J-S52040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ELVIN RAFAEL MATEO                         :
                                               :
                      Appellant                :       No. 1784 MDA 2016

            Appeal from the Judgment of Sentence August 29, 2016
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0005730-2015


BEFORE:      GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED SEPTEMBER 22, 2017

        Appellant, Elvin Rafael Mateo, appeals from the judgment of sentence

entered in the York County Court of Common Pleas, following his jury trial

convictions for conspiracy to commit first degree murder, first degree

murder, attempted first degree murder, and aggravated assault. 1               We

affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.2 We add only that Appellant timely filed a concise statement


____________________________________________


1
    18 Pa.C.S.A. §§ 903, 2502(a), 901(a), 2702(a)(1), respectively.
2
 In its opinion at page 5, the trial court states Thomas Hoke testified that he
saw an occupant of a red SUV wearing a black jacket while the vehicle drove
(Footnote Continued Next Page)
J-S52040-17


of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on

November 9, 2016.

      Appellant raises the following issues for our review:

          [WHETHER] THE JURY VERDICT WAS AGAINST THE
          GREATER WEIGHT OF THE EVIDENCE PRESENTED AT
          TRIAL SO AS TO SHOCK ONE’S SENSE OF JUSTICE ON THE
          FOLLOWING     GROUNDS:      THE     COMMONWEALTH’S
          EVIDENCE DID NOT DISPROVE BEYOND A REASONABLE
          DOUBT [APPELLANT’S] CLAIM OF SELF DEFENSE, THE
          COMMONWEALTH’S EVIDENCE DID NOT DISPROVE
          BEYOND A REASONABLE DOUBT THAT THE ALLEGED
          VICTIM(S) WERE THE INITIAL AGGRESSOR(S), IN THAT
          THE COMMONWEALTH DID NOT PRODUCE A MURDER
          WEAPON OR OTHER SUFFICIENT EVIDENCE THEY DID NOT
          ESTABLISH BEYOND A REASONABLE DOUBT THAT
          [APPELLANT] KILLED [VICTIM 1] OR INJURED [VICTIM 2?]

          [WHETHER] THE EVIDENCE AT TRIAL WAS INSUFFICIENT
          TO SUPPORT THE JURY’S VERDICT AS TO ALL CHARGES
          ON THE FOLLOWING GROUNDS: THE COMMONWEALTH’S
          EVIDENCE DID NOT DISPROVE BEYOND A REASONABLE
          DOUBT [APPELLANT’S] CLAIM OF SELF DEFENSE, THE
          COMMONWEALTH’S EVIDENCE DID NOT DISPROVE
          BEYOND A REASONABLE DOUBT THAT THE ALLEGED
          VICTIM(S) WERE THE INITIAL AGGRESSOR(S), IN THAT
          THE COMMONWEALTH DID NOT PRODUCE A MURDER
          WEAPON OR OTHER SUFFICIENT EVIDENCE THEY DID NOT
          ESTABLISH BEYOND A REASONABLE DOUBT THAT
          [APPELLANT] KILLED [VICTIM 1] OR INJURED [VICTIM 2?]

          [WHETHER] THE HONORABLE TRIAL COURT ERRED IN
          ADMITTING TESTIMONY FROM DETECTIVE FETROW THAT
          [APPELLANT], IN RESPONSE TO A QUESTION AS TO HOW
          HE WAS EMPLOYED, STATED THAT HE SOLD DRUGS

                       _______________________
(Footnote Continued)

away from an area where shots had been fired. The record shows Thomas
Hoke actually testified that he could not remember the clothing of the
occupants in the vehicle.



                                            -2-
J-S52040-17


         WHICH PREJUDICE TO [APPELLANT] FAR OUTWEIGHED
         ANY PROBATIVE VALUE[?]

(Appellant’s Brief at 4).

      When examining a challenge to the weight of the evidence, our

standard of review is as follows:

            The weight of the evidence is exclusively for the
            finder of fact who is free to believe all, part, or none
            of the evidence and to determine the credibility of
            the witnesses. An appellate court cannot substitute
            its judgment for that of the finder of fact. Thus, we
            may only reverse the…verdict if it is so contrary to
            the evidence as to shock one’s sense of justice.

         Moreover, where the trial court has 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. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted).

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

         The standard we apply in reviewing the sufficiency of the
         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 fact-finder 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 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

                                     -3-
J-S52040-17


          defendant’s guilt may be resolved by the 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 [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      The standard of review for admission of evidence is as follows: “The

admissibility of evidence is at the discretion of the trial court and only a

showing of an abuse of that discretion, and resulting prejudice, constitutes

reversible error.”   Commonwealth v. Ballard, 622 Pa. 177, 197-98, 80

A.3d 380, 392 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014).

          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 when 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.

Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013),

                                      -4-
J-S52040-17


appeal denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible

error, an evidentiary ruling must not only be erroneous, but also harmful or

prejudicial to the complaining party.” Commonwealth v. Lopez, 57 A.3d

74, 81 (Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Maria Musti

Cook, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively     discusses    and   properly    disposes    of   the    questions

presented.    (See Trial Court Opinion, filed January 20, 2017, at 10-26)

(finding: (1) no evidence Appellant or Appellant’s co-defendant presented at

trial served as basis for claim of self-defense; therefore, Commonwealth had

no obligation to prove Victims were not initial aggressors and Appellant did

not   shoot   Victims   in   self-defense;   additionally,   evidence     established

Appellant was not free from fault in provoking incident; testimony of

Raymond Bruno-Carrasquillo indicated on night of incident, Appellant and

co-defendant drove around “lurking” for targets from rival gang; Appellant

cannot initiate hunt for gang members and subsequently claim self-defense;

jury received instruction regarding use of force/deadly force in self-defense,

even though no evidence presented at trial warranted finding of self-

defense; Commonwealth did not produce murder weapon, but abundance of

circumstantial evidence and other significant evidence supported finding of

guilt beyond reasonable doubt; Bruno-Carrasquillo testified Appellant told


                                       -5-
J-S52040-17


Bruno-Carrasquillo that, on night of incident, Appellant sought retribution

against gang and shot into vehicle Victim 2 was driving, shooting driver and

passenger of car; Bruno-Carrasquillo also testified that co-defendant said he

drove up to Victim 2’s car and Appellant shot into car; Belinda Akers testified

she lent her maroon SUV to male, on night of incident, whom she later

identified as co-defendant, and he returned the SUV with shattered rear

window; co-defendant’s cell phone contained text messages from Aker’s cell

phone about her SUV; Thomas Hoke testified he heard series of gunshots on

night of incident and saw maroon or red SUV occupied by two black males

drive away at high speed from area of shooting; Detective Gregory Schick

testified there were multiple bullet holes in Victim 2’s vehicle, while Ms.

Akers testified there were no bullet holes in her SUV; evidence established

on night of incident, Appellant and co-defendant each dropped guns as they

fled on foot from police; DNA analyst testified it was highly likely DNA found

on gun Appellant dropped was Appellant’s DNA; bullet found in Victim 2’s car

matched   gun   Appellant   dropped;    gunshot   residue   analysis   revealed

existence of gunshot residue on Appellant’s clothing and hands; evidence

and testimony presented were sufficient for jury to determine Appellant’s

guilt; verdict does not shock court’s conscience; (2) given this evidence,

Appellant failed to assert valid defense of self-defense; in his Rule 1925(b)

statement, Appellant failed to state with specificity what elements of his four

convictions Commonwealth allegedly failed to prove beyond reasonable


                                     -6-
J-S52040-17


doubt; therefore, Appellant has waived his sufficiency issue; (3) at trial,

Bruno-Carrasquillo testified he and Appellant sold drugs every day; Bruno-

Carrasquillo’s credibility was at issue; Commonwealth offered Appellant’s

statement to police, that Appellant sold drugs for living, to substantiate

Bruno-Carrasquillo’s testimony; Appellant’s own statement that he sold

drugs for living was admissible).3 Accordingly, we affirm on the basis of the

trial court opinion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2017




____________________________________________


3
   At pages 10-11, the trial court block quoted the pre-August 29, 2011
version of 18 Pa.C.S.A. § 505(b)(ii), regarding when the use of deadly force
is unjustifiable; the difference between the quoted version and the current
version is insignificant for the purpose of this appeal. At pages 25-26, the
trial court quoted Pa.R.E. 404(b)(3) as stating evidence of other crimes,
wrongs, or acts “may be admitted in a criminal case only upon a showing
that the probative value of the evidence outweighs its potential for
prejudice.” This principle is from Pa.R.E. 404(b)(2), which states, “In a
criminal case [evidence of crimes, wrongs, or other acts] is admissible only if
the probative value of the evidence outweighs its potential for unfair
prejudice.” Pa.R.E. 404(b)(2).



                                           -7-
                                                                 Circulated 09/12/2017 04:27 M




·.)


           IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
                            PENNSYLVANIA
·,;J                     CRIMINAL DIVISION
..,

       COMMONWEALTH OF
n      PENNSYLVANIA
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                          v.
       EL VIN MATEO,
             Appellant

                 STATEMENT OF LOWER COURT PURSUANT TO
                             PA.R.A.P. 1925(a)

             AND NOW, this     c2..J'°"-aay of January 2017, upon receipt of a notice
       that an appeal has been filed in this matter, and in consideration of the

       Concise Statement of Matters Complained Of on Appeal filed on behalf of

       Elvin Mateo ("Defendant"), by and through his attorney, Richard Robinson,

       Esquire, the undersigned files this statement pursuant to Pa.R.A.P. 1925(a).

