J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ORIALIS FIGUEROA

- COLON

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2051 EDA 2022

Appeal from the Judgment of Sentence Entered July 13, 2022 In the Court of Common Pleas of Northampton County

Criminal Division at CP

- 48

- CR

- 0000103

- 2020

BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E. *

MEMORANDUM BY MURRAY, J.: FILED JUNE 9, 2023

Orialis Figueroa

- Colon (Appellant) appeals from the judgment of

sentence imposed after a jury found him guilty of aggravated assault, simple

assault, resisting arrest, and disorderly conduct

. 1 We affirm.

During the afternoon of July 27, 2019, Easton Police Officer Jonathan

Vidal (Officer Vidal) was dispatched to the 900 block of Ferry Street for a

complaint of loud music at a large street party. N.T., 5/31/22, at 7 9, 81.

Officer Vidal “attempted to speak to [Appellant] and advise him that I just

needed the music to be turned down.” Id. at 82. Appellant replied

, “the noise

ordinance does not pertain to him,” and turned the music up. Id. at 84.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 2702(a) (3)

, 2701(a)(1), 5104, 5503(a)(1)

.J

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-

Officer Vidal contact ed dispatch for backup

, and uniformed Easton Police

Officer Aaron Kinnel (Officer Kinnel) arrived in a marked police car. Id. at 86.

At trial, Officer Kinnel testified :

Q [The p rosecutor] . Could you hear anything when you got [to the

scene of the street party ]?

A. As soon as I got out of my vehicle, I started to get [] verbally attacked by [Appellant]....

* * *

Q. What was being said to you?

A. A lot of things. I was being cursed at. I was told to leave, to get out of there. ... [Appellant’s] girlfriend or wife told me that

she didn’t like me and that I needed to leave. I told her that ... I was there ... as a backup officer and I wasn’t going to leave the scene until we got it resolved.

* * *

Q. Was [Appellant] yelling directly at you?

A. He was.

Q. What was he saying? ...

A. [Appellant] was cursing at me. Calling me a pussy. Saying he was going to beat my ass, things like that.

* * *

Q. And how many people approximately were in the area?

A. ... I estimated 40 to 50. ...

Q. How would you describe the crowd in general, their demeanor?

A. Extremely hostile towards [the o fficers].

* * *J

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-

Q. Did you tell anyone to turn the music down, you personally?

A. No. So when I got there, I spoke to Officer Vidal. He had told me that he tried to get [Appellant] to turn the music down and [Appellant or the partygoers] actually turned [the volume] back up. When I got there, I think [the volume] was turned back down

. But [Appellant] was screaming and yelling and then cursing at me and trying to get me to fight him [].

N.T., 11/1/21, at 102

- 06.

The prosecutor ’s questioning of Officer Kinnel continued:

Q. [] Why didn’t you just leave the area?

A. So I had warned [Appellant] ... numerous times to stop cursing and to calm down because there [were] other families ... out in the area. And ... that made [Appellant] more angry, and he continued to ... yell at me and curse. [In response, Officer Kinnel informed Appellant he w as ]

... getting a ticket for disorderly

conduct.

And that did not [have] the desired effect.... [Appellant] ramped up even more and continued to scream at me. ...

* * *

Q. [] Did you tell [Appellant] he was under arrest?

A. Yes. I said, Orialis, you ar e under arrest.

* * *

Q. And what happened?

A. [Appellant] ran.

Q. Where did he run to?

A. Up onto his porch and into his house.

* * *J

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Q. [] When you saw [Appellant] go towards his house after you told him he was being arrested, what happened?

A. [Appellant] ran from me. And I gave chase to try to arrest him. As I did this, [Appellant’s] sister tried to stop me by ... blocking me.

* * *

Q. Were there other people between that threshold and the steps and the porch blocking your access to [Appellant]?

A. ... [Appellant’s] sister[] grabbed my gun, along with a young girl [who] grabbed for my gun and my belt area. ...

* * *

Q. [] And when yo u then went up to the porch ... [and] got past them, what did you do?

A. [Appellant] was right inside of that main door []. And [Appellant’s elderly mother] was trying to block me from being able to get into the house. So I went next to her and did the s ame thing that I did to [Appellant’s sister when she attempted to block the officers.] I

... just moved her out of my way. And that is when I tried to grab [Appellant] to effect the arrest.

Q. And ... when you tried to grab [Appellant], were you able to [accomplish] the arrest?

A. No. So I grabbed ahold of one of [Appellant’s] arms and he pulled away from me violently

.

Q. And what did you do?

A. At this point, as I was trying to grab ahold of [Appellant], other family members and friends started to attack me from behind and

on the side.

