J-S10043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE MARTE CASTRO

Appellant No. 2857 EDA 2015

Appeal from the Judgment of Sentence dated May 7, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006739-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.: FILED JUNE 23, 2017

Appellant Jose Marte Castro appeals from the judgment of sentence 

following his convictions for aggravated assault, possession of an instrument 

of crime, terroristic threats, simple assault, and recklessly endangering 

another person,1all of which resulted from his attack on his supervisor by 

swinging a machete or similar object at the supervisor’s head. Appellant 

contends that the weight of the evidence presented at trial was contrary to 

the verdict. We affirm.

____________________________________________

1 18 Pa.C.S. §§ 2702(a), 907(a), 2706(a)(1), 2701(a), and 2705, 

respectively. 
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The case was tried before a judge2on conflicting accounts of a 

confrontation at Appellant’s place of work, an appliance store, on April 22, 

2014. According to testimony by the supervisor, Edgar Suarez,3the 

confrontation began as a heated argument between Mr. Suarez and 

Appellant’s cousin, Victor,4 who also was employed at the appliance store, 

regarding money that was owed.5 Appellant interceded and approached Mr. 

Suarez, and there then was more argument that included exchanges of 

profane insults. Eventually, Appellant told Mr. Suarez, “I’m going to cut your 

head off.” 

Mr. Suarez testified that Appellant then exited the store, went to the 

delivery van outside, and returned with a machete that Appellant had shown 

to Mr. Suarez previously.6 Mr. Suarez picked up a small ax and metal grate 

____________________________________________

2 Appellant waived his right to a jury trial. His bench trial was held on 

February 19, 2015.

3

Interpreters were needed for both the testimony of Mr. Suarez and 

Appellant.

4 Victor’s last name is not revealed in the record.

5 Both parties testified that the argument was initially about a payment that 

the cousin felt Mr. Suarez owed him and then became an argument about 

water bottles that Appellant and his cousin had taken from the store without 

paying for them.

6 The supervisor described this machete as “like a knife, but a bigger version 

of a knife,” with a blade that was approximately two feet long, the “front” of 

which was sharp. N.T. at 24. He said that the blade was “dark and had a 

visible sharp end. One side is sharp. The other side is not sharp.” Id. at 53. 

When asked how long the sharp part was, the supervisor stated, “It’s like 

(Footnote Continued Next Page)
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to arm himself.7 Appellant pointed the machete at Mr. Suarez, slowly 

approaching from twenty feet away, and, after more argument, eventually 

swung the machete at Mr. Suarez’s head. The blade came within six inches 

of Mr. Suarez’s head, but Mr. Suarez raised the ax, which he was holding by 

its metal head, and intercepted the swing of the machete, so that the blade 

cut into the rubber handle of the ax instead. Appellant’s cousin and Mr. 

Suarez’s girlfriend, who was also present, then pushed Appellant out of the 

store. Mr. Suarez called 911, and the police arrived. Mr. Suarez was fired 

from the store later that day. 

The Commonwealth also presented testimony by Officer Alfonso 

Powers, who responded to the 911 call. The officer testified that when he 

arrived, Mr. Suarez seemed upset and scared. An ax was recovered from the 

store, and it had an indentation on the handle that was consistent with being 

used for blocking a blow. A photograph of the ax was introduced into

evidence.8 No machete was ever recovered. 

(Footnote Continued) _______________________

half an inch,” and he responded affirmatively when asked whether “just the 

tip is sharp.” Id. The supervisor did not know the composition of the handle, 

and, when asked whether the handle could be flimsy or wobbly, testified, “I 

wouldn’t know. I never touched it. I never had it in my hands. I never 

grabbed it. And he was moving his hand. Like it could be an optical illusion 

or something, I don’t know.” Id. at 35. 

7 The ax was a fireman’s ax which was kept near the fire extinguisher, and 

the grate was part of a stove top.

8 The single color photograph of the ax shows a black rubber handle with a 

mark on it, but the mark is not clear. See Appellant’s Ex. 1.
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Appellant testified on his own behalf. He stated that he and Mr. Suarez 

had had a good working relationship. He said that he intervened in the 

argument between his supervisor and his cousin to prevent them from 

physically fighting. Appellant claimed that when he intervened, Mr. Suarez 

pushed Appellant and armed himself with an ax and a piece of metal, 

causing Appellant to respond by grabbing a two-and-a-half foot long piece of 

plastic from the top of a nearby refrigerator. Appellant claimed that the 

plastic was shaped somewhat like a machete, but that he did not have a 

machete. Appellant said he never swung his object and that, after the 

confrontation calmed down, Appellant left. Appellant reported to police later 

that evening and returned to work the day following his release.9

The trial court found Appellant guilty of the aforementioned charges. 

