Com. v. Davis, J. ( 2018 )

J-S10026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSIE DAVIS :
:
Appellant : No. 3387 EDA 2016
Appeal from the Judgment of Sentence September 19, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003341-2014
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED MAY 14, 2018
Appellant, Jessie Davis, appeals from the judgment of sentence
entered on September 19, 2016 in the Criminal Division of the Court of
Common Pleas of Philadelphia County. We affirm.
Briefly stated, the relevant facts and procedural history of this case are
as follows. During the early morning hours of February 16, 2014, Appellant
shot two men in the head during gunpoint robberies that took place shortly
after the men exited a Chinese restaurant. Thereafter, on December 22,
2015, Appellant waived his right to a jury and proceeded to a bench trial.
After receiving the evidence, the court, on December 23, 2015, found
Appellant guilty of two counts each of attempted murder, 1 aggravated
____________________________________________
1 18 Pa.C.S.A.§§ 901(a) and 2502.
J-S10026-18
assault,2 and robbery.3 The trial court also found Appellant guilty of one
count each of conspiracy to commit murder,4 possession of a firearm not to
be carried without a license,5 and carrying a firearm on the public streets of
Philadelphia.6
On July 14, 2016, the court sentenced Appellant to an aggregate term
of 25 to 50 years’ incarceration. Appellant subsequently moved for
reconsideration of his sentence.7 After vacating Appellant’s original
sentence, the trial court, on September 19, 2016, ordered Appellant to serve
20 to 60 years in prison. This appeal followed.8
____________________________________________
2 18 Pa.C.S.A.§ 2702(a).
3 18 Pa.C.S.A.§ 3701(a)(i).
4 18 Pa.C.S.A.§§ 903(a) and 2502.
5 18 Pa.C.S.A.§ 6106(a).
6 18 Pa.C.S.A.§ 6108.
7 Appellant’s post-sentence motion did not challenge the weight of the
evidence.
8 We shall treat the instant appeal as timely filed pursuant to the prisoner
mailbox rule, which holds that an appeal is deemed filed by an incarcerated
individual acting pro se when it is placed into the hands of prison officials,
even if it is actually received by the court after the deadline for filing appeal.
See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). Here, the
record reveals that the trial court imposed Appellant’s judgment of sentence
on September 19, 2016. Thus, Appellant had until October 19, 2016 to file
his notice of appeal. See Pa.R.A.P. 903(a) (notice of appeal shall be filed
within 30 days after the entry of the order from which the appeal is taken).
Appellant’s pro se notice of appeal bears a date stamp indicating that the
(Footnote Continued Next Page)
-2-
J-S10026-18
In his brief, Appellant challenges the sufficiency of the evidence
underlying his convictions, arguing that his identity as the perpetrator of the
instant crimes was not proven beyond a reasonable doubt. In the
alternative, Appellant claims that the evidence of his identification was so
unreliable that the trial court abused its discretion in concluding that the
guilty verdicts were not contrary to the weight of the evidence.
We carefully reviewed the certified record, the pertinent case law, the
submissions of the parties, and the opinion of the trial court. Based upon
our review, we agree with the court that the evidence was sufficient to
demonstrate Appellant’s guilt beyond a reasonable doubt. See Trial Court
Opinion, 4/26/17, at 5-11 (examining Appellant’s challenge to the sufficiency
of the evidence). Because the court adequately and accurately addressed
Appellant’s sufficiency challenge, we adopt this aspect of the trial court’s
opinion as our own. Accordingly, the parties are instructed to attach a copy
of the trial court’s opinion to all future filings pertaining to our disposition in
this appeal.
(Footnote Continued) _______________________
clerk’s office received it on October 20, 2016. Because the date of receipt is
one day after the 30-day appeal deadline, we infer that Appellant placed the
notice into the hands of prison authorities no later than October 19, 2016.
See Jones, 700 A.2d at 426 (Supreme Court “inclined to accept any
reasonably verifiable evidence of the date that the prisoner deposits the
appeal with the prison authorities”). We further note that, on April 10,
2017, Appellant, through counsel and with leave of this Court, filed an
amended notice of appeal to clarify that he sought to challenge the
September 19, 2016 judgment of sentence and not the December 23, 2015
guilty verdict.
