J-S10009-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANEL CUENAS,

Appellant No. 3554 EDA 2013

Appeal from the Judgment of Sentence September 12, 2013

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0002610-2011

BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 14, 2015

Appellant, Anel Cuenas, appeals from the judgment of sentence 

imposed after a jury conviction of aggravated assault (two counts), assault 

on a law enforcement officer (one count), carrying firearms without a license 

(eight counts), possession of an instrument of crime (one count), and 

criminal conspiracy to commit aggravated assault (one count).1 We affirm.

The trial court summarized the factual history of this case as follows:

On July 1[5], 2010 at approximately 8:38 p.m., 

Philadelphia Police Officers Brian Issel and his partner Kevin 

Livewell were in uniform in a marked police vehicle when they 

received a radio call to be on the lookout for a white van with 

the red letters KASS on the side. The radio call further stated 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a), 2702.1(a), 6105(a)(1), 907(a), and 903(c), 

respectively.
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that the occupants of the van should be considered armed and 

that they were wanted for a possible prior shooting. The officers 

spotted the van on the next block and were following behind 

when the vehicle abruptly pulled over. When the driver side 

door started to open, the officers exited their vehicle and 

ordered the driver back into the van. As the driver complied, 

Appellant appeared on the passenger side of the van armed with 

a rifle and fired several shots at the officers. One of those shots 

hit Officer Livewell in the left leg. The officers then exchanged 

gunfire with Appellant and another armed male. Appellant and 

the other male fled, firing back as they ran. The driver of the 

van was taken into custody. Shortly after the shooting, Officers 

Issel and Livewell positively identified Appellant in separate 

photo arrays as the male who had shot at them with the rifle.

Officer Joseph Moore arrived on the scene a couple 

minutes following the shooting and began to search for the 

shooters after receiving information from Officer Issel concerning 

the direction in which they fled. A black knit hat was found 

outside the passenger side of the van. Carlos Garcia, the block 

captain on Water Street, had seen the shooter take off the hat 

and drop it by the passenger door of the van. When Officer 

Moore turned east on Clearfield Street, he observed a ski mask 

and assault rifle underneath a red minivan. As the officer then 

proceeded down an alleyway between Swanson and Water 

Streets he saw an assault rifle in the yard of 3047 Water Street. 

Another firearm, an automatic handgun with an extended 

magazine, was found further down the alleyway. A subsequent 

search of the van uncovered the presence of other firearms 

inside the van. Appellant’s DNA was present on the black knit 

hat found outside the van and on the rifle seized from under the 

red minivan, as well as on other firearms inside the van.

Maria Santiago Rivera testified that Appellant came to her 

residence located at 3345 Potter Street in Philadelphia around 

midnight on July 16, 2010 wearing a wig and a hoodie. Ms. 

Rivera, whose sister is married to Appellant’s cousin, stated that 

Appellant asked if he could stay the night with her and her 

children because police were looking for him in connection with 

the shooting of an officer. Although Ms. Rivera denied at trial 

that Appellant had admitted to the shooting, she gave a 

statement to police in which she said that Appellant told her he 

and his friends shot at police and that he himself had been 

grazed in the foot during the shootout.
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Ms. Rivera’s boyfriend, Santos Martinez, testified that 

Appellant was at Rivera’s residence when he arrived there at 

around 11:30 p.m.. Mr. Martinez also stated that he saw a wig 

on the table. Mr. Martinez wanted Appellant to leave and he and 

Rivera argued about it. In a statement previously given to 

police, Mr. Martinez said that Appellant told him that the guns 

were in the van because he had been on his way to get back at 

someone who had threatened him. Mr. Martinez also told police 

in that statement that Appellant said he shot a police officer in 

the leg, that he himself also got shot, and that he shot at police 

because the van was stolen and there were firearms in the van. 

At trial, Martinez denied having told police anything other than 

that Appellant was at Rivera’s residence when Martinez arrived.

Detective Robert Hesser testified to the efforts made to 

locate Appellant on the morning of July 17, 2010. After visiting 

two other locations, the detective and his SWAT unit finally 

found Appellant at Ms. Rivera’s residence. Although Appellant 

initially came down the stairs from the second floor with his 

hands up, he turned around halfway down the stairs and tried to 

go back up. Police then grabbed him and took him into custody.

(Trial Court Opinion, 5/29/14, at unnumbered pages 2-4) (record citations 

omitted).

