J-S25006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

RICARDO BATISTA,

                         Appellant                   No. 2268 EDA 2016


       Appeal from the Judgment of Sentence Entered May 31, 2016
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004269-2015


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 06, 2017

      Appellant, Ricardo Batista, appeals from the judgment of sentence of

an aggregate term of 10½ to 21 years’ imprisonment, imposed after he was

convicted of one count each of criminal conspiracy to commit aggravated

assault (18 Pa.C.S. § 903), possession of a firearm without a license (18

Pa.C.S. § 6106), possession of a firearm on the streets of Philadelphia (18

Pa.C.S. § 6108), possession of a firearm by a prohibited person (18 Pa.C.S.

§ 6105), and possession of an instrument of crime (18 Pa.C.S. § 907).

Appellant challenges the sufficiency of the evidence to sustain his conviction

for conspiracy to commit aggravated assault. We affirm.

      The facts which led to Appellant’s convictions are set forth by the trial

court in the following portion of its Pa.R.A.P. 1925(a) opinion:

           On November 17, 2014, at approximately 4:00 p.m.,
      Dominique Scott looked outside the window of her residence
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     near the corner of Water Street and Tioga Street and saw her
     brother, Abdul Scott, being attacked by a group of three young
     men.2 Dominique identified the attackers as Ray, [Appellant],
     and [Appellant’s] brother.3     Dominique left the residence,
     accompanied by her other brother, Jabbar Scott.
        2
          Because Dominique Scott, Abdul Scott and their brother,
        Jabbar Scott, all share the same last name, they will be
        identified by their first names throughout this opinion.
        3
         Ray’s last name, and [Appellant’s] brother’s name, were
        not given at trial.

           During the altercation, Ray hit Abdul with a broomstick and
     [Appellant] got on top of Abdul. The fight then expanded to
     include several other individuals, with [Appellant], Ray, Jose
     Rivera, and two unidentified females fighting against Dominique,
     Jabbar, Abdul, and Isiaha DeJesus-Rios. Abdul and [Appellant]
     began to fight over a gun, as Abdul attempted to wrestle the gun
     out of [Appellant’s] hands. [Appellant] managed to keep control
     of the firearm and raised it, causing Dominique, Abdul, and
     Jabbar to flee the area. Ray also was in possession of a firearm.
     As Dominique, Abdul, and Jabbar fled the area, Ray fired his gun
     twice, striking Jabbar once in the right buttock.

            Dominique fled to Brother’s Bar, at the corner of Water
     Street and Ontario Street, where she locked herself inside the
     bar’s bathroom and called police. Ray and Rivera came to the
     bar, attempting to find Dominique, who stayed in the bathroom
     until police arrived.

           After getting shot, Jabbar went to the home of Margarita
     Rios, accompanied by his brother Abdul. Abdul attempted to
     administer first-aid until police arrived. Neither Abdul nor Jabbar
     cooperated with police once police arrived. Jabbar was taken to
     the hospital by an ambulance, where he was treated for the
     gunshot wound to his right buttock.

           A video surveillance camera, located at the intersection of
     Tioga Street and Lee Street captured Jabbar, Ray, Rivera, and
     other individuals as they travelled past the area of the shooting,
     but did not record the shooting itself. Police recovered two 9-
     mm fired cartridge cases on the street. A 9-mm projectile was
     recovered from Jabbar’s body by hospital personnel.          Later
     examination confirmed that the two cartridge cases were fired
     from the same firearm. Police located [Appellant] on January

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      15, 2015. [Appellant] provided a fake name to police, and
      attempted to flee while being taken into custody.

Trial Court Opinion (“TCO”), 9/2/16, at 2-3 (citations to the record omitted).

      Based on the aforementioned evidence presented at a jury trial on

March 3, 2016, Appellant was found guilty of the crimes stated supra, and

was sentenced by the court to 10 ½ to 21 years’ incarceration.       Id. at 1.

Appellant did not file post-sentence motions. Appellant failed to file a timely

notice of appeal, but he filed a petition under the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. § 9541-9546, seeking the reinstatement of his

appellate rights.   Id.    The court granted Appellant’s PCRA petition on July

15, 2016.

