J-S78020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

OSCAR TERRETO CARTY

Appellant No. 1042 MDA 2014

Appeal from the Judgment of Sentence May 15, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003824-2013

BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 24, 2014

Oscar Carty attacked another male on a Reading street and stabbed 

him with a sharp object measuring 6-8 inches. The victim nearly died. A 

jury found Carty guilty of two counts of aggravated assault1and one count 

of possession of an instrument of crime (“PIC”)2. In this direct appeal, Carty 

challenges the sufficiency and weight of the evidence underlying his 

convictions3. We affirm. 

____________________________________________

1 The jury found Carty guilty of one count of aggravated assault under 18 

Pa.C.S. § 2702(a)(1) and a second count under 18 Pa.C.S. § 2702(a)(4).

2 18 Pa.C.S. § 907.

3 The trial court determined that the two aggravated assault convictions 

merged for purposes of sentencing. It sentenced Carty to 7-15 years’

imprisonment for aggravated assault plus two years’ consecutive probation 

for PIC. Carty filed timely post-sentence motions, which the trial court 

denied, and a timely notice of direct appeal. Both Carty and the trial court 

complied with Pa.R.A.P. 1925.
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Carty raises the following issues on appeal: 

The evidence presented at trial was insufficient to 

establish beyond a reasonable doubt the guilty 

verdicts due to [Carty’s] justification defense which 

was not disproved by the Commonwealth.

The guilty verdicts were contrary to the weight of the 

evidence, where [Carty] established a justification 

defense that was not otherwise disproved by the 

Commonwealth.

Brief For Appellant, pp. 10-16.

Carty’s first argument is a challenge to the sufficiency of the evidence. 

Our standard of review for challenges to the sufficiency of the evidence is 

well-settled:

[W]hether[,] viewing all the evidence admitted at 

trial in the light most favorable to the 

[Commonwealth as the] verdict winner, there is 

sufficient evidence to enable the fact-finder to find 

every element of the crime beyond a reasonable 

doubt. In applying [the above] test, we may not 

weigh the evidence and substitute our judgment for 

the fact-finder. 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. 

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations 

omitted).
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A person is guilty of aggravated assault under 18 Pa.C.S. § 2702(a)(1) 

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.” “Bodily injury” is 

“impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301. 

“Serious bodily injury” is “bodily 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.” Id. A 

person acts “intentionally” with regard to a material element of an offense 

when, “if the element involves the nature of his conduct or a result thereof, 

it is his conscious object to engage in conduct of that nature or to cause 

such a result.” 18 Pa.C.S. § 302(b)(1)(i). A person acts recklessly with 

respect to a material element of an offense 

when he consciously disregards a substantial and 

unjustifiable risk that the material element exists or 

will result from his conduct. The risk must be of such 

a nature and degree that, considering the nature and 

intent of the actor's conduct and the circumstances 

known to him, its disregard involves a gross 

deviation from the standard of conduct that a 

reasonable person would observe in the actor's 

situation.

18 Pa.C.S. § 302(b)(3). 

A person is guilty of aggravated assault under 18 Pa.C.S. § 2702(a)(4) 

if he “attempts to cause or intentionally or knowingly causes bodily injury to 

another with a deadly weapon.” A “deadly weapon” is “any firearm, whether 
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loaded or unloaded, or any device designed as a weapon and capable of 

producing death or serious bodily injury, or any other device or 

instrumentality which, in the manner in which it is used or intended to be 

used, is calculated or likely to produce death or serious bodily injury.” 18 

Pa.C.S. § 2301. A person acts “knowingly” with respect to a material 

element of an offense when:

(i) if the element involves the nature of his conduct 

or the attendant circumstances, he is aware that his 

conduct is of that nature or that such circumstances 

exist; and 

(ii) if the element involves a result of his conduct, he 

is aware that it is practically certain that his conduct 

will cause such a result. 

