Com. v. Rodriguez, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JALIEL RODRIGUEZ :
:
Appellant : No. 178 MDA 2020
Appeal from the Judgment of Sentence Entered November 13, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006629-2017
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 04, 2021
Jaliel Rodriguez appeals from his November 13, 2019 judgment of
sentence of life imprisonment without parole, which was imposed following his
convictions for second–degree murder, robbery, and person not to possess a
firearm. He challenges the sufficiency and weight of the evidence supporting
his murder and robbery convictions. After thorough review, we affirm.
We glean the following facts from the evidence introduced at a jury trial
commencing September 10, 2019. On September 25, 2017, at approximately
11:00 p.m., Jasmine Holmes and Patrice Allen were watching Netflix in their
home at 621 Dauphin Street, Harrisburg, Pennsylvania. N.T., 9/10/19, at 83.
They heard a thud at the door. Id. at 85. Jasmine quickly realized someone
was trying to kick in her door. She ran to the door and threw her body against
it to prevent the intruder from breaking in. Id. at 88. Patrice picked up a gun
that was on the sofa between them and moved toward the door, attempting
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at the same time to remove the safety on the gun. Id. at 92. Jasmine heard
a pop, which she recognized as a gunshot. Id. She looked behind her and
saw Patrice clutching her stomach and falling to the ground. Id. A bullet had
pierced the door and struck Patrice in the abdomen. Jasmine immediately
called 911, and when the ambulance arrived, Patrice was able to walk out.
However, she was pronounced dead at 9:00 a.m. the next morning due to
internal bleeding caused by the gunshot wound. N.T., 9/11/19, at 293. A .40
caliber projectile was recovered from the victim’s body and turned over to
police. Id.
At the scene that night, Forensic Investigator Duane Pyles collected one
.40 caliber casing manufactured by Winchester. N.T., 9/10/19, at 45. He also
took photographs depicting the bullet hole in the front door, and which
established that the projectile was fired into the home from outside. Id. at
51. Other photographs captured drugs, drug paraphernalia, guns, and small
denominations of money within the home. At trial, Ms. Holmes admitted that
she sold drugs out of the home on Dauphin Street and that her home had
previously been burglarized.
Several neighbors heard the gunshot on September 25, 2017. One
neighbor, Amber Neely, saw a light-skinned black male wearing black pants,
a red shirt, and black hoodie running up the street shortly after she heard the
gunshot, and she observed further that there were no cars on the street at
the time. Id. at 131, 135-137.
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At or about noon the next day, September 26, 2017, Dauphin County
Sheriff’s Deputy Josh Long spotted a vehicle that he recognized as being
associated with Appellant near 7th and Maclay Streets. Id. at 143. Appellant
was wanted on an outstanding warrant. When the deputy saw Appellant
sitting in the front passenger seat of the car, he radioed another unit, which
effected the traffic stop. Id. at 144-145. As Deputy Pyles observed the
stopped vehicle, he noticed that Appellant was making a lot of distinctive
movements in the car. Id. at 145. He and the other deputies approached
the vehicle with guns drawn. Id. at 146. When Appellant refused their
commands to step out of the vehicle, they removed him. Id. at 150. The
officers located a pistol in the glovebox, identified as a loaded black Beretta
handgun, together with a magazine. Id. Another magazine was located in
Appellant’s pocket. Further search of the vehicle yielded bundles of suspected
heroin. Appellant volunteered to law enforcement that everything in the car
was his. Id. at 147. He later reiterated that statement to Agent Chris Burnell,
associated with the Attorney General’s office, after the agent gave him his
Miranda warnings and he waived his rights in writing. Id. at 155-56.
Agent Burnell testified at trial that they had set up Appellant on
September 19, 2017, for an arrest based on the outstanding felony warrant.
