J-A05023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSUE RODRIGUEZ

                            Appellant                  No. 456 EDA 2015


            Appeal from the Judgment of Sentence October 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000337-2013


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                   FILED May 11, 2016

        Josue Rodriguez appeals from the judgment of sentence imposed on

October 10, 2014, in the Court of Common Pleas of Philadelphia County,

after a jury convicted him of third-degree murder and conspiracy to commit

third-degree murder.1       Rodriguez received an aggregate sentence of 17 to

40 years’ incarceration.       In this timely appeal, Rodriguez claims that his

conviction was against both the sufficiency and weight of the evidence, and

that the trial court erred in giving the jury a Fisher2 charge, regarding



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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(c) and 903(c), respectively.
2
    Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 2013).
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conspiracy to commit third-degree murder. After a thorough review of the

submissions by the parties, the certified record, and relevant law, we affirm.

      We adopt the trial court’s recitation of the underlying facts in this

matter:

      At trial, the Commonwealth presented the testimony of
      Philadelphia Police Lieutenant Javier Rodriguez, Philadelphia
      Police Detective James Dunlap, Philadelphia Police Officers
      Robert Scarpello and Terrence Tull, Deputy Medical Examiner Dr.
      Marlon Osbourne, Keshea Lopez and Rosaura Torres-Sadler.
      [Rodriguez] testified on his own behalf and presented the
      testimony of Haisha Rivera. Viewed in the light most favorable
      to the Commonwealth as the verdict winner, the evidence
      established the following.

      On July 23, 2012, at approximately 2:00 a.m., Angel Trinidad
      was walking down Cambria Street near the intersection with Kip
      Street in North Philadelphia. [Rodriguez] was standing at the
      corner of Kip Street and Cambria Street with his girlfriend,
      Haisha Rivera. While Trinidad was walking, Jose Suarez and
      approximately six other individuals, who were located further
      westbound on Cambria Street near Ella Street, called out to
      [Rodriguez] to “hold him” and “stop him,” meaning Trinidad.
      Suarez and his companions were approaching from Ella Street at
      a run. [Rodriguez] then held Trinidad while the group ran up
      from Ella Street. Once the group arrived, the people in the
      group began beating Trinidad. [Rodriguez] joined in the attack
      on Trinidad, punching Trinidad at least twice. While Trinidad was
      being beaten, and while [Rodriguez] was participating in the
      attack, Suarez stabbed Trinidad with a pocket knife nineteen
      times. Suarez punctured Trinidad’s lungs four times.

      After beating and stabbing Trinidad, Suarez, [Rodriguez], and
      their compatriots left the scene. Trinidad managed to walk to
      the middle of the 2900 block of Kip Street before collapsing on
      the sidewalk. Individuals on the street attempted to render aid
      to Trinidad and flagged down a police officer.      Responding
      officers rendered assistance and Trinidad was transported to
      Temple Hospital, where he was pronounced dead at 2:54 a.m.



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       Police recovered video surveillance footage from a camera
       located at the Vargas Minimarket, which recorded the attack.

Trial Court Opinion, 5/18/2015, at 2-3 (citations to the certified record

omitted).

       Additionally, we have reviewed the video surveillance referred to in the

trial court opinion, which shows both the prelude to the attack as well as the

initial assault upon Trinidad.3

       Rodriguez claims the evidence presented at trial was insufficient to

support the verdict.        Specifically, he argues there was no evidence to

support his conviction for conspiracy to commit third degree murder.        He

continues, if he was not a co-conspirator in the murder, his conviction for

murder must also fail.

       Rodriguez argues the evidence produced at trial demonstrated he was

not part of the original group that pursued Trinidad. Accordingly, he could

not have been part of any plan by that group to attack or kill Trinidad. He

only became involved when the group shouted, “Stop him.”            Rodriguez

claims he acted as a Good Samaritan in helping detain Trinidad, who he




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3
  This video was admitted into evidence and shown to the jury. We will
relate the specifics of the video in our discussion of the sufficiency of the
evidence.




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believed had robbed members of the group.4 He claimed to have punched

Trinidad only when he thought he saw Trinidad produce a knife.

