Com. v. Sanchez, E.

J-S36026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMMANUEL SANCHEZ,
Appellant No. 1035 EDA 2016
Appeal from the Judgment of Sentence of October 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005519-2014
and CP-51-CR-0005520-2014
BEFORE: PANELLA, J. OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 15, 2017
Appellant, Emmanuel Sanchez, appeals from the judgment of sentence
entered on October 29, 2015, as made final by the denial of his post-
sentence motion on March 9, 2016. We affirm.
The trial court accurately set forth the factual background of this case
as follows:
On February 5, 2014, at about 3:00 [p.m.], Nilzon Feliciano
[(“Father”)], along with his son Nilson Feliciano [(“Son”)],
approached Luis Serrano [(“Serrano”)] . . . in their vehicle on
the 3200 block of North Philip Street in Philadelphia. Their
reason for approaching Serrano was due to a disagreement that
began six months prior, regarding a faulty transmission sold by
Serrano to [Father]. That day, [Father] went to request a refund
in the amount of $400[.00] from Serrano, upon discovering in
the months before that the transmission did not function
properly. According to [Son], the two men had not originally
intended to confront [] Serrano, but happened to see him on the
block on their way to [Father]’s ex-wife’s home.
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[Father] testified that he knew [] Serrano due to mechanic work
that Serrano did for him and other residents in the
neighborhood, and because Serrano lived across the street from
his ex-wife. [Son] testified that he also knew who Appellant
was, from growing up in the neighborhood with him. [Son]
stated that he recognized Appellant when he approached him
during [the] incident, in part due to Appellant walking with a
limp.
Upon seeing Serrano on Philip Street, [Father] exited his vehicle
in order to confront Serrano and ask for the refund. After briefly
talking with [Father], Serrano walked into his home at 3252
North Philip Street. Moments later, Serrano returned with a
handgun in his hand, partially concealing the weapon within his
hoodie. Serrano then pointed the handgun towards [Father]’s
stomach area and stated, “Let's talk now.”
[Father] told [] Serrano that they did not have more to talk
about, and that he only wanted his money back. [Son] stepped
out of the car at that point. [Father] then told [Son] “Let’s go,
let’s go,” and the two of them drove around the corner in their
vehicle. [Father] parked the vehicle and both men exited on
Philip Street and Allegheny Avenue. The two men were planning
to go to the home of [Father]’s ex-wife, which was on Philip
Street towards the direction they had come from.
While walking up Philip Street, [Father and Son] were
approached by Appellant. . . . Appellant walked down from the
porch at 3252 Philip Street and onto the sidewalk across from
[Father] and [Son]. Appellant wore a red hoodie, and was
carrying an AK-47 in his arms. After [Father] briefly told
Appellant that he only wanted his money back, Appellant began
crossing Philip Street towards the complainants, and fired one
round towards them. [Father] hid between cars on the street,
while [Son] took off running. Standing in the middle of the
street, Appellant [fired] four more rounds in the direction of
[Son], who was running towards Allegheny [Avenue]. Neither
[Father] nor [Son] was hit by any bullets. [Son] sustained a
minor injury when he fell and scraped his knee.
Trial Court Opinion, 9/12/16, at 2-3 (internal citations omitted).
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The procedural history of this case is as follows. The Commonwealth
charged Appellant via two criminal informations with two counts each of
attempted murder,1 conspiracy to commit murder,2 aggravated assault,3
simple assault,4 possession of a firearm by a prohibited person,5 carrying a
firearm without a license,6 and carrying a firearm on the streets of
Philadelphia.7 The Commonwealth moved to consolidate Appellant’s two
cases with Serrano’s two cases. The trial court granted the consolidation
motion.
