J-A08001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HERIBERTO LABOY AMARO,

                            Appellant                No. 551 MDA 2014


      Appeal from the Judgment of Sentence Entered February 18, 2014
               In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0001629-2013


BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 18, 2015

       Appellant, Heriberto Laboy Amaro, appeals from the judgment of

sentence entered on February 18, 2014, in the Dauphin County Court of

Common Pleas. We affirm.

       The trial court set forth the relevant facts underlying this case as

follows:

       Appellant, Heriberto Amaro and Juanita Caban, a woman with
       whom he had a prior romantic relationship, are the biological
       parents of one child. Ms. Caban testified that dealings between
       [her] and Appellant had been tense because he wanted to
       resume their romantic relationship but she refused. On
       September 7, 2012, [after their] romantic relationship had
       ended, a verbal and physical altercation occurred between
       Appellant and Ms. Caban during a custody exchange. The
       incident took place outside of Ms. Caban’s apartment in the Hall
       Manor apartment complex in Harrisburg City. After the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     altercation, Appellant took custody of his child and Ms. Caban,
     along with two of her other children travelled to Hershey to pick
     up her boyfriend, Alberto Almestica. At the time, she owned and
     drove a red Chrysler Town and Country minivan. Ms. Caban
     stated that while in the car with Mr. Almestica, Appellant called
     and threatened her. Mr. Almestica testified that Ms. Caban was
     arguing with someone on the cellphone while he was in the car.

            They proceeded to Palmyra to Mr. Almestica’s house, and
     then returned to Harrisburg to make a police report regarding
     the earlier altercation with Appellant. Ms. Caban provided a
     written statement to Officer Stephanie Barrelet of the Harrisburg
     Bureau of Police (HBP). Officer Barrelet confirmed that she had
     felt lumps on the back of Ms. Caban’s head where she had
     described being struck by Appellant.

          Once the report was completed, Ms. Caban, Mr. Almestica
     and her children drove to the Park Apartments in Harrisburg
     where Mr. Almestica’s brother, Miguel, lives. Upon arrival, Ms.
     Caban received a call from her sister, Natasha Ortiz. Mr.
     Almestica stated that, based on Ms. Caban’s reaction, the call
     was about something very serious.

            Ms. Ortiz testified that Appellant and two other men,
     including one named Kevin Garcia who she knew to be
     Appellant’s cousin, came to her house in an older blue pickup
     truck. Ms. Ortiz stated that Appellant and Mr. Garcia entered the
     house and wanted to speak with her. She and Appellant went
     into the kitchen, but Mr. Garcia left the house. Ms. Ortiz testified
     that, while in the kitchen, Appellant said that “if [her] sister [Ms.
     Caban] couldn’t be with him that she can’t be with anybody
     else.” Ms. Ortiz responded by saying “you can’t force [someone]
     to be with you.” Appellant then displayed a gun he retrieved
     from his hip area and left the house. Ms. Ortiz stated that when
     she went outside, the three men appeared to be together and,
     after having a discussion she could not hear, they left in the blue
     truck. Ms. Ortiz called Ms. Caban to tell her about what had
     happened during her encounter with Appellant.

           When Ms. Caban arrived at the Park Apartments and
     received the call from her sister, she, Mr. Almestica and the
     children rushed to his brother’s third floor apartment just about
     the time she had seen Appellant drive [the] blue truck into the
     parking lot. From the apartment window, Ms. Caban and Mr.
     Almestica saw the three men exit the truck and go into and out


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     of neighboring apartment buildings. When Mr. Garcia spotted Ms.
     Caban’s red minivan, Appellant backed the blue truck behind the
     van, in a perpendicular fashion, which blocked it from moving.
     Both Ms. Caban and Mr. Almestica saw Mr. Garcia shoot a gun at
     the van. Mr. Almestica testified that the man he identified in
     court as the Appellant was standing by Mr. Garcia and speaking
     to him during the shooting. The men got back into the truck and,
     with Appellant at the wheel, drove away out of the parking lot.

           Ms. Caban called 911 to report the incident and Detective
     Dennis Simmons of the HBP, responded to the scene within 5
     minutes of the dispatch order. At the time of the incident,
     Detective Simmons had been a uniformed patrol officer assigned
     to the Housing Authority Unit. Detective Simmons had been told
     that the incident involved a domestic dispute with shooting
     involved. When he arrived to the address provided, #1141 Park
     Apartments, 3rd floor, he found several adults including Ms.
     Caban and Mr. Almestica in a distraught, afraid and nervous
     state. Ms. Caban relayed the actions of Appellant and Mr. Garcia
     that she had observed.

