J-S65022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

ALVAN WILSON,

                            Appellant                        No. 3586 EDA 2013


            Appeal from the Judgment of Sentence of May 20, 2011
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011393-2009


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED NOVEMBER 13, 2014

        Appellant, Alvan Wilson, appeals from the judgment of sentence

entered on May 20, 2011, as made final by the denial of an oral motion

challenging the weight of the evidence, following his bench trial convictions

for    third-degree   murder,     criminal     conspiracy,   and   possession   of   an

instrument of crime.1 We affirm.

        The trial court summarized the relevant factual and procedural

background of this matter as follows:

          [At approximately 7:00 p.m., on Saturday, March 22,
          2008], three men – [Appellant], along with co-defendant
          Rayvon Richburg,[2] and a third man Raphael Richburg –
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 903, and 907, respectively.
2
  This Court affirmed the judgment of sentence of co-defendant, Rayvon
Richburg. See Commonwealth v. Richburg, 1559 EDA 2011 (filed May
(Footnote Continued Next Page)


*Retired Senior Judge assigned to the Superior Court.
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         knocked on the front door of Fatima [Dennis’] home located
         at [] Street.[3] Fatima [Dennis] answered the knock and
         allowed Raphael Richburg to enter her home to speak with
         her boyfriend, James Lane. Rayvon Richburg remained in
         the front doorway and [Appellant] remained near the street.
         Soon, a heated argument over drugs erupted between
         Raphael Richburg and James Lane, in which both men
         discharged their firearms two times. Each suffered a single
         perforating contact gunshot wound of the chest.

         Although severely injured, both men were able to move and
         their skirmish continued onto the front porch. As the men
         exited [] Street, two things happened in a matter of
         seconds: (1) Rayvon Richburg fired shots in James Lane’s
         general direction while escorting Raphael Richburg[] off the
         front porch; and (2) [Appellant] fired shots as well.

         At approximately 7:05 p.m., Philadelphia Police arrived at
         the scene. Officers found James Lane lying on the front
         porch of [] Street with a gun next to his lifeless body.
         Twenty-one packets of crack-cocaine were subsequently
         found on this property. Raphael Richburg was alive, but
         severely wounded, in front of [] [] Street. Paramedics
         rushed him to the Hospital of the University of
         Pennsylvania, where he was pronounced dead at 7:37 p.m.
         Fifty-four packets of crack-cocaine fell from his body while
         at the hospital.

         The medical examiner conducted autopsies on the bodies of
         the decedents and concluded that the manner of death for
         both was homicide.

Trial Court Opinion, 4/14/2014, at 2-3.

                       _______________________
(Footnote Continued)

14, 2013) (unpublished memorandum), appeal denied, 315 EAL 2013 (Pa.
2013).
3
   Throughout its opinion, the trial court refers to the homeowner as Ms.
“Davis,” while Appellant’s and the Commonwealth’s briefs refer to her as Ms.
“Dennis.” For the purpose of our memorandum, we refer to the homeowner
as Ms. Dennis. We have also redacted the address and street name of the
residence at issue.



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       Appellant proceeded to a non-jury trial for the events occurring on

March 22, 2008. On March 4, 2011, the trial court found Appellant guilty of

the aforementioned crimes.          The trial court held a sentencing hearing on

May 20, 2011.        At sentencing, Appellant orally moved to challenge the

weight of the evidence.          The trial court denied relief and proceeded to

sentencing, wherein it imposed an aggregate term of imprisonment of eight

to 16 years. No direct appeal was taken. On February 15, 2012, Appellant

filed a pro se petition pursuant to the Post-Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9542-9546.          The trial court appointed counsel who filed an

amended PCRA petition requesting nunc pro tunc relief.             Following an

evidentiary hearing on December 6, 2013, the trial court reinstated

Appellant’s appellate rights. This timely appeal resulted.4

       Appellant presents the following issues for our review:

         I.     Is [Appellant] entitled to an arrest of judgment with
                regard to his convictions for murder of the third
                degree, criminal conspiracy and possessing an
                instrument of crime since the evidence was
                insufficient  to    sustain   the  verdicts   as  the
                Commonwealth failed to sustain its burden of proving
                [Appellant’s] guilt beyond a reasonable doubt?

         II.    Is [Appellant] entitled to a new trial with regard to his
                convictions for murder of the third degree, criminal
____________________________________________


4
   On December 19, 2013, Appellant filed a nunc pro tunc notice of appeal.
The trial court issued an order directing Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on April 14, 2014.



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               conspiracy and possessing an instrument of crime
               since the verdicts of guilt are against the weight of the
               evidence?

Appellant’s Brief at 4.

      Appellant challenges the sufficiency of the evidence, which we consider

under a well-accepted standard of review:

        The standard we apply in reviewing the sufficiency of
        evidence is whether, viewing all the evidence admitted at
        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the factfinder 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 that of 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 a 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. Muniz, 5 A.3d 345, 348 (Pa. Super. 2010) (internal

citations and quotations omitted), appeal denied, 19 A.3d 1050 (Pa. 2011).

