Com. v. Thomas, M.

J-S80034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUIS THOMAS :
:
Appellant : No. 3155 EDA 2017
Appeal from the Judgment of Sentence April 18, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003032-2016
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 11, 2019
Appellant Marquis Thomas appeals from the judgment of sentence
imposed following his convictions for two counts of conspiracy and one count
each of first-degree murder, robbery, carrying a firearm without a license,
carrying a firearm on public streets in Philadelphia, and possessing
instruments of crime (PIC).1 Appellant challenges the sufficiency and weight
of the evidence supporting his convictions, and he claims that the court
imposed an illegal sentence for one count of conspiracy. We affirm Appellant’s
convictions, vacate the sentence for conspiracy to commit first-degree
murder, and remand for resentencing.
The trial court summarized the relevant facts of this case as follows:
____________________________________________
1 18 Pa.C.S. §§ 903, 2502(a), 3701(a)(1)(i), 6106, 6108, and 907,
respectively.
J-S80034-18
On October 21, 2015, Lucas Weissinger received a call from his
best friend, Daquan Medina [(the victim)] at around 4:00 or 5:00
p.m. [The victim] asked Lucas for a ride later to meet Remiro
Maldonado. Lucas testified that he knew Mr. Maldonado from the
neighborhood and that they all used to hang out at the park. Later
that evening, Lucas picked up [the victim] from his house in his
blue-green Chrysler 300M. After Lucas picked up [the victim],
[the victim] told Lucas that he was going to sell Mr. Maldonado
marijuana. Lucas drove [the victim] back to his house so he could
pick up marijuana to sell to Mr. Maldonado.
After driving around, Lucas pulled into an alleyway behind a park
by Wellington Street. [The victim] left his gun and the marijuana
in the car and started walking down the alleyway.[fn1] Lucas then
started to drive up toward [the victim] and saw a car with Mr.
Maldonado in the driver’s seat, Appellant in the passenger seat
and [the victim] and another individual seated in the back. Lucas
then gave Mr. Maldonado the marijuana. Appellant told Lucas to
pull up and turn off his lights. Shortly after, Lucas saw Mr.
Maldonado and Appellant pull guns on [the victim] as he was
seated in the back seat of their car. Lucas panicked, hopped out
of the car and then heard gunshots and saw muzzle flashes in the
car. Lucas then shot [the victim’s] gun once, hopped in his car,
sped to the end of the alleyway, hopped out again and fired
another round. He then noticed the neighbors were outside so he
hopped in his car again, drove away, went down to the river and
threw his gun away. Shortly after, Lucas went to his mother’s
house to pick up her van and to meet up with detectives. After
officers apprehended Appellant, Lucas identified him as one of the
individuals in the car.
[fn1]Lucas admitted that he lied to the police initially [when
he told them that he drove up the alleyway and dropped the
victim] off at [Mr. Maldonado’s] car because he was nervous
and scared because he did not want the police to think that
he was selling marijuana.
On the night in question, Mr. John Maule lived on the 7100 block
of Walker Street. On that night, at about 9:00 p.m. he and his
fiancé were sitting in their living room watching a movie when
they heard what they believed at first was fireworks. Mr. Maule
realized it was louder than fireworks so he got up to take a look
out the back of his house and saw a green sedan stopped in the
alleyway. He saw a white or Hispanic male in his twenties get out
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of the sedan, point a handgun down the alleyway and start firing.
Mr. Maule then jumped down to the ground. He waited two or
three minutes before he went outside, and saw neighbors exiting
their respective houses. Mr. Maule saw people standing around a
male face-down, lying on the ground. They turned him over and
noticed blood coming out of his mouth and that he was not
breathing. Mr. Maule’s fiancé started to perform CPR on the male
but there was no sign of life. After the police responded to the
scene, they took Mr. Maule in for an interview.
Ms. Patricia Tabor lived in the area of the 7100 block of Walker
Street on the night in question. Ms. Tabor was in her living room
around 9:00 p.m. on that night. She looked out her window and
noticed a car parked behind her house. She looked out a few
minutes later and saw that the car was still there. She noticed
that there was someone in the passenger seat and someone
sitting in the backseat because she saw a light from a cellphone.
When she went back to her living room, she heard three or four
loud pops which she believed were fireworks at first. She then
went to her dining room window, looked out and saw someone
running into the back seat on the passenger side and another
person running around on the driver’s side. She identified the
vehicle as a “dark SUV.” The vehicle left the scene quickly
southbound toward Princeton Avenue.
Shortly after the shooting, Officer Matthew Winscom arrived on-
scene with his partner. Once they determined that the area was
secure, he and his partner drove up Walker Street all the way to
Cottman Avenue and made a right-hand turn onto Cottman at
around 9:35 p.m. Officer Winscom and his partner saw an
unknown black male attempting to enter a house. The male
looked in the officers’ direction and tried to pull on the door handle
to get inside the house. He looked back twice, grabbed for his
waistband and started running westbound on Cottman Avenue.
Officer Winscom’s partner proceeded on foot pursuit of the male.
During the chase, his partner tased the male then placed him in
handcuffs. Officer Winscom identified this male as Appellant.
Once Officer Winscom returned to his vehicle, he asked the
victim’s mother, who was still in his car, to get the individual she
was on the phone with to come identify the male they just
handcuffed. Two other officers picked up the witness[, Lucas
Weissinger,] and had them meet on Walker Street where he
positively identified Appellant as one of the males in the vehicle
during the shooting.
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J-S80034-18
* * *
Devon Campbell testified as an expert in the forensic analysis of
cell phones. Ms. Campbell works for the Philadelphia District
Attorney’s Office in the Technical Services Unit as a mobile device
forensic examiner. Ms. Campbell’s job is to investigate and
analyze cell phones related to cases that come in the office. She
received her master’s degree in digital forensics. Ms. Campbell
has testified as an expert in the forensic analysis of cell phones
four times previously in the Court of Common Pleas in Philadelphia
and has never been disqualified to testify as an expert.
Ms. Campbell first provided a string of messages between [the
victim] and Mr. Maldonado from [the victim’s] phone. On the day
in question, at 2:27:43 p.m., [the victim] received an incoming
message that was read at 2:32:57 p.m. stating, “Bro im ready for
yu.” Next, there was an outgoing message to the same number
on the same date at 2:33:06 p.m. stating, “What u wanted.” From
there, there were two incoming messages, one at 2:33:58 p.m.
that was read at 2:34 p.m. stating, “Whole jawn I got 3025 rite
now,” and then another incoming message at 5:49:49 p.m. that
was read at 5:50:23 p.m. stating, “Bro ma folks need 2 they good
ppls.” There was another outgoing text at 7:34:25 p.m. saying,
“Ur folks got the cash bro cause this alot of money bro.” Next,
there was an incoming text message at 7:35:08 p.m. on the same
date that was read at 7:40:59 p.m. stating, “Yea bro im here.”
