J-S56014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIC DANIEL CAMACHO-RODRIGUEZ,

                            Appellant                 No. 1712 MDA 2015


          Appeal from the Judgment of Sentence Entered July 31, 2013
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0006998-2012


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 29, 2016

        Appellant, Eric Daniel Camacho-Rodriguez, appeals from the judgment

of sentence of life imprisonment, imposed after he was convicted of second

degree murder, 18 Pa.C.S. § 2502(b), and related offenses.        On appeal,

Appellant challenges the sufficiency of the evidence to support his conviction

of second degree murder. We affirm.

        Appellant’s convictions stemmed from his participation in an attempted

robbery, during which his co-defendant, Emanuel Rivera, killed Felipe

Bernabe-Martinez. Following a jury trial from June 3, 2013 through June 7,

2013, the jury found Appellant guilty of second degree murder, criminal


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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conspiracy to commit robbery, and criminal conspiracy to commit burglary.1

After his sentencing, Appellant filed a post-sentence motion, which the trial

court denied on August 28, 2013.               Appellant subsequently filed a direct

appeal to this Court, which we dismissed on June 10, 2014, because

Appellant’s counsel did not file a brief.

        Thereafter, Appellant filed a Post Conviction Relief Act (PCRA)

petition,2 in which he alleged ineffective assistance of counsel, among other

claims. A hearing on Appellant’s PCRA petition took place on September 29,

2015, and the court reinstated Appellant’s appellate rights.               Appellant

thereafter filed a notice of appeal and a timely, Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.                 In his appellate brief,

Appellant presents a single issue for our review:

         I.   Did the trial court err in holding that the Commonwealth
              presented sufficient evidence to support the verdict of
              murder in the second degree?

Appellant’s Brief at 4 (suggested answer omitted).

        Initially, we set forth our standard of review:

               The standard we apply in 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
____________________________________________


1
  As explained infra, Appellant’s convictions of criminal conspiracy to commit
robbery and criminal conspiracy to commit burglary were in connection with
a plan to commit a separate home invasion on May 31, 2012, just days after
the murder of Bernabe-Martinez.
2
    42 Pa.C.S. §§ 9541-9546.



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      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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (internal

citations omitted).

      Appellant contests the sufficiency of the evidence in relation to his

conviction of second degree murder. Second degree murder is defined by

statute as “[a] criminal homicide … committed while defendant was engaged

as a principal or an accomplice in the perpetration of a felony.” 18 Pa.C.S. §

2502(b). “Perpetration of a felony” is defined as “[t]he act of the defendant

in engaging in or being an accomplice in the commission of, or an attempt to

commit, or flight after committing, or attempting to commit robbery, rape,

or deviate sexual intercourse by force or threat of force, arson, burglary or

kidnapping.”   18 Pa.C.S. § 2502(d).     Specifically, “[a] person is guilty of

robbery if, in the course of committing a theft, he … inflicts serious bodily

injury upon another[.]” 18 Pa.C.S. § 3701(a)(1)(i).




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      Additionally, “[a] person is legally accountable for the conduct of

another person when … he is an accomplice of such other person in the

commission of the offense.” 18 Pa.C.S. § 306(b)(3). The statute sets forth

that “[a] person is an accomplice of another person in the commission of an

offense if … with the intent of promoting or facilitating the commission of the

offense, he … aids or agrees or attempts to aid such other person in

planning or committing it.” 18 Pa.C.S. § 306(c)(1)(ii).

      This Court has explained,
             To establish complicity, mere presence at the scene of a
      crime and knowledge of the commission of criminal acts is not
      sufficient. Nor is flight from the scene of a crime, without more,
      enough. However, those factors combined, along with other
      direct or circumstantial evidence may provide a sufficient basis
      for a conviction, provided the conviction is predicated upon more
      than mere suspicion or conjecture.

Commonwealth v. Rosetti, 469 A.2d 1121, 1123 (Pa. Super. 1983)

(citations omitted).   Moreover, “[a]ccomplice liability may be established

wholly by circumstantial evidence.      Only the least degree of concert or

collusion in the commission of the offense is sufficient to sustain a finding of

responsibility as an accomplice.      No agreement is required, only aid.”

Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016)

(internal citations and quotations omitted).

      In the case sub judice, the trial court summarized the totality of

evidence presented at Appellant’s jury trial as follows:

           [T]he jury found Appellant responsible for the shooting
      death of Bernabe-Martinez on May 28, 2012, following several
      days of testimony. In support of the Commonwealth’s case,


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     Linda Perez testified that she was sitting on her front porch with
     a friend, Nick Drayden, across the street from where the murder
     occurred. Perez and Drayden witnessed two males walking
     through the park, and the two males confronted and argued with
     the victim, Bernabe-Martinez. Perez testified that she heard a
     gunshot and saw the two males running from the scene.
     Another witness, Karen Ferguson[,] was in the park on May 28,
     2012, and testified that she saw a male matching Appellant’s
     description sitting on a park bench, which was located across the
     street from Bernabe-Martinez’s home. The jury was free [to]
     weigh the witnesses[’] credibility and to give their testimony any
     weight they deemed appropriate during deliberation.