           Detective Simmons secured the crime scene and noted
     holes in the back bumper and window of the van. He remained
     there until Karen Lyda, a forensics investigator for the HBP
     arrived then continued to interview those present in the
     apartment. Subsequently, Ms. Caban provided Detective
     Simmons a written statement and identified Mr. Garcia’s picture
     in a photo array. At trial, Mr. Almestica identified Appellant as
     the driver of the blue truck.

            When Officer Karen Lyda investigated the crime scene for
     evidence, she collected two mutilated metal projectiles. One was
     found in a bag of clothes located inside the van near the second
     row of seats, Officer Lyda found the other projectile lodged in a
     pile of mulch in front of a nearby apartment building, #1406,
     after a bystander alerted her to that location as the bullet had
     passed by his head. Officer Lyda observed a hole at the top of
     the broken rear window that appeared to be caused by a bullet,
     a bullet strike at the bottom of the rear bumper, damage to the
     headrest on the second row seat, and damage to the top of the
     van by the rear window that may have also been caused by a
     bullet. After testing by the Pennsylvania State Police laboratory,
     it was determined that both projectiles were .32 caliber bullet
     jackets had been fired from the same unknown firearm.


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Trial Court Opinion, 7/24/14, at 3-6. Appellant was arrested and charged at

Dauphin County Criminal Docket Number 1629 CR 2013 as follows: count

one - possession of firearm prohibited; count two - simple assault; count

three - recklessly endangering another person; count four - harassment;

count five - conspiracy (recklessly endangering another person); count six -

unlawful firing of weapon in city limits; count seven - simple assault; count

eight - recklessly endangering another person; and count nine - conspiracy

(recklessly endangering another person).

       Following a jury trial on February 10, 2014 through February 12, 2014,

the jury found Appellant guilty at counts two, four, and five.         The jury

acquitted Appellant of the charges at counts one, three, and six, and counts

seven, eight, and nine were withdrawn.           On February 18, 2014, the trial

court sentenced Appellant to consecutive terms of one to two years of

incarceration on counts two and five, for an aggregate term of two to four

years of imprisonment in a state correctional institution.1 Appellant filed a

timely post-sentence motion, which was denied on March 13, 2014.             On

March 26, 2014, Appellant filed a timely notice of appeal.

       On appeal, Appellant raises two issues for this Court’s consideration:

       1. Was the evidence at trial insufficient to prove beyond a
       reasonable doubt that the Appellant was guilty of simple assault
       by physical menace where the Commonwealth failed to show
____________________________________________


1
   The trial court imposed a $25.00 fine on the summary offense of
harassment at count four.



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      that the [A]ppellant put another in fear of imminent serious
      bodily injury by physical menace?

      2. Whether the trial court erred in denying Appellant’s post-
      sentence motion for arrest of judgment where the jury verdict of
      guilty on the charge of conspiracy to recklessly endanger
      another person was against the weight of the evidence because
      the Commonwealth failed to show that Appellant was in
      possession of a gun, that the alleged victims were in the
      immediate area where the shots were fired, and where the
      Commonwealth’s witnesses statements and testimony conflicted
      on numerous occassions [sic]?

Appellant’s Brief at 6 (full capitalization and underlining omitted).

      In Appellant’s first issue on appeal, he challenges the sufficiency of the

evidence with respect to his conviction for simple assault. Appellant’s Brief

at 13.   Appellant asserts that the Commonwealth established only that he

was at the scene near the gunman, Kevin Garcia, when Mr. Garcia shot at

Ms. Caban’s vehicle.    Id. at 15.   We conclude that Appellant’s claim lacks

merit.

      Our standard of review is as follows:

      [W]hen reviewing a challenge to the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial, and
      all reasonable inferences derived therefrom, when viewed in the
      light most favorable to the Commonwealth as verdict-winner,
      supports all of the elements of the offense beyond a reasonable
      doubt. In making this determination, we consider both direct
      and circumstantial evidence, cognizant that circumstantial
      evidence alone can be sufficient to prove every element of an
      offense. We may not substitute our own judgment for the jury’s,
      as it is the fact-finder’s province to weigh the evidence,
      determine the credibility of witnesses, and believe all, part, or
      none of the evidence submitted.