Id. at 159. At that time, Appellant fled police in a vehicle, drove through a
neighborhood, abandoned the vehicle, and ran on foot. Id. at 158. Agent
Burnell retrieved suspected heroin, but did not recover a firearm. Police
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officers from Lower Swatera later located a firearm in a yard that was in
Appellant’s flight path, which was identified as a Glock .40 caliber with an
extended clip. Id. The possession of this weapon was the basis of the person
not to possess charge against Appellant.
Quames Foster testified at trial and recounted the following. He is a
part-time cab driver who knew Appellant. Sometime between September 19
and September 25, 2017, Appellant was in Foster’s cab. Appellant told Foster
that he was forced to discard money and a gun. Id. at 167. Appellant
confirmed that it was the weapon Foster had seen before, a Glock .40 caliber
with an extended magazine. Id. On this date, Appellant had a different gun
on the seat beside him in the cab, a black Beretta. Id. at 169. Foster
identified the Beretta, marked as Commonwealth Exhibit 47, as the same gun
Appellant had in his possession on and after September 19, 2017. Id.
Around midnight on September 25, 2017, Foster received a call for a
ride from Appellant. Appellant asked Foster to pick him up at 15 th and State
Streets, and he was there when Foster arrived about ten to fifteen minutes
later. Id. at 173-73. Foster described Appellant as “visibly shaken” and
“paranoid.” Id. at 174. Appellant instructed him to be very cautious and not
to draw any attention to the vehicle. Id. at 176. They saw a police car on
State Street, and Appellant “ducked down” to avoid being seen. Id. at 177.
Appellant told Foster he had been “shaking something down,” a term Foster
understood to mean a robbery or a theft. Id. at 172.
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Foster transported Appellant to Steelton that night and retrieved him
again the next morning. Aware that Appellant had friends or relatives on the
portion of Dauphin Street between 6th and 7th Streets, Foster told Appellant
that there was a lot of police activity at that location and suggested that he
should check on his people. Id. at 182. Appellant responded that everyone
was okay. Id.
Later that day, shortly after noon, Foster was taking his mother to the
store. He saw officers stop a blue vehicle at the light at 7th and Maclay, and
pull Appellant from the vehicle. Id. at 185.
On the afternoon of September 26, 2017, Detective Iachini received an
anonymous tip that Appellant was involved in the Dauphin Street murder.1
Sergeant Kyle Gautsch heard about the tip, and he checked Appellant’s name
in the system. He reached out to booking and learned that Appellant had
been arrested by agents of the Attorney General’s office for offenses involving
guns and drugs. N.T., 9/11/19, at 210. Sergeant Gautsch contacted those
agents and requested details about the gun that was seized from Appellant.
Id. at 211. The agents informed him that the weapon confiscated from
Appellant was a .40 caliber Beretta, which was consistent with the .40 caliber
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1 The anonymous tipster was subsequently identified as Quames Foster.
Foster later gave a statement to police in which he detailed his interactions
with Appellant in the days leading up to the murder, the night of the murder,
and the next day.
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casing Officer Pyles retrieved at the murder scene. The ammunition in the
Beretta, like the casing, was manufactured by Winchester.
Upon learning that the gun was a black Beretta, Sergeant Gautsch
arranged for forensic investigator William Kimmick III to collect and transport
the firearm and magazines from the Attorney General’s office, the .40 caliber
cartridge found at the scene, and the bullet recovered from the victim’s body,
to the Pennsylvania State Police Firearms Laboratory. Id. at 214. Sergeant
David Krumbine, who had twenty-five years of experience in the examination
and identification of firearms, determined that the bullet, as well as the
cartridge casing found near the door of the murder scene, were both
discharged from the black Beretta seized from Appellant. Thus, the
Commonwealth offered evidence that the Beretta that fired the shot that killed
Patrice Allen was in Appellant’s possession shortly after the murder. Id. at
214.