* * *

Q. What did you feel?J

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A. People ... pulled my radio off, at one point. Somebody pulled me back out of the house by my hips, by my gun. ...

* * *

Q. [] What did [Appellant] do at that point?

A. [A]s I wa s trying to grab [Appellant] and arrest him, he [and] his family members and friends started pulling on ... my radio ... and my gun[.] I was getting concerned for my safety.... So I took my taser out. ... [Appellant] was trying to shove me out of the

house.

And when I did that, somebody to my right had smacked the taser out of my hand.

Q. Do you know who that was?

A. No. I do not know.

Q. And did you ever feel hands on your neck or shoulders ?

A. Yes, [ Appellant’s ].

Q. [] And describe that for the jury please.

* * *

A. [Appellant] was actively trying to shove me out of the house. And when I was picking up the taser, he was ... trying to push me out of the house. And ... other people were pulling on me. ...

* * *

Q. [] W hen you fired the taser [ at Appellant], what happened

after that?

A. ... I fired it and when it didn’t do what I was hoping it would do, [ Appellant ] charged me and tackled me out of the

house

.

Q. [] And how did he charge you?

A. Violently.J

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- * * *

Q. And what happened when you were shoved out of the house?

A. I fell down into the ... [ concrete ] porch area

....

Id. at 106

- 18 (emphasis added) ; see also id. at 118, 120 (Officer Kinnel

testifying that when he fell

, his head struck the metal leg of a table, and he

received an electric shock from one of the deployed taser wires ).

T he Commonwealth charged Appellant with the aforementioned crimes,

as well as assault of a law enforcement officer (assault / police) and riot. 2 The

Commonwealth withdrew the charge of assault / police at Appellant’s

preliminary hearing.

The matter proceeded to trial, where A ttorney Robert E. Goldman

(defense counsel) represented Appellant

. During jury selection , defense

counsel raised an objection at sidebar, invoking Batson v. Kentucky , 476

U.S. 79, 87

- 89 (1986) (holding prosecution’s challenge to potential jurors

solely on basis of race violated Equal Protection Clause of the United States

Constitution)

. 3 According to d efense counsel , “ T hree [Commonwealth juror]

_________________ __________ ______ ____ _______

2 See 18 Pa.C.S.A. §§ 2702 .1 (a), 5501( 2 ).

3 Our Supreme Court has explained

, “ t he harm Batson seeks to avoid is not only a trial where members of the defendant’s own race have been excluded from the jury on account of their race, but also the harm to the prospective jurors and the community at large that results when cit izens are denied participation in jury service based upon their race.” Commonwealth v. Sanchez , 36 A.3d 24, 44 (Pa. 2011) (citation omitted).J

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- 7

-

challenges out of seven are Latinos, [an d Appellant ] is a Latino [.] ” N.T.,

5/31/22, at 42

- 43.

T he prosecutor informed the trial court that s he had “non

- discriminatory

reasons” for challenging the three jurors

, including that jurors number 12 and

18 had expressed views “negative to police.” N.T., 5/31/22, at 43

- 4 5

. With

respect to the two jurors, the trial court replied, “we don’t know if [they are]

Hispanic or not .” Id. at 46. However, the trial court disagreed with the

prosecutor as to th e third juror (juror number 6) , stating “there’s no legitimate

reason. You can’t give a Batson reason....” Id. at 46

- 47 ; see also id. at 47

(trial court cautioning the prosecutor : “ T hat’s not good

. ”) . The prosecut or

agreed to defense counsel ’s request that juror number 6 be placed “back on

the jury. ” Id. at 47. The trial court then asked defe nse counsel: “So you’re

done with the objection?” Id. at 48. Defense counsel replied, “ T here’s

satisfaction on the record. Yes, Y our Honor.” Id. (emphasis added).

The reafter, the jury was empaneled and trial began

. The jury found Appellant

guilty of the above crimes

. 4

On July 13, 2022, the trial court sentenced Appellant to an aggregate 9

– 13 months of incarceration, followed by two years of probation

. Appellant

did not file post

- sentence motions. Appellant filed a timely appeal and

complied with Pa.R.A.P. 1925 (b)

.

_________________ __________ ______ ____ _______

4 T he trial court entered a directed verdict on the riot charge . N.T., 6/1/22,

at 16 6

- 6 7.J

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-

Appellant presents two issues for review:

1. Did the Trial Court err when it found that the Commonwealth presented sufficient evidence to support the charges of Aggravated Assault 18 Pa.[C.S.A. §] 2702(a)(3) and Simple Assault 18 Pa.[C.S.A. §] 2701(a)(1)?