           The Commonwealth also called the confidential informant
     in the case, Jaycott Rivera-Rodriguez, who testified that
     Appellant and [c]o-[d]efendant Rivera arrived at his home on
     May 31, 2012, to discuss committing a separate home invasion
     in Harrisburg.     Rivera-Rodriguez testified that during this
     discussion, Appellant stated that he was present when Rivera
     pulled the trigger, killing Bernabe-Martinez on May 28, 2012.
     Rivera-Rodriguez then convinced Appellant and Rivera to commit
     the separate home invasion in York instead of going to
     Harrisburg.   In the course of planning this home invasion,
     Rivera-Rodriguez testified that Appellant grabbed a backpack,
     which contained the gun that Appellant and Rivera used in
     Bernabe-Martinez’s murder. Further, the Commonwealth called
     Detective [Andy] Baez, who interviewed [c]o-[d]efendant Rivera.
     Detective Baez testified that during an interview, Rivera
     confessed to shooting Bernabe-Martinez.

           The confidential informant, Rivera-Rodriguez[,] was in
     contact with the police when police were preparing to apprehend
     Appellant and Rivera. When the police moved in to apprehend
     Appellant, Officer [Clayton] Glatfelter testified that Appellant
     discarded the backpack containing the gun near the woods as
     Appellant fled. After Appellant was taken into custody, Detective
     [Jeremy] Mayer testified that the backpack was recovered and
     contained the same gun and some ammunition.

            In order to link the gun Appellant discarded to [the
     shooting of] Bernabe-Martinez, the Commonwealth called Dr.
     Samuel Land, who performed the victim’s autopsy. Dr. Land
     testified that Bernabe-Martinez sustained a contact gunshot
     wound to the right lower back, which indicated that the gun was
     pressed up against the victim’s skin when the trigger was pulled.

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       The Commonwealth also called Katherine Cross[,] the DNA
       technical leader and forensic biologist at Guardian Forensic
       Sciences, who testified that DNA on the swab she received from
       the gun barrel matched Bernabe-Martinez’s DNA.

Trial Court Opinion (TCO), 11/6/15, at 4-6 (footnotes omitted).

       In his brief, Appellant “argues the Commonwealth failed to establish

that [] Appellant acted as the principal or accomplice in the perpetration of a

felony, to wit an attempted robbery of the victim.”     Appellant’s Brief at 9.

Specifically, Appellant contends that the Commonwealth’s evidence that

“Rivera shot and killed Bernabe-Martinez, that the Appellant was present

when the murder occurred, that the Appellant fled the scene after the

murder, and that [] Appellant told Rivera-Rodriguez that he was present

when [] Rivera murdered Bernabe-Martinez” does not establish that

Appellant acted as an accomplice in the attempted robbery. See id. at 10-

11. We disagree.

       At trial, there was ample testimony from witnesses to demonstrate

that Appellant acted as an accomplice in the attempted robbery of Bernabe-

Martinez.    For instance, Ms. Perez, the woman sitting on her porch across

the street from where the murder occurred, testified:

       [The Commonwealth]: [] Now, you said that you noticed them[,
       Appellant and Rivera,][3] walking and -- in the park. Where did
       they go?

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3
  We acknowledge that Ms. Perez did not explicitly identify Appellant in
court; however, her description of one of the men involved in the attempted
robbery matches the appearance of Appellant and conforms to various other
(Footnote Continued Next Page)


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      [Ms. Perez]: They walked towards the gentleman that was shot.
      He pulled up in his car and they were walking towards him. []

      [The Commonwealth]: Now, did they walk straight to this
      gentleman or were they -- as far as the two gentlemen in the
      park, did they go directly to him or did they take another route
      or were you able --

      [Ms. Perez]: No, they walked towards him.

      [The Commonwealth]: Okay. And were you able to observe
      what occurred when they approached him?

      [Ms. Perez]: I don’t know what they were actually saying to him,
      but, at first, it looked like they were just talking to him and then
      all of a sudden they started fighting and they were pushing him
      up against the metal trailer thing or whatever. And then I
      turned around for I want to say a second and looked at my
      friend and then that’s when I heard the gunshots.

      [The Commonwealth]: Okay. Now, when you say they started
      fighting, was it both gentlemen fighting with the man…

      [Ms. Perez]: Yes, correct.