In addition, Jasmine Holmes testified that she recognized Appellant as
a friend of Kyle Brown, who lives across the street from her. Mr. Brown had
been in her home and purchased drugs for personal use from her. She
testified that she had seen Appellant in the neighborhood on at least ten
occasions, and that he had looked in her direction when she was conducting
hand-to-hand drug transactions, leading her to believe that he knew she dealt
drugs.
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After hearing two days of the foregoing testimony, the jury found
Appellant guilty of all charges. He was sentenced on November 13, 2019, to
a mandatory term of life imprisonment without possibility of parole. On
November 21, 2019, counsel for Appellant filed a post-sentence motion, which
the trial court denied on January 14, 2020. Appellant filed a timely notice of
appeal, and both the trial court and Appellant complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review, which we have reordered:2
I. Whether the Commonwealth failed to present sufficient
evidence to sustain Appellant's convictions where the
Commonwealth did not prove that Appellant attempted to commit
a robbery or was the person outside of 621 Dauphin Street, nor
that Appellant was a principle or accomplice to a murder in the
commission of a felony?
II. Whether the trial court erred in denying Appellant's Post-
Sentence Motion where the verdict was against the weight of the
evidence so as to shock one’s sense of justice where the
Commonwealth never showed, inter alia, that Appellant
attempted to commit a robbery or was the person outside 621
Dauphin Street, nor that Appellant was a principle or accomplice
to a murder in the commission of a felony?
Appellant’s brief at 5.
Our standard of review when considering a challenge to the sufficiency
of the evidence is well settled. Such a claim is a question of law.
We must determine whether the evidence is sufficient to prove
every element of the crime beyond a reasonable doubt. We must
view evidence in the light most favorable to the Commonwealth
as the verdict winner, and accept as true all evidence and all
____________________________________________
2 We address Appellant’s sufficiency claim first because if he were to be
successful on that claim, he would be entitled to discharge on the second-
degree murder and robbery convictions. See Commonwealth v. Stokes, 38
A.3d 846, 853 (Pa.Super. 2011).
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reasonable inferences therefrom upon which, if believed, the fact
finder properly could have based its verdict.
Our Supreme Court has instructed: 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 evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. 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.
In addition, the Commonwealth may sustain its burden by means
of wholly circumstantial evidence, and we must evaluate the entire
trial record and consider all evidence received against the
defendant.
Commonwealth v. Green, 203 A.3d 250, 252-253 (Pa.Super. 2019) (en
banc) (quoting Commonwealth v. Orie, 88 A.3d 983, 1013-14 (Pa.Super.
2014)) (cleaned up).
Appellant challenges the sufficiency of the evidence supporting his
convictions of second-degree murder and robbery.3 A criminal homicide
constitutes second-degree murder, or “felony murder,” if “it is committed
while [the] defendant was engaged as a principal or an accomplice in the
perpetration of a felony.” 18 Pa.C.S. § 2502(b). Robbery is one of the
enumerated felonies for purposes of the statute. See 18 Pa.C.S. § 2502(d).
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3 Appellant was also convicted of person not to possess a firearm, which
stemmed from his discard of the Glock .40 caliber handgun with the extended
magazine on September 19, 2017. He does not challenge the sufficiency of
the evidence supporting that conviction.
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As our High Court explained in Commonwealth v. Tarver, 426 A.2d 569,
573 (Pa. 1981), the mens rea element of second-degree murder, the malice,
is constructively inferred from the malice incident to the perpetration of the
initial felony. Id. (quoting Commonwealth v. Yuknavich, 295 A.2d 290,
292 (Pa. 1972)).
Robbery is defined as follows:
(1) A person is guilty of robbery if, in the course of committing a
theft, he:
(i) inflicts serious bodily injury upon another;
....
(2) An act shall be deemed “in the course of committing a theft”
if it occurs in an attempt to commit theft or in flight after the
attempt or commission.