The trial court gave the following jury instruction:

There was evidence including the testimony of Detective 

Hesser and Ms. [Maria] Rivera and Santos Martinez that tended 

to show that [Appellant] fled from the police and/or hid from the 

police. Regarding the testimony of Detective Hesser the 

Commonwealth alleges that he made several attempts to locate 

[Appellant] at various addresses in Philadelphia and the 

testimony of Ms. Rivera and [Mr. Martinez] regarding the wig 

and the hoodie and [Appellant] staying at their house after his 

picture was in the news. The credibility, weight, and effect of 

this evidence is for you to decide. Generally speaking, when a 

crime has been committed and a person thinks he or she may be 

accused of committing the crime and he flees or conceals himself 

such flight or concealment is a circumstance tending to show the 

person is conscious of guilt. Such flight or concealment is a 

circumstance tending to show the person is conscious of guilt. 
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Such flight or concealment does not necessarily show 

consciousness of guilt in every case. A person may flee or hide 

for some other motive and may do so even though innocent. 

Whether the evidence of flight or concealment in this case should 

be looked at as tending to prove guilt depends on the fact and 

circumstances of this case and upon the motives that may have 

prompted the flight or concealment. You may not find 

[Appellant] guilty solely on the basis of evidence of flight or 

concealment.

(N.T. Trial, 3/13/13, at 97-98).

On March 14, 2013, a jury convicted Appellant of the above charges. 

On September 12, 2013, the court sentenced Appellant to not less than 

forty-five nor more than 100 years’ incarceration.

Appellant timely filed post-sentence motions on September 18, 2013. 

On November 13, 2013, Appellant filed supplemental post-sentence motions. 

On November 21, 2013, the trial court denied Appellant’s motions, but 

corrected the transcript to remove a word appearing in error. Appellant 

timely appealed on December 16, 2013.2

____________________________________________

2 The record reflects that on December 20, 2013, the trial court entered an 

order directing Appellant to file a Rule 1925(b) statement within twenty-one 

days, by January 10, 2014. (See Concise Statement Order, 12/20/13). 

Appellant filed his facially untimely Rule 1925(b) statement on January 15, 

2014 in which he acknowledged that the court entered its order on 

December 20, 2013. (See 1925(b) Statement, 1/15/14, at 1 n.1). 

However, Appellant asserts that his statement is timely because “[t]he 

enclosure letter . . . is dated January 2, 2014 and the envelope containing it 

is postmarked 1/2/14[, and c]ounsel received it a few days after its 

postmark.” (Id.). The trial court entered its Rule 1925(a) opinion on May 

29, 2014. See Pa.R.A.P. 1925(a). Therefore, we will give Appellant the 

benefit of the doubt and review his appeal on the merits. See

Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en 

banc) (considering the merits where “counsel has filed a [facially untimely] 

(Footnote Continued Next Page)
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Appellant raises the following issues for our review:

I. Did the trial court abuse its discretion when it allowed 

Police Officer Issel to testify he stopped a white van with red 

letters K-A-S-S on the side based on a radio call that claimed its 

occupants were considered armed and wanted for a possible 

prior shooting?

II. Did the [trial] court err when it allowed substantive use of 

the police statement made by Marie Santiago Rivera who could 

not adopt the statement because she could not read or write?

III. Did the [trial] court err in its [jury] instructions on flight in 

the context of this case?

IV. Was the evidence sufficient to sustain the aggravated 

assault convictions because the wound attempted or inflicted 

was not such as to comprise “serious bodily harm”?

(Appellant’s Brief, at 5).3

In his first and second issues, Appellant argues that the trial court 

abused its discretion in making specific evidentiary rulings. (See Appellant’s 

Brief at 11-22). We disagree.

(Footnote Continued) _______________________

Rule 1925 concise statement setting forth the alleged error, and the trial 

court has filed an opinion addressing the issue presented in the 1925(b) 

concise statement.”).

3 We note that on July 15, 2014, Appellant requested an extension to file his 

brief. This Court granted his request and extended the deadline until 

September 12, 2014. (See Per Curiam Order, 7/17/14). On September 5, 

2014, Appellant requested a second extension. This Court granted his 

request and gave him until November 12, 2014, specifying, “[n]o further 

extensions will be granted absent good cause. Counsel’s busy schedule will 

not be considered good cause.” (Per Curiam Order, 9/11/14). Appellant 

failed to file his brief timely, instead, filing it six days late on November 18, 

2014.
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It is well[-]settled that the admission or rejection of [witness 

testimony] is within the sound discretion of the trial court. An 

abuse of discretion will not be found based on a mere error of 

judgment, but rather exists where the court has reached a 

conclusion [that] overrides or misapplies the law, or where the 

judgment exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will.