Then, there was an outgoing message, at 7:45:59 p.m. saying,
“Grabbin the bud bro my fault Ill be there.” Next, there is an
outgoing message sent at 8:14:59 p.m. stating, “Wya.”[fn2] Next,
there was another outgoing message at 8:49:37 p.m. stating,
“Walking dwn now.”
[fn2] “Wya” is a shorthand for “where you at.”
Ms. Campbell then provided a string of messages between [the
victim] and Lucas from [the victim’s] phone. [The victim] received
an incoming message from Lucas at 9:05:24 p.m. stating, “Did u
count the bread?” Then there was an outgoing message to Lucas
stating, “I just counted half,” at 9:05:52 p.m. There was another
incoming message from Lucas at 9:10:46 p.m. that stated, “Have
the window down.” There were no more reported phone calls or
text messages that came from that phone.
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J-S80034-18
Trial Ct. Op., 7/19/18, at 3-8 (record citations omitted).
On April 1, 2016, the Commonwealth filed a criminal information,
charging Appellant with multiple offenses related to the shooting. Following a
joint trial with Maldonado, a jury convicted Appellant of the aforementioned
crimes. On April 18, 2017, the trial court sentenced Appellant to an aggregate
term of life imprisonment. Specifically, the court imposed concurrent terms
of life imprisonment for the first-degree murder and conspiracy to commit
first-degree murder convictions.2
Appellant timely filed a post-sentence motion on April 26, 2017,
challenging the weight and sufficiency of the evidence supporting his
convictions. On August 28, 2017, the trial court entered an order denying the
post-sentence motion by operation of law.
Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. The court
filed a responsive opinion, concluding Appellant was not entitled to relief on
his weight and sufficiency claims. The court explained that Lucas Weissinger
provided credible eyewitness testimony for the Commonwealth to prove all
elements of the offenses at issue.
____________________________________________
2 The court also sentenced Appellant to concurrent terms of ten to twenty
years’ imprisonment for robbery, three and one-half to seven years’
imprisonment for carrying a firearm without a license, two and one-half to five
years’ imprisonment for carrying a firearm in Philadelphia, two and one-half
to five years’ imprisonment for PIC, and ten to twenty years’ imprisonment
for conspiracy to commit robbery.
-5-
J-S80034-18
On appeal, Appellant raises four questions, which we have reordered as
follows:
[1.] Was the evidence insufficient as a matter of law to establish
. . . Appellant’s guilt beyond a reasonable doubt on all charges
because the evidence presented at trial by the sole eyewitness
was unreliable and not credible?
[2.] Did the trial court commit an abuse of discretion by ruling
that the verdicts were not against the weight of the evidence?
[3.] Did the Commonwealth establish by sufficient evidence that
Appellant committed the crime of criminal conspiracy to commit
first-degree murder and robbery because it failed to provide that
he reached an agreement to engage in criminal conduct with any
other person?
[4.] Is the sentencing of life imprisonment imposed on the
conspiracy to commit first-degree murder conviction illegal and
must it be vacated?
Appellant’s Brief at 3 (full capitalization omitted).
In his first three issues, Appellant attacks the reliability of Weissinger’s
testimony. Id. at 26-27, 36-37. Specifically, Appellant complains that
Weissinger, the only witness to identify Appellant as a shooter, smoked
marijuana on the night in question and “admitted that he lied to the police . .
. about crucial aspects of the case to protect himself” from criminal charges.
Id. at 36. Regarding Weissinger’s identification, Appellant emphasizes “the
first time he ever observed [A]ppellant was while he (Weissinger) was inside
a car looking in the mirror of his car at another car some distance away.” Id.
at 26. Moreover, Weissinger never met Appellant before the night of the
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J-S80034-18
shooting, and Weissinger “observed [A]ppellant for [a] very short time in the
dark.” Id. at 26.
Appellant argues that Weissinger’s testimony “was simply not believable
or credible because it is inherently inconsistent and contradictory and . . . the
evidence failed to demonstrate that [A]ppellant shot the victim or that he was
an accomplice or co-conspirator of the person or persons who did kill the
victim.” Id. at 21. Appellant also contends that the jury’s verdicts shock the
conscience in light of the concerns about Weissinger’s credibility; therefore,
“the trial court made a fundamental error in denying [A]ppellant’s post-
sentence weight of the evidence claim.” Id. at 36.
Regarding his conspiracy convictions, Appellant acknowledges that the
Commonwealth’s evidence demonstrated that he acted in concert with others
on the night of the shooting. Id. at 34. Nevertheless, Appellant insists that
the Commonwealth “presented no evidence that [A]ppellant and those other
persons spoke about killing or robbing the victim.” Id. Absent more,
Appellant maintains the Commonwealth failed to prove the existence of a
conspiratorial agreement and shared criminal intent beyond a reasonable
doubt. Id.
We apply the following standard when reviewing a sufficiency claim:
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
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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 fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation and
brackets omitted).
Our standard of review regarding challenges to the weight of the
evidence is as follows:
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the [fact-finder] is
free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses, and a new trial based on a weight
of the evidence claim is only warranted where the [fact-finder’s]
verdict is so contrary to the evidence that it shocks one’s sense of
justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s discretion
was properly exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable abuse of
discretion.
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
omitted).
We have explained that
[a] new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would have
arrived at a different conclusion. Rather, the role of the trial court
is to determine that notwithstanding all the evidence, certain facts
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are so clearly of greater weight that to ignore them, or to give
them equal weight with all the facts, is to deny justice. A motion
for a new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient evidence
to sustain the verdict; thus the trial court is under no obligation
to view the evidence in the light most favorable to the verdict
winner.
Id. (citation omitted).
“To convict a defendant of first-degree murder, the jury must find that
(1) a human being was unlawfully killed; (2) the defendant is responsible for
the killing; and (3) the defendant acted with a specific intent to kill.”
Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008) (citations
omitted). “Specific intent to kill can be established through circumstantial
evidence, such as the use of a deadly weapon on a vital part of the victim’s
body.” Id. (citation omitted).
Further, 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.
18 Pa.C.S. § 903(a).
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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 (citation omitted).
“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) (citation omitted). “In the case of a
conspiracy to commit homicide, each member of the conspiracy can be
convicted of first-degree murder regardless of who inflicted the fatal wound.”
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Commonwealth v. Collins, 70 A.3d 1245, 1250 (Pa. Super. 2013) (citation
omitted).
