Commonwealth v. Mendez

270 A.3d 1139 (Table)

COMMONWEALTH of Pennsylvania

v.Angel L. MENDEZ, Jr., Appellant

No. 243 MDA 2021

Superior Court of Pennsylvania.

Filed: December 14, 2021

MEMORANDUM BY LAZARUS, J.:

Angel L. Mendez, Jr., appeals from the judgment of sentence,¹ entered in the Court of Common Pleas of Lebanon County, following his convictions for aggravated assault causing serious bodily injury,² simple assault causing bodily injury,³ simple assault by mutual affray;⁴ disorderly conduct,⁵ and public drunkenness.⁶ After careful consideration, we affirm.

On June 16, 2018, Mendez attended a cookout at the home of his brother-in-law and half-sister, Richard and Adrienne Ruhl,⁷ starting at 1:00 p.m. N.T. Jury Trial, 7/23/19, at 16-17. Richard testified that Mendez took a bottle of tequila from Richard's room and became increasingly aggressive and drunk. Id. Richard, Adrienne, and Mendez left to get food at a diner where, according to Richard, Mendez laid on a sofa and passed out causing a diner employee to tell Richard that Mendez could not be there. Id. at 18-19.

Mendez and Richard returned to Richard's house and drank beer by the garage while Adrienne took her kids to get slushies. Id. at 19-20. Richard testified that Mendez began to use profanity and show attitude by calling himself the "N-word;" claiming he was from New Jersey; calling himself Angel Lucifer Mendez instead of his real name, Angel Luis Mendez; and stating that "he gives life; he takes life." Id. at 20. Richard told Mendez he was from Pennsylvania, not New Jersey, which Richard claims caused Mendez to become "aggressive and nasty," and led Richard to attempt to calm Mendez down. Id. Richard testified that he told Mendez that once Adrienne came back, Richard and Adrienne would take Mendez home. Id.

Richard testified that after he closed the garage door, Mendez charged at him. Id. at 21. Richard claimed he put down his beer shortly before Mendez tackled him to the ground, and that once Richard got back up, Richard was hit and fell unconscious. Id. While Mendez claimed Richard hit him with a beer bottle, Richard claimed that he never knew how or if his beer bottle struck Mendez, but he pled guilty to simple assault without justification because of a bruise and laceration on Mendez's face, the fact that the beer bottle was broken after the fight, and the possibility that his actions caused "glancing contact" with Mendez. Id. at 22, 30, 41.

Adrienne testified that, after returning home from getting slushies, she found Mendez standing over Richard, who was lying in the driveway. Id. at 61. Adrienne testified that Mendez told her Richard hit him with a bottle, so Mendez defended himself. Id. Adrienne also stated that both Richard and Mendez had been drinking that day, although she did not remember if Mendez took a tequila bottle from her and Richard's room. Id. at 63.

Carl Brubaker, who lived across the street diagonally from Richard and Adrienne's home, testified that he heard shouting and somebody saying, "[Y]ou are nothing but a New Jersey n@#ger," and someone called the other a "f@#got." Id. at 66, 68. Shortly after that, somebody said, "[D]on't come at me." Id. at 66. This led Brubaker to call the police, and during the call, Brubaker heard "about a dozen hits that may have landed." Id. After it got quiet, Brubaker heard somebody say something like, "I always loved you. You always hated me. You were always against me, but yet you hit me in the face with a bottle." Id.

Officer Ryan Haase of the North Lebanon Township Police Department responded to the scene that night, and shortly after arrival, arrested Mendez. Id. at 74-75. Mendez told Officer Haase that he only hit Richard two or three times after Richard threw a beer bottle at him. Id. at 75-76.

Officer Randall Morgan of the North Lebanon Township Police Department arrived at the scene of the fight after Officer Haase and followed the ambulance carrying Mendez to the hospital. Id. at 82-83. Officer Morgan gave Mendez a Miranda⁸ waiver, which Mendez signed, and Mendez agreed to give Officer Morgan a written statement, which read: "I, Angel Mendez, was attacked, hit numerous times with a bottle, [used] self-defense to protect myself, [and] struck [my] opponent back for my defense." Id. at 85. Officer Morgan testified that Mendez had glassy eyes and an odor of alcohol on his breath and that Mendez stated he had a couple drinks that day. Id. at 85-86. Mendez told Officer Morgan that he hit Richard two or three times and, after initially stating that he did not know what started the fight, Mendez said the fight started because he believed Richard was racist. Id. at 86, 90. Officer Morgan testified that Mendez suffered a laceration on his pinky and ring fingers on his right hand, suffered a laceration and a contusion above his left eye, had a very swollen left-side of his face, and had blood all over his clothing. Id. at 88.