Just before the court rendered its verdict, it stated, “I agree with the 

Commonwealth that there’s more corroboration for the complaining witness’ 

testimony than there is for the defendant’s testimony. There are more 

inconsistencies also with[in] the defendant’s testimony. And for that reason, 

I will find him guilty.” N.T., 2/19/15, at 83. The court graded the assault as 

a second-degree felony (“F2”), and in connection with that decision, had the 

following colloquy with Appellant’s counsel:

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9 Appellant also presented a stipulation that his uncle would testify that 

Appellant has a reputation in the community for peacefulness, nonviolence, 

and lawfulness.
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[The court]: And although I think the Commonwealth’s argument 

was on point and accurate, I am going to grade it as an F2 

because of his character.

[Appellant’s counsel]: Your Honor, I would just ask that if you’re 

going to find him guilty, that you consider it as a simple assault 

with physical menace, rather than an aggravated assault.

[The court]: If you want me to reconsider, I’ll go back to an F1 

because that’s what it is. Do you want me to reconsider?

[Appellant’s counsel]: No, Your Honor.

N.T. at 84.10

On May 7, 2015, the court sentenced Appellant to three to six months 

of incarceration (to be served on weekends, with eligibility for parole after 

thirty days), followed by thirty-six months of probation. Appellant filed a 

timely post-sentence motion, which was denied by operation of law, and a 

timely notice of appeal. See generally Trial Ct. Op., 5/28/16, at 1-10.

Appellant presents a single issue for our review: Did the trial court 

abuse its discretion by failing to grant [A]ppellant’s post-sentence motion for 

a new trial, as the verdict was so contrary to the weight of the evidence as 

to shock one’s sense of justice?” Appellant’s Brief at 3.

____________________________________________

10 We are troubled that the trial court appeared to threaten to increase the 

grading of the offense if Appellant’s counsel did not withdraw his motion for 

reconsideration. The court’s flippant remark was improper, and we trust 

that the court reduced the grade of the offense on the basis of the evidence 

and without regard to defense counsel’s withdrawal of his motion. Because 

no party seeks relief on the basis of this comment, we need not address it 

further.
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Our standard of review of a challenge to the weight of the evidence is 

as follows:

Where the trial court has ruled on a weight claim, an appellate 

court’s role is not to consider the underlying question of whether 

the verdict is against the weight of the evidence. Rather, our 

review is limited to whether the trial court palpably abused its 

discretion in ruling on the weight claim. 

Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super. 2014) 

(brackets, quotation marks, and internal citations omitted), appeal denied, 

134 A.3d 56 (Pa.), cert. denied, 132 S. Ct. 106 (2016). “An abuse of 

discretion may not be found merely because an appellate court might have 

reached a different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.” Commonwealth v. Hairston, 84 

A.3d 657, 664-65 (Pa.), cert. denied, 135 S. Ct. 164 (2014).

Appellant first claims that the physical evidence did not corroborate 

the Commonwealth’s version of events. Appellant’s Brief at 11. He argues 

that: Mr. Suarez’s description of the alleged weapon did not match the 

common description of a machete,11 a machete was never recovered, and 

the imprint left on the rubber handle of the ax does not reflect the severe 

damage a machete would cause. Id. at 12-14. 

____________________________________________

11 Appellant refers to Mr. Suarez’s testimony describing the machete as 

having only a one-and-a-half inch tip and statement that he did not know 

whether its handle was flimsy.
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In a second argument, Appellant asserts that the evidence showed he 

was defending his cousin from Mr. Suarez. Appellant’s Brief at 15.12

According to Appellant, he intervened because Mr. Suarez was speaking 

heatedly to his cousin; Mr. Suarez put his hands on Appellant’s shoulders 

when Appellant approached them; and Mr. Suarez picked up an ax and a 

piece of metal before Appellant armed himself with the piece of plastic. Id.

at 16-17. Appellant suggests that his use of force therefore was justified to 

protect his cousin from attack by Mr. Suarez. Id. He adds that the fact that 

Mr. Suarez was fired and Appellant was not fired suggests that Appellant 

was not the aggressor. Id. Appellant asserts that when a defendant’s own 

____________________________________________

12 The Crimes Code explains that the use of force upon another person in 

order to protect a third person is justifiable when:

(1) the actor would be justified under section 505 (relating to 

use of force in self-protection) in using such force to protect 

himself against the injury he believes to be threatened to the 

person whom he seeks to protect;

(2) under the circumstances as the actor believes them to be, 

the person whom he seeks to protect would be justified in using 

such protective force; and

(3) the actor believes that his intervention is necessary for the 

protection of such other person.

