J-A18015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARMELO RODRIGUEZ,

Appellant No. 82 MDA 2016

Appeal from the Judgment of Sentence Entered August 19, 2015

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0001581-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 04, 2016

Appellant, Carmelo Rodriquez, appeals from the judgment of sentence 

of 6 to 20 years’ imprisonment, imposed after he was convicted of one count 

of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(1), and one count of 

aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(4). Appellant 

challenges the sufficiency of the evidence to sustain his convictions and 

alleges the verdict is against the weight of the evidence. We affirm. 

Appellant’s convictions stemmed from an altercation that occurred 

outside of a bar in Lebanon, Pennsylvania, on the night of August 4, 2014. 

After Appellant’s first jury trial ended in a mistrial, a second jury trial was 

held on June 4, 2015, where Appellant was found guilty of two counts of 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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aggravated assault. Trial Court Opinion (TCO), 12/7/15, at 2. Appellant 

was sentenced to the above-stated term on August 19, 2015. On August 

31, 2015, Appellant filed post-sentence motions, which included a motion for 

new trial, a motion for judgment of acquittal, and an allegation that the 

sentence was excessive. The trial court denied Appellant’s post-sentence 

motions by order dated December 4, 2015. Appellant proceeded with the 

timely filing of a notice of appeal on January 4, 2016, followed by a timely 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). 

Herein, Appellant presents the following issues for our review: (1) 

Whether the Commonwealth failed to present sufficient evidence at trial to 

support the jury’s verdict of guilty?; and (2) Whether the jury’s verdict was 

against the weight of the evidence? Appellant’s Brief at 4. 

To begin, we note our standard of review of a challenge to the 

sufficiency of the evidence:

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations 

omitted). 
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Appellant was convicted of one count each, respectively, of aggravated 

assault under the following provisions of the Pennsylvania Crimes Code:

(a) Offense defined.—A person is guilty of aggravated 

assault if he:

(1) 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; 

...

(2) attempts to cause or intentionally or knowingly 

causes bodily injury to another with a deadly 

weapon.

18 Pa.C.S. § 2702(a)(1) and (a)(4). “Serious bodily injury” is defined as 

“[b]odily injury which creates a substantial risk or 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. § 2301. For purposes 

of an aggravated assault charge, “an ‘attempt’ is found where an accused 

who possesses the required, specific intent acts in a manner which 

constitutes a substantial step toward perpetrating a serious bodily injury 

upon another. An intent ordinarily must be proven through circumstantial 

evidence and inferred from acts, conduct or attendant circumstances.” 

Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (internal 

citations omitted).

Before addressing whether the elements of the above-stated crimes 

have been met, we review the facts reflected in the record of the jury trial 
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which led to Appellant’s convictions, as summarized by the trial court in its 

Pa.R.A.P. 1925(a) opinion: 

Michael Morris (hereinafter “Morris”), a friend of Randy 

Wolfe (hereinafter “victim”) testified for the Commonwealth. On 

August 4, 2014, Morris and the victim were at the William Penn 

bar (hereinafter “bar”) in Lebanon, having a couple of drinks. 

Morris stated that when they were at the bar, the victim, who is 

very outgoing, was socializing with several people, playing 

games and performing magic tricks. At a later point in the 

evening, Morris heard a commotion by the door and saw the 

victim with three guys: Frank Velez (hereinafter “Velez”), 

[Appellant,] and Dennis Kreider (hereinafter “Kreider”). 

Morris followed the group outside and saw the victim, 

[Appellant,] and Velez walking up the street; the victim and 

Velez were arguing. Morris stated that when [Appellant] walked 

behind a tree, he bent down where loose bricks were present. 

At some point during the verbal altercation between the victim 

and Velez, the victim spit on [Appellant]. The victim told 

[Appellant] it was an accident and Morris stated the victim went 

to wipe the spit off of [Appellant]. When the victim went to wipe 

the spit off of [Appellant], [Appellant] hit the victim and the 

victim fell straight back. When Morris saw the victim get hit, he 

punched [Appellant], knocking him down. [Appellant] and his 

two friends immediately got in their car and left. 