After careful review of the record in this matter, we adopt the trial
court’s reasoning regarding Appellant’s sufficiency and weight claims.3 See
Trial Ct. Op., 7/19/18, at 8-18. Accordingly, we conclude that the
Commonwealth presented sufficient evidence to support each of Appellant’s
convictions, and that the court did not abuse its discretion in denying
Appellant’s challenge to the weight of the evidence. See Palmer, 192 A.3d
at 89; Landis, 89 A.3d at 699.
In his fourth issue, Appellant claims that the trial court did not have
statutory authority to impose a term of life imprisonment for his conspiracy to
commit first-degree murder conviction.4 Appellant’s Brief at 38. The
____________________________________________
3 To the extent Appellant argues that Weissinger based his identification on
what he saw in the side view mirror, we emphasize that this was not the only
opportunity for Weissinger to view Appellant. Significantly, Weissinger
testified that he initially drove down the alleyway, stopped alongside Appellant
and Maldonado’s vehicle, and tossed the marijuana to Maldonado through the
window. See N.T. Trial, 4/11/17, at 122. Weissinger was close enough to
lean over and shake Maldonado’s hand through the window. Id. at 120. At
that point, Appellant spoke directly to Weissinger stating, “Cut your lights off,
pull up.” Id. Appellant’s instructions left Weissinger “shocked” and “scared,”
but he complied and pulled up, approximately two and one-half car lengths in
front of Maldonado’s vehicle. Id. at 125, 129. Only after pulling up did
Weissinger rely on the side view mirror to observe the activity in Maldonado’s
vehicle. Id. at 129. Further, lights from a playground adjacent to the
alleyway helped to illuminate the scene and aid in Weissinger’s ability to
identify Appellant. Id. at 131.
4Appellant did not raise this claim in his post-sentence motion or Rule 1925(b)
statement.
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J-S80034-18
Commonwealth concedes that Appellant’s conspiracy sentence requires
amendment. Commonwealth’s Brief at 18.
“A claim that implicates the fundamental legal authority of the court to
impose a particular sentence constitutes a challenge to the legality of the
sentence,” which is non-waivable where the reviewing court has jurisdiction.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013). “Where a
case requires a correction of sentence, this Court has the option of either
remanding for resentencing or amending the sentence directly.”
Commonwealth v. Klein, 795 A.2d 424, 430 (Pa. Super. 2002) (citation and
brackets omitted).
Instantly, Section 1102(c) of the Crimes Code states that “a person who
has been convicted of . . . conspiracy to commit murder . . . may be sentenced
to a term of imprisonment which shall be fixed by the court at not more than
forty years.” 18 Pa.C.S. § 1102(c). Therefore, the sentence of life
imprisonment imposed for conspiracy to commit first-degree murder is illegal.
See 18 Pa.C.S. § 1102(c). Accordingly, we vacate Appellant’s judgment of
sentence for conspiracy to commit first-degree murder and remand for
resentencing. See Klein, 795 A.2d at 430.
In sum, we affirm Appellant’s convictions, but vacate the sentence for
conspiracy to commit first-degree murder, and remand for resentencing. We
affirm the judgment of sentence in all other respects.
Judgment of sentence affirmed in part and vacated in part. Case
remanded with instructions. Jurisdiction relinquished.
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J-S80034-18
P.J.E., Bender joins the memorandum.
Judge Bowes files a concurring and dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/19
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0025_Opinion r
it_ Circulated 02/04/2019 01:41 PM
FILED
IN THE COURT OF COMMON PLEAS
FOR THE-COUNTY OF PHILADELPHIA 2018JUL 19 AM II: 18
CRIMINAL TRIAL DIVISION
FlRST �IU[HCL�.l. !Jl'.: 1 RICT
COMMONWEALTH NO.: CP-51-CR-0003032-20t6rnhs '(l__VMllf\
OF PENNSYLVANIA
v. Superior Court No.:
Jet27 EDA 2819 •
MARQUIS THOMAS
-------------------- CP-51-CR-ooo"3032-2016Com_m v. THOMAS. MARQUIS --
Opinion
I
OPINION
II I II I I II 111111111111111
ANHALT, J. 8138618401
Appellant in the above-captioned matter appeals this Court's judgment regarding his
conviction for First-Degree Murder, 18 Pa.C.S.A. § 2502(a), Conspiracy to Commit Murder, 18
Pa.C.S.A. § 903, Robbery - Inflict Serious Bodily Injury, 18 Pa.C.S.A. § 3701(a)(I)(i),
Conspiracy to Commit Robbery, 18 Pa.C.S.A. § 903, Firearms not to be carried without a license
("VUFA 6106"), 18 Pa.C.S.A. § 6106(a)(1), Carrying firearms on public streets or public
property in Philadelphia ("VUFA 6108"), 18 Pa.C.S.A. § 6108 and Possessing and Instrument of
Crime ("PIC"), 18 Pa.C.S.A. § 907(a). The Court submits the following Opinion in accordance
with the requirements of Pa.R.A.P. l 925(a). For the reasons set forth herein, the Court holds that
the judgment of conviction should be affirmed.
PROCEDURAL HISTORY
On October 22, 2015, police arrested and charged Appellant, Marquis Thomas with
numerous offenses stemming from a shooting incident that occurred on October 21, 2015.
Following a jury trial before this Court, on April 18, 2017, a jury found Appellant guilty of First-
Degree Murder (Hl), Conspiracy to Commit Murder (HI), Robbery (Fl), Conspiracy to Commit
.
• I
Robbery (Fl), VUFA 6106 (F3), VUFA 6108 (Ml) and PIC (Ml). On that date, this Court
sentenced Appellant to life in prison without the possibility of parole.
Appellant filed a timely notice of appeal on September 26, 2017. On September 28, 2017,
this Court ordered Appellant pursuant to Pa. R.A.P. 1925(b) to file with the Court a Concise
Statement of Matters Complained of on Appeal. On October 18, 2017, Appellant filed a
Statement of Errors Complained of on Appeal. On December 12, 2017, the Superior Court
remanded the case to the Trial Court for a Grazier hearing. On January 9, 2018, Appellant filed a
prose Post Conviction Relief Act ("PCRA") petition. On April 13, 2018, Gerald Stein entered
his appearance to represent Appellant, making a Grazier hearing unnecessary. On June 11, 2018,
the Court granted Appellant's motion to withdraw his PCRA petition.
