Com. v. Rivera, R.

J-S39022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RYAN RIVERA :
:
Appellant : No. 487 MDA 2022
Appeal from the Judgment of Sentence Entered January 19, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005661-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 09, 2023
Ryan Rivera (“Appellant”) appeals from the January 19, 2022 judgment
of sentence of an aggregate 40 to 80 years’ incarceration, imposed after he
was found guilty of one count each of third-degree murder, conspiracy to
commit third-degree murder, and carrying a firearm without a license.1
Appellant challenges the legality of his sentence, arguing that conspiracy to
commit third-degree murder should not be a cognizable offense in
Pennsylvania. After careful review, we affirm.
Appellant’s convictions stem from an incident on May 30, 2019, which
led the Lancaster Bureau of City Police to find Tyreek Gardner (“the victim”)
unresponsive on the sidewalk in front of 522 East Chestnut Street, suffering
from multiple gunshot wounds to his torso. The victim died later that same
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1 18 Pa.C.S. §§ 2502(c), 903, and 6106(a)(1), respectively.
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night at Lancaster General Hospital. Trial Court Opinion (“TCO”), 8/12/22, at
1. A forensic pathologist subsequently performed an autopsy on the victim
and determined that the cause of death was multiple gunshot wounds and
that the manner of death was homicide. Id.
The trial court summarized the evidence which led to Appellant’s
convictions in its Pa.R.A.P. 1925(a) opinion, as follows:
Detective Ryan Hockley interviewed the victim’s girlfriend,
Samantha Krizmencic, who was with the victim on the night of the
homicide. Krizmencic told Detective Hockley that shortly before
the shooting, she and the victim were walking westbound on
Fulton Street when they were confronted by a male known to her,
later identified as [Appellant], and another man she did not know,
later identified as Brian Paltan. Krizmencic stated that [Appellant]
wanted to fight the victim and tried to persuade the victim to come
closer. During this time, Krizmencic reported that [Appellant]
kept one hand in his pocket.
Detectives later canvassed the area and located numerous
surveillance cameras at different locations in the surrounding
area. By reviewing the video footage from these cameras,
detectives were able to ascertain the chronology of events leading
to the homicide. The footage showed that [Appellant] arrived in
the 300 block of East Fulton Street in a dark-colored Volkswagen
Passat. [Appellant] exited the Passat, and another unidentified
male entered the driver’s seat of the Passat.
[Appellant] can later be seen following the victim and Krizmencic
into the 300 block of East Fulton Street. The victim and
Krizmencic later split up while in the 200 block of North Shippen
Street. Shortly thereafter, the victim can be seen returning to the
300 block of East Fulton Street, at which point he is again
confronted by [Appellant] and Paltan. Paltan can be seen
attempting to punch the victim near the intersection of East Fulton
Street and Tobacco Avenue, at which point the victim runs north
onto Tobacco Avenue. [Appellant] and Paltan then chase the
victim down Tobacco Avenue, at which point all three men are out
of camera view.
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Video footage subsequently showed that [Appellant] and Paltan
run southbound on Tobacco Avenue back onto the 300 block of
East Fulton Street, while the victim turned westbound and exited
Tobacco Avenue on North Shippen Street, where he ran
southbound onto the 200 block of North Shippen Street. During
the time in which [Appellant] and Paltan chased the victim onto
Tobacco Avenue, a resident of the 300 block of East Fulton Street
reported hearing three gunshots and seeing two unknown males
feeling [sic] eastbound on the 300 block of East Fulton Street.
A later canvass of the area revealed three spent 9mm shell casings
and several bullet strikes in that block of Tobacco Avenue. Two
of the 9mm shell casings had head-stamps identifying them as
Federal-brand ammunition, while the other 9mm shell casing had
a head-stamp identifying it as GECO-brand ammunition. Neither
[Appellant n]or Paltan can be seen brandishing or openly carrying
any firearms in the video footage obtained by the detectives.
