Com. v. Batista, R.

J-S25006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICARDO BATISTA,
Appellant No. 2268 EDA 2016
Appeal from the Judgment of Sentence Entered May 31, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004269-2015
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2017
Appellant, Ricardo Batista, appeals from the judgment of sentence of
an aggregate term of 10½ to 21 years’ imprisonment, imposed after he was
convicted of one count each of criminal conspiracy to commit aggravated
assault (18 Pa.C.S. § 903), possession of a firearm without a license (18
Pa.C.S. § 6106), possession of a firearm on the streets of Philadelphia (18
Pa.C.S. § 6108), possession of a firearm by a prohibited person (18 Pa.C.S.
§ 6105), and possession of an instrument of crime (18 Pa.C.S. § 907).
Appellant challenges the sufficiency of the evidence to sustain his conviction
for conspiracy to commit aggravated assault. We affirm.
The facts which led to Appellant’s convictions are set forth by the trial
court in the following portion of its Pa.R.A.P. 1925(a) opinion:
On November 17, 2014, at approximately 4:00 p.m.,
Dominique Scott looked outside the window of her residence
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near the corner of Water Street and Tioga Street and saw her
brother, Abdul Scott, being attacked by a group of three young
men.2 Dominique identified the attackers as Ray, [Appellant],
and [Appellant’s] brother.3 Dominique left the residence,
accompanied by her other brother, Jabbar Scott.
2
Because Dominique Scott, Abdul Scott and their brother,
Jabbar Scott, all share the same last name, they will be
identified by their first names throughout this opinion.
3
Ray’s last name, and [Appellant’s] brother’s name, were
not given at trial.
During the altercation, Ray hit Abdul with a broomstick and
[Appellant] got on top of Abdul. The fight then expanded to
include several other individuals, with [Appellant], Ray, Jose
Rivera, and two unidentified females fighting against Dominique,
Jabbar, Abdul, and Isiaha DeJesus-Rios. Abdul and [Appellant]
began to fight over a gun, as Abdul attempted to wrestle the gun
out of [Appellant’s] hands. [Appellant] managed to keep control
of the firearm and raised it, causing Dominique, Abdul, and
Jabbar to flee the area. Ray also was in possession of a firearm.
As Dominique, Abdul, and Jabbar fled the area, Ray fired his gun
twice, striking Jabbar once in the right buttock.
Dominique fled to Brother’s Bar, at the corner of Water
Street and Ontario Street, where she locked herself inside the
bar’s bathroom and called police. Ray and Rivera came to the
bar, attempting to find Dominique, who stayed in the bathroom
until police arrived.
After getting shot, Jabbar went to the home of Margarita
Rios, accompanied by his brother Abdul. Abdul attempted to
administer first-aid until police arrived. Neither Abdul nor Jabbar
cooperated with police once police arrived. Jabbar was taken to
the hospital by an ambulance, where he was treated for the
gunshot wound to his right buttock.
A video surveillance camera, located at the intersection of
Tioga Street and Lee Street captured Jabbar, Ray, Rivera, and
other individuals as they travelled past the area of the shooting,
but did not record the shooting itself. Police recovered two 9-
mm fired cartridge cases on the street. A 9-mm projectile was
recovered from Jabbar’s body by hospital personnel. Later
examination confirmed that the two cartridge cases were fired
from the same firearm. Police located [Appellant] on January
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15, 2015. [Appellant] provided a fake name to police, and
attempted to flee while being taken into custody.
Trial Court Opinion (“TCO”), 9/2/16, at 2-3 (citations to the record omitted).
Based on the aforementioned evidence presented at a jury trial on
March 3, 2016, Appellant was found guilty of the crimes stated supra, and
was sentenced by the court to 10 ½ to 21 years’ incarceration. Id. at 1.
