Com. v. Serrano, L.

J-S06008-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS SERRANO, :
:
Appellant : No. 705 EDA 2020
Appeal from the Judgment of Sentence Entered October 3, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006365-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS SERRANO, :
:
Appellant : No. 706 EDA 2020
Appeal from the Judgment of Sentence Entered October 3, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006366-2014
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED APRIL 21, 2021
Luis Serrano appeals from his October 3, 2018 judgment of sentence
for, inter alia, conspiracy to commit murder. Appellant first alleges that the
trial court improperly permitted the Commonwealth to amend the bills of
information to include a conspiracy and an attempted murder charge following
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* Retired Senior Judge assigned to the Superior Court.
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the reconvening of the indicting grand jury. He also claims the evidence was
insufficient to sustain the conspiracy conviction. Based in large part on the
opinion of the trial court, we affirm.
Our review of the record supports the trial court’s summary of the
evidence presented at trial. Nilzon Feliciano Sr. testified that he paid Appellant
$400 to install a transmission in his car. Feliciano subsequently came to
believe the transmission was faulty, and sought a refund for his $400
payment. This dispute festered for several months, culminating in the incident
that forms the basis of the charges against Appellant.
On February 5, 2014, Nilzon and his son were on the block of Appellant’s
home when they saw Appellant outside and demanded a refund. Appellant
responded by retrieving a firearm from his home and telling the Felicianos that
he was not going to pay them, so they should leave or he would kill them. The
Felicianos decided to leave, but quickly changed their mind.
As they walked back towards Appellant’s home a few minutes later, they
saw Appellant’s co-defendant and purported son-in-law, Emmanuel Sanchez,
standing on Appellant’s front porch brandishing an AK-47 rifle. The Felicianos
indicated that they simply wanted their money back. Sanchez responded by
firing the AK-47 at them. The Felicianos ran, and managed to escape without
being struck by any bullets. See Trial Court Opinion, 3/6/20, at 4-5.
The Felicianos called the police. They were able to make a positive
identification of Sanchez at his house later that same day, and Sanchez was
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arrested. Nilzon subsequently identified Appellant from a photo array.
Appellant absconded but was eventually arrested on charges of firearm
violations, possession of an instrument of crime (“PIC”), terroristic threats,
simple assault and reckless endangerment of a person.
The Commonwealth sought and obtained indictments against Appellant
for those charges via an indicting grand jury on May 8, 2014. The
Commonwealth then filed an information charging Appellant with those
crimes. A joint trial for Appellant and Sanchez was scheduled for February 17,
2015.
On January 10, 2015, Appellant filed a motion to sever his trial from
Sanchez’s. In response, the Commonwealth filed a motion to consolidate,
which the trial court ultimately granted. The Commonwealth also filed a
motion to amend the bills of information against Appellant under Pa.R.Crim.P.
564, seeking to add the charges of attempted murder and conspiracy to
commit murder. The trial court denied the motion to amend the bills of
information,1 but further discussed the amendment at a hearing on February
9, 2015. At that hearing, the Commonwealth explained:
The charges at the initial [indicting grand jury] were not amended.
[Appellant] was indicted on the charges as they were. After the
case came together it was decided by the office that both
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1 The trial court’s opinion does not state the reasons for the court’s denial of
the motion. The docket reflects that the motion was denied on January 30,
2015, but there are no notes of testimony from any hearing held on that date
in the certified record nor is there an order explaining the reasons for the
denial in the certified record.
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[Appellant and Sanchez] should have been charged with the
attempted murder charge.
N.T. Hearing, 2/9/15, at 4.
The trial court responded that it was not aware of any authority that
prohibited the Commonwealth from “re-presenting to the grand jury” and
“having [a] superceding indictment” for the attempted murder and conspiracy
charges. Id. at 8. Therefore, the trial court continued the matter to give the
Commonwealth time to reconvene the indicting grand jury in an effort to
secure indictments against Appellant on charges of conspiracy and attempted
murder. It also rescheduled the trial date for May 4, 2015.
The grand jury reconvened on February 17, 2015 and indicted Appellant
on the charges of conspiracy and attempted murder. The Commonwealth filed
an information which added those indictments to the charges filed against
Appellant.
Appellant challenged the new indictments through both a Pa.R.Crim.P.
600 motion as well as a motion to quash. Following a hearing, the trial court
denied both of the motions.
