J-A34008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

DANNY R. CRUZ

                          Appellant                No. 537 MDA 2015


         Appeal from the Judgment of Sentence January 30, 2015
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0005534-2013


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                      FILED FEBRUARY 05, 2016

     Appellant, Danny R. Cruz, appeals from the judgment of sentence

entered on January 30, 2015, in the Court of Common Pleas of Dauphin

County. We affirm.

     We take the factual history of this case from the trial court’s Rule

1925(a) opinion.

           On October 5, 2013, Carlos Dipres went with his friends
     Rafael Sanchez and Maritza David to a dance club, Anastacia’s,
     on Sixth Street in Harrisburg to dance and listen to the band in
     which another friend was a DJ. [N.T., Trial, Oct. 20-22, 2015 at
     56-58.] As Mr. Dipre[s] walked to the bar to order a drink,
     Orland[o] Ayuso-Rivera (“Ayuso-Rivera”) accompanied by
     [Appellant], tapped him on the shoulder. [See id. at 59.]

           Mr. Dipres’ acquaintance with Ayuso-Rivera dated back to
     1997. In 1997, on two consecutive evenings, Mr. Dipre[s] loaned
     his car to his then brother-in-law and Ayuso-Rivera, who told Mr.
     Dipre[s] they needed the car to meet dates. [See id. at 60-61.]
     At the time, Mr. [Dipres] was moving his residence and left
     belongs, including a shotgun used for hunting, in the trunk of the
J-A34008-15


     car. [See id.] On the second night of their use of the car,
     Ayuso-Rivera and the brother-in-law did not return. Mr. Dipres
     saw police officers and K-9 dogs surrounding the brother-in-law’s
     home a few blocks away. [See id. at 61.]             Mr. Dipres
     approached the scene and told officers he was there to pick up
     his vehicle. [See id. at 62.] Officers arrested Mr. Dipres,
     believing that he participated in the robberies of fast food
     restaurants on the two previous nights in which the vehicle was
     used. [See id. at 62.]

           Mr. Dipres told police that he was not present at the
     robberies. Mr. Dipres [instead] became a witness [after the]
     Commonwealth charged Ayuso-Rivera[] with the robberies. Mr.
     Dipres testified against Ayuso-Rivera at trial following which a
     jury trial convicted Ayuso-Rivera. [See id. at 63-64;
     Commonwealth Exhibits 1 and 2.]

           Mr. Dipres next saw Ayuso-Rivera in 2010 at a shopping
     plaza in Harrisburg. Ayuso-Rivera expressed anger towards Mr.
     Dipres, who sought to avoid further confrontation. [See id. at
     65; 112-113.] Dipres saw Ayuso-Rivera again in 2013, three
     months before the incident at issue. [See id. at 66.]

            Before, the incident, Dipres knew [Appellant] only by way
     of a few casual encounters in the community. [See id. at 122.]

           On the night of this incident, October 5, 2013,
     accompanied by [Appellant], Ayuso-Rivera tapped Dipres on the
     shoulder and indicated he wanted to fight. [See id. at 60; 72;
     95-96.] Security told them to [take it outside]. [See id. at 67.]
     [Before Dipres followed Ayuso-Rivera outside, he] handed his
     cell phone and keys to his friend Rafael Sanchez [and instructed
     him to call the police.] [See id. at 67.] Dipres told Sanchez that
     people were calling him “a rat” and “a snitch.” [Id. at 159.]

           Before leaving the club, Dipres did not see a gun. [See id.
     at 73.] Dipres had a knife, but he did not take it out because he
     believed he was going to have a fistfight with Ayuso-Rivera.
     [See id. at 74-75; 107.] Mr. Dipres stepped outside into the
     parking lot. [See id. at 67.] A group of approximately ten men
     followed Ayuso-Rivera and [Appellant]. [See id. at 67; 98-99.]

          Ayuso-Rivera and [Appellant] separated from the group
     and went to a car. [Appellant] returned with a gun. [See id. at
     71-72; 100-102.]