2. Di d the Trial Court err when it failed to determine Appellant’s

Batson challenge on two (2) jurors, instead only addressing one (1)?

Appellant’s Brief at 5 ( issues reordered for disposition ).

Appellant first claims his convictions for aggravated assault and simple

assault we re not supported by sufficient evidence. See id. at 18

- 22.

According to Appellant :

T here was no evidence presented concerning any threats made by Appellant to Officer Kinnel, no evidence that Appellant contin ued to pursue Officer Kinnel, nor any evidence that Officer Kinnel had to make any attempts to escape Appellant

. ... The evidence presented simply shows trivial contact be tween Appellant and Officer Kinnel that occurred incident to an attempt to arrest.

Id. at 22 ; see also id. (claiming Appellant’s “conduct was not assaultive or

violent”). Appellant relies on C ommonwealth v. Wertelet , 696 A. 2d 206

(Pa. Super. 1997)

, assert ing it is “factually similar

. ” Appellant’s Brief at 20

-

21.

When reviewing a sufficiency challenge,

we evaluate the record in the light most favorable to the

Commonwealth as verdict winner

, giving it the benefit of all

reasonable inferences to be drawn from the evidence. Evidence

will be deemed sufficient to support the verdict wh en it establishes

each material element of the crime charged and the commission

thereof by the accused, beyond a reasonable doubt. Any doubt

about the defendant’s guilt is to be resolved by the fact

- finder

unless the evidence is so weak and inconclusive t hat, as a matterJ

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of law, no probability of fact can be drawn from the

combined circumstances. Additionally, the Commonwealth may
sustain its burden solely by means of circumstantial evidence.

Commonwealth v. Lake , 281 A.3d 341, 346 (Pa. Super. 2022) (cit ations

and quotations omitted). “ On appeal, this Court evaluates the full record to

determine whether sufficien [t] evidence was presented to support each

element of the crime charged; however, we do not second

- guess the jury’s

factual determinations.” Commonwealth v. Risoldi , 238 A.3d 434, 454 (Pa.

Super. 2020). “ Finally, the finder of fact, while passing upon th e credibility of

witnesses and the weight of the evidence produced, is free to believe all, part

or none of the evidence.” Commonwealth v. Smith , 206 A.3d 551, 557 (Pa.

Super. 2019) (citation omitted).

The Crimes Code provides that a person commits aggra vated assault if

he “at tempts to cause or intentionally or knowingly causes bodily injury to any

of the officers, agents, employees or other persons enumerated in subsection

(c), in the performance of duty [.]” 18 Pa.C.S. A. § 2702 (a)( 3 ) ; see also id.

§ 2702(c)(1) ( specifying police officers as protected persons ). “Bodily injury”

is defined as “ [ i ] mpairment of physical condition or substantial pain.” Id. §

2301. This Court has instructed:

[I]n a prosecution for aggravated assault on an officer, the

Commonwealth has no obligation to establish that the officer actually suffered a bodily injury; rather, the Commonwealth must

establish only an attempt to inflict bodily injury, and this intent

may be shown by circumstances which reasonably suggest that [a n appellant] intended to cause injury.J

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-

Commonwealth v. Rahman

, 75 A.3d 497, 502 (Pa. Super. 2013) ( emphasis

in original; citation

, quotation marks, and brackets omitted) ; see also

Commonwealth v. Brown , 23 A.3d 544, 560 (Pa. Super. 2011) ( en banc )

(same).

The Crimes Code provides that a person commits simple assault if he

“ attempts to cause or intentionally, knowingly or recklessly causes bodily

injury to another [.]” 18 Pa.C.S.A. § 2701(a)( 1 ) ; accord Commonwealth v.

Marti , 779 A.2d 1177, 1182

- 83 (Pa. Super. 2001) (explaining a defendant’s

assault on a police officer may warrant a conviction of simple assault under

Section 2701(a)(1), and a conviction of aggravated assault under Section

2702(a)(3) )

.

Instantly, t he trial court explained its reject ion of Appellant’s sufficiency

challenge :

[T ] he evidentiary record overwhelmingly establishes [Appellant’s] guilt [ of aggravated assault and simple assault]

. ... Officer Kinnel testified that as he approached [Appellant]

, announcing that [Appellant] was being arrested , [Appellant] pushed Officer Kinnel out of the doorway to the apartment building, onto the floor of the porch, and then turned to run into his apartment on the second floor. The incident was captured on cell phone video and clearly depicted [Appellant] pushing Officer

Kinnel and Officer Kinnel falling out of the doorway onto the porch

floor.

