Opinion
J-A34008-15 No. 537 MDA 2015
02-05-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. DANNY R. CRUZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 30, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005534-2013 BEFORE: PANELLA, J., OTT, J., and JENKINS, J. MEMORANDUM BY PANELLA, J.
Appellant, Danny R. Cruz, appeals from the judgment of sentence entered on January 30, 2015, in the Court of Common Pleas of Dauphin County. We affirm.
We take the factual history of this case from the trial court's Rule 1925(a) opinion.
On October 5, 2013, Carlos Dipres went with his friends Rafael Sanchez and Maritza David to a dance club, Anastacia's, on Sixth Street in Harrisburg to dance and listen to the band in which another friend was a DJ. [N.T., Trial, Oct. 20-22, 2015 at 56-58.] As Mr. Dipre[s] walked to the bar to order a drink, Orland[o] Ayuso-Rivera ("Ayuso-Rivera") accompanied by [Appellant], tapped him on the shoulder. [ See id. at 59.]
Mr. Dipres' acquaintance with Ayuso-Rivera dated back to 1997. In 1997, on two consecutive evenings, Mr. Dipre[s] loaned his car to his then brother-in-law and Ayuso-Rivera, who told Mr. Dipre[s] they needed the car to meet dates. [ See id. at 60-61.] At the time, Mr. [Dipres] was moving his residence and left belongs, including a shotgun used for hunting, in the trunk of the
car. [ See id.] On the second night of their use of the car, Ayuso-Rivera and the brother-in-law did not return. Mr. Dipres saw police officers and K-9 dogs surrounding the brother-in-law's home a few blocks away. [ See id. at 61.] Mr. Dipres approached the scene and told officers he was there to pick up his vehicle. [ See id. at 62.] Officers arrested Mr. Dipres, believing that he participated in the robberies of fast food restaurants on the two previous nights in which the vehicle was used. [ See id. at 62.]
Mr. Dipres told police that he was not present at the robberies. Mr. Dipres [instead] became a witness [after the] Commonwealth charged Ayuso-Rivera[] with the robberies. Mr. Dipres testified against Ayuso-Rivera at trial following which a jury trial convicted Ayuso-Rivera. [ See id. at 63-64; Commonwealth Exhibits 1 and 2.]
Mr. Dipres next saw Ayuso-Rivera in 2010 at a shopping plaza in Harrisburg. Ayuso-Rivera expressed anger towards Mr. Dipres, who sought to avoid further confrontation. [ See id. at 65; 112-113.] Dipres saw Ayuso-Rivera again in 2013, three months before the incident at issue. [ See id. at 66.]
Before, the incident, Dipres knew [Appellant] only by way of a few casual encounters in the community. [ See id. at 122.]
On the night of this incident, October 5, 2013, accompanied by [Appellant], Ayuso-Rivera tapped Dipres on the shoulder and indicated he wanted to fight. [ See id. at 60; 72; 95-96.] Security told them to [take it outside]. [ See id. at 67.] [Before Dipres followed Ayuso-Rivera outside, he] handed his cell phone and keys to his friend Rafael Sanchez [and instructed him to call the police.] [ See id. at 67.] Dipres told Sanchez that people were calling him "a rat" and "a snitch." [ Id. at 159.]
Before leaving the club, Dipres did not see a gun. [ See id. at 73.] Dipres had a knife, but he did not take it out because he believed he was going to have a fistfight with Ayuso-Rivera. [ See id. at 74-75; 107.] Mr. Dipres stepped outside into the parking lot. [ See id. at 67.] A group of approximately ten men followed Ayuso-Rivera and [Appellant]. [ See id. at 67; 98-99.]
Ayuso-Rivera and [Appellant] separated from the group and went to a car. [Appellant] returned with a gun. [ See id. at 71-72; 100-102.]
Having returned from the car with [Appellant], Ayuso-Rivera called Dipres "a rat" and "the snitch who wanted to ruin someone's life," stating, "yea, he's the snitch, he's the snitch." [ Id. at 68; 77.] The group of men who surrounded Dipres began brutally beating him with bottles, a metal [object], and punches and kicks to the head. [ See id. at 68-73.]Trial Court Opinion, 11/25/15 at 1-5.
[Appellant] approached the crowd and fired one shot which caused the group to scatter. [ See id. at 74-75.] [Appellant] then stepped back and shot Dipres four times at close range. [ See id. at 76-77.] Dipres was conscious the entire time and saw [Appellant] shoot him. [ See id. at 107.]
Rafael Sanchez testified that he went outside to the parking lot and saw the group punching and kicking Dipres. He began to intervene but stopped when he saw [Appellant] with the gun. [ See id. at 162-163.]
Officer Christopher Silvio responded to the scene where he saw people frantically waving and pointing to Mr. Dipres. [ See id. at 205; 207.] The officer observed that Mr. Dipres had been shot and was bleeding profusely. [ See id. at 206.] Emergency personnel transported Mr. Dipres to the Hershey Medical Center. [ See id. at 206.] Officer Silvio testified that in the ambulance, Mr. Dipres stated that the shooter approached him and said something to the effect of "you're a snitching bitch" or "I know you're the snitching bitch." [ Id. at 211.]
Dipres suffered a broken nose, wounds to the head from pistol whipping, and gunshot wounds to the elbow, thigh and torso which required surgery.... [ See id. at 84-89.]
Although he did [not] know [Appellant's] name at the time, Dipres identified him in a police photo array as the person who shot him. [ See id. at 132; 143; 279.] Mr. Dipres stated that he could not remember [Appellant's] name but could never forget his face. [ See id. at 139.] Rafael Sanchez also identified [Appellant] in a photo array and at trial as the shooter. [ See id. at 164; 168; 169-170; 187; 254.]