                                   -2-
J-A34008-15


           Having returned from the car with [Appellant], Ayuso-
     Rivera called Dipres “a rat” and “the snitch who wanted to ruin
     someone’s life,” stating, “yea, he’s the snitch, he’s the snitch.”
     [Id. at 68; 77.] The group of men who surrounded Dipres began
     brutally beating him with bottles, a metal [object], and punches
     and kicks to the head. [See id. at 68-73.]

          [Appellant] approached the crowd and fired one shot which
     caused the group to scatter. [See id. at 74-75.] [Appellant] then
     stepped back and shot Dipres four times at close range. [See id.
     at 76-77.] Dipres was conscious the entire time and saw
     [Appellant] shoot him. [See id. at 107.]

           Rafael Sanchez testified that he went outside to the
     parking lot and saw the group punching and kicking Dipres. He
     began to intervene but stopped when he saw [Appellant] with
     the gun. [See id. at 162-163.]

            Officer Christopher Silvio responded to the scene where he
     saw people frantically waving and pointing to Mr. Dipres. [See
     id. at 205; 207.] The officer observed that Mr. Dipres had been
     shot and was bleeding profusely. [See id. at 206.] Emergency
     personnel transported Mr. Dipres to the Hershey Medical Center.
     [See id. at 206.] Officer Silvio testified that in the ambulance,
     Mr. Dipres stated that the shooter approached him and said
     something to the effect of “you’re a snitching bitch” or “I know
     you’re the snitching bitch.” [Id. at 211.]

            Dipres suffered a broken nose, wounds to the head from
     pistol whipping, and gunshot wounds to the elbow, thigh and
     torso which required surgery…. [See id. at 84-89.]

           Although he did [not] know [Appellant’s] name at the
     time, Dipres identified him in a police photo array as the person
     who shot him. [See id. at 132; 143; 279.] Mr. Dipres stated
     that he could not remember [Appellant’s] name but could never
     forget his face. [See id. at 139.] Rafael Sanchez also identified
     [Appellant] in a photo array and at trial as the shooter. [See id.
     at 164; 168; 169-170; 187; 254.]

           The jury viewed video surveillance film taken at
     Anastacia’s on the night of the incident. The film depicts
     [Appellant] in a private conversation with Ayuso-Rivera in the
     crowded club then the two approaching Mr. Dipres. [Appellant]
     stood close to Ayuso-Rivera as he spoke to Mr. Dipres shortly
     before the shooting.

                                   -3-
J-A34008-15



Trial Court Opinion, 11/25/15 at 1-5.

       A jury convicted Appellant of criminal attempt – murder of the first

degree, aggravated assault, criminal conspiracy – aggravated assault,

criminal conspiracy – firearms not to be carried without a license, possession

of a firearm prohibited, and retaliation against witness or victim. 1 The trial

court sentenced Appellant to an aggregate term of 10½ to 23 years’

incarceration.2 Appellant filed a post-sentence motion, which the trial court

denied. This timely appeal followed.

       Appellant raises the following issues for our review.

       1. Whether there is legally insufficient evidence to support the
          jury’s finding of guilt on count 3 and 5, Conspiracy, when the
          evidence showed that Appellant and Ayuso-Rivera had
          encountered Dipres by happenstance on the night in question
          and no agreement or other evidence of cooperation between
          them exists of record.

       2. Whether there was legally insufficient evidence to support the
          jury’s finding of guilt on count 6, Retaliation Against Witness
          or Victim, when there was no evidence to show that the
          Appellant knew about the witness’s prior testimony.

       3. Whether the court abused its discretion in not permitting new
          counsel, who was not present for the actual trial, to file a
          supplemental      post-sentence       motion      where     the
          Commonwealth agreed to the extension of time under these
          circumstances. As a result, [Appellant] was inappropriately
          constrained to put forth only boilerplate assertions in terms of
____________________________________________


1
  18 Pa.C.S.A. §§ 901; 2702(a)(1); 903(c); 6105(a)(1); and 4953(a),
respectively.
2
  The trial court vacated the conviction of possession of a firearm prohibited
prior to sentencing.