Appellant raises the following issues on appeal:
1. That the defendant is entitled to an arrest of judgment as the evidence was insufficient to
support the verdict which found the Defendant guilty of murder in the first degree,
robbery - inflict serious bodily injury, possession of an instrument of crime (PIC),
violation of the Uniform Firearms Act (VUFA) 6106 and 6108, conspiracy to commit
murder and conspiracy to commit robbery. The evidence was insufficient as to all
charges. The evidence failed to sustain the elements of each and every crime and, when
taken as a whole, was grossly unreliable and would lead to a verdict being based on
surmise and conjecture, all in violation of Commonwealth v. Karkaria, 625 A.2d 1167(Pa. 1993 ); the evidence is insufficient and the defendant is entitled to an arrest of
judgment.
2. The defendant should receive a new trial on all of the above-stated charges, as the verdict
is against the weight of evidence. In this review, the Court need not grant the
2
·�
Commonwealth every inference but may review the evidence anew, especially with
regard to the evidence and the law concerning mere presence, and believed self-defense
which applied in the instant matter. The evidence simply does not establish guilt beyond
a reasonable doubt with regard to all charges, including to murder in the first degree and
robbery.
3. The Commonwealth did not prove the element of malice and, hence, cannot establish
murder. The Commonwealth did not prove a specific intent to kill. A defendant is entitled
to a new trial where the verdict shocks one's sense of justice. See Commonwealth v.
Laing, 456 A.2d 204 (Pa. 1983).
4. The Commonwealth did not prove that the Defendant was either a principal, accomplice
or a conspirator with regard to any of the crimes charged. The Commonwealth did not
establish by sufficient evidence that the Defendant had reached an agreement to engage
in criminal conduct with any other person on the day of the incident. Mere association or
presence at the scene of a crime is insufficient to establish a conspiracy. See, In the
Interest ofJF., 714 A.2d 467 (Pa. Super. 1998), cert. denied 528 U.S. 814 (1999).
5. The Trial Court erred in not giving the jury a charge on manslaughter or on self-
defense/perceived self-defense. The testimony at trial clearly showed that at least one of
the witnesses opened fire at the scene and that witness admitted on the stand to firing his
weapon at the scene. The jury should have been charged on manslaughter and self-
defense.
FACTUAL HISTORY
On October 21, 2015, Lucas Weissinger received a call from his best friend, Daquan
Medina ("Quan") at around 4:00 or 5:00 p.m. Notes of Testimony (N.T.) 4/11/17 at 97. Quan
asked Lucas for a ride later to meet Remiro Maldonado. Id. Lucas testified that he knew Mr.
3
Maldonado from the neighborhood and that they all used to hang out at the park. Id. at 98. Later
that evening, Lucas picked up Quan from his house in his blue-green Chrysler 300M. Id. at IO 1-
I 02. After Lucas picked up Quan, Quan told Lucas that he was going to sell Mr. Maldonado
marijuana. Id. at 102-103. Lucas drove Quan back to his house so he could pick up marijuana to
sell to Mr. Maldonado. Id. at 110.
After driving around, Lucas pulled into an alleyway behind a park by Wellington Street.
Id. at 115. Quan left his gun and the marijuana in the car and started walking down the
alleyway.' Id. at 116. Lucas then started to drive up toward Quan and saw a car with Mr.
Maldonado in the driver's seat, Appellant in the passenger seat and Quan and another individual
seated in the back. Id. at 120. Lucas then gave Mr. Maldonado the marijuana. Id. Appellant told
Lucas to pull up and tum off his lights. Id. at 128. Shortly after, Lucas saw Mr. Maldonado and
Appellant pull guns on Quan as he was seated in the back seat of their car. Id. at 129. Lucas
panicked, hopped out of the car and then heard gunshots and saw muzzle flashes in the car. Id. at
129, 136. Lucas then shot Quan's gun once, hopped in his car, sped to the end of the alleyway,
hopped out again and fired another round. Id. at 130. He then noticed the neighbors were outside
so he hopped in his car again, drove away, went down to the river and threw his gun away. Id.Shortly after, Lucas went to his mother's house to pick up her van and to meet up with
detectives. Id. at 142. After officers apprehended Appellant, Lucas identified him as one of the
individuals in the car. Id. at 144.
On the night in question, Mr. John Maule lived on the 7100 block of Walker Street. Id. at
61. On that night, at about 9:00 p.m. he and his fiance were sitting in their living room watching
I
Lucas admitted that he lied to the police initially about dropping Quan off at the car because he
was nervous and scared because he did not want the police to think that he was selling marijuana.
Id. at 207-208.
4
a movie when they heard what they believed at first was fireworks. Id. at 65. Mr. Maule realized
it was louder than fireworks so he got up to take a look out the back of his house and saw a green
sedan stopped in the alleyway. Id. He saw a white or Hispanic male in his twenties get out of the
sedan, point a handgun down the alleyway and start firing. Id. at 65-66. Mr. Maule then jumped
down to the ground. Id. at 70. He waited two or three minutes before he went outside, and saw
neighbors exiting their respective houses. Id. at 71. Mr. Maule saw people standing around a
male face-down, lying on the ground. Id. They turned him over and noticed blood coming out of
his mouth and that he was not breathing. Id. at 71- 72. Mr. Maule' s fiance started to preform CPR
on the male but there was no sign of life. Id. at 72. After the police responded to the scene, they
took Mr. Maule in for an interview. Id. at 76-77.
Ms. Patricia Tabor lived in the area of the 7100 block of Walker Street on the night in
question. N.T. 4/12/17 at 49. Ms. Tabor was in her living room around 9:00 p.m. on that night.
Id. She looked out her window and noticed a car parked behind her house. Id. She looked out a
few minutes later and saw that the car was still there. Id. at 49-50. She noticed that there was
someone in the passenger seat and someone sitting in the backseat because she saw a light from a
cellphone. Id. at 52. When she went back to her living room, she heard three or four loud pops
which she believed were fireworks at first. Id. at 54-55. She then went to her dining room
window, looked out and saw someone running into the back seat on the passenger side and
another person running around on the driver's side. Id. at 55. She identified the vehicle as a "dark
SUV." Id. at 52. The vehicle left the scene quickly southbound toward Princeton Avenue. Id. at
56-57.
Shortly after the shooting, Officer Matthew Winscom arrived on-scene with his partner.
Id. at 130. Once they determined that the area was secure, he and his partner drove up Walker
5
Street all the way to Cottman Avenue and made a right-hand turn onto Cottman at around 9:35
p.m. Id. Officer Winscom and his partner saw an unknown black male attempting to enter a
house. Id. at 130-131. The male looked in the officers' direction and tried to pull on the door
handle to get inside the house. Id. at 133. He looked back twice, grabbed for his waistband and
started running westbound on Cottman Avenue. Id. at 134. Officer Winscom's partner proceeded
on foot pursuit of the male. Id. During the chase, his partner tased the male then placed him in
handcuffs. Id. Officer Winscom identified this male as Appellant. Id. Once Officer Winscom
returned to his vehicle, he asked the victim's mother, who was still in his car, to get the
individual she was on the phone with to come identify the male they just handcuffed. Id. at 145.
