J-S14008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CARLOS TORRES                            :
                                          :
                    Appellant             :   No. 1759 EDA 2019

        Appeal from the Judgment of Sentence Entered May 31, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0003340-2017

BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                               FILED MAY 26, 2020

      Carlos Torres appeals from his judgment of sentence of twenty to forty

years of imprisonment imposed after he was convicted of third-degree murder

and conspiracy. We affirm.

      Succinctly, the underlying facts are as follows. Appellant was in a long-

term relationship with Carmen Ramos that ended in early 2017. A few weeks

later, Ms. Ramos began dating Francisco Velazquez (“the victim”). Appellant

sent text messages to Ms. Ramos threatening the victim.       When Appellant

encountered the victim at Hoagie City shortly thereafter while on a phone call,

Appellant confronted him, left the store, and waited outside for the victim to

exit. Appellant attacked the victim when he exited Hoagie City, then pursued

the victim when he fled. Appellant reinitiated the attack joined by his friend,

Timothy Walker. Appellant and Walker proceeded to beat the victim to death.
J-S14008-20


All of this was captured on video. Appellant made another call from the back

of the police car, to his friend Walker.

        Appellant was arrested and charged with murder, conspiracy, and

possessing an instrument of crime (“PIC”).        Appellant elected to waive his

right to a jury trial, and proceeded to a bench trial on January 22 and 23,

2019.     The trial court found Appellant guilty of third-degree murder and

conspiracy, but acquitted him of PIC, and ultimately imposed concurrent

sentences of twenty to forty years of incarceration on the two convictions. 1

Appellant timely appealed, and both Appellant and the trial court complied

with Pa.R.A.P. 1925.

        Appellant presents the following questions, which we have re-numbered

for ease of disposition:

              1.    Was the evidence presented at trial insufficient to
        support a conviction for third degree murder and conspiracy where
        the Commonwealth failed to prove an agreement between the
        Appellant and his co-defendant?

              2.    Notwithstanding all the facts, did the trial court err in
        convicting the Appellant of third degree murder and conspiracy
        where the trial court placed too much weight on a phone call
        between the Appellant and his co-defendant in order to find a
        criminal agreement to assault the victim. . . ?

              3.    Did the trial court abuse its discretion by imposing a
        manifestly excessive and unreasonable sentence of 20 to 40 years’
        incarceration for third degree murder and conspiracy which was
        above the sentencing guidelines without adequately considering
        the co-defendant’s . . . sentence, the Commonwealth’s
____________________________________________


1Appellant filed a timely post-sentence motion challenging, inter alia, the
weight of the evidence and the discretionary aspects of his sentence.

                                           -2-
J-S14008-20


      recommended sentence and Appellant’s role in the offense,
      history, background and remorse in violation of the sentencing
      code?

            4.    Did the trial court abuse its discretion by imposing a
      manifestly excessive and unreasonable sentence of 20 to 40 years’
      incarceration for third degree murder and conspiracy which was
      above the sentencing guidelines without considering and providing
      adequate reasons on the record for the deviation from the
      sentencing code?

Appellant’s brief at 5-6 (unnecessary capitalization omitted).

      The following informs our review of Appellant’s claims of error. As to

Appellant’s sufficiency challenge, we bear in mind:

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).

      Appellant’s claim that the verdict was against the weight of the evidence

is governed by the following principles.

      Appellate review of a weight claim is a review of the [trial court’s]
      exercise of discretion, not of the underlying question of whether

                                      -3-
J-S14008-20


       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 give the gravest consideration
       to the findings and reasons advanced by the trial judge when
       reviewing a trial court’s determination [of whether] 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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).2

       As to review of Appellant’s sentencing challenge, we observe:3

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment. Rather,
       the appellant must establish, by reference to the record, that the
       sentencing court ignored or misapplied the law, exercised its
       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

       When imposing sentence, a court is required to consider the
       particular circumstances of the offense and the character of the
       defendant. In considering these factors, the court should refer to
____________________________________________


2The same standard applies where, as in the case sub judice, the trial court
considering the motion was the fact-finder at trial.           See, e.g.,
Commonwealth v. Lineman, 219 A.3d 684, 689 (Pa.Super. 2019), appeal
granted in part on other grounds, 223 A.3d 669 (Pa. 2020).

3 Appellant challenged the discretionary aspects of his sentence in his post-
sentence motion, and his brief includes a statement pursuant to Pa.R.A.P.
2119(f) wherein he asserts that his claim presents a substantial question that
the court violated the sentencing code. See Appellant’s brief at 13. We agree.
See, e.g., Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa.Super.
2010) (finding substantial question raised by unexplained disparity between
codefendants’ sentences); Commonwealth v. Sheller, 961 A.2d 187, 190
(Pa.Super. 2008) (“We find that Appellant’s contention that the sentencing
court exceeded the recommended range in the Sentencing Guidelines without
an adequate basis raises a substantial question for this Court to review.”).