                                           -4-
J-A34008-15


         weight of the evidence against him and now where the
         Commonwealth will now likely argue waiver due to the lack of
         particularity averred in the original post-sentence motion.

      4. Whether the jury’s verdict is against the weight of the
         evidence on count 6, Retaliation Against Witness or Victim,
         when the evidence presented at trial to show that [Appellant]
         knew about the witness’s prior testimony was nearly non-
         existent and certainly not beyond a reasonable doubt.

      5. Whether the jury’s verdict is against the weight of the
         evidence on count 1, Criminal Attempt – Murder of the First
         Degree, and count 2, Aggravated Assault, where the victim
         and eyewitness first identified Ayuso-Rivera, not the Appellant
         as the shooter. Whether the jury’s verdict of guilt as to the
         Appellant as the principal in these events is nearly non-
         existent and certainly not beyond a reasonable doubt.

      6. Whether the court abused its discretion in permitting the
         admission of exhibits that were not the Appellant’s past
         crimes, not relevant, unfairly prejudicial to the Appellant, and
         misled the jury into believing that perhaps the Appellant may
         have been originally involved in the 1997 event.

Appellant’s Brief at 7-9.

      Appellant argues that the evidence was insufficient to support his

conspiracy and retaliation against a witness convictions, and also that

numerous convictions were against the weight of the evidence. We review a

challenge to the sufficiency of the evidence as follows.

      The standard we apply when 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


                                     -5-
J-A34008-15


      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 trier 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. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Conversely, a challenge to the weight of the evidence “concedes that

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal     that   a   guilty   verdict   shocks   one’s   sense   of   justice.”

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014) (citation

omitted), appeal denied, 99 A.3d 925 (Pa. 2014).

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question of
            whether the verdict is against the weight of the evidence.
            Because the trial judge has had the opportunity to hear
            and see the evidence presented, an appellate court will

                                        -6-
J-A34008-15


        give the gravest consideration to the findings and reasons
        advanced by the trial judge when reviewing a trial court’s
        determination that the verdict is against the weight of the
        evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court's conviction that
        the verdict was or was not against the weight of the
        evidence and that a new trial should be granted in the
        interest of justice.

     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court's discretion, we have
     explained:

        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 where 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.

Id. at 1015-1016 (citation omitted).

     “When the challenge to the weight of the evidence is predicated on the

credibility of trial testimony, our review of the trial court’s decision is

extremely limited.”   Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.

Super. 2009). Generally, unless the evidence is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, these

types of claims are not cognizable on appellate review. See id.

     “To sustain a conviction for criminal conspiracy, the Commonwealth

must establish the defendant: 1) entered into an agreement to commit or


                                       -7-
J-A34008-15



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. Feliciano, 67 A.3d 19, 25-26 (Pa. Super.

2013) (en banc) (citation omitted). “[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. The conduct of the parties and the circumstances

surrounding their conduct may create a web of evidence linking the accused

to the alleged conspiracy beyond a reasonable doubt.” Commonwealth v.

Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citation omitted).

       “A person commits [the offense of retaliation against victim, witness,

or party] if he harms another by any unlawful act or engages in a course of

conduct or repeatedly commits acts which threaten another in retaliation for

anything lawfully done in the capacity of witness, victim or a party in a civil

matter.” 18 Pa.C.S.A. 4953(a).

       To the extent that Appellant challenges the trial court’s tacit denial of

his   request   to   file   supplemental    post-sentence     motions,    we    note

Pa.R.Crim.P.    720(B)(1)(b)     provides     that   a     “defendant    may     file

a     supplemental   post-sentence    motion    in   the    judge’s   discretion....”

Pa.R.Crim.720(B)(1)(b).

