Com. v. Collazo, J. ( 2022 )

J-A19030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY MICHAEL COLLAZO :
:
Appellant : No. 1101 MDA 2021
Appeal from the Judgment of Sentence Entered July 13, 2021
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005459-2018
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: NOVEMBER 29, 2022
Appellant, Jeremy Michael Collazo, appeals from the judgment of
sentence entered in the Berks County Court of Common Pleas, following his
jury trial convictions for three (3) counts of conspiracy and one (1) count of
first-degree murder.1 We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
[T]he Commonwealth presented evidence that on the night
of July 23, 2018, Julissa Torres was celebrating her birthday
at Nick’s Cafe at 11th and Chestnut Streets in the City of
Reading, Berks County, Pennsylvania. She and Dawud
Felton left the bar shortly after 2:00 a.m. on the morning of
the 24th and walked to her apartment at 338 South 10th
Street. Along the way, they encountered Carlos Herrera and
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 903, 2502(a), respectively.
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a companion of his named Eddie.
Ms. Torres and her friends entered her second-floor
apartment, where her three children and their babysitter
were also present. Ms. Torres and the others were inside
the apartment for a short time before they heard gunshots
outside her door. Ms. Torres testified that she and the
others ran upstairs, but that Dawud Felton then went back
downstairs to help Carlos, who had been shot. Carlos
Herrera died at the scene and his body was transported to
the Reading Hospital by Deputy Coroner Melissa Spuhler.
Dr. Neil Hoffman, a forensic pathologist, testified that the
cause of death was a gunshot wound to the chest.
Julissa Torres testified that when she talked to the police,
she told them that she thought that Michael Richardson,
whose nickname is Goblin, and [Appellant], whose
nickname is Flow, were the shooters. Ms. Torres had been
having problems with Michael Richardson, and she testified
that [Appellant] was always with him. Ms. Torres testified
that the night before her birthday, shots were fired at her
uncle’s house at 934 Muhlenberg Street. Ms. Torres testified
that she called Michael Richardson in response and
threatened to harm his mother.
Ms. Torres further testified that Robert, her daughter’s
father, had recently shot at Michael Richardson and
[Appellant]. No one was hit by the bullets, but one of the
bullets struck [Appellant’s] car. In addition, Ms. Torres
testified that earlier in July, she had been walking to a store
in the area of 11th and Cotton Streets when Michael
Richardson, who was in a car with [Appellant], pointed a
gun at her. Michael Richardson told her that he’s going to
get a clear shot.
The Commonwealth also introduced communication that
occurred on Facebook between Michael Richardson and Ms.
Torres into evidence. Ms. Torres’s account was named “Ju
Staymentioned” and Michael Richardson’s account was
named “Desperado Hitta.” Many of the messages were
threatening in nature. For example, Michael Richardson
replied, “Because I was gonna shoot you” in response to Ms.
Torres’s question about why he pulled his gun out. Ms.
Torres testified that she was not having problems with
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anyone other than Michael Richardson around the time of
the homicide.
Following the murder of Carlos Herrera, Officer Christopher
Bucklin of the Reading Police Department obtained video
surveillance footage from Nick’s Cafe at 1050 Chestnut
Street, from 401 South 9th Street, and from 420 Orange
Street in the City of Reading. The video from 401 South 9th
Street depicts two males walking north on 9th Street near
the time of the murder. The video from 420 Orange Street
depicts two individuals running east away from the scene of
the homicide. The video from 420 Orange Street was
captured four or five minutes after the video from 401 South
9th Street. The location of the cameras relative to the scene
of the homicide is depicted in Commonwealth Exhibit 86.
Screen captures depicting the two men from the video taken
at 401 South 9th Street were introduced into evidence as
Commonwealth Exhibits 84 and 85. [Appellant] is depicted
in Commonwealth Exhibit 85.
Criminal Investigator Daniel Cedeno testified that as part of
his investigation, he obtained messages from Facebook that
were exchanged between [Appellant] and Michael
Richardson. On the night of July 23, 2018, Michael
Richardson asked [Appellant] if he felt like “eliminating this
problem?” Appellant replied, “I’m with it.” They then
discussed going to Nick’s and that it was “shorty’s birthday.”
When [Appellant] asked, “How we gonna do this,” Michael
Richardson responded that he will “tell you when we link,”
meaning meet.
