Com. v. Davis, J.

J-S10026-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JESSIE DAVIS :

:

Appellant : No. 3387 EDA 2016

Appeal from the Judgment of Sentence September 19, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0003341-2014

BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.: FILED MAY 14, 2018

Appellant, Jessie Davis, appeals from the judgment of sentence

entered on September 19, 2016 in the Criminal Division of the Court of

Common Pleas of Philadelphia County. We affirm.

Briefly stated, the relevant facts and procedural history of this case are

as follows. During the early morning hours of February 16, 2014, Appellant

shot two men in the head during gunpoint robberies that took place shortly

after the men exited a Chinese restaurant. Thereafter, on December 22,

2015, Appellant waived his right to a jury and proceeded to a bench trial.

After receiving the evidence, the court, on December 23, 2015, found

Appellant guilty of two counts each of attempted murder, 1 aggravated

____________________________________________

1 18 Pa.C.S.A.§§ 901(a) and 2502.

J-S10026-18

assault,2 and robbery.3 The trial court also found Appellant guilty of one

count each of conspiracy to commit murder,4 possession of a firearm not to

be carried without a license,5 and carrying a firearm on the public streets of

Philadelphia.6

On July 14, 2016, the court sentenced Appellant to an aggregate term

of 25 to 50 years’ incarceration. Appellant subsequently moved for

reconsideration of his sentence.7 After vacating Appellant’s original

sentence, the trial court, on September 19, 2016, ordered Appellant to serve

20 to 60 years in prison. This appeal followed.8

____________________________________________

2 18 Pa.C.S.A.§ 2702(a).

3 18 Pa.C.S.A.§ 3701(a)(i).

4 18 Pa.C.S.A.§§ 903(a) and 2502.

5 18 Pa.C.S.A.§ 6106(a).

6 18 Pa.C.S.A.§ 6108.

7 Appellant’s post-sentence motion did not challenge the weight of the

evidence.

8 We shall treat the instant appeal as timely filed pursuant to the prisoner

mailbox rule, which holds that an appeal is deemed filed by an incarcerated

individual acting pro se when it is placed into the hands of prison officials,

even if it is actually received by the court after the deadline for filing appeal.

See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). Here, the

record reveals that the trial court imposed Appellant’s judgment of sentence

on September 19, 2016. Thus, Appellant had until October 19, 2016 to file

his notice of appeal. See Pa.R.A.P. 903(a) (notice of appeal shall be filed

within 30 days after the entry of the order from which the appeal is taken).

Appellant’s pro se notice of appeal bears a date stamp indicating that the

(Footnote Continued Next Page)

-2-

J-S10026-18

In his brief, Appellant challenges the sufficiency of the evidence

underlying his convictions, arguing that his identity as the perpetrator of the

instant crimes was not proven beyond a reasonable doubt. In the

alternative, Appellant claims that the evidence of his identification was so

unreliable that the trial court abused its discretion in concluding that the

guilty verdicts were not contrary to the weight of the evidence.

We carefully reviewed the certified record, the pertinent case law, the

submissions of the parties, and the opinion of the trial court. Based upon

our review, we agree with the court that the evidence was sufficient to

demonstrate Appellant’s guilt beyond a reasonable doubt. See Trial Court

Opinion, 4/26/17, at 5-11 (examining Appellant’s challenge to the sufficiency

of the evidence). Because the court adequately and accurately addressed

Appellant’s sufficiency challenge, we adopt this aspect of the trial court’s

opinion as our own. Accordingly, the parties are instructed to attach a copy

of the trial court’s opinion to all future filings pertaining to our disposition in

this appeal.

(Footnote Continued) _______________________

clerk’s office received it on October 20, 2016. Because the date of receipt is

one day after the 30-day appeal deadline, we infer that Appellant placed the

notice into the hands of prison authorities no later than October 19, 2016.

See Jones, 700 A.2d at 426 (Supreme Court “inclined to accept any

reasonably verifiable evidence of the date that the prisoner deposits the

appeal with the prison authorities”). We further note that, on April 10,

2017, Appellant, through counsel and with leave of this Court, filed an

amended notice of appeal to clarify that he sought to challenge the

September 19, 2016 judgment of sentence and not the December 23, 2015

guilty verdict.