Kreider testified that he and [Appellant] have been friends 

for approximately 30 years. When Kreider, Velez and 

[Appellant] were in the bar, Kreider saw Velez hit the victim in 

the face one time and heard the victim scream to Velez that 

Velez “hit like a girl.” Thereafter, the bartender told [Appellant] 

and Velez to leave the bar. Kreider followed them outside, at 

which point [Appellant], Velez and the victim were already 

walking away down the street, with [Appellant’s] back towards 

Kreider. 

Shortly after coming outside, Kreider witnessed [Appellant] 

make a “fighting motion,” and then the victim’s friend, Morris, 

punched [Appellant] in the face. Kreider, Velez and [Appellant] 

immediately headed to their car and left. As they were leaving, 

Kreider heard a girl yell, “you pussy, you hit him with a brick.” 

When Kreider asked [Appellant] in the car if [Appellant] hit the 
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victim with a brick, [Appellant] replied, “I hit the nigger.” 

However, Kreider did not see [Appellant] hit the victim with a 

brick. 

Velez testified that during his time at the bar, he got into a 

physical altercation with the victim where he threw a few 

punches because the victim had gotten in Velez’s face about a 

petty argument Velez was having with a third individual. Velez 

stated that he did not knock the victim over and that he didn’t 

see any injuries besides “maybe a little blood on the side of his 

like lip or something.” As Velez was trying to leave the bar, the 

victim was blocking Velez’s way, until the bartenders forced the 

victim out of the way so Velez could leave. 

When Velez went outside, the victim followed, wanting to 

continue the altercation that was started in the bar. At this point 

Velez stated “I was backing up and his arms were flailing. He 

said he wanted to get into it with me. So as I was backing up 

and I was taking off my shirt and my jewelry and then in an 

instant hey, let’s get out of here.” Velez testified that he did not 

see the victim get hit or see the victim laying on the ground 

because after he took off his shirt and jewelry, his friend was 

telling Velez to leave. When Velez, Kreider and [Appellant] got 

into the car to leave, [Appellant] asked Velez to take the blame 

for what happened, but Velez did not know what had happened 

and did not want to take the blame for anything. The next 

morning, the police asked Velez to come in to talk about what 

occurred the previous night, and he came in to cooperate with 

the police.

Detective Bret Fisher, a detective for the Lebanon City 

Police, stated that he obtained an arrest warrant for [Appellant] 

on the morning after the incident occurred. Through his 

investigation Detective Fisher learned that [Appellant] might 

have been staying with his uncle. Detective Fisher and Detective 

Uhrich went to look for [Appellant] and when they pulled up to 

the street where [Appellant’s] uncle lived, the detectives saw 

someone that looked like [Appellant] on the uncle’s front porch. 

The detectives exited the car and ran to the uncle’s house, but 

the person they saw was not on the porch anymore. Detective 

Fisher watched the back of the house, and at the same time 

Detective Uhrich went inside the house to look for [Appellant]. 

However, they were not able to find [Appellant] at that time. 
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Detective Keith Uhrich received [Appellant’s] cell phone 

number and attempted to make contact multiple times through 

text messaging. [Appellant] responded to Detective Uhrich, 

letting Detective Uhrich know that he was planning on turning 

himself in and gave Detective Uhrich a specific day he was going 

to turn himself in to the police. [Appellant] did not show up on 

the day that he informed Detective Uhrich that he would turn 

himself in to the police. 

Detective Toby Pokrop testified that the Lebanon City 

Police Department informed him that [Appellant] was suspected 

of hiding at Robert Bittle’s house. On August 20, 2014, 

Detective Pokrop drove by Bittle’s house and saw two individuals 

in front who he did not recognize, working on a car. Detective 

Pokrop called the patrol officers on duty, Officer Snyder and 

Sergeant Hentz, to make contact with the individuals. Several 

minutes later, Detective Pokrop and the patrol officers made 

contact with Mr. Bittle and asked him if they could search the 

house for [Appellant], which he allowed. The patrol officers 

found [Appellant] hiding in the basement. 

