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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


  ALBERTO ROSA

                       Appellant              :   No. 2801 EDA 2018
              Appeal from the Judgment Entered May 11, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0008597-2014
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 23, 2019

          Appellant Alberto Rosa appeals from the judgment of sentence following

a jury trial and conviction for, among other charges, first -degree murder and

possession of an instrument of crime.' Appellant challenges the weight and

sufficiency of the evidence for his first -degree murder conviction. We affirm.

          We quote the facts as set forth by the trial court at Appellant's second

trial:2

          On January 4, 2014, at approximately 3:30 p.m., [Appellant] and
          his brother Fernando Rosa argued with La'Quan Green over
          money. The argument escalated into a physical altercation with
          Fernando on the ground and [Appellant] waving a gun at Green.
          Green attempted to flee and was chased by both Rosa brothers.

' 18 Pa.C.S. § 2502 and 907, respectively.
2 At Appellant's first trial in 2016, as discussed below, the jury hung on the
murder charge and the Commonwealth elected to retry Appellant.
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      [Appellant] caught up with Green and the confrontation continued.
      [Appellant] then fired several shots at Green, striking him twice in
      the head, and also in the arm and groin, killing him.

      There were several witnesses to the altercation and subsequent
      murder. Ta'Neesha Perry, an eight year old family friend who was
      staying in the Rosa home on the day of the murder, testified that
      she saw [Appellant] shoot a nnan.[3] Another witness, Lord
      Berrios, then 13 years old, witnessed the incident from his
      bedroom window    .   .[4] [Appellant's] sister, Jennifer Rosa, was
                            .   .


      also an eye witness and told police in a video recording played at
      trial that her brother, [Appellant], shot and killed the victim
      following an argument over money.[5]

      Dr. Khalil Wardak, an assistant medical examiner, testified to a
      reasonable degree of scientific certainty that the cause of [the
      victim's] death was multiple gunshot wounds and that the manner
      of his death was homicide. He testified that a bullet entered the
      victim's right cheek, traveled through his cranial cavity and exited
      his right temple, and would have     .  been nearly instantly fatal.
                                               .   .


      Dr. Wardak also testified that a second bullet entered the back of
      the victim's head, and was found lodged in his cranial cavity. A
      third bullet entered from the left side of the victim's head, and
      exited from the groin region. Finally, Dr. Wardak stated that a
      fourth bullet entered and exited his right forearm.

Trial Ct. Op., 1/16/18, at 1-2 (citations omitted).



3 At the second trial, Perry testified that during the incident, the victim said
"no, no", and subsequently, Appellant pulled a gun out of shirt, raised his gun,
pointed the gun at the victim's head, and shot the victim three times. N.T.
Trial, 5/2/18, at 77-79; see also N.T. Trial, 5/4/18, at 23 (medical examiner
testifying that a gun was touching victim's head when one shot was fired).
4 Prior to Appellant's first trial, Berrios had signed a statement inculpating
Appellant, but subsequently recanted that statement while being called during
the Commonwealth's case -in -chief at Appellant's second trial. See N.T. Trial,
5/2/18, at 33-47. Appellant cross-examined Berrios.
5 We add that Appellant called Ms. Rosa to testify at the second trial, and she
essentially testified that the police coerced her video statement. See N.T.
Trial, 5/9/18, at 54-55. The Commonwealth cross-examined her.

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      Appellant was arrested and charged with the above -stated offenses, as

well as two firearm violations and robbery.      At his first jury trial in 2016,
Berrios testified as set forth above. The jury acquitted Appellant of robbery,

found him guilty of the two firearm violations, and hung on the other charges.

The Commonwealth retried him in 2018, at which time Berrios recanted his

prior statement to the police. See, e.g., N.T. Trial, 5/2/18, at 33-34.