18 Pa.C.S. § 3701(a).
Appellant contends that the Commonwealth failed to present sufficient
evidence that he caused serious bodily injury during the commission of a theft
because there was no evidence that he was at or near Dauphin Street on the
night of the murder, or in possession of the murder weapon at that time.
Appellant’s brief at 25 (citing 18 Pa.C.S. § 3701(a)(1)(i)). He claims further
that Quames Foster’s testimony was unreliable and that the inferences one
would have to draw to convict were unreasonable. Moreover, since the
Commonwealth did not prove that he committed robbery, Appellant argues he
cannot be convicted of murder in the second degree as the latter requires a
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criminal homicide committed while engaged in the perpetration of a felony .
Id. at 25-26.
In support of his position, Appellant directs our attention to
Commonwealth v. Bybel, 611 A.2d 188, 189 (Pa. 1992), wherein our
Supreme Court discharged Bybel after concluding that there was insufficient
evidence that he possessed the murder weapon prior to the murder. Appellant
asserts that there was less evidence herein than in Bybel that Appellant
possessed the murder weapon at the time of the robbery and shooting. In
Bybel, evidence was introduced that the rifle identified as the murder weapon
had been seized from Bybel by police seven months before, and had
subsequently been released to Bybel’s daughter. There was no evidence that
the daughter ever gave the rifle to her father, or to anyone. All that was
known was that four days after the killing, the rifle was found in Bybel's
basement. The Supreme Court concluded that “[b]ecause Bybel was not
shown to be in possession of the rifle between the time it was taken away
from him seven months before the homicide and four days after the homicide,
it cannot be said that the Commonwealth has proved beyond a reasonable
doubt that Bybel was in possession of the rifle at the time of the shooting.”
Id. at 189.
Appellant argues further that the facts herein are distinguishable from
the Supreme Court’s decision in Commonwealth v. Chambers, 599 A.2d
630 (Pa. 1991), in which the Court upheld robbery and first-degree murder
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convictions involving a victim who was beaten to death with a blunt
instrument. Multiple witnesses testified that they saw the victim and the
defendant arguing one hour before the victim’s body was discovered. At that
time, the defendant had what appeared to be a large stick in one of his hands,
and shortly after the body was discovered, the defendant was seen carrying
an axe handle.
Preliminarily, we must view the evidence in the light most favorable to
the Commonwealth. Appellant’s suggestion that Mr. Foster’s testimony should
not be credited disregards our standard of review. It is not our province to
re-weigh the evidence and substitute our judgment for that of the factfinder.
Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.Super. 2013). “[A]ny doubt
about the defendant’s guilt is to be resolved by the fact finder unless the
evidence is so weak and inconclusive that, as a matter of law, no probability
of fact can be drawn from the combined circumstances.” Id. (quoting
Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa.Super. 2011)). This is not
such a case.
The Commonwealth presented a compelling circumstantial case,
anchored by evidence that Appellant was seen in possession of the murder
weapon shortly before the murder, and arrested in possession of the murder
weapon less than one day after, which he admitted was his weapon. Two
witnesses, Jasmine Holmes and Quames Foster, provided details that, taken
together, linked Appellant to the robbery and murder. Ms. Holmes established
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that she was a drug dealer who conducted drug transactions on the street
outside her home. She recognized Appellant as a friend of Kyle Brown who
lived across the street, and she saw him on perhaps ten occasions on Dauphin
Street, and that he had witnessed her conducting drug sales.
Mr. Foster’s testimony established that Appellant was in possession of
the murder weapon a few days before the crime occurred and the morning
after. On the day of the murder, Appellant called Foster and mentioned that
he was planning to “shake something down,” which Foster took to mean a
robbery or stealing from someone. N.T., 9/10/19, at 172. Late that evening,
Appellant called and asked Foster to pick him up at 15th and State Streets, a
location near the scene of the crime. Appellant was there when he arrived ten
to fifteen minutes later. Foster described Appellant as “visibly shaken” and
“paranoid,” and afraid of drawing attention to the vehicle. Id. at 176. When
they passed a police car on State Street, Appellant “ducked down” so that he
would not be seen. Id. at 177.