-3-

J-S10026-18

We also find that Appellant is not entitled to relief based upon his

challenge to the weight of the evidence. As a preliminary matter, Appellant

waived appellate review of his weight claim because he failed to challenge

the weight of the evidence before sentencing or by way of a post-sentence

motion. See Pa.R.Crim.P. 607(A) (“A claim that the verdict was against the

weight of the evidence shall be raised with the trial judge in a motion for a

new trial: (1) orally, on the record, at any time before sentencing; (2) by

written motion at any time before sentencing; or, (3) in a post-sentence

motion.”); Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super.

2014) (failure to properly preserve weight claim in post-sentence motion, by

written motion before sentencing, or orally on the record prior to sentencing

results in waiver, even if trial court addresses the issue in its opinion),

appeal denied, 159 A.3d 941 (Pa. 2016); Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”). Even if we were to reach the merits of Appellant’s weight

claim, we would not find that the trial court abused its discretion in rejecting

his contentions. See Trial Court Opinion, 4/26/17, at 11-13 (evaluating

weight claim and crediting complainants’ consistent and confident testimony

that Appellant perpetrated the offenses in this case). For each of the

foregoing reasons, we conclude that Appellant is not entitled to relief based

on the claims raised in this appeal.

Judgment of sentence affirmed.

-4-

J-S10026-18

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/14/18

-5-

Circulated 04/23/2018 11:35 AM

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA FILED

TRIAL DIVISION - CRIMINAL SECTION APR 2 6 2017

Office of Judicial Recorc

Commonwealth of Pennsylvania CP-51-CR-0003341-2014 Appeals/Post Trial

Nr.

SUPERIOR COURT

Jessie. Davis NO. 3387 EDA 2016

CP-51-C13-00033412D14 Comm v. Davis,. Jessie

Opinion

OPINION

11111,191161111,1111111

Ehrlich, J.

Jessie Davis, hereinafter Appellant, was found guilty of attempted murder, robbery,

aggravated assault, conspiracy, and possession of an instrument of crime following a waiver trial

on December 23, 2015.1 The charges stem from a robbery and shooting that occurred in North

Philadelphia on February 16, 2014.

Appellant was sentenced on September 19, 2016, to an aggregate term of twenty to sixty

years of incarceration. A timely appeal followed,

On appeal, Appellant avers two points of error:

1. Was the evidence in this matter insufficient to sustain a verdict of guilt on all

charges (Attempted Murder, Aggravated Assault, Robbery, Criminal

Conspiracy, Violation of the Uniform Firearm Act §6106, Violation of the

Uniform Firearm Act §6108, and Possession of an Instrument of Crime)

where the sole eyewitness's identification testimony was contradictory and

unreliable (based on the location, design, and placement of the shooter's face

tattoos), and where otherwise the only identification of the defendant as

shooter was made based on the color and style of the jacket the defendant was

wearing?

2, Where the judgment of guilt and judgment of sentence on all offenses

(Attempted Murder, Aggravated Assault, Robbery, Criminal Conspiracy,

18 Pa,C.S.A. §§ 6106(a)(1), and 6108, respectively.

Violation. of the Uniform Firearm. Act 0106, Violation of the Uniform

Firearm Act and Possession of an Instrument of Crime) against the

weight of the evidence, where the sole eyewitness's identification testimony

was contradictory and unreliable (based on the location,. design, and

placement of the. shooter's face tattoos), and where otherwise the only

identification was made due to the shooter's clothing?

.Appellants Pa.R.A.P. 1925(b) Statement.

As will be. discussed below, these claims are without Tnerit Accordingly, no relief is due.

The Evidence

On February 16, 2014 at approximately 1 :00 a.m., Tornas Albaladejo and Jose Reyes,

herein after the complainants, entered a Chinese food takeout restaurant at 3670 Franktord

Avenue. .Notes of Testimony ("N.T..") 12/22/2015, at 13. Mr. Albaladejo and Mr. Reyes are.

brothers-in-law. Id. While walking into the store, Mr; Albaladejo looked up. and saw Appellant.

