Opinion
J-S10035-17 No. 2653 EDA 2015
05-16-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSE GONZALEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence dated August 3, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000746-2015 BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J. MEMORANDUM BY SOLANO, J.:
Appellant, Jose Gonzalez, appeals from the judgment of sentence imposed after the trial court convicted him of three counts of aggravated assault, two counts of conspiracy to commit aggravated assault, five counts of simple assault, two counts of conspiracy to commit simple assault, five counts of terroristic threats, five counts of recklessly endangering another person, one count of conspiracy to commit burglary and one count of trespass. We affirm.
18 Pa. C.S. §§ 2702, 903, 2701, 903, 2706, 2705, 3502, 903 and 3503, respectively.
The record reveals that on December 30, 2014, Appellant and two co-conspirators forcibly entered the Philadelphia apartment of Denice Davilla. Ms. Davilla was pregnant, and there were six other people inside the apartment with her, including two children.
During the invasion, Appellant stood guarding the door while a co-conspirator, Michael, wielded a baseball bat, and another co-conspirator, "Boo", brandished a knife. Boo proceeded to threaten and menace the inhabitants of the apartment, grabbing, punching, attempting to stab, and spitting while he sought to locate a woman named Latisha. Eventually, one of the victims - Mr. Toler - persuaded the three intruders to leave the apartment by telling them he would help locate Latisha. Upon being contacted, the Philadelphia Police recovered Boo's knife outside of the apartment building. Appellant was charged with the above offenses.
Appellant was tried before the trial court on May 27, 2015. The Commonwealth introduced the testimony of Mr. Toler and another apartment inhabitant and victim, Lisette Negron. The Commonwealth also introduced the knife into evidence. Thereafter, the trial court rendered its verdicts and deferred sentencing. On August 3, 2015, the trial court imposed an aggregate sentence of 10 to 20 years' incarceration. Appellant filed a post-sentence motion which the trial court denied. Appellant filed this timely appeal and presents two issues for our review:
Appellant's aggregate sentence consists of three concurrent 10 year mandatory minimums for the first-degree felonies of aggravated assault, conspiracy to commit aggravated assault, and burglary. The trial court imposed no further sentences on Appellant's remaining convictions. --------
1. Did the trial court err in entering verdicts of guilty against [Appellant] supported by insufficient evidence presented at trial?Appellant's Brief at 9.
2. Did the trial court err in entering verdicts of guilty against the weight of the evidence presented at trial?
Appellant argues that the evidence was insufficient to support his convictions because he "did not participate as a principal or accomplice in the events at the apartment" and "was merely present during the incident." Appellant's Brief at 14. Appellant contests the weight of the evidence, stating that Ms. Negron, "the only witness that indicated the Appellant used an intimidating face or demeanor," was not credible. Id.
With regard to Appellant's first issue assailing the sufficiency of the evidence:
The standard of review for a challenge to the sufficiency of the evidence is to determine whether, when viewed in a light most favorable to the verdict winner, the evidence at trial and all reasonable inferences therefrom is sufficient for the trier of fact to find that each element of the crimes charged is established beyond a reasonable doubt. See Commonwealth v. Dale , 836 A.2d 150, 152 (Pa.Super.2003). The Commonwealth may sustain its burden of proving every element beyond a reasonable doubt by means of wholly circumstantial evidence. See Commonwealth v. Bruce , 207 Pa.Super. 4, 916 A.2d 657, 661 (2007), appeal denied , 593 Pa. 754, 932 A.2d 74 (2007).
The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. See id. Any doubt raised as to the accused's guilt is to be resolved by the fact-finder. See id. As an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record. See Commonwealth v. Kinney , 863 A.2d 581, 584 (Pa.Super.2004), appeal denied, 584 Pa. 685, 881 A.2d 819
(2005). Therefore, we will not disturb the verdict "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." Bruce , 916 A.2d at 662 (citation omitted).Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014).
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard applied by the trial court in assessing the weight of the evidence. Commonwealth v. Mucci , 143 A.3d 399, 410-411 (Pa. Super. 2016) (citation omitted). Appellate review of a weight claim is a review of the trial court's exercise of discretion in assessing the weight of the evidence; the appellate court does not engage in its own independent assessment of whether the verdict is against the weight of the evidence. Id. at 411. In order for an appellant to prevail on a challenge to the weight of the evidence, "the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court." Id.
The trial court determined that Appellant was guilty under the theory of accomplice liability. In discussing accomplice liability, this Court has summarized:
"[T]wo prongs must be satisfied for a person to be labeled an 'accomplice.' First, there must be evidence that the person intended to aid or promote the underlying offense. Second, there must be evidence that the person actively participated in the crime by soliciting, aiding, or agreeing to aid the principal. Further, a person cannot be an accomplice simply based on evidence that he knew about the crime or was present at the crime scene. There must be some additional evidence that the person intended to aid in the commission of the underlying
crime, and then aided or attempted to aid." Commonwealth v. Rega , 593 Pa. 659, 933 A.2d 997, 1015 (2007) (citations omitted). For purposes of accomplice liability, "[n]o agreement is required, only aid." Commonwealth v. Kimbrough , 872 A.2d 1244, 1251 (Pa.Super.2005). "With regard to the amount of aid, it need not be substantial so long as it was offered to the principal to assist him in committing or attempting to commit the crime." Commonwealth v. Murphy , 577 Pa. 275, 844 A.2d 1228, 1234 (2004). "[T]he least degree of assistance in committing the offense is adequate to sustain the finding of responsibility as an accomplice." Commonwealth v. Gladden , 445 Pa.Super. 434, 665 A.2d 1201, 1209 (1995).Commonwealth v. Adams , 39 A.3d 310, 324 (Pa. Super. 2012), aff'd , 104 A.3d 511 (Pa. 2014).
Here, the evidence supports the trial court's determination that Appellant was liable as an accomplice. The trial court stated:
Ms. Negron and Mr. Toler credibly testified that Appellant and his two companions, Boo and Michael, forced their way into Ms. Davilla's apartment. Once inside the premises, Appellant's one fellow intruder, Boo, wielded his knife and search for a woman whom he said he would kill, and Appellant's other fellow intruder, Michael, followed Boo with a baseball bat in hand. Appellant meanwhile stood guard by the door and intimidated anyone from leaving the apartment. While rampaging through the apartment, Boo punched Mr. Negron and attempted to stab him with a knife, but was thwarted in his stabbing attempt by Mr. Negron's sister who pushed Boo's arm away. When the three intruders exited the apartment, Appellant took the deadly weapon (i.e., the knife) from his companion and discarded it next to the building's exterior steps.Trial Court Opinion, 4/19/16/ at 11.
Upon review, we discern no error by the trial court relative to Appellant's sufficiency and weight claims. The trial court explained that its convictions were supported by both the sufficiency and weight of the evidence. Our review convinces us that the Honorable Susan I. Schulman, sitting as the trial court, has provided a detailed and comprehensive analysis, with appropriate reference to both the record and prevailing legal authority, in finding that Appellant's sufficiency and weight claims are without merit, and concluding that the "evidence proves that Appellant and his companions forcibly entered an apartment with a contemporaneous intent to commit crimes therein." Tr. Ct. Op. at 14. Accordingly, we adopt Judge Schulman's opinion as our own in affirming Appellant's judgment of sentence.
Judgment of sentence affirmed. The parties shall attach a copy of the trial court's April 19, 2016 opinion to any future filings. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/16/2017
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