Commonwealth v. Davido, 106 A.3d 611, 645 (Pa. 2014) (citations and 

quotation marks omitted).

In his first issue, Appellant claims that the trial court erred in 

permitting Officer Issel to testify that he stopped the van based on “[t]he 

content of the radio call implicat[ing] the occupants . . . in a possible prior 

shooting . . . .” (Appellant’s Brief, at 12) (internal quotation marks omitted). 

Specifically, Appellant argues that the radio call’s content was hearsay, the 

jury did not need to know its substance, and the court did not balance the 

content’s probative value with its prejudicial impact. (See id. at 12-15). 

This issue is waived.

It is well-settled that:

If a Rule 1925(b) statement is too vague, the trial judge may 

find waiver and disregard any argument.

When a court has to guess what issues an 

appellant is appealing, that is not enough for 

meaningful review. When an appellant fails 

adequately to identify in a concise manner the issues 

sought to be pursued on appeal, the trial court is 

impeded in its preparation of a legal analysis which is 

pertinent to those issues. In other words, a 

[c]oncise [s]tatement which is too vague to allow the 

court to identify the issues raised on appeal is the 

functional equivalent of no [c]oncise [s]tatement at 

all.
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Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006), appeal 

denied, 919 A.2d 956 (Pa. 2007) (citations omitted).

Here, the record reflects that Appellant’s Rule 1925(b) statement 

asserts that “[t]he trial court erred in not striking the testimony of Officer 

Issel that the radio call stated the occupants of the van were considered 

armed and wanted for a possible prior shooting[,] . . . not granting a mistrial 

. . . [and] stat[ing] this testimony was not offered for its truth.” (Rule 

1925(b) Statement, 1/15/14, at 2 ¶ 4). The trial court properly found that 

“[n]o theory or rationale to support this allegation is mentioned, leaving the 

court to guess as to the basis for the claim.” (Trial Ct. Op., at unnumbered 

page 7); see also Reeves, supra at 2.

Moreover, although Appellant’s counsel objected to Officer Issel’s 

testimony of the radio call as hearsay, counsel stated “I understand [the 

Commonwealth] may have [the radio call] and they can play it [for the 

jury.]” (N.T. Trial, 3/07/13, at 34).

The trial court explained that:

The sole basis offered for Appellant’s objection to the admission 

of this testimony at trial was that it constituted inadmissible 

hearsay. The testimony concerning the radio call was not 

hearsay as it was not being offered for the truth of the matter 

stated, but rather to explain why police stopped the van in which 

Appellant was riding. The Pennsylvania Supreme Court has 

addressed evidence of police course of conduct as follows: “[i]t 

is, of course, well established that certain out-of-court 

statements offered to explain a course of police conduct are 

admissible. Such statements do not constitute hearsay 

[because] they are not offered for the truth of the matters 

asserted; rather, they are offered merely to show the 
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information upon which police acted.” Commonwealth v. 

Yates, 613 A.2d 542, 543 (Pa. 1992); Commonwealth v. 

Palsa, 555 A.2d 808, 810 (Pa. 1989). Here, the [c]ourt upheld 

the admission of this testimony on the basis that it was 

necessary to explain the course of police conduct, reasoning that 

without the testimony the jury would have had no means of 

knowing why the police were looking for and stopped the van. . . 

.

Moreover, it should be noted that the [c]ourt, in order to 

avoid any possible prejudice to Appellant [], instructed the jurors 

sua sponte that any reference to any activity that this van may 

have been involved in prior to the incident on trial should not be 

considered in their evaluation of the evidence and should not be 

held against Appellant in any way. The [c]ourt made it clear 

that the radio call was being admitted merely for them to 

consider why the police engaged in their course of conduct after 

receiving the call. Our law presumes that jurors follow a court’s 

instruction. [See] Commonwealth v. Baker, [] 614 A.2d 663, 

672 ([Pa] 1992). Accordingly, this evidence was properly 

admitted in this case, and Appellant was not prejudiced by the 

officer’s testimony.

(Trial Ct. Op., at unnumbered pages 8-9) (record citations omitted). Upon 

review, we agree and conclude that the record supports the court’s 

determination and that it did not abuse its discretion. See Davido, supra

at 645. Accordingly, Appellant’s first issue does not merit relief.