Id. at 16. The Chinese store was well lit. Id. Mr. Albaladejo stated Appellant had on a green

jacket with a. hoodie pulled over his head. Id: Appellant's face was visible. Id. Mr. Albaladejo

stated he noticed Appellant because of his unique facial tattoos. Id. Appellant has a tattoo

depicting a bag of money and:a lightning bolt on his forehead. Id. at 85. Mr. Albaladejo stated

he. has never seen anyone with those particular type of tattoos before. Id.. The Appellant then

exited the store. Id.

.Mr. 'Reyes cannot read, write.or.understand the Englishlariguage,.sa.Mi...Albaladefo

helped him order from the menu.. Id. After about five to ten minutes, Mr. Reyes received his

food and the men exited the store. Id. at 17. The pair proceeded down Frankford Avenue. Id,.

Mr.: ReyeS. was walking a foot or two ahead when Mr. Albaladejo heard footStepS running

behind them. Id: at 23. He turned around and..sawtWo.individualS running toward them. Id. All

of .a.sudrien; Mr. ..Albaladejo heard a pop.and.felt a ringing sound in his ear. Id. He.had.been

shot in the back of his head behind his ear. Id. at 25. His nose. and mouth started to bleed. Id. at

2

37. He turned and saw Appellant, the same individual he saw in the Chinese restaurant minutes

earlier, Id. at 26. Appellant had :a gun in his hand and was wearing the same green coat he had

on in the Chinese restaurant. Id. at 27.

Appellant walked over to Mr. Reyes, who was about five feet away from Mr. Albaladejo.

Id. Appellant told Mr. Reyes, "Give me your wallet." Id. at 28.. Since Mr. Reyes does not

understand English, Mr. Albaladejo translated Appellant's instructions into Spanish. Id.

Appellant pointed the gun at Mr. Reyes' forehead and said "You think I'm playing?" Id. at 29.

Mr. Albaladejo told Mr. Reyes to give Appellant his wallet and, "whatever [else] he wanted."

Id. Mr. Reyes handed Appellant $40 in cash. Id. Appellant then shot Mr. Reyes in the back of

the head. Id. at 31. Appellant then walked back to Mr. Albaladejo who was bent down on one

knee. Appellant held the gun two inches from Mr. Albaladejo's forehead and said, "Give me

your wallet." Id. at 34. Mr. Albaladejo then handed his wallet to the Appellant Id.

A second unidentified man was standing one or two feet away during the incident. Id: at

38.. During the robbery, the man seemed to be acting as a look -out. Id. After Mr. Albaladejo

handed over his wallet, the man said "Let's go" and the pair walked in the direction of the

Chinese restaurant. Id. at 35.

After the assailants fled, Mr. Reyes pulled Mr. Albaladejo to his feet. Id. at 36. Mr.

Albaladejo held onto Mr. Reyes as the two stumbled.to. Mr. Albaladejo's mother-in-law's house

on Pickwick Street. Id. When they arrived, Mr. Reyes called 9-1-1 and police arrived shortly

thereafter. /d.

At 1:20 a.rn. on. February 16, 2014, Philadelphia Police Officer Creely, and his partner

Officer Mendez, were on routine patrol when they received a report of a shooting that occurred

on the 3.600 block of Frankford Avenue. N.T. 12/23/15 at 35. As Officer Creely reached

3

Frankford and Castor Avenues, he: received a.nother.report this one for .tWo males Shotit 21:70

PickWick Street. Id: at 36. Officer .Creely traveled approxiinately half a city block to ire.ach

Pickwick Street. Id. He observed blood On the front door of the residence. Id. The

.

complainants met him at the door' and explained how they had just been shot. Id. Mr.

Albaladejo told Officer..Creely their.asSailant was a black Male, with tattoos, on his face, wearing

a green. coat with a hoodie. Id. at 3$. They also...stated A. second male:wasPresent.but no'

provided 'further information. Id. The complainants were transported by rescue to Temple

University Hospital. ../d.