18 Pa.C.S. § 302(b)(2).

Construed in the light most favorable to the Commonwealth, the 

evidence is as follows: at 12:30 a.m. on June 28, 2013, two friends, Frankie 

Cordova and Jarrod Care, left Care's residence in Reading, Pennsylvania to 

go to a convenience store. N.T., pp. 57-58. En route to the store, they 

encountered a female named Kim Larrabee sitting in her vehicle. N.T., p. 59, 

99. Larrabee and Carty have a child together N.T., p. 145. Cordova 

approached Larrabee's vehicle to discuss an affair between Larrabee and the 

mother of Care's children. N.T., p. 60. 

A taxi approached, and Carty exited from the taxi. N.T., pp. 62-63. 

Carty began yelling at Larrabee to the effect of "this is what you do when 
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I’m not around?" N.T., p. 103. Carty then approached Care and began 

yelling and pointing his finger. N.T., p. 64-65. Carty and Cordova 

exchanged words and began punching each other. N.T.,pp. 66-67. Care was 

not involved in the altercation but stood 10-15 feet away. N.T., p. 105. 

During the fight, Carty reached towards his back pocket, pulled out a 

"sort-of-shiny object" and struck Cordova twice with the object, once in the 

chest and once in the upper abdomen. N.T., pp. 68-70, 106, 126, 131. 

Feeling pain in his ribs, Cordova backed away and began stumbling towards 

Care's house. N.T., p. 68-70. With his arm around Care for support, 

Cordova lifted his shirt, and Care stated that it looked like Cordova had been 

stabbed. N.T., p. 71.

When Care and Cordova arrived at Care's house, another family 

member took Cordova to Reading Hospital for treatment. N.T., p. 110. 

Cordova left the hospital due to the wait and his belief that the injury was 

not serious. N.T., p. 75. He returned to Care's house and went to sleep, 

thinking that rest and food would help him. N.T., p. 75 Roughly four hours 

later, he woke up and had difficulty breathing. N.T., p. 76. He was driven 

back to Reading Hospital, where he collapsed in front of the entrance and 

began vomiting. N.T., pp. 77-78. Medical personnel determined that the 

stab wound to the upper abdomen had lacerated his liver and "nicked" his 

pericardium, which caused blood to pool in his pericardium and disrupt the 

functioning of his heart. N.T., pp. 126, 131. 
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The surgeon who treated Cordova, Dr. Thomas Geng, opined that (1) 

the upper abdomen wound was roughly between "1 and 3 to 4 millimeters" 

away from Cordova's heart; (2) the object used was 6-8 inches long and 

very thin with a sharp point; and (3) a wound less than an inch closer to the 

heart would likely have caused Cordova's immediate death. N.T., pp. 129-

30.

Viewed in the light most favorable to the Commonwealth, this 

evidence is sufficient to sustain Carty’s conviction for aggravated assault 

under 18 Pa.C.S. § 2702(a)(1). Carty interrupted a conversation between 

Cordova and Kim Larrabee, and during the ensuing fight, Carty intentionally 

(or, at the very least, recklessly) stabbed Cordova twice with a sharp object 

that was 6-8 inches long. Cordova suffered serious bodily injuries from the 

stabbing, i.e., lacerations to his liver, pooling of blood in his pericardium, 

and disruption of normal heart function. Lastly, Carty’s conduct manifests 

extreme indifference to the value of human life. The same evidence is 

sufficient to sustain Carty’s conviction under section 2702(a)(4), because he 

intentionally (or, at the very least, knowingly) caused bodily injury to 

Cordova with a deadly weapon. 

Carty complains that the evidence is insufficient because he was acting 

either in self-defense or to protect Larrabee from Cordova and Care. 

Larrabee testified that before Carty arrived, Cordova and Care kicked her car, 

and Cordova had snatched her cell phone and smashed it on the ground. 
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N.T., pp. 139-40. Larrabee and Carty both testified that Cordova and Care 

attacked Carty, and that Cordova threatened to get his “ratchet,” which both 

Larrabee and Carty believed was a reference to a gun. N.T., pp. 144, 154-

55.