       Lastly, with respect to Appellant’s challenge to the trial court’s

admission of the criminal docket sheets from the Commonwealth’s 1997

criminal case against Ayuso-Rivera, we note that “the admission of evidence

                                      -8-
J-A34008-15



is within the sound discretion of the trial court and will be reversed only

upon a showing that the trial court clearly abused its discretion.”

Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012)

(internal citations omitted).

      We have reviewed Appellant’s issues raised on appeal, along with the

briefs of the parties, the certified record and the applicable law. Having

determined that the trial court’s November 25, 2015 opinion ably and

comprehensively disposes of the issues raised on appeal, with appropriate

reference to the record and without legal error, we will affirm based on that

opinion. See Trial Court Opinion, 11/25/15 at 6-12.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




                                    -9-
                                                                  Circulated 01/28/2016 01:18 PM




COMMONWEALTH                           IN THE COURT OF COMMONPLEAS
                                       DAUPHINCOUNTY,PENNSYLVANIA
      v.

                                       NO. 5534 CR 2013
DANNYR. CRUZ




                         TRIAL COURT OPINION



   Danny Cruz ("Defendant") appeals the judgment of sentence imposed on

January 26, 2015, following the verdicts of guilty of Criminal Attempt (Murder),

Aggravated Assault, Criminal Conspiracy to Aggravated Assault, Person Not to

Possess a Firearm, Carrying Firearm Without a License and Retaliation Against

a Victim.

  For the reasons set forth, the judgment should be affirmed.

FACTS

   The facts, construed in the light most favorable to the Commonwealth as

the verdict winner, are as follows:

   On October 5, 2013, Carlos Dipres went with his friends Rafael Sanchez

and Maritza David to a dance club, Anastacia's, on Sixth Street in Harrisburg

to dance and listen to the band in which another friend was a DJ. (Transcript

of Proceedings, Jury Trial, October 20-22, 2014, pp. 56-58)(hereinafter, "N.T.").

As Mr. Dipre walked to the bar to order a drink, Orland Ayuso-Rivera ("Ayuso-

Rivera") accompanied by Defendant, tapped him on the shoulder.
   Mr. Dipres' acquaintance with Ayuso-Rivera dated back to 1997. In 1997,

on two consecutive evenings, Mr. Dipre loaned his car to his then brother-in-

law and Ayuso-Rivera, who told Mr. Dipre they needed the car to meet dates.

(N.T. pp. 60-61). At the time, Mr. Dupre was moving his residence and left

belongings, including a shotgun used for hunting, in the trunk of the car. (Id.).

On the second night of their use of the car, Ayuso-Rivera and the brother-in-

law did not return. Mr. Dipres saw police officers and K-9 dogs surrounding the

brother in law's home a few blocks away. (N.T. pp. 61). Mr. Dipres approached

the scene and told officers he was there to pick up his vehicle. (N.T. p. 62).

Officers arrested Mr. Dipres , believing that he participated in robberies of fast

food restaurants on the two previous night in which the vehicle was used. (N.T.

pp. 62-63).

   Mr. Dipres told police that he was not present at the robberies. Mr. Dipres

became a witness. The Commonwealth charged Ayuso-Rivera, with the

robberies. Mr. Dipres testified against Ayuso-Rivera at trial following which a

jury convicted Ayuso-Rivera. (N.T. pp. 63-64; Commonwealth Exhibits 1,2).

   Mr. Dipres next saw Ayuso-Rivera in 2010 at a shopping plaza in

Harrisburg. Ayuso-Rivera expressed anger toward Mr. Dipres, who sought to

avoid further confrontation. (N.T. p. 65; p. 112-113). Dipres saw Ayuso-Rivera

again in 2013, three months before the incident at issue. (N.T. p. 66)

   Before the incident, Dipres knew Defendant only by way of a few casual

encounters in the community. (N.T. 122).




                                         2
    On the night of this incident, October 5, 2013, accompanied by Defendant,

Ayuso-Rivera tapped Dipres on the shoulder and indicated he wanted to fight.