Detective Dennis Dusak was assigned' to the' case .on.February 16,, 2014. to. recover the

Chinese restaurant's surveillance video. Id. at 42. Detectice.D.usak interviewed Mr. :Albaladejo.

on February 19; 201.4. arid:shOwed him still.Photosi from the February 16,.2014 surveillance

video. He asked Mr. Albaladejo if he recognized the man in the. still photos as the individual

who shot him.thatnight. JcL at 40. mr: Albaladejo *said; "Yes...that:is the person [described."

Id, at 47.

Based on this. information, DetectiveDusak developed aphoto of the, suspect 'and

researched his name, address and other identifying information., Id.. The male was identified as

Appellant,. Jesse Davis, from 3710 Frankford4v.enue This address is five.houses away from the.

Chinese...restaurant. Id. Detective Dusak then compiled a.photo. array of seven similar looking

males to pent-to each. complainant. Id. at 5.1. Detective Dusak stated hedid.notrelay to:the

complainants any information regarding.theindividnals inthe photo array. Id: Once presented

theatray, Mr.. Albaladejo picked oitt.the Appellant. Id.. In fatt, Mr. Albaladejo *stated he was

"one, hundred percent 'sure thisisliepetson." Id.. at 51

4

Detective. Daniel Murawski also presided:over the. shooting investigation. Id. at 71. At

36:381 Castor Avenue, he recovered one live round: with blood' on it, orie fired cartridge easing,.

and 'another fired cartridge casing next:to:a brick wall. Id. at 76. 'The..CaSings and live round

WerefOundin the saniegeneralarea; about three feetapart. id. Castor Avenue is"two blocks

away.from where the Shooting.ocCurred.

Ballistic results were stipulated, to between counsel. Iq, Testing established four items

were recovered: one: live round arid.three fire *cartridge casings. Id. at.80. Microscopic

.examinatiOns..deternrined..fired cartridge, casing oneand.fired cartridge casing two Came from the.

same gun. Id. No microscopic markings would permit firearm identification for the live round.

'However, Detective Daniel Murawski stated'"therels evidence all rounds, originated from :a 25

caliber fired/M." Id.. In addition, it was stipulated between connSeilliat Appellant did not have a

proper license and was ineligible to e airy a weapon on the datein question. ../d

Discussion,

Sufficiency of the.vidcnce.

Appellant conten4m..appeal that theevidenc.e was insufficient to sustain his convictions*

for attempted murder, robbery, aggravated .assault; conspiracy., and possession Of an instrument

of crime,

T.he standard of review by which' a:reviewing coUrt must as8ess.th0 sufficiency of the

evidence:1s well -settled. "When reviewing a challenge the.$1gfeiency.bf.the 'evidence, we

must regard :all the.eViderice in the light most favorable: to theVerdia 'winner,., giving 014 party

'the* benefit of all teasbnal*.infetpncs." Cfpnynonwealth.y.:13edford, 50 A.3d 707, 711 (Pa.

Super. 2012) (internal citations omitted).. In addition:

"[T]he facts and circumstances .established. by the Commonwealth need 'not

preclude every possibility of intooetice.: Any doubts :regarding a clefendarit's..guilt.

5

May be resolved by.tht.factJfiridetleSS the evidence so weak and inconclusive

that .as a matter of law no probability of fact may be drawn -fiorn the combined

eirciutstances. 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 recordmustbe.evaluated.

and all evidence actually received must be considered. Finally, the finder of fact

while passing. upon the credibility Yof witnesses and the weight of the evidence

produced, is free to believe all, part or none of the evidence."

:Commonwolth v. Nypaver, 69 A.2d 7.08; 714 (Pa. Super. 2013) (citations omitted).

A.person.may be convicted of attempted murder "if he takes.a.substantia1steptoward the.

commission of a killing, with the. specific intent in mind to commit such an act." Commonwealth

v. Hobson, 604 A.2d 717, 719 (Pa. Super. 1992). "The intent which is a prerequisite to a finding.

of murder is . aforethought' or simply, malice." Id. at 719-720. Malice is synonymous

with either *a wickedness of disposition, crucity, recklessness of consequences, indicating

unjustified disregard for the probability of death or great bodily harm. Id. at 720. Alapt-.finder

can properly infer malice from the use of a deadly *weapon on a Vital Part of the complainant's

body. Commonwealth v. Siebert, 622.A,2d.361:364 (Pa. Super. 1993).