Mendez testified that, at some point after 5:00 p.m., Richard told Mendez to go upstairs to retrieve a bottle of tequila that contained less than a shot, which Richard drank. Id. at 116. Mendez testified that he and Richard drank three beers each before he, Adrienne, and Richard went to the diner, where he did not pass out and just used the bathroom before leaving. Id. at 115. Mendez testified that after returning to Adrienne and Richard's house, Richard asked him to hang out outside while Adrienne took the kids to get slushies. Id. at 117-18. Mendez testified that Richard complained about sending Mendez and his mother a generator in Puerto Rico, where Mendez temporarily stayed, while Richard lost power for two days over that summer. Id. Richard told Mendez that he did not really go through a disaster from hurricanes in Puerto Rico. Id. at 118. Mendez testified that he told Richard that Richard did not have to help Mendez and Mendez's mother, which caused Richard to call him a "n@#ger" and "f@#got". Id. Mendez testified he paid Richard no attention until Richard stood up and hit Mendez in the eye with his beer bottle while Mendez was sitting down. Id. at 119.

Mendez said he stood up and asked Richard "why he hit him" and begged him to "not come at him" while Mendez walked away, but Richard laughed and, using the bottle, hit Mendez in the back of the head twice more, breaking the bottle and leading Mendez to defend himself. Id. at 119-20. Mendez said he subsequently punched Richard three times with his fists; the first punch buckled him, but then Richard got back up, so Mendez hit him twice more, fearing Richard's size difference.⁹ Id. at 23, 121. Richard subsequently fell over, leading Mendez to state, "I love you. Why did you hit me with a bottle?" N.T. Jury Trial, 7/23/19, at 122.

Richard spent three days in the hospital. Id. He suffered two orbital tears, bruising to the neck, a broken nose, a broken jaw, and three missing teeth. Id. at 23. Richard stated that the hospital staff informed him he was lucky to not have severe brain injuries and that after his swelling lessened, they would need to perform a facial surgery, which had a "good chance" of killing him. Id. at 22-23. After the staff wired Richard's jaw shut, he lost 30 pounds over the following six weeks. Id. at 23. Following the incident, Richard's foot dropped,¹⁰ causing him to walk with a limp, wear a leg brace, and undergo physical therapy. Id. at 26. The assault also caused Richard to suffer some memory issues. Id. at 44.

Karima Fitzgerald, M.D., who was qualified as an expert in the field of general surgery, testified that as a result of the assault, Richard suffered: two orbital fractures ; nasal fractures near his sinus, mid-face, and teeth; facial swelling; and fractures at the base of his skull. Id. at 56. Doctor Fitzgerald testified that these facial fractures could lead to a stroke or, with enough swelling, impede Richard's airways. Id. at 56-57. Thus, the fractures required surgical treatment. Id.

During jury deliberations, the trial court allowed all photographs, including those photos depicting Richard's injuries following the assault, to be published to the jury, but the jury saw no other exhibits. Id. at 135. Defense counsel did not formally object to the trial court's decision but requested the court not to publish to the jury any of the exhibits unless the jury requested them. Id. When asked to explain his reasoning, defense counsel simply reiterated that the jury had not requested them. Id. During trial, defense counsel only objected to the admission and publication to the jury of Exhibit Eleven, which depicted Richard's injuries, but acquiesced to the admission and publication to the jury of all other exhibits. Id. at 24-25, 76-77, 87-88, 97. Shortly before deliberations, the trial court asked each attorney's opinion as to which exhibits should be published to the jury for deliberations. Id. at 135. The Commonwealth moved to publish all exhibits, and defense counsel responded that exhibits should only be published upon request. The trial court informed counsel all photographic exhibits would be published. Id. Defense counsel did not object. Id.

During deliberation, the jury asked the trial judge the following question: "Regarding substantial risk of death. Does it apply to the surgery that resulted from the offense or from the assault that night?" Id. at 137. The trial court answered: "If somebody would not have needed a surgical intervention, but only needed the surgical intervention because of the assault, and the surgical intervention, itself, created a substantial risk of death, then the assault by definition creates a substantial risk of death." Id. at 137. After receiving the court's answer to the question, defense counsel did not object. However, the following exchange took place before the court issued its response to the jury:

[Defense Counsel]: Your Honor, in this case the Commonwealth called an expert witness who described the various injuries [that] required that level of surgery. I believe the basis of evidence

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