      Appellant’s appeal argues that there was insufficient evidence to

convict him of third-degree murder, criminal conspiracy, and possession of

an instrument of crime. We therefore set forth the statutory elements for

each of Appellant’s three convictions.

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      “Third[-]degree murder occurs when a person commits a killing which

is neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice.”   Commonwealth v. Ventura, 975 A.2d

1128, 1142 (Pa. Super. 2009) (citations omitted), appeal denied, 987 A.2d

161 (Pa. 2009). Malice is an essential element of murder, including third-

degree murder.    Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa.

Super. 2009). Malice may be found where the actor consciously disregards

an unjustified and extremely high risk that the actor's conduct might cause

death or serious bodily injury.    Id.    Malice may be inferred from “the

attending circumstances of the act resulting in the death.” Commonwealth

v. Lee, 626 A.2d 1238, 1241 (Pa. Super. 1993) (citations omitted). “One

such circumstance is evidence that the defendant used a deadly weapon

upon a vital part of the victim's body; this inference alone is sufficient to

establish malice.” Id.

      Appellant was also convicted of criminal conspiracy to commit murder,

18 Pa.C.S.A. § 903(a)(1) (codifying the offense of criminal conspiracy).

Pursuant to that statute:

      A person is guilty of conspiracy with another person or persons
      to commit a crime if with the intent of promoting or facilitating
      its commission he:

         (1) agrees with such other person or persons that they or
         one or more of them will engage in conduct which
         constitutes such crime or an attempt or solicitation to
         commit such crime.




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Id. In addition, subsection (e) of the conspiracy statute provides that “[n]o

person may be convicted of conspiracy to commit a crime unless an overt

act in pursuit of such conspiracy is alleged and proved to have been done by

him or by a person with whom he conspired.” 18 Pa.C.S.A. § 903(e).

      Further:

      Circumstantial evidence may provide proof of the conspiracy.
      The conduct of the parties and the circumstances surrounding
      such conduct may create a “web of evidence” linking the accused
      to the alleged conspiracy beyond a reasonable doubt.
      Additionally:

         An agreement can be inferred from a variety of
         circumstances including, but not limited to, the relation
         between the parties, knowledge of and participation in the
         crime, and the circumstances and conduct of the parties
         surrounding the criminal episode.       These factors may
         coalesce to establish a conspiratorial agreement beyond a
         reasonable doubt where one factor alone might fail.

Commonwealth v. Jones, 874 A.2d 108, 121-122 (Pa. Super. 2005),

quoting Commonwealth v. Greene, 702 A.2d 547, 554 (Pa. Super. 1997)

(internal citations omitted).

      Finally, Appellant was convicted of possession of an instrument of

crime.    Pursuant to 18 Pa.C.S.A. § 907(b), “[a] person commits a

misdemeanor of the first degree if he possesses a firearm or other weapon

concealed upon his person with intent to employ it criminally.” Based upon

that language, to sufficiently establish the crime, the Commonwealth must

present evidence that, inter alia, the defendant possessed the firearm or

other weapon, with an intent to use the tools for some criminal purpose.

Commonwealth v. Hardick, 380 A.2d 1235, 1236 (Pa. 1977).

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      Based upon review of the certified record, the parties’ submissions,

and the trial court’s opinion, we find that the trial court has thoroughly and

accurately set forth why the evidence in this matter was sufficient to convict

Appellant of the aforementioned crimes. See Trial Court Opinion, 1/5/2012,

at 3-8. Consequently, we affirm on the basis of the trial court opinion and

adopt it as our own.

      Appellant, however, challenges the trial court opinion, arguing that the

evidence was insufficient to convict him of any of the charged crimes

because, according to Appellant, within its assessment of the sufficiency of

the evidence, the trial court improperly relied upon inadmissible evidence.

Appellant’s Brief at 13-31. Appellant argues that the trial court improperly

admitted eyewitness statements from two witnesses who, after providing

their statements, recanted and/or gave conflicting testimony. Id. at 14-16,

22-23. Appellant argues that the “Commonwealth’s evidence in this regard

was speculative, conjectural and inherently inconsistent, contradictory and

unreliable and did not sustain the Commonwealth’s burden beyond a

reasonable doubt.” Id. at 22. Absent the eyewitness statement, Appellant

argues that there was no corroborating physical evidence tying him to the

crimes. Id. at 22-25. Consequently, Appellant argues that his judgment of

sentence should be reversed, because the Commonwealth failed to prove his

identity as the perpetrator of the crimes alleged.    Id. at 25-27.   Finally,

Appellant contends that there was no evidence presented at trial that he was


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engaged in a conspiratorial relationship or acted as an accomplice with his

co-defendants. Id. at 29-31.