(N.T. p. 60; p.72; pp. 95-96). Security told them to leave. (N.T. p. 68; pp. 98-

99). Dipres handed his cell phone and keys to his friend Rafael Sanchez. (N.T.

p. 159). Dipres told Sanchez that people were calling him "a rat" and "a snitch".

(N.T. p. 159).

  Before leaving the club, Dipres did not see a gun. (N.T. p. 73). Dipres had a

knife, but did not take it out because he believed he was going to have a

fistfight with Ayuso-Rivera. (N.T. pp. 74-75; p. 107). Mr. Dipres stepped outside

to the parking lot. (N.T. p. 67). A group of approximately ten men followed

Ayuso-Rivera and Defendant. (N.T. p. 67, N.T. pp. 98-99).

   Ayuso-Rivera and Defendant separated from the group and went to a car.

Defendant returned with a gun. (N.T. p. 70; p. 102).

   Having returning from the car with Defendant, Ayuso-Rivera called Dipres

"a rat" and "the snitch who wanted to ruin someone's life", stating, "yeah, he's

the snitch, he's the snitch." (N.T. pp. 69-70; 79; 103). The group of men who

surrounded Dipres began brutally beating him with bottles, a metal pipe, and

punches and kicks to the head. (N.T. pp. 68-72).

   Defendant approached the crowd and fired one shot which caused the

group to scatter. (N.T. p.71; p.108). Defendant then stepped back and shot

Dipres four times at close range. (N.T. pp. 77-78). Dipres was conscious the

entire time and saw Defendant shoot him. (N.T. p. 107).




                                         3
   Rafael Sanchez testified that he went outside to the parking lot and he saw

the group punching and kicking Dipres. He began to intervene but stopped

when he saw Defendant with the gun. (N.T. pp. 164-165).

  Officer Christopher Silvio responded to the scene where he saw people

frantically waving and pointing to Mr. Dipres. (N.T. p. 205; p. 207). The officer

observed that Mr. Dipres had been shot and was bleeding profusely. (Id.).

Emergency personnel transported Mr. Dipres to the Hershey Medical Center.

(N.T. p. 206). Officer Silvio testified that in the ambulance, Mr. Dipres stated

that the shooter approached him and said something to the effect of "you're

the snitching bitch" or "I know you're the snitching bitch." (N.T. p. 211).

   Dipres suffered a broken nose, wounds to the head from pistol whipping,

and gunshot wounds to the elbow, thigh and torso which required surgery and

a permanent colostomy. (N.T. pp. 84-89).

   Although he did know Defendant's name at the time, Dipres identified him

in a police photo array as the person who shot him. (N.T. p. 132; p. 143; p.

279). Mr. Dipres stated that he could not remember Defendant's name but

could never forget his face. (N.T. p. 139). Rafael Sanchez also identified

Defendant in a photo array and at trial as the shooter. (N.T. p. 164; p.168;

pp.169-170; p. 187; p. 254).

  The jury viewed video surveillance film taken at Anastacia's on the night of

the incident. The film depicts Defendant in a private conversation with Ayuso-

Rivera in the crowded club then the two approaching Mr. Dipres. Defendant



                                        4
stood close to Ayuso-Rivera as he spoke to Mr. Dipres shortly before the

shooting.



RELEVANT PROCEDURAL HISTORY

   The jury returned verdicts of guilty of the above charges on October 22,

2014. On January 26, 2015, the court imposed sentence as follows:

      Count 1- Criminal Attempt - Murder of the First Degree-
           Not less than 9 nor more than 20 years incarceration in a state
           correctional institute, a fine of $150 and the costs of prosecution.
           Conditions of incarceration shall be that Defendant undergo any
           psychological treatment afforded. As a condition of parole, a curfew
           of 10 p.m.

      Count 2 - Aggravated Assault-
           Merged for purposes of sentencing.

      Count 3- Conspiracy- Aggravated Assault-
           N ot less than 2 nor more than 4 years, a fine of $50 plus the costs
           of prosecution. This sentence shall run concurrently with Count
           No. 1.