Two other officers picked up the witness and had them meet on Walker Street where he
positively identified Appellant as one of the males in the vehicle during the shooting. Id. at 146.
Officer Greg Yatcilla from the crime scene unit testified that he found a pair of silver-
rimmed glasses at the scene of the shooting. Id. at 82. Officer Yatcilla observed two .40 caliber
fire cartridge casings ("FCCs") at the scene and a copper fragment which was determined to be a
piece of a bullet. Id. at 101-102.
Dr. Lindsay Simon, M.D. testified as an expert in forensic pathology. N.T. 4/12/17 at
168. Dr. Simon performed the autopsy of Quan. Id. at 1 73. She determined the cause of death
was a gunshot wound of the right upper, extremity, or arm, with injury to the torso. Id. at 177.
This bullet entered and exited through Quan's upper-right arm and entered through the upper
right chest and perforated the right lung and the upper lobe of his left lung. (Exhibit C-30). The
next bullet entered Quan's left forearm and exited off the side of his forearm. Id. at 192. The
third bullet entered the top of his right buttock and exited the right side of his hip. Id. at 193.
6
Devon Campbell testified as an expert in the forensic analysis of cell phones. N.T.
4/13/17 at 125, 131. Ms. Campbell works for the Philadelphia District Attorney's Office in the
Technical Services Unit as a mobile device forensic examiner. Id. at 126. Ms. Campbell's job is
to investigate and analyze cell phones related to cases that come in the office. Id. She received
her master's degree in digital forensics. Id. at 127. Ms. Campbell has testified as an expert in the
forensic analysis of cell phones four times previously in the Court of Common Pleas in
Philadelphia and has never been disqualified to testify as an expert. Id. at 130-131.
Ms. Campbell first provided a string of messages between Quan and Mr. Maldonado
from Quan's phone. Id. at 167. On the day in question, at 2:27:43 p.m., Quan received an
incoming message that was read at 2:32:57 p.m. stating, "Bro im ready for yu." Id. at 175. Next,
there was an outgoing message to the same number on the same date at 2:33:06 p.m. stating,
"What u wanted." Id. From there, there were two incoming messages, one at 2:33:58 p.m. that
was read at 2:34 p.m. stating, "Whole jawn I got 3025 rite now," and then another incoming
message at 5:49:49 p.m. that was read at 5:50:23 p.m. stating, "Bro ma folks need 2 they good
ppls." Id. at 175. There was another outgoing text at 7:34:25 p.m. saying, "Ur folks got the cash
bro cause this alot of money bro." Id. at 179. Next, there was an incoming text message at
7:35:08 p.m. on the same date that was read at 7:40:59 p.m. stating, "Yea bro im here." Id. Then,
there was an outgoing message, at 7:45:59 p.m. saying, "Grabbin the bud bro my fault Ill be
there." Id. at 179-180. Next, there is an outgoing message sent at 8: 14:59 p.m. stating, "Wya. "2
Id. at 180. Next, there was another outgoing message at 8:49:37 p.m. stating, "Walking dwn
now." N.T. 4/13/17 at 180.
2
"Wya" is a shorthand for "where you at."
7
Ms. Campbell then provided a string of messages between Quan and Lucas from Quan's
phone. Id. at 187. Quan received an incoming message from Lucas at 9:05:24 p.m. stating, "Did
u count the bread?" Id. at 188. Then there was an outgoing message to Lucas stating, "I just
counted half," at 9:05:52 p.m. Id. There was another incoming message from Lucas at 9: 10:46
p.m. that stated, "Have the window down." Id. There were no more reported calls or text
messages that came from that phone. Id.
DISCUSSION
1. The evidence was sufficient to convict Appellant of all charges.
Appellant argues that the evidence produced at trial was insufficient to sustain a guilty
verdict for Murder of the First Degree, Conspiracy to Commit Murder, Robbery, Conspiracy to
Commit Robbery, VUFA 6106, VUFA 6108 and PIC. Specifically, Appellant argues that the
evidence failed to sustain the elements of each and every crime and, when taken as a whole, was
grossly unreliable and would lead to a verdict being based on surmise and conjecture, all in
violation of Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993). Ultimately, Appellant
contends that Lucas's testimony was so unreliable that the jury was not permitted to return a
guilty verdict.
When presented with a challenge to the sufficiency of the evidence, our standard of
review is as follows:
Our standard of review in assessing whether sufficient evidence was presented to
sustain Appellant's conviction is well-settled. 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 [this] 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
8
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. Walsh, 36 A.3d 613, 618-19 (Pa. Super. 2012) (quoting Commonwealth v.
Brumbaugh, 932 A.2d 108, 109-110 (Pa. Super. 2007)). In determining whether there was
sufficient evidence to support a jury's finding, we are "obliged to determine whether the evidence
presented at trial and all reasonable inferences derived therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, are sufficient to satisfy all elements of the
offense beyond a reasonable doubt." Commonwealth v. Brown, 987 A.2d 699, 705 (Pa. 2009).
At the outset, and to avoid reiteration throughout the analysis of each offense, Lucas's
testimony was corroborated by Mr. Maule's testimony, Ms. Tabor's testimony and the text
messages between Mr. Maldonado and Quan and Quan and Lucas. Specifically, Lucas admitted
to shooting when Appellant and Mr. Maldonado drove away after they already shot Quan. N. T.
4/11/17 at 130. This testimony was directly corroborated by Mr. Maule, who at first, heard loud
pops, then looked outside to see a white or Hispanic male in his twenties get out of a green sedan
and shoot a handgun down the alleyway.3 Id. at 71. In sum, Lucas's credible eye-witness
testimony established sufficient evidence to convict Appellant of all charges.
Appellant asserts that Lucas's testimony was so unreliable that the verdict was based on
conjecture. Although Lucas admitted to lying on the stand, the lies were minimal in nature.
Lucas lied about the type of car he drove to the drug deal with and the manner in which he
3 Lucas drove a blue-green Chrysler 300M, a sedan.
9
dropped off Quan for the drug deal. Id. at 207-208. Lucas admitted that he lied because he was
nervous and scared because he did not want police to think he was selling marijuana. Id. As the
finder of fact, the jury is to determine witness credibility and is free to believe all, part or none of
a witnesses' statement. Here, the jury was free to believe the other, more important aspects of
Lucas's testimony and not discredit his entire testimony.
a. Murder of the First Degree.