-3-
J-S10026-18
We also find that Appellant is not entitled to relief based upon his
challenge to the weight of the evidence. As a preliminary matter, Appellant
waived appellate review of his weight claim because he failed to challenge
the weight of the evidence before sentencing or by way of a post-sentence
motion. See Pa.R.Crim.P. 607(A) (“A claim that the verdict was against the
weight of the evidence shall be raised with the trial judge in a motion for a
new trial: (1) orally, on the record, at any time before sentencing; (2) by
written motion at any time before sentencing; or, (3) in a post-sentence
motion.”); Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super.
2014) (failure to properly preserve weight claim in post-sentence motion, by
written motion before sentencing, or orally on the record prior to sentencing
results in waiver, even if trial court addresses the issue in its opinion),
appeal denied, 159 A.3d 941 (Pa. 2016); Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”). Even if we were to reach the merits of Appellant’s weight
claim, we would not find that the trial court abused its discretion in rejecting
his contentions. See Trial Court Opinion, 4/26/17, at 11-13 (evaluating
weight claim and crediting complainants’ consistent and confident testimony
that Appellant perpetrated the offenses in this case). For each of the
foregoing reasons, we conclude that Appellant is not entitled to relief based
on the claims raised in this appeal.
Judgment of sentence affirmed.
-4-
J-S10026-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/18
-5-
Circulated 04/23/2018 11:35 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA FILED
TRIAL DIVISION - CRIMINAL SECTION APR 2 6 2017
Office of Judicial Recorc
Commonwealth of Pennsylvania CP-51-CR-0003341-2014 Appeals/Post Trial
Nr.
SUPERIOR COURT
Jessie. Davis NO. 3387 EDA 2016
CP-51-C13-00033412D14 Comm v. Davis,. Jessie
Opinion
OPINION
11111,191161111,1111111
Ehrlich, J.
Jessie Davis, hereinafter Appellant, was found guilty of attempted murder, robbery,
aggravated assault, conspiracy, and possession of an instrument of crime following a waiver trial
on December 23, 2015.1 The charges stem from a robbery and shooting that occurred in North
Philadelphia on February 16, 2014.
Appellant was sentenced on September 19, 2016, to an aggregate term of twenty to sixty
years of incarceration. A timely appeal followed,
On appeal, Appellant avers two points of error:
1. Was the evidence in this matter insufficient to sustain a verdict of guilt on all
charges (Attempted Murder, Aggravated Assault, Robbery, Criminal
Conspiracy, Violation of the Uniform Firearm Act §6106, Violation of the
Uniform Firearm Act §6108, and Possession of an Instrument of Crime)
where the sole eyewitness's identification testimony was contradictory and
unreliable (based on the location, design, and placement of the shooter's face
tattoos), and where otherwise the only identification of the defendant as
shooter was made based on the color and style of the jacket the defendant was
wearing?
2, Where the judgment of guilt and judgment of sentence on all offenses
(Attempted Murder, Aggravated Assault, Robbery, Criminal Conspiracy,
18 Pa,C.S.A. §§ 6106(a)(1), and 6108, respectively.
Violation. of the Uniform Firearm. Act 0106, Violation of the Uniform
Firearm Act and Possession of an Instrument of Crime) against the
weight of the evidence, where the sole eyewitness's identification testimony
was contradictory and unreliable (based on the location,. design, and
placement of the. shooter's face tattoos), and where otherwise the only
identification was made due to the shooter's clothing?
.Appellants Pa.R.A.P. 1925(b) Statement.
As will be. discussed below, these claims are without Tnerit Accordingly, no relief is due.
The Evidence
On February 16, 2014 at approximately 1 :00 a.m., Tornas Albaladejo and Jose Reyes,
herein after the complainants, entered a Chinese food takeout restaurant at 3670 Franktord
Avenue. .Notes of Testimony ("N.T..") 12/22/2015, at 13. Mr. Albaladejo and Mr. Reyes are.
brothers-in-law. Id. While walking into the store, Mr; Albaladejo looked up. and saw Appellant.