Viewing the eyicknoe in a light most favorable to the Commonwealth as verdict 'winner;

Mr. Reyes testified to watching the Appellant point a small automatic handgun, at close range, at

Mr. Albaladejo's head and pull the trigger. The bullet hit Mr. Albaladejo in the neek.and exited

through the nose breaking his nasal bone. So011, after, Appellant fired a shot in the back of Mr.

Reyes' head. These actions qualify as substantial .steps in the commission of a killing. The

intent requirement for attempted murder is also. sat tied because the Appellant used A *deadly

i

weapon (a firearm) on perhaps the most vital part of hc complainants' body (the head). Seibert,

supra.

.6

In the instant case; Mr. Albaladejo testified to the f011OWirig.on directeXamination by the

district attorney:

..EDGAR JARAMILLO: What was Mr. Davis doing? What 'was he doing with the

gun with your brother-in-law? What was he, :saying' to. your brother-in-law?.

T.OMAS..ALBALADEJO: He said, "Give, me. your wallet," He...Witched *the gun

back and said "You think Pm playing?"

EDGAR JARAMILLO:.What did you say to help yourbrother-in-law?

*TOMAS ALBALADEJO: I told him to do what [the .defendant] says, to come

'down. And sole.hentdov.vnto.his.knees. And whenhe gave hitn.his wallet; he shot

him.

EDGAR JARAMILLO: When you were .talking to :your brother-in-law .and you

were' telling, your brother-in4aw to kneel...to give his wallet did. the. 'defendant

look at you?

TOMAS ALBALADEJO.: Yeah...after he, shot hirn,.hecartietbward me and he was

like, "Give. me your wallet" and put the.guritO

EDGAR JARAMILLO: Was he in front of you When he'put the:.gun up to your

head?

TOMAS AL:13ALADE40.: Yes.

N.T., .12/22/2015 at 29-33..

The' above testimony more than. adequately demonstrates Appellant's intent to murder the:

cOnipfainaritg and the substantiEd :steps -he took toward the accomplishment ofthat objective,, 'The

phySical demeanor of the Appellant, threatening language and use of a deadly weaponion 'a, vital

part of the body all exhibit an intent to inflict deadly harm on the cOmplainantS.: In addition,

7

Detective Daniel Murawski recoyered.one liVe round.Withbloodionit.and two fired: cartridge

casings .at 3638 Castor Avenue:

There was also no testimony presented that, cOnflicted.with the eyewitnesses' above

testimony. Therelbre, the evidence presented by the Commonwealth was.stifficierit for the jury

to convict Appellant of attempted murder.

The relevant portions' of.the robbery statute are as, follows:

§.3 701 . Robbery

Offense defined.-

(1) A person guilty ofrobbery if; in the *course of committing:a theft, he*:."

*

(ii) threatens another with or intentionally puts him in fear of

immediate serious bodily injury;.

C.S.A.:§. 3.701.

Similarly, Appellant, argues that the evidence was insufficient to eonviethitn of robbery..

in the instant case, Mr. Albaladejo and Mr. Reyes 'were approached by Appellant, forced to their

knees; and -held at gunpoint until their belongings were taken. Appellant:told each complainant,

"Give me. your wallet:, .totichedthe gun back" and said "You think Pirt playing?" This is

sufficient to find the complainants' belongings Were taken by force. The eVidenCe.shOws

Appellant threatened Albaladejo and Mr. Reyes. These. faelsestablish all the elements

of rObbery. Therefore, the: evidence. presented by the CornmonWealth.was.sufficient fOrthe.jury

to 'convict Appellant of rcibbery..

Likewise, the Commonwealth's evidence establishing aggravated assault was equally

adequate, Under Permsylvanialaw, a. pers9n..is, guilty of aggravated assault if he. "attempts to

-cause serious bodilyinjury to another, or causes such injury intentionally, knowingly or

8

recklessly under circtunstances manifesting extreme indifference to the value of human life." 18

Pa. C.S. § 2702 (a)(1). Where the victim suffers serious bodily injury, the Commonwealth is not

required to prove specific intent. Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super.