Appellant contends that the evidence provided was not sufficient to establish his first-
degree murder conviction. However, Lucas's eyewitness testimony was sufficient to sustain
Appellant's murder conviction.
To sustain a conviction of first-degree murder, the Commonwealth must establish that:
(1) a human being was unlawfully killed; (2) the defendant is responsible for the killing; and (3)
the defendant acted with malice and the specific intent to kill. Commonwealth v. Haney, 131
AJd 24, 33 (Pa. 2015). "Specific intent to kill as well as malice can be inferred in a trial for first-
degree murder from the use of a deadly weapon upon a vital part of the victim's body."
Commonwealth v. Thomas, 54 A.3d 332, 335 (Pa. 2012). Further, "each member of a conspiracy
to commit murder may be convicted of first-degree murder, regardless of which of the
conspirators inflicted the fatal wound, where the elements of first-degree murder are made out as
to that conspirator." Commonwealth v. Busanet, 817 A.2d 1060, 1064 (Pa. 2002).
Here, there is no question that Quan was unlawfully killed. N.T. 4/11/17 at 129. From
Lucas's eyewitness testimony, which the jury was proper in crediting, Appellant and his
coconspirator were in the car with Quan when he saw and both Appellant and Mr. Maldonado
point their guns and shoot Quan. Id. It is easy to gather that Appellant was at least in part,
10
responsible for the killing. And as explained by Busanet, each member of the conspiracy may be
convicted of first-degree murder regardless of whether Appellant's bullet inflicted the fatal
wound. Further, as provided by the court in Thomas, a specific intent to kill may be inferred by
the use of a deadly weapon upon a vital part of one's body. Quan sustained three bullet wounds,
one of which was to his upper body and penetrated his chest. N.T. 4/12/17 at 177, 192. Appellant
and his coconspirator firing multiple shots at point blank range at Quan as he sat inches away
from them in their vehicle is sufficient for the jury to draw the inference that Appellant held the
specific intent to kill. N.T. 4/11/17 at 129. Therefore, there was sufficient evidence to convict
Appellant of first-degree murder.
b. Conspiracy to Commit Murder.
Appellant next argues that the evidence was insufficient to sustain his conspiracy to
commit murder conviction. However, for the reasons set forth in the previous subsection, there
was sufficient evidence to sustain his conviction.
Under the Pennsylvania Criminal Code, an individual is guilty of conspiracy if that
individual, with another person or persons to commit a crime if, "with the intent of promoting or
facilitating its commission he 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." 18 Pa.C.S.A. § 903(a)(l). Although each member of a conspiracy must
possess the specific intent to kill before a conviction of first-degree murder can be sustained, that
intent can be demonstrated by circumstantial evidence. Commonwealth v. Wayne, 720 A.2d 456,
465 (Pa. 1998).
Again, Lucas's testimony provides sufficient evidence of a conspiracy. Although there is
no evidence of an express verbal agreement, following Wayne, the circumstantial evidence
provides that there was a conspiracy to rob and kill Quan. During this drug deal, both Appellant
11
and Mr. Maldonado were in their vehicle with Quan. N.T. 4/11/17 at 120. Lucas witnessed both
Appellant and Mr. Maldonado pull guns on Quan as he sat in the back seat of their car. Id. at
129. Lucas then witnessed Appellant and Mr. Maldonado shoot Quan then leave in their vehicle.
Id. at 129, 136. Again, as explained in the previous subsection, Appellant and his coconspirator
firing multiple shots at point blank range at Quan as he sat inches away from them in their
vehicle is sufficient evidence for the jury to draw the inference that Appellant held the specific
intent to kill Quan. Id. at 129. Additionally, the medical examiner provided that Quan sustained
three gunshot wounds, one of which was to the upper body which penetrated his chest. N.T.
4/12/17 at 192. Therefore, there is sufficient evidence to convict Appellant of conspiracy to
commit murder.
c, Robbery.
Appellant next contends that the evidence was insufficient to sustain a conviction for
robbery. However, because Lucas's testimony provides that Appellant killed Quan then took
both the money and the marijuana from the drug deal, his claim fails.
An individual is guilty of robbery if during the course of committing a theft, inflicts
serious bodily injury upon another. 18 Pa.C.S.A. § 3701(a)(l)(i). Ultimately, the Commonwealth
must show that Appellant inflicted serious bodily injury upon Quan during the course of
committing a theft. The Superior Court in Commonwealth v. Smith, 459 A.2d 777, 788 (Pa.
Super. 1983) determined that the evidence was sufficient to convict the defendant of robbery. In
Smith, the defendant and his accomplice took the victim's wallet and car after slaying the victim.
Id. Additionally, the infliction of serious bodily injury is evident in this case as the victim was
murdered. Id.Similar to Smith, Appellant and Mr. Maldonado killed Quan and then drove off with both
the money and marijuana of the drug deal. N.T. 4/11/17 at 130. This evidence by itself is
12
sufficient to convict an individual of robbery. Therefore, there was sufficient evidence to convict
Appellant of robbery.
d. Conspiracy to Commit Robbery.
Appellant next contends that the evidence provided was insufficient to convict him of
conspiracy to commit robbery. Since the evidence showed that Appellant and Mr. Maldonado
both participated in the robbery during the drug deal, the jury was proper in convicting Appellant
of conspiracy to commit robbery.
Under the Pennsylvania Criminal Code,
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 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.
18 Pa.C.S.A. § 903(a)(l ). Existence of conspiracy to commit robbery is dependent upon proof of
agreement, or common design, to commit the unlawful act of robbery. Commonwealth v. Olds,
469 A.2d 1072, 1074 (Pa. Super. 1983). However, direct proof of an agreement is not required;
the conduct of the parties and the circumstances surrounding such conduct may be sufficient to
establish an inference of common design. Commonwealth v. Sadusky, 399 A.2d 347 (Pa.
1979). By its very nature, the crime of conspiracy is frequently not susceptible of proof except
by circumstantial evidence. Commonwealth v. Kwatkoski, 406 A.2d 1102 (Pa. 1979). A
conspiracy may be inferentially established by showing the relation, conduct, or circumstances of
the parties, and the overt acts on the part of co-conspirators have uniformly been held competent
to prove that a corrupt confederation has in fact been formed. Commonwealth v. Horvath, 144
A.2d 489, 492 (Pa. Super. 1958).
