J-S36026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

EMMANUEL SANCHEZ,

                        Appellant                   No. 1035 EDA 2016


        Appeal from the Judgment of Sentence of October 29, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005519-2014
                       and CP-51-CR-0005520-2014

BEFORE: PANELLA, J. OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 15, 2017

      Appellant, Emmanuel Sanchez, appeals from the judgment of sentence

entered on October 29, 2015, as made final by the denial of his post-

sentence motion on March 9, 2016. We affirm.

      The trial court accurately set forth the factual background of this case

as follows:

      On February 5, 2014, at about 3:00 [p.m.], Nilzon Feliciano
      [(“Father”)], along with his son Nilson Feliciano [(“Son”)],
      approached Luis Serrano [(“Serrano”)] . . . in their vehicle on
      the 3200 block of North Philip Street in Philadelphia. Their
      reason for approaching Serrano was due to a disagreement that
      began six months prior, regarding a faulty transmission sold by
      Serrano to [Father]. That day, [Father] went to request a refund
      in the amount of $400[.00] from Serrano, upon discovering in
      the months before that the transmission did not function
      properly. According to [Son], the two men had not originally
      intended to confront [] Serrano, but happened to see him on the
      block on their way to [Father]’s ex-wife’s home.
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      [Father] testified that he knew [] Serrano due to mechanic work
      that Serrano did for him and other residents in the
      neighborhood, and because Serrano lived across the street from
      his ex-wife. [Son] testified that he also knew who Appellant
      was, from growing up in the neighborhood with him. [Son]
      stated that he recognized Appellant when he approached him
      during [the] incident, in part due to Appellant walking with a
      limp.

      Upon seeing Serrano on Philip Street, [Father] exited his vehicle
      in order to confront Serrano and ask for the refund. After briefly
      talking with [Father], Serrano walked into his home at 3252
      North Philip Street. Moments later, Serrano returned with a
      handgun in his hand, partially concealing the weapon within his
      hoodie. Serrano then pointed the handgun towards [Father]’s
      stomach area and stated, “Let's talk now.”

      [Father] told [] Serrano that they did not have more to talk
      about, and that he only wanted his money back. [Son] stepped
      out of the car at that point. [Father] then told [Son] “Let’s go,
      let’s go,” and the two of them drove around the corner in their
      vehicle. [Father] parked the vehicle and both men exited on
      Philip Street and Allegheny Avenue. The two men were planning
      to go to the home of [Father]’s ex-wife, which was on Philip
      Street towards the direction they had come from.

      While walking up Philip Street, [Father and Son] were
      approached by Appellant. . . . Appellant walked down from the
      porch at 3252 Philip Street and onto the sidewalk across from
      [Father] and [Son]. Appellant wore a red hoodie, and was
      carrying an AK-47 in his arms.       After [Father] briefly told
      Appellant that he only wanted his money back, Appellant began
      crossing Philip Street towards the complainants, and fired one
      round towards them. [Father] hid between cars on the street,
      while [Son] took off running. Standing in the middle of the
      street, Appellant [fired] four more rounds in the direction of
      [Son], who was running towards Allegheny [Avenue]. Neither
      [Father] nor [Son] was hit by any bullets. [Son] sustained a
      minor injury when he fell and scraped his knee.

Trial Court Opinion, 9/12/16, at 2-3 (internal citations omitted).




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        The procedural history of this case is as follows. The Commonwealth

charged Appellant via two criminal informations with two counts each of

attempted murder,1 conspiracy to commit murder,2 aggravated assault,3

simple assault,4 possession of a firearm by a prohibited person,5 carrying a

firearm without a license,6 and carrying a firearm on the streets of

Philadelphia.7    The Commonwealth moved to consolidate Appellant’s two

cases with Serrano’s two cases.    The trial court granted the consolidation

motion.

        Trial commenced on May 4, 2015. On May 7, 2015, a jury convicted

Appellant of two counts each of attempted murder, conspiracy to commit

murder, carrying a firearm without a license, and carrying a firearm on the

streets of Philadelphia. The trial court found Appellant guilty of two counts

of possession of a firearm by a prohibited person. On October 29, 2015, the

trial court sentenced Appellant to an aggregate term of 13 to 28 years’

imprisonment.      On November 8, 2015, Appellant filed a post-sentence

1
    18 Pa.C.S.A. § 901, 2502.
2
    18 Pa.C.S.A. § 903, 2502.
3
    18 Pa.C.S.A. § 2702(a)(1).
4
    18 Pa.C.S.A. § 2701(a).
5
    8 Pa.C.S.A. § 6105(a)(1).
6
    8 Pa.C.S.A. § 6106(a)(1).
7
    8 Pa.C.S.A. § 6108.



