J-S68010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        Appellee

                   v.

JOSHA MEDINA,

                        Appellant                     No. 2511 EDA 2013


     Appeal from the Judgment of Sentence entered January 18, 2013,
          in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0013827-2011


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED OCTOBER 31, 2014

     Josha Medina (“Appellant”) appeals from the judgment of sentence

entered after the trial court convicted him of robbery, theft by unlawful

taking, receiving stolen property, criminal conspiracy, carrying a firearm in

public, carrying a firearm without a license, possessing an instrument of

crime, and possessing a controlled substance.

     At   the   non-jury   trial,   Christopher   Rodriguez   testified   that   at

approximately 3:00 a.m. on September 7, 2011, he and his brother were

walking along a street in Philadelphia when they were attacked by two

assailants who punched and kicked them and stole their wallets and cell

phones. N.T., 10/15/12, 18-21. One of the assailants had a nickel or silver

colored gun with a black handle. Id. at 22, 25, 45, 56. When the assailants

fled, Christopher Rodriguez and his brother chased them. Id. at 24. One of
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the assailants responded by shooting Christopher Rodriguez’s brother in the

chest. Id. at 25. Christopher Rodriguez then sought the help of police, and

described to Philadelphia Police Officer Padilla that the assailants had darker

skin, and were each wearing a hoodie, one white and one black, and the

assailant wearing the black hoodie had a goatee. Id. at 27-28, 44.

      Philadelphia Police Officer Joseph Reilly testified to responding to a

report of the shooting, and encountering two black males wearing hoodies,

one of whom had a goatee, and was subsequently identified as Appellant.

Id. at 47-50.   As Officer Reilly and his partner approached the males, the

other male “attempted to push passed [sic] [Officer Reilly’s partner] and

they got into a physical altercation.”     Id. at 50.    Officer Reilly asked

Appellant to put his hands on a porch railing. Id. at 50-51. Appellant began

to comply, but while moving his hands, reached “toward his waistband

area.”   Id. at 51, 64.   Appellant grabbed a gun from his waist area, but

“instantly dropped it to the ground.” Id. at 51. Officer Reilly recovered the

gun, which was “loaded with four live rounds.”      Id. at 52.   Officer Reilly

prepared the property receipt for the gun. Id. at 60. Additionally, a search

of Appellant yielded six heroin packets labeled “American Gangster.” Id. at

67.

      Christopher Rodriguez’s brother, William Rodriguez, testified to being

attacked by two assailants, one who was wearing a white hoodie and one

who was wearing a black hoodie. Id. at 69. William Rodriguez could not see

the assailants’ faces, but identified their skin color as black and not Latino.

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Id. William Rodriguez testified that the assailants took the brothers’ wallets

and cell phones. Id. at 72. William Rodriguez pursued the assailants, and

identified his shooter as the black man in the black hoodie. Id. at 73-76, 82.

      Philadelphia Police Detective Michelle Yerkes testified to interviewing

Christopher Rodriguez with Officer Padilla translating. Id. at 89. Detective

Yerkes took Christopher Rodriguez’s statement.        Id. at 90.    Christopher

Rodriguez identified the gun recovered from Appellant as the gun used by

one of his assailants. Id. at 92. Christopher Rodriguez identified one of his

assailants as being a black male with a goatee. Id. at 106. Detective Yerkes

also interviewed William Rodriguez.         William Rodriguez identified his

assailants as black males, one wearing a white hoodie and one wearing a

black hoodie. Id. at 109.

      Philadelphia Police Officer Padilla testified to responding to a call of a

man shot, and transporting the Rodriguez brothers to Temple Hospital.