      On May 11, 2018, the jury found Appellant guilty of the above charges,

and the trial court sentenced him that same day to a mandatory sentence of

life imprisonment without parole for first -degree murder. On May 21, 2018,

Appellant filed a timely post -sentence motion challenging, among other

things, the sufficiency and weight of the evidence with respect to his first -

degree murder conviction. The trial court denied the motion on September

14, 2018.

      Appellant timely appealed on September 21, 2018. Appellant timely

filed a court -ordered Pa.R.A.P. 1925(b) statement.      The trial court filed a
responsive opinion.

      Appellant raises two claims, which we have ordered as follows:

      [1.] Is the evidence insufficient as a matter of law to convict
      Appellant of murder in the first degree?

      [2.] Is Appellant's conviction for first -degree murder against the
      weight of the evidence and should a new trial be ordered?

Appellant's Brief at 4.




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      In support of his first issue, Appellant argues that the evidence
establishes that the victim was involved       in   a "significant and escalating

physical confrontation" with Appellant's brother. Id. at 17. Appellant reasons

that because he "did not have sufficient time for reflection in order to form

the level of premeditation required," he should have been convicted of third-

degree murder, at best.       Id.   In sum, Appellant contends, "there was
insufficient opportunity to form appropriate premeditation."

      In Commonwealth v. Cooper, 941 A.2d 655                   (Pa.   2007), the
Pennsylvania Supreme Court explained the standard of review as follows:

     Our standard of review for sufficiency is clear. We must determine
     whether the evidence admitted at trial, and all reasonable
      inferences derived therefrom, when viewed in the light most
     favorable to the Commonwealth as verdict winner, supports all of
     the elements of the offense beyond a reasonable doubt.               In
      making    this determination, we consider both direct and
      circumstantial evidence, cognizant that circumstantial evidence
      alone can be sufficient to prove every element of an offense. We
      may not substitute our own judgment for the jury's, as it is the
     fact finder's province to weigh the evidence, determine the
     credibility of witnesses, and believe all, part, or none of the
      evidence submitted.

      Evidence is sufficient to sustain a conviction of first -degree murder
     where the Commonwealth establishes that a human being was
     unlawfully killed, that the person accused did the killing, and that
     the accused acted with a specific intent to kill. An intentional
     killing is one that is willful, deliberate, and premeditated.

Cooper, 941 A.2d at 662 (citations omitted). With respect to premeditation,

the Pennsylvania Supreme Court has held:

      [T]he law does not require a lengthy period of premeditation;
      indeed, the design to kill can be formulated in a fraction of a
      second. Whether the intention to kill and the killing, that is, the

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      premeditation and the fatal act, were within a brief space of time
      or a long space of time is immaterial if the killing was in fact
      intentional, willful, deliberate and premeditated.

Commonwealth v. Clemons, 200 A.3d 441, 463 (Pa. 2019) (quotation
marks and citations omitted); Commonwealth v. Dreher, 118 A. 215, 216

(Pa. 1922) ("The deliberation and premeditation required is not upon the
intent, but upon the killing. An intent distinctly formed, even for a moment

before being carried into execution, is sufficient.").6 Shooting a victim multiple

times at close range, including one shot at the victim's head, establishes the

specific intent to kill necessary for first -degree murder. Commonwealth v.

Bedford, 50 A.3d 707, 712 (Pa. Super. 2012) (en banc).

      Here,    the evidence viewed      in   the light most favorable to the

Commonwealth established Appellant's specific intent to kill. Appellant shot

the victim three times in the head, with at least one shot occurring when
Appellant's gun was touching the victim's head. See N.T. Trial, 5/2/18, at 77-

79, N.T. Trial, 5/4/18, at 23.    Such evidence is sufficient to establish the

specific intent necessary to prove first -degree murder. See Clemons, 200

A.3d at 463; Bedford, 50 A.3d at 712. Moreover, Appellant chased the victim



6 In Dreher, the defendant had quarreled with his fiancée earlier in the
evening, who accused him of being unfaithful. Dreher, 118 A. at 216. Later
that evening, the defendant's fiancée invited him to a block party, the
defendant refused, and another quarrel ensued, during which the defendant
removed a razor from his pocket and fatally sliced his fiancée's throat twice.
Id. On appeal, the defendant argued that because "he was 'crazy in his
mind,' he lacked the requisite premeditation to form an intent to kill. Id.