Trial commenced on May 4, 2015. On May 7, 2015, a jury convicted
Appellant of two counts each of attempted murder, conspiracy to commit
murder, carrying a firearm without a license, and carrying a firearm on the
streets of Philadelphia. The trial court found Appellant guilty of two counts
of possession of a firearm by a prohibited person. On October 29, 2015, the
trial court sentenced Appellant to an aggregate term of 13 to 28 years’
imprisonment. On November 8, 2015, Appellant filed a post-sentence
1
18 Pa.C.S.A. § 901, 2502.
2
18 Pa.C.S.A. § 903, 2502.
3
18 Pa.C.S.A. § 2702(a)(1).
4
18 Pa.C.S.A. § 2701(a).
5
8 Pa.C.S.A. § 6105(a)(1).
6
8 Pa.C.S.A. § 6106(a)(1).
7
8 Pa.C.S.A. § 6108.
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motion, which was denied by operation of law on March 9, 2016. This timely
appeal followed.8
Appellant presents three issues for our review:
1. Where the record is void of any evidence of an agreement
between Appellant and [] Serrano, did the Commonwealth offer
insufficient evidence to prove [c]riminal [c]onspiracy?
2. Did the [trial] court err by admitting into evidence an earlier
incident not involving Appellant that was irrelevant to Appellant’s
matter and thus unfairly and unduly prejudiced the jury against
Appellant?
3. Did the [trial] court violate [Pennsylvania Rule of Criminal
Procedure 582] by consolidating [] Serrano’s confrontation with
[Father and Son] with Appellant’s trial, even though that
confrontation was separate, apart[,] and irrelevant to
[A]ppellant’s matter?
Appellant’s Brief at 4.
In his first issue, Appellant argues that there was insufficient evidence
to convict him of conspiracy to commit murder. “Whether sufficient
evidence exists to support the verdict is a question of law; our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Giron, 155 A.3d 635, 638 (Pa. Super. 2017) (citation omitted). In
assessing Appellant’s sufficiency challenge, we must determine “whether,
viewing all the evidence admitted at trial in the light most favorable to the
[Commonwealth], there is sufficient evidence to enable the fact-finder to
8
On April 5, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On May 29, 2016, Appellant filed his concise statement.
On September 12, 2016, the trial court issued its Rule 1925(a) opinion. All
issues raised on appeal were included in Appellant’s concise statement.
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find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Sauers, 159 A.3d 1, 11 (Pa. Super. 2017) (citation
omitted). “[T]he evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all, part[,] or
none of the evidence presented.” Commonwealth v. Boniella, 158 A.3d
162, 165 (Pa. Super. 2017) (citation omitted).
In order to convict a defendant of conspiracy to commit an offense,
“the Commonwealth must establish 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. Dantzler, 135 A.3d
1109, 1114 (Pa. Super. 2016) (en banc) (internal quotation marks and
citation omitted). In this case, Appellant contends that there was
insufficient evidence to prove the first element of the offense, i.e., he argues
there was insufficient evidence that he entered into an agreement with
Serrano to murder Father and Son. “[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.” Commonwealth. v. Orie Melvin, 103 A.3d 1, 43
(Pa. Super. 2014) (citation omitted).
Appellant argues that there was insufficient time between Father’s and
Son’s confrontation with Serrano and Appellant opening fire on Father and
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Son for Appellant to have reached an agreement with Serrano. We disagree.
Appellant appeared on Serrano’s porch with an AK-47 and opened fire on
Father and Son approximately five to ten minutes after Father and Son
requested a refund from Serrano, and Serrano pointed a gun at Father.
Contrary to Appellant’s argument, this was a sufficient amount of time for
Appellant to reach an agreement with Serrano to murder Father and Son.
Appellant and Serrano could have reached an agreement with shared intent
through either visual or verbal cues. Accordingly, we conclude that there
was sufficient evidence to convict Appellant of conspiracy to commit murder.
In his second issue, Appellant argues that the trial court erred in
admitting evidence of Serrano’s confrontation with Father and Son. As this
Court has explained:
The admission of evidence is committed to the sound discretion
of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
Commonwealth v. Akrie, 159 A.3d 982, 986–987 (Pa. Super. 2017)
(citation omitted).