[ The defense theory a t trial

, ]

... to justify [Appellant’s] physical contact with Officer Kinnel, [was that Appellant purportedly] was trying to aid or respond to [Appellant’s] mother[,] who had also fallen onto the porch and was lying behind

Officer Kinnel. Unfortunately for [Appellant]

, the video captured [Appellant] pushing Officer Kinnel back, then turning and running in the opposite direction into the apartment buildingJ

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where [Appellant] then ran up to his second floor apartment. Thus, the [defense’s theory] as to [Appellant’s] intent for creating contact with Officer Kinnel was contradicted by the video.

Trial Court Opinion, 10/5/22 , at 4 (emphasis added)

. The record and law

support the trial court’s reasoning . Thus, the trial court did not abuse its

discretion in rejecting Appellant’s sufficiency claim

.

We further disagree with Appellant ’s reliance on Wertelet

, supra , to

support reversal of his conviction s

. The defendant in Wertelet kicked the

arresting officer in the shin while resisting arrest

. Wert elet

, 696 A.2d at 208,

212

. We held that this “ relatively harmless physical contact ” did not constitute

“ bodily injury ” as defin ed by the aggravated assault statute

. Id. at 210, 212

.

H owever, we did not squarely address in Wertelet whether the defendant

attempted to cause bodily injury to the officer.

As discussed above, it was the Commonwealth ’ s burden to establish that

Appellant attempt ed to inflict bodily injury, and such intent “ may be shown

by circumstances which reasonably suggest [Appellant] intended to cause

injury. ” R ahman

, supra ; see also B rown , supra

. The evidence in th is case

stands in stark contrast to Wertelet . Appellant (1) threatened to “beat

[Officer Kinnel’s] ass”; (2) ran from Officer Kinnel to prevent him from lawfully

arresting Appellant for disorderly conduct; and (3) shoved Officer Kinnel out

the doorway of Appellant’s home, causing Officer Kinnel to fall on a

concrete porch and hit his head on a metal table leg

. See generally

N.T., 11/1 /21, at 106

- 18, supra . This evidence was sufficient to establishJ

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Appellant’s attempt to inflict bodily injury. Indeed, Appellant injured Officer

Kinnel. Id. at 118

- 19 , 120 (Officer Kinnel stating the taser “wires actually

wrapped up around my neck” ( mildly shock ing him and caus ing pain )

, he “hit

the back of [his] head on ... the metal table leg

, ” and the fall caus ed the officer

to be “a little” disoriented ).

Finally

, Appellant’s decision to flee from police and attempt to hide in

his home supported an inference of his consciousness of guilt. See

Commonwealth v. Laird , 988 A.2d 618, 627 (Pa. 2010) (flight and

concealment can constitute circumstantial proof of consciousness of guilt)

.

Appellant’s first issue lacks merit.

In his second iss ue, Appellant argues the trial court erred in rejecting

his Batson challenge. See Appellant’s Brief at 15

- 18. A ccording to Appellant

,

a prima facie case was established, and the prosecution was asked by the [trial c] ourt to present a neutral explanation for its use of peremptory challenges for three jurors. Said explanations were presented. The [c] ourt challenged the p rosecution ’ s neutral explanati ons, and seemingly disavowed said presented reasons, but ultimately only truly made a determination on one of the three jurors [, i.e.

, juror number 6,] before asking if placing

... juror [ number ] 6 back on the jury would solve the issue. ... [T] he trial

court erred when it failed its duty to determine if Appellant had

established purposeful discrimination as to all three of the juror

strikes that were challenged by Appellant , i nstead only following through on the required analysis for one (1) of the three (3) challenges.

Id. at 18.

When reviewing an issue involving a Batson challenge , we examine

“whether the trial court’s legal conclusions are correct and whether its factualJ

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-

findings are clearly er roneous.” Commonwealth v. Edwards , 177 A.3d 963,

970 (Pa. Super. 2018).

G reat deference must be given to the trial court’s finding as to an

absence of discriminatory intent in peremptory challenges, and

this finding will not be overturned unless clearly erroneous. Such

deference is warranted because the trial court is in the position to

make credibility determinations when viewing the demeanor of

the prosecutor exercising the peremptory challenges.

Commonwealth v. Towles

, 106 A.3d 591, 602 ( Pa. 2014) (citations

omitted).

The evaluation of a Batson challenge involves a three

- prong test:

[F]irst, the [a] ppellant must make a prima facie showing that the

circumstances give rise to an inference that the prosecutor struck

one or more prospective jurors on account of race; second, if the prima facie showing is made, the burden shifts to the prosecutor

to articulate a race

- neutral explanation for striking the juror(s) at issue; and third, the trial court must then make the ultimate

determination of whether the defense has carried its burden of proving purposeful discrimination.