In his second issue, Appellant claims that the court erred in permitting 

the substantive use of Ms. Rivera’s prior inconsistent statement when she 

“testified repeatedly that she could not read or write, which prevented her 

from reading over her police statement and/or adopting it.” (Appellant’s 

Brief, at 18). We disagree.

Pennsylvania Rule of Evidence 803.1 provides, in relevant part:
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The following statement[] [is] not excluded by the rule against 

hearsay if the declarant testifies and is subject to crossexamination about the prior statement:

(1) Prior Inconsistent Statement of Declarant-Witness. A 

prior statement by a declarant-witness that is inconsistent with 

the declarant-witness’s testimony and:

(A) was given under oath subject to the penalty of perjury 

at a trial, hearing, or other proceeding, or in a deposition;

(B) is a writing signed and adopted by the declarant; or

(C) is a verbatim contemporaneous electronic, audiotaped, 

or videotaped recording of an oral statement.

Pa.R.E. 803.1(1).

This Court has held that:

. . . [A] prior inconsistent statement by a non-party 

witness shall be used as substantive evidence only when it was 

given under oath at a formal legal proceeding, or the statement 

was reduced to a writing signed and adopted by the declarant, or 

the statement was recorded verbatim contemporaneously with 

the making of the statement.

Commonwealth v. Buford, 101 A.3d 1182, 1200 (Pa. Super. 2014).

Here, the trial court explained that:

. . .[Ms.] Rivera was a reluctant witness who was afraid to 

testify against Appellant at trial. To that end, although she 

admitted at trial that she told police much of what was contained 

in her statement, she denied she ever said that Appellant told 

her he shot a police officer. She also claimed she was unable to 

review the statement she signed because she cannot read. 

Contrary to Ms. Rivera’s claim, Detective David Schmidt testified 

that when he interviewed Ms. Rivera he asked her to read the 

first two questions after the statement had been printed out in 

order to ensure that she could read. The detective stated that 

Ms. Rivera read the questions and then reviewed the rest of the 

statement before signing it. Additionally, when the prosecutor 

reviewed the statement line by line with Ms. Rivera, she never 

said that anything contained in the statement was incorrect. 
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Moreover, the facts Ms. Rivera recounted to the prosecutor were 

the same as those contained in the statement. . . .

(Trial Ct. Op., at unnumbered page 9) (record citations omitted). Upon 

review, we agree with the trial court’s admission of Ms. Rivera’s prior 

inconsistent statement. See Buford, supra at 1200.

Additionally, our independent review of the record reflects that Ms. 

Rivera began to read her statement at trial until Appellant’s counsel 

objected. (See N.T. Trial, 3/08/13, at 104). Accordingly, we conclude that 

the record supports the court’s decision to allow Ms. Rivera’s statement. 

See Davido, supra at 645. Appellant’s second issue does not merit relief.

In his third issue, Appellant claims that the court erred in its jury 

instruction on flight. (See Appellant’s Brief, at 23-25). Specifically, he 

argues that “[e]quating an effort to avoid detection to flight . . . places far 

too much emphasis and weight on the effort to avoid detection and bolsters 

the Commonwealth’s case for no valid reason.” (Id. at 25). We disagree.

“[I]t is well-established that an instruction shall be given only when 

either the evidence of record supports the instruction or the instruction is as 

to a well[-]established principle of law.” Commonwealth v. Robinson, 5 

A.3d 339, 344 (Pa. Super. 2010), appeal denied, 19 A.3d 1051 (Pa. 2011) 

(citation omitted).

This Court has held that “[w]hen a person knows that he is wanted in 

connection with a criminal investigation, and flees or conceals himself, such 

conduct is admissible as evidence of consciousness of guilt.” 
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Commonwealth v. Hudson, 955 A.2d 1031, 1036 (Pa. Super. 2008), 

appeal denied, 964 A.2d 1 (Pa. 2009) (citation omitted).

Here, the Commonwealth presented evidence “that Appellant was 

concealing himself from the police as the police had to make several 

attempts to locate [him].” (Trial Ct. Op., at unnumbered page 10; see also

N.T. Trial, 3/12/13, at 96-104). The evidence showed that Appellant was 

aware that he was suspected of shooting a police officer. (See N.T. Trial, 

3/08/13, at 88). Appellant attempted to avoid detection by wearing a wig 

and a hoodie when he arrived at Ms. Rivera’s home. (See id. at 86). When 

police arrived, he tried to flee through the back of the house and then up the 

stairs. (See N.T. Trial, 3/11/13, at 65-66; N.T. Trial, 3/12/13, at 105-06).

