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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

                 v.


    JIQUAN BELL

                      Appellant            :   No. 3787 EDA 2015

           Appeal from the Judgment of Sentence December 22, 2011
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002010-2011


BEFORE:      BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                FILED MAY 09, 2017

        I dissent from the majority's reversal of Appellant's conviction for

conspiracy to commit murder as the Commonwealth presented sufficient

evidence to prove that Appellant committed homicide with the assistance of

an unidentified co-conspirator.

        In reviewing sufficiency claims, appellate courts are required to view

the record in the light most favorable to the verdict winner, thereby giving

the Commonwealth the benefit of all inferences that can reasonably drawn

from the evidence.       Commonwealth v. Tukhi, 149 A.3d 881, 886-87
(Pa.Super. 2016) (citation omitted).     This Court has emphasized that while

the Commonwealth has the burden of proving the defendant committed the




*   Former Justice specially assigned to the Superior Court.
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charged offense and each material element of the crime charged beyond                           a

reasonable doubt, the Commonwealth is neither required to prove the

defendant's guilt with absolute certainty nor obliged to "preclude every

possibility of innocence."          Id; Commonwealth              v. Thompson, 106 A.3d

742, 756 (Pa.Super. 2014).

        In fact, it   is   well -established that the prosecution may meet its burden

of proving the defendant's guilt on the basis of wholly circumstantial

evidence:

        Accordingly, [t]he fact that the evidence establishing a
        defendant's participation in a crime is circumstantial does not
        preclude a conviction where the evidence coupled with the
        reasonable inferences drawn therefrom overcomes the
        presumption of innocence. Significantly, we may not substitute
        our judgment for that of the fact finder; thus, so long as the
        evidence adduced, accepted in the light most favorable to the
        Commonwealth, demonstrates the respective elements of a
        defendant's crimes beyond a reasonable doubt, the appellant's
        convictions will be upheld.
Tukhi, 149 A.3d at 886-87 (citation omitted).
        To reiterate, this Court has held        that   in   order "[t]o 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. Rogal, 120
A.3d 994, 1001 (Pa. Super. 2015).

        In finding there was insufficient evidence to convict Appellant of

conspiracy to commit murder, the Majority improperly views the evidence in


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the light most favorable to the defense.           Although the Majority concludes

that the jury's verdict of guilt was "mere conjecture" as Appellant's co-

conspirators were never specifically identified, the Majority ignores well -

established precedent which acknowledges that "[g]iven the surreptitious

nature of conspiracy, the existence of        a   formal agreement   is   often proven

circumstantially, [by reviewing] the relations, conduct, or circumstances of

the parties." Commonwealth v. Jacobs, 614 Pa. 664, 678, 39 A.3d 977,

985 (2012).

        Viewing the evidence in the light most favorable to the Commonwealth

as   verdict winner, there   is   sufficient evidence to allow the jury to conclude

that Appellant was guilty of conspiring to commit the victim's murder. The

prosecution presented evidence that supports an inference that Appellant

was stalking the victim by casing the crime scene in        a   vehicle driven by an

associate.    Before the shooting, the victim's friend, Hassan Polk, observed         a

red car circling the block four times; Polk testified that several people were

in   the car, including Appellant.       Shortly after Polk noticed the red car's

suspicious movements, he observed Appellant approach on              a    nearby corner

and open fire.

        Polk was particularly perceptive of his surroundings as he admitted

that he was having problems with other individuals        in his   neighborhood. The

fact that the driver of the red car drove past the victims numerous times in          a

short period weakens the proposition that the driver was merely present at

the scene without knowledge that Appellant planned to harm the victim.

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        The   jury was free to believe the prosecution's theory that the driver of
the red car agreed to aid Appellant in committing the homicide by repeatedly

driving past the victims to assess the scene and dropping Appellant off near

the victims to allow him to shoot the victims.                        Shortly after Polk noticed

repeatedly passing his location in the red vehicle, he observed Appellant

approach on         a     nearby corner and open fire. Circumstantial evidence that

Appellant drove to the crime scene with the assistance of                            a    cohort   is

evidence of     a   criminal conspiracy. Commonwealth v. Lambert, 795 A.2d

1010, 1021-22 (Pa.Super. 2002).

        Setting aside        a   jury verdict   is a   serious matter. The Majority erred in

substituting        its     own     judgment for         that    of    the   factfinder    as   the

Commonwealth presented sufficient evidence to allow the jury to conclude

that Appellant conspired with another                   in   committing the victim's murder.

Therefore, I dissent.




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