Com. v. Rivera, A. ( 2020 )

J-S40042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDU RIVERA :
:
Appellant : No. 1504 EDA 2019
Appeal from the Judgment of Sentence Entered January 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006734-2016,
CP-51-CR-0006735-2016, CP-51-CR-0006736-2016,
CP-51-CR-0006737-2016, CP-51-CR-0006738-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDU RIVERA :
:
Appellant : No. 1506 EDA 2019
Appeal from the Judgment of Sentence Entered January 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006734-2016,
CP-51-CR-0006735-2016, CP-51-CR-0006736-2016,
CP-51-CR-0006737-2016, CP-51-CR-0006738-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDU RIVERA :
:
Appellant : No. 1507 EDA 2019
Appeal from the Judgment of Sentence Entered January 18, 2019
J-S40042-20
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006734-2016,
CP-51-CR-0006735-2016, CP-51-CR-0006736-2016,
CP-51-CR-0006737-2016, CP-51-CR-0006738-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDU RIVERA :
:
Appellant : No. 1508 EDA 2019
Appeal from the Judgment of Sentence Entered January 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006734-2016,
CP-51-CR-0006735-2016, CP-51-CR-0006736-2016,
CP-51-CR-0006737-2016, CP-51-CR-0006738-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDU RIVERA :
:
Appellant : No. 1509 EDA 2019
Appeal from the Judgment of Sentence Entered January 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006734-2016,
CP-51-CR-0006735-2016, CP-51-CR-0006736-2016,
CP-51-CR-0006737-2016, CP-51-CR-0006738-2016
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant, Abdu Rivera, appeals from the judgment of sentence of five
life terms without the possibility of parole followed by 16 to 32 years of
confinement, which was imposed after his conviction at a bench trial for five
counts each of murder of the first degree and criminal conspiracy to commit
murder of the first degree and two counts each of arson endangering persons,
causing catastrophe, possessing instruments of crime, and recklessly
endangering another person.1 We affirm.
In its opinion, the trial court set forth the relevant facts of this case.
See Trial Court Opinion, dated January 23, 2020, at 2. Therefore, we have
no reason to restate them at length herein. For the convenience of the reader,
we briefly recount that, in the middle of November 2003,
[A]ppellant was in a bar at 2nd and Ontario Streets in Philadelphia
when he got into an argument over a girl with
John David Santiago. The argument escalated and the parties
proceeded out to the parking lot, where a physical altercation took
place. Santiago, a boxer, was getting the better of the fight when
the combatants were separated, after which [Appellant] asked
several people where Santiago lived.
Id. (citing N.T., 11/19/2018, at 53-59; N.T., 11/20/2018, at 6-15); see also
N.T., 11/19/2018, at 52. “A few days” later, N.T., 11/19/2018, at 54, “[o]n
November 18, 2003, at approximately 3:40 a.m., a Molotov cocktail was
thrown into” Santiago’s home, killing five people. Trial Court Opinion, dated
January 23, 2020, at 2. At trial, the Commonwealth’s theory was that
____________________________________________
1 18 Pa.C.S. § 2502(a), § 903 (to commit § 2502(a)), § 3301(a)(1)(i),
§ 3302(a), § 907(a), and § 2705, respectively.
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Appellant was guilty of committing arson and related offenses through
conspiratorial and accomplice liability and never alleged that Appellant
physically created or threw the Molotov cocktail himself.
Following his conviction and sentencing, Appellant filed a timely post-
sentence motion that stated, in its entirety:
[Appellant], by and through his undersigned counsel, respectfully
requests this [trial c]ourt grant his Post-Sentence Motion, and in
support thereof, states the following:
1. The verdict was against the weight and sufficiency of the
evidence because the Commonwealth’s theory that
[Appellant] was an accomplice was not proven. Further,
there was no alternative theory that [Appellant] acted,
solicited, encouraged or participated in this murder.
Additionally, [Appellant] did not agree for this murder to
take place or agree for anyone to commit this act.
2. Respectfully, the [trial c]ourt did not give adequate
consideration to the evidence presented by the defense and
the lack of evidence presented by the Commonwealth
because of its five minute decision after the final day of
evidence at trial.
WHEREFORE, [Appellant] respectfully requests this [trial c]ourt to
grant an arrest of judgment on all charges and grant a new trial.