N.T., 10/16/12, at 8. William Rodriguez gave Officer Padilla “a description of

[the shooter as] a black male, clothing description, … black hoodie, blue

jeans, thin build, and also a second male with a white hoodie, Adidas stripes

on the side[.]” Id. at 9. Officer Padilla testified that Christopher Rodriguez

gave the same description of the shooter; “he said it was the one with the

black hoodie.” Id. at 11. Christopher Rodriguez described the gun as silver

and black.    Id.   At the hospital, Officer Padilla was “trying to get more

information” from Christopher Rodriguez when Officer Padilla “got a call”

that another police unit “had somebody stopped that fit the description” of

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the assailants. Id. at 12. Officer Padilla then took Christopher Rodriguez to

where Appellant was detained. Id. at 12-13. Officer Padilla testified:

      [The detaining officers] brought [Appellant] out to the side of the
      car, I would say, about, maybe 7 to 10 feet from where the
      witness was at, shined the light on [Appellant]. And he said – I
      asked him if this was the guy who had, in fact, robbed him and
      shot his brother. He said, yeah, that looks like him. He said, he
      had the same clothing, same body, and the same facial hair.

Id. at 13. In the courtroom, Officer Padilla identified Appellant as the same

individual identified by Christopher Rodriguez.         He also testified that

Christopher Rodriguez was not “one hundred percent certain that this was

the male, but he fit the description. This looks like the guy. This could be

him.” Id. at 17.

      Philadelphia Police Officer Kevin Robinson testified to being on duty

with his partner Officer Reilly at 3:00 a.m. on September 7, 2011, when the

officers encountered Appellant and the other individual walking “shoulder to

shoulder.” Id. at 29. The officers saw no one else in the five blocks they

traveled before encountering Appellant and the other individual. Id. at 26-

28.

      After hearing the above evidence, the trial court convicted Appellant of

the aforementioned crimes. On January 18, 2013, the trial court sentenced

Appellant to eight (8) to sixteen (16) years of incarceration, followed by four

(4) years of probation. Appellant filed a timely appeal, as well as a Pa.R.A.P.

1925(b) statement. The trial court filed a Pa.R.A.P. 1925(a) opinion, which

we adopt and incorporate in disposing of this appeal.

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      Appellant presents a single claim for our review:

      DID THE TRIAL COURT ERR WHEN IT FOUND THAT THERE WAS
      SUFFICIENT EVIDENCE TO PROVE, BEYOND A REASONABLE
      DOUBT, THE CRIMINAL OFFENSES OF ROBBERY, CRIMINAL
      CONSPIRACY, POSSESSING INSTRUMENTS OF CRIME, THEFT BY
      UNLAWFUL TAKING AND RECEIVING STOLEN PROPERTY?

Appellant’s Brief at 2.

      In cases challenging the sufficiency of the evidence, we recognize:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth's
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant's guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).

      Here, the essence of Appellant’s argument is that “neither of the

complaining witnesses were able to identify [Appellant] as one of the

persons who robbed them.”      Appellant’s Brief at 8, 11.   Appellant asserts

that “[d]ue to this lack of identification by both complainants, there is




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reasonable doubt that [Appellant] is guilty of committing the aforementioned

criminal offenses.” Id. at 12.

      The trial court addressed—and rejected—this claim prior to rendering

its verdict:


      I think as far as the identification issue, which is the issue in this
      case, I agree that the language of the victim/witness is that, it
      looks like him, I’m not a hundred percent sure. But to this
      Court’s thinking, any deficiencies in that statement where it’s not
      absolute are more than supplemented by the other
      circumstances in this case or circumstantial evidence.

            I take into consideration you’re talking about 3 o’clock in
      the morning, you’re talking a deserted neighborhood where it’s
      raining, you’re talking a distance between the scene of the crime
      and the place of the stop of the accused of approximately five to
      seven blocks within thirty minutes of the incident. And then the
      other circumstances that both counsel have eluded to, the
      clothes, how they matched the description, the build, how they
      matched the description, the race, the similarity of the weapon,
      and the facial hair. Taking what is given in the descriptions as
      well as the other circumstances of time, distance, weather, from
      the incident, I think it’s not a stretch to conclude that the
      persons the police stopped within 30 minutes of the incident
      were the persons who were responsible for the incident.

N.T., 10/16/12, at 45-46.

      Given the foregoing, we conclude that Appellant’s sufficiency claim is

without merit.   We further adopt and incorporate the December 31, 2013

trial court opinion of the Honorable William J. Mazzola in affirming

Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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