Com. v. Borbon, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUAN S. BORBON
Appellant No. 520 MDA 2014
Appeal from the Judgment of Sentence October 21, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001530-2012
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MARCH 11, 2015
Appellant Juan S. Borbon appeals from the judgment of sentence
entered in the Luzerne County Court of Common Pleas. We affirm.
The trial court summarized the facts as follows:
On the afternoon of February [9], 2012,[1] a group of
teenagers and young adults, some of whom were students
at G.A.R. high school, gathered in the vicinity of that
school in Wilkes-Barre for a gang-type fight. Ostensibly,
one group consisted of African-Americans while the other
group was Latino. At some point during the melee,
[Appellant] struck the juvenile victim in this case in the
wrist with a machete nearly severing it. The victim
appeared to do no more than attempt to help a young
male student - who was being stomped on by others - up
from the ground.
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1
The trial court opinion states the incident occurred on February 12, 2012.
The testimony and evidence, however, establish the incident occurred on
February 9, 2012.
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Opinion, 8/14/2014, at 1.
John Stahl, a school van bus driver, testified that he observed
Appellant in the area shortly before the incident. N.T, 9/10/2013, at 32-34.
He heard Appellant ask “[d]o you have it with you?” and heard the reply
“[i]t’s in the bag. We have to wait until the cops leave.” Id. at 35. Mr.
Stahl did not witness the fight, see any weapons, or know who replied to
Appellant’s question. Id. Ibrahim Sharif testified he saw the juvenile co-
defendant, Y.A., at the scene. Id. at 135-36. Y.A. was carrying a grey book
bag with a black machete handle protruding from it. Id. Sharif stated he
saw Appellant grab the machete and swing it at a boy who was being
“stomped on,” and the victim put his hand in the way. Id. at 140-42.
Further, the victim stated Appellant struck the victim’s left wrist with
the machete when the victim reached his right hand down to assist an
African American youth who was being beaten by three Latino youths. N.T.,
9/10/2013, at 163-66. Y.A. also identified Appellant as the individual with
the machete. N.T., 9/10/2013, at 52-54.
Appellant testified that he and Y.A. met days prior to the incident. At
that time, Y.A. had a machete and informed Appellant that he was having
“some problems with some people.” N.T., 9/10/2013, at 228.
On September 11, 2013, a jury found Appellant guilty of aggravated
assault (causes serious bodily injury to another intentionally, knowingly or
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recklessly under circumstances manifesting extreme indifference to the
value of human life),2 simple assault (intentionally, knowingly or recklessly
causes bodily injury to another),3 aggravated assault (intentionally or
knowingly causes bodily injury to another with a deadly weapon), 4 simple
assault (negligently causes bodily injury to another with a deadly weapon),5
criminal conspiracy (conspiring to commit aggravated assault, 18 Pa.C.S. §
2702(a)(1)),6 recklessly endangering another person,7 and criminal
conspiracy (conspiring to commit aggravated assault, 18 § Pa.C.S.
2702(a)(4)).
On October 17, 2013, the Commonwealth filed a notice to seek the
deadly weapon enhancement. On October 21, 2013, the trial court
sentenced Appellant to an aggregate term of eight to sixteen years’
imprisonment. On October 31, 2013, Appellant filed post-sentence motions,
which were denied by operation of law on February 28, 2014. See
Pa.R.Crim.P. 720(A)(3)(a) (“Except as provided in paragraph (B)(3)(b), the
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2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 2701(a)(1).
4
18 Pa.C.S. § 2702(a)(4).
5
18 Pa.C.S. § 2701(A)(2).
6
18 Pa.C.S. § 903(a)(1).
7
18 Pa.C.S. § 2705.
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judge shall decide the post-sentence motion, including any supplemental
motion, within 120 days of the filing of the motion. If the judge fails to
decide the motion within 120 days, or to grant an extension as provided in
paragraph (B)(3)(b), the motion shall be deemed denied by operation of
law.”). On March 17, 2014, Appellant filed a timely notice of appeal. Both
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant raises the following issues on appeal:
1. Whether the evidence was insufficient to sustain the
verdict as to the conspiracy charge, particularly in light of
the fact that there was no clear evidence of a conspiracy or
any agreement by [Appellant] with other parties?
2. Whether the verdict was against the weight of the
evidence where [Appellant] produced alibi witnesses who
credibly testified that he was not present at the location of
this crime and that the result was therefore shocking to a
sense of justice?
3. Whether the Court erred in instructing the jury as to
flight, when there was no evidence that [Appellant]
personally knew charges were pending or were likely to be
filed when he left the area for New Jersey? [Appellant]
contends that a flight instruction is only appropriate where
the Commonwealth introduces evidence to show that
[Appellant] personally knew or should have known that he
was wanted by the police.
Appellant’s Brief at 4-5. Although Appellant raised the above three issues in
his 1925(b) statement and his statement of questions presented, his brief
concedes that the verdict was not against the weight of the evidence and
concedes trial counsel waived any challenge to the jury instruction because
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he did not object. Appellant’s Brief at 8, 12-15. Accordingly, the sole issue
for our review is whether the Commonwealth presented sufficient evidence
to support the conspiracy conviction.
We apply the following standard when reviewing a sufficiency of the
evidence claim: “[W]hether viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond a
reasonable doubt.” Commonwealth v. Lehman, 820 A.2d 766, 772
(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth
v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we apply this
standard, “we may not weigh the evidence and substitute our judgment for
the fact-finder.” Id.
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Lehman, 820 A.2d at
772. Moreover, “[a]ny 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.” Id. “The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Id.
In applying the above test, we must evaluate the entire record and we
must consider all evidence actually received. DiStefano, 782 A.2d at 582.
Further, “the trier of fact while passing upon the credibility of witnesses and
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the weight of the evidence produced, is free to believe all, part or none of
the evidence.” Id.
To establish criminal conspiracy, the Commonwealth must establish
“(1) an intent to commit or aid in an unlawful act, (2) an agreement with a
co-conspirator and (3) an overt act in furtherance of the conspiracy.”
Commonwealth v. Thomas, 65 A.2d 939, 944 (Pa.Super.2013) (quoting
Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa.Super.2001)). The
Commonwealth may prove an agreement by circumstantial evidence. Id.
(citing Galindes, 786 A.2d at 1010). Circumstantial evidence:
[C]an include, but is not limited to, the relationship
between the parties, the knowledge of and participation in
the crime, and the circumstances and conduct of the
parties surrounding the criminal episode. These factors
may coalesce to establish a conspiratorial agreement
beyond a reasonable doubt where one factor alone might
fail.
Id. (internal citations and quotation marks omitted).
Sufficient evidence supported the jury verdict. Appellant testified he
met with Y.A. only days before the assault and learned Y.A. had a machete
and had problems with some individuals. On the day of the incident, Mr.
Stahl heard Appellant inquire: “[d]o you have it with you?” and heard the
reply: “It’s in the bag. We have to wait until the cops leave.” Mr Sharif saw
Y.A. carrying a bag with a machete handle protruding from it and saw
Appellant grab the machete, swing it toward the individual on the ground,
and strike the victim. This evidence is sufficient to allow the jury to find
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beyond a reasonable doubt that Appellant and Y.A. had an intent to commit
or aid in an aggravated assault, had an agreement to commit an aggravated
assault, and committed an overt act in furtherance of the aggravated
assault.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2015
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