                                           -4-
J-S14008-20


       the defendant’s prior criminal record, age, personal characteristics
       and potential for rehabilitation.

Commonwealth v. Kitchen, 162 A.3d 1140, 1146 (Pa.Super. 2017)

(cleaned up). Additionally, we note that where, as in the instant case, the

trial court had the benefit of a presentence investigation report, it is presumed

to have considered all the relevant sentencing factors.              See, e.g.,

Commonwealth v. Clemat, 218 A.3d 944, 960 (Pa.Super. 2019).

       After a thorough review of the certified record, the parties’ briefs and

the pertinent law, we discern no error of law or abuse of discretion on the part

of the trial court as to the issues raised by Appellant, and we affirm the

judgment of sentence for reasons stated in the cogent and well-reasoned

opinion that Honorable J. Scott O’Keefe entered on August 12, 2019.

       Specifically, Judge O’Keefe observed that the law and the evidence,

including reasonable inferences therefrom viewed in the light most favorable

to the Commonwealth, supported the finding Appellant and Walker acted with

shared criminal intent when they jointly attacked the cornered victim, rather

than independent of one another,4 and that their concerted beating resulted


____________________________________________


4Compare Commonwealth v. Thomas, 65 A.3d 939, 946 (Pa.Super. 2013)
(deeming the evidence of conspiracy to commit aggravated assault sufficient
where the defendant “was with a group of four other individuals who
repeatedly kicked and punched the victim, causing her to collapse to the
ground, where they continued their attack”), with Commonwealth v.
Chambers, 188 A.3d 400, 412 (Pa. 2018) (finding insufficient evidence of
conspiracy where none of the defendant’s cohorts became involved in his one-



                                           -5-
J-S14008-20


in his death.     See Trial Court Opinion, 8/12/19, at 6-10.        The trial court

likewise properly considered Appellant’s weight-of-the-evidence challenge and

acted within its discretion in concluding that the verdict was not shocking to

the conscience. Id. at 12. Finally, Judge O’Keefe supported the propriety of

Appellant’s sentence5 by discussing how he reviewed and considered the

relevant    information,      including    the   presentence   report,   Appellant’s

background and rehabilitative needs, and Appellant’s increasingly serious

criminal violence, and imposed a sentence that was within (albeit at the top

of) the guideline recommendations.6 Id. at 14-15. As to the foregoing points,

we adopt Judge O’Keefe’s reasoning as our own.

____________________________________________


on-one battle with the victim until the victim’s girlfriend intervened on his
behalf, and the defendant's cohorts got involved to try to break up the fight).

5We do not adopt Judge O’Keefe ‘s opinion to the extent that it suggests that
Appellant failed to raise a substantial question. See Trial Court Opinion,
8/12/19, at 13.

6 Appellant acknowledged that, with a prior record score of three, and the
offense gravity score was fourteen, the guidelines recommended a sentence
of 120 months to the statutory maximum. See N.T. Sentencing, 5/31/19, at
7. See also 204 Pa. Code § 303.16(a) (indicating standard range sentence
for Appellant is 120 months to the statutory limit). The statutory maximum
for Appellant’s murder and conspiracy convictions was twenty to forty years
of imprisonment. See 18 Pa.C.S. § 1102(c), (d). Hence, Appellant’s claim
that the trial court sentenced outside the guidelines is belied by the record.

Furthermore, as the trial court noted, the evidence showed or suggested that
it was Appellant who was jealous of the victim, who planned the attack, and
who contacted his codefendant to coordinate the assault.             See N.T.
Sentencing, 5/31/19, at 25. As such, Appellant’s complaint that the trial court
failed to consider Appellant’s role in the offense and impose an individualized



                                           -6-
J-S14008-20


       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2020




____________________________________________


sentence is likewise unsupported by the record—the imposition of a greater
sentence than that of his codefendant is the epitome of individualized
sentencing. Accord Commonwealth v. Ali, 197 A.3d 742, 765 (Pa.Super.
2018) (holding record reflected that the trial court offered sufficient reasons
for the defendant’s sentence and justification for disparity from those of
codefendant).

                                           -7-
                                                                                  Circulated 04/30/2020 05:12 PM




    IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
   LL       FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


 COMMONWEALTH OF PENNSYLVANIA                                 CRIMINAL TRIAL DIVISION


                   Vs.                                        1759 EDA 2019


          CARLOS TORRES                                       CP-51-CR-0003340-2017


                                           OPINION
O'KEEFE, J.


        Carlos Torres appeals his sentence of twenty to forty years' incarceration following his

convictions of third degree murder and criminal conspiracy. The defendant contends that there

was insufficient evidence presented at his jury trial, that the verdict was against the weight of the

evidence and that the sentence was excessive.

