J-S24030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STEVEN RENE GUZMAN-RODRIGUEZ,

Appellant No. 302 MDA 2015

Appeal from the Judgment of Sentence of December 17, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): 

CP-06-CR-0000607-2014

BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 22, 2016

Steven Rene Guzman-Rodriguez appeals from the December 17, 2014 

judgment of sentence of two consecutive terms of six to twenty years 

incarceration imposed after a jury found him guilty of aggravated assault 

and two counts of intimidation of a witness. We affirm. 

The Commonwealth adduced the following evidence at trial. On 

January 20, 2012, a dispute arose between neighbors on the 300 block of 

Pear Street, in Reading, Pennsylvania. Two sisters, Bianca Claudio and Ana 

Rodriguez-Claudio, engaged in a verbal altercation with Geovanie CollazoRosa, who lived across the street. Mr. Collazo-Rosa stood in the street as 

the sisters shouted at him from Ms. Claudio’s porch. 
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Appellant, along with three other individuals, approached Mr. CollazoRosa in Appellant’s red Toyota Corolla. Appellant sat in the passenger seat. 

As the car came to a stop, shots rang out from the right side of the vehicle. 

Five bullets, from two firearms, struck Mr. Collazo-Rosa as he stood on the 

right side of the street. Four bullets were fatal. Appellant and his 

accomplices fled the scene in the Toyota. Police officers arrived shortly 

thereafter, and found Mr. Collazo-Rosa lying dead in the street. 

Subsequently, Appellant solicited two men who intimidated Ms. Claudio on 

his behalf. During the ensuing grand jury proceedings, Ms. Claudio testified 

that Appellant confronted her and threatened to harm her daughter if she 

identified him to investigators. 

A jury convicted Appellant of the above-mentioned crimes. 

Appellant’s aggravated assault conviction included a specific jury finding that 

he did not use a firearm in the commission of the offense. The jury 

acquitted him of first-degree murder, third-degree murder, and aggravated 

assault with a deadly weapon. The court imposed two consecutive 

sentences of six to twenty years incarceration.1 Appellant filed post 

sentence motions, which were denied. This timely appeal ensued.

____________________________________________

1 The two counts of intimidating a witness merged for sentencing. N.T. 

Sentencing, 11/17/14, at 9.
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The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. Appellant complied, 

and the trial court authored its opinion on February 3, 2016. The matter is 

now ready for our review. Appellant presents four issues for this Court’s 

consideration. 

1. Whether the trial court abused its discretion and erred in 

determining that supposed grand jury testimony alluded to by 

the Commonwealth in its questioning of a witness was a) in 

the record at all where the Commonwealth never marked, 

authenticated, or admitted any such exhibit? And b) that the 

alluded to grand jury testimony was substantive evidence and 

not simply impeachment evidence? 

2. Whether the evidence was insufficient to sustain a conviction 

for the Aggravated Assault offense/no firearm possessed 

where a) there was no identification of [Appellant] as being 

present at the scene of the offense, and b) there was no 

evidence or testimony to support a conclusion that 

[Appellant] was in any way involved? 

3. Whether the trial court committed an abuse of discretion and 

prejudicial error by allowing, over objection, extensive 

testimony regarding the use of a particular phone number in 

the course of the events which was alleged by the 

Commonwealth to belong to [Appellant] despite the fact that 

the Commonwealth was never able to articulate how the 

phone number was connected to [Appellant]?

4. Whether the trial court committed an abuse of discretion in 

sentencing by imposing consecutive, maximum, top of the 

aggravated range sentences for the stated reason that 

“[Appellant] is a danger to the community” where that 

conclusion is not supported in the record which indicates that 

[Appellant] has no prior convictions for crimes of violence, 

and which indicates, in connection with the aggravated 
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assault charge, that [Appellant] did not possess a weapon 

and was only “somehow” involved in the incident? 

Appellant’s brief at 8. 

As Appellant’s second issue relates to the sufficiency of the evidence, 

and a successful sufficiency challenge warrants discharge, we address that 

issue at the outset. Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.Super. 