Appellant contends the evidence of Serrano’s confrontation with Father
and Son was irrelevant. Rule 401 defines relevant evidence as that which
“has any tendency to make a fact more or less probable than it would be
without the evidence[ and] the fact is of consequence in determining the
action.” Pa.R.Evid. 401. The confrontation between Serrano and Father and
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Son was relevant to Appellant’s case because that meeting was crucial
circumstantial evidence tending to prove that Serrano and Appellant reached
an agreement to murder Father and Son. Combined, what occurred during
that confrontation, the time between the confrontation and the shooting, the
location of the confrontation, the location of the shooting, and the parties’
relationship provided the jury with enough circumstantial evidence to
conclude that Serrano and Appellant reached an agreement to use firearms
to inflict harm on Father and Son. Without evidence regarding the
confrontation, there would have been significantly less evidence tending to
prove that Appellant and Serrano reached an agreement with shared
objectives.9 Moreover, the confrontation was key to showing Appellant’s
motive. That is, Appellant opened fire in retaliation for Father and Son
confronting Serrano about the defective transmission. The Pennsylvania
Rules of Evidence explicitly recognize that evidence which tends to show a
motive is relevant. See Pa.R.Evid. 404(b)(2). Accordingly, the trial court
did not abuse its discretion by admitting evidence related to the
confrontation between Serrano and Father and Son.
In his final issue, Appellant argues that the trial court erred in joining
his two informations with Serrano’s two informations for trial. We review a
trial court’s decision to join defendants for trial for an abuse of discretion.
9
To the extent Appellant argues that the evidence was inadmissible under
Pennsylvania Rule of Evidence 403, that argument is without merit for this
same reason. The probative value was extremely high while the risk of
unfair prejudice was low.
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Commonwealth v. O’Neil, 108 A.3d 900, 905 (Pa. Super. 2015), appeal
denied, 117 A.3d 296 (Pa. 2015). Joinder of defendants charged in separate
criminal informations is governed by Pennsylvania Rule of Criminal
Procedure 582(A)(2), which provides that, “Defendants charged in separate
indictments or informations may be tried together if they are alleged to have
participated in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.” Pa.R.Crim.P. 582(A)(2).
When considering a motion to joint defendants charged in separate
criminal informations, the trial court must consider:
(1) Whether the number of defendants or the complexity of the
evidence as to the several defendants is such that the trier of
fact probably will be unable to distinguish the evidence and apply
the law intelligently as to the charges against each defendant;
(2) Whether evidence not admissible against all the defendants
probably will be considered against a defendant notwithstanding
admonitory instructions; and (3) Whether there are antagonistic
defenses.
Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010),
appeal denied, 22 A.3d 1033 (Pa. 2011) (citation omitted).
As this Court recently explained, “joint trials are preferred where
conspiracy is charged. Nevertheless, severance may be proper where a
party can establish the co-defendants’ defenses are so antagonistic that a
joint trial would result in prejudice. However, the party seeking severance
must present more than a mere assertion of antagonism.” Commonwealth
v. Cole, 2017 WL 2889120, *4 (Pa. Super. July 7, 2017) (internal
alterations, ellipsis, and citation omitted); Commonwealth v. Serrano, 61
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A.3d 279, 285 (Pa. Super. 2013); see also Commonwealth v. Hartman,
31 Pa. Super. 364, 367 (1906). In this case, Appellant and Serrano were
charged with participating in the same act, i.e., conspiring to murder Father
and Son. Thus, Appellant must establish that Serrano’s defenses were so
antagonistic that a joint trial would result in prejudice.
Appellant fails to establish this fact. Appellant argues that Serrano’s
offenses were prejudicial because Serrano “brandished a firearm over an
insignificant argument.” Appellant’s Brief at 23. This, however, is less
egregious than firing five rounds from an AK-47 at two individuals over that
same insignificant argument. Accordingly, we conclude that the trial court
did not abuse its discretion by joining Appellant’s two criminal informations
with Serrano’s two criminal informations.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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