Id. at 16. The Chinese store was well lit. Id. Mr. Albaladejo stated Appellant had on a green
jacket with a. hoodie pulled over his head. Id: Appellant's face was visible. Id. Mr. Albaladejo
stated he noticed Appellant because of his unique facial tattoos. Id. Appellant has a tattoo
depicting a bag of money and:a lightning bolt on his forehead. Id. at 85. Mr. Albaladejo stated
he. has never seen anyone with those particular type of tattoos before. Id.. The Appellant then
exited the store. Id.
.Mr. 'Reyes cannot read, write.or.understand the Englishlariguage,.sa.Mi...Albaladefo
helped him order from the menu.. Id. After about five to ten minutes, Mr. Reyes received his
food and the men exited the store. Id. at 17. The pair proceeded down Frankford Avenue. Id,.
Mr.: ReyeS. was walking a foot or two ahead when Mr. Albaladejo heard footStepS running
behind them. Id: at 23. He turned around and..sawtWo.individualS running toward them. Id. All
of .a.sudrien; Mr. ..Albaladejo heard a pop.and.felt a ringing sound in his ear. Id. He.had.been
shot in the back of his head behind his ear. Id. at 25. His nose. and mouth started to bleed. Id. at
2
37. He turned and saw Appellant, the same individual he saw in the Chinese restaurant minutes
earlier, Id. at 26. Appellant had :a gun in his hand and was wearing the same green coat he had
on in the Chinese restaurant. Id. at 27.
Appellant walked over to Mr. Reyes, who was about five feet away from Mr. Albaladejo.
Id. Appellant told Mr. Reyes, "Give me your wallet." Id. at 28.. Since Mr. Reyes does not
understand English, Mr. Albaladejo translated Appellant's instructions into Spanish. Id.
Appellant pointed the gun at Mr. Reyes' forehead and said "You think I'm playing?" Id. at 29.
Mr. Albaladejo told Mr. Reyes to give Appellant his wallet and, "whatever [else] he wanted."
Id. Mr. Reyes handed Appellant $40 in cash. Id. Appellant then shot Mr. Reyes in the back of
the head. Id. at 31. Appellant then walked back to Mr. Albaladejo who was bent down on one
knee. Appellant held the gun two inches from Mr. Albaladejo's forehead and said, "Give me
your wallet." Id. at 34. Mr. Albaladejo then handed his wallet to the Appellant Id.
A second unidentified man was standing one or two feet away during the incident. Id: at
38.. During the robbery, the man seemed to be acting as a look -out. Id. After Mr. Albaladejo
handed over his wallet, the man said "Let's go" and the pair walked in the direction of the
Chinese restaurant. Id. at 35.
After the assailants fled, Mr. Reyes pulled Mr. Albaladejo to his feet. Id. at 36. Mr.
Albaladejo held onto Mr. Reyes as the two stumbled.to. Mr. Albaladejo's mother-in-law's house
on Pickwick Street. Id. When they arrived, Mr. Reyes called 9-1-1 and police arrived shortly
thereafter. /d.
At 1:20 a.rn. on. February 16, 2014, Philadelphia Police Officer Creely, and his partner
Officer Mendez, were on routine patrol when they received a report of a shooting that occurred
on the 3.600 block of Frankford Avenue. N.T. 12/23/15 at 35. As Officer Creely reached
3
Frankford and Castor Avenues, he: received a.nother.report this one for .tWo males Shotit 21:70
PickWick Street. Id: at 36. Officer .Creely traveled approxiinately half a city block to ire.ach
Pickwick Street. Id. He observed blood On the front door of the residence. Id. The
.
complainants met him at the door' and explained how they had just been shot. Id. Mr.
Albaladejo told Officer..Creely their.asSailant was a black Male, with tattoos, on his face, wearing
a green. coat with a hoodie. Id. at 3$. They also...stated A. second male:wasPresent.but no'
provided 'further information. Id. The complainants were transported by rescue to Temple
University Hospital. ../d.