      Appellant’s argument, however, is flawed for multiple reasons. Most

fundamentally, pursuant to Pennsylvania precedent, when considering the

sufficiency of the evidence, a reviewing court is “required to consider all

evidence that was actually received, without consideration as to the

admissibility of that evidence.” Commonwealth v. Palmer, 751 A.2d 223,

227 (Pa. Super. 2000); Commonwealth v. Reed, 990 A.2d 1158, 1161

(Pa. 2010) (holding that “the entire trial record should be evaluated and all

evidence received considered, whether or not the trial court’s rulings thereon

were correct.”)     Therefore, even if the eyewitness statements were

improperly admitted at trial, the trial court was obligated to consider them

for sufficiency review purposes.   We also note that witness statements to

police that are later recanted may supply a sufficient evidentiary basis to

establish guilt beyond a reasonable doubt. Subsequent recantation does not

defeat the factfinder’s right to credit prior statements or testimony in

considering a defendant’s guilt or innocence.       See Commonwealth v.

Hanible, 30 A.3d 426, 443 (Pa. 2011) (“[T]he mere fact that [a witness]

recanted a statement he had previously made to the police certainly does

not render the evidence insufficient to support [Hanible’s] conviction.

Rather, the jury was free to evaluate both [the witness’] statement to police

as well as his testimony at trial recanting that statement, and free to believe


                                     -8-
J-S65022-14


all, part, or none of the evidence.”). Thus, there was no error in the trial

court relying on prior statements that were subsequently recanted at trial.

      Additionally, Appellant’s contention that the eyewitness statements

should not have been relied upon because Appellant believes that they were

untrustworthy and unreliable challenges the weight of the evidence, not its

sufficiency.   See e.g. Commonwealth v. Murray, 597 A.2d 111 (Pa.

Super. 1991) (distinguishing challenges to the sufficiency of the evidence

from challenges to the weight of the evidence).

      Finally, we note that the arguments presented in Appellant’s brief

ultimately focus on and challenge the admission of evidence, not its

sufficiency. Within his brief, Appellant does not identify which elements of

his respective crimes were insufficiently proven; instead, he directs his

entire argument to the admission of the eyewitness statements. If Appellant

wanted to appeal the admission of the eyewitness statements, he was

obligated to challenge their admission through an objection at trial and then

follow-up with a subsequent appeal.         Review of the certified record,

however, reveals that the eyewitness statements were admitted based upon

a stipulation from counsel, and Appellant’s trial counsel did not lodge a

contemporaneous objection preserving his right to appeal their admission.

Appellant’s effort to recast his claim as a challenge to the sufficiency of the

evidence is unavailing. Thus, Appellant’s first issue lacks merit.




                                     -9-
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      Next, Appellant challenges the weight of the evidence to support his

convictions. Pursuant to Pennsylvania Rule of Criminal Procedure 607:

        A claim that the verdict was against the weight of the
        evidence shall be raised with the trial judge in a motion for
        a new trial:

            (1) orally, on the record, at any time before
            sentencing;

            (2) by written motion at any time before sentencing;
            or

            (3) in a post-sentence motion.

See Pa.R.Crim.P. 607. At the sentencing hearing, Appellant made an oral

motion challenging the weight of the evidence. Thus, he properly preserved

his current claim.

      Our Supreme Court has determined:

                A motion for a new trial alleging that the verdict was
        against the weight of the evidence is addressed to the
        discretion of the trial court. An appellate court, therefore,
        reviews the exercise of discretion, not the underlying
        question whether the verdict is against the weight of the
        evidence. The factfinder is free to believe all, part, or none
        of the evidence and to determine the credibility of the
        witnesses. The trial court will award a new trial only when
        the jury's verdict is so contrary to the evidence as to shock
        one's sense of justice. In determining whether this standard
        has been met, appellate review is limited to whether the
        trial judge's discretion was properly exercised, and relief will
        only be granted where the facts and inferences of record
        disclose a palpable abuse of discretion. Thus, the trial
        court's denial of a motion for a new trial based on a weight
        of the evidence claim is the least assailable of its rulings.

Commonwealth v. Weathers, 95 A.3d 908, 910-911 (Pa. Super. 2014),

citing Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).



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      In this case, the trial court concluded that it “heard credible testimony

that, inter alia, [Appellant] and his co-defendant went armed to the location

where the incident occurred and then, when gunfire rang out, both men

simultaneously pulled out weapons and began firing.” Trial Court Opinion,

4/14/2014, at 9. As a result, two men were killed. Hence, Appellant, while

engaged in a conspiracy, used an instrument of crime that resulted in death.

Accordingly, we conclude that Appellant’s bench trial convictions for third-

degree murder, criminal conspiracy, and possession of an instrument of

crime does not shock one’s sense of justice. As such, Appellant’s second

issue is without merit.

      Based upon the reasons set forth in the trial court’s April 14, 2014

opinion, the evidence was more than sufficient, and not against its weight,

to convict Appellant of the aforementioned crimes.       We therefore affirm

Appellant’s judgment of sentence on the basis of the trial court opinion. The

parties are instructed to attach a copy of the trial court’s April 14, 2014

opinion to all future filings regarding this appeal.   Prior to attaching that

opinion, however, we instruct the parties to redact any reference to the

street name and number where the incident in this matter took place.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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