        Initially, we note:

        The standard of review for claims of insufficient evidence is well-
        settled. With respect to such claims, we consider the evidence in
        the light most favorable to the Commonwealth as verdict winner.
        In that light, we decide if the evidence and all reasonable
        inferences from that evidence are sufficient to establish the
        elements of the offense beyond a reasonable doubt. We keep in
        mind that it was for the trier of fact to determine the weight of
        the evidence and the credibility of witnesses. The jury was free
        to believe all, part or none of the evidence. This Court may not
        weigh the evidence or substitute its judgment or that of the
        factfinder.
Commonwealth v. Devries, 112 A.3d 663, 667 (Pa. Super. 2015)

(citations omitted).

        While the jury was free to believe Rodriguez’s version of the events, it

was not required to believe Rodriguez. We must review the evidence in the

light most favorable to the Commonwealth as the verdict winner.           In this

regard, we quote the able analysis of the Honorable Glenn B. Bronson, who

initially noted:

        To sustain a conviction for conspiracy, the Commonwealth was
        required to prove that [Rodriguez]:

           (1) entered into an agreement to commit or aid in an
           unlawful act with another person or persons, (2) with a
           shared intent and, (3) an overt act was done in
           furtherance of the conspiracy.
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4
    The group had six or seven members.



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      Commonwealth v. Fisher, 80 A.3d 1186, 1189-90 (Pa. 2013)
      quoting Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa.
      1996); see 18 Pa.C.S. § 903(a). Because in most conspiracy
      cases there is no direct evidence of either the defendant’s
      criminal intent or of the conspiratorial agreement, “the
      defendant’s intent as well as the agreement is almost always
      proven through circumstantial evidence, such as by ‘the
      relations, conduct or circumstances of the parties or overt acts
      on the part of the co-conspirators.’” Commonwealth v.
      Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (quoting
      Commonwealth v. Spotz, 716 A.2d 580, 592 (Pa. 1998)).

      Here, [Rodriguez] was convicted of conspiracy to commit third
      degree murder. Third degree murder is a killing committed with
      malice. Malice consists of “wickedness of disposition, hardness
      of heart, wantonness, cruelty, recklessness of consequences, or
      a mind lacking regard for social duty.” Commonwealth v.
      Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011) (quoting
      Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa. Super.
      1998), app. denied, 739 A.2d 1056 (1999)).            The malice
      required for third degree murder does not require a specific
      intent to kill.    It is sufficient if defendant “committed an
      intentional act, characterized by malice, that results in death,
      intended or not.” Fisher, 80 A.3d at 1191. A conspiracy to
      commit third degree murder is proven if the evidence establishes
      that the defendant agreed with one or more people to
      intentionally and maliciously attack the victim, without regard to
      the consequences of their acts, and as a result of their conduct,
      the victim dies. Id., 80 A.3d at 1196.

Trial Court Opinion, at 4-5.

      Keshea Lopez, a resident of the neighborhood who witnessed the

attack, testified she heard the group of individuals, including Suarez, call out

to Rodriguez to stop Trinidad.    N.T. 8/5/2014 at 93.      She then saw the

group, including Rodriguez, begin to beat Trinidad. Id. at 95-96. She then

saw Suarez stab Trinidad multiple times. Id. at 96-100. While Suarez was




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stabbing Trinidad, she witnessed Rodriguez participating in the attack.   Id.

at 98.

         The surveillance video showed Trinidad walking down Cambria Street

and standing on the corner of Kip and Cambria Streets.          Very shortly

thereafter, Rodriguez approached Trinidad from the same direction Trinidad

had arrived from.     An unnamed individual also approached Trinidad from

across Cambria Street.      As they neared Trinidad, Rodriguez moved past

Trinidad on Kip Street, preventing him from going further. At that time, the

group approached and Suarez pulled something from either a back pocket or

waistband and almost immediately began attacking Trinidad using what

might be best described as a classic downward stabbing motion. During the

attack, Rodriguez appears at one point to have held onto Trinidad while

Suarez stabbed him. The group trapped Trinidad between a parked car and

utility pole. Suarez continued to stab Trinidad while Rodriguez punched him

in the head. As Trinidad broke free from the group and crossed Kip Street

out of view of the camera, Rodriguez left with the group, following Trinidad.