Appellant did not file post-sentence motions. Appellant failed to file a timely
notice of appeal, but he filed a petition under the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S. § 9541-9546, seeking the reinstatement of his
appellate rights. Id. The court granted Appellant’s PCRA petition on July
15, 2016.
On July 19, 2016, Appellant filed a timely notice of appeal, followed by
a timely concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant presents the following sole issue for our
review: “Was the evidence insufficient to sustain [Appellant’s] conviction for
[c]onspiracy to [c]ommit [a]ggravated [a]ssault where the Commonwealth
presented no evidence of communication, interaction, or agreement between
[Appellant] and the shooter in the case?” Appellant’s Brief at 3.
To begin, we note our standard of review:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
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Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted).
As this Court has previously explained, a criminal conspiracy conviction
requires proof of:
(1) An intent to commit or aid in an unlawful act, (2) an
agreement with a co-conspirator and (3) an overt act in
furtherance of the conspiracy. Because it is difficult to
prove an explicit or formal agreement to commit an
unlawful act, such an act may be proved inferentially by
circumstantial evidence, i.e., the relations, conduct or
circumstances of the parties or overt acts on the part of
the co-conspirators.
Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super.
2001) (quoting Commonwealth v. Spotz, … 756 A.2d 1139,
1162 (Pa. 2000)). Circumstantial evidence can include, but is
not limited to, the relationship between the parties, the
knowledge of and participation in the crime, and the
circumstances and conduct of the parties surrounding the
criminal episode. Commonwealth v. French, … 578 A.2d
1292, 1294 (Pa. Super. 1990). “These factors may coalesce to
establish a conspiratorial agreement beyond a reasonable doubt
where one factor alone might fail.” Id. Aggravated assault, the
crime underlying [the] [a]ppellant’s conspiracy conviction,
occurs when a person “attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly, or
recklessly under circumstances manifesting an extreme
indifference to the value of human life.” 18 Pa.C.S.A. §
2702(a)(1). Serious bodily injury is defined as “bodily injury
which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.” 18 Pa.C.S.A. §
2301.
Commonwealth v. Thomas, 65 A.3d 939, 943-44 (Pa. Super. 2013).
Appellant asserts that the evidence was insufficient to support his
conspiracy conviction because, “[w]hile the evidence established that
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[Appellant] and the shooter both engaged in a fight with Jabar [sic] Scott
and other members of his family, and that [Appellant] possessed a firearm,
the record was devoid of any evidence establishing that [Appellant] and Ray
agreed to shoot Jabar [sic] Scott.” Appellant’s brief at 8. Appellant claims,
rather, that “the evidence was equally consistent with [Appellant] and the
shooter acting independent of one another.” Id. Accordingly, Appellant
concludes that his conviction of conspiracy to commit aggravated assault
must be vacated. Id. We disagree.
“In order to sustain a conviction of criminal conspiracy to commit
aggravated assault, the Commonwealth need only establish intent to commit
or aid in the commission of aggravated assault, an agreement with a co-
conspirator, and an overt act in furtherance of the conspiracy.” Thomas, 65
A.3d at 945. The Commonwealth may meet this burden even if the
conspirators fail to commit the underlying crime of aggravated assault, as
“[c]onspiracy to commit a crime and the underlying crime itself are two
entirely separate offenses with separate elements required for each.” Id. at
944. Therefore, as we stated in Thomas, “to sustain the conviction for
criminal conspiracy, it need not be established that Appellant committed
aggravated assault, provided that Appellant had the intent to do so.” Id.This Court has held in previous cases that “acting together before,
during, and after an attack on another individual suffices to show a unity of
criminal purpose for purposes of sustaining a conviction for criminal
conspiracy to commit aggravated assault.” Id. at 945 (citing
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Commonwealth v. French, 578 A.2d 1292, 1294-95 (Pa. Super. 1990);
Commonwealth v. Poland, 26 A.3d 518, 523 (Pa. Super. 2011)). In the
present case, the trial court concluded that “the evidence clearly established
that [Appellant] acted in concert with Ray to assault Abdul, which lead [sic]
to the shooting of Jabbar.” TCO at 4. The trial court recounts the following
evidence in support of its finding:
Dominique Scott testified that she looked out her window and
saw her brother, Abdul, getting “jumped” by Ray, [Appellant],
and [Appellant’s] brother. Dominique testified that she then left
her house to assist Abdul and saw Ray strike Abdul with a
broomstick, followed by [Appellant] getting on top of Abdul.
