J-S06013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
JOSE RODRIGUEZ,                         :
                                        :
                  Appellant             :   No. 2057 EDA 2016

            Appeal from the Judgment of Sentence May 13, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0007913-2015


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                 FILED MAY 21, 2018

     Jose Rodriguez appeals from the aggregate judgment of sentence of

twelve to twenty-five years incarceration, followed by five years probation,

imposed after Appellant was convicted of attempted murder, aggravated

assault, and other crimes in a bench trial. We affirm.

     On May 5, 2015, Appellant confronted an intoxicated Christopher

“Coop” Cooper and accused him of attempting to take over drug sales on the

block. Appellant punched Mr. Cooper in the face, the two men fought, and

Mr. Cooper eventually pulled away and went into the home of Charshelene

Moses, where she lived with her sons Dawan and Tamere (aged twenty-two

and seventeen, respectively).   Mr. Cooper remained in the basement until

Dawan Moses summoned everyone outside to find Appellant in the back of

the residence. Appellant promptly resumed his argument with Mr. Cooper,
J-S06013-18


pulled out a gun, fired at least three shots at Mr. Cooper’s chest, and ran

away.        Mr. Cooper was treated for a gunshot wound in his leg as well as

wounds he had sustained during the initial fight with Appellant.

        As a result, Appellant was charged with, and convicted of, attempted

murder, aggravated assault, simple assault, recklessly endangering another

person, possession of a firearm prohibited, carrying a firearm without a

license, carrying a firearm on a public street, and possessing an instrument

of crime, and was sentenced as indicated above.         Appellant filed a timely

post-sentence motion, and, after it was denied, filed a timely notice of

appeal.        Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

        Appellant presents the following questions for our review.

        1.      Was the evidence insufficient as a matter of law such that
                no reasonable fact[-]finder could have found [Appellant]
                guilty of attempted murder beyond a reasonable doubt
                where there was no evidence of record that [Appellant]
                had the intent to kill [Mr.] Cooper[?]

        2.      Was the verdict of guilty against the weight of the
                evidence because there was contradictory testimony given
                by [Appellant] that he did not shoot [Mr.] Cooper and that
                he was not present when the shooting occurred[?]

Appellant’s brief at 8.

        We first consider our standard of review applicable to Appellant’s

sufficiency challenge.

        Because a determination of evidentiary sufficiency presents a
        question of law, our standard of review is de novo and our scope
        of review is plenary.     In reviewing the sufficiency of the

                                       -2-
J-S06013-18


      evidence, we must determine whether the evidence admitted at
      trial and all reasonable inferences drawn therefrom, viewed in
      the light most favorable to the Commonwealth as verdict winner,
      were sufficient to prove every element of the offense beyond a
      reasonable doubt. [T]he facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence.     It is within the province of the fact-finder to
      determine the weight to be accorded to each witness’s testimony
      and to believe all, part, or none of the evidence.            The
      Commonwealth may sustain its burden of proving every element
      of the crime by means of wholly circumstantial evidence.
      Moreover, as an appellate court, we may not re-weigh the
      evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).

      Appellant claims that there was insufficient evidence to sustain his

conviction for attempted murder.

      A person may be convicted of attempted murder if he takes a
      substantial step toward the commission of a killing, with the
      specific intent in mind to commit such an act. The substantial
      step test broadens the scope of attempt liability by concentrating
      on the acts the defendant has done and does not any longer
      focus on the acts remaining to be done before the actual
      commission of the crime. The mens rea required for first-degree
      murder, specific intent to kill, may be established solely from
      circumstantial evidence. The law permits the fact[-]finder to
      infer that one intends the natural and probable consequences of
      his acts.

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008) (cleaned

up). “It is well-settled that specific intent to kill can be established through

circumstantial evidence such as the use of a deadly weapon on a vital part of

the victim’s body.”   Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa.

2014) (citation omitted).


                                     -3-
J-S06013-18


      Appellant contends that the Commonwealth failed to prove that he had

the specific intent to kill Mr. Cooper.   He claims that the leg, where Mr.

Cooper was shot, is not a vital organ, and that Ms. Moses’s testimony does

not establish that Appellant aimed his shots at a vital organ.     Appellant’s

brief at 12-13. Appellant further argues that there was no evidence offered

to show his state of mind, such as any threats to kill Mr. Cooper. Id. at 13.

      The Commonwealth disagrees with Appellant’s assessment.               It

maintains that the relevant inquiry is not whether Appellant in fact shot Mr.