PROCEDURAL HISTORY:

        On March 2, 2017, the defendant was arrested and charged with murder, criminal conspir-

acy and possessing an instrument of crime. Appellant was bound over for trial on all charges

following an April 28, 2017 preliminary hearing. A bench trial commenced on January 23, 2019,

with Torres being convicted of murder of the third degree and criminal conspiracy but acquitted

of the charge of possessing the instrument of a crime. The defendant was sentenced to a concurrent

term of twenty to forty years' incarceration, for both murder of the third degree and conspiracy,

the subject of this appeal.
STANDARD OF REVIEW:

         For a claim of insufficiency of the evidence an appellate court must view the evidence in a

light most favorable to the Commonwealth as the verdict winner and determine whether the evi-

dence presented at trial, including all reasonable inferences that may be drawn therefrom, was

sufficient to prove all of the elements of the crime beyond a reasonable doubt. See Commonwealth

v.   McCalman, 795 A.2d 412 (Pa.Super. 2002).

         A claim that the verdict is against the weight of the evidence requires that the court examine

the record to determine whether the fact finder's verdict was so contrary to the evidence as to

shock one's sense of justice and thereby mandate the granting of a new trial. Commonwealth             v.


Habay, 934 A.2d 732 (Pa.Super. 2007), appeal denied, 954 A.2d 575 (Pa. 2008). Whether or not

a new trial should be granted on the grounds that the verdict is against the weight of the evidence

is addressed to the sound discretion   of the trial court, whose decision will not be reversed absent a

showing of an abuse of discretion. Commonwealth        v.   Widmer, 560 Pa. 308, 744 A.2d 745 (2000);

Commonwealth      v.   Brown, 538 Pa. 410, 648 A.2d 1177 (1994).

         When reviewing a claim of an improper or excessive sentence, the standard of review is

that Isjentencing is a matter vested in the sound discretion of the sentencing judge, and will not

be disturbed on appeal absent a manifest abuse of discretion." Commonwealth             v.   Johnson, 446

Pa.Super. 192, 197, 666 A.2d 690, 693 (1995) (quoting Commonwealth            v.   Dotter, 403 Pa.Super.

507, 516, 589 A.2d 726 (1991)).


FACTS:

         For eight years, the defendant, Carlos Torres, and Carmen Ratnos lived together in an inti-

mate relationship, which terminated in late January, early February of 2017. (N.T. 1-22-2019, pp.

11-18). Around mid -February Ms. Ramos began seeing Francisco Velazquez. (N.T. 1-22-2019,


                                                   2
pp. 17-18). When the appellant discovered that his former paramour was dating Mr. Velazquez

he became extremely upset. (N.T. 1-22-2019, pp. 18-20). In the early afternoon of March 2"d, the

defendant and Carlos Velazquez ran into each other inside Hoagie City, a local hang-out located

at   5th   and Lehigh Streets in Philadelphia. (N.T. 1-22-2019, pp. 22-23, 30-32). About three hours

later, Velazquez and Ms. Ramos were back in the area of            5h1   and Lehigh when the decedent got

out of Ramos' car and returned to Hoagie City. (N.T. 1-22-2019, pp. 18-20, 53-54). Surveillance

of the events that occurred inside and outside Hoagie City as well as other businesses in the im-

mediate area was presented in the defendant's trial. The video clearly depicts the defendant con-

fronting Velazquez inside Hoagie City where a short verbal exchange ensues. (N.T. 1-22-2019,

pp. 44-45, 55-58). Torres then leaves the store, waiting outside for Velazquez to exit. The dece-

dent is hesitant to go out the door, but eventually departs. Upon leaving, Velazquez is attacked by

the defendant. Velazquez tries to leave the area, but is pursued for two blocks by the defendant,

heading west on Lehigh Avenue, across        5111   Street up to the corner of Fairhill and Lehigh Streets,

where Velazquez is physically attacked by the defendant. (N.T. 1-22-2019, pp. 44-46, 56-61).

While the two are brawling, Timothy Walker joins in the beating, grabbing and slamming Ve-

lazquez twice with a barricade. (N.T. 1-22-2019, pp. 58-61). Velazquez falls to the ground and

while there, this defendant continues beating the decedent, punching and kicking Velazquez in the

head. After this defendant delivers a vicious kick to the decedent's head, Velazquez stops any

movement, just lying on the ground, while being further beaten by Torres. (N.T. 1-22-2019, pp.

61-65).

