J-S32040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARVIN L. FLAMER,

                            Appellant                No. 2681 EDA 2014


             Appeal from the Judgment of Sentence March 14, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0007716-2009


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED May 11, 2016

        Appellant, Marvin L. Flamer, appeals from the judgment of sentence

imposed following his jury conviction of one count each of first-degree

murder and criminal conspiracy to commit murder.1 We affirm.

        This case arises from the fourteen-bullet shooting of Allen Moment, Jr.

on a Philadelphia street in an ambush carried out by his extended family

members; Moment died from his injuries approximately two-and-a-half

years later. The trial court summarized the factual background as follows:

             In early January, 2006, Allen Moment, Jr. was acting as
        peacemaker between two feuding groups of people in the area of
        22nd Street and Pierce Street in Philadelphia, Pennsylvania.
        Moment was the cousin of both [Appellant] and co-defendant
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a) and 903(a)(1), respectively.
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     Nafeast Flamer, who was [Appellant’s] nephew. During the
     ongoing feud, Moment arranged to meet with Nafeast Flamer
     and Hakim Bond in order to return a firearm that Moment had
     taken from Nafeast Flamer. Abdul Taylor encountered Nafeast
     Flamer and Bond as they waited for Moment. Shortly after
     Moment failed to arrive at the meeting, Nafeast Flamer, Bond,
     and Taylor were fired upon by some unknown assailant. Nafeast
     Flamer believed that Moment had set them up, and told Taylor
     that there had been talk about “getting” Moment since then. On
     January 18, 2006, Taylor encountered a group of people in a lot
     on Ellsworth Street planning to go harm Moment. Nafeast
     Flamer and Bond were among this group.             Taylor saw
     approximately seven guns among the individuals.

           On January 20, 2006, at approximately 8:50 p.m., Moment
     was walking on Pierce Street, near the intersection with 22 nd
     Street, when he was approached by Nafeast Flamer, Bond, and
     two other individuals wearing dark hoodies.       As this group
     approached Moment, a friend of Moment’s, Shareem Nelson,
     called Moment and informed him of the group’s approach.
     Moment responded “I’m cool, they are my peoples.” Once
     Nafeast Flamer and his companions reached Moment, the group
     opened fire on Moment, striking him approximately thirteen to
     fourteen times in the stomach, groin, and thigh areas.

           [Appellant] drove the get-away car for the shooters. When
     Moment tried to run to flee from the shooters, [Appellant] used
     his car to block Moment’s flight.

            Tony Waters, an off duty police officer who lived in the
     area, heard the gunshots and called 911. Police officers and
     paramedics arrived on the scene shortly thereafter and
     transported Moment to the Hospital at the University of
     Pennsylvania. Doctors determined that Moment’s bowel was
     eviscerating out of his abdomen and he was taken to surgery
     immediately. Over the course of the next two and a half years
     in the hospital, Moment was treated by Dr. Carrie Sims and
     suffered kidney failure, an open wound in his abdomen, a
     perforated digestive system, repeated infections, tracheostomy,
     fluid collection around his heart, depression, and a hemorrhagic
     stroke.

           Shortly after the shooting, [Appellant] moved from
     Philadelphia to Charlotte, North Carolina.  While in North

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     Carolina, [Appellant] contacted Taylor by telephone and asked
     him to say on the night Moment was shot, [Appellant] and Taylor
     were together. Taylor refused to provide this false alibi for
     [Appellant].

            In late January, 2008, Dr. Sims called a family meeting in
     Moment’s hospital room and informed Moment that, while he had
     put up a good fight, he was dying and that he would not be
     leaving the hospital. While Moment could not move his body,
     Moment could communicate through head gestures and labored
     talking.     After this meeting, Moment asked, after some
     insistence from his mother, to talk to a detective. On February
     4, 2008, Moment was interviewed by Philadelphia Police
     detectives in the presence of his mother, Patricia Gooding, and
     uncle, Marquet Parsons. In this interview, Moment identified
     Nafeast Flamer and Bond as the individuals who shot him.
     Moment further identified [Appellant] as driving the get-away car
     and stated that [Appellant] used that car to block his flight from
     the shooters. Moment identified all three individuals in a photo
     array. Moment informed Parsons that he did not talk to police
     prior to this interview because he didn’t want to be “called a
     snitch.” On February 14, 2008, Moment provided a videotaped
     interview in his hospital room. Moment eventually succumbed to
     his injuries and died on August 6, 2008.

            Following Moment’s death, Abdul Taylor began cooperating
     with police and gave a statement on August 13, 2008. While
     this matter was pending for trial, Taylor informed his mother
     that he feared being called a snitch and told her that “they goin’
     kill me, they got a hit out on me.”          While incarcerated,
     [Appellant] received visits from Derrick “Heavy” White. White
     killed Taylor as Taylor’s testimony would prevent “Nafeast and
     them” from coming home. On May 7, 2010, White shot Taylor in
     the head, killing him. . . .

(Trial Court Opinion, 11/13/14, at 2-5) (record citations and footnote

omitted).