The matter proceeded to a joint trial before a jury on May 4, 2015. The
jury found Appellant guilty of possession of a firearm as a prohibited person,
carrying a firearm without a license, carrying a firearm in public in
Philadelphia, PIC and conspiracy to commit murder. It found Appellant not
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guilty of attempted murder.2 The trial court sentenced Appellant to an
aggregate term of four and one-half to nine years’ imprisonment. After having
his direct appeal rights reinstated nunc pro tunc, Appellant filed a timely notice
of appeal. He presents two issues for our review:
I. Did the lower court err in permitting the Commonwealth to
add bills of information charging attempted murder and
conspiracy over one year after the initial grand jury
proceeding, when the Commonwealth made a conscious
decision at the initial grand jury proceeding not to proceed
on a charge of conspiracy and the Commonwealth’s motion
to amend the original bills of information had been denied?
II. Was the evidence adduced at trial insufficient to establish
the charge of conspiracy when the evidence showed no
communication or other indicia of concerted action between
[Appellant] and [Sanchez]?
Appellant’s Brief at 3.
In his first issue, Appellant essentially asserts that the trial court erred
in permitting the Commonwealth to amend the bills of information to add
charges of attempted murder and conspiracy by reconvening and then
securing indictments on those charges from the grand jury. Appellant
acknowledges in his argument section that the determination of whether to
allow the addition of new charges to a bill of information is guided by the
standard under Pa.R.Crim.P. 564. See Appellant’s Brief at 11. He appears to
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2The charges of simple assault, terroristic threats and reckless endangerment
of a person were nolle prossed.
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allege, however, that the trial court misapplied that standard to the
circumstances of his case. This claim merits no relief.
Appellant does not cite to the text of Rule 564. At the time the
Commonwealth sought to add the charges of attempted murder and
conspiracy to the bills of information in 2015, Rule 564 provided:
The court may allow an information to be amended when there is
a defect in form, the description of the offense(s), the description
of any person or any property, or the date charged, provided the
information as amended does not charge an additional or different
offense. Upon amendment the court may grant such
postponement of trial or other relief as necessary in the interests
of justice.
Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super. 2005)
(quoting the version of Pa.R.Crim.P. 564 then in effect).
In applying this Rule, however, our Court noted that case law had set
“forth a broader test for [the] propriety of amendments than the plain
language of the rule suggests.” Commonwealth v. Grekis, 601 A.2d 1284,
1289 (Pa. Super. 1992) (citation omitted) (discussing Pa.R.Crim.P. 229, which
was renumbered as Pa.R.Crim.P. 564 in 2000). That broad test, we found,
was informed by the purpose of Rule 564 to ensure that a defendant is “fully
apprised of the charges, and to avoid prejudice by prohibiting the last minute
addition of alleged criminal acts of which the defendant is uninformed.”
Bricker, 882 A.2d at 1019 (citation omitted). As such, the test to be used for
determining the propriety of the amendments to an information was
articulated as:
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Whether the crimes specified in the original indictment or
information involve the same basic elements and evolved out of
the same factual situation as the crimes specified in the amended
indictment or information. If so, then the defendant is deemed to
have been placed on notice regarding his alleged criminal conduct.
If, however, the amended provision alleges a different set of
events, or the elements or defenses to the amended crime are
materially different from the elements or defenses to the crime
originally charged, such that the defendant would be prejudiced
by the change, then the amendment is not permitted.
Id.Rule 564 was amended in 2016 to reflect this test. The current language
of Rule 564 provides:
The court may allow an information to be amended, provided that
the information as amended does not charge offenses arising from
a different set of events and that the amended charges are not so
materially different from the original charge that the defendant
would be unfairly prejudiced. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary in
the interests of justice.
Pa.R.Crim. P. 564, as amended December 21, 2016 (effective December 21,
2017). See also Pa.R.Crim.P. 564, Comment (explaining that Rule 564 was
amended to more accurately reflect the interpretation of this Rule that had
developed in case law).
Here, the trial court stated that it had found Rule 564 to be instructive
in permitting the Commonwealth to reconvene the indicting grand jury and
seek indictments for the additional charges of attempted murder and
conspiracy. See Trial Court Opinion, 3/6/20, at 14. It explained that:
[B]oth [Rule 564] and case law provide for the liberal amending
of bills of information when the new charges are not ‘materially
different’ from the original charge(s); do not stem from a ‘different
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series of events;’ and where no prejudice would result. This Court
therefore determined that when presented with a request to
amend charges brought about by indictments, our Pennsylvania
appellate courts would similarly permit the liberal amending of
indictments. Therefore, although denying the Commonwealth’s
Motion to Amend the Bills of Information, this Court did permit the
Commonwealth to reconvene the [indicting grand jury] and re-
present their evidence and seek indictments for those additional
charges. In doing so, this Court determined that the new
indictments sought[:] (1) would not be ‘materially different’ from
the original indictments[;] (2) stemmed entirely from the identical
series of events as had been initially presented to the [indicting
grand jury]; and that (3) no unfair prejudice to [Appellant] would
result.