The Commonwealth also presented stipulated medical 

testimony from Dr. John Kelleher, a neurosurgeon at the Penn 

State Milton Hershey Medical Center and Dr. Jessica Lighthall, an 

Otolaryngologist. Dr. Kelleher determined that the skull

fractures suffered by the victim were caused by blunt force 

trauma to the head, requiring a large amount of force to cause 

the injuries sustained.2 Dr. Lighthall was on call the evening 

that the victim was transported to the Penn State Milton Hershey 

Medical Center and was needed to assist with the victim’s 

injuries due to their complex nature. Dr. Lighthall’s stipulated 

medical testimony closely mirrored Dr. Kelleher’s testimony, 

specifically that the injury was caused by a blunt object and the 

injury is one that would require a significant amount of force. 

2 Dr. Kelleher made the following post-operative 

diagnoses:

1. Comminuated frontal depressed skull fracture;

2. Subarachnoid hemorrhage;

3. Pneumocephalus;

4. Intraparenchymal hemorrhage;
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5. Diffuse axonal injury;

6. Orbital wall fractures; and

7. Complex midface fractures which shifted the face to 

the right.

Amber Green, a Forensic DNA scientist working with the 

Pennsylvania State Police was qualified as an expert and testified 

in regards to the DNA samples taken from the brick, which was 

collected at the scene of the incident. Ms. Green opined that one 

DNA sample from the brick matched the DNA sample given by 

the victim. Ms. Green further opined that [Appellant] could not 

be included as a contributor to the DNA samples collected from 

the brick. 

[Appellant] took the stand and testified that while he was 

at the bar on August 4, 2014, he saw Velez get into an argument 

with the victim and subsequently punch the victim twice in the 

face. [Appellant] stated that he tried to deescalate the situation 

while in the bar by getting between Velez and the victim. When 

they were outside, [Appellant] stated he just watched Velez and 

the victim [] argue. After the victim spit on him, the victim 

reached out towards [Appellant]. The victim’s action of reaching 

out towards [Appellant] made [Appellant] feel threatened and he 

punched the victim in the face. [Appellant] did not see what 

happened to the victim after he punched him because he was hit 

from the side and then immediately left with Velez and Kreider. 

TCO at 2-7 (citations to the record omitted). 

Here, Appellant contends that the evidence presented by the 

Commonwealth was sufficient to support a simple assault conviction only, 

and not a conviction of aggravated assault. Appellant’s Brief at 11. 

Moreover, Appellant avers that the evidence was insufficient to prove that he 

used a brick during the assault. Appellant states that “[a]t best, the 

Commonwealth proved he bent down at some point before the punch to [the 

victim].” Id. After careful review of the record, we deem Appellant’s 

arguments to be meritless. 
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As previously noted, a person may be convicted 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). 

Moreover, in Fortune, we examined the totality of the circumstances test 

created by the Pennsylvania Supreme Court in Commonwealth v. 

Alexander, 383 A.2d 887 (Pa. 1978), for the purposes of evaluating 

whether a defendant acted with the necessary intent to sustain an 

aggravated assault conviction. 

Alexander provided a list, albeit incomplete, of factors 

that may be considered in determining whether the intent 

to inflict serious bodily injury was present, including ... the 

defendant’s use of a weapon or other implement to aid his 

attack, and his statements before, during, or after the 

attack which might indicate his intent to inflict injury. 

Alexander, [383 A.2d] at 889. Alexander made clear 

that simple assault combined with other surrounding 

circumstances may, in a proper case, be sufficient to 

support a finding that an assailant attempted to inflict 

serious bodily injury, thereby constituting aggravated 

assault. 

Fortune, 68 A.3d at 984. 

In support of Appellant’s aggravated assault conviction under 18 

Pa.C.S. § 2702(a)(1), the trial court opined: 

In the matter at hand, Dr. Kelleher and Dr. Lighthall provided 

medical testimony opining that the injuries sustained by the 

victim were life threatening had they not been treated in a 

timely manner. Specifically, Dr. Kelleher diagnosed the victim 

with intraparenchymal hemorrhage, bleeding in the brain, which 

was particularly troubling because this type of hemorrhage can 

result in death or neurological dysfunction. The doctors provided 
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further testimony that the severe injuries sustained by the victim 

required a large amount of force, caused by a blunt object. 