Further review of the collected footage showed that as the victim
ran southbound on the 200 block of North Shippen Street, he ran
past the same dark-colored Volkswagen Passat that brought
[Appellant] to the scene. The victim then ran onto East Chestnut
Street and head[ed] eastbound. During this time, [Appellant] and
Paltan are seen on surveillance footage at the intersection of North
Plum Street and East Fulton Street. A short time after the victim
ran past the dark-color[ed] Volkswagen Passat, [Appellant] can
be seen receiving some form of communication on his cell phone.
[Appellant] then looked southbound toward the intersection of
North Plum and East Chestnut Street, and point[ed] towards the
victim, who was observed running eastbound on Chestnut Street.
Immediately thereafter, the same dark-colored Volkswagen
Passat being operated by an unknown male pulls up to the corner
of East Fulton Street and North Plum Street. [Appellant] then
entered the front passenger seat and Paltan enter[ed] the rear
driver-side seat.
The dark-colored Volkswagen Passat drives onto East Chestnut
Street and heads eastbound in pursuit of the victim. The video
footage showed that shots were fire[d] when the dark-colored
Volkswagen Passat catches up to the victim in the 500 block of
East Chestnut Street. No other moving vehicles or pedestrians
were seen in the area. Four spent 9mm shell casings were located
in the parking lane of the 500 block of East Chestnut Street,
primarily in front of 526 and 528 East Chestnut Street, which is
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consistent with the [bullets] having been fired from a vehicle
moving eastbound. All four of the spent shell casings had head-
stamps identifying them as Federal-brand ammunition.
The spent shell casings from the 500 block of East Chestnut Street
and Tobacco Avenue were sent to the Pennsylvania State Police
Bureau of Forensic Services for firearm and toolmark analysis.
The two spent Federal-brand shell casings from Tobacco Avenue
and the four spent Federal-brand shell casings from the 500 block
of East Chestnut Street were all determined to have been
discharged from the same firearm, while the GECO-brand shell
casing was determined to be discharged from a different firearm.
Using the video footage and automobile registration records,
Detective Ginder identified the dark-colored Volkswagen Passat as
being registered to Brian Paltan. Paltan is a known associate of
[Appellant] and was the only male who is not [Appellant’s] family
… listed on [Appellant’s] visitation list when [Appellant] was
incarcerated between 2016 and 2019. On June 11, 2019, police
executed a search warrant on Paltan’s Volkswagen Passat. In the
trunk, police located a 9mm handgun magazine fully loaded with
GECO-brand 9mm ammunition, identical to the spent shell casing
located on Tobacco Avenue.
When Paltan’s vehicle was seized on June 11, 2019, Paltan agreed
to a voluntary interview with Detective Ginder. Paltan indicated
to Detective Ginder that he is the only person who ever drives that
car. He also admitted to operating that vehicle in the area of the
homicide on the night of May 30, 2019. He specifically recounted
parking the Volkswagen Passat in the 200 block of North Shippen
Street, where he placed a phone call to a friend whose name he
refused to provide to police, and then subsequently driving
eastbound on East Chestnut Street after leaving North Shippen
Street. Paltan denied that anyone else was in the car with him
that night and denied any knowledge of the homicide.
On July 29, 201[9], Detective … Hockley interviewed a woman
identified as India Gonzalez. Gonzalez is personally familiar with
… Paltan, as well as [Appellant]. During the interview, Gonzalez
was shown several photographs of still images taken from video
surveillance obtained at the time of the homicide. Based on
physical appearance, mannerisms, and clothing descriptions
observed in the still photographs, Gonzalez identified the two men
who confronted the victim as … Paltan and [Appellant].
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Id. at 1-5 (unnecessary capitalization omitted).
On November 15, 2021, after a jury trial, Appellant was found guilty of
one count each of third-degree murder (Count I), conspiracy to commit third-
degree murder (Count II), and carrying a firearm without a license (Count IV).