Appellant’s Post-sentence Motion, 1/28/2019. On May 17, 2019, Appellant
filed five notices of appeal, each listing five docket numbers.2 On May 28,
____________________________________________
2 On September 30, 2019, this Court issued five rules to show cause why the
appeals should not be quashed in light of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) (holding that the failure to file separate notices of appeal
for separate dockets must result in quashal of the appeal). Appellant failed to
file a response. On December 3, 2019, and December 4, 2019, this Court
again issued five rules to show cause why the appeals should not be quashed
in light of Walker. On December 5, 2019, Appellant filed five responses to
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2019, the trial court denied Appellant’s post-sentence motion.3 On
November 18, 2019, Appellant filed his statement of errors complained of on
appeal.4
____________________________________________
the five rules to show cause. On January 30, 2020, this Court entered orders
informing the parties that the issues raised in the rules to show cause will be
referred to the panel assigned to decide the merits of the appeals.
Subsequent to Appellant filing his responses to the rules to show cause, an en
banc panel of this Court decided Commonwealth v. Johnson, 2020 Pa. Super.
164 (Pa. Super. filed July 9, 2020) (en banc), overruling Commonwealth v.
Creese, 216 A.3d 1142 (Pa. Super. 2019), which had held that “a notice of
appeal may contain only one docket number.” Id. at 1144 (emphasis
added). In Johnson, this Court held that an appellant who files the correct
number of notices of appeal to match the number of trial court cases but lists
all of the docket numbers on each notice of appeal does not run afoul of
Walker. See also Commonwealth v. Larkin, 2020 Pa. Super. 163, *3
(July 9, 2020) (recognizing that Johnson “expressly overruled Creese to the
extent that Creese interpreted Walker as requiring the Superior Court to
quash appeals when an appellant, who is appealing from multiple docket
numbers, files notices of appeal with all of the docket numbers listed on each
notice of appeal.”).
Analogously, Appellant filed the correct number of notices of appeal -- i.e.,
five – to match the five trial court cases; he also listed all of the docket
numbers on each notice of appeal. Accordingly, we conclude that Walker
does not compel quashal of his appeals.
Additionally, in 2303 Bainbridge, LLC v. Steel River Building Systems,
Inc., 2020 Pa. Super. 215, *2-*3 n.1 (September 3, 2020), “the concerns
present in Walker are not present here: there are not multiple defendants,
the facts and issues apply only to one appellant, and the outcome will affect
only one appellant.” Likewise, none of those concerns from Walker are
present in the current action, and, again, Walker is not controlling.
3 “A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.” Pa.R.A.P. 905(a)(5).
4 On January 23, 2020, the trial court entered its opinion.
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Appellant now presents the following issue for our review:
Did the trial court commit an abuse of discretion by denying
Appellant’s post-sentence motion raising a claim asserting that
the verdicts were against the weight of the evidence?
Appellant’s Brief at 3 (unnecessary capitalization omitted).
As a preliminary matter, a challenge to the weight of the evidence must
be preserved by a motion for a new trial. Pa.R.Crim.P. 607(A). The Rule
provides:
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.
Id. “The purpose of this rule is to make it clear that a challenge to the weight
of the evidence must be raised with the trial judge or it will be waived.”
Comment to Pa.R.Crim.P. 607. “Failure to properly preserve the claim will
result in waiver, even if the trial court addresses the issue in its opinion.”
Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014).
In his post-sentence motion, Appellant contended that “[t]he verdict
was against the weight and sufficiency of the evidence[.]” Appellant’s Post-
sentence Motion, 1/28/2019, at ¶ 1. Weight of the evidence and sufficiency
of the evidence are distinct concepts and, accordingly, are not
interchangeable. See Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
2000) (delineating the distinction between a claim challenging the sufficiency
of the evidence and a claim challenging the weight of the evidence). “A claim
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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.” Id. Furthermore, where an appellant “failed to
distinguish between [his] sufficiency and weight of the evidence claims and
presented no argument regarding the weight of the evidence, we deem [his]
weight of the evidence issue waived.” Commonwealth v. Birdseye, 637
A.2d 1036, 1039-40 (Pa. Super. 1994).
