J-A08004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 LUCAS GUGGENHEIMER                      :
                                         :
                   Appellant             :   No. 802 WDA 2017

            Appeal from the Judgment of Sentence May 4, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0001624-2016,
                          CP-02-CR-0001637-2016


BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, P.J.:                  FILED SEPTEMBER 24, 2019

     Lucas Guggenheimer appeals from the judgment of sentence imposed

on May 4, 2017, following his jury trial conviction of third degree murder,

recklessly endangering another person, and two counts of carrying a firearm

in public. He challenges the sufficiency of the evidence to support his third

degree murder conviction. We affirm.

     On October 11, 2015, Pittsburgh police officers arrived at a scene of a

911 call in the Arlington section of Pittsburgh and found the victim, Justin

Granda, deceased on the sidewalk. He had been shot several times with both

9 mm and .32 caliber bullets.

     While investigating the murder, officers checked Granda’s cell phone

records and identified Sean Sperber as a witness. Granda called Sperber on

October 10, 2015, to set up a marijuana buy.     Appellant and Granda met
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Sperber outside of his apartment. Wary of conducting a drug deal with his

wife and child present, Sperber led Appellant and Granda into his brother’s

apartment on the first floor of the same building.

      After discussing the marijuana purchase, Appellant asked to use the

bathroom. While walking to the bathroom with Sperber, Appellant pulled out

a gun and pointed it at Sperber. See N.T. Trial, 01/30/17, at 252. A fight

ensued during which Appellant shot Sperber’s brother Seth (who came out of

his bedroom when the fight started) in the upper thigh. See id. at 260-62.

After both Appellant and Granda were removed from the apartment, Sean

Sperber called 911. Police recovered Granda’s cell phone and spent 9 mm

casings from the scene.

      Johanna Jones, a cab driver, testified that she first picked up Appellant

(who was wearing a gray hoody) and another man, Amirae Benton. She next

drove Benton and Appellant to Granda’s house where she picked him up.

Jones then drove the three men to the Sperber residence in the Turtle Creek

area. She waited in the cab with Benton while Appellant and Granda entered

the apartment. See N.T. Trial, 2/01/17, at 638-39.

      After the fight with the Sperber brothers, Appellant and Granda returned

to the cab hurried, out of breath, and worked up. See id. at 640. Appellant

told Jones to drive them to the Arlington section of Pittsburgh. While en route,

Granda complained about having lost his cell phone at the Sperber residence.

See id.   Jones dropped the three men off on Fernleaf Street in Arlington.




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Jones’s testimony was corroborated by cell phone location records that

provided evidence of her travel path.

        Luis Rodriguez, who lives on Arlington Avenue near where Granda’s

body was found, testified that on the night of the murder, he heard screaming.

When he looked outside, he saw two men, one of whom was wearing a hoody,

chasing another man down the street and firing guns at him. See id. at 661-

63. The men were running toward his house and he saw the person being

chased fall down. The two other men stood over the victim’s body shooting.

        After police officers arrived at the scene, they found Granda deceased

on the sidewalk.     Firearm experts confirmed that the 9 mm shell casings

recovered at the scene were fired from the same handgun used to shoot Seth

Sperber.     See id. at 690-91, 699.     Additionally, investigators retrieved

surveillance footage from two local businesses that revealed Appellant,

Granda, and Benton walking toward the location where police found Granda’s

body.

        Appellant was arrested on October 30, 2015, and charged with homicide

of Granda, shooting Seth Sperber, and related charges.           This matter

proceeded to a jury trial on January 26, 2017.

        At trial, Appellant offered the testimony of Loretta Sizemore, an

eyewitness. She testified that she saw a light blue car on Arlington Avenue

before the shooting and saw a slim African American man with short hair run

into the car after the shooting. See id. at 791.




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       Appellant also testified on his own behalf.   He stated that he dealt

marijuana and had contacted Granda in order to buy from Granda’s associate,

Sean Sperber. Appellant explained that he and another dealer, Stone, often

combined money to buy larger quantities of marijuana at lower prices. 1

Appellant claimed that Stone gave him $800 toward the marijuana that

Appellant planned to purchase from Sperber. See id. at 814-18.

       Appellant stated that when he arrived at Sperber’s residence, he

attempted to purchase a half a pound of marijuana for $1600. He claimed

that a fight started after Sperber tried to pass off six ounces of marijuana as

a half-pound, and that although the gun fired during the struggle, he did not

intend to fire it. See id. at 824-27.

       After fleeing the Sperber residence, Appellant testified that he took a

cab with Benton and Granda to Arlington Avenue to meet Stone. Appellant

told Stone that the deal went bad and he had lost the money. See id. at 829.

He claims to have given Stone the gun and promised to pay him another $400

to pay him back. He testified that Stone then accused Granda of setting up a

bad deal, and started shooting at Granda. Appellant claimed to have run away

when the shooting started. See id. at 830-32.

       At the conclusion of trial, Appellant was convicted of third-degree

murder, carrying a firearm without a license, and two counts of recklessly

endangering another person. On May 4, 2017, the trial court sentenced him
____________________________________________


1Appellant testified that he did not know Stone’s real name. See N.T. Trial,
2/01/17, at 832.