      Count 4- Vacated

      Count 5- Conspiracy- Firearms Not To Be Carried Without License-
           Not less than 2 nor more than 4 years incarceration in a state
           correctional institute, a fine of $50 and the costs of prosecution.
           This sentence shall run concurrently with the previous sentence.


      Count 6- Retaliation Against Witness/Victim-

            Not less than 1 % nor more than 3 years incarceration in a state
            correctional institute, a fine of $50 and the costs of prosecution.
            This sentence shall run consecutive to Count No. 1.
            The Defendant shall receive time credit from October 11, 2013 to
            January 26, 2015.

(Transcript of Proceedings, Sentencing, January 26, 2015, pp. 6-7; Sentencing

Order, January 26, 2015).
                                       5
     On February 5, 2015, Defendant filed a Post-Sentence                            Motion. On February

9, 2015, the Court ordered that the Commonwealth                            file a response thereto. On

February       19, 2015, the Commonwealth                    filed an Answer to Defendant's             Post-

Sentence Motion. The transcripts                  of voir dire, the jury trial and sentencing were

filed on February 10, 2015.

     The Court denied Defendant's Post-Sentence Motion on February 23, 2015.

Defendant filed a Notice of Appeal on March 23, 2015. On April 17, 2015, the

Court ordered that Defendant file a Concise Statement of Matters Complained

of on Appeal. Defendant filed a timely Concise Statement on May 8, 2015.



DISCUSSIONl

     1. The Court properly exercised its discretion in deciding Defendant's Post-
        Sentence Motion without supplemental pleading. (Defendant's Claim of
        Error 5.1)


     Pennsylvania Rule of Criminal Procedure 720 imposes timeliness

requirements as to the filing of Post Sentence Motions and provides for the

discretion of the trial in granting or denying a request for extension, without

reference to the availability of trial transcripts. The Rule provides:

                  (b) The defendant may file a supplemental post-sentence motion in
                  the judge's discretion as long as the decision on the supplemental
                  motion can be made in compliance with the time limits of
                  paragraph (B)(3).

      Pa.R.Crim.P. 720(B)(l)(b).


I
  We note that Paragraphs 1-4 of Defendant's Concise Statement of Matters Complained of on Appeal present
general argument as to the standards applicable to review of a I 925 (b) Statement. We do not address those but
rather, address only identifiable claims of en-or on appeal which Defendant has briefed on appeal.

                                                         6
  The Court properly exercised it discretion under Rule 720 (B)(l)(b). Based

upon its familiarity with the compelling evidence presented at trial, the Court

did not require supplemental pleadings from the defense to rule upon

Defendant's Post-Sentence Motion.

   Further, the Court's consideration of Defendant's Post-Sentence Motion

without supplement thereoto did not prejudice Defendant. The trial transcript

was lodged on February 10, 2015, and was therefore available to defense

counsel well in advance of the filing of his Concise Statement of Matters

Complained of on Appeal on May 8, 2015.


2. No basis for appeal exists based upon the Trial Court's admission of
   relevant evidence of the criminal history of Ayuso-Rivera where counsel
   stipulated to its admissibility. (Defendant's Claim of Error 5.2)

   At the commencement of trial, counsel presented argument as to the

admissibility of the 1997 criminal docket of Commonwealth v. Ayuso Rivera in

which the Commonwealth charged Ayuso- Rivera with robbery. The Court

reserved ruling upon that request to admit evidence. (N.T. pp. 10-11).

   The Commonwealth renewed its request for the admission of the docket of

the 1997 case as Exhibits 1 and 2 during the testimony of Mr. Dipres regarding

the past relationship with Ayuso-Rivera,. Defense counsel stipulated to the

admissibility of the dockets. (N.T. pp. 63-64).   Accordingly, the Court deemed

the dockets admitted as stipulated evidence.

   Therefore, Defendant waived objection or claim on appeal related to the

admission of the criminal dockets.