The events caught on the video show Rodriguez is an active participant in

the attack on Trinidad. See Surveillance Video.

         Although there was no testimony from any witness that the stabbing

continued after Trinidad crossed the street and out of camera sight, the

video showed approximately 12 stabs. The autopsy report showed Trinidad

was stabbed 19 times.        Accordingly, it may be inferred the stabbing


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continued out of camera sight. According to witness testimony, the group

dispersed shortly after leaving camera view and the police arrived shortly

thereafter. Although fatally wounded, Trinidad refused to cooperate with the

police or to identify his attackers.

       Based upon this evidence, the trial court stated:

       [T]he evidence was sufficient to establish that [Rodriguez]
       intentionally participated in the group beating of Trinidad, joining
       Suarez and multiple other individuals, and assisted them by
       stopping Trinidad on the street and by punching him several
       times. The evidence also establishes that while [Rodriguez] was
       participating in this attack, Suarez stabbed Trinidad multiple
       times causing Trinidad’s death. This was ample evidence from
       which a reasonable juror could conclude that [Rodriguez] was
       guilty of conspiracy to commit third degree murder.             See
       Fisher, 80 A.3d at 1186, 1190-1196 (defendants properly
       convicted of conspiracy to commit third degree murder where
       they joined in a random beating of a man on a subway
       concourse who later died from an asthma attack caused by the
       beating.) No relief is due.

Trial Court Opinion, supra, at 6.5

       Additionally, we note that “a conspiracy may be formed in a second

and its existence may be very, very fleeting,” Commonwealth v.

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5
  In its closing argument, the Commonwealth presented the jury with a list
of evidence supporting Rodriguez’s entry into a conspiracy (as well as
evidence directed toward other aspects of his guilt). The list, which is
supported by evidence of record, is enlightening: (1) Rodriguez is the first to
approach Trinidad, (2) he blocks Trinidad from walking down Kip Street, (3)
he moves closer to Trinidad as the stabbing begins, (4) he holds Trinidad’s
arm as he is being stabbed, (5) he is shoulder to shoulder with Suarez as
the stabbing occurs, (6) he punches Trinidad as the stabbing continues, (7)
he remains close as the assault continues, and (8) he follows along with the
group after Trinidad crosses Kip Street to continue with the attack.



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Robinson, 425 A.2d 748, 754 (Pa. Super. 1980), distinguished on other

grounds, Commonwealth v. Thomas, 879, A.2d 246 (Pa. Super. 2005),

thus, there was no requirement that Rodriguez was part of the original group

that was seeking Trinidad in order for him to be found to be a co-

conspirator. Accordingly, we agree there was sufficient evidence to sustain

the verdict.

       Because Rodriguez’s argument regarding sufficiency of the evidence

centers on his status as a conspirator, we need not provide a detailed

analysis of Suarez’s actions. Our recitation of evidence makes it amply clear

that a jury could find Trinidad’s death was the result of a malicious attack,

sufficient to support the third-degree murder charge.

       Next, Rodriguez claims his conviction was against the weight of the

evidence.6 Rodriguez notes that,

       “A true weight of the evidence challenge concedes that sufficient
       evidence exists to sustain the verdict, but contends the verdict
       was against the weight of the evidence…our Court may not
       reverse a verdict unless it is so contrary to the evidence as to
       shock one’s sense of justice.” [Commonwealth v. Burns, 765
       A.2d 1144, 1149, 1150 (Pa. Super., 2000)].

Rodriguez’s Brief at 47.

       Our standard of review for a challenge to the weight of the evidence is

as follows:

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6
  This claim was properly preserved in a post-sentence motion filed on
October 15, 2014.