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down and the victim begged for his life before Appellant killed him. See N.T.

Trial, 5/2/18, at 77-79. Therefore, we reject Appellant's argument that he

lacked sufficient time to form the premeditation required for first -degree
murder. See Clemons, 200 A.3d at 463.

      Appellant next challenges the weight of the evidence. He argues that

the witnesses' identification of him as the culprit were unreliable. Specifically,

that the inculpatory testimony of Ms. Rosa,         his   sister, was "extremely
unreliable" given her learning disability7 and "partial recantation at trial."
Appellant's Brief at 13.      Appellant asserts that Perry's testimony was
contradictory and inconsistent, and notes Perry was eight years old at the time

of the murder.     Id.   Finally, Appellant contends that Berrios's recanted

statement was unreliable given that Berrios "did not see the actual shooting

because a tree obscured his vision." Id. at 14.

      We set forth the following guidelines: "a true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

questions which evidence is to be believed." Commonwealth v. Thompson,

106 A.3d 742, 758 (Pa. Super. 2014) (citation omitted). Additionally,

      [a] verdict is not contrary to the weight of the evidence because
      of a conflict in testimony or because the reviewing court on the
      same facts might have arrived at a different conclusion than the


  We note that at Appellant's second trial, there was no testimony that Ms.
Rosa had a learning disability. But at Appellant's first trial, Appellant's mother
testified that Ms. Rosa has an undefined learning disability. N.T. Trial,
3/15/16, at 20-21.

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     factfinder. Rather, a new trial is warranted only when the jury's
     verdict is so contrary to the evidence that it shocks one's sense of
     justice and the award of a new trial is imperative so that right may
     be given another opportunity to prevail. Where, as here, the
     judge who presided at trial ruled on the weight claim below, an
     appellate court's role is not to consider the underlying question of
     whether the verdict is against the weight of the evidence. Rather,
     appellate review is limited to whether the trial court palpably
     abused its discretion in ruling on the weight claim.

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003) (citations,
quotation marks, and emphasis omitted).

     In Commonwealth v. R. Brown, 134 A.3d 1097 (Pa. Super. 2016),
the defendant challenged       a   witness's statement, which identified the
defendant as the shooter, as unreliable due to alleged police coercion of the

witness. Brown, 134 A.3d at 1104. That witness recanted at trial and denied

identifying defendant. Id. On that basis, the defendant challenged the weight

of the evidence for his first -degree murder conviction. Id. The Brown Court

rejected the defendant's weight claim, noting that the "Pennsylvania Supreme

Court held that the prior inconsistent statements of witnesses who recanted

at trial constituted sufficient evidence to support the defendant's murder
conviction when the witnesses testified at trial and were subject to cross-

examination before a factfinder that could reasonably credit the prior
statements     over   the   witnesses'   in -court   recantations."   Id.   (citing

Commonwealth v. D. Brown, 52 A.3d 1139, 1168 (Pa. 2012)).

     Instantly, it was for the jury to evaluate the reliability and veracity of

the prior statements and testimony of Ms. Rosa and Berrios, as well as the


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testimony of Perry. See R. Brown, 134 A.3d at 1104. We add that Appellant

cross-examined Perry and Berrios and called Ms. Rosa in his defense and thus

had a full opportunity to question them. The jury resolved the conflicts and

credibility adverse to Appellant, and we cannot find that the trial court abused

its discretion in denying Appellant's weight claim. See Tharp, 830 A.2d at

528. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Jseph D. Seletyn,
Prothonotary


Date: 7/23/19




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