             The reasons for this Court's denial of Defendant's post-sentence

       motion can be found herein.
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,.;~
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,,)    FACTUAL AND PROCEDURAL IDSTORY

··;I         Defendant was charged with the following offenses: Criminal

       Conspiracy to Criminal Homicide under 18 Pa. C.S.A. 903(a)(l), 18 Pa.

       C.S.A. 250l{a); Murder of the First Degree under 18 Pa. C.S.A. 2502(a);

       Murder of the Third Degree under 18 Pa. C.S.A.2502(c); Criminal Attempt to

       Murder of the First Degree under 18 Pa. C.S.A. 90l(a), 18 Pa. C.S.A.

       2502(a); and, Aggravated Assault under 18 Pa. C.S.A. 2702(a){l).

             The incident giving rise to these charges occurred as follows. On

       October 15, 2013, at approximately I 0:24 P.M., York City Police responded

       to the area of North Newberry Street and West Gas Avenue to investigate a

       report of shots fired in the area. Upon arrival at the 300 block of West Gas

       Avenue police observed people looking at the ground in the parking area,

       mid-block on the north side of the street. Police further observed multiple

       shell casings on the ground along with tinted window glass shards. As police

       were investigating the 300 block of West Gas Avenue, they received a radio

       call for officers to respond to 128 Jefferson Avenue to investigate two

       gunshot victims at that location.    Upon arrival, officers located Jordan

                                            2
...~
·.:J   Breeland in the back seat of a gold Buick Rendezvous. The alleged second

,,J    victim, Davon Brown, could not be located but police did eventually establish

       contact with him at the hospital upon notice that Brown was in triage being

       evaluated.

             Breeland had a visible gunshot wound to the chest and police removed

       him from the vehicle in an attempt to perform emergency care until advanced

       life support arrived. Breeland subsequently died at the scene. On October 16,

       2013, a forensic autopsy was performed on Breeland which ruled his death a

       homicide with the cause being a gunshot wound to the chest.

             The driver of the vehicle, Davon Brown, received treatment for a

       gunshot wound to his left hand and a small wound on his right wrist at

       Wellspan York Hospital. Brown told police that he was driving the gold

       Buick with Timiere Crosby in the front passenger seat and Breeland seated in

       the rear of the vehicle. As they were driving in the 300 block of West Gas

       Avenue, a SUV type vehicle pulled up to their vehicle and individuals in that

       car began firing into the SUV being driven by Brown.



                                             3
:'I




              On October 16, 2013, at approximately 1 :40 A.M., York City Police

•.:J   detectives, Detective Sowers and Detective Spence, arrived at 39 S. Belvidere
...
       Street to speak with a witness regarding the homicide when a report for shots
!'I
Ii,
       fired in the area of Belvidere and Market Streets was broadcast over the radio.

       As these detectives approached the intersection, gunshots could be heard

       coming from east of their location.        Detective Spence contacted County

       Control and a perimeter was established in the area. After the perimeter was

       established, police officers began searching the area for the source of the

       gunshots.

              At 2: 5 5 A.M., Trooper Panchik of the Pennsylvania State Police

       located two possible suspects who began to flee from the area of Hartley and

       Philadelphia Street. These two suspects were seen throwing handguns as they

       fled from police. The suspects were apprehended after the foot pursuit and

       both handguns were recovered. The suspects were identified as Elvin Mateo

       and Durell Cotton. Both suspects were wearing black jackets at the time of

       their arrest.



                                              4
·..~
...
  -)         Dashboard surveillance was utilized in determining what actor threw

·;J    which gun when they were fleeing from police. It was later determined that
li,
       Defendant Mateo attempted to dispose of a .357 Rossi · handgun and
n
Ji,
       Defendant Cotton attempted to dispose of a Smith and Wesson 10 mm

       handgun. · Both of these handguns were sent for ballistic analysis and it was

       determined that a bullet fragment recovered inside the Buick Rendezvous .

       originated from the .357 Rossi firearm.

             Gunshot Residue Analysis was conducted on both Defendant Mateo's

       and Defendant Cotton's clothing and hands. These tests established the

       existence of Gun Shot Residue on both Defendant's clothing and hands.

             Thomas Hoke, who was working in the area at the time of the shooting,

       stated that he observed a maroon or red in color SUV occupied by two black

       males drive away from the area of the shooting at a high rate of speed heading

       · towards Philadelphia Street. One of the vehicle's occupants was wearing a

       black jacket.

             On October 16, 2013, Belinda Akers contacted Lower Windsor Police

       Department regarding damage to her 2003 Mercury Mountaineer SUV. This

                                             5
•.:?   vehicle is a SUV maroon in color, Ms. Aker reported that she loaned her

•.,J   vehicle to a male and when it was returned the rear window was shattered.
1!.
       She stated that on the evening of the homicide, she loaned her vehicle to a
n
Ji.
       young black male and an hour after the shooting the male called a friend of

       Aker's and told her where it was parked. Aker's then located her vehicle with

       the new damage. Akers identified Defendant Cotton from an eight (8) person

       photo line-up as being the black male she loaned her SUV to on the night of

       the murder.