Id. at 5. On January 19, 2022, he was sentenced to the following: 20 to 40
years’ incarceration on Count I; 20 to 40 years’ incarceration on Count II, to
run consecutively to Count I; and 3½ to 7 years’ incarceration on Count IV,
to run concurrent with Count II. Appellant’s sentence amounted to an
aggregate of 40 to 80 years’ incarceration. Id.
Appellant filed a motion to reconsider his sentence on January 20, 2022,
followed by a supplemental post-sentence motion on March 10, 2022, both of
which were denied by the trial court on March 21, 2022. On March 22, 2022,
Appellant filed a timely, notice of appeal, followed by a timely, court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
trial court filed its Rule 1925(a) opinion on August 12, 2022. Herein, Appellant
presents the following sole issue for our review: “Did the sentencing court
impose an illegal sentence for conspiracy to commit third[-]degree murder
when said crime should not be a cognizable offense under Pennsylvania
[law]?” Appellant’s Brief at 4.2
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2 In his Rule 1925(b) concise statement, Appellant also challenged the
sufficiency of the evidence to support his conviction of conspiracy to commit
third-degree murder; however, he does not raise this issue on appeal.
Accordingly, we deem any sufficiency claim regarding Appellant’s convictions
(Footnote Continued Next Page)
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Appellant’s claim implicates the legality of his sentence. It is well-
settled that “[i]ssues relating to the legality of a sentence are questions of
law. Our standard of review over such questions is de novo and our scope of
review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super.
2014) (internal brackets, ellipses, and citation omitted). After reviewing the
record, we discern that Appellant raises this issue for the first time on appeal.
Generally, an issue that was not properly preserved before the trial court
would be deemed waived. See Commonwealth v. Thorne, 276 A.3d 1192,
1196 (Pa. 2022). However, “an appellate court can address an appellant’s
challenge to the legality of his sentence even if that issue was not preserved
in the trial court; indeed, an appellate court may even raise and address such
an issue sua sponte.” Id. (internal brackets and citation omitted). Thus, we
proceed with reviewing the merits of Appellant’s claim.
Instantly, Appellant posits that,
in order to convict [him] of conspiracy to commit third[-]degree
murder, the Commonwealth was required to prove that [he], with
[the] intent of promoting or facilitating third[-]degree murder,
agreed with [Paltan] that one or both of them would engage in
conduct which constitutes third[-]degree murder, or engage in an
attempt or solicitation to commit third[-]degree murder.
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to be waived. See Pa.R.A.P. 2116(a) (“No question will be considered unless
it is stated in the statement of questions involved or is fairly suggested
thereby.”); Wirth v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014) (“[Rule
2116(a)] is to be considered in the highest degree mandatory, admitting of
no exception; ordinarily no point will be considered which is not set forth in
the statement of questions involved or suggested thereby.”).
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Appellant’s Brief at 9. Restated, Appellant argues that “the Commonwealth
was required to prove that [he] and [Paltan] intended to commit an
unintentional killing.” Id. He reasons that “an individual cannot conspire to
commit murder of the … third degree because a conspiracy to commit said
crime[] would require proof that the individual intended to perpetrate an
unintentional killing.” Id. at 10. Appellant acknowledges that our Supreme
Court rejected this very argument in Commonwealth v. Fisher, 80 A.3d
1186 (Pa. 2013). However, in light of pre-Fisher caselaw recognizing the
“logical impossibility” of intending to commit an unintentional act, he asks this
Court to reconsider the Fisher decision and to determine that “conspiracy to
commit third[-]degree murder is not a cognizable offense under Pennsylvania
law.” Id. at 9-10.
The Crimes Code defines conspiracy as follows:
(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.
…
(e) Overt act.—No person may be convicted of conspiracy to
commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him
or by a person with whom he conspired.
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18 Pa.C.S. § 903(a), (e). Thus,
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. This overt act need
not be committed by the defendant; it need only be committed by
a co-conspirator.
Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citations
and quotation marks omitted).
Third-degree murder is defined by the Crimes Code as “all other kinds
of murder” other than first-degree murder or second-degree murder. 18
Pa.C.S. § 2502(c). Importantly, we note that Section 2502(c) does not set
forth the requisite mens rea for third-degree murder; however, Section 302(c)
of the Crimes Code provides: “When the culpability sufficient to establish a
material element of an offense is not prescribed by law, such element is
established if a person acts intentionally, knowingly[,] or recklessly with
respect thereto.” 18 Pa.C.S. § 302(c). “The elements of third-degree murder,
as developed by case law, are a killing done with legal malice.”
Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa. Super. 2009) (citation
omitted). “Malice exists where there is a particular ill-will, and also where
‘there is a wickedness of disposition, hardness of heart, wanton conduct,
cruelty, recklessness of consequences[,] and a mind regardless of social
duty.’” Id. (citation omitted).
In Fisher, the appellees argued that because conspiracy is a specific
intent crime and third-degree murder involves an unintentional killing, then a
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person cannot conspire to commit third-degree murder because one cannot
intend to commit an unintentional act. Fisher, 80 A.3d at 1190. This is the
same syllogistic argument made by Appellant in the present case. The Fisher
Court expressly rejected the appellees’ argument, explaining that the
appellees had misstated the elements of third-degree murder. Id. at 1191.
True, the intent to kill is a defined element of first[-]degree
murder—this does not mean an element of third[-]degree murder
is the polar opposite of intent to kill, such that the Commonwealth
must prove a lack of intent to kill to convict of third[-]degree
murder. The Commonwealth has no such obligation; evidence of
intent to kill is simply irrelevant to third[-]degree murder. The
elements of third[-]degree murder absolutely include an
intentional act, but not an act defined by the statute as intentional
murder. The act sufficient for third[-]degree [murder] is still a
purposeful one, committed with malice, which results in death—
clearly, one can conspire to such an intentional act.
Id. (emphasis in original).
After reviewing the relevant statutory provisions and caselaw, our
Supreme Court concluded that “the absence of intent to kill does not preclude
a defendant from being convicted of conspiracy to commit third[-]degree
murder.” Id. at 1195. It emphasized that “[t]hird[-]degree murder is not by
definition an unintentional killing; it is a malicious killing without proof that
the specific result intended from the actions of the killer was the death of the
victim.” Id. (citation omitted). The Court clarified:
If a defendant acts with his co-conspirators in brutally attacking
the victim with the intention of killing him, he conspires to commit
first[-]degree murder; if the defendant performs the same action
but does not care whether the victim dies or not, he conspires to
commit third[-]degree murder. In the latter example, the
defendant did not … intend to aid an unintentional murder; rather,
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he intended to aid a malicious act resulting in a killing. Malice is
not the absence of any intent, just the specific intent to kill. Where
… the defendant intends the underlying act … which results in
death, the evidence supports the charge of conspiracy to commit
third[-]degree murder.
Id. (emphasis in original). Accordingly, the Fisher Court held that
“conspiracy to commit third[-]degree murder is a cognizable offense.” Id.
This Court has no authority to overrule Fisher. As an intermediate
appellate court, we “generally lack[] the authority to determine that [the
Supreme] Court’s decisions are no longer controlling.” Walnut Street
Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa.
2011) (citing Commonwealth v. Jones, 554 A.2d 50, 51 (Pa. 1989)).
Instead, we “are duty bound to effectuate [the Supreme] Court’s decisional
law.” Id. Therefore, we have no power to grant relief.
Here, the evidence supports a finding that Appellant and Paltan agreed
to engage in the intentional, malicious hunting and gunning down of the
victim, without regard to the consequences of their acts. As their actions
resulted in the victim’s death, Appellant’s conviction of conspiracy to commit
third-degree murder was appropriate. Accordingly, we affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/09/2023
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