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        Appellant proceeded to trial with co-defendant Nafeast Flamer,2 and

the jury found him guilty of the above-mentioned offenses on January 23,

2014.     On March 14, 2014, the court imposed an aggregate sentence of

incarceration of life without parole plus not less than twenty nor more than

forty years.    The court denied Appellant’s timely post-sentence motion on

August 18, 2014. This timely appeal followed.3

        Appellant raises two issues for this Court’s review:

              I. Is the [Appellant] entitled to an arrest of judgment on
              the charge of Murder in the First Degree as well as on the
              charge of Criminal Conspiracy to Commit Murder where the
              verdict is not supported by sufficient evidence?

              II. Is the [Appellant] entitled to a new trial on the charge
              of Murder in the First Degree and Criminal Conspiracy to
              Commit Murder where the verdict is not supported by the
              greater weight of the evidence?

(Appellant’s Brief, at 3).

     In his first issue, Appellant challenges the sufficiency of the evidence

supporting his first-degree murder and criminal conspiracy to commit

murder convictions. (See id. at 9-14). Appellant asserts that: he did not

shoot and kill the victim; the record is devoid of proof that he was a co-

conspirator to the murder; and “he was sent to prison for life on a guess.”

____________________________________________


2
    Co-defendant Hakim Bond was tried separately. (See Trial Ct. Op., at 1).
3
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on October 7, 2014. The trial
court entered an opinion on November 13, 2014. See Pa.R.A.P. 1925.



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(Id. at 10; see id. at 9, 14). Appellant avers that, at most, the evidence

merely establishes that he “agreed to drive a vehicle with others in it[]”;

there is no evidence that he agreed with Nafeast Flamer or anyone else to

shoot and kill Moment. (Id. at 12). We disagree.

            The standard we apply in reviewing the sufficiency of the
     evidence is whether viewing all the evidence admitted at trial in
     the light most favorable to the verdict winner, there is sufficient
     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying the above test,
     we may not weigh the evidence and substitute our judgment for
     the fact-finder.     In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.          Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     finder of fact while passing upon the credibility of witnesses and
     the weight of the evidence produced, is free to believe all, part
     or none of the evidence.

Commonwealth v. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015),

appeal denied, 131 A.3d 490 (Pa. 2016) (citations omitted).

     The Pennsylvania Crimes Code defines the offense of first-degree

murder as a criminal homicide that is “committed by an intentional killing.”

18 Pa.C.S.A. § 2502(a). In order for an individual to be convicted of first-

degree murder, “the Commonwealth must prove that a human being was

unlawfully killed, that the defendant perpetrated the killing, and that the

defendant acted with malice and a specific intent to kill.” Commonwealth

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v. Johnson, 107 A.3d 52, 66 (Pa. 2014), cert. denied sub nom. Johnson v.

Pennsylvania, 136 S.Ct. 43 (2015) (citation omitted). “It is well-settled

that specific intent to kill can be established through circumstantial evidence

such as the use of a deadly weapon on a vital part of the victim’s body.” Id.

(citation omitted).

      Section 903 of the Crimes Code sets forth the crime of criminal

conspiracy, in pertinent part, as follows:

      (a) Definition of conspiracy.—A person is guilty of conspiracy
      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[.]

18 Pa.C.S.A. § 903(a)(1).

      “To sustain a conviction for criminal conspiracy, 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. Feliciano, 67 A.3d 19, 25-26 (Pa. Super.

2013) (en banc), appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).

“The conduct of the parties and the circumstances surrounding such conduct

may create a web of evidence linking the accused to the alleged conspiracy

beyond a reasonable doubt.” Id. at 26 (citation omitted).

      The general rule of law pertaining to the culpability of
      conspirators is that each individual member of the conspiracy is


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      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.   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.

Commonwealth v. Lambert, 795 A.2d 1010, 1016-17 (Pa. Super. 2002),

appeal denied, 805 A.2d 521 (Pa. 2002) (citation omitted).

      Here, the trial court determined that Appellant’s sufficiency claim is

meritless, explaining:

             The evidence presented in this case clearly demonstrated
      that [Appellant], together with Nafeast Flamer and Hakim Bond,
      conspired to murder Alan Moment, Jr.          Only days before
      Moment’s shooting, Abdul Taylor witnessed [Appellant’s]
      nephew, Nafeast Flamer, along with Hakim Bond, “plotting to go
      down . . . to harm [Moment]” while possessing several firearms.
      (N.T. Trial, 1/14/14, at 83; see id. at 84; see also N.T. Trial,
      1/15/14, at 221-22). Shareem Nelson, Jeffrey Chandler, Jr., and
      Aisha Williams each testified that they witnessed multiple
      individuals in dark hoodies approach Moment at the corner of
      22nd Street, where they shot Moment multiple times in the
      abdomen, pelvis, and upper thighs. (See N.T. Trial, 1/14/14, at
      113-15; 134-36, 156-57; see also N.T. Trial, 1/15/14, at 178-
      80). Both Aisha Williams and Moment identified Nafeast Flamer
      and Bond as the shooters. (See N.T. Trial, 1/15/14, at 87, 180-
      81).