              Photographs of Aker' s Mercury Mountaineer were shown to Thomas ·

       Hoke and he states that it appeared to be the same color and body type of the

       vehicle he observed fleeing the scene immediately after the shooting.

              On July 21, 2015, police interviewed Raymond Bruno-Carrasquillo

       regarding this incident. Bruno-Carrasquillo was with Defendant Cotton just

       prior to the shooting and was with both defendants on later dates where

       details of the murder were discussed.        Defendant Mateo told Bruno-

       Carrasquillo that they were "lurking" for targets from the Parkway gang, the
          '

       gang Jordan Breeland and Davon Brown were allegedly associated with.

                                             6
      Defendant Mateo told Bruno-Carrasquillo that they were in a SUV that

      Defendant Cotton had "rented" from an addict on the night of the alleged
ti.
      incident. Defendant Mateo further stated to Bruno-Carrasquillo that they had

      come across a gold color SUV driven by Davon Brown and he had a .357

      handgun while Defendant Cotton possessed a 1 Omm handgun. Defendant

      Mateo further related to Bruno-Carrasquillo that he had fired into the driver's

      and passenger side of the vehicle. Additionally, Defendant Mateo said that

      later that same evening police chased both defendants and they attempted to

      throw away their guns. ·

            On May 20, 2016, at the conclusion of the trial, a jury unanimously

      found both Defendant Mateo and his co-defendant, Defendant Cotton, guilty

      of first degree murder, criminal conspiracy, attempted murder, and aggravated

      assault. On August 29, 2016, Defendant was sentenced to an aggregate

      sentence of life imprisonment without the possibility of parole and 20-40

      years consecutive. On September 8, 2016, Defendant filed a Post-Sentence

      Motion moving for a new trial based on a weight of the evidence claim. On

      October 6, 2016, this Court denied Defendant's Post Sentence Motion. A

                                             7
··,




,.}        timely notice of appeal was filed ori October 25, 2016. This Court ordered
:)
··,1   .   Defendant to file a l 925(b) Statement of Errors Complained of on Appeal on

           October 26, 2016.

                 Defendant raises three main issues on review. In summary, they are as

           follows: (1) the jury verdict was against the greater weight of the evidence

           presented at trial so as to shock one's sense of justice; (2) the evidence at trial
                           .                                                         .
           was insufficient to support the jury's verdict as to all charges; (3) this Court

           erred in admitting testimony from Detective Fetrow that the Defendant, in

           response to a question as to how he was employed, stated that he sold drugs

           which prejudiced the Defendant and far outweighed any probative value.

           DISCUSSION

              a. The jury verdict was against the greater weight of the evidence
                 presented at trial so as to shock one's sense of justice

           We review Defendant's claim based on the following standard:

                  An allegation that the verdict is against the weight of the
                  evidence is addressed to the discretion of the trial court. A new
                  trial should not be granted because of a mere conflict in the
                  testimony or because the judge on the same facts would have
                  arrived at a different conclusion. A trial judge must do more than
                  reassess the credibility of the witnesses and allege that he would
                  not have assented to the verdict if he were a juror. Trial judges,
                                                    8
·:'!




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·.:)         in reviewing a claim that the verdict is against the weight of the
             evidence do not sit as the thirteenth juror. Rather, the role of the
',,j         trial judge is to determine that notwithstanding all the facts,
             certain facts are so clearly of greater weight that to ignore them
             or to give them equal weight with all the facts is to deny justice ..

       Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal

       citations and quotes omitted).
·,,
             The Pennsylvania Supreme Court has held that "a new trial should be

       · awarded when the jury's verdict is so contrary to the evidence as to shock

       one's sense of justice and the award of a new trial is imperative so that right

       may be given another opportunity to prevail." Commonwealth v. Brown. 648

       A.2d 1177, 1189 (Pa. 1994), quoting Thompson v. City of Philadelphia. 493

       A.2d 669, 672 (Pa. 1985). In denying Defendant's post-sentence motion, this

       Court's sense of justice was not shocked by the verdict.

             In support of Defendant's argument that the jury verdict was against the

       greater weight of the evidence presented at trial so as to shock one's sense of

       justice, the Defendant claims:·

              1. The Commonwealth's evidence did not disprove beyond a
                 reasonable doubt the Defendant's claim of self-defense.