                                          7
   3. The Commonwealth presented sufficient evidence that Defendant,
      through collaboration with Ayuzo-Rivera. knew of the victim's role as a
      witness in a 1997 robbery trial and retaliated against him for that
      reason. (Defendant's Claim of Error 5.3)


     Ample evidence supports the jury's conclusion that Defendant acted with

   knowledge of Mr. Dipres' role in the 1997 trial against Ayuso-Rivera and

   retaliated against him for that reason.

     The standard of review of a claim of lack of sufficient evidence is well

   settled, namely,

            ... whether the evidence at trial, and all reasonable inferences
            derived therefrom when viewed in the light most favorable to the
            Commonwealth as the verdict-winner, are sufficient to establish all
            elements of the offense beyond a reasonable doubt. [The Appellate
            Court] may not weigh the evidence or substitute [its] judgment for
            that of the fact-finder. Additionally, the evidence at trial need
            preclude every possibility of innocence, and the fact-finder is free
            to resolve any doubts regarding a defendant's guilt unless the
            evidence is so weak and inconclusive as a matter of law no
            probability of fact may be drawn from the combined
            circumstances. When evaluating the credibility and weight of the
            evidence, the fact-finder is free to believe all, part or none of the
            evidence.


Commonwealth v. Emler, 903 A.2d 1273, 1276-77 (Pa. Super. 2006).

  The Crimes Code provides:

     Retaliation against witness, victim or party-

            (a) Offense defined.- A person commits an offense if he harms
                another by an unlawful act or engages in a course of conduct or
                repeatedly commits acts which threaten another in retaliation
                for anything done in the capacity of witness, victim or a party in
                a civil matter.


18 Pa.C.S.A. §4953.


                                        8
    The thrust of Defendant's challenge to the sufficiency of evidence relates to

whether Defendant knew of the victim's role as a witness in the 1997 trial

against Ayuso- Rivera.

  Ample evidence existed upon which the jury could easily conclude that

Defendant conferred with Ayuso- Rivera and knew of Mr. Dipres's role as a

witness against Ayuso-Rivera. The jury heard testimony that prior to the

attack, Ayuso-Rivera yelled to Defendant and others, referring to Dipres, "he's

the snitch". (N.T. p. 69).

   In addition, the jury viewed the video surveillance tape which depicted

Defendant and Ayuso-Rivera in a private conversation shortly before they

approached Mr. Dipres in the club. The jury could easily conclude that

Defendant spoke to Ayuso-Rivera about Dipres' prior role as a witness which

encouraged Defendant to retaliate for the perceived benefit of his companion

Ayuso-Rivera. Mr. Dipres testified that in the club, before the beating and

shooting, Defendant stood close to Ayuso-Rivera as Ayuso-Rivera raised the

issue of Mr. Dipres' testimony against him.



   4. The weight of the evidence supports the verdict on the crime of
      retaliation.(Defendant's Claim of Error 5.4)

     The Trial Court properly exercised its discretion in denying Defendant's

Post- Sentence Motion where the weight of the evidence supported the verdict.

   It is well established that:

      A true weight of the evidence challenge 'concedes that sufficient evidence
      exists to sustain the verdict' but questions which evidence is to be
      believed. An appellate court may review the trial court's decision to
                                        9
      determine whether there was an abuse of discretion, but it may not
      substitute its judgment for that of the lower court. Indeed, an appellate
      court should not entertain challenges to the weight of the evidence since
      [the appellate court's] examination is confined to the "cold record" [and]
      may not reverse a verdict unless it is so contrary to the evidence as to
      shock one's sense of justice.

Commonwealth v. Golindes, 786 A.2d 1004, 1011 (2001)(internal citations

omitted).

   In reviewing the trial court's denial of a motion for a new trial based upon a

challenge to the weight of evidence, the appellate court will give "the gravest

consideration to the findings and reasons advanced by the trial judge."

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)(internal citations

omitted).