Facebook records also established that [Appellant] searched
for “Juju Marie,” who is Julissa Torres, at approximately
1:18 a.m. on July 24, 2018. In addition, Facebook
messages were introduced where [Appellant] was planning
the shooting at Julissa Torres’s uncle’s house. [Appellant]
also discussed Michael Richardson pointing a gun at Julissa
Torres at 11th and Cotton Streets on Facebook. Finally,
while discussing the disagreement with Julissa Torres,
[Appellant] wrote, “They shot at us four or five times to our
one that really counted.”
Criminal Investigator Cedeno interviewed [Appellant] after
he was taken into custody in Massachusetts. When
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[Appellant] was shown a picture of Michael Richardson, he
acknowledged that he knew him as Goblin. [Appellant] also
acknowledged that he was aware that Michael Richardson
and Julissa Torres had been exchanging threats.
[Appellant] initially denied any involvement in the homicide,
but when he was told that there was video evidence, he
admitted that he was at the scene of the crime.
[Appellant] stated that he was picked up that evening and
that Michael Richardson and two other individuals were in
the car. [Appellant] described Richardson as “raging,” but
said that Richardson told him he was going to Julissa
Torres’s residence to talk. [Appellant] stated that after the
driver of the car parked the vehicle on Laurel Street, he,
Michael Richardson, and a man named Luis Sanabria walked
on foot to Julissa Torres’s home. [Appellant] said that he
remained in an alley while Michael Richardson and Luis
Sanabria walked up the stairs to Julissa Torres’s second floor
apartment. [Appellant] stated that Michael Richardson
opened the apartment door and that moments later he
heard gunshots. After hearing the gunshots, [Appellant]
said that he ran back to the vehicle. The video surveillance
footage refutes [Appellant’s] account of the events. In
addition, after being told that his fingerprints had been
recovered from a .22 caliber firearm that was used in the
shooting, [Appellant] stated that Michael Richardson left the
weapon in his vehicle and that he gave it back to
Richardson.
(Trial Court Opinion, filed 10/28/21, at 3-7) (internal record citations
omitted).
On December 24, 2018, the Commonwealth filed a criminal information
charging Appellant with offenses related to the shooting. Appellant proceeded
to trial, and a jury found him guilty of first-degree murder and related
offenses. On July 13, 2021, the court sentenced Appellant to life
imprisonment for the murder conviction. Appellant timely filed post-sentence
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motions, which the court denied.2
Appellant filed a notice of appeal on August 19, 2021. On August 23,
2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant timely filed his Rule
1925(b) statement on September 10, 2021.
Appellant now raises three issues for this Court’s review:
Was there insufficient evidence to support Appellant’s
convictions for murder of the first degree, conspiracy to
commit murder of the first degree, and two counts of
conspiracy to commit aggravated assault?
Were Appellant’s convictions for murder of the first degree,
conspiracy to commit murder of the first degree, and two
counts of conspiracy to commit aggravated assault against
the weight of the evidence?
Did the trial court abuse its discretion in removing juror
number 10 immediately before deliberations as there was
no evidence her deliberations would be affected simply
because she knew someone sitting in the courtroom?
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2 The trial court docket indicates that the post-sentence motion was filed and
denied on September 22, 2021, after Appellant filed a notice of appeal on
August 19, 2021. Consequently, this Court directed Appellant to show cause
why the appeal should not be quashed. Appellant filed multiple responses
stating that he timely filed a post-sentence motion on July 22, 2021, which
the court denied on July 26, 2021. Appellant attached a copy of the July 26,
2021 order denying the post-sentence motion, which also appears in the
certified record. Appellant further explained that he filed two (2) motions on
July 22, 2021: the post-sentence motion and a motion for the withdrawal of
counsel. Due to a clerical error, the trial court docketed the withdrawal motion
on July 22, 2021, without docketing the post-sentence motion. To correct this
error, the court belatedly docketed the post-sentence motion on September
22, 2021, and the court re-filed the order denying the post-sentence motion
that same day. Significantly, Appellant provided this Court with a letter from
the trial judge’s law clerk that confirms this sequence of events. (See
Response to Rule to Show Cause, filed 11/29/21, at Exhibit B).
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(Appellant’s Brief at 8).
Our standard of review for sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether 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. 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. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).
In reviewing a challenge to the weight of the evidence, our standard of
review is as follows:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
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Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
Additionally, the Crimes Code defines the offense of criminal conspiracy
as follows:
§ 903. Criminal conspiracy
(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 or 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 attempt
or solicitation to commit such crime.
* * *
(c) Conspiracy with multiple criminal
objectives.—If a person conspires to commit a number of
crimes, he is guilty of only one conspiracy so long as such
multiple crimes are the object of the same agreement or
continuous conspiratorial relationship.