              2. The Commonwealth's evidence did not disprove beyond a
                                               9
                reasonable doubt that the alleged victim(s) were the initial
                aggressors.
·,j

             However, this Court finds the record fails to establish as a matter of law

       a valid claim of self-defense.       In relevant part, section 505 of the

       Pennsylvania Crimes Code defines the concept of self-defense·as, "[u]se of
,.,
;.,.
       force justifiable for protection of the person. -The use of force upon or

       toward another person is justifiable when the actor believes that such force is

       immediately necessary for the purpose of protecting himself against the use of

       unlawful force by such other person on the present occasion." 18 Pa.C.S.A. §

       505. However, the rule is not without limitations. With regard to the use of

       deadly force:

             (b) Limitations on justifying necessity for use of force.-

                    (2) The use of deadly force is not justifiable under this section
                    unless the actor believes that such force is necessary to protect
                    himself against death, serious bodily injury, kidnapping or sexual
                    intercourse compelled by force or threat; nor is it justifiable if:

                                 (i) the actor, with the intent of causing death or
                                 serious bodily injury, provoked the use of force
                                 against himself in the same encounter; or

                                 (ii) the actor knows that he can avoid the necessity
                                 of using such force with complete safety by
                                              10
.. ~




                                 retreating or by surrendering possession of a thing
                                 to· a person asserting a claim of right thereto or by
                                 complying with a demand that he abstain from any
 Ii,
                                 action which he has no duty to take ... :
       18 Pa.C.S.A. § 505.

             "While there is no burden on a defendant to prove [a] claim [of self-

       defense], before the defense is properly at issue at trial, there must be some

       evidence, from whatever source, to justify a finding of self-defense."

       Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001), citing

       Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977). "If there is any

       evidence that will support the claim, then the issue is properly before the fact

       finder." . Torres, supra at 345, citing Commonwealth v. Mayfield, 585 A.2d

       1069, 1071 (Pa. Super. 1991). If the issue is properly before the fact finder,

       the Commonwealth bears the burden of proving beyond a reasonable doubt

       that the killing was not committed in self-defense.         Commonwealth v.

       Gillespie, 434 A.2d 781, 784, (Pa. Super. 1980).

             During closing arguments, Defendant presented a theory of self-

       defense. A claim of self-defense "may consist of evidence from whatever

       source. Such evidence may be adduced by the defendant as part of his case,

                                              11
 ;r




          or conceivably, may be found in the Commonwealth's own case in chief or be

. •,,i    elicited through cross-examination."     Mayfield, supra at 1070-71. In support
..... ~

          of Defendant's claim, he directs this Court to the following testimony and

          evidence; (1) Thomas Hoke (T.T. pp. 159-179), (2) Todd Neumyer (T.T. pp.

          654-659);    (3)   Officer    Matthew         Tunal · (T.T.   pp. · · 387-404);   (4)

          Commonwealth's      Exhibit 54 (Dick's         Sporting Goods receipt); and, (5)

          Officer Gregory Schick (T.T. pp. 308-340).

                Defendant did not testify on his own behalf and did not present any

          witnesses.     Through    presentation    of. the Commonwealth's          case and

          Defendant's cross-examination of the Commonwealth's witnesses, in addition

          to thoroughly reviewing the before listed testimony as well as the entire

          record, this Court finds there was no evidence presented that would serve as a

          basis to establish a claim of self-defense.        Thus, the Commonwealth was

          under no obligation to prove that the killing of Jordan Breeland and injuries to

          DavonBrown were not committed in self-defense and that the alleged victims

          were not the initial aggressors.



                                                   12
            Additionally, when asserting a theory of self-defense, the defendant is

      required to show that he was: ( 1) free from fault in provoking or contimiing
Ii,
      the incident which resulting in the killing; (2) must have reasonably believed

      that he was in imminent danger of death or great bodily·harm, and such force

      was necessary in order to save himself therefrom; and, (3) the defendant did

      not violate any duty to retreat or to avoid the danger. · Commonwealth v.

      Samuel, 590 A.2d 1245, 1247A8 (Pa. 1991), 18 Pa.C.S. § 505.

            There was significant evidence presented that established that the

      Defendant was not without fault in provoking the victims.          Based on

      Raymond Bruno-Carrasquillo's testimony that Defendant had admitted to him

      that he and his co-defendant were driving around "lurking" for victims from

      the Parkway gang, this Court finds the Defendant is unquestionably at fault

      for initiating and perpetrating the incident giving rise to Defendant's

      convictions. . (N.T. Trial, May 18, 2016, at 424). Use of force is only

      justified when the actor is protecting himself against the unlawful use of

      force. 18 Pa.C.S.A. §505(a). The Defendant cannot initiate a persecution for

      members of the Parkway gang and then argue that he was defending himself

                                            13
,,,.,




~}      against his victims. Consequently, Defendant should have been precluded
:.7

,.,J    from invoking a justification of self-defense.

              The jury did receive the Use of Force/Deadly Force in Self-Defense
n
li,
        Instruction however this Court concludes it was erroneously given. During

        the charge conference, the Commonwealth first objected to instruction stating,

                        I've put a lot of thought into this since we discussed it a few days
                        ago, and there has been no testimony presented to support a self-
                        defense.. .. there are circumstantial inferences that can be
                        certainly argued by defense counsel, but I have not heard any
                        testimony indicating in any way that the victims in this case shot
                        first.