Detective Dennis Dusak was assigned' to the' case .on.February 16,, 2014. to. recover the
Chinese restaurant's surveillance video. Id. at 42. Detectice.D.usak interviewed Mr. :Albaladejo.
on February 19; 201.4. arid:shOwed him still.Photosi from the February 16,.2014 surveillance
video. He asked Mr. Albaladejo if he recognized the man in the. still photos as the individual
who shot him.thatnight. JcL at 40. mr: Albaladejo *said; "Yes...that:is the person [described."
Id, at 47.
Based on this. information, DetectiveDusak developed aphoto of the, suspect 'and
researched his name, address and other identifying information., Id.. The male was identified as
Appellant,. Jesse Davis, from 3710 Frankford4v.enue This address is five.houses away from the.
Chinese...restaurant. Id. Detective Dusak then compiled a.photo. array of seven similar looking
males to pent-to each. complainant. Id. at 5.1. Detective Dusak stated hedid.notrelay to:the
complainants any information regarding.theindividnals inthe photo array. Id: Once presented
theatray, Mr.. Albaladejo picked oitt.the Appellant. Id.. In fatt, Mr. Albaladejo *stated he was
"one, hundred percent 'sure thisisliepetson." Id.. at 51
4
Detective. Daniel Murawski also presided:over the. shooting investigation. Id. at 71. At
36:381 Castor Avenue, he recovered one live round: with blood' on it, orie fired cartridge easing,.
and 'another fired cartridge casing next:to:a brick wall. Id. at 76. 'The..CaSings and live round
WerefOundin the saniegeneralarea; about three feetapart. id. Castor Avenue is"two blocks
away.from where the Shooting.ocCurred.
Ballistic results were stipulated, to between counsel. Iq, Testing established four items
were recovered: one: live round arid.three fire *cartridge casings. Id. at.80. Microscopic
.examinatiOns..deternrined..fired cartridge, casing oneand.fired cartridge casing two Came from the.
same gun. Id. No microscopic markings would permit firearm identification for the live round.
'However, Detective Daniel Murawski stated'"therels evidence all rounds, originated from :a 25
caliber fired/M." Id.. In addition, it was stipulated between connSeilliat Appellant did not have a
proper license and was ineligible to e airy a weapon on the datein question. ../d
Discussion,
Sufficiency of the.vidcnce.
Appellant conten4m..appeal that theevidenc.e was insufficient to sustain his convictions*
for attempted murder, robbery, aggravated .assault; conspiracy., and possession Of an instrument
of crime,
T.he standard of review by which' a:reviewing coUrt must as8ess.th0 sufficiency of the
evidence:1s well -settled. "When reviewing a challenge the.$1gfeiency.bf.the 'evidence, we
must regard :all the.eViderice in the light most favorable: to theVerdia 'winner,., giving 014 party
'the* benefit of all teasbnal*.infetpncs." Cfpnynonwealth.y.:13edford, 50 A.3d 707, 711 (Pa.
Super. 2012) (internal citations omitted).. In addition:
"[T]he facts and circumstances .established. by the Commonwealth need 'not
preclude every possibility of intooetice.: Any doubts :regarding a clefendarit's..guilt.
5
May be resolved by.tht.factJfiridetleSS the evidence so weak and inconclusive
that .as a matter of law no probability of fact may be drawn -fiorn the combined
eirciutstances. 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 recordmustbe.evaluated.
and all evidence actually received must be considered. Finally, the finder of fact
while passing. upon the credibility Yof witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence."
:Commonwolth v. Nypaver, 69 A.2d 7.08; 714 (Pa. Super. 2013) (citations omitted).
A.person.may be convicted of attempted murder "if he takes.a.substantia1steptoward the.
commission of a killing, with the. specific intent in mind to commit such an act." Commonwealth
v. Hobson, 604 A.2d 717, 719 (Pa. Super. 1992). "The intent which is a prerequisite to a finding.
of murder is . aforethought' or simply, malice." Id. at 719-720. Malice is synonymous
with either *a wickedness of disposition, crucity, recklessness of consequences, indicating
unjustified disregard for the probability of death or great bodily harm. Id. at 720. Alapt-.finder
can properly infer malice from the use of a deadly *weapon on a Vital Part of the complainant's
body. Commonwealth v. Siebert, 622.A,2d.361:364 (Pa. Super. 1993).
