Com. v. Gonzalez, M. ( 2021 )

J-S06022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MANUEL GONZALEZ :
:
Appellant : No. 394 EDA 2020
Appeal from the Judgment of Sentence Entered January 8, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006725-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: JUNE 4, 2021
Appellant Manuel Gonzalez appeals from the judgment of sentence
imposed following his convictions for second-degree murder and related
offenses. Appellant challenges both the sufficiency and weight of the evidence
supporting his convictions. We affirm.
The trial court summarized the underlying facts of this matter as follows:
Complainant Shaun Yeager testified that on the evening of March
3, 2018[,] he made plans to go to Trilogy nightclub in Philadelphia
with his longtime friend, Corey Boykin. Yeager drove to Boykin’s
house around 11 o’clock at night, the two talked and then Boykin
drove them both to Trilogy. Boykin parked his car close by the
club and the two men continued to talk in the parked car. After a
short while, Boykin and Yeager entered Trilogy. Yeager testified
that he and Boykin each had one or two drinks in the club and
that he was smoking marijuana, but Boykin was not. After about
an hour, Boykin and Yeager bought food inside the club and left
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* Retired Senior Judge assigned to the Superior Court.
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to eat it in Boykin’s car. Once they were back in the car, the
friends started talking again as they ate the food. Ten minutes
after they got into the car, Yeager heard a tap on the car window.
Yeager testified that as he was looking around to see where the
noise came from, he saw a silhouette and immediately glass
busted into the car and shots were fired. Yeager felt a bullet hit
him and jumped into the backseat to take cover. Yeager
screamed to Boykin to drive the car away but Boykin did not
respond and Yeager passed out. When Yeager woke up, he saw
the attacker on top of Boykin, removing his jewelry. Assuming
the shooter wanted their jewelry, Yeager removed his own jewelry
and threw it towards the assailant. Yeager again passed out and
when he woke up he called 911 and reported the attack before
passing out again. The next time Yeager woke up he was being
removed from the car by first responders.
Later, at the hospital, Yeager learned that he had been shot 11
times. Boykin was pronounced dead at Hahnemann Hospital. His
autopsy showed he died as a result of seven gunshot wounds. On
March 30, 2018[,] Yeager was interviewed by detectives in the
hospital and was able to identify Appellant as the shooter from
photographs taken from the club’s security footage. The following
day Yeager positively identified Appellant from a photo array. The
homicide fugitive squad was assigned to locate Appellant on May
1, 2018. On June 25, 2018, Appellant was stopped in New Mexico
by a local police department. Appellant was then brought back to
Philadelphia and arrested on July 18, 2018.
* * *
On July 18, 2018[,] Appellant was arrested and charged with
murder, two counts of robbery, possession of firearm prohibited,
firearms not to be carried without a license, carrying firearms in
public in Philadelphia, two counts of theft, possession of an
instrument of a crime, conspiracy, attempted murder, aggravated
assault and related charges. On December 2, 2019, after a jury
trial before this [c]ourt, Appellant was found guilty of [one count
each of second-degree murder, attempted murder, aggravated
assault, conspiracy to commit robbery, and PIC, two counts each
of theft and robbery, and all three counts of VUFA.1] The
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1 18 Pa.C.S. §§ 2502(b), 901(a), 2702(a), 903, 3701(a)(1)(i), 907(a),
3921(a), 3701(a)(1)(i), 6105(a)(1), 6106(a)(1), and 6108, respectively.
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remaining charges were nolle prossed. That same day, Appellant
was sentenced to life in prison without the possibility of parole and
a consecutive 10 to 20 years of incarceration. Post sentence
motions were filed on December 5, 2019[,] and denied on January
8, 2020.
Trial Ct. Op., 7/8/20, at 1-3.
Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)
opinion addressing Appellant’s claims.
On appeal, Appellant raises the following issues for review:
1. Was there insufficient evidence to sustain the convictions on all
counts?