18 Pa.C.S.A. § 903(a), (c).
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“To sustain a conviction for criminal conspiracy, the Commonwealth
must establish that the defendant (1) entered into an agreement to commit
or aid in an 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. Melvin, 103 A.3d 1, 42 (Pa.Super. 2014)
(citation omitted).
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of
a shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need
not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances
of the parties, and the overt acts of the co-conspirators
sufficiently prove the formation of a criminal confederation.
The conduct of the parties and the circumstances
surrounding their conduct may create a web of evidence
linking the accused to the alleged conspiracy beyond a
reasonable doubt.
Id. at 42-43. “Once the trier of fact finds that there was an agreement and
the defendant intentionally entered into the agreement, that defendant may
be liable for the overt acts committed in furtherance of the conspiracy
regardless of which co-conspirator committed the act.” Commonwealth v.
Barnes, 871 A.2d 812, 820 (Pa.Super. 2005), aff’d, 592 Pa. 301, 924 A.2d
1202 (2007).
The Crimes Code defines first-degree murder as follows:
§ 2502. Murder
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(a) Murder of the first degree.―A criminal homicide
constitutes murder of the first degree when it is committed
by an intentional killing.
18 Pa.C.S.A. § 2502(a).
To find a defendant guilty of first-degree murder a jury must
find that the Commonwealth has proven that he or she
unlawfully killed a human being and did so in an intentional,
deliberate and premeditated manner.
It is the element of a willful, premeditated and
deliberate intent to kill that distinguishes first-degree
murder from all other criminal homicide. …
The mens rea required for first-degree murder, specific
intent to kill, may be established solely from circumstantial
evidence.
Commonwealth v. Schoff, 911 A.2d 147, 159-60 (Pa.Super. 2006) (internal
citations and quotation marks omitted). “Specific intent to kill can be
established though circumstantial evidence, such as the use of a deadly
weapon on a vital part of the victim’s body.” Commonwealth v. Montalvo,
598 Pa. 263, 274, 956 A.2d 926, 932 (2008), cert. denied, 556 U.S. 1186,
129 S.Ct. 1989, 173 L.Ed.2d 1091 (2009).
Regarding a trial court’s decision to remove a juror, we note:
The decision to discharge a juror is within the sound
discretion of the trial court and will not be disturbed absent
an abuse of that discretion. This discretion exists even after
the jury has been impaneled and the juror sworn. [T]he
common thread of the cases is that the trial judge, in [their]
sound discretion, may remove a juror and replace [them]
with an alternate juror whenever facts are presented which
convince the trial judge that the juror’s ability to perform
[their] duty as a juror is impaired.
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Commonwealth v. Marrero, 217 A.3d 888, (Pa.Super. 2019), appeal
denied, ___ Pa. ___, 226 A.3d 968 (2020) (internal citations and quotation
marks omitted). “An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Commonwealth v.
Griffiths, 15 A.3d 73, 76 (Pa.Super. 2010) (quoting Commonwealth v.
Dent, 837 A.2d 571, 577 (Pa.Super. 2003), appeal denied, 581 Pa. 671, 863
A.2d 1143 (2004)).
After a thorough review of the certified record, the parties’ briefs, and
the relevant law, we conclude the record supports the trial court’s
determination. See Champney, supra; Marrero, supra; Tucker, supra.
Consequently, we affirm the judgment of sentence for the reasons stated in
the opinion that the Honorable Eleni Dimitriou Geishauser entered on October
28, 2021.
Regarding the Commonwealth’s evidence, Judge Geishauser
emphasized the video surveillance evidence, the Facebook messages between
Appellant and Mr. Richardson, and Appellant’s own statements during his
police interview. The court noted that “[t]hese facts, taken together, were
sufficient to allow the jury as factfinder to conclude that [Appellant] was
guilty” of the offenses at issue. (Trial Court Opinion at 7). Likewise, the court
concluded that the verdict was not so contrary to the evidence as to shock
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one’s sense of justice. (See id. at 8).
Regarding the removal of juror number 10, the court analyzed the on-
the-record interview with the juror that occurred after the court learned that
the juror knew someone in the gallery. During this interview, the juror
expressed some concern about the possibility of “backlash” if the verdict did
not “go in favor” of Appellant’s supporter in the gallery. (See id. at 9).
Considering the juror’s statements during the on-the-record interview, the
court felt justified in excusing the juror. As to the foregoing points, we adopt
Judge Geishauser’s reasoning as our own.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2022
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