When Mr. Foster retrieved Appellant the next morning from Steelton,
Appellant had the black Beretta. Id. at 183. Foster reported to Appellant that
there had been a lot of police activity on Dauphin Street the night before, a
fact he mentioned because he knew that Appellant had family or friends at
that location and that he might want to check in with them. Appellant told
him that they were okay. Id. at 182. Foster saw Appellant early that
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afternoon when he was being removed from a vehicle by police at 6 th and
Maclay. During that encounter, police confiscated the murder weapon.
We find that the evidence was legally sufficient to permit the jury to find
beyond a reasonable doubt that Appellant committed murder in the second-
degree and robbery. The evidence established that Appellant attempted to
break down the door at 621 Dauphin Street to rob the occupants, and that in
the course of this robbery attempt, he shot and killed Patrice Allen. Unlike
the evidence herein, there was no evidence in Bybel linking the defendant to
the murder weapon prior to the murder. The instant case is far more
analogous to Chambers, in which the evidence revealed that the defendant
was seen shortly before the murder arguing with the victim and holding a
large stick, and shortly after the murder carrying a wooden axe handle. The
evidence that Appellant possessed the murder weapon both before and after
the shooting is sufficiently proximate in time as to permit the jury to find
beyond a reasonable doubt that he committed the crimes charged. Hence,
Appellant is not entitled to relief on his sufficiency claim.
We turn now to Appellant’s claim that the verdict was against the weight
of the evidence. When we review a weight of the evidence claim, our standard
of review is distinct from the standard applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
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reviewing a trial court's determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court's conviction
that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted,
emphasis in original) (quoting Commonwealth v. Widmer, 744 A.2d 745,
753 (Pa. 2000)).
Appellant contends that his convictions were against the weight of the
evidence because “the testimony of Jasmine Holmes and Quames Foster was
unreliable, contradictory, and inconsistent with the remainder of the evidence
presented at trial.” Appellant’s brief at 20. He alleges that many people knew
Ms. Holmes was a drug dealer. Furthermore, there was no evidence of any
“animosity between Kyle Brown, Jasmine Holmes, Patrice Allen, and therefore
Appellant.” Id. at 21. He suggests further that the only evidence that he
possessed the murder weapon prior to September 25 was offered by Foster,
whose testimony is suspect. He alleges that Mr. Foster only offered the tip to
police after he observed that Appellant was stopped by police on September
26, that he received $1,000 for providing the tip, and further, that he was
accorded favorable treatment in a pending drug possession charge.4
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4 We note that evidence that many people knew Ms. Holmes sold drugs, that
Ms. Holmes knew Kyle Brown and his sisters, and that there was no animosity
between them was placed before the jury. The jury also heard that Mr. Foster
received $1,000 for his tip to police and that pending charges were disposed
of in his favor. The jury was free to believe or disbelieve these individuals.
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Moreover, no testimony placed him on Dauphin Street on the night of
September 25, 2017. Id. at 22. Hence, Appellant claims that the verdict is
against the weight of the evidence, and requests that his convictions be
overturned as “the Commonwealth’s evidence was so patently unreliable
and/or contradictory as to make a verdict based thereon pure conjecture.”
Id. at 24.
The trial court cited the applicable law governing the weight of the
evidence. It relied upon Commonwealth v. Cruz, 919 A.2d 279, 282
(Pa.Super. 2007), for the proposition that
A verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when ‘the figure of justice totters on her
pedestal,’ or when ‘the jury's verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.”
See Trial Court Opinion, 3/30/20, at 5.
Applying that test, the trial court did not find the verdict to be against
the weight of the evidence. The trial court’s determination was not manifestly
unreasonable or the product of bias or ill-will, so we have no basis to disturb
it.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/04/2021
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