2. Were the verdict for all counts against the weight of the
evidence?
Appellant’s Brief at 4.
In his first claim, Appellant challenges the sufficiency of the
Commonwealth’s identification evidence. In support, Appellant argues that
Yeager, “who was under the influence of alcohol and marijuana, could not
clearly see the shooter when the crime was taking place.” Id. at 8. Further,
Appellant asserts that Yeager “did not identify Appellant in any photo array
but rather was shown still photos of just Appellant taken from inside the
nightclub prior to the incident” and that “[s]uch an identification is unduly
suggestive and tainted, and should be given less weight than other forms of
identification.” Id. Appellant also argues that “no DNA nor any fingerprints
of Appellant were recovered from the crime scene” and that “[t]he weapon in
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question was never linked to Appellant through any evidence other than
cooperator Rashawn Barr’s testimony.” Id. at 10. Finally, Appellant asserts
that the shooter was wearing black sneakers, but Appellant was photographed
wearing teal blue sneakers, an issue that was raised by “defense counsel in
closing arguments yet never addressed by the Commonwealth in its closing.”
Id. at 9. Therefore, Appellant contends that there was insufficient evidence
to prove that he was the shooter.
The Commonwealth responds that to the extent Appellant challenges
the credibility of the witness testimony, that claim goes to the weight, not the
sufficiency, of the evidence. Commonwealth’s Brief at 8. With respect to
Appellant’s assertion regarding DNA, the Commonwealth asserts that “as in
other areas, an absence of evidence is not evidence of absence.” Id. The
Commonwealth argues that it presented “substantial evidence, including
[Yeager’s] positive identification of [Appellant] by photographic array” which
was “corroborated by a bystander, Mr. Davenport, who reported the incident
to the police.” Id. Further, the Commonwealth asserts that it presented
“video surveillance footage depicting [Appellant] exiting the nightclub 10
minutes before the shooting.” Id. Additionally, the Commonwealth notes
that “Mr. Barr, an acquaintance of [Appellant], shared with homicide
detectives that [Appellant] requested to borrow his ‘tool,’ a semiautomatic
.40-caliber gun, which matched the historical ballistics cell analysis that
corroborated with all the witness’s testimony and the bullets in decedent’s
car.” Id. Finally, the Commonwealth argues that although Appellant claims
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that he was wearing teal sneakers on the night of the shooting, “[a]n alleged
discrepancy in the color of [Appellant’s] sneakers does not negate Appellant’s
guilt.” Id. at 9-10.
When reviewing a sufficiency claim, our standard of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the
factfinder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted and formatting altered).
Here, to the extent Appellant challenges the sufficiency of the evidence
identifying him as the perpetrator, we will limit our review to whether the
Commonwealth established the identification element of the crimes. See
Commonwealth v. Cain, 906 A.2d 1242, 1244 (Pa. Super. 2006) (declining
to address the sufficiency of evidence as to every element of the crime where
the appellant only challenged the identification evidence).
This Court has held that, “[i]n addition to proving the statutory
elements of the crimes charged beyond a reasonable doubt, the
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Commonwealth must also establish the identity of the defendant as the
perpetrator of the crimes.” Commonwealth v. Smyser, 195 A.3d 912, 915
(Pa. Super. 2018) (citation omitted). Further, “[a] victim’s in-court testimony,
identifying the defendant as the perpetrator of a crime, is by itself sufficient
to establish the identity element of that crime.” Commonwealth v.
Johnson, 180 A.3d 474, 478 (Pa. Super. 2018) (citation omitted).
Moreover, we have explained that
evidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(citations omitted and formatting altered).
