headlock or chokehold. Id. at 13, 47, 87, and 105. At that point, Martinez-Rivera kicked J.R. in the chest, which caused J.R. to fall down the stairs. Id. at 14. J.R. quickly returned up the staircase and continued to scuffle with Martinez-Rivera while Rodriguez fought him from the other side. Aponte testified that she joined the scuffle on the stairs when Rodriguez placed Martinez-Rivera in the chokehold. Id. at 84, 87, 104. At some point, J.R. kicked Martinez-Rivera down the stairs, which caused all four individuals to fall down the stairs together; the males continued to fight in the living room. Rodriguez and J.R. were both on top of Martinez-Rivera while he was kicking and thrashing. Id. at 15-16. Aponte testified that she was able to avoid injury when everyone fell down the stairs because Martinez-Rivera "went and put his hand [] down to hold me and I f[e]ll onto his hand." Id. at 87, 103-04.

At that point, the physical fight ended and Aponte ordered Rodriguez and J.R. to leave her home. Rodriguez and J.R. proceeded back up the stairs towards their bedrooms to pack up their belongings. Shortly thereafter, J.R. entered Rodriguez's bedroom followed by Martinez-Rivera. Martinez-Rivera was holding a black .9mm firearm and "pistol whipped" J.R. in the left upper back, from behind, using the firearm. Id. at 16-17, 19. As a result of the strike, J.R. dropped down to the bed, which was on the floor in the middle of the room. Martinez-Rivera brandished the firearm, pointed it at both Rodriguez and J.R., and threatened that he was going to hurt or kill them if they hurt their mother, Aponte. Id. at 19, 20, 22, 37. Martinez-Rivera then fired a single shot while holding the firearm in his right hand. The bullet pierced the closet door and then entered the frame of the same closet door that was located on his left-hand side in Rodriguez's bedroom. Id. at 20, 23. At trial, Rodriguez testified that J.R. was "in the line of fire" but not "directly" in it, since J.R. was "laying on [] the bed, but the closet's higher." Id. at 23.

After Martinez-Rivera fired the shot, he and Rodriguez began arguing, and Martinez-Rivera swung at Rodriguez using the firearm. Rodriguez testified that he was able to grab hold of the weapon, "reverse it," and push Martinez-Rivera out of the room, which caused Martinez-Rivera to fall on top of the television stand on his way out the door. Id. at 21-22. Martinez-Rivera continued to possess the firearm after he left Rodriguez's room. Id. at 38. Rodriguez then spent fifteen minutes packing his belongings before taking an Uber to a friend's house. Id. at 24-25, 42, 49-51. From there, Rodriguezcalled his aunt and uncle, recounted what transpired, and showed them his injuries, which included a bruise and abrasion on his forehead. Id. at 25. J.R. also sustained scratch-marks to his face, hand, and back. Id. at 32. Rodriguez's aunt and uncle called the police and reported the incident.

When police arrived two to three hours later at Rodriguez's friend's house, Rodriguez turned over a spent brass bullet casing that his younger brother had discovered in Rodriguez's bed after Martinez-Rivera fired the shot into the closet and was forced out of the room. Id. at 33-34, 66. Police observed and photographed Rodriguez's and J.R.'s physical injuries at the friend's house. Id. at 66, 69. Police then proceeded to Aponte's home, where they received her consent to search the property. Id. at 70, 75. In Rodriguez's bedroom, police observed broken furniture—evidence of an altercation—and the bullet hole in the door and frame of the closet. Id. at 71. Police recovered a bullet fragment lodged in the frame of the door opposite the entry hole, id. at 71-72, and discovered "wet" spackle in the "exit wound" hole caused by the bullet. Id. at 73, 79. When police questioned Martinez-Rivera at the scene, he confirmed there was an altercation regarding J.R. wanting to take the Xbox upstairs, described Rodriguez and J.R. as misbehaved children, and stated there was pushing, shoving, and that he was placed in a chokehold. Id. at 74. When questioned specifically about the firearm, Martinez-Rivera claimed that he never went up the stairs to Rodriguez's bedroom with a gun. Id. at 75. Police did not recover any firearm from the home, but did recover a magazine for a weapon from Rodriguez'sbedroom closet, which Rodriguez testified belonged to his now-deceased stepfather who previously stored it in his bedroom. Id. at 29-31, 93-94.

On April 26, 2019, Martinez-Rivera was charged with four counts each of aggravated assault,⁸ and simple assault; two counts each of REAP, terroristic threats, and harassment; and one count each of PIC, and person prohibited from possessing a firearm. Martinez-Rivera waived his right to a jury trial and the matter proceeded to a bench trial on January 14, 2020. At the conclusion of trial, as noted above, the court found Martinez-Rivera guilty on all counts, except for the four counts of aggravated assault and one count of simple assault that was charged pursuant to subsection 2701(a)(1) of the Crimes Code.⁹ On January 29, 2020, the court sentenced Martinez-Rivera to an aggregate sentence of five to seventeen years' incarceration, followed by two years' probation.¹⁰

On January 31, 2020, Martinez-Rivera's trial counsel, Daniel Nevins, Esquire, filed a petition to withdraw his representation due to Martinez-Rivera's wish to proceed with new counsel on appeal. The court granted thepetition to withdraw after a hearing on February 7, 2020 and then appointed the Berks County Public Defender's Office to represent Martinez-Rivera. On February 19, 2020, Martinez-Rivera filed both a counseled request to file a post-sentence motion nunc pro tunc, and an untimely motion for post-sentence relief. The court denied both motions on February 21, 2020. Martinez-Rivera filed a timely notice of appeal on February 26, 2020. Both he and the court complied with Pa.R.A.P. 1925. On March 19, 2020, Martinez-Rivera filed a motion in this Court to remand to the trial court to file a post-sentence motion. On July 28, 2020, we granted that motion with instructions for Martinez-Rivera to file post-sentence motions nunc pro tunc within ten days of our order.

On September 4, 2020, Martinez-Rivera filed a request to file a nunc pro tunc post-sentence motion and contemporaneously filed a motion for post-sentence relief seeking modification of his sentence based on the claim that the court failed to consider his mitigating circumstances. On September 8, 2020, the court granted Martinez-Rivera's request to file a nunc pro tunc post-sentence motion and, by separate order, denied the motion seeking modification.

Martinez-Rivera filed a second notice of appeal on September 14, 2020; and he and the court again complied with Rule 1925. The court issued an opinion on October 2, 2020, incorporating its previous April 14, 2020 opinion, and recommending we affirm Martinez-Rivera's judgment of sentence.

On appeal,¹¹ Martinez-Rivera presents the following issues for our review:

1. Whether the evidence presented at trial was insufficient to support a guilty verdict for simple assault, 18 Pa.[C].[S].A. § 2701(a)(1).

2. Whether the evidence presented at trial was

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