            [Appellant’s] role in the conspiracy was established by
      compelling evidence. Moment, in his deathbed statement to
      police, identified [Appellant], who was his cousin, as the driver
      of the getaway car. (See N.T. Trial, 1/15/14, at 88). According
      to Moment, [Appellant] also actively participated in the killing,
      using [the] getaway car to prevent Moment from fleeing from
      the shooters. As Moment described it, [Appellant] “tried to trap
      me with the car.” (Id.). Aisha Williams, who knew [Appellant]
      all her life, corroborated Moment’s contention that [Appellant]
      drove the getaway car. She saw [Appellant] sitting behind the
      wheel of his car at the corner near the shooting just before the


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          shooting occurred, saw him drive the car slowly toward Moment,
          and then heard gunshots. (See N.T. Trial, 1/15/14, at 179-80;
          see also N.T. Trial, 1/16/14, at 71-72).

                 In addition, the Commonwealth presented compelling
          evidence to demonstrate [Appellant’s] consciousness of guilt.
          Moment’s father, Alan Moment, Sr., testified that soon after the
          shooting [Appellant] moved from Philadelphia to Charlotte, North
          Carolina. (See N.T. Trial, 1/15/14, at 223). Taylor, in his
          statement to police, stated that [Appellant] called Taylor from
          North Carolina and asked Taylor to provide [Appellant] with an
          alibi by falsely stating that Taylor and [Appellant] were together
          in a studio at the time of the murder, when in fact, Taylor and
          [Appellant] were not together at all that night. (See N.T. Trial,
          1/14/14, at 90).

                                     *    *    *

                [T]he evidence established that [Appellant], Nafeast
          Flamer and Hakim Bond conspired to kill Alan Moment, and that
          pursuant to that conspiracy, Nafeast Flamer and Bond repeatedly
          shot Moment, causing the death. This was done with the aid and
          assistance of [Appellant], who drove the getaway car and
          prevented Moment from fleeing the shooters. . . .

(Trial Ct. Op., at 7-9) (record citation formatting provided).

          After review of the record, viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, see Giordano, supra at

1002, we agree with the trial court’s assessment of Appellant’s sufficiency

claim.      The evidence clearly demonstrates that Appellant conspired with

Nafeast Flamer and Bond to kill Moment, and that he actively participated in

the murder by deliberately using his car to prevent Moment’s escape from

the barrage of bullets.      Accordingly, Appellant’s first issue does not merit

relief.




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       In his second issue, Appellant challenges the weight of the evidence to

support    his   first-degree    murder        and   conspiracy   to   commit   murder

convictions. (See Appellant’s Brief, at 15-16).4 Appellant argues that he is

entitled to a new trial because the greater weight of the evidence does not

establish that he agreed with his co-defendants to murder Moment.                (See

id.). We disagree.

       Our standard of review is as follows:

             The finder of fact is the exclusive judge of the weight of
       the evidence as the fact finder is free to believe all, part, or none
       of the evidence presented and determines the credibility of the
       witnesses.

              As an appellate court, we cannot substitute our judgment
       for that of the finder of fact. Therefore, we will reverse a jury’s
       verdict and grant a new trial only where the verdict is so
       contrary to the evidence as to shock one’s sense of justice. A
       verdict is said to be contrary to the evidence such that it shocks
       one’s sense of justice when the figure of Justice totters on her
       pedestal, or when the jury’s verdict, at the time of its rendition,
       causes the trial judge to lose his breath, temporarily, and causes
       him to almost fall from the bench, then it is truly shocking to the
       judicial conscience.

             Furthermore, where the trial court has ruled on the weight
       claim below, an appellate court’s role is not to consider the
       underlying question of whether the verdict is against the weight
       of the evidence. Rather, appellate review is limited to whether
       the trial court palpably abused its discretion in ruling on the
       weight claim.



____________________________________________


4
   Appellant preserved his challenge to the weight of the evidence by raising
it in a post-sentence motion. See Pa.R.Crim.P. 607(A)(3).



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Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and quotation marks omitted). “[T]he trial court’s denial of a

motion for a new trial based on a weight of the evidence claim is the least

assailable of its rulings.” Commonwealth v. Weathers, 95 A.3d 908, 911

(Pa. Super. 2014), appeal denied, 106 A.3d 726 (Pa. 2015) (citation

omitted). When reviewing a weight claim, this Court carefully considers the

findings of the trial court, because the trial judge had the opportunity to

hear and see the evidence presented. See Commonwealth v. Brown, 48

A.3d 426, 432 (Pa. Super. 2012), appeal denied, 63 A.3d 1243 (Pa. 2013).

      Here, the trial court denied Appellant’s motion for a new trial, finding

that the evidence fully supported the jury’s verdict where it plainly reflected

that Appellant worked in concert with his co-defendants to shoot and kill

Moment. (See Trial Ct. Op., at 8, 10). After review of the record, we agree

with the trial court, and thus cannot conclude that its ruling on Appellant’s

weight claim constituted a palpable abuse of discretion. See Boyd, supra

at 1275.      Therefore, Appellant’s second issue does not merit relief.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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