Cooper in a vital organ, but whether the evidence suggests that such was his

intent.    Commonwealth’s brief at 10.      The Commonwealth states that

Appellant’s recitation of Ms. Moses’s testimony is incorrect, and that her

testimony establishes that Appellant shot Mr. Cooper with the intent to kill

him. Id.

      The trial transcript reflects that Ms. Moses offered the following

testimony when asked to describe what happened after she, Mr. Cooper, and

Dawan went outside.

      [Ms. Moses]      [Appellant] was having a little fuss with
            Cooper. I thought they was getting ready to fight or
            something. I’m like, what’s going on? Then next thing I
            know, he pulled out this little gun.

      Q      Who’s “he”?

      A      [Appellant]. And I looked him dead in his face and I said,
             “I know you not going to shoot nobody with that little
             gun.”

             ....

                                    -4-
J-S06013-18



      Q     What did he do after you said that to him?

      A     He looked me in my face and he still -- he looked me in my
            face like this, turned back around and just started
            shooting.

      Q     Shooting where?

      A     Coop.

      Q     At Coop?

      A     At Coop.

      Q     What part of Coop’s body was the gun aimed at?

      A     I thought it was his chest and stuff, but the way, you
            know, he was holding it, he was just shooting like this. He
            was going to his chest. And I started screaming. And
            that’s when he turned around and he ran.

      Q     Who turned around and ran?

      A     [Appellant].

      Q     How many gunshots did you hear?

      A     I know at least three.

N.T. Trial, 3/8/16, at 50-52.

      The record thus supports the Commonwealth’s contention              that

Appellant fired a deadly weapon pointed at Mr. Cooper’s chest. The fact that

Appellant missed his mark does not negate the inference that he intended to

shoot Mr. Cooper in a vital organ, and thus took a substantial step toward

killing Mr. Cooper. Such evidence was sufficient to prove that he acted with

the specific intent to kill for attempted murder. See, e.g., Commonwealth


                                     -5-
J-S06013-18


v. Tucker, 143 A.3d 955, 964–65 (Pa.Super. 2016) (holding that evidence

was sufficient to support attempted murder conviction of victim where shots

missed victim’s head and victim was hit in the leg).

      Appellant’s remaining appellate issue is a claim that his convictions are

against the weight of the evidence.     Accordingly, the following principles

apply.

      Appellate review of a weight claim is a review of the [trial
      court’s] exercise of discretion, not of the underlying question of
      whether the verdict is against the weight of the evidence.
      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. 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. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).                    This

standard applies even when the trial judge also rendered the verdict at issue

as the finder of fact.   See, e.g., Commonwealth v. Konias, 136 A.3d

1014, 1023 (Pa.Super. 2016) (applying the above standard to a weight

challenge following a bench trial).

      Appellant claims that the verdict is against the weight of the evidence

for the following reasons. No firearm was recovered from Appellant, and no

ballistics evidence connected him to the crime. Appellant’s brief at 15. Mr.

Cooper at trial denied that Appellant was the one who shot him, and was

admittedly intoxicated at the time he was shot and when he gave his initial

                                      -6-
J-S06013-18


statement to police identifying Appellant. Id. at 15-16. Further, Appellant

testified that he did not shoot Mr. Cooper, and was at a different location at

the time of the incident. Id. at 15.

      The trial court found Appellant’s testimony “to be self-serving and not

truthful.”    Trial Court Opinion, 12/2/16, at 7.        Rather, it credited the

testimony of the Commonwealth’s witnesses.            The trial court thus found

“that Appellant’s convictions did not shock the conscience.” Id. at 6.

      Aside    from   the   testimony   of    Ms.   Moses   detailed   above,   the

Commonwealth offered that of Detective Kenneth Rossiter.                 Detective

Rossiter indicated that Mr. Cooper, who did not “appear to be under the

influence of anything,” stated both that Appellant was the one who fought

him and shot him, and identified and signed a photograph of Appellant as

the perpetrator.      N.T. Trial, 3/8/16, at 39-44.         These Commonwealth

witnesses, if believed, established Appellant’s identity as the shooter. It was

the province of the trial court, who observed all of the witnesses, to

determine that these witnesses were credible, and those relied upon by

Appellant are not. Accordingly, our review of the record reveals no abuse of

discretion on the part of the trial court in holding that the verdict did not

shock its conscience, and Appellant is entitled to no relief from this Court on

his weight-of-the-evidence claim.

      Judgment of sentence affirmed.




                                        -7-
J-S06013-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




                          -8-