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motion, which was denied by operation of law on March 9, 2016. This timely

appeal followed.8

       Appellant presents three issues for our review:

    1. Where the record is void of any evidence of an agreement
       between Appellant and [] Serrano, did the Commonwealth offer
       insufficient evidence to prove [c]riminal [c]onspiracy?

    2. Did the [trial] court err by admitting into evidence an earlier
       incident not involving Appellant that was irrelevant to Appellant’s
       matter and thus unfairly and unduly prejudiced the jury against
       Appellant?

    3. Did the [trial] court violate [Pennsylvania Rule of Criminal
       Procedure 582] by consolidating [] Serrano’s confrontation with
       [Father and Son] with Appellant’s trial, even though that
       confrontation was separate, apart[,] and irrelevant to
       [A]ppellant’s matter?

Appellant’s Brief at 4.

       In his first issue, Appellant argues that there was insufficient evidence

to convict him of conspiracy to commit murder.             “Whether sufficient

evidence exists to support the verdict is a question of law; our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Giron, 155 A.3d 635, 638 (Pa. Super. 2017) (citation omitted).               In

assessing Appellant’s sufficiency challenge, we must determine “whether,

viewing all the evidence admitted at trial in the light most favorable to the

[Commonwealth], there is sufficient evidence to enable the fact-finder to

8
   On April 5, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On May 29, 2016, Appellant filed his concise statement.
On September 12, 2016, the trial court issued its Rule 1925(a) opinion. All
issues raised on appeal were included in Appellant’s concise statement.


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find   every     element   of   the   crime   beyond   a   reasonable   doubt.”

Commonwealth v. Sauers, 159 A.3d 1, 11 (Pa. Super. 2017) (citation

omitted).      “[T]he evidence established at trial need not preclude every

possibility of innocence and the fact-finder is free to believe all, part[,] or

none of the evidence presented.” Commonwealth v. Boniella, 158 A.3d

162, 165 (Pa. Super. 2017) (citation omitted).

       In order to convict a defendant of conspiracy to commit an offense,

“the Commonwealth must establish the defendant: 1) entered into an

agreement to commit or aid in an unlawful act with another person or

persons; 2) with a shared criminal intent; and 3) an overt act was done in

furtherance of the conspiracy.”       Commonwealth v. Dantzler, 135 A.3d

1109, 1114 (Pa. Super. 2016) (en banc) (internal quotation marks and

citation omitted).      In this case, Appellant contends that there was

insufficient evidence to prove the first element of the offense, i.e., he argues

there was insufficient evidence that he entered into an agreement with

Serrano to murder Father and Son. “[A] conspiracy may be inferred where

it is demonstrated that the relation, conduct, or circumstances of the parties,

and the overt acts of the co-conspirators sufficiently prove the formation of a

criminal confederation.” Commonwealth. v. Orie Melvin, 103 A.3d 1, 43

(Pa. Super. 2014) (citation omitted).

       Appellant argues that there was insufficient time between Father’s and

Son’s confrontation with Serrano and Appellant opening fire on Father and



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Son for Appellant to have reached an agreement with Serrano. We disagree.

Appellant appeared on Serrano’s porch with an AK-47 and opened fire on

Father and Son approximately five to ten minutes after Father and Son

requested a refund from Serrano, and Serrano pointed a gun at Father.

Contrary to Appellant’s argument, this was a sufficient amount of time for

Appellant to reach an agreement with Serrano to murder Father and Son.

Appellant and Serrano could have reached an agreement with shared intent

through either visual or verbal cues.   Accordingly, we conclude that there

was sufficient evidence to convict Appellant of conspiracy to commit murder.

      In his second issue, Appellant argues that the trial court erred in

admitting evidence of Serrano’s confrontation with Father and Son. As this

Court has explained:

      The admission of evidence is committed to the sound discretion
      of the trial court, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support to be clearly
      erroneous.