In his post-sentence motion, Appellant argued that “the
Commonwealth’s theory that [he] was an accomplice was not proven” and
that the Commonwealth presented a “lack of evidence[.]” Appellant’s Post-
sentence Motion, 1/28/2019, at ¶ 1. In other words, Appellant was urging the
trial court to conclude that the evidence did not “establish[] each material
element of the crime charged and the commission thereof by the accused,
beyond a reasonable doubt.” Widmer, 744 A.2d at 751. Consequently,
despite the bald reference to the “weight” of the evidence in his post-sentence
motion, the assertions contained therein were actually challenging the
sufficiency of the evidence, and a challenge to the sufficiency of the evidence
does not preserve a challenge to the weight of the evidence. As Appellant
never presented a weight of the evidence challenge in his post-sentence
motion, we deem his weight of the evidence issue waived. Pa.R.Crim.P.
607(A); Birdseye, 637 A.2d at 1039.
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Additionally, none of the theories contained in Appellant’s brief to this
court as to why the verdict was against the weight of the evidence bore even
a tenuous connection to any concept presented in Appellant’s post-sentence
motion. Specifically, Appellant claims in his appellate brief that the verdict is
against the weight of the evidence for five reasons: (1) the Commonwealth
failed to present physical evidence; (2) Appellant “was physically incapable of
committing the crime”; (3) there was evidence that another person had
threatened the victims; (4) “there were major inconsistencies and
contradictions in the testimony of the alleged witnesses”; and (5) “the
witnesses inculpating [A]ppellant in the crime each had personal reasons for
doing so.” Appellant’s Brief at 19; see also id. at 20-21. None of these
specific assertions were raised in Appellant’s post-sentence motion, see Post-
sentence Motion, 1/28/2019, and, accordingly, all of these challenges are
waived for this reason, as well. 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.”).5
____________________________________________
5 Assuming any of Appellant’s challenges to the weight of the evidence were
preserved, we would still find all of them to be meritless. First, the
Commonwealth’s theory at trial was that Appellant was guilty of committing
arson and related offenses through conspiratorial and accomplice liability;
ergo, Appellant’s allegations concerning the lack of physical evidence “directly
connecting [him] to the crime” and that, “on the day the fire was set, [he]
was bedridden, having been shot a couple days prior thereto and was
physically incapable of leaving his residence” are irrelevant and nonsensical,
as the Commonwealth consistently alleged that all of the physical work of
setting the fire was done by Appellant’s co-conspirators. See Appellant’s Brief
at 20-21.
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Based on the foregoing, Appellant is not entitled to relief. Thus,
we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judge King joins the Memorandum.
Judge Shogan Concurs in the Result.
____________________________________________
As for Appellant’s contention that there was “evidence indicating that another
person had threatened the victims,” he does not elaborate on this allegation
beyond this one phrase in the argument section of his brief, id. at 19, and it
is thereby waived for lack of development. See Kelly v. Carman
Corporation, 229 A.3d 634, 656 (Pa. Super. 2020).
Next, Appellant maintains that “the testimony presented by the witnesses the
Commonwealth presented who implicated [A]ppellant in the crime was so rife
with inherent inconsistencies and contradictions that worsened when
compared and contrasted with the testimony given by the other witnesses.”
Appellant’s Brief at 21. Nevertheless, “[t]he weight of the evidence is
exclusively for the finder of fact, who is free to believe all, none or some of
the evidence and to determine the credibility of the witnesses. The fact-finder
also has the responsibility of resolving contradictory testimony and questions
of credibility.” Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super.
2019) (citations and internal quotation marks omitted).
Finally, Appellant argues that the Commonwealth’s witnesses were “not
believable because the witnesses . . . had motives to cooperate given that
they had criminal matters for which they may have been seeking consideration
on in exchange for their testimony.” Appellant’s Brief at 21. However, “the
weight to be accorded the evidence of bias is a matter best left to the [fact-
finder]’s determination and is not to be decided through the speculation of . . .
the appellate courts.” Commonwealth v. Davis, 652 A.2d 885, 888 (Pa.
Super. 1995).
Hence, assuming arguendo that Appellant had properly preserved his
challenges to the weight of the evidence, we would still find that all of these
arguments lack merit. Appellant thereby would still not be entitled to relief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/20
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