Carty’s and Larrabee’s testimony does not render the evidence against 

Carty insufficient. As stated above, our role in examining the sufficiency of 

the evidence is to interpret the evidence in the light most favorable to the 

Commonwealth. Viewed in this light, the evidence establishes that Carty did 

not act in self-defense or in Larrabee’s defense but instead was the 

aggressor against Cordova. By highlighting his own self-serving testimony 

and the testimony of his paramour, Larrabee, Carty asks us to view the 

evidence in the light most favorable to him instead of the Commonwealth4. 

A person commits the crime of PIC “if he possesses any instrument of 

crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a). An 

____________________________________________

4

In any event, there were significant inconsistencies in Carty’s and 

Larrabee’s testimony. While Larrabee testified at trial that Cordova and Care 

attacked Carty, a Reading police investigator testified that Larrabee told him 

that (1) she could not identify the male who got out of the taxicab during 

her confrontation with Cordova and Care, (2) the male chased Cordova and 

Care, and (3) she drove away when the male began chasing Cordova and 

Care. N.T., pp. 149, 169.

Carty testified that he first spotted the 6-8 inch object on the street when he 

was knocked to the ground in the middle of the fight, and that he did not 

know that he cut Cordova until the police charged him with aggravated 

assault. N.T., pp. 156, 164-65. A Reading police sergeant testified that 

after Carty’s arrest, Carty admitted telling Cordova: “Hey, check yourself. I 

think I got you.” N.T., p. 177. 
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instrument of crime is (1) “anything specially made or specially adapted for 

criminal use” or (2) “anything used for criminal purposes and possessed by 

the actor under circumstances not manifestly appropriate for lawful uses it 

may have.” 18 Pa.C.S. § 907(d). The sharp, 6-8 inch object that Carty 

used to stab Cordova satisfies definition (2). It is the functional equivalent 

of a knife, a device “commonly used for criminal purposes.” 

Commonwealth v. DeHoniesto, 624 A.2d 156, 161 (Pa.Super.1993). 

With regard to the second element of definition (2) – “possessed. . .under 

circumstances not manifestly appropriate for lawful uses it may have” -- we 

“must look at the context in which the instrument was used.” DeHoniesto, 

supra. Carty intentionally used the object to stab Cordova twice, and one 

stab wound was nearly fatal. Further, because we view the evidence in the 

light most favorable to the Commonwealth, the evidence of PIC is sufficient 

notwithstanding Carty’s claim of self-defense or defense of Larrabee.

In his second argument on appeal, Carty argues that his convictions 

are contrary to the weight of the evidence. We disagree. When reviewing a 

challenge to the weight of the evidence, this Court’s role is not to consider 

the underlying question of whether the verdict was against the weight of the 

evidence. Commonwealth v. Kane, 10 A.3d 327, 332-333 

(Pa.Super.2010). Instead, we must decide if the trial court palpably abused 

its discretion when ruling on the weight claim. Id. In performing this task, 

we must remember that the initial determination regarding the weight of the 
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evidence is for the factfinder, who is free to believe all, some or none of the 

evidence. Id. We must not reverse a verdict based on a weight claim 

unless that verdict was contrary to the evidence so as to shock one's sense 

of justice. Id. Moreover, “[a]n abuse of discretion is not a mere error in 

judgment but, rather, involves bias, ill will, partiality, prejudice, manifest 

unreasonableness, or misapplication of law.” Id.

The trial court acted within its discretion by denying Carty’s weight 

claim. The parties presented different accounts as to Carty’s role in the 

altercation with Cordova. The Commonwealth presented evidence that Carty 

was the aggressor. The defense insisted that Cordova and Case attacked 

Carty, and that Carty miraculously spotted the sharp object in the street 

during the fight and used it in desperation as a means of defense. It was 

within the jury’s province to select which evidence to believe. The fact that 

the jury chose to credit the Commonwealth’s version of the events does not 

shock our sense of justice.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/2014