Viewing the eyicknoe in a light most favorable to the Commonwealth as verdict 'winner;
Mr. Reyes testified to watching the Appellant point a small automatic handgun, at close range, at
Mr. Albaladejo's head and pull the trigger. The bullet hit Mr. Albaladejo in the neek.and exited
through the nose breaking his nasal bone. So011, after, Appellant fired a shot in the back of Mr.
Reyes' head. These actions qualify as substantial .steps in the commission of a killing. The
intent requirement for attempted murder is also. sat tied because the Appellant used A *deadly
i
weapon (a firearm) on perhaps the most vital part of hc complainants' body (the head). Seibert,
supra.
.6
In the instant case; Mr. Albaladejo testified to the f011OWirig.on directeXamination by the
district attorney:
..EDGAR JARAMILLO: What was Mr. Davis doing? What 'was he doing with the
gun with your brother-in-law? What was he, :saying' to. your brother-in-law?.
T.OMAS..ALBALADEJO: He said, "Give, me. your wallet," He...Witched *the gun
back and said "You think Pm playing?"
EDGAR JARAMILLO:.What did you say to help yourbrother-in-law?
*TOMAS ALBALADEJO: I told him to do what [the .defendant] says, to come
'down. And sole.hentdov.vnto.his.knees. And whenhe gave hitn.his wallet; he shot
him.
EDGAR JARAMILLO: When you were .talking to :your brother-in-law .and you
were' telling, your brother-in4aw to kneel...to give his wallet did. the. 'defendant
look at you?
TOMAS ALBALADEJO.: Yeah...after he, shot hirn,.hecartietbward me and he was
like, "Give. me your wallet" and put the.guritO
EDGAR JARAMILLO: Was he in front of you When he'put the:.gun up to your
head?
TOMAS AL:13ALADE40.: Yes.
N.T., .12/22/2015 at 29-33..
The' above testimony more than. adequately demonstrates Appellant's intent to murder the:
cOnipfainaritg and the substantiEd :steps -he took toward the accomplishment ofthat objective,, 'The
phySical demeanor of the Appellant, threatening language and use of a deadly weaponion 'a, vital
part of the body all exhibit an intent to inflict deadly harm on the cOmplainantS.: In addition,
7
Detective Daniel Murawski recoyered.one liVe round.Withbloodionit.and two fired: cartridge
casings .at 3638 Castor Avenue:
There was also no testimony presented that, cOnflicted.with the eyewitnesses' above
testimony. Therelbre, the evidence presented by the Commonwealth was.stifficierit for the jury
to convict Appellant of attempted murder.
The relevant portions' of.the robbery statute are as, follows:
§.3 701 . Robbery
Offense defined.-
(1) A person guilty ofrobbery if; in the *course of committing:a theft, he*:."
*
(ii) threatens another with or intentionally puts him in fear of
immediate serious bodily injury;.
C.S.A.:§. 3.701.
Similarly, Appellant, argues that the evidence was insufficient to eonviethitn of robbery..
in the instant case, Mr. Albaladejo and Mr. Reyes 'were approached by Appellant, forced to their
knees; and -held at gunpoint until their belongings were taken. Appellant:told each complainant,
"Give me. your wallet:, .totichedthe gun back" and said "You think Pirt playing?" This is
sufficient to find the complainants' belongings Were taken by force. The eVidenCe.shOws
Appellant threatened Albaladejo and Mr. Reyes. These. faelsestablish all the elements
of rObbery. Therefore, the: evidence. presented by the CornmonWealth.was.sufficient fOrthe.jury
to 'convict Appellant of rcibbery..
Likewise, the Commonwealth's evidence establishing aggravated assault was equally
adequate, Under Permsylvanialaw, a. pers9n..is, guilty of aggravated assault if he. "attempts to
-cause serious bodilyinjury to another, or causes such injury intentionally, knowingly or
8
recklessly under circtunstances 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)
The Commonwealth need only prove [the defendant] acted recIdessly under the
circumstances manifesting an extreme indifference to the value of human life. 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.
Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super, 2007) (quoting Commonwealth v,
Nichols; 692 A.2d 181; 185 (Pa. Super. 1997) (internal citations omitted)).
The elements of aggravated assault are necessarily inehidedinthe offense Of attempted
murder and merge with it for sentencing purposes. Indeed, every element of aggravated assault
is subsumed in the elements of attempted:murder, .Commonwealth v. Anderson,..650
(Pa. 1994).decisiOri modified on denial Ofreargunient, 653 A.2d 6.15 (Pa,. 1994) (amending the
court' S. previous order to includevaotingthe.judgment of sentence for attempted murder and
possession.of aninstrument.of crime in addition to, aggravated assault, andremandingfor
res.eritencing);. See, 1.8..Pa.C.S, §2301 arid 2702(a)(1), Because the fact -finder determined that
there was Sufficient:evidence to:conclUdethateach element of the.offensepf attempted murder
was satisfied beyond a reasonable doubt, it.f011ows, that each: element of the Offenstiof
aggravated assault is also -satisfied.. Thns,.the Appellant's claim regarding theinSufficiency.Of
evidence for aggravated assault must fail.
FarthermOre, the Conitrionwealth's.evidence establishing criminal conspiracy was.
equally. adequate. The relevant portions oldie criminal conspiracy statute are as follows:
§ 903... Criminal conspiracy
9
(a) Definition of conspiracy. -A person is guilty of conspiracy with another person or
persons to commit a crime if with the intent of promoting or facilitating its
commission he:
(1) Agrees with such other person or persons that they or one of more of them
will engage in conduct which constitutes such crime or an attempt or
solicitation to commit such crime; or
(2).. Agrees to aid such other person or persons in the planning or commission of
such crime or of an anempt or solicitation to commit such crime.
18: Pa. C.S. 903.
[T10 sustain a conviction for criminal conspiracy, the Commonwealth must
establish that the defendant: (1) entered into an agreement to commit or aid in the
unlawful act with another person or persons, (2) with a shared criminal intent, and
(3.) an overt act was done in furtherance of the conspiracy.
Commonwealth v. Murphy, 795 A.3d 1025, 1037 (Pa. Super, 2002):.
Furthermore, "[w]bile the Commonwealth is not required to prove a written or express
agreement, a tactic agreement must be established by reasonable inferences arising from the facts
and circumstances." Commonwealth v. Savage, 566 A.2d 272, 276 (Pa, Super. 1989). Therefore,
an agreement may be inferred between co-conspirators from the facts of the' case.
The Commonwealth presented sufficient evidence to prove beyond a reasonable doubt
that an overt agreement to rob the two victims was formed between the Appellant and the
unidentified accomplice. In the, instant case, Appellant, and the second male approached the
complainants on Castor Avenue. As Mr. Albaladejo testified, this man appeared to be acting as a
look-out. While the Appellant held a gun to each complainant's head and demanded their
belongings, the individual stood close by. After the Appellant confiscated Mr. Albaladejo's
wallet, the second male said "Let's go" and the pair walked away together. The facts and
circumstances and specifically, the ongoing conduct of the' assailants, clearly established a
conspiratorial agreement between Appellant and the other individual on scene. Therefore, the
evidence was sufficient to convict Appellant of criminal conspiracy.
10
The relevant portion of the possessing an instrument of crime statute is as follows:
§ 907, Possessing an instrument of crime
(a) Criminal instruments. generally -A person commits &misdemeanor of the first
degree if he possesses .any instrumentof.crime with intent to employ it criminally..
18 Pa:C.S.A. § 907:
Under this prOVision, the Commonwealth Must prove two elements: (1) possession Of an
object that iS. a Weapon;. and (2) intent to use thatweapon fora criminal ptirpose. Jn re4C, 763
A.2d 889,.890-91 .(Pa; Super. 2000) (citing Commonwealth v. Hardick, 380.A.2d 12354.1:236 (Pa.
1977). Itis well established that& loaded firearm is a weapon, so only the question of criminal
intent is :at.iSsue. and easily resolvecl...$ee:CpnimPovecilth v. Harley, 41:8 A.2d 1354, 1357 (Pa.
