J-S21015-15

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GABRIEL M. CRUZ,

Appellant No. 611 EDA 2014

Appeal from the Judgment of Sentence January 13, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CR-51-CP-0011957-2011

BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED MAY 12, 2015

Gabriel M. Cruz appeals from the January 13, 2014, judgment of 

sentence of thirty to sixty years imprisonment, which was imposed following 

his convictions for attempted murder, aggravated assault, and conspiracy to 

commit aggravated assault.1 We affirm. 

The facts as recited by the trial court are as follows:

On May 9, 2010, at approximately 8:15 p.m., Felix Santos 

was rushed to Temple University Hospital after suffering multiple 

stab wounds to the chest and torso. Due to extreme blood loss 

and the resulting loss of oxygen to the brain, he was put on life 

support, and is expected to remain in a vegetative state for the 

duration of his life. The stabbing occurred as a result of a 

dispute over a parking space located on the 700 block of West 

Butler Street in Philadelphia. The detectives recovered a bloody 

kitchen knife belonging to the complainant on the porch of 712 

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1 The jury acquitted Appellant of conspiracy to commit murder. 
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West Butler Street. The complainant resided at 712 West Butler 

Street with his wife and children.

On the day of the stabbing, Mr. Santos had returned home 

from shopping with his wife and two children at approximately 

6:30 p.m., and temporarily parked his car in front of a fire 

hydrant. When the parking spot directly in front of his house 

became available shortly thereafter, Mr. Santos’ eighteen-yearold son moved their car into that spot. Upon viewing the parked 

car, Mr. Santos’ neighbor, who is the mother-in-law of the 

Defendant, approached him and insisted he move his car. The 

interaction became increasingly hostile and ended when the 

neighbor spit in the complainant’s face. The complainant then 

returned to his house with his family and called the police. A 

few minutes later the neighbor’s son, and brother-in-law of the 

Defendant, co-defendant Jose Torres, began knocking on Mr. 

Santos’ porch door threatening to kill him. When the 

complainant offered no response to Torres’ threats, Torres got a 

shovel and proceeded to repeatedly hit the complainant’s car 

with it. Several members of Torres’ family were outside their 

house during this altercation. Upon hearing the car alarm, Mr. 

Santos took his child’s baseball bat and approached Torres 

outside. His wife and children followed him. Mr. Santos struck 

Torres with the bat. The police arrived and instructed everyone 

to return to their residences. Before the police left, the 

complainant’s other son returned home from the store with his 

uncle. He testified to seeing ten people outside on the street, 

including the Defendant. 

Shortly after returning to his residence, Mr. Santos 

received a call from his cousin, who resided across the street at 

711 West Butler, concerning Mr. Santos’ fourteen-year-old 

nephew. Co-defendant Torres and several other unidentified 

men had attacked Mr. Santos’ nephew outside of the house 

because they knew he was a member of the complainant’s 

family. The complainant’s nephew also resided at 711 West 

Butler and had been on his way home from the park on his bike. 

After receiving this telephone call, Mr. Santos, his wife, his 

brother, and his two sons went out of the house towards the 

street. At this point, a “melee” erupted between the Torres 

family and the Santos family. 
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Trial Court Opinion, 6/30/14, at 2-3.

Christina Santos, the victim’s wife, testified that Appellant’s wife 

grabbed her by the hair and threw her down to the ground. While 

restrained, she saw her husband running up the porch steps with Jose 

Torres, Appellant, and Khalief Green in pursuit. Mrs. Santos watched as 

Appellant held her husband’s arms while Torres stabbed him multiple times. 

Mr. Santos’s son Delmy, who was fourteen years old at the time of the 

incident, placed Appellant at the scene during the first disturbance quelled 

by police. Delmy saw his father on the telephone and then followed him as 

he ran outside with a baseball bat. He witnessed his cousin, aunt, and older 

brother on the ground being assaulted and his father striking an unknown 

man with the bat. Delmy recounted how an unidentified man threatened to 

kill him with a knife. The last thing he remembered prior to waking up in an 

ambulance was being punched in the face by Appellant.