        (N.T. Trial, May 19, 2016; at 704).

              However, the Commonwealth went on to say,

                        I don't know the law, and can't make an argumentto the Court
                        with regard to case law and things of that nature at this point.
                        And so, I would rather not try to do that without knowing the
                        law. I would rather just honestly have it read, because I would
                        hate for, should there he a conviction, forthat to be an issue, and
                        I just don't know.

        (Id. at 708).

               As stated above, there was no evidence presented at trial to warrant a .

        finding by the jury of self-defense, and thus, that would warrant an instruction

                                                  14
       on self-defense. Therefore, again, the Commonwealth was under no burden

·.,)   to disprove the defense beyond a reasonable doubt and prove that the alleged

       victims were not the initial aggressors. Accordingly, Defendant's claim that

       jury verdict was against the greater weight· of the evidence because the

       Commonwealth's evidence did not disprove beyond a reasonable doubt the

       Defendant' s claim of self-defense and that the alleged victims were the initial

       aggressors is without merit.

             3. In that the Commonwealth did not produce a murder
                weapon or other sufficient evidence they did· not establish
                beyond a reasonable doubt that the Defendant killed
                Jordan Breeland or injured Davon Brown.

             In a related matter, Defendant contends he is entitled to a new trial on

       the grounds that the jury verdict was against the weight·ofthe evidence at trial

       so as to shock one's sense·of justice because the Commonwealth could not

       produce the murder weapon and failed to present other sufficient evidence to

       establish beyond a reasonable doubt that Defendant killed Jordan Breeland or

       injured Davon Brown.       However, in· denying Defendant's post-sentence

       motion, this Court's sense of justice was not shocked by the verdict.


                                              15
~-··

..•1             The fact-finder "is free to believe all, part, or none of the evidence and

....   ,   to determine the credibility of the witnesses." Commonwealth v. Champney,
Ji,
           832 A.2d 403, 408 (Pa. 2003) (quoting Commonwealth v. Small, 741 A.2d

           666 (Pa. 1999)). The Commonwealth may satisfy its burden of proof entirely

           by circumstantial evidence. Commonwealth v. Ramtahal, 33 A.3d 602, 607

           (Pa. 2011). When challenging the verdict based on a weight of evidence

           claim, the defendant must show that the evidence was "so tenuous, vague and

           uncertain that the verdict shocks the conscience of the court" in order to

           prevail. Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).


                 Defendant again offers the following testimony in support ofhis claim:

           (1) Thomas Hoke (T.T. pp; 159-179), (2) Todd Neumyer (T.T. pp. 654-659);

           (3) Officer Matthew Tunal (T.T. pp. 387-404); (4) Commonwealth's Exhibit

           54 (Dick's Sporting Goods receipt); and, (5) Officer Gregory Schick (T.T. pp.

           308-340). However, this Court does not find the before listed testimony to be

           supportive of Defendant's argument.




                                                 16
 ··.,




,...




               While the Commonwealth did not produce the gun which discharged
r-'':

·,j      the fatal shot which killed Jordan Breeland, this Court finds there was an

         abundance of circumstantial evidence and other sufficientevidence presented

         to support the finding of guilt on all four of the charges Defendant was found

,.,      to have committed. Upon review of the entire record, this Court finds the

         below testimony to be most supportive of verdict.


               Raymond Bruno-Carrasquillo, a long-time acquaintance of Defendant

         testified that Defendant told Bruno-Carrasquillo he had "rented" a burgundy

         SUV from an addict in order to "lurk" for targets from the Parkway gang on

        . the night the alleged incident. (N.T. Trial, May 18, 2016, at 418, 420, 424).

         Bruno-Carrasquillo stated Defendant was out for retribution on the Parkway

         gang because the parkway gang had recently "shot up" Liberty Court, a

         location the Defendant often frequented and more of less considered his

         territory. (Id. at 416-417,.418). Defendant told Bruno-Carrasquillo that while

         driving he had come across an SUV driven by Davon Brown with Jordan

         Breeland as a passenger. Bruno-Carrasquillo stated Defendant told him he

         had shot into the vehicle driven by Brown. (Id. · at 424r Also, Bruno-
                                               17
        Carrasquillo testified that Defendant's co-defendant had told him he that he
:J
...
•.,-J   had pulled up to the victim's car and Defendant had shot into the car.· (Id. at

        426). Defendant later told Bruno-Carrasquillo that he had shot the driver of

        the vehicle. and then he shot the passenger and left them "stinking." (Id. at

        425).