Super, 1980).. Appellant's criminal intent was made when he beld.a.gun two inches
away from Mr. Albaladejo's head and Mr. Reyes' head and demanded their. property. As such,
the evidence is sufficient to eonyict.Appellant ofpossessing an instrument of crime.
Weight of the Evidence
Appellant next contends that theNerdictwas against the weight of the evidence: This
claim should fail because the standard of review for evaluating a Weight -Of-the -evidence. claim is
well established and very narrow: CoMinoimea/thy. Chamfinqyi 832 A2d..403, 407 (Pa. 2003).
Determining the weight of the evidence is reserVediexchisivelyfor the finder of fact, Id..gt
Again, the. finder of fact is free to. helieve.all, part, or none of the.. e.videnCe and to.determinethe
credibility of.the.witnesses. Id. Thus,.an appellate...court can only teyerse.the lower court's
verdict if it is so contrary to the evidence as to shock one's sense .of justice. Id; See also
commonwealth R.Johnsani 668 A.2d 97, 101 (Pa. 199.5). Because the trial judgeis in the:best
.poSiticidlo. view the evidence presented,.. an appellate court Will give that judge the utmost
11
consideration when reviewing the court's determination On whether the* verdict is against the
Weight ofthe.evidence. Commonwealth Morgan, 913. A.2d 906 (Pa. Super. 2006),
A:"triie weight-of-the -evidence challenge concedes that sufficient evidence exists to
sustain. the verdict but.questions which evidence is 0.bQ believed." Commonwealth. y. Charlton,.
902. A.2d.554, 561 (Pa. Super.. 2006). Moreover, anew trial should not be: granted in a criminal
prosecution because *of a mere conflict in. the testimony of.because the judge, on the.s.attle.factS,
may have arrived.4 a different.conclusion. Commohwealth v. Widmer, 744.A.2d 745,752' (Pa.
2000).
To be against the weight of the evidence, the verdict must shock one's sense of justice:or
be an abuse.of discretion by the trial court. Id.. As described supra, the, evidence.presented. at.
trial was' sufficient to support a conviction for attempted murder, robbery, aggravated assault,
conspiracy' and possessing an instrument of crime. 'With that analysis in mind,.one..must. consider
whetherthe..verdict in this case shocks one"s:.sense. ofjustice or.represents, an abuse of discretion..
Given thestrengthand consistency ofthetestimpny pres.entedbythe Commonwealth's
witnesses, it, does neither. Id,.
In the instant case, the court.chose to, credit the testimony of the complainant,. the police
officer and deteetivesiinveStigating the case; The evidence found 'credible by the point was
.clearly.presented... It showed the complainant Observed Appellant in the Chinese restaurant
Minutes before Appellant robbed the two Men. .Albalaclejoi immediately recognized
Appellant, when he:approached the complainants on, FrankfordAvenue, due to. his unique tattoos
'and. green:coat. Mr. .Albaladejn positivelyidentified Appellant when he. was shown a photo. array
by. Detective Dusalc.. 'He, stated he was one:Inindred present sure" Appellant was the individual
12:
who shot and robbed the pair when he saw his photo. He also positively identified Appellant at
trial.
Furthermore, Mr. Alhalaclejo and: Nit. Reyes' testimony was consistent throughout the
police investigation and at trial, notwithstanding Mr. Reyes' .language bmiet. The court had the.
opportunity to observe any claimed inconsistencies in thewitnesses' testimony. The fact that the
Appellant was. fOund .guilty after all the evidence Was presented. was not .contrary.tOthe:.evidence
or shocking to the conscious, As stated, determining.a weight of the .evidenceclaim is reserved
exclusively for the fact -finder and should not be dishithedabsent an abuse of discretion.. No.
abuse of discretion occurred in the instant case
For the foregoing reasons, Appellant's: claim that: the verdict was against the weight of
the: evidence must also fail.
13
Conclusion
ii sunimary, this ..colut has carefully reviewed the entire record and finds no::harmftil,.
prejudicial, Or reversible .errof and nothing:to justify the granting. of Appellant's request for
relief. For thereasons set forth. aboye, the judgment of the. trial court should be.affirmed.
J.
14