2007)

The Commonwealth need only prove [the defendant] acted recIdessly under the

circumstances manifesting an extreme indifference to the value of human life. For

the degree of recklessness contained in the aggravated assault statute to occur, the

offensive act must be, performed under circumstances which almost assure that

injury or death will ensue.

Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super, 2007) (quoting Commonwealth v,

Nichols; 692 A.2d 181; 185 (Pa. Super. 1997) (internal citations omitted)).

The elements of aggravated assault are necessarily inehidedinthe offense Of attempted

murder and merge with it for sentencing purposes. Indeed, every element of aggravated assault

is subsumed in the elements of attempted:murder, .Commonwealth v. Anderson,..650

(Pa. 1994).decisiOri modified on denial Ofreargunient, 653 A.2d 6.15 (Pa,. 1994) (amending the

court' S. previous order to includevaotingthe.judgment of sentence for attempted murder and

possession.of aninstrument.of crime in addition to, aggravated assault, andremandingfor

res.eritencing);. See, 1.8..Pa.C.S, §2301 arid 2702(a)(1), Because the fact -finder determined that

there was Sufficient:evidence to:conclUdethateach element of the.offensepf attempted murder

was satisfied beyond a reasonable doubt, it.f011ows, that each: element of the Offenstiof

aggravated assault is also -satisfied.. Thns,.the Appellant's claim regarding theinSufficiency.Of

evidence for aggravated assault must fail.

FarthermOre, the Conitrionwealth's.evidence establishing criminal conspiracy was.

equally. adequate. The relevant portions oldie criminal conspiracy statute are as follows:

§ 903... Criminal conspiracy

9

(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 of 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 anempt or solicitation to commit such crime.

18: Pa. C.S. 903.

[T10 sustain a conviction for criminal conspiracy, the Commonwealth must

establish that the defendant: (1) entered into an agreement to commit or aid in the

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. Murphy, 795 A.3d 1025, 1037 (Pa. Super, 2002):.

Furthermore, "[w]bile the Commonwealth is not required to prove a written or express

agreement, a tactic agreement must be established by reasonable inferences arising from the facts

and circumstances." Commonwealth v. Savage, 566 A.2d 272, 276 (Pa, Super. 1989). Therefore,

an agreement may be inferred between co-conspirators from the facts of the' case.

The Commonwealth presented sufficient evidence to prove beyond a reasonable doubt

that an overt agreement to rob the two victims was formed between the Appellant and the

unidentified accomplice. In the, instant case, Appellant, and the second male approached the

complainants on Castor Avenue. As Mr. Albaladejo testified, this man appeared to be acting as a

look-out. While the Appellant held a gun to each complainant's head and demanded their

belongings, the individual stood close by. After the Appellant confiscated Mr. Albaladejo's

wallet, the second male said "Let's go" and the pair walked away together. The facts and

circumstances and specifically, the ongoing conduct of the' assailants, clearly established a

conspiratorial agreement between Appellant and the other individual on scene. Therefore, the

evidence was sufficient to convict Appellant of criminal conspiracy.

10

The relevant portion of the possessing an instrument of crime statute is as follows:

§ 907, Possessing an instrument of crime

(a) Criminal instruments. generally -A person commits &misdemeanor of the first

degree if he possesses .any instrumentof.crime with intent to employ it criminally..

18 Pa:C.S.A. § 907:

Under this prOVision, the Commonwealth Must prove two elements: (1) possession Of an

object that iS. a Weapon;. and (2) intent to use thatweapon fora criminal ptirpose. Jn re4C, 763

A.2d 889,.890-91 .(Pa; Super. 2000) (citing Commonwealth v. Hardick, 380.A.2d 12354.1:236 (Pa.

1977). Itis well established that& loaded firearm is a weapon, so only the question of criminal

intent is :at.iSsue. and easily resolvecl...$ee:CpnimPovecilth v. Harley, 41:8 A.2d 1354, 1357 (Pa.