                Later, shortly after the alleged incident, Belinda Akers contacted Lower

        Windsor Police Department regarding damage to her 2003 Mercury

        Mountaineer SUV. {Id. at 365, 369, 373). She stated she had lent her maroon

        in color SUV to a male and it was returned with a shattered rear window. (Id.

        at 356, 364). When presented with a photo-lineup of eight individuals, Akers

        identified Defendant's co-defendant as the person she lent her SUV to on. the

        night of the murder. (Id. at ?69). Further, upon examination, Defendant's co-

        defendant's cell phone contained text messages from Aker's cell phone

        connecting the co-defendant's cell phorie to the maroon Mercury

        Mountaineer. (Id. at 364).




                                                18
             Thomas Hoke, who was working in the area of the murder on the night

· ,I   of the alleged incident, testified that he had heard a series of gunshots and
ti.
       then saw a maroon or red SUV occupied by two black males drive away from

       the area of the shooting at a high rate of speed. (N.T. Trial, May 17, 2016 at

       161-163).

             Additionally, Detective Gregory Schick of the York City Police

       Department testified that there were multiple bullet holes identified· on the

       victim's vehicle, while Ms. Aker's testified none where located on her SUV.

       (N.T. Trial, May 18, 2106, at 314-315, 328).

             On the night of the alleged incident, the Pennsylvania State Police

       apprehended Defendant and his co-defendant after they fled from the police

       on foot. (N.T. Trial, May 17, 2016, at 251). Upon review of the recording

       devices equipped on their vehicles, police believe that Defendant dropped the

       .357 revolver during his flight that was found shortly before he was

       apprehended laying on the sidewalk in the area in which he fled from. (N.T.

       Trial, May 19, 2016, at 563, 566, 582). A DNA analyst testified that there

       was a one in seven trillion chance that it was Defendant's DNA found on the

                                             19
       .357 revolver.   (Id. at 618).   Additionally, one of the bullets found in the

,.-J   victim's car matched up with the .357 revolver.          (Id. at 656).     Further, a

       gunshot residue analysis, performed by Stephanie Horner, a forensic scientist
n
li,
       employed by RJ Lee Group, revealed the existence of gunshot residue on

       Defendant's clothing and hands. (N.T. Trial, May 17, 2016, at 217, 218).

             While circumstantial,      this Court concludes that the evidence --and

       testimony presented was sufficient for the jury to determine the Defendant's

       guilt for the elements of each charge beyond a reasonable doubt and the

       verdict does not shock this Court's conscience.

          b. The evidence at trial was insufficient to support the jury's
             verdict as to all charges.

             Next, Defendant contends that the evidence presented at trial was

       insufficient to support the jury's verdict as to all charges, asserting:

              1. The Commonwealth's evidence did not disprove beyond a
                 reasonable doubt the Defendant's claim of self-defense,

              2. The Commonwealth's evidence did not disprove beyond a
                 reasonable doubt that the alleged vletlmts) were the initial
                 aggressor(s)

              3. In that the Commonwealth did not produce a murder
                 weapon or other sufficient evidence they did not establish
                                                20
··,
'·~




,,




,;)            · beyond a reasonable doubt that the Defendant killed
;)
..,              JordanBreeland or injuredDavon Brown.
•,J
···~
ti.
             Defendant's insufficiency argument goes to the legal question of

       whether he could be convicted under 18 Pa. C.S.A. 903(a){l), 18 Pa. C.S.A.

       2501(a); 18 Pa. C.S.A. 2502(a); 18 Pa. C.S.A. 901(a), 18 Pa. C.S.A. 2502(a);
()
       and 18 Pa. C.S.A. 2702(a)(I ). "A claim challenging the sufficiency of the

       evidence is a question of law. Evidence will be deemed sufficient to support

       the verdict when it establishes each material element of the crime charged and

       the commission thereof by the accused, beyond a reasonable doubt."

       Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal

       citations, footnotes, and quotation marks omitted).

             From the same analysis presented above, this Court finds the Defendant

       has failed to properly assert a valid defense of self-defense. Accordingly, this

       Court finds Defendant's first two claims under his sufficiency of evidence

       claim are therefore meritless.

              As to Defendant's third sufficiency claim, this Court finds the

       Defendant failed to state with specificity what specific elements of the four

       convicted crimes the Commonwealth allegedly failed to prove beyond a
                                              21
;   ..   ,




., . ,
             reasonable doubt. Instead, Defendant's 1925(b) statement generically alleges

             that the "evidence at trial was insufficient to support the jury' s verdict as to
·ti.
             all charges · ... [i]n that the Commonwealth did not produce a murder weapon

             or other sufficient evidence they did not establish beyond a reasonable doubt

             that the Defendant killed Jordan Breeland or injured Davori Brown."

             Defendant's 1925(b) Statement, November 9, 2016.

                   The Superior Court has held that "an appellant's Rule l 925(b)

             statement must state with specificity the element or elements upon which the

             appellant alleges that the evidence was insufficient." Commonwealth v.

             Garland, 63 A.3d 339, 344 (Pa. Super. 2013).           "Such specificity is of

             particular importance in cases . where... the . appellant was convicted of

             multiple crimes each of which contains numerous elements that the

             Commonwealth must prove beyond a reasonable doubt," Id.