Carmen Santos, the victim’s sister, saw Appellant beat her fourteenyear-old son. When she tried to intervene, he attacked her. She testified 

that Mr. Santos came to her defense and swung the bat at Appellant, 

knocking him down, but Appellant took the bat and hit the victim on the 

head with it. Carmen witnessed Appellant punch the victim’s son in the 

head. She also saw her brother being restrained by Appellant on his own 

porch while Torres stabbed him. She did not tell police that day that she 
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witnessed the stabbing for fear of retaliation. She identified the perpetrators 

four days later after witnessing several members of the Torres family 

celebrating that they had killed her brother. 

Mr. Santos’s oldest son, eighteen-year-old Felix, identified Appellant 

and co-defendant Green as the men restraining his father, but he did not 

actually see the stabbing. He confirmed his aunt’s testimony that Appellant 

fled toward a red car and added that Appellant had a shiny object in his 

hand that was about three or four inches long. 

As Philadelphia Police Officer Roberto Luciano arrived, he saw a red 

Buick carrying three or four passengers fleeing the scene. He was unable to 

stop the vehicle. The officer found Mr. Santos unconscious on the porch 

steps of his home and arranged for another responding officer to transport 

him to the hospital. 

Approximately one week later, witnesses identified Appellant from 

photographs. The red car was identified as a 2002 Buick LeSabre belonging 

to Appellant’s wife. After an arrest warrant was issued for Appellant, he 

turned himself in to police and provided a statement in which he admitted 

being at the location of the fight, but denied that he had any contact with 

any males. 

The jury found Appellant guilty of attempted murder, aggravated 

assault, and conspiracy to commit aggravated assault. He was sentenced 
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initially on September 26, 2013, to a term of imprisonment of twenty to 

forty years for attempted murder, ten to twenty years for aggravated 

assault, and ten to twenty years for conspiracy, with all sentences to run 

consecutively. Appellant filed a motion for reconsideration of sentence on 

October 5, 2013, which was denied on October 8, 2013. On October 25, 

2013, the trial court granted a motion to reconsider the sentence and 

conducted a hearing. 

On January 14, 2014, the court concluded that merger applied to the 

convictions for attempted murder and aggravated assault. Hence, it 

resentenced Appellant to twenty to forty years incarceration for attempted 

murder and a consecutive ten to twenty year sentence of imprisonment on 

the conspiracy count. Appellant filed a post-sentence motion challenging the 

weight and sufficiency of the evidence and the discretionary aspects of his 

sentence. Relief was denied. Appellant appealed and complied with the trial 

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. 

Appellant presents two issues for our review:

A. Was the evidence presented by the prosecution sufficient 

enough to support a conviction for the crime of attempted 

murder and aggravated assault?

B. Did the trial court commit an abuse of discretion by imposing 

upon the Appellant a manifestly excessive sentence of thirty 

(30) to sixty (60) years?
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Appellant’s brief at unnumbered 6.2

Appellant’s first issue presents a challenge to the sufficiency of the 

evidence of attempted murder and aggravated assault. Our standard of 

review is well settled: 

A claim challenging the sufficiency of the evidence is a question 

of law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a 

reasonable doubt. Where the evidence offered to support the 

verdict is in contradiction to the physical facts, in contravention 

to human experience and the laws of nature, then the evidence 

is insufficient as a matter of law. When reviewing a sufficiency 

claim[,] the court is required to view the evidence in the light 

most favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences to be drawn from the 

evidence.

Commonwealth v. Kelly, 102 A.3d 1025, 1028 (Pa.Super. 2014) (en 

banc).

Appellant was charged and convicted of attempted murder of the first 

degree, 18 Pa.C.S. § 901. That section provides: 

(a) Definition of attempt. -- 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.