Instantly, the trial court addressed Appellant’s claim as follows:
Appellant challenges the sufficiency and weight of the evidence
based on the following assertions: there was no eyewitness to the
offense other than a cooperating co-conspirator, Appellant’s DNA
was not at the crime scene, Appellant’s fingerprints were not at
the crime scene, the weapon in question was never recovered and
was never linked to Appellant through any evidence other than
the cooperator, the sneakers worn in the photo of the shooter
were black whereas a photo of Appellant leaving the nightclub less
than 10 minutes prior showed him wearing teal blue sneakers, the
testimony of the cooperator and eyewitness Jamal Hughes were
contradictory, the identification of Appellant by Yeager was unduly
suggestive and tainted.
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* * *
. . . Yeager’s testimony was corroborated by eyewitness testimony
from Raheem Davenport, cooperating co-conspirator Rashawn
Barr, and video evidence from Trilogy nightclub. The crime scene
officers, responding police officers, the medical examiner, a
firearms identification expert, an expert in historical cell site
analysis and an expert in DNA analysis testimony all testified to
evidence which further corroborated the eyewitness testimony of
Yeager, Davenport and Barr.
Trial Ct. Op. at 3-6.
Based on our review of the record, and in viewing the evidence in the
light most favorable to the Commonwealth as verdict winner, we agree with
the trial court that there was sufficient evidence to establish Appellant’s
identity as the perpetrator. See Palmer, 192 A.3d at 89; see also Smyser,
195 A.3d at 915. Even without the corroborating evidence discussed by the
trial court, Yeager’s in-court identification of Appellant, see N.T. Trial,
11/21/19, at 102, was sufficient to prove that Appellant was the shooter. See
Johnson, 180 A.3d at 478; Smyser, 195 A.3d at 915; Orr, 38 A.3d at 874.
Further, to the extent Appellant challenges the identification evidence based
on conflicts in evidence, the accuracy of the witness’s identification, or witness
credibility, those issues go to the weight, not the sufficiency, of the evidence.
See Commonwealth v. Kinney, 157 A.3d 968, 972 (Pa. Super. 2017).
Therefore, Appellant is not entitled to relief on his sufficiency claim.
Weight of the Evidence
Appellant also argues that his convictions were against the weight of the
evidence. Appellant’s Brief at 9. Specifically, Appellant reiterates his assertion
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that Yeager’s identification testimony was unreliable because (1) he did not
clearly see the perpetrator during the shooting and (2) his out-of-court
identification of Appellant was “unduly suggestive and tainted.” Id. at 10.
Further, Appellant asserts that both the surveillance footage and the
testimony connecting him to the murder weapon were inconsistent with other
evidence presented at trial. Id. Therefore, Appellant concludes that the trial
court erred in denying his post-sentence motion. Id.
The Commonwealth responds that the weight of the evidence supports
the jury’s verdict. Commonwealth’s Brief at 5. The Commonwealth asserts
that there was overwhelming evidence presented at trial, including eyewitness
testimony from several witnesses and a witness from whom Appellant
borrowed the murder weapon. Id. at 5-6. Further, the Commonwealth notes
that it “presented ballistics analysis matching the reported gun used and
surveillance video footage depicting [Appellant’s] presence outside of [the]
nightclub on the night of the shooting.” Id. at 6.
When reviewing a weight claim, our standard of review is as follows:
The weight of the evidence is a matter 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. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. On appeal, our purview
is extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
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of a review of the trial court’s exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence. An appellate court may not reverse a
verdict unless it is so contrary to the evidence as to shock one’s
sense of justice.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015) (en
banc) (citations omitted and formatting altered).
Here, the trial court rejected Appellant’s claim, concluding that “[b]ased
on the evidence presented at trial, there is nothing in the jury’s verdict that
shocks one’s sense of justice.” Trial Ct. Op. at 7.
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Gonzalez, 109 A.3d at 723. The jury, as fact-finder, was
entitled to make credibility determinations concerning the victim’s
identification testimony and weigh that testimony against the other evidence
presented at trial. See id. Therefore, the trial court did not abuse its
discretion in rejecting Appellant’s weight claim. See id. Accordingly,
Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/21
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