Furthermore, testimony was given that after the parties left the 

bar and were walking down the street, [Appellant] bent down 

behind a tree where loose bricks were located. Thereafter, 

[Appellant] punched the victim in the face and the victim fell 

straight back on to the sidewalk. The jury was free to determine 

that [Appellant] intended the natural and probable consequences 

of his actions. Accordingly, the evidence presented clearly was 

sufficient to sustain the charge of intentionally, knowingly or 

recklessly causing serious bodily injury. 

TCO at 10 (internal citations to the record omitted). Viewing the evidence in 

a light most favorable to the Commonwealth, we conclude that the evidence 

was clearly sufficient to support a conviction of aggravated assault under 

Section 2702(a)(1).

With respect to Appellant’s aggravated assault conviction under 

Section 2702(a)(4), aggravated assault is established under this provision 

when an actor “attempts to cause or intentionally or knowingly causes bodily 

injury to another with a deadly weapon.” Id. Section 2301 defines “deadly 

weapon” as “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. Our 

Supreme Court has stated that “a deadly weapon need not be ... an 

inherently lethal instrument or device.” Commonwealth v. McCullum, 602 

A.2d 313, 323 (Pa. 1992). The Court further indicated that “an ax, a 

baseball bat, an iron bar, a heavy cuspidor, and even a bedroom slipper 

have been held to constitute deadly weapons under varying circumstances.” 
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Id. Moreover, we have noted that an item which may not normally be 

considered a weapon, can be categorized as a deadly weapon based on its 

use under certain circumstances. Commonwealth v. Raybuck, 915 A.2d 

125, 128 (Pa. Super. 2006). 

As the trial court explained in its well-thought-out opinion:

In the matter sub judice, a brick was determined to be a deadly 

weapon. In ordinary circumstances a brick is used as a building 

material, and therefore not a deadly weapon. However, where a 

brick is used to hit another person in the face causing serious 

bodily injury, that brick can then be viewed as a deadly weapon. 

The jury determined that the brick was used by [Appellant] to hit 

the victim in the face. Furthermore, it was already determined 

that the victim suffered serious bodily injury. Therefore, there is 

sufficient evidence to find that the victim suffered bodily injury 

due to the use of a deadly weapon. 

TCO at 11. Again, viewed in a light most favorable to the Commonwealth, 

we discern that the evidence clearly supports Appellant’s conviction of 

aggravated assault under Section 2702(a)(4). 

Next, we address Appellant’s challenge to the weight of the evidence 

to support his convictions. 

A claim alleging the verdict was against the weight of the 

evidence is addressed to the discretion of the trial court. 

Accordingly, an appellate court reviews the exercise of the trial 

court’s discretion; it does not answer for itself whether the 

verdict was against the weight of the evidence. It is well settled 

that the jury is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses, and a new trial 

based on a weight of the evidence claim is only warranted where 

the jury’s verdict is so contrary to the evidence that it shocks 

one’s sense of justice. In determining whether this standard has 

been met, appellate review is limited to whether the trial judge’s 

discretion was properly exercised, and relief will only be granted 
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where the facts and inferences of record disclose a palpable 

abuse of discretion. 

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations 

and internal quotation marks omitted). 

Appellant argues that the jury “improperly weighted the testimony” 

when they determined his guilt of aggravated assault. Appellant’s Brief at 

12. More specifically, he testified at trial that he did not use a brick when he 

hit the victim, and he argues that the jury should have afforded his 

testimony greater weight and credibility. TCO at 12. However, as the trial 

court noted in its opinion: 

[Appellant’s] argument ignores the well-settled principles of law 

that the finder of fact is free to believe all, part, or none of the 

evidence, and the fact finder makes credibility determinations. 

Com[monwealth] v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 

2009). The jury was free to believe the Commonwealth’s 

witnesses, and the jury was free to weigh the Commonwealth’s 

witnesses’ testimony accordingly. This [c]ourt cannot disturb 

the jury’s credibility determinations. 

TCO at 12. We ascertain no abuse of discretion by the trial court. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/4/2016