2013) (en banc). In analyzing a sufficiency challenge, we must determine 

“whether, viewing all the evidence admitted at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to enable a factfinder to find every element of the crime beyond a reasonable doubt.” 

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015) 

(citations omitted). “In applying the above test, we may not weigh the 

evidence and substitute our judgment for that of the fact-finder. Id. In 

addition, 

we note that the facts and circumstances established by the 

Commonwealth need not preclude every possibility of innocence. 

Any doubts regarding a defendant’s guilt may be resolved by the 

fact-finder 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. The Commonwealth may sustain its 

burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire record must be 

evaluated and all evidence actually received must be considered. 

Finally, the trier of fact 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. 
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Id. 

Appellant contends there was insufficient evidence to support his 

aggravated assault conviction since no witness testified definitively that he 

was present during the shooting. Appellant’s brief at 25. Emphasizing the 

jury’s specific finding that he did not possess a firearm while committing 

these crimes, Appellant asserts that he could not be liable for the 

aggravated assault since he was not found to possess a firearm, and there is 

otherwise no evidence that he aided in the commission of aggravated 

assault. Id. at 26. 

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. § 2702(a)(1). Where the victim suffers 

serious bodily injury, the Commonwealth is not required to prove specific 

intent. Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa.Super. 2007) 

(en banc). Instead, the Commonwealth “need only prove the defendant 

acted recklessly under circumstances manifesting an extreme indifference to 

the value of human life.” Id. (citation omitted). Moreover, “for the degree 

of recklessness contained in the aggravated assault statute to occur, the 

offensive act must be performed under circumstances which almost assure 

that injury or death will ensue.” Id. (citation omitted). 
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Under the doctrine of accomplice liability, a person is guilty of an 

offense if it is committed by his own conduct or by the conduct of another 

person for which he is legally accountable, i.e., an accomplice in the 

commission of an offense. 18 Pa.C.S. § 306(a) and (b). A person is an 

accomplice if, with the intent of facilitating the commission of the offense, he 

solicits or aids the other person in committing it. 18 Pa.C.S. § 306(c). 

We now examine the proof adduced by the Commonwealth. Ms. 

Claudio testified that she was present when Appellant visited her sister, Ana, 

in his red Toyota Corolla earlier on the day of the shooting. N.T., 11/12/14, 

at 134. She later recognized that same car as Appellant’s when it 

approached the victim during their argument. Id. at 135. At trial, Ms. 

Claudio equivocated as to whether Appellant was one of the four individuals 

in the car. Id. 136; 138-39; 154. She believed it was Appellant, but could 

not assure the court it was him. Id. at 154. It was elicited that, at the 

grand jury proceedings, Ms. Claudio reported that Appellant was the front 

seat passenger. Id. at 167-68. Other witnesses observed gunfire that 

originated from the front and rear passenger side of Appellant’s vehicle 

striking the victim. N.T., 11/10/14, at 46; 55. Appellant, along with the 

other individuals in his car, then fled the scene of the crime. Id. at 68-69. 

After viewing all the evidence admitted at trial in the light most 

favorable to the Commonwealth, we find there is sufficient evidence to prove 
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beyond a reasonable doubt that Appellant aided in the aggravated assault on 

Mr. Collazo-Rosa. Contrary to Appellant’s position, Ms. Claudio’s testimony 

alone suffices to demonstrate that Appellant was seated in the passenger 

seat of his car during the commission of the crime. Ms. Claudio maintained 

that she was familiar with Appellant’s vehicle, having seen it earlier that day, 

and recognized the individual in the passenger seat as someone who looked 

like Appellant. Numerous witnesses observed that shots were fired from 

Appellant’s car, fatally striking the victim. The fact that the jury found that 

Appellant did not possess a firearm does not warrant discharge, as he 

supplied the vehicle used to facilitate the crime as well as to flee the area. 

This testimony is sufficient to place Appellant in his vehicle at the time of the 

shooting, and to prove that he assisted in its commission. Thus, Appellant’s 

contention fails. 

Having determined that there is sufficient evidence to support 

Appellant’s conviction, we turn now to the remaining issues before us. 