            Officer Todd Gittel responded to a radio call about the fight, finding Francisco Velazquez

lying on the ground, fading in and out of consciousness, unable to talk. (N.T. 1-22-2019, pp. 65-

66). After calling rescue to attend to the victim, the officer put the defendant in the back of his




                                                       3
patrol car. Officer Gittel testified that heard the defendant talking on his cell phone, saying "Tim,

don't let me go down for this, you got to come back." (N.T. 1-22-2019, p. 66). Officer Juan

Fernandez testified that several days later, he attempted to serve an arrest warrant on the defendant

for this case and that when he knocked on the defendant's door, Torres jumped out the back win-

dow and unsuccessfully tried to run away, travelling east on York Street. (N.T. 1-23-2019, pp. 8-

11, 17-18). The officer further testified that while transporting the defendant to the police station,

Torres told the officers that "I didn't do all the damage. It was my friend, Timothy Walker." (N.T.

1-23-2019, pp. 13-16). In addition, Assistant Medical Examiner Victoria Sorokin testified that

Francisco Velazquez died of blunt impact injury to the head and the manner of death was homicide.

(NT. 1-23-2019, pp. 21-30).

       Detective Thorsten Lucke was presented during the trial, testifying that he recovered the

video from Hoagie City as well as several businesses along Lehigh Avenue. (N.T. 1-22-2019, pp.

42-45, C- 51, 52, 77). The entire beating of Mr. Velazquez, from inside Hoagie City to out the

front door and west on Lehigh Avenue was captured on video and admitted into evidence during

Torres' trial. Additionally, Detective Lucke testified that he performed a cellphone extraction

from the phone with the number that was attributed to Ms. Ramos. Included in the extraction were

text messages from a cell phone bearing the number 215-800-3174, which Ramos' phone associ-

ated with the name "Carlos". (MT. 1-22-2019, pp. 47-52). The relevant testimony concerning the

texts from March   2" 2017 are:
                      "Your Honor, Fin starting from the top. Again, these are all
              from March 2", 2017. Start with the first message at 12:54 p.m.
              Content is, "How can you hurt me like that, drive down Lawrence
              Street with him. You know I'm right" - I'm going to read it out, so
              I apologize for my language - "fuck this bullshit. You really got
              that, but I still love you regardless. Enjoy."
                     Next message in this report, Your Honor, at 3:45 p.m. "You
              got fucking balls, Linda, but I will catch him. Trust me. Nothing


                                                 4
               but respect. Not about you. Fuck. You live yours.           I   live mine.
               Fuck you. I've had it."
                      3:53 p.m., Your Honor. "You're a liar. That's why you do-
               ing what you doing. I'll go look Gail (phonetic), but with respect."
                       4:05 p.m. "Why he not here. What's up? What, he's scared
               to fight like a man? I right (sic) for mine, but I forgot you're not
               mine anymore."
                       4:21 p.m. "Tell him to come get your IR."
                       6:24 p.m. "Keep calling him. He laid out."
                     6:27 p.m. "Don't call me. I'm going to jail beating his ass.
               He swung first"
        (N.T. 1-22-2019, pp. 51-52).

LEGAL DISCUSSION:

                                   Insufficiency of the Evidence

       Appellant's first claim of error is that there was insufficient evidence presented at trial to

find him guilty of any of the charges to which he was convicted. When evaluating a claim of

insufficiency of the evidence, we must determine "whether the evidence is sufficient to prove every

element of the crime beyond a reasonable doubt." Commonwealth         v.   Hughes, 521 Pa. 423, 555

A.2d 1264, 1267 (1989). Further, the evidence must be viewed "in the light most favorable to the

Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences

therefrom upon which, if believed, the fact finder properly could have based its verdict." Id "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 com-

bined circumstances." Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super. 2013) (citing Com-

monwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007)).

       Under a sufficiency of the evidence claim, "the Commonwealth may sustain its burden by




                                                5
 means of wholly circumstantial evidence; the entire trial record should be evaluated and all evi-

 dence received considered, whether or not the trial court's rulings thereon were correct; and the

 trier of fact, while passing upon the credibility of witnesses and the weight of the proof, is free to

 believe all, part, or none of the evidence." Commonwealth        v.   Chmiel, 585 Pa. 547, 889 A.2d 501,

 517 (2005) (quoting Commonwealth       v.   Watkins, 577 Pa. 194, 843 A.2d 1203, 1211 (2003)). "Ad-

 ditionally, the evidence at trial need not 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 that as a matter of law no probability of fact may be drawn from the combined cir-

cumstances " Commonwealth v. Bohonyi, 900 A.2d 877, 881-882 (Pa.Super. 2006) (quoting Com-

monwealth v. Love, 896 A.2d 1276, 1283 (Pa.Super. 2006)). However, if the evidence "is in con-

tradiction to the physical facts, in contravention to human experience and the laws of nature, then

the evidence is insufficient as a matter of law." Commonwealth               v.   Heater, 899 A.2d 1126, 1131

(Pa.Super.2006) (quoting Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000)).