Commonwealth v. Williams

, 980 A.2d 510, 529

- 30 (Pa. 2009) (citing

Batson

, 476 U.S. at 97)). A trial court should consider the “ totality of

circumstances ” when determining whether the prosecut ion acted with

discriminatory intent or engaged in purposeful discrimination. Id. at 531

- 32

.

T he Commonwealth counters :

Appellant utterly failed to present any of the necessary information to make the required prima facie showing. [According to] Appellant [,]

... three stricken jurors had “Hispanic, Latino last names” and “[t]hree challenges out of seven are Latinos.” N.T., 5/31/22, at 42

- 43. Appellant never identified the race of the other four potential jurors struck by the Commonwealth or the race of the juro rs struck by the defense, nor did he provide any information about the racial composition of the final jury selected.J

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-

See Trial Court Opinion, 10/5/22, at 2. Because Appellant failed to make the required record to satisfy the first [ Batson ] prong, he has failed to properly preserve his claim for appellate review,

and is not entitled to relief. See [ Commonwealth v. ] Hackett

, 735 A.2d [688,] 694 [(Pa. 1999 )] ; Commonwealth v. Jones

, 668 A.2d 491, 518 (Pa. 1995) (finding appellant failed to create adequate record to satisfy requirement of establishing prima facie

Batson case); see also Commonwealth v. Spence , 627 A.2d 1176, 1182 (Pa. 1993) [ ( overruled on other grounds by

Commonwealth v. Walker , 92 A.3d 766, 781 ( Pa. 2014) ) .]

Commonwealth Brief at 11 (footnote omitted)

.

Similarly, t he trial court explained:

At the conclusion of the jury selection process, defense counsel

raised a Batson objection claiming that the Commonwealth had made preemptory challenges striking three (3) jurors who had apparent Hispanic last names, specifically jurors [number] 6, 12 and 18. Defense counsel did not make a presentation with regard

to the total number of Hispanic jurors in the jury pool or the composition of the selected jury.

[The trial court] first requested the District Attorney to present her non

- discriminatory basis for making her selections. In defense of her selections, the District Attorney n oted that there were Hispanic jurors seated on the jury that she did not strike. The District Attorney also stated that jurors number 12 and 18 were stricken because of answers they provided on the juror questionnaire form which indicated they were negativ e towards the police. As far as juror number 6, the District Attorney indicated that that selection was random, as she had no negative information about the juror; and in fact, the District Attorney commented that she believed that juror number

6 would be a favorable juror for the Commonwealth.

[The trial court] overruled the Commonwealth [ ’s] preemptory challenge of juror number 6, [and] add[ed] him back to the trial jury. No further discussion was presented by counsel[,

so the trial court] asked defense counsel: “Do I resolve this issue if I put [juror ] number 6 back on the jury?” Defense counsel responded: “I would be satisfi ed with that.” Thereafter, [the trial court] again inquired of defense counsel: “So you’re done with the objection?” Defense counsel responded:J

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-

“There is satisfaction on the record.” The above exchange indicated that the objection was resolved to [defen se] counsel’s

satisfaction.

No post

- trial motion was filed. Therefore, this alleged

Ba [ts] on error was not preserved or resolved in a post

- sentence motion. Therefore, we believe that the issue is waived on appeal. [ See Jones , 668 A.2d at 518

, supra ( hol ding defendants raising

Batson claim have the burden of “creat[ing] an adequate record at trial” with respect to the matter ) ; see also Pa.R.A.P. 302(a) (issues cannot be raised for the first time on appeal) .] Further, because defense counsel did not respond to or challenge the proffer made by the District Attorney that the strikes for jurors [number] 12 and 18 were for non

- discriminatory reasons, [the trial court] cannot delve further into a Batson analysis

.

Trial Court Opinion, 10/5/22, at 2

- 3 ( emphasis added; some capitalization

altered).

T he record supports the trial court’s analysis

. See id. ; se e also N.T.,

5/31/22, at 43

- 45 , and id. at 46 (trial court stating

, “we don’t know if [the

jurors are ] Hispanic or not.” )

. Contrary to Appellant’s claim, the trial court

did not “ err [] when it failed its duty to determine if Appellant had established

purposeful discrimination as to all three of the juror strikes .” Appellant’s Brief

at 18

. Appellant’s second issue does not merit relief.

Judgment of sentence affirmed.J

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-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/ 9/2023