Appellant next assails the trial court’s rulings regarding the admissibility of 

certain evidence. We note that the “admission of evidence rests within the 

discretion of the trial court, and we will not reverse absent an abuse of 

discretion.” Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa.Super 2014) 

(citation omitted). The court abuses its discretion “when the course pursued 

represents not merely an error in judgment, but where the judgment is 
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manifestly unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill will. Id.

Appellant’s argument is two-fold. First, Appellant asserts that the trial 

court erred in considering grand jury testimony alluded to during the 

examination of Ms. Claudio that was never admitted into evidence. Second, 

Appellant contends that the court erred in viewing the testimony as 

substantive evidence. Appellant’s brief at 19. Appellant notes that the 

Commonwealth examined Ms. Claudio regarding statements she made 

before the grand jury concerning the confrontation that she had with 

Appellant wherein he personally threatened her, and her identification of 

Appellant as being at the scene of the crime. He maintains that the 

Commonwealth did not lay a foundation for introducing Ms. Claudio’s 

inconsistent statements, and that they were not otherwise presented 

through another witness. Id. 21-22. 

Appellant did not object that Ms. Claudio’s testimony regarding her 

previous inconsistent statements were not admitted into the record, 

otherwise authenticated, or could only be used as impeachment evidence. 

To the extent there was any error, this argument was waived. 

Commonwealth v. Stokes, 78 A.3d 644, 653 (Pa.Super. 2013) (finding 

that “in order to preserve an issue for review, a party must make a timely 

and specific objection at trial.”). 
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Assuming, arguendo, this matter were properly before us, Appellant is 

not entitled to relief. Ms. Claudio’s testimony regarding her previous grand 

jury testimony was itself substantive evidence which did not need to be 

authenticated or admitted into evidence. Therefore, we find the trial court 

did not err in admitting Ms. Claudio’s testimony. 

“A prior inconsistent statement of a declarant is admissible to impeach 

the declarant.” Commonwealth v. Henkel, 938 A.2d 433, 442 (Pa.Super. 

2007) (citation omitted). Prior inconsistent statements may also be 

admitted as substantive evidence 

provided the declarant testifies at trial and is subject to crossexamination concerning the statement and one of the following 

is true: 1) the prior inconsistent statement was given under oath 

subject to the penalty of perjury at a trial, hearing, deposition, 

or other proceeding; 2) the prior inconsistent statement is 

contained within a signed writing adopted by the declarant; 

and/or, 3) the rendition of the statement offered is a verbatim 

contemporaneous recording of an oral statement. 

Id.; see also Pa.R.Evid. 803.1. The record reveals: 

[District Attorney]: Now, do you remember testifying before the 

grand jury back on June 13 of 2014? In front of the grand jury, 

do you remember me asking you questions in front of a big room 

of people? 

[Ms.Claudio]: Yes.

Q: Do you remember you swore under oath to tell the truth? 

A: Yes.
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Q: And you would agree with me that back then you had a 

fresher recollection of what happened? 

A: Yes. 

Q: And when you testified, were you testifying truthfully?

A: Yes. 

Q: Do you recall testifying when I asked you the question, did 

[Appellant], himself, ever threaten you personally and your 

answer was, just the first time after we came out of the 

courthouse? 

A: I don’t remember seeing [Appellant] after the courthouse. 

Q: Do you remember testifying to that? 

A: Yes. 

N.T., 11/12/14, at 148-49. On redirect examination, the Commonwealth 

again referred to Ms. Claudio’s grand jury testimony. 

Q: And is it fair to say that the first time that you brought up 

that [Appellant] was involved and the red car was in the grand 

jury testimony – your grand jury testimony; is that fair to say? 

A: Yes. 

Id. at 167-68. 

To summarize, Ms. Claudio conceded that she previously made 

statements before the grand jury inconsistent with her testimony at trial. 

Ms. Claudio acknowledged her prior testimony on the record and was subject 

to cross-examination. Furthermore, her testimony before the grand jury 

was given under oath and subject to the penalty of perjury. The 
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Commonwealth was not required to offer the transcript of the grand jury 

proceedings, as Appellant suggests, or lay a foundation for Ms. Claudio’s 

statements at trial in order to present them to the jury. Rather, Ms. 