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to an aggregate sentence of not less than twenty-four nor more than forty-

eight years of imprisonment. Appellant did not file post-sentence motions.

On June 2, 2017, he filed a timely notice of appeal.2

       Appellant presents one question on appeal: “[Whether] the record

evidence was insufficient as a matter of law to convict [Appellant] of third-

degree murder in case number 1624-2016[?]” Appellant’s Brief, at 3

(unnecessary capitalization and argument omitted).

       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 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.

       Further, in viewing the evidence in the light most favorable to the
       Commonwealth as the verdict winner, the court must give the
       prosecution the benefit of all reasonable inferences to be drawn
       from the evidence.


____________________________________________


2Pursuant to the trial court’s order, Appellant filed a timely concise statement
of errors complained of on appeal. See Pa.R.A.P. 1925(b). The trial court
entered its opinion on July 17, 2018. See Pa.R.A.P. 1925(a).

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Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citations

omitted; brackets in original). “This standard is equally applicable in cases

where the evidence is circumstantial, rather than direct, provided that the

combination of evidence links the accused to the crime beyond a reasonable

doubt.” Commonwealth v. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (en

banc) (citation omitted).

       Appellant does not challenge the sufficiency of the evidence to establish

any of the statutory elements of third-degree murder. Rather, he avers that

the evidence was insufficient to sustain his conviction because it failed to

establish that he was the individual who shot Granda.3 See Appellant’s Brief,

at 60-67.

       In addition to proving the statutory elements of the crimes
       charged beyond a reasonable doubt, the Commonwealth must
       also establish the identity of the defendant as the perpetrator of
       the crimes. Evidence of identification need not be positive and
       certain to sustain a conviction. As our Supreme Court has stated
       any indefiniteness and uncertainty in the identification testimony
       goes to its weight. Direct evidence of identity is, of course, not
       necessary and a defendant may be convicted solely on
       circumstantial evidence.


____________________________________________


3  Although Appellant seeks vacation of both the third-degree murder and
firearm not to be carried without a license convictions, his statement of
question presented is limited to challenging the sufficiency of the evidence for
third-degree murder. Therefore, we will not consider his challenge concerning
the firearms not to be carried without a license conviction. See Pa.R.A.P.
2116(a) (“No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.”). Furthermore, Appellant
conceded at trial that he brought a gun to Sperber’s residence and that he
was not licensed to carry a firearm. See N.T. Trial, 2/01/17, at 825-26, 835.


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Commonwealth v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (citations

and internal quotation marks omitted).

      Appellant concedes that the evidence offered by the Commonwealth

established that he was near the murder scene; two men chased and shot at

Granda, one of whom was wearing a hoody; two firearms were used to shoot

Granda, one of which Appellant used to shoot Seth Sperber; and Appellant

had been wearing a hoody.        See Appellant’s Brief, at 61-62.   However,

Appellant argues that the evidence equally supports the narrative he set forth

in his testimony: that an individual named Stone accepted the 9 mm firearm

Appellant used to shoot Seth Sperber as payment for the $800 lost in the

botched marijuana deal, and then used the firearm to shoot Granda. See id.

at 62-63.

      Appellant contends that the evidence is insufficient because it equally

supports two reasonable and mutually consistent inferences. See, e.g.,

Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946). We

disagree.

      In its opinion, the trial court explained:

      As set forth above, the guilty verdict and the identification of
      [Appellant] could be based on circumstantial evidence. Based on
      testimony of Ms. Jones, surveillance videos and the cell phone
      tower data, the trial evidence established that [Appellant] and
      Benton were with the victim immediately prior to the shooting.
      The victim told [Appellant] that he . . . lost his phone at the
      Sperber residence. The victim’s phone could have led the police
      to the victim, and then to [Appellant]. The Sperbers did not know
      the identity of [Appellant]. At the time of the shooting, two men
      were observed chasing the victim down the street firing gunshots


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      at the victim. All evidence pointed to the fact that the shooting
      was malicious and intentional. The victim was shot in the back
      four times and he was shot in his head four more times. Most
      importantly, ballistic evidence demonstrated that shortly after
      [Appellant] used the 9 millimeter handgun to shoot
      Sperber’s brother in Turtle Creek, the same firearm was
      used to shoot and kill the victim. That the jury rejected
      [Appellant’s] self-serving version of events is of no avail to
      [Appellant]. The jury was well within its province to reject this
      testimony. . . .

Trial Court Opinion, 7/17/18, at 12-13 (emphasis added).

      Our review of the record supports the trial court’s conclusion. Rather

than being equally supportive, the evidence was heavily tilted towards

Appellant’s culpability. The evidence against Appellant included Appellant’s

concession that he had possessed one of the guns used to kill Granda, and

had recently shot (albeit allegedly unintentionally) Seth Sperber with it, as

well as eyewitness accounts describing a person dressed similarly to Appellant

chasing and shooting at Granda. Against this evidence, Appellant can point

only to his own self-serving testimony that he not only gave the gun to a

person he could not identify by name, but that this person then proceeded to

use the gun to kill Granda.

      It was well within the province of the jury to choose not to credit

Appellant’s version of events. The evidence offered by the Commonwealth at

trial was more than sufficient to support a finding that Appellant was the

person who shot Granda.       Appellant’s challenge to the sufficiency of the

evidence does not merit relief.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2019




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