The jury viewed video surveillance film taken at Anastacia's on the night of the incident. The film depicts [Appellant] in a private conversation with Ayuso-Rivera in the crowded club then the two approaching Mr. Dipres. [Appellant] stood close to Ayuso-Rivera as he spoke to Mr. Dipres shortly before the shooting.
A jury convicted Appellant of criminal attempt - murder of the first degree, aggravated assault, criminal conspiracy - aggravated assault, criminal conspiracy - firearms not to be carried without a license, possession of a firearm prohibited, and retaliation against witness or victim. The trial court sentenced Appellant to an aggregate term of 10½ to 23 years' incarceration. Appellant filed a post-sentence motion, which the trial court denied. This timely appeal followed.
18 Pa.C.S.A. §§ 901; 2702(a)(1); 903(c); 6105(a)(1); and 4953(a), respectively.
The trial court vacated the conviction of possession of a firearm prohibited prior to sentencing.
Appellant raises the following issues for our review.
1. Whether there is legally insufficient evidence to support the jury's finding of guilt on count 3 and 5, Conspiracy, when the evidence showed that Appellant and Ayuso-Rivera had encountered Dipres by happenstance on the night in question and no agreement or other evidence of cooperation between them exists of record.
2. Whether there was legally insufficient evidence to support the jury's finding of guilt on count 6, Retaliation Against Witness or Victim, when there was no evidence to show that the Appellant knew about the witness's prior testimony.
3. Whether the court abused its discretion in not permitting new counsel, who was not present for the actual trial, to file a supplemental post-sentence motion where the Commonwealth agreed to the extension of time under these circumstances. As a result, [Appellant] was inappropriately constrained to put forth only boilerplate assertions in terms of
weight of the evidence against him and now where the Commonwealth will now likely argue waiver due to the lack of particularity averred in the original post-sentence motion.Appellant's Brief at 7-9.
4. Whether the jury's verdict is against the weight of the evidence on count 6, Retaliation Against Witness or Victim, when the evidence presented at trial to show that [Appellant] knew about the witness's prior testimony was nearly non-existent and certainly not beyond a reasonable doubt.
5. Whether the jury's verdict is against the weight of the evidence on count 1, Criminal Attempt - Murder of the First Degree, and count 2, Aggravated Assault, where the victim and eyewitness first identified Ayuso-Rivera, not the Appellant as the shooter. Whether the jury's verdict of guilt as to the Appellant as the principal in these events is nearly non-existent and certainly not beyond a reasonable doubt.
6. Whether the court abused its discretion in permitting the admission of exhibits that were not the Appellant's past crimes, not relevant, unfairly prejudicial to the Appellant, and misled the jury into believing that perhaps the Appellant may have been originally involved in the 1997 event.
Appellant argues that the evidence was insufficient to support his conspiracy and retaliation against a witness convictions, and also that numerous convictions were against the weight of the evidence. We review a challenge to the sufficiency of the evidence as follows.
The standard we apply when reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that 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. 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 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. Furthermore, when reviewing a sufficiency claim, our Court is required to give the prosecution the benefit of all reasonable inferences to be drawn from the evidence.Commonwealth v. Slocum , 86 A.3d 272, 275-276 (Pa. Super. 2014) (citation omitted).
However, the inferences must flow from facts and circumstances proven in the record, and must be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of an accused's guilt beyond a reasonable doubt. The trier of fact cannot base a conviction on conjecture and speculation and a verdict which is premised on suspicion will fail even under the limited scrutiny of appellate review.
Conversely, a challenge to the weight of the evidence "concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice." Commonwealth v. Orie , 88 A.3d 983, 1015 (Pa. Super. 2014) (citation omitted), appeal denied , 99 A.3d 925 (Pa. 2014).
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review 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 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.
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained:
Id. at 1015-1016 (citation omitted).The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.
"When the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court's decision is extremely limited." Commonwealth v. Gibbs , 981 A.2d 274, 282 (Pa. Super. 2009). Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review. See id.
"To sustain a conviction for criminal conspiracy, the Commonwealth must establish 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. Feliciano , 67 A.3d 19, 25-26 (Pa. Super. 2013) (en banc) (citation omitted). "[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." Commonwealth v. Knox , 50 A.3d 749, 755 (Pa. Super. 2012) (citation omitted).
"A person commits [the offense of retaliation against victim, witness, or party] if he harms another by any unlawful act or engages in a course of conduct or repeatedly commits acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim or a party in a civil matter." 18 Pa.C.S.A. 4953(a).
To the extent that Appellant challenges the trial court's tacit denial of his request to file supplemental post-sentence motions, we note Pa.R.Crim.P. 720(B)(1)(b) provides that a "defendant may file a supplemental post-sentence motion in the judge's discretion...." Pa.R.Crim.720(B)(1)(b).
Lastly, with respect to Appellant's challenge to the trial court's admission of the criminal docket sheets from the Commonwealth's 1997 criminal case against Ayuso-Rivera, we note that "the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Fransen , 42 A.3d 1100, 1106 (Pa. Super. 2012) (internal citations omitted).
We have reviewed Appellant's issues raised on appeal, along with the briefs of the parties, the certified record and the applicable law. Having determined that the trial court's November 25, 2015 opinion ably and comprehensively disposes of the issues raised on appeal, with appropriate reference to the record and without legal error, we will affirm based on that opinion. See Trial Court Opinion, 11/25/15 at 6-12.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/5/2016
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