                   Here, Defendant was convicted of four separate offenses, yet

             Defendant's challenge to the sufficiency of evidence in his l 925(b) statement

             baldly asserts a blanket claim. Defendant's statement does not specify to this

             Court as to which elements were lacking proof for any of the four crimes and

                                                    22
-~-;~




         why the evidence was insufficient to not support the verdict.
......
··.J           Defendant offers a wide-range of citations in the trial transcripts of
·tf.
         where to find the testimony of certain trial witnesses to support his claim but
 n
 Ji,
         such general supportive testimony says. nothing about how or why the

         . evidence was insufficient. Thus, this Court is left to guess what material

         elements the Defendant believes are unproven.         "[A] Concise Statement

         which is too vague to allow the court to identify the issues raised on appeal is

         the functional equivalent to no Concise Statement at all." Commonwealth v.

         Heggins, 809 A.2d 908, 911 (Pa.Super.2002) (citation omitted). Accordingly,

         because Defendant's 1925(b) .statement does not specify the allegedly

         unproven elements, this Court believes the Defendant's sufficiency.issue is

         waived for appellate review.

            c. This Court erred in admitting testimony from Detective
                Fetrow that the Defendant, in response to a question as to
                how · be was employed, stated that be sold drugs which
                prejudice to the Defendant far outweighed any probative             r

               ·value.

               Lastly, Defendant asserts that this court erred in allowing Detective

         Fetrow to testify that Defendant told Detective Fetrow that he sold drugs for a

                                                23
.~ I




',,;1



·,.:}    living. (N.T Trial, May 19, 2016, at 503). Initially, during trial, Defendant
:;)
. ~ .,
 ·i)     objected to the statement being admitted arguing that such information was
. ~ .,

 li,
         prejudicial to Defendant. (Id. at 278). 'When the issue was first presented this

         Court agreed the testimony would be prejudicial and at that point in the trial

         because there was nothing to corroborate the statement. (Id. at 279). The
 ·.J

         Commonwealth agreed to omit the question and revisit the issue after more of

         a foundation was laid. (Id.).

               The following day the Commonwealth again raised the issue after

         eliciting testimony from Raymond Bruno-Carrasquillo. (N.T. Trial, May 19,

         2016, at 493). During direct examination, Bruno-Carrasquillo stated that he

         and the Defendant were together, hanging out, almost every day prior to the

         alleged incident that injured Davon Brown and killed Jordan Breeland. (N.T.

         Trial, May 18, 2016, at 411). Further, Bruno-Carrasquillo testified that he

         and Defendant would wake up, go to Liberty Court and sell drugs, day after

         day. (Id.).

                The Commonwealth felt as though Bruno-Carrasquillo was extensively

         cross-examined by both Defendant and his co-defendant and Bruno-

                                                24
: ~




·
·:.)
    ..
. :-~'



    •.•7   Carrasquilo's credibility was at issue. (N.T. Trial; May 19, 2016, at_493). The

··.,-J     . Commonwealth argued that it was important to allow Detective Fetrow to
    ti.
           testify that Defendant told him that he sold drugs for a living because it would

           corroborate the testimony of Bruno-Carrasquillo and. Bruno-Carrasquillo's

           testimony was vital to their case. (Id. 493, 494).. Defendant again argued that

           the prejudice to the defense would outweigh any benefit or probative value

           the statement might have. (Id. at 494, 495). However, this Court disagreed

           and allowed Detective Fetrow to testify as to what the Defendant stated he·

           had done for employment.

                 Evidence of Defendant's prior bad acts is not permissible to present as

           evidence at trial in order to establish the defendant's criminal character or

           tendencies. Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super.

           2008). However, such evidence may be admissible ''where it is relevant for

           some other legitimate purpose and not utilized solely to blacken the

           defendant's character." Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.

           Super. 2007) (citation omitted). However, Rule 404(b)(3) provides that

           evidence of other crimes, wrongs, or acts "may be admitted in a criminal case

                                                  25
··.1




,•




       only upon a showing that the probative value of the evidence outweighs its

'·ii   potential for prejudice." Pa.R.E., Rule 404(b)(3).
Ji.
             This Court found that the probative value of Defendant's statement that

       he sold drugs for a living was not outweighed by any potential prejudicial

·.}    effect. . The statement was offered specifically and for the purpose of

       corroborating Bruno-Carrasquillo's testimony. The Court found that Bruno-

       Carrasquillo's credibility was certainly at issue and the introduction of

       Defendant's own statement would serve a legitimate purpose of corroborating

       the· testimony of Bruno-Carrasquillo.

       CONCLUSION

             Based on the above reasons; this Court respectfully urges affirmance of

       this Court's Order dated October 3, 2016.

             The Clerk of Courts is directed to provide notice of the entry of this

       Statement to counsel of record. ·




                                                                          .,..   -·