Therefore, the evidence supports the court’s jury instruction on flight. 

See Robinson, supra at 344. Accordingly, Appellant’s third issue lacks 

merit.

In his final issue, Appellant challenges the sufficiency of the evidence 

to sustain an aggravated assault conviction.4 (See Appellant’s Brief, at 26-

27). He argues that “there was no medical testimony establishing that 

[Officer Livewell’s] wound was sufficient to meet the serious bodily harm 

____________________________________________

4 We note that Appellant has abandoned his challenge to the sufficiency of 

the evidence identifying him as the perpetrator. (See Rule 1925(b) 

Statement, 1/15/14, at 1 ¶ 1; Appellant’s Brief, at 5).
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statutory definition . . . [and] Officer Issel . . . suffered no wound at all.” 

(Id. at 27). We disagree.

It is well-settled that:

In challenges to the sufficiency of the evidence, our 

standard of review is de novo, however, our scope of review is 

limited to considering the evidence of record, and all reasonable 

inferences arising therefrom, viewed in the light most favorable 

to the Commonwealth as the verdict winner. Evidence is 

sufficient if it can support every element of the crime charged 

beyond a reasonable doubt. The evidence does not need to 

disprove every possibility of innocence, and doubts as to guilt, 

the credibility of witnesses, and the weight of the evidence are 

for the fact-finder to decide. We will not disturb the verdict 

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.

Commonwealth v. Forrey, 2015 WL 223857 at *2 (Pa. Super. filed Jan. 

16, 2015) (citations and quotation marks omitted).

As charged in this case, “[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).

Serious bodily injury is defined as “[b]odily injury which creates a 

substantial risk of death or which causes serious, permanent disfigurement, 

or protracted loss or impairment of the function of any bodily member or 

organ.” 18 Pa.C.S.A. § 2301; see also Commonwealth v. Phillips, 410 

A.2d 832, 834 (Pa. Super. 1979) (finding gunshot wound to leg requiring 
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two weeks of hospitalization and rendering victim unable to walk for one 

month is serious bodily injury).

However,

Where the victim does not suffer serious bodily injury, the 

charge of aggravated assault can be supported only if the 

evidence supports a finding of an attempt to cause such injury. 

“A person commits an attempt when, with intent to commit a 

specific crime, he does any act which constitutes a substantial 

step toward the commission of that crime.” 18 Pa.C.S.A. § 

901(a). An attempt under Subsection 2702(a)(1) requires some 

act, albeit not one causing serious bodily injury, accompanied by 

an intent to inflict serious bodily injury. A person acts 

intentionally with respect to a material element of an offense 

when ... it is his conscious object to engage in conduct of that 

nature or to cause such a result[.] As intent is a subjective 

frame of mind, it is of necessity difficult of direct proof. The 

intent to cause serious bodily injury may be proven by direct or 

circumstantial evidence.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012) (case 

citations and some quotation marks omitted); see also Phillips, supra at 

834 (finding act of pointing gun towards victim evidenced intent to cause 

serious bodily injury).

Here, Appellant concedes that he shot Officer Livewell in the leg. (See

Appellant’s Brief, at 7). The wound “required surgery, hospitalization, a 

subsequent skin graft, and months of physical therapy and wound care.” 

(Trial Ct. Op., at unnumbered page 6). Officer Livewell has a visible scar 

and lacks feeling on the inside of his leg from the ankle to the knee. (See

N.T. Trial, 3/08/13, at 68). Accordingly, Officer Livewell suffered a serious 

bodily injury. See 18 Pa.C.S.A. § 2301; Phillips, supra at 834.
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Appellant further concedes that he shot at Officer Issel. (See

Appellant’s Brief, at 7). Although Officer Issel did not suffer a serious bodily 

injury, Appellant’s act of shooting at him and Officer Livewell demonstrated 

his intent to cause serious bodily injury. See Martuscelli, supra at 948; 

Phillips, supra at 834.

Accordingly, viewing the evidence in the light most favorable to the 

Commonwealth, we conclude that it was sufficient to sustain the jury’s 

conviction of aggravated assault. See Forrey, supra at *2.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015