18 Pa.C.S. § 506(a). Section 505 permits the use of force “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,” but not “unless the actor believes that such force is 

necessary to protect himself against death, serious bodily injury, kidnapping 

or sexual intercourse compelled by force or threat,” or if “the actor, with the 

intent of causing death or serious bodily injury, provoked the use of force 

against himself in the same encounter.” 18 Pa.C.S. § 505(a), (b)(2)(1).
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testimony is the only evidence of a defense, the Commonwealth must 

disprove the defense and may not simply rely on the fact-finder’s disbelief of 

the defendant’s testimony. Id. at 22 (citing Commonwealth v. Smith, 97 

A.3d 782, 788 (Pa. Super. 2014)).

More generally, Appellant argues that his version of events should 

have been accepted because “[i]t [is] patently more believable that [Mr. 

Suarez] would be upset because Victor was trying to cheat him than that 

[A]ppellant would fly into a violent rage against [Mr. Suarez] for no reason.” 

Appellant’s Brief at 20-21. He points to evidence of his good character and 

the fact that he voluntarily reported to the police on the evening of the 

incident to bolster his credibility and assertion of innocence. Id. at 17-19. 

Appellant also complains that the trial court’s statement that there was 

“more corroboration” for Mr. Suarez’s testimony than for that of Appellant 

shows that the court weighed the evidence by a preponderance standard, 

rather than beyond a reasonable doubt. Appellant complains further that the 

court improperly considered Appellant’s good character only when 

determining to grade the aggravated assault conviction as a second degree 

felony rather than a first degree felony. Id. at 14-15, 22.

As we have previously stated:

A new trial should be awarded when the jury’s verdict is so 

contrary to the evidence as to shock one’s sense of justice and 

the award of a new trial is imperative so that right may be given 

another opportunity to prevail. In this regard, the evidence must 

be so tenuous, vague and uncertain that the verdict shocks the 

conscience of the [trial] court.
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Thompson, 106 A.3d at 758–59. The Supreme Court has explained: 

A new trial should not be granted because of a mere conflict in 

the testimony . . . Rather, the role of the trial judge is to 

determine that notwithstanding all the facts, certain facts are so 

clearly of greater weight that to ignore them or to give them 

equal weight with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (quotation 

marks and citations omitted).

In an opinion, the trial court explained its verdict as follows: 

The [c]ourt, sitting as fact finder, evaluated the evidence 

presented at trial and reached its verdict. As outlined above, the 

physical and testamentary evidence established that [Appellant] 

put himself in the middle of an argument over money between 

[Mr. Suarez] and his cousin Victor at the appliance store where 

they were all employed. [Mr. Suarez] credibly testified that he 

was upset about Victor’s refusal to pay for the bottles of water 

taken by [Appellant] and Victor. [Mr. Suarez] admitted to using 

profanity and having an ax and a metal grate in his hands. His 

account of the incident was also corroborated by Officer Powers 

as the recovered ax had an indentation on it supporting [Mr. 

Suarez’s] testimony that he used it to block the machete swung 

at his head by [Appellant]. Additionally, Officer Powers testified 

that when he arrived on the scene [Mr. Suarez] was very upset 

and very scared.

Moreover, this [c]ourt found that there were 

inconsistencies in [Appellant’s] testimony and less corroboration 

than that of [Mr. Suarez’s] testimony. [Appellant] initially stated 

that [Mr. Suarez] did not swing at Victor, then that [Mr. Suarez] 

did swing at Victor, and finally explained that he believed that 

[Mr. Suarez] wanted to swing at Victor. [Appellant] repeatedly 

stated that he stepped into the argument to prevent [Mr. 

Suarez] and Victor from fighting, but instead he escalated the 

situation by coming towards [Mr. Suarez] and grabbing an 

object. [Appellant] also stated that he and [Mr. Suarez] were 

friends and that there was no need to call the police following 

this incident because things calmed down. However, [Mr. 

Suarez] called 911 and filed a report which negates any positive 
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perception of their relationship. As outlined above, Officer 

Powers noted that [Mr. Suarez] was upset and scared.

Consequently, the verdict was not against the weight of the 

evidence. The [c]ourt considered the stipulation to [Appellant’s] 

good character, but weighed with his inconsistent testimony, 

found [Appellant]’s actions to be provocation and contrary to any 

intent to pacify the situation. The verdict was not the result of 

partiality, prejudice, bias, or ill will, and is supported by both the 

law and the record.