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Commonwealth v. Sanchez, 82 A.2d 943, 972 (Pa. 2013) (internal

citations omitted).   Simple assault by physical menace is defined in the

Crimes Code as:

      2701. Simple assault

      (a) Offense defined.-- Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if
      he:

                                     ***

            (3) attempts by physical menace to put another in
            fear of imminent serious bodily injury[.]

18 Pa.C.S. § 2701(a)(3).

      Additionally, it is well settled that “[a]n actor and his accomplice share

equal responsibility for the criminal act if the accomplice acts with the intent

of promoting or facilitating the commission of an offense and agrees or aids

or attempts to aid such other person in either the planning or the

commission of the offense.”    Commonwealth v. Gross, 101 A.3d 28, 35

(Pa. 2014) (citation omitted). “There is no minimum amount of assistance

or contribution requirement, for it has long been established ... that intent of

the parties is a consideration essential to establishing the crime of aiding

and abetting a felony.” Id. (internal quotation marks and citation omitted).

“Thus, even non-substantial assistance, if rendered with the intent of

promoting or facilitating the crime, is sufficient to establish complicity.” Id.

(citation omitted). “Accomplice liability does not create a new or separate



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crime; it merely provides a basis of liability for a crime committed by

another person.”   Id. (citing 18 Pa.C.S. § 306).    However, a defendant

cannot be an accomplice based simply on evidence that he was present at

the crime scene. Id.

     The trial court aptly addressed this issue:

     [u]pon review of the evidence of record in a light most favorable
     to the Commonwealth as the verdict winner, the sequence of
     events permitted the jury to infer that Appellant, as the actual
     person that had a grievance with Ms. Caban, acted along with
     Mr. Garcia with the intent to place Ms. Caban and Mr. Almestica
     in fear of imminent serious bodily injury by their menacing
     actions. On the heels of an earlier verbal and physical
     altercation, Ms. Caban received a cellphone call from Appellant.
     Appellant went to Ms. Caban’s sister’s residence with Mr. Garcia
     and another individual and represents to Ms. Ortiz that if he
     can’t have [Ms. Caban], no one can have her. Thereafter, he
     displays a gun to Ms. Ortiz. Outside, Ms. Ortiz sees Appellant
     confer with Garcia and leave in a blue truck, the same blue truck
     which is driven by Appellant to the apartment complex of Mr.
     Almestica’s brother. At the Park Apartments, Ms. Caban, Mr.
     Almestica and the children had taken refuge from a possible
     repeat encounter with Appellant. After searching the area, Mr.
     Garcia spots Ms. Caban’s minivan and Appellant proceeds to park
     behind the vehicle in a way to prevent it from being moved.
     Eyewitnesses then see Mr. Garcia fire gunshots into the van
     while Appellant is with him and as a group they drive away.

           Armed with the earlier encounter with Appellant, the
     warning given by Ms. Ortiz over the phone and her eyewitness
     observation of Appellant’s concerted actions with Mr. Garcia, Ms.
     Caban made a distraught call to the police for the second time
     that day. It was entirely proper for the jury to infer from this
     evidence that Ms. Caban would be in fear of serious bodily injury
     when she witnessed the intentional acts by Appellant to seek her
     out and aid in the commission of Mr. Garcia’s crime. It was also
     a reasonable inference by the jury that based on the sequence of
     events, Appellant encouraged and aided in the actions carried
     out by Mr. Garcia in reaction to his ongoing conflict with Ms.
     Caban. This Court finds that the evidence presented was


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      sufficient for the jury to find Appellant guilty of Simple Assault
      by Physical Menace.

Trial Court Opinion, 7/24/14, at 7-8.

      We agree with the trial court’s determination.         Pursuant to the

applicable standard of review and through the theory of accomplice liability,

Appellant’s actions in concert with Mr. Garcia are sufficient to establish

Appellant’s guilt of simple assault by physical menace beyond a reasonable

doubt. Accordingly, no relief is due.

      In Appellant’s second issue, he challenges the weight of the evidence

supporting his conviction for the crime of conspiracy to recklessly endanger

another person. We begin by noting our standard of review:

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the factfinder is free to believe all, part, or none of the
      evidence and to determine the credibility of the witnesses, and a
      new trial based on a weight of the evidence claim is only
      warranted where the factfinder’s verdict is so contrary to the
      evidence that it shocks 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.