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     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

       Appellate review of a weight claim is a review of the
       exercise of discretion, not of the underlying question of
       whether the verdict is against the weight of the evidence.
       [Commonwealth v.] Brown, 648 A.2d [1177] at 1189
       [(Pa. 1994)]. Because the trial judge has had the
       opportunity to hear and see the evidence presented, an
       appellate court will give the gravest consideration to the
       findings and reasons advanced by the trial judge when
       reviewing a trial court's determination that the verdict is
       against the weight of the evidence. Commonwealth v.
       Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One
       of the least assailable reasons for granting or denying a
       new trial is the lower court's conviction that the verdict
       was or was not against the weight of the evidence and that
       a new trial should be granted in the interest of justice.
     [Commonwealth v.] Widmer, 560 Pa. [308] at 321-22, 744
     A.2d [745] at 753 (emphasis added).
     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court's discretion, we have
     explained:

       The term “discretion” imports the exercise of judgment,
       wisdom and skill so as to reach a dispassionate conclusion
       within the framework of the law, and is not exercised for
       the purpose of giving effect to the will of the judge.
       Discretion must be exercised on the foundation of reason,
       as opposed to prejudice, personal motivations, caprice or
       arbitrary actions. Discretion is abused where the course
       pursued represents not merely an error of judgment, but
       where the judgment is manifestly unreasonable or where
       the law is not applied or where the record shows that the
       action is a result of partiality, prejudice, bias or ill-will.
     Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v.
     S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181,
     1184-85 (1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).


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       Here, Rodriguez claims: the verdict shocks one’s sense of justice in

that it ignores the fact that Rodriguez was not part of the original group

seeking Trinidad.      Accordingly, he was not party to the dispute between

them and had no foreknowledge of any designs to kill Trinidad. Rather, he

merely accosted Trinidad in response to the shouts of “stop him”, only

punched Trinidad, and was unaware that Suarez was stabbing Trinidad.

       The trial court reviewed the evidence presented at trial and recognized

that the jury, as finders of fact, were the sole determiners of credibility.7

See Trial Court Opinions at 7-8.               Therefore, the jury was free to reject

Rodriguez’s version of the events and believe the evidence of the

eyewitnesses and the video.          Additionally, remembering that a conspiracy

may be “formed in a second” and its existence may be very, very fleeting,”

Robinson, supra, we find no abuse of discretion in the trial court concluding

the verdict did not shock one’s sense of justice.            Accordingly, we find no

abuse of discretion or error of law.

       In his final argument, Rodriguez claims the trial court improperly

charged the jury regarding conspiracy to commit third-degree murder. Our

standard of review for a challenge to a jury instruction is as follows:

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7
  See Commonwealth v. Murray, 83 A.2d 137, 154 (Pa. 2013) (holding
that the finders of fact are free to believe all, some, or none of the evidence
presented to it, and are further the sole resolvers of issues of credibility;
decisions made by finders of fact in these regards will not be disturbed on
appeal).



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      [W]hen evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citation omitted).

      Here, the trial court gave the jury the standard jury instruction

regarding conspiracy to commit third degree murder, otherwise known as a

Fisher charge. Specifically, the trial court told the jury:

             To prove the defendant guilty of conspiracy to commit
      third degree murder, the Commonwealth does not have to prove
      that the object of the conspiracy was to kill the victim. However,
      the Commonwealth must prove that the object of the conspiracy
      was to cause at lease serious bodily injury to the victim and
      then, as a result of the actions of one or more of the
      conspirators taken during the course of the conspiracy and done
      in furtherance of that criminal objective, the victim died.

N.T. Trial, 8/7/2014, at 215.

      Although counsel for Rodriguez objected to the charge, he conceded it

was a proper Fisher charge, stating:

      I again renew my objection under The Commonwealth [v.]
      Fisher, the recent case. I can state it’s my position that there is
      no crime of conspiracy to commit third degree murder, - I
      understand the Supreme Court has ruled to the contrary – that
      there is no, that there has to be a[n] intent to have a
      conspiratorial agreement. But more importantly, I disagree with
      how far Fisher has gone.




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      Your charge, of course, is the correct charge under the Fisher
      standard, but I object to that because in essence it creates a
      vicarious liability for murder if somebody happened to participate
      in a fight and someone died.

N.T. Trial, 8/7/2014, at 234.

      Accordingly, any challenge to the specific language of the jury

instruction has been waived. To the extent counsel’s objection is seen as a

challenge to Fisher, we have no authority to overrule our Supreme Court.

Therefore, any such challenge to Fisher can only be decided by our

Supreme Court. In either event, Rodriguez is not entitled to relief from our

Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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