Trial Ct. Op. at 12-14 (citations to the record omitted).

We discern no abuse of discretion in the trial court’s analysis. Where 

the testimony conflicted, the trial court credited Mr. Suarez’s version of 

events — which, as the finder of fact, it was free to do. We are unable to 

substitute our judgment for that of the fact-finder or to grant a new trial 

based on a mere conflict in testimony. Widmer, 744 A.2d at 752. Although 

Appellant contends that certain facts should fall in his favor, those facts are 

not “so clearly of greater weight that to ignore them or to give them equal 

weight with all the facts is to deny justice.” Id.

For example, the failure to recover a machete does not prove that 

Appellant did not have a machete, as Appellant could have left the premises 

with the machete and then stored or disposed of it. Nor do alleged 

disparities between Mr. Suarez’s description of the weapon and the typical 

shape of a machete prove that Appellant did not attack Mr. Suarez with a 

dangerously sharp knife. Although Mr. Suarez stated that only the “tip” of 

the machete was sharp and that the tip was only one-and-a-half inches long, 

he could have been describing, through the interpreter, the blade side of the 
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machete. Mr. Suarez’s overall testimony comports with a description of a 

long sharp knife, and the trial court could reasonably have found it unlikely 

for Mr. Suarez to have confused a machete that he had previously seen for 

the piece of plastic Appellant claims to have retrieved from atop the 

refrigerator. Although the divet made by Appellant’s weapon in the rubber 

handle of the ax is not clearly visible in the photograph introduced into 

evidence, the testimony regarding the indentation in the handle was 

buttressed by the testimony of Officer Powers. 

Similarly, the evidence of Appellant’s good character and the fact that 

he surrendered were not of such clearly greater weight as to render a guilty 

verdict shocking to the conscience. Thompson, 106 A.3d at 758–59. Nor is 

it inherently unbelievable that Appellant would escalate an argument which 

concerned him and in which Mr. Suarez insulted Appellant’s cousin. We 

therefore find that the trial court did not abuse its discretion by implicitly 

concluding that Mr. Suarez’s testimony was not so vague, tenuous, and 

uncertain that a guilty verdict would be unsupportable. Id.

The trial court also acted properly in concluding that Appellant did not 

act in defense of Victor. The court based its conclusion on Mr. Suarez’s 

testimony that Appellant was the aggressor in the confrontation and that 

Appellant escalated the argument by grabbing and swinging the knife. 

Appellant’s reliance on Smith, 97 A.3d at 788, is thus misplaced. While the 

Court in Smith held that the Commonwealth must present evidence to 
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disprove a defense claim beyond a reasonable doubt and may not rely solely 

on the fact-finder’s disbelief of the defendant’s testimony, id., here the 

Commonwealth presented the testimony of Mr. Suarez, along with a 

photograph of the ax handle and testimony by Officer Powers. The factfinder acted well within its discretion to disbelieve Appellant’s defense claim.

To the extent Appellant’s contention that the trial court improperly 

weighed the evidence by a preponderance standard can be construed as a 

weight claim, we discern no basis for relief. The trial court merely said that 

there was more reason for it to believe one witness than the other. The case 

was presented in a way that required the court either to believe Mr. Suarez’s 

version of the events or that of Appellant, and once the court concluded that 

Mr. Suarez was the more credible witness, the court was free to believe all 

of his testimony. See Commonwealth v. Tielsch, 934 A.2d 81, 94 (Pa. 

Super. 2007) (“The fact-finder, 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”), appeal denied, 952 A.2d 81 (Pa.), cert. 

denied, 555 U.S. 1072 (2008).

Lastly, Appellant complains that the trial court did not give sufficient 

weight to his good character evidence. He suggests that if the court had 

properly considered that evidence, it would have found him innocent of the 

charges. But as the trial court explained in its opinion, it considered 

Appellant’s character in conjunction with the other testimony that was before 
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it, including Appellant’s “inconsistent testimony” and actions that the court 

found “to be provocation and contrary to any intent to pacify the situation.” 

Trial Ct. Op. at 13-14. To the extent that Appellant’s argument can be 

construed as a weight claim, it was well within the trial court’s discretion to 

weigh the evidence as it deemed fit. See Tielsch, 934 A.2d at 94. For the 

aforementioned reasons, we hold that the trial court did not abuse its 

discretion in deciding whether the verdict rendered was contrary to the 

weight of the evidence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2017