While [Appellant] and Abdul were fighting on the ground,
Dominique testified that she saw a gun “slide out” and that
Abdul was attempting to get the gun out of [Appellant’s] hand.
Dominique further testified that this fight over the gun included
an additional, unidentified person, who was on top of Abdul.
Dominique testified that [Appellant] ultimately got control of the
gun and pointed it at her and her brothers, causing them to run
away from the area. While Dominique testified at trial that
[Appellant] fired his gun twice, in her preliminary hearing
testimony, which was admitted at trial, she indicated that Ray
was the shooter. Dominique also testified that Ray was a drug
dealer who worked on the block, and that [Appellant] worked for
Ray. She further testified that Rivera, who assisted [Appellant]
and Ray in the fight, also worked for Ray.
Isiaha De Jesus-Rios was interviewed by police shortly
after the shooting. He informed the police that he witnessed a
fight between a boy and Dominique, Abdul, and Jabbar.
Dominique was his aunt, and Jabbar and Abdul were his uncles.
DeJesus-Rios identified [Appellant] as one participant who
possessed a gun during the fight, but stated that [Appellant] was
not the person who fired a gun two times. DeJesus-Rios also
testified that Jabbar and Abdul were present in his home after
the shooting, and that Jabbar was bleeding. That Jabbar had
been shot was confirmed by the testimony of Officer Robert
Glasson, who first responded to the scene, and by stipulation to
the medical treatment given to Jabbar.
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There was also compelling evidence establishing
[Appellant’s] consciousness of guilt. Officer John Sasse testified
that on January 15, 2015, while on regular patrol, he and his
partner observed [Appellant], who they recognized as having an
outstanding arrest warrant in connection with this shooting,
driving a minivan. Officer Sasse testified that he pulled
[Appellant’s] car over and that [Appellant] provided a fake name
when asked to identify himself. When placing [Appellant] under
arrest, Officer Sasse testified that [Appellant] attempted to flee,
but was restrained by the arresting officers.[1]
TCO at 4-6 (citations to the record omitted).
Based on the foregoing evidence, the court concluded that:
[T]here was compelling evidence from which a reasonable
factfinder could conclude that [Appellant] agreed to act in
concert with Ray to fight Abdul and Abdul’s family, and that
during the course of this fight, one of the conspirators shot
Jabbar. [Appellant] and Ray both fought with Abdul, both
brought firearms to this fight, and [Appellant] worked for Ray at
the time of this fight. When police effectuated the arrest
warrant issued against [Appellant], [Appellant] lied to police
concerning his identity and tried to flee. This evidence was
clearly sufficient to permit the jury to conclude that [Appellant]
conspired with Ray in order to commit aggravated assault.
Id. at 6.
Based on our review of the facts in the light most favorable to the
Commonwealth as the verdict winner, we conclude there was sufficient
evidence to support the trial court’s finding that Appellant conspired with
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1
“This Court has repeatedly held that flight, along with other circumstantial
evidence, supports the inference of a criminal conspiracy.” Commonwealth
v. Marquez, 980 A.2d 145, 150 (Pa. Super. 2009) (citing Commonwealth
v. Davalos, 779 A.2d 1190 (Pa. Super. 2001); Commonwealth v.
Hatchin, 709 A.2d 405 (Pa. Super. 1998)).
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Ray to commit aggravated assault. Therefore, we uphold Appellant’s
conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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