      On July 19, 2016, Appellant filed a timely notice of appeal, followed by

a timely concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).        Appellant presents the following sole issue for our

review: “Was the evidence insufficient to sustain [Appellant’s] conviction for

[c]onspiracy to [c]ommit [a]ggravated [a]ssault where the Commonwealth

presented no evidence of communication, interaction, or agreement between

[Appellant] and the shooter in the case?” Appellant’s Brief at 3.

      To begin, we note our standard of review:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.


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Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

      As this Court has previously explained, a criminal conspiracy conviction

requires proof of:

         (1) An intent to commit or aid in an unlawful act, (2) an
         agreement with a co-conspirator and (3) an overt act in
         furtherance of the conspiracy. Because it is difficult to
         prove an explicit or formal agreement to commit an
         unlawful act, such an act may be proved inferentially by
         circumstantial evidence, i.e., the relations, conduct or
         circumstances of the parties or overt acts on the part of
         the co-conspirators.

      Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super.
      2001) (quoting Commonwealth v. Spotz, … 756 A.2d 1139,
      1162 (Pa. 2000)). Circumstantial evidence can include, but is
      not limited to, the relationship between the parties, the
      knowledge of and participation in the crime, and the
      circumstances and conduct of the parties surrounding the
      criminal episode. Commonwealth v. French, … 578 A.2d
      1292, 1294 (Pa. Super. 1990). “These factors may coalesce to
      establish a conspiratorial agreement beyond a reasonable doubt
      where one factor alone might fail.” Id. Aggravated assault, the
      crime underlying [the] [a]ppellant’s conspiracy conviction,
      occurs when a person “attempts to cause serious bodily injury to
      another, or causes such injury intentionally, knowingly, or
      recklessly under circumstances manifesting an extreme
      indifference to the value of human life.”         18 Pa.C.S.A. §
      2702(a)(1). Serious bodily injury is defined as “bodily injury
      which creates a substantial risk of death or which causes serious,
      permanent disfigurement, or protracted loss or impairment of
      the function of any bodily member or organ.” 18 Pa.C.S.A. §
      2301.

Commonwealth v. Thomas, 65 A.3d 939, 943-44 (Pa. Super. 2013).

      Appellant asserts that the evidence was insufficient to support his

conspiracy conviction because, “[w]hile the evidence established that



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[Appellant] and the shooter both engaged in a fight with Jabar [sic] Scott

and other members of his family, and that [Appellant] possessed a firearm,

the record was devoid of any evidence establishing that [Appellant] and Ray

agreed to shoot Jabar [sic] Scott.” Appellant’s brief at 8. Appellant claims,

rather, that “the evidence was equally consistent with [Appellant] and the

shooter acting independent of one another.”      Id.   Accordingly, Appellant

concludes that his conviction of conspiracy to commit aggravated assault

must be vacated. Id. We disagree.

       “In order to sustain a conviction of criminal conspiracy to commit

aggravated assault, the Commonwealth need only establish intent to commit

or aid in the commission of aggravated assault, an agreement with a co-

conspirator, and an overt act in furtherance of the conspiracy.” Thomas, 65

A.3d at 945.       The Commonwealth may meet this burden even if the

conspirators fail to commit the underlying crime of aggravated assault, as

“[c]onspiracy to commit a crime and the underlying crime itself are two

entirely separate offenses with separate elements required for each.” Id. at

944.   Therefore, as we stated in Thomas, “to sustain the conviction for

criminal conspiracy, it need not be established that Appellant committed

aggravated assault, provided that Appellant had the intent to do so.” Id.