Claudio’s testimony at trial regarding her prior inconsistent statements met 

the structural requirements of Pa.R.E. 803.1, and the trial court did not 

abuse its discretion in admitting it as substantive evidence. 

Next, Appellant contests the admission of testimony, phone records, 

and historical location data regarding a cellular telephone number 

purportedly linked to Appellant. At trial, the Commonwealth attempted to 

associate Appellant with a phone number, which was actually assigned to an 

unknown third-party, to prove Appellant was present at the scene of the 

crime. Appellant argues it was error to allow extensive testimony regarding 

the phone number when the Commonwealth was unable to substantiate a 

connection between that number and Appellant. Appellant’s brief at 28. 

Furthermore, Appellant maintains that, despite the court’s curative 

instruction calling for the jury to disregard all evidence related to the phone 

number, the error was prejudicial. Appellant contends, “there was so little 

evidence of appellant’s guilt that it is difficult to imagine how the jury could 

have found him guilty of anything but for the fact they heard extensive 

testimony . . . that the telephone number [was his],” and therefore a new 

trial is warranted. Id. at 27-28. We disagree. 
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The Supreme Court of Pennsylvania has held that when the trial court 

provides a curative instruction, the defendant’s failure to object to that 

curative instruction indicates a satisfaction with the curative instruction. Any 

prejudice is assumed to be cured since the jury is presumed to follow the 

court’s instructions. Commonwealth v. Jones, 668 A.2d 491, 504 (Pa. 

1995). 

Here, the Commonwealth offered phone records as well as lay and 

expert testimony to connect Appellant to a cellular phone that was within Mr. 

Collazo-Rosa’s vicinity at the time of his death. The trial court initially 

permitted the Commonwealth to proceed based on its assurance that such a 

connection would be corroborated. At the time of its offering, this evidence 

was relevant circumstantial evidence tending to show that Appellant was 

present near the scene of the crime. See Gonzalez, supra; Pa.R.E. 401. 

Hence, the trial court did not abuse its discretion in admitting it into 

evidence. 

Nevertheless, the Commonwealth subsequently failed to substantiate 

an association between Appellant and the cell phone. As a result, the trial 

court prohibited the jury from considering the phone records, or the related 

testimony. N.T., 11/13/14, at 349-50. Appellant did not object to the 

court’s curative instruction. Thus, we find the court’s instruction cured any 

prejudice arising from this evidence. Jones, supra. Furthermore, contrary 
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to Appellant’s position herein, there was sufficient evidence of Appellant’s 

involvement in the death of Mr. Collazo-Rosa above and beyond any 

circumstantial evidence provided by the cellular phone evidence. Thus, 

Appellant’s contention fails. 

Finally, Appellant challenges the discretionary aspects of his sentence. 

We note, “there is no absolute right to appeal when challenging the 

discretionary aspect of a sentence.” Commonwealth v. Dodge, 77 A.3d 

1263, 1268 (Pa.Super. 2013) (citations omitted). An “appeal is permitted 

only after this Court determines that there is a substantial question that the 

sentence was not appropriate under the sentencing code.” Id. A defendant 

presents a substantial question when he “sets forth a plausible argument 

that the sentence violates a provision of the sentencing code or is contrary 

to the fundamental norms of the sentencing process.” Id. Furthermore, “in 

order to properly present a discretionary sentencing claim, a defendant is 

required to preserve the issue in either a post-sentence motion or at 

sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise statement.” 

Id. Moreover, on appeal, the defendant “must provide a separate statement 

specifying where the sentence falls in the sentencing guidelines, what 

provision of the sentencing code has been violated, what fundamental norm 

the sentence violates, and the manner in which it violates the norm.” Id. 
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Appellant preserved this issue in his post-sentence motion, Pa.R.A.P. 

1925(b) statement, and provided a Pa.R.A.P. 2119(f) statement. We 

observe that Appellant failed to indicate what provision of the sentencing 

code was violated. However, the Commonwealth has not challenged the 

adequacy of Appellant’s 2119(f) statement, and therefore we will consider 

whether Appellant has raised a substantial question for our review. 