“A criminal homicide constitutes murder in the first degree when it is 

committed by an intentional killing.” 18 Pa.C.S. § 2502(a). We held in 

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2

 The Commonwealth did not file a brief. 
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Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa.Super. 2005), 

that “for the Commonwealth to prevail in a conviction of criminal attempt to 

commit homicide, it must prove beyond a reasonable doubt that the accused 

with a specific intent to kill took a substantial step towards that goal.” 

Accord Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008). The 

specific intent to kill can be inferred from the circumstances surrounding an 

unlawful killing or from the fact that the accused used a deadly weapon to 

inflict injury to a vital part of the victim's body. Commonwealth v. 

Geathers, 847 A.2d 730, 737 (Pa.Super. 2004); accord Commonwealth 

v. Sattazahn, 631 A.2d 597 (Pa.Super. 1993) (specific intent to kill may be 

inferred from use of a deadly weapon to inflict injury to a vital part of the 

victim's body). 

Appellant argues that the facts of the instant case do not establish that 

he had a specific intent to kill Mr. Santos. He maintains that the incident 

was a brawl, there was no evidence that Appellant and his co-defendants 

intended to kill, and that there was no proof that he was aware that his codefendant had a knife while he was restraining the victim. 

The trial court correctly instructed the jury that, in order to convict for 

attempted murder, the jury would have to find that Appellant and his codefendants stabbed Mr. Santos with the specific intent to kill him. N.T., 

9/28/12, at 119. The jury found Appellant guilty of attempted murder. The 
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trial court found the evidence that Appellant aided his co-defendant in using 

a deadly weapon on Mr. Santos’s heart sufficient to support the jury’s finding 

of a specific intent to kill. Appellant counters that there was no evidence 

that his co-defendant targeted the victim’s heart and that it was just as 

likely that his intent was merely to injure him. 

Viewing the evidence in the light most favorable to the Commonwealth 

as the verdict winner, we find sufficient evidence to support the attempted 

murder conviction. Appellant physically restrained the victim to assist his 

co-defendant as he stabbed the victim in the chest area three times with a 

knife. The treating trauma surgeon testified that the stab wounds were 

located near the armpit, the chest, and the abdomen. One of the stab 

wounds injured the victim’s heart, and another nicked his bowel. Evidence 

of use of a deadly weapon multiple times on a vital part of the victim’s body 

was legally sufficient to support the attempted murder conviction. 

Appellant next contends that the evidence was insufficient to convict 

him of aggravated assault. Appellant does not dispute that serious bodily 

injury was inflicted herein and that even reckless conduct is sufficient to 

sustain the aggravated assault conviction.3 However, he maintains that 

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3 The victim, Mr. Felix Santos, was hospitalized from May 9, 2010 until June 

21, 2010, when he was sent to an LTAC unit due to the fact that he was on a 

(Footnote Continued Next Page)
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there is no evidence of intent to cause serious bodily injury to the 

complainant because he did not possess the knife used to assault the 

complainant. 

The fact that Appellant did not personally wield the knife does not 

relieve him from criminal liability as an accomplice. There was ample 

evidence that Appellant restrained the victim to facilitate the stabbing by his 

co-defendant. Having already concluded that there was evidence of specific 

intent to kill to support the attempted murder conviction, we need not go 

further. The specific intent to kill necessarily includes the intent required to 

establish aggravated assault, i.e., the intentional, knowing, or reckless 

infliction of serious bodily injury. See Commonwealth v. Anderson, 650 

A.2d 20, 24 (Pa. 1994) (holding intent necessary to establish specific intent 

to kill greater than and necessarily includes intent required to establish 

aggravated assault). This claim is without merit. 