        To sustain a conviction for third-degree murder, the Commonwealth need only prove that

the defendant killed another person with malice aforethought, that the defendant recklessly, know-

ingly or intentionally caused the victim's death. "This Court has long held that malice compre-

hends not only a particular ill -will, but ... [also al wickedness of disposition, hardness of heart,

recklessness of consequences, and a mind regardless of social duty, although a particular person

may not be intended to be injured." Commonwealth          v.   Fisher, 622 Pa. 366, 375, 80 A.3d 1186,

1191 (2013) (citing Commonwealth       v.    Santos, 583 Pa. 96, 876 A.2d 360, 363 (2005); Common-

wealth v. Drum, 58 Pa. 9, 15 (1868)). Third degree murder "is an intentional act, characterized by

malice, that results in death, intended or not." Commonwealth          v.   Fisher, supra, 622 Pa. at 376, 80




                                                    6
A.3d at 1191. Furthermore, the fact -finder may infer malice by considering the totality of the

circumstances. Commonwealth         v.   Thomas, 440 Pa.Super, 564, 656 A.2d 514, 516 (1995).


       In order to sustain a conviction for criminal conspiracy, the prosecution must establish that

the defendant entered into an agreement to commit or aid in an unlawful act with another person(s)

with the shared criminal intent and an overt act was done in furtherance of the conspiracy. Com-

monwealth   v.   Fisher, supra (quoting Commonwealth        v.   Rios, 546 Pa. 271, 684 A.2d 1025, 1030

(1996)). The agreement necessary for a conspiracy need not be stated in words, it may be unspo-

ken, but acknowledged. Therefore, a conspiracy conviction will be sustained if the Common-

wealth established that the defendant entered into an agreement to commit or aid in an unlawful

act with another person with a shared criminal intent and an overt act was done in furtherance of

the conspiracy. Commonwealth        v.   Lambert, 795 A.2d 1010, 1016 (Pa.Super.2002), app. denied,

569 Pa. 701, 805 A.2d 521 (2002) (citing Commonwealth              v.    Rios, 546 Pa. 271, 684 A.2d 1025,

1030 (1996)). "The essence of a criminal conspiracy is the common understanding that a particular

criminal objective is to be accomplished." Commonwealth             v.   Lambert, supra, 795 A.2d at 1016

(citing Commonwealth     v.   Keefer, 338 Pa.Super. 184, 487 A.2d 915, 918 (1985)). "Mere associa-

tion with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insuffi-

cient." Id. Rather, the Commonwealth must prove that the defendant shared the criminal intent;

that he was "an active participant in the criminal enterprise and that he had knowledge of the

conspiratorial agreement." Commonwealth          v.   Lambert, supra, 795 A.2d at 1016 (quoting Com-

monwealth   v.   Hennigan, 753 A.2d 245, 253 (Pa.Super.2000)). The defendant himself does not

need to commit the overt act, rather the overt act could be committed by a co-conspirator. Com-

monwealth v. Lambert; supra, 795 A.2d at 1016 (citing Commonwealth               v.   Johnson, 719 A.2d 778,

784 (Pa.Super.1998) (en Banc), app. denied, 559 Pa. 689, 739 A.2d 1056 (1999)).



                                                       7
          Circumstantial evidence is almost always used to prove a conspiracy. Commonwealth                v.


Lambert, supra, 795 A.2d at 1016 (citing Commonwealth                v.   Swerdlow, 431 Pa.Super. 453, 636

A.2d 1173, 1176 (1994)). "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.   Lambert, supra, 795 A.2d at 1016 (quoting Commonwealth

v.   Johnson, supra, 719 A.2d at 785). "The evidence must, however, 'rise above mere suspicion or

possibility of guilty collusion.'" Lambert, supra, 795 A.2d at 1016 (quoting Commonwealth                  v.


Swerdlow, 636 A.2d at 1177). The Pennsylvania Superior Court has identified factors to be con-

sidered when examining a conspiracy charge as follows:

                             Among the circumstances which are relevant, but not suffi-
                     cient by themselves, to prove a corrupt confederation are: (1) an as-
                     sociation between alleged conspirators; (2) knowledge of the com-
                     mission of the crime; (3) presence at the scene of the crime; and (4)
                     in some situations, participation in the object of the conspiracy. The
                     presence of such circumstances may furnish a web of evidence link-
                     ing an accused to an alleged conspiracy beyond a reasonable doubt
                     when viewed in conjunction with each other and in the context in
                     which they occurred.

         Commonwealth v. Lambert; supra, 795 A.2d at 1016 (quoting Commonwealth                v.   Olds, 322

Pa.Super. 442, 469 A.2d 1072, 1075 (1983)) (internal citations omitted).