       This Court has held in previous cases that “acting together before,

during, and after an attack on another individual suffices to show a unity of

criminal purpose for purposes of sustaining a conviction for criminal

conspiracy    to   commit   aggravated    assault.”    Id.   at   945   (citing

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Commonwealth v. French, 578 A.2d 1292, 1294-95 (Pa. Super. 1990);

Commonwealth v. Poland, 26 A.3d 518, 523 (Pa. Super. 2011)). In the

present case, the trial court concluded that “the evidence clearly established

that [Appellant] acted in concert with Ray to assault Abdul, which lead [sic]

to the shooting of Jabbar.” TCO at 4. The trial court recounts the following

evidence in support of its finding:

      Dominique Scott testified that she looked out her window and
      saw her brother, Abdul, getting “jumped” by Ray, [Appellant],
      and [Appellant’s] brother. Dominique testified that she then left
      her house to assist Abdul and saw Ray strike Abdul with a
      broomstick, followed by [Appellant] getting on top of Abdul.
      While [Appellant] and Abdul were fighting on the ground,
      Dominique testified that she saw a gun “slide out” and that
      Abdul was attempting to get the gun out of [Appellant’s] hand.
      Dominique further testified that this fight over the gun included
      an additional, unidentified person, who was on top of Abdul.
      Dominique testified that [Appellant] ultimately got control of the
      gun and pointed it at her and her brothers, causing them to run
      away from the area. While Dominique testified at trial that
      [Appellant] fired his gun twice, in her preliminary hearing
      testimony, which was admitted at trial, she indicated that Ray
      was the shooter. Dominique also testified that Ray was a drug
      dealer who worked on the block, and that [Appellant] worked for
      Ray. She further testified that Rivera, who assisted [Appellant]
      and Ray in the fight, also worked for Ray.

             Isiaha De Jesus-Rios was interviewed by police shortly
      after the shooting. He informed the police that he witnessed a
      fight between a boy and Dominique, Abdul, and Jabbar.
      Dominique was his aunt, and Jabbar and Abdul were his uncles.
      DeJesus-Rios identified [Appellant] as one participant who
      possessed a gun during the fight, but stated that [Appellant] was
      not the person who fired a gun two times. DeJesus-Rios also
      testified that Jabbar and Abdul were present in his home after
      the shooting, and that Jabbar was bleeding. That Jabbar had
      been shot was confirmed by the testimony of Officer Robert
      Glasson, who first responded to the scene, and by stipulation to
      the medical treatment given to Jabbar.

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             There was also compelling evidence establishing
       [Appellant’s] consciousness of guilt. Officer John Sasse testified
       that on January 15, 2015, while on regular patrol, he and his
       partner observed [Appellant], who they recognized as having an
       outstanding arrest warrant in connection with this shooting,
       driving a minivan.      Officer Sasse testified that he pulled
       [Appellant’s] car over and that [Appellant] provided a fake name
       when asked to identify himself. When placing [Appellant] under
       arrest, Officer Sasse testified that [Appellant] attempted to flee,
       but was restrained by the arresting officers.[1]

TCO at 4-6 (citations to the record omitted).

       Based on the foregoing evidence, the court concluded that:

       [T]here was compelling evidence from which a reasonable
       factfinder could conclude that [Appellant] agreed to act in
       concert with Ray to fight Abdul and Abdul’s family, and that
       during the course of this fight, one of the conspirators shot
       Jabbar.    [Appellant] and Ray both fought with Abdul, both
       brought firearms to this fight, and [Appellant] worked for Ray at
       the time of this fight.      When police effectuated the arrest
       warrant issued against [Appellant], [Appellant] lied to police
       concerning his identity and tried to flee. This evidence was
       clearly sufficient to permit the jury to conclude that [Appellant]
       conspired with Ray in order to commit aggravated assault.

Id. at 6.

       Based on our review of the facts in the light most favorable to the

Commonwealth as the verdict winner, we conclude there was sufficient

evidence to support the trial court’s finding that Appellant conspired with



____________________________________________


1
  “This Court has repeatedly held that flight, along with other circumstantial
evidence, supports the inference of a criminal conspiracy.” Commonwealth
v. Marquez, 980 A.2d 145, 150 (Pa. Super. 2009) (citing Commonwealth
v. Davalos, 779 A.2d 1190 (Pa. Super. 2001); Commonwealth v.
Hatchin, 709 A.2d 405 (Pa. Super. 1998)).



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Ray to commit aggravated assault.       Therefore, we uphold Appellant’s

conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




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