Again, in Smith, 459 A.2d at 788, the defendant was properly convicted of conspiracy to
commit robbery. The court in Smith noted that the evidence, although circumstantial, provided
13
that the defendant and another individual planned to rob the victim. Id. The defendant and his
coconspirator accompanied the victim to a deserted area despite the explanation that he was
merely being given a ride home before he was murdered and robbed. Id. The Smith court
explained that from this evidence, a rational fact finder could find that the defendant conspired to
commit the murder and robbery. Id.Again, Lucas's testimony provided that a drug deal was set up in the alleyway in the car
which Appellant and Mr. Maldonado were both present. N.T. 4/11/17 at 116, 120. Quan met
with Appellant and Mr. Maldonado to sell them marijuana and began counting their money as he
sat in the back seat of their car. Id. at 120; N.T. 4/13/17 at 188. Appellant and Maldonado both
turned around and shot Quan as he sat in the back seat. N.T. 4/11/17 at 129. Appellant and Mr.
Maldonado drove away in their SUV with both the marijuana and the money. Id. at 130. Like the
victim in Smith, Quan was brought to a specific location where he thought a drug deal was to
take place. Id. at 116. Instead, both Appellant and Mr. Maldonado pointed their guns and shot
Quan. Id. at 129. Again, although there was no express verbal agreement, similar to Smith, the
jury was well within reason to infer that there was a "common design" between Appellant and
Mr. Maldonado to rob and kill Quan. Therefore, there was sufficient evidence to convict
Appellant of conspiracy to commit robbery.
e. VUFA 6106 and 6108.
Appellant next contends that there is insufficient evidence to convict him under both
VUF A 6106 and 6108. First, under 18 Pa.C.S.A. § 6106.
[A]ny person who carries a firearm in any vehicle or any person who carries a
firearm concealed on or about his person, except in his place of abode or fixed place
of business, without a valid and lawfully issued license under this chapter commits
a felony of the third degree.
18 Pa.C.S.A. § 6106.
14
•
Next, under 18 Pa.C.S.A. § 6108:
No person shall carry a firearm, rifle or shotgun at any time upon the public streets
or upon any public property in a city of the first class unless: (1) such person is
licensed to carry a firearm; or (2) such person is exempt from licensing under
section 6106(b) of this title (relating to firearms not to be carried without a license).
18 Pa.C.S.A. § 6108.
In Commonwealth v. Monroe, 422 A.2d 193, 195 (Pa. Super. 1980), testimonial evidence
was sufficient to prove the defendant guilty of carrying firearms on public streets or public
property in Philadelphia when he shot the victim on a Philadelphia public street. Similarly, the
court in Commonwealth v. Petrakovich, 329 A.2d 844, 847 (Pa. 1974) determined there was
sufficient evidence to support a conviction of carrying a firearm without license against the
defendant who - based on witness testimony - walked into the diner where his wife worked,
drew a gun and fired it at his wife.
Ultimately, the Commonwealth must prove that Appellant carried a firearm in public
without a license for VUF A 6016 and that it occurred on the streets of Philadelphia for VUF A
6108. Here, like Monroe and Petrakovich there is eyewitness testimony from Lucas that
Appellant possessed a firearm in public, while in the car, parked in the area of the 7100 block of
Walker Street in Philadelphia. N.T. 4/11/17 at 61, 129, 136. Additionally, the Commonwealth
provided a certificate of non-licensure which stated that on the date of this incident, October 21,
2015, Appellant did not have a valid license to carry a firearm. N.T. 4/17/17 at 130. Therefore,
the Commonwealth provided sufficient evidence to sustain the convictions for both VUF A 6106
and 6108.
f. PIC.
Appellant asserts that the Commonwealth did not provide sufficient evidence to sustain a
conviction of PIC. A person is guilty of PIC if he possesses any instrument of crime with intent
15
to employ it criminally. 18 Pa.C.S.A. § 907(a). "In order to convict appellant of [PIC], the
Commonwealth had to prove that she possessed her gun under circumstances manifestly
inappropriate for such lawful uses the gun may have had and with an intent to employ it
criminally." Commonwealth v. Jeter, 418 A.2d 625, 628 (Pa. Super. 1980).
In Jeter, evidence that the defendant entered victim's bar, drew a loaded gun from her
pocket and fired it twice at the victim was sufficient to sustain a conviction for PIC. Id. In
Commonwealth v. McNair, 603 A.2d 1014, 1017 (Pa. Super. 1992), evidence that the defendant
used a loaded gun to shoot the victims was sufficient to support the conviction for PIC. The court
in Monroe, 422 A.2d at 195 explained that testimonial evidence supported the conviction for PIC
where the defendant used a firearm to shoot the victim. In Monroe, the witness stated that he
observed the firearm in the defendant's hand as the second shot was being fired. Id. The Monroe
court stated that even if there is no direct evidence that the defendant concealed the weapon on
his person, it can reasonably be inferred from the victim's testimony. Id.Here, testimonial evidence that Appellant and Mr. Maldonado discharged a firearm at the
victim by itself, is sufficient to establish Appellant's guilt of PIC. N.T. 4/11 /17 at 61, 129, 136.
This case is analogous to McNair, Monroe and Jeter because Appellant here also fired a gun at
the victim. Id. Like the all three cases, the testimonial evidence here is sufficient to show that
Appellant possessed a firearm. Id. The distinctions in the results of the shootings, however, are
irrelevant. Here, the credible testimony provided that Appellant possessed a gun and had the
intent to criminally employ it through his decision to discharge the firearm and kill Quan is
sufficient. Id. at 129. Therefore, there is sufficient evidence to convict Appellant of PIC.
2. The verdict was not against the weight of evidence.
16
' .
•
Appellant next contends that he is entitled to a new trial because the verdict on all
charges was against the weight of evidence. Appellant contends that believed self-defense
applies in this matter. However, for many of the reasons stated in the sufficiency section, the
verdict was not against the weight of evidence.
"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." Commonwealth
v. Champney, 832 A.2d 403, 408 (Pa. 2003). The Supreme Court of Pennsylvania in Champney
explained that an appellate court cannot substitute its judgment for that of the finder of fact. Id.Therefore, the court may only reverse the lower court if the verdict is so contrary to the evidence
as to "shock one's sense of justice." Id. citing Commonwealth v. Small, 741 A.2d 666, 672-73
(Pa. 1999). The Supreme Court has set forth the following standard ofreview for Appellant's
claim that the verdict is against the weight of evidence and that he should be entitled to a new
trial:
The essence of appellate review for a weight claim appears to lie in ensuring that
the trial court's decision has record support. Where the record adequately supports
the trial court, the trial court has acted within the limits of its discretion.
A motion for a new trial based on a claim that the verdict is against the weight of
the evidence is addressed to the discretion of the trial court. A new trial should not
be granted because of a mere conflict in the testimony or because the judge on the
same facts would have arrived at a different conclusion. 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.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). (citations and quotation omitted).