         If there is evidence of the presence of a conspiracy to commit a crime, conspirators are

liable for acts of their co-conspirators committed in the furtherance of the conspiracy. Common-

wealth   v.   Lambert, supra, 795 A.2d at 1016 (citing Commonwealth v. Stocker, 424 Pa.Super. 189,

622 A.2d 333, 342 (1993)). Even if a conspirator did not act as a principal in committing the

underlying crime, he will still be criminally liable for the actions of the co-conspirators taken in

furtherance of the conspiracy. Commonwealth            v.   Lambert, supra, 795 A.2d at 1016 (citing Com-

monwealth      v.   Soto, 693 A.2d 226, 2929-230 (Pa.Super.1997), app. denied, 550 Pa. 704, 705 A.2d




                                                        8
  1308 (1997)). The general rule of law relating to the culpability of conspirators to commit a crime

 is that each individual member     of the conspiracy is criminally responsible for the acts of his co-

 conspirators committed in furtherance of the conspiracy. The co-conspirator rule assigns legal

 culpability equally to all members of the conspiracy and all co-conspirators are responsible for

 actions undertaken in furtherance of the conspiracy regardless of their individual knowledge of

 such actions and regardless of which member of the conspiracy undertook the action. Common-

 wealth v. Lambert, supra, 795 A.2d at 1016-1017 {quoting Commonwealth           v.   Galindes, 786 A.2d

 1004, 1011 (Pa.Super.2001)). "The premise of the rule is that the conspirators have formed to-

 gether for an unlawful purpose, and thus, they share the intent to commit any acts undertaken in

 order to achieve that purpose, regardless of whether they actually intended any distinct act under-

 taken in furtherance of the object of the conspiracy. It is the existence of shared criminal intent

that is the sine qua non of a conspiracy."' Commonwealth        v.   Lambert, supra, 795 A.2d at 1017

(citing Commonwealth     v.   Wayne, 553 Pa. 614, 720 A.2d 456, 463-464 (Pa. 1998), cert. denied,

528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 (1999)).


        It is clear that a conspiracy existed in the current case from the relationship between the

co-conspirators, the acts of both individuals in the coordinated attack on the decedent as well as

the circumstances surrounding the incident, and that conclusion was beyond a reasonable doubt.

This defendant was talking on his phone with someone while in Hoagie City. After the confron-

tation, this defendant waited outside the eatery for the decedent to come out. Another confronta-

tion occurred outside of the shop, but then, Torres followed the decedent two blocks and only

moved in to attack Velazquez when he got to Lehigh and Fairhill Streets, where Mr. Walker was

already situated. Torres and Walker then committed a coordinated attack upon Velazquez, Walker




                                                  9
 hitting him with the barricade while the defendant was punching and kicking the decedent. Addi-

 tionally, the officer who detained the defendant testified that this defendant called his co-conspira-

 tor   - Timothy Walker   after the killing of the decedent and told Walker to come back and take

responsibility for the assault. It was crystal clear that this defendant and Timothy Walker con-

spired to attack Mr. Velazquez and as such there was more than sufficient evidence upon which to

find this defendant guilty of both murder of the third degree and criminal conspiracy. Both men

agreed to engage in the intentional, malicious attack upon Velazquez, without regard to the conse-

quences of that attack. As their actions resulted in Velazquez's death, the convictions for both

third degree murder and conspiracy were appropriate. Accordingly, this claim of the appellant

must fail.

                                        Weight of the Evidence

          A claim that the verdict was contrary to the weight of the evidence concedes that there is

sufficient evidence to sustain the verdict. Commonwealth      v.    Widmer, 560 Pa. 308, 744 A.2d 745

(2000). "[T]he weight of the evidence is exclusively for the finder of fact who is free to believe

all, part, or none of the evidence and to determine the credibility of the witnesses." Commonwealth

v.   Marks, 704 A.2d 1095, 1098 (Pa. Super. 1997) (citing Commonwealth           v.   Simmons, 541 Pa. 211,

229, 662 A.2d 621, 630 (1995)). A defendant's request for a new trial based on the argument that

the verdict was against the weight of the evidence will only be granted when the verdict is so

contrary to the evidence as to make the award of a new trial imperative. Commonwealth             v.   Mason,

559 Pa. 500, 513, 741 A.2d 708, 715 (1999); Commonwealth           v.   Auker, 545 Pa. 521, 541, 681 A.2d

1305, 1316 (1996).


         Addressing the defendant's weight of the evidence argument, it must be noted that "An

allegation that the verdict is against the weight of the evidence is addressed to the discretion of the



                                                  10
 trial court" Commonwealth        v.   Rossetti, 863 A.2d 1185, 1191 (Pa.Super.2004) (quoting Common-

 wealth    v.   Widmer, 560 Pa. 308, 744 A.2d 745, 751-752 (2000)). The Pennsylvania Supreme Court

 has explained that appellate review of a weight of the evidence claim is a review of the exercise of

 discretion, not a review of the underlying question of whether the verdict is against the weight of

 the evidence. Id. "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."

 Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa.Super.2005) (quoting Commonwealth                    v.   Sul-

 livan, 820 A.2d 795, 805-806 (Pa.Super.2003), app. denied, 574 Pa. 773, 833 A.2d 143 (2003)

 (emphasis omitted). A new trial should be awarded when the trial court believes the verdict was

against the weight of the evidence and resulted in a miscarriage ofjustice. Commonwealth v. Lloyd,

 878 A.2d 867, 872 (Pa.Super.2005) (citing Thompson          v.   City   of Philadelphia, 507 Pa. 592, 598,

493 A.2d 669, 672 (Pa 1985)). "Although a new trial should not be granted because of a mere

conflict in testimony or because the trial judge on the same facts would have arrived at a different

conclusion, a new trial should be awarded when the jury's verdict is so contrary to the evidence as

to shock one's sense of justice and the award of a new trial is imperative so that right may be given

another opportunity to prevail." Id. (emphasis omitted). Stated another way, "the evidence must

be so tenuous, vague and uncertain that the verdict shocks the conscience           of the court" Common-

wealth    v.    Dupre, supra, 866 A.2d at 1102 (quoting Commonwealth v. Sullivan, supra, 820 A.2d at

805-806). "The question the trial court must answer, in the sound exercise of its discretion, is

whether 'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore

them or to give them equal weight with all the facts is to deny justice'" Id. (citing Commonwealth

v.   Widmer, supra, 744 A.2d at 752). Because the trial judge heard and saw the evidence presented,




                                                      11
  an appellate court will give the gravest consideration to the findings and reasons advanced by the

  trial court concerning a weight of the evidence determination. Commonwealth           v.   Dupre, supra,

  866 A.2d at 1102 (citing Commonwealth        v.   Widmer, supra, 744 A.2d at 753). "A trial court's

 exercise of discretion in finding that a verdict is or is not against the weight of the evidence is 'one

 of the least assailable reasons for granting or denying a new trial.'" Commonwealth             v.   Dupre,

 supra, 866 A.2d at 1102 {citing Commonwealth            v.   Sullivan, supra, 820 A.2d at 806; Common-

 wealth   v.   Widmer, supra, 744 A.2d at 753). When the weight of the evidence challenge is predi-

 cated on the credibility of testimony presented at trial, appellate review of the trial court's decision

 is extremely limited. Commonwealth v. Rossetti, supra, 863 A.2d at 1191 (quoting Commonwealth

 v.   Hunter, 381 Pa.Super. 606, 554 A.2d 550, 555 (1989)). "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." Id

          This court applied the appropriate standards when reviewing Defendant's claim that the

verdict was against the weight of the evidence. Having reviewed the entire record, including a

thorough reading of the trial transcripts and admitted exhibits, this court concludes that the verdict

was not so contrary to the evidence as to shock one's sense of justice. The evidence was not so

tenuous, vague and uncertain that the verdict shocks the conscience of the court. To the contrary,

the evidence in this case was compelling and substantial, and strongly supported the verdict. The

vast majority of the incident was caught on surveillance video, including the entirety of the fatal

attack at Fairhill and Lehigh Streets. Accordingly, this claim of the defendant is without merit.




                                                    12
                                                   Excessive Sentence

         Defendant asserts that his sentence was 'manifestly excessive, above the guidelines and the

consecutive/aggregate sentence failed to take into consideration necessary sentencing factors in-

cluding mitigation including but not limited to the Defendant's role in the offense, the pre-sentence

investigation report, the Pennsylvania Sentencing Guidelines, the Defendant's background and

remorse, his family support and the sentence of his co-defendant.' (Defendant's Statement of

Matters Complained of on Appeal, p. 5). The law is clear that mere assertions of excessiveness do

not raise a substantial question for review. Commonwealth               v.   Zeigler, 112 A.3d 656 (Pa.Super.

2015); Commonwealth       v.   Dodge, 77 A.2d 1263, 1269-1270 (Pa.Super. 2013); Commonwealth                 v.


Koehler, 558 Pa.    334, 737    A.2d 225 (1999); Commonwealth           v.   Ahmed, 961 A.2d 884 (Pa.Super.

2008); Commonwealth       v.   Moury, 992   A.2d   162, 171-172      (Pa.Super. 2010). Although a determi-

nation of what constitutes a substantial question must be evaluated on a case -by -ease basis, a sub-

stantial question exists only when the defendant advances a colorable argument that the sentence

was inconsistent with a specific provision of the sentencing code or contrary to the fundamental

norms which underlie the sentencing process. Commonwealth                    v.   Caldwell, 117 A.3d 763,   768


(Pa.Super. 2015).