      [The Commonwealth]: They were both involved in that fight?

      [Ms. Perez]: Yes.

N.T. Jury Trial, at 165-66 (emphasis added).

      Further, Mr. Drayden, who was on the porch with Ms. Perez when the

murder occurred, stated:

      [The Commonwealth]: [] So the two guys that came across the
      park[, Appellant and Rivera,] and the guy in the work truck, they
      were the ones involved in a commotion?

      [Mr. Drayden]: Yes.

                       _______________________
(Footnote Continued)

witnesses’ descriptions. See N.T. Jury Trial, 6/3/13-6/7/13, at 163-64, 180-
82, 210-11, 556-57. Further, as stated infra, Appellant told Mr. Rivera-
Rodriguez that he was present when the attempted robbery occurred.



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                                    ***

     [Attorney for Rivera]: [] And how long was it from when you got
     out of your car until this tussle, commotion started?

     [Mr. Drayden]: About probably like a few seconds because it was
     like kind of talking, but I don’t speak Spanish so I wouldn’t
     understand.

     [Attorney for Rivera]: And when you say kind of talking, were
     these two individuals that you saw up at this truck talking with --

     [Mr. Drayden]: He wasn’t talking with him. Like one was in the
     front of him and one was in the back of him. That’s why I said it
     looked like the guy is about to get jammed.

     [Attorney for Rivera]: Okay.

     [Mr. Drayden]: Like robbed.

N.T. Jury Trial, at 184, 190-91 (emphasis added).

     Likewise, Mr. Rivera-Rodriguez, the confidential informant, testified

about his conversation with Appellant and Rivera on May 31, 2012:

     [The Commonwealth]: And when they[, Appellant and Rivera,]
     arrived at your home, what happened next?

     [Mr. Rivera-Rodriguez]: As soon as they arrived, they came and
     they told me, did you hear about the murder on Memorial Day
     [May 28, 2012]? I specifically told them no. They – then
     [Appellant] pointed at [Rivera] and said he was the one that
     pulled the trigger while laughing.

     [The Commonwealth]: [W]ho was laughing?

     [Mr. Rivera-Rodriguez]: Pretty much both of them.

     [The Commonwealth]: [D]o you remember specifically who it
     was that said that to you?

     [Mr. Rivera-Rodriguez]: Okay. First person that said that was
     [Appellant] and then [Rivera] confirmed it[.]

     [The Commonwealth]: Okay. When [you] say he confirmed it,
     can you tell us what you mean by he confirmed it?



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       [Mr. Rivera-Rodriguez]: He specifically told me exactly what he
       did, and he went to go get a car, went behind the guy, wouldn’t
       give up the keys so he shot him.

       [The Commonwealth]: And did [Appellant] say anything about
       that event?

       [Mr. Rivera-Rodriguez]: No, he just said he was there.

N.T. Jury Trial, at 247-48.

       Based on these witnesses’ testimony, there was evidence that

Appellant aided in the attempted robbery and, thereby, acted as Rivera’s

accomplice.     As set forth supra, a criminal homicide committed while a

defendant is engaged as a principal or an accomplice in the perpetration of a

felony — which, by definition, includes an attempted robbery — constitutes

second degree murder. See 18 Pa.C.S. §§ 2502(b), (d). Here, Rivera killed

Bernabe-Martinez while Appellant was acting as Rivera’s accomplice, by

fighting and essentially cornering Bernabe-Martinez, during the robbery.

Accordingly, there is sufficient evidence in this case to find every element of

second degree murder beyond a reasonable doubt.4 See Hansley, 24 A.3d

at 416.
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4
  We note that the jury found Appellant not guilty in the robbery of Bernabe-
Martinez.    Nevertheless, consistency in a verdict is not required.
Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012) (concluding that
the “[a]ppellee's acquittal of the predicate offense of robbery does not
necessitate the vacatur of his conviction of second-degree murder”). Our
Supreme Court has explained that,

       the second-degree murder statute does not set forth or require
       the commission of the predicate offense as an element. To
       secure   a   conviction for   second-degree     murder,    the
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2016




                       _______________________
(Footnote Continued)

      Commonwealth must prove that the defendant committed a
      murder “while [he or she] was engaged ... in the perpetration of
      a felony.” “Perpetration of a felony” is statutorily defined in a
      very broad manner, encompassing, inter alia, “[t]he act of the
      defendant in engaging in ... the commission of, or an attempt to
      commit, ... robbery....”    Based on a plain reading of this
      statutory language … to convict an accused of second-degree
      murder, the Commonwealth is not required to prove that the
      accused actually committed the predicate offense.

Id. at 1212 (internal citations and emphasis omitted).



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