Super, 1980).. Appellant's criminal intent was made when he beld.a.gun two inches

away from Mr. Albaladejo's head and Mr. Reyes' head and demanded their. property. As such,

the evidence is sufficient to eonyict.Appellant ofpossessing an instrument of crime.

Weight of the Evidence

Appellant next contends that theNerdictwas against the weight of the evidence: This

claim should fail because the standard of review for evaluating a Weight -Of-the -evidence. claim is

well established and very narrow: CoMinoimea/thy. Chamfinqyi 832 A2d..403, 407 (Pa. 2003).

Determining the weight of the evidence is reserVediexchisivelyfor the finder of fact, Id..gt

Again, the. finder of fact is free to. helieve.all, part, or none of the.. e.videnCe and to.determinethe

credibility of.the.witnesses. Id. Thus,.an appellate...court can only teyerse.the lower court's

verdict if it is so contrary to the evidence as to shock one's sense .of justice. Id; See also

commonwealth R.Johnsani 668 A.2d 97, 101 (Pa. 199.5). Because the trial judgeis in the:best

.poSiticidlo. view the evidence presented,.. an appellate court Will give that judge the utmost

11

consideration when reviewing the court's determination On whether the* verdict is against the

Weight ofthe.evidence. Commonwealth Morgan, 913. A.2d 906 (Pa. Super. 2006),

A:"triie weight-of-the -evidence challenge concedes that sufficient evidence exists to

sustain. the verdict but.questions which evidence is 0.bQ believed." Commonwealth. y. Charlton,.

902. A.2d.554, 561 (Pa. Super.. 2006). Moreover, anew trial should not be: granted in a criminal

prosecution because *of a mere conflict in. the testimony of.because the judge, on the.s.attle.factS,

may have arrived.4 a different.conclusion. Commohwealth v. Widmer, 744.A.2d 745,752' (Pa.

2000).

To be against the weight of the evidence, the verdict must shock one's sense of justice:or

be an abuse.of discretion by the trial court. Id.. As described supra, the, evidence.presented. at.

trial was' sufficient to support a conviction for attempted murder, robbery, aggravated assault,

conspiracy' and possessing an instrument of crime. 'With that analysis in mind,.one..must. consider

whetherthe..verdict in this case shocks one"s:.sense. ofjustice or.represents, an abuse of discretion..

Given thestrengthand consistency ofthetestimpny pres.entedbythe Commonwealth's

witnesses, it, does neither. Id,.

In the instant case, the court.chose to, credit the testimony of the complainant,. the police

officer and deteetivesiinveStigating the case; The evidence found 'credible by the point was

.clearly.presented... It showed the complainant Observed Appellant in the Chinese restaurant

Minutes before Appellant robbed the two Men. .Albalaclejoi immediately recognized

Appellant, when he:approached the complainants on, FrankfordAvenue, due to. his unique tattoos

'and. green:coat. Mr. .Albaladejn positivelyidentified Appellant when he. was shown a photo. array

by. Detective Dusalc.. 'He, stated he was one:Inindred present sure" Appellant was the individual

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who shot and robbed the pair when he saw his photo. He also positively identified Appellant at

trial.

Furthermore, Mr. Alhalaclejo and: Nit. Reyes' testimony was consistent throughout the

police investigation and at trial, notwithstanding Mr. Reyes' .language bmiet. The court had the.

opportunity to observe any claimed inconsistencies in thewitnesses' testimony. The fact that the

Appellant was. fOund .guilty after all the evidence Was presented. was not .contrary.tOthe:.evidence

or shocking to the conscious, As stated, determining.a weight of the .evidenceclaim is reserved

exclusively for the fact -finder and should not be dishithedabsent an abuse of discretion.. No.

abuse of discretion occurred in the instant case

For the foregoing reasons, Appellant's: claim that: the verdict was against the weight of

the: evidence must also fail.

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Conclusion

ii sunimary, this ..colut has carefully reviewed the entire record and finds no::harmftil,.

prejudicial, Or reversible .errof and nothing:to justify the granting. of Appellant's request for

relief. For thereasons set forth. aboye, the judgment of the. trial court should be.affirmed.

J.

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