J-S80034-18 (Pa. Super. Ct. Mar. 11, 2019)

J-S80034-18 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.:

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). 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.

18 Pa.C.S. §§ 903, 2502(a), 3701(a)(1)(i), 6106, 6108, and 907, respectively.

The trial court summarized the relevant facts of this case as follows:

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.

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

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.

* * *

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."

"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.

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.

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.

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.

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 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

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

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.

(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).

"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.

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." 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. 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.

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.

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. Appellant's Brief at 38. The Commonwealth concedes that Appellant's conspiracy sentence requires amendment. Commonwealth's Brief at 18.

Appellant did not raise this claim in his post-sentence motion or Rule 1925(b) statement. --------

"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. P.J.E., Bender joins the memorandum. Judge Bowes files a concurring and dissenting statement. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/11/19

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