Appellant’s second issue is a challenge to the discretionary aspects of 

his sentence. Acknowledging that he is not entitled to review as of right, we 

note that he filed both a post-sentence motion and a Pa.R.A.P. 1925(b) 

statement preserving the issue. Two additional requirements must be met 

before we review the challenge on the merits. He must set forth in his 

(Footnote Continued) _______________________

breathing machine. He sustained a hypoxic brain injury, and at the time of 

sentencing, Mr. Santos remained unconscious and in a vegetative state. 
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appellate brief a Pa.R.A.P. 2119(f) statement of reasons for allowance of 

appeal and demonstrate “that there is a substantial question that the 

sentence imposed is not appropriate under the Sentencing Code.” 

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014). We 

evaluate whether a substantial question has been raised on a case-by-case 

basis. Id. 

Appellant’s brief contains the concise statement. He claims that his 

sentence was excessive and that the trial court failed to explain how it was 

the least stringent one “adequate to protect the community and to serve the 

rehabilitative needs of the public.” Appellant’s brief at unnumbered 11. 

Since Appellant has asserted more than a bald excessive sentence claim, we 

find he has raised a substantial question. See Commonwealth v. 

Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015) (finding substantial question 

where excessive sentence claim was made in conjunction with assertion that 

the court did not consider mitigating factors). We now turn to the merits. 

In reviewing a sentence, we are highly deferential to the trial court. 

Sentencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, an 

abuse of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision. 

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
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Appellant contends that the thirty to sixty year aggregate sentence of 

imprisonment was manifestly unreasonable. He alleges that the trial court 

did not individualize his sentence or place adequate reasons on the record to 

justify the length of the sentence. While conceding that the sentence is 

within the statutory maximum, and hence legal, Appellant levels criticism 

against the court for focusing too heavily on the injuries of the victim, rather 

than the other 42 Pa.C.S. § 9721 factors such as the public’s need for 

protection and the defendant’s need for rehabilitation.4

In sentencing beyond the aggravated range, the trial judge must 

explain why this particular offense is more severe than the normal crime of 

this type. Commonwealth v. Caraballo, 848 A.2d 1018, 1020 (Pa.Super. 

2004). The trial court explained that the victim herein sustained more than 

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4

 We note that the trial court stated in its Rule 1925(b) opinion that 

Appellant was convicted of conspiracy to commit murder, which carries an 

offense gravity score (“OGS”) of fourteen. Trial Court Opinion, 6/30/14, at 

13. It added that, with a prior record score of five, offenses designated with 

an offense gravity score of fourteen carry a sentence range of sixteen years 

to the maximum allowed by statute, which was not more than forty years. 

Id. (citing 18 Pa.C.S. § 1102(c)). It then imposed what it characterized as 

an aggravated range sentence of ten to twenty years on the conspiracy 

charge. 

Appellant was convicted of conspiracy to commit aggravated assault, 

rather than conspiracy to commit murder. N.T., 9/28/12, at 141. 

Conspiracy to commit aggravated assault carries an OGS of ten. With a 

prior record score of five, the standard range is sixty to seventy-two months, 

plus or minus twelve months. Appellant, however, does not challenge herein 

the trial court’s utilization of the incorrect OGS. 
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the serious bodily injury usually associated with these offenses as Mr. Santos 

was brain dead and sustained on life support. Additionally, the court 

demonstrated its knowledge of Appellant’s role in the events resulting in his 

convictions. The court had the opportunity to observe Appellant throughout 

trial and consider the remarks of his family members who spoke on his 

behalf at the first sentencing hearing. At that hearing, there was an on-therecord discussion of the applicable sentencing guidelines and Appellant’s 

prior record. 

At the resentencing, the court stated on the record that it relied upon 

a presentence report, a mental health evaluation, arguments of counsel, and 

the prior sentencing hearing in arriving at its sentence. N.T. Sentencing, 

1/13/14, at 6. “When, as here, the trial court has the benefit of a presentence report, we presume that the court was aware of relevant 

information regarding the defendant's character and weighed those 

considerations along with any mitigating factors.” Commonwealth v. 

Seagraves, 103 A.3d 839, 842 (Pa.Super. 2014). For these reasons, 

Appellant’s discretionary sentencing challenge fails. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2015