Commonwealth v. Akrie, 159 A.3d 982, 986–987 (Pa. Super. 2017)

(citation omitted).

      Appellant contends the evidence of Serrano’s confrontation with Father

and Son was irrelevant. Rule 401 defines relevant evidence as that which

“has any tendency to make a fact more or less probable than it would be

without the evidence[ and] the fact is of consequence in determining the

action.” Pa.R.Evid. 401. The confrontation between Serrano and Father and


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Son was relevant to Appellant’s case because that meeting was crucial

circumstantial evidence tending to prove that Serrano and Appellant reached

an agreement to murder Father and Son. Combined, what occurred during

that confrontation, the time between the confrontation and the shooting, the

location of the confrontation, the location of the shooting, and the parties’

relationship provided the jury with enough circumstantial evidence to

conclude that Serrano and Appellant reached an agreement to use firearms

to inflict harm on Father and Son.               Without evidence regarding the

confrontation, there would have been significantly less evidence tending to

prove that Appellant and Serrano reached an agreement with shared

objectives.9   Moreover, the confrontation was key to showing Appellant’s

motive.     That is, Appellant opened fire in retaliation for Father and Son

confronting Serrano about the defective transmission.               The Pennsylvania

Rules of Evidence explicitly recognize that evidence which tends to show a

motive is relevant.       See Pa.R.Evid. 404(b)(2). Accordingly, the trial court

did   not   abuse   its    discretion   by   admitting   evidence    related   to   the

confrontation between Serrano and Father and Son.

      In his final issue, Appellant argues that the trial court erred in joining

his two informations with Serrano’s two informations for trial. We review a

trial court’s decision to join defendants for trial for an abuse of discretion.

9
  To the extent Appellant argues that the evidence was inadmissible under
Pennsylvania Rule of Evidence 403, that argument is without merit for this
same reason. The probative value was extremely high while the risk of
unfair prejudice was low.


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Commonwealth v. O’Neil, 108 A.3d 900, 905 (Pa. Super. 2015), appeal

denied, 117 A.3d 296 (Pa. 2015). Joinder of defendants charged in separate

criminal   informations   is   governed   by   Pennsylvania   Rule   of   Criminal

Procedure 582(A)(2), which provides that, “Defendants charged in separate

indictments or informations may be tried together if they are alleged to have

participated in the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses.” Pa.R.Crim.P. 582(A)(2).

      When considering a motion to joint defendants charged in separate

criminal informations, the trial court must consider:

      (1) Whether the number of defendants or the complexity of the
      evidence as to the several defendants is such that the trier of
      fact probably will be unable to distinguish the evidence and apply
      the law intelligently as to the charges against each defendant;
      (2) Whether evidence not admissible against all the defendants
      probably will be considered against a defendant notwithstanding
      admonitory instructions; and (3) Whether there are antagonistic
      defenses.

Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010),

appeal denied, 22 A.3d 1033 (Pa. 2011) (citation omitted).

      As this Court recently explained, “joint trials are preferred where

conspiracy is charged.     Nevertheless, severance may be proper where a

party can establish the co-defendants’ defenses are so antagonistic that a

joint trial would result in prejudice. However, the party seeking severance

must present more than a mere assertion of antagonism.” Commonwealth

v. Cole, 2017 WL 2889120, *4 (Pa. Super. July 7, 2017) (internal

alterations, ellipsis, and citation omitted); Commonwealth v. Serrano, 61


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A.3d 279, 285 (Pa. Super. 2013); see also Commonwealth v. Hartman,

31 Pa. Super. 364, 367 (1906). In this case, Appellant and Serrano were

charged with participating in the same act, i.e., conspiring to murder Father

and Son.   Thus, Appellant must establish that Serrano’s defenses were so

antagonistic that a joint trial would result in prejudice.

      Appellant fails to establish this fact. Appellant argues that Serrano’s

offenses were prejudicial because Serrano “brandished a firearm over an

insignificant argument.”    Appellant’s Brief at 23.     This, however, is less

egregious than firing five rounds from an AK-47 at two individuals over that

same insignificant argument. Accordingly, we conclude that the trial court

did not abuse its discretion by joining Appellant’s two criminal informations

with Serrano’s two criminal informations.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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