Although the Commonwealth did not initially seek indictments for
[A]ppellant’s involvement with [ ] Sanchez, both of the
supplemental indictments for conspiracy and attempted murder
stemmed from the same series of events, namely [A]ppellant’s
threat to kill the complainants if they did not leave his front porch
area of his residence and [Sanchez’s] eventual carrying out of that
threat by firing his AK-47 at the complainants when they did in
fact return. Further, these indictments were not materially
different from those initially presented to the [indicting grand
jury] in that all charges involved the threat to kill the complainants
while either brandishing a firearm (by [A]ppellant) or by
subsequent firing of a firearm upon the complainants (by
[Sanchez]).
Finally, this Court, by continuing [A]ppellant’s trial for several
months, made certain that [A]ppellant would not be unfairly
prejudiced since he would have sufficient time to prepare for trial
once the new indictments were presented and possibly obtained
from the [indicting grand jury on February 17, 2015]. Trial was
then rescheduled to begin on May 4, 2015.
***
[T]his Court properly ruled that this Court was without legal
justification to preclude the Commonwealth from reconvening the
Indicting Grand Jury and seeking indictments. The
Commonwealth’s decision, properly permitted by this Court, to
consolidate [A]ppellant’s case with that of [Sanchez], resulted in
the need to seek further indictments against [A]ppellant prior to
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the commencement of trial. Further, this Court took appropriate
measures to safeguard against any resulting prejudice by
rescheduling the trial date so as to provide [A]ppellant with ample
time to prepare given these new charges. Therefore, Appellant’s
claim of error in this regard is without merit.
Id. at 15 (citation to notes of testimony omitted).
We see no error in the trial court’s analysis or in its conclusion.
Appellant, however, attacks the trial court’s findings with several boilerplate
allegations. First, he maintains in his “question presented” that the trial court
improperly permitted the Commonwealth to amend the information to include
a charge of conspiracy when the “Commonwealth made a conscious decision
in the original grand jury proceeding not to proceed on a charge of
conspiracy.” Appellant’s Brief at 3. However, Appellant does not even mention,
much less discuss, this contention in the argument section of his brief and it
is waived for that reason alone. See Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009) (stating that “where an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to develop
the issue in any other meaningful fashion capable of review, that claim is
waived); Pa.R.A.P. 2119(a) (stating that the argument section of the brief
“shall have at the head of each part” of the argument “the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent”).
Appellant also baldly alleges that it was improper for the trial court to
permit the Commonwealth to circumvent the court’s ruling denying the
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Commonwealth’s motion to amend the bills of information by reconvening the
indicting grand jury. However, Appellant does not in any way explain how this
was improper, cite to any authority to support his contention, or develop the
assertion in any meaningful way. Therefore, it is also waived. See Johnson,
985 A.2d at 924.
Lastly, Appellant essentially claims that the trial court should not have
allowed the Commonwealth to add the conspiracy and attempted murder
charges to the bills of information because doing so prejudiced him. To that
end, he asserts the added charges “arose from a different set of events, i.e.
the second incident involving Sanchez, and contained elements materially
different from those charged in the original information.” Appellant’s Brief at
12. He does not, however, in any way flesh out this assertion.3 Instead, he
alleges this case is “controlled by” this Court’s decisions in Bricker and
Commonwealth v. Williams, 166 A.3d 460 (Pa. Super. 2017). Appellant’s
Brief at 12. He then offers a very brief summary of those cases, without
applying either of them to his situation.
In any event, as the Commonwealth points out, both Bricker and
Williams are readily distinguishable from this case. Bricker involved a mid-
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3 It is arguable this claim is waived not only for a failure to properly develop
it, but also because it is not fairly encompassed by Appellant’s statement of
the question involved. See Johnson, 985 A.2d at 924; Pa. R.A.P. 2116(a)
(stating that “no question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”). Nonetheless,
as discussed below, the clam lacks merit.
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trial amendment to the bills of information which resulted in the appellant not
“hav[ing] knowledge of the alleged criminal conduct prior to trial.” Bricker,
882 A.2d at 1020-1021. Similarly, in Williams, the Commonwealth did not
move to amend the information until the beginning of trial and the court did
not rule on the motion until the end of the trial, at which point the court
granted the motion to amend. See Williams, 166 A.3d at 464.