   The facts we discussed above which demonstrate the sufficiency of evidence

similarly demonstrate that the weight of the evidence supports the jury's

findings. As cited, Defendant was present with Ayuso-Rivera during the events

leading up to the beating and shooting during which Ayuso-Rivera yelled "he's

the snitch".



   5. The weight of evidence supports the verdicts where the jury made
      findings of fact and credibility determinations as to evidence which
      identified Defendant as the person who committed the crimes.
      (Defendant's Claim of Error 5.5)

   The Trial Court properly exercised its discretion in denying Defendant's

Post-Sentence Motion based upon the weight of evidence claim where ample




                                        10
evidence supported the conclusion that Defendant committed the instant

cnmes.

   It is beyond purview that credibility determinations and findings of fact are

matters for the Jury. The jury was free to accept as fact that Mr. Dipres and

Rafael Sanchez unequivocally identified Defendant in the police photo array as

the person who shot Mr. Dipres.

   6. Sufficient evidence supports the verdicts as to the crimes of conspiracy.
      (Defendant's Claim of Error 5.7)


   The Commonwealth presented sufficient circumstantial evidence upon

which the jury could conclude that Defendant conspired with Ayuso-Rivera to

retaliate against and shoot the victim.

   Pursuant to 18 Pa.C.S.A. § 903, a person is guilty of conspiracy if he:

      ... with another person or persons to commit a crime if with

      the intent of promoting or facilitating its commission he:

      ( 1) agrees with such other person or persons that they or one or more of

         them will engage in conduct which constitutes such crime or an

         attempt or solicitation to commit such crime; or

      (2) agrees to aid such other person or persons in the planning or

         commission of such crime or of an attempt or solicitation to commit

         such crime.

18 Pa.C.S.A. § 903

   As with any crime, the Commonwealth may sustain its burden of proving

the existence of a conspiracy by circumstantial evidence. The Commonwealth

                                          11
correctly notes that it need not prove that the conspirators reached an explicit

or formal agreement to commit a crime. A conspiracy may be inferred by the

conduct of the parties and surrounding circumstances. citing Commonwealth v.

Johnson, 719 A.2d 778 (Pa. Super. l 998)(en banc)(quoting Commonwealth v.

Kennedy, 453 A.2d 927 (1982).

    The jury could readily conclude that Defendant's presence with Ayuso-

Rivera that evening as events escalated proved a conspiracy. Mr. Dipres

testified that he had never had a negative encounter with Defendant before this

incident and therefore the jury heard no evidence of an alternative motive.

Before the shooting, Ayuso-Rivera, accompanied by Defendant, approached Mr.

Dipres at the bar. When it became apparent that a fight would occur, the Mr.

Dipres went outside the bar expecting to fight Ayuso-Rivera. Mr. Dipres saw

Defendant and Ayuso-Rivera go to a car. (N.T. pp. 66-72). Defendant took a

gun out of a bag as he approached Mr. Dipres. As Defendant was being beaten

by the group, Ayuso-Rivera called him a rat and snitch.

    The jury was free to conclude that Defendant conspired to commit the

crimes by his conversation with Ayuso-Rivera at the club, their retrieval of the

gun from the car together and the view of Mr. Dipres as a "snitch".

   7. The weight of evidence supports the verdicts as to the crimes of
      conspiracy. (Defendant's Claim of Error 5.8)


  For all of the same reasons set forth at Section 6 above, the Trial Court

properly denied Defendant's challenge to the weight of evidence as to

conspiracy to commit the within crimes.

                                       12
CONCLUSION

    For all of the foregoing reasons, the judgment        of sentence should be

affirmed.



                                                          BY THE COURT:


                                                          JOHN F. CHERRY, JUDGE




November 25, 2015



Distribution:

Dauphin     County District   Attorney's   Office

Theodore     Tanski,   Esq., 3601 Vartan Way,       2nd   Floor, Harrisburg, PA 17110




                                           13
CONCLUSION

   For all of the foregoing reasons, the judgment of sentence should be

affirmed.




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