Appellant claims the trial court erred when it imposed consecutive 

sentences at the top of the aggravated range of the sentencing guidelines. 

Appellant’s brief at 29. Appellant maintains that such a sentence is 

manifestly excessive, citing to Dodge, supra for the proposition that such 

sentences may raise a substantial question as to their propriety. Id. at 30. 

Furthermore, Appellant asserts that the trial court stated reasons for 

sentencing in the aggravated range that were already included in the 

standard sentencing guidelines, were unsupported by the record, or were 

irrelevant. Id. at 29-33. 

Generally, a bald excessiveness claim does not raise a substantial 

question. See Dodge, supra. However, an excessiveness claim in 

conjunction with Appellant’s claim that the court’s decision is supported by 

irrelevant considerations or facts outside the record may raise a substantial 

question. See Dodge, supra; Commonwealth v. Zeigler, 112 A.3d 656 

(Pa.Super. 2015) (finding a bald excessiveness claim in combination with an 
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assertion court did not adequately consider a mitigating factor may present 

a substantial question). 

Having concluded that Appellant has presented a substantial question 

for our review, we turn to the merits of his sentencing claim. “We analyze 

the sentencing court’s decision under an abuse of discretion standard.” 

Zeigler, supra at 661 (citation omitted). In addition, “this Court’s review of 

the discretionary aspects of a sentence is confined by the statutory 

mandates of 42 Pa.C.S. § 9781(c) and (d).” Id. at 661. Section 9781(c) 

provides that this Court shall vacate a sentence and remand under three 

circumstances: 

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines 

erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly 

unreasonable; or

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable.

42 Pa.C.S. § 9781(c). In addition, we consider: 

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation. 

(3) The findings upon which the sentence was based.
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(4) The guidelines promulgated by the commission. 

42 Pa.C.S. § 9781(d). 

Instantly, the Commonwealth apprised the sentencing court of the 

guidelines applicable to Appellant. The offense gravity score for aggravated 

assault was eleven and Appellant’s prior record score was one. N.T. 

Sentencing, 11/17/14, at 3. The standard range was forty-two to sixty 

months. Id. Thus, Appellant’s mitigated range was as low as thirty months, 

and the maximum aggravated range was seventy-two months. Id.

Similarly, since Appellant’s offense gravity score for intimidating a witness 

was eleven, having been graded as a felony of the first degree, the ranges 

for this count were identical to Appellant’s aggravated assault conviction. 

Id. Using the guideline matrix, the court imposed aggravated range 

sentences to be run consecutively at each count, and provided the following 

reasoning: 

The multiple – he had multiple current convictions. He was on 

probation or parole at the time of his arrest. He’s a repeat 

criminal. He had a pattern of criminal behavior. He’s a danger 

to society. He’s a poor candidate for rehabilitation. The victim 

was injured [sic] and a lesser sentence would depreciate the 

seriousness of the crime. 

Id. at 8. 

Based on the foregoing, Appellant’s aggregate sentence of twelve to 

forty years of incarceration was not clearly unreasonable. The court 
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sentenced Appellant within the sentencing guidelines, albeit at the top of the 

aggravated range. In addition, the circumstances surrounding Appellant’s 

conviction do not warrant a finding that the consecutive sentences were 

unreasonable. Appellant participated in the close-range slaying of Mr. 

Collazo-Rosa, and fled the scene while the victim lay dying in the street. 

Two other individuals were injured during this shooting, one of whom was 

also fatally shot. The sentencing court heard, on the record, that at the time 

of the shooting, Appellant was on bail for a drug offense. Furthermore, 

Appellant solicited two individuals to threaten a key witness in an attempt to 

avoid prosecution for this crime. Lastly, the sentencing court reviewed the 

presentence report, and had the opportunity to observe Appellant’s 

demeanor throughout his trial and sentencing hearing. Therefore, the 

sentencing court had valid reasons, supported by the record, to impose 

aggravated range sentences to run consecutively, and we discern no abuse 

of the trial court’s discretion in this regard. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2016