         Addressing the issue on the merits, it is well -settled that "[sjentencing is a matter vested in

the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent

a   manifest abuse of discretion." Commonwealth            v.   Johnson, 446 Pa.Super. 192, 197, 666 A.2d

690, 693 (1995) (quoting Commonwealth v. Dotter, 403 Pa.Super. 507, 516, 589 A.2d 726 (1991)).

"To be a manifest abuse of discretion, a sentence must either exceed the statutory limits or be

manifestly excessive. The discretion of a trial judge must be accorded great weight because he is

in the best position to weigh such factors as the nature of the crime, the defendant's character, and




                                                      13
the defendant's displays of remorse, defiance, or indifference." Commonwealth      v.    Minnott, 395

Pa.Super. 552, 554, 577 A.2d 928, 929 (1990). "Our Supreme Court has held that where a pre -

sentence report exists, we shall 'presume that the sentencing judge was aware of the relevant in-

formation regarding the defendant's character and weighed those considerations along with the

mitigating statutory factors.'" Commonwealth v. McKiel, 427 Pa.Super. 561, 565, 629 A.2d 1012,

 1013-14 (1993) (quoting Commonwealth v. Devers , 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988)).

"Having been fully informed by the presentence report, the sentencing court's discretion should

not be disturbed." Id.

        The undersigned reviewed the pre-sentence reports on the defendant, along with all of the

evidence presented, and considered numerous factors, such as the nature of the crime, the defend-

ant's background, the likelihood of rehabilitation and the need for the public to be protected from

this behavior by the defendant again. The sentence imposed on appellant took into account all of

those considerations. See Commonwealth      v.   Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002);

Commonwealth     v.   Burkholder, 719 A.2d 346, 350 (Pa.Super. 1998). After reviewing the pre -

sentence investigation reports, this court sentenced the defendant to an aggregate sentence of

twenty to forty years' incarceration with both the murder and conspiracy sentences running con-

currently. Torres produced no evidence that the sentence imposed was either inconsistent with a

specific provision of the sentencing code or contrary to the fundamental norms which underlie the

sentencing process and as such, there is no substantial question. Commonwealth      v.   Sierra, 752

A.2d 910, 912 (Pa.Super. 2000). This court examined the defendant's background, character and

rehabilitative needs, and the pre -sentence investigation report detailed the relevant information

regarding these factors, all of which was considered.

       A look at Torres' past criminal conduct is clearly in order. As a juvenile, the defendant



                                                  14
 had two juvenile adjudications. As an adult, Mr. Torres has seven arrests with five convictions

 and at the time of this murder, he was on probation for simple assault and enrolled in anger man-

 agement classes as a condition of that probation. The defendant's prior record score was a four,

 making the guideline minimum range sentence for both the third degree murder and the conspiracy

 one hundred sixty-eight to two hundred and forty months, plus or minus twelve months. Mr.

 Torres was sentenced within the guideline range.

        As noted earlier, the sentencing court will only be reversed upon a showing of manifest

 abuse of that discretion. Commonwealth     v.   Reyes -Rodriguez, 111 A.3d 775, 784-85 (Pa.Super.

2015); Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014). An abuse of discretion in

sentencing "is not shown merely by an error in judgment. Rather, the appellant must establish, by

reference to the record, that the sentencing court ignored or misapplied the law, exercised its judg-

ment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision." Commonwealth v. Raven, supra at 1253 (quoting Commonwealth v. Shugars, 895 A.2d

1270, 1275 (Pa.Super. 2006)). The court reviewed the presentence investigation report, considered

all of the testimony and arguments of counsel and imposed a sentence within the applicable guide-

line range and as such the defendant's claim is without merit.

       Accordingly, the judgment of sentence of this court should be affirmed.

                                                       BY THE COURT:



Date: August 9, 2019




                                                  15
   IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA                                    :         CRIMINAL TRIAL DIVISION



                     Vs.                                                  1759 EDA 2019



            CARLOS TORRES                                                 CP-51-CR-0003340-2017

                                                    Proof of Service


        I hereby certify that I am on this day serving the foregoing Court's Opinion upon the per-
son(s), and in the manner indicated below, which service satisfies the requirements of
Pa.R.Crim.P. 114:

Defense Attorney:                    Michael N. Huff, Esquire
                                     1333 Race Street
                                     Philadelphia, PA 19107


Type of Service:           ( )   Personal (X) First Class Mail      ( )   Interoffice   ( )   Other, please specify


District Attorney:                  Lawrence Jonathan Goode, Esquire
                                    Chief Appeals Division
                                    District Attorney's Office
                                    3 South Penn Square
                                    Philadelphia, PA 19107-3499

Type of Service:           ( )   Personal   ( )   First Class Mail (X) Interoffice (      )   Other, please specify




Date: August 12, 2019
                                                               Allison M. O'Keefe, Law Clerk




                                                          16