Commonwealth v. Landis, 89 A.3d 694, 698-699 (Pa. Super. 2014)

(citation and quotation marks omitted). Additionally,

      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. Rather, the role of the
      trial court is to determine that notwithstanding all the evidence,
      certain facts are so clearly of greater weight that to ignore them,


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      or to give them equal weight with all the facts, is to deny justice.
      A motion for a new trial on the grounds that the verdict is
      contrary to the weight of the evidence concedes that there is
      sufficient evidence to sustain the verdict; thus the trial court is
      under no obligation to view the evidence in the light most
      favorable to the verdict winner.

Id. at 699 (citation and quotation marks omitted).

      In order to convict a defendant charged with conspiracy, the

Commonwealth must prove: “1) the defendant entered into an agreement

with another to commit or aid in the commission of a crime; 2) he shared

the criminal intent with that other person; and 3) an overt act was

committed in furtherance of the conspiracy.” Commonwealth v. Tejada,

107 A.3d 788, 793 n.4 (Pa. Super. 2015) (quoting Commonwealth v.

Knox, 50 A.3d 749, 755 (Pa. Super. 2012), and citing 18 Pa.C.S. § 903(a),

(d)). Moreover, a conspiracy may be inferred where it is demonstrated that

the relationship, conduct, or circumstances of the parties, and the overt acts

of the co-conspirators sufficiently prove the formation of a criminal

confederation. Commonwealth v. McCoy, 69 A.3d 658, 664 (Pa. Super.

2013) (citation omitted).

      Here, the crime underlying the conspiracy is recklessly endangering

another person.      The Crimes Code provides: “A person commits a

misdemeanor of the second degree if he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily

injury.” 18 Pa.C.S. § 2705.

      Applying these standards, the trial court addressed Appellant’s

challenge to the weight of the evidence:

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           Upon review of the record, it is clear that Appellant and
     Mr. Garcia were acting together. They went to Ms. Ortiz’s
     residence together specifically looking for Ms. Caban, left
     together and were seen together arriving at the Park Apartments
     shortly thereafter. Although Ms. Caban was not sure whether
     Appellant had a gun and Mr. Almestica said he did not see a gun,
     Ms. Ortiz testified that Appellant displayed a gun to her at a time
     when he expressed that if he could not have Ms. Caban, nobody
     could. The circumstances surrounding the events of the crime
     point to the focus being Appellant’s serious conflict with Ms.
     Caban. She saw him in the driver’s seat when the men arrived at
     the Park Apartments. While in the parking lot, [Appellant] was
     searching the buildings along with Mr. Garcia and once the men
     spotted Ms. Caban’s van, [Appellant] moved the truck he had
     been driving for the purpose of blocking the van.

           The evidence also established that the men acted as a
     group during the entire episode. That episode, which included
     Appellant, culminated in Garcia firing a gun in the lot of a
     residential apartment complex, during daylight hours resulting in
     at least one bullet landing near a building far afield from the van
     he was targeting. The inference drawn by the jury of Appellant’s
     involvement in the episode based on his own actions, based on
     the central role he played in the episode and based on all of the
     surrounding circumstances to find him guilty of conspiracy does
     not shock one’s sense of justice.12 Again, if there were any
     questions of credibility or the weight given any inconsistent
     testimony, the determination of what evidence and testimony to
     believe and credit during the trial lay entirely within the purview
     of the jury who rendered the guilty verdict and the verdict may
     not be disturbed unless it shocks one’s sense of justice. After
     review, the court finds that the verdicts rendered in this case
     [are] not so outrageous as to shock its sense of justice and as
     such, should remain undisturbed.
           12
              This Court notes that during oral argument on
           Appellant’s post-sentence motion it was conceded
           that sufficient evidence was presented on the charge
           of Conspiracy to Commit Reckless Endangerment of
           Another Person … to sustain the Commonwealth’s
           burden of proof on the charge. (See Memorandum
           Order, 3/13/14, J. Lewis).

Trial Court Opinion, 7/24/14, at 10-11.


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      After review, we agree with the trial court and find there was no abuse

of discretion in the trial court’s conclusion that the verdict was not shocking

to one’s sense of justice.    Appellant and his co-conspirator, Mr. Garcia,

engaged in a course of conduct that resulted in Mr. Garcia repeatedly

discharging a firearm into Ms. Caban’s vehicle in a residential area, where

the bullets could have struck any number of people in the area.           N.T.,

2/10/14, at 165; Complaint, 4/4/13, at 5. The jury was free to credit the

testimony that established that Appellant participated in a conspiracy with

Mr. Garcia that placed or may have placed others in danger of seriously

bodily injury or death. Landis, 89 A.3d at 698-699. Therefore, Appellant is

entitled to no relief.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2015




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