Unlike both Bricker and Williams, the addition of the attempted
murder and conspiracy charges here took place months prior to trial. As the
Commonwealth observes, the indictments were added by the reconvening
grand jury which necessarily occurred prior to trial. See Commonwealth’s Brief
at 9, 11. Accordingly, as the trial court explained, Appellant had “sufficient
time to prepare for trial once the new indictments,” which “were not materially
different from those initially presented to the [indicting grand jury],” were
added. Trial Court Opinion, 3/6/20, at 15. The trial court therefore concluded
that Appellant had not suffered unfair prejudice by the addition of the new
charges. Appellant has simply not shown how Bricker or Williams compels
a contrary conclusion or that he is entitled to any relief on the basis of this
claim.
In his second claim, Appellant argues that the evidence was insufficient
to support the conspiracy charge. This claim also fails.
Evidence presented at trial is sufficient when, viewed in the light most
favorable to the Commonwealth as the verdict winner, the evidence and all
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reasonable inferences derived from the evidence are sufficient to establish all
elements of the offense beyond a reasonable doubt. See Commonwealth v.
Blakeney, 946 A.2d 645, 651 (Pa. 2008). The Commonwealth may sustain
its burden entirely by circumstantial evidence and the fact-finder, which
passes upon the weight and credibility of each witness’s testimony, is free to
believe all, part, or none of the evidence. See Commonwealth v. Ramtahal,
33 A.3d 602, 607 (Pa. 2011).
To sustain a conviction for criminal conspiracy, the Commonwealth must
prove that the defendant: (1) entered into an agreement to commit or aid in
an unlawful act with another person; (2) with a shared criminal intent; and
(3) an overt act was done in furtherance of the conspiracy. See
Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000). The
overt act need not be committed by the defendant but rather, only needs to
be committed by one of the co-conspirators. See id. “Given the surreptitious
nature of conspiracy, the existence of a formal agreement is often proven
circumstantially, such as by the relations, conduct or circumstances of the
parties.” Commonwealth v. Jacobs, 39 A.3d 977, 985 (Pa. 2012) (citation
omitted).
Here, we agree with the trial court that the evidence, when viewed in
the light most favorable to the Commonwealth, was sufficient for the jury to
find that the Commonwealth had met its burden of proving that Appellant was
guilty of criminal conspiracy. As explained by the trial court:
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Based on [the Felicianos’] testimony, [A]ppellant and [ ] Sanchez
were seen standing together on the very porch where [A]ppellant
had only moments earlier threatened to kill them with a gun that
he brandished if they did not ‘get out.’ When [the Felicianos]
returned moments later, again asking for the return of Nilzon’s
money, [ ] Sanchez opened fire on them with an AK-47. Certainly,
this evidence supported the Commonwealth’s contention that
[A]ppellant and [ ] Sanchez conspired to attack [the Felicianos] if
and/or when they returned.
Trial Court Opinion, 3/6/20, at 19.
Appellant takes issue with the court’s conclusion on the basis that
neither Feliciano described any verbal or non-verbal interaction between him
and Sanchez or any other evidence indicating that he and Sanchez agreed to
act in concert. He contends that the evidence “merely established
[Appellant’s] presence at the scene and his mere association with Sanchez.”
Appellant’s Brief at 14. These assertions have no merit.
As noted above, the Commonwealth may prove conspiracy by
circumstantial evidence alone and need not produce direct evidence of an
agreement between conspirators in order to establish criminal conspiracy. See
Jacobs, 39 A.3d at 985. The record here supports the trial court’s conclusion
that the Commonwealth produced sufficient circumstantial evidence for the
jury to infer that Appellant and Sanchez conspired to attack the Felicianos.
That evidence showed that Nilzon confronted Appellant while he was standing
on his porch, and that Appellant retrieved a gun and threatened to kill Nilzon
and his son if they did not leave. Minutes later, the Felicianos returned to the
area. Sanchez, who had a relationship with Appellant that was akin to a son-
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in-law, was standing on Appellant’s porch with Appellant while holding an AK-
47 rifle, which he then fired at the Felicianos. Contrary to Appellant’s claim,
we agree with the trial court that this evidence was sufficient for the jury to
conclude that Appellant and Sanchez had conspired to shoot the Felicianos.
See Commonwealth v. Poland, 26 A.3d 518, 523 (Pa. Super. 2011) (finding
evidence was sufficient to support conspiracy conviction where “actors’
relationships and their conduct before, during and after the criminal episode
established a unity of criminal purpose”) (citation omitted).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2021
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