See also Kaplan v. 0 'Kane, 835 A.2d 735, 73 7 (Pa. Super. 2003). (holding "[t]he power to grant
a new trial lies inherently with the trial court, and [the] appellate court will not reverse its
decision absent a clear abuse of discretion or an error of law which controls the outcome of the
case.").
17
c
.
Again, Lucas's testimony was corroborated by Mr. Maule's testimony, Ms. Tabor's
testimony and the text messages between Mr. Maldonado and Quan and Quan and Lucas.
Specifically, Lucas admitted to shooting when Appellant and Mr. Maldonado drove away after
they shot Quan. N.T. 4/11/17 at 129, 136. This testimony was directly corroborated by Mr.
Maule, who at first, heard loud pops, then looked outside to see a white or Hispanic male in his
twenties get out of a green sedan and shoot a handgun down the alleyway. Id. at 71. The jury was
proper in making their determination based on Lucas's eyewitness testimony.
Additionally, there is no evidence that would suggest that there was a reason that
Appellant needed to use deadly force as a form self-defense. Although there is evidence that
Lucas fired his weapon, the evidence provides that he fired it after Appellant and Mr. Thomas
murdered Quan and drove away. Id. at 129, 136. Appellant provides no evidence to support a
self-defense theory. Therefore, the verdict was not against the weight of evidence.
3. The Commonwealth did prove the element of malice.
Appellant next argues that the Commonwealth did not prove malice and therefore, cannot
establish murder. Appellant further alleges that the Commonwealth did not prove a specific
intent to kill. Appellant cites Commonwealth v. Laing, 456 A.2d 204 (Pa. Super. 1983) and
argues that he is entitled to a new trial because the verdict shock's one's sense of justice.4
However, this Court analyzed these issues in the sections 1 and 2 of this opinion. To avoid
reiteration, for the reasons set forth in sections 1 and 2, the Commonwealth did prove malice in
connection with Appellant's murder charge.
4
Appellant even uses the weight of evidence standard in his argument. This Court addressed
Appellant's weight of evidence argument in section 2 of this opinion. Additionally, this Court
addressed the specific element of malice in the sufficiency section, section 1 of this Opinion.
18
4. The Commonwealth did prove that Appellant was either the principal, accomplice
or conspirator.
Appellant next argues that the Commonwealth did not prove that Appellant was either the
principal, accomplice or a conspirator with regard to any of the crimes charged. Specifically,
Appellant claims that the Commonwealth did not establish by sufficient evidence that he had
reached an agreement to engage in criminal conduct with any other person on the day of the
incident. Appellant cites In the Interest ofJ.F, 714 A.2d 467 (Pa. Super. 1998) and contends that
mere association or presence at the scene of a crime is insufficient to establish conspiracy.
However, as explained in the conspiracy to commit murder and conspiracy to commit robbery
subsections of this Court's sufficiency analysis, the Commonwealth did prove that Appellant was
a principal, accomplice or conspirator.
As explained in the sufficiency section of this opinion, the Commonwealth did prove
conspiracy. To reiterate, through Lucas's testimony, Appellant and Mr. Maldonado were both
present in the car, both drew guns and both shot at and killed Quan. N.T. 4/11/17 at 129.
Therefore, the Commonwealth did prove that Appellant was the principal or at least the
conspirator or accomplice in the robbery and murder of Quan.
5. This Court did not err in denying Appellant's request for a manslaughter and self-
defense charge.
Appellant next argues that this Court erred in not giving the jury charge on manslaughter
or on self-defense/perceived self-defense. Appellant contends that the testimony at trial clearly
showed that at least one of the witnesses opened fire at the scene and that witness admitted on
the stand to firing his weapon at the scene. However, evidence showed that Lucas shot as the car
drove away after the murder and in no way supported a self-defense or manslaughter charge.
19
•
"[O]ur standard ofreview when considering the denial of jury instructions is one of
deference-an appellate court will reverse a court's decision only when it abused its discretion or
committed an error of law." Commonwealth v. Galvin, 985 A.2d 783, 798-799 (Pa. 2009). A
defendant charged with murder is entitled to an instruction on the lesser offense of voluntary
manslaughter only if the evidence reasonably supports such an instruction. Commonwealth v.
Cox, 686 A.2d 1279, 1291 (Pa. 1996). Further, where there is no evidence of provocation or
anger or legal passion, no charge for voluntary manslaughter is required. Commonwealth v.
Corbin, 247 A.2d 584, 586 (Pa. 1968). Similarly, a self-defense instruction is not warranted
where evidence does not support finding that defendant acted in self-defense. Commonwealth v.
Washington, 692 A.2d 1024, 1028 (Pa. 1997). A valid claim of self-defense must be made out as
matter of law, as determined by trial judge, before issue of self-defense may be submitted to jury
for consideration. Commonwealth v. Mayfield, 585 A.2d 1069, 1070-1071 (Pa. Super. 1991).
Here, there is no evidence that supports a finding of self-defense or manslaughter.
Appellant suggests that since Lucas discharged his firearm, there was some belief of imminent
danger which justified shooting Quan. N.T. 4/11/17 at 129, 136. However, this suggestion is
baseless. The evidence provides that there were three or four shots fired first by Appellant and
Mr. Maldonado, then as Appellant and Mr. Maldonado were driving away, Lucas fired two shots
toward the vehicle. Id. at 129-130, 136; N.T. 4/12/17 at 54-55. At the time that Lucas deployed
his firearm, Quan had already been shot. N.T. 4/11/17 at 129. Lucas witnessed both Appellant
and Mr. Maldonado point their weapons and fire at Quan while he was in their car. Id. There is
not a scintilla of evidence that would provide a probable basis for finding manslaughter or that
Appellant acted in self-defense. Following Corbin and Washington, this Court did not err in
denying Appellant a self-defense and a manslaughter instruction.
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•
J •
CONCLUSION
After review of the applicable statutes, testimony, and case law, there was sufficient
evidence to find Appellant guilty on all charges. Additionally, the verdict was not against the
weight of evidence. This Court did not err in denying Appellant a self-defense and manslaughter
instruction. Accordingly, this Court's decision should be affirmed.
BY THE COURT:
DATE: July 17, 2018 DIANA L. ANHALT, J.
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..
PROOF OF SERVICE
I hereby certify that on the date set forth below, I caused an original copy of the Judicial
Opinion to be served upon the persons at following locations, which service satisfies the
requirements of Pa.R.A.P. 122:
David S. Rudenstein, Esquire
9411 Evans Street
Philadelphia, PA 19115
Hugh Bums, Esquire
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Marquis Thomas
SCI-Houtzdale
P.O. Box 1000
209 Institution Drive
Houtzdale, PA 16698
Date: July 17, 2018 By: _
Diana Anhalt, Judge
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