J-S15041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JUAN S. BORBON

                            Appellant                No. 520 MDA 2014


           Appeal from the Judgment of Sentence October 21, 2013
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0001530-2012


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED MARCH 11, 2015

       Appellant Juan S. Borbon appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas. We affirm.

       The trial court summarized the facts as follows:

          On the afternoon of February [9], 2012,[1] a group of
          teenagers and young adults, some of whom were students
          at G.A.R. high school, gathered in the vicinity of that
          school in Wilkes-Barre for a gang-type fight. Ostensibly,
          one group consisted of African-Americans while the other
          group was Latino.     At some point during the melee,
          [Appellant] struck the juvenile victim in this case in the
          wrist with a machete nearly severing it. The victim
          appeared to do no more than attempt to help a young
          male student - who was being stomped on by others - up
          from the ground.
____________________________________________


1
  The trial court opinion states the incident occurred on February 12, 2012.
The testimony and evidence, however, establish the incident occurred on
February 9, 2012.
J-S15041-15



Opinion, 8/14/2014, at 1.

     John Stahl, a school van bus driver, testified that he observed

Appellant in the area shortly before the incident. N.T, 9/10/2013, at 32-34.

He heard Appellant ask “[d]o you have it with you?” and heard the reply

“[i]t’s in the bag. We have to wait until the cops leave.”    Id. at 35. Mr.

Stahl did not witness the fight, see any weapons, or know who replied to

Appellant’s question.   Id.   Ibrahim Sharif testified he saw the juvenile co-

defendant, Y.A., at the scene. Id. at 135-36. Y.A. was carrying a grey book

bag with a black machete handle protruding from it. Id.       Sharif stated he

saw Appellant grab the machete and swing it at a boy who was being

“stomped on,” and the victim put his hand in the way. Id. at 140-42.

     Further, the victim stated Appellant struck the victim’s left wrist with

the machete when the victim reached his right hand down to assist an

African American youth who was being beaten by three Latino youths. N.T.,

9/10/2013, at 163-66. Y.A. also identified Appellant as the individual with

the machete. N.T., 9/10/2013, at 52-54.

     Appellant testified that he and Y.A. met days prior to the incident. At

that time, Y.A. had a machete and informed Appellant that he was having

“some problems with some people.” N.T., 9/10/2013, at 228.

     On September 11, 2013, a jury found Appellant guilty of aggravated

assault (causes serious bodily injury to another intentionally, knowingly or




                                      -2-
J-S15041-15



recklessly under circumstances manifesting extreme indifference to the

value of human life),2 simple assault (intentionally, knowingly or recklessly

causes bodily injury to another),3 aggravated assault (intentionally or

knowingly causes bodily injury to another with a deadly weapon), 4 simple

assault (negligently causes bodily injury to another with a deadly weapon),5

criminal conspiracy (conspiring to commit aggravated assault, 18 Pa.C.S. §

2702(a)(1)),6     recklessly        endangering   another   person,7    and     criminal

conspiracy    (conspiring      to    commit    aggravated   assault,   18   §   Pa.C.S.

2702(a)(4)).

        On October 17, 2013, the Commonwealth filed a notice to seek the

deadly weapon enhancement.                On October 21, 2013, the trial court

sentenced Appellant to an aggregate term of eight to sixteen years’

imprisonment. On October 31, 2013, Appellant filed post-sentence motions,

which were denied by operation of law on February 28, 2014.                        See

Pa.R.Crim.P. 720(A)(3)(a) (“Except as provided in paragraph (B)(3)(b), the
____________________________________________


2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 2701(a)(1).
4
    18 Pa.C.S. § 2702(a)(4).
5
    18 Pa.C.S. § 2701(A)(2).
6
    18 Pa.C.S. § 903(a)(1).
7
    18 Pa.C.S. § 2705.




                                           -3-
J-S15041-15



judge shall decide the post-sentence motion, including any supplemental

motion, within 120 days of the filing of the motion. If the judge fails to

decide the motion within 120 days, or to grant an extension as provided in

paragraph (B)(3)(b), the motion shall be deemed denied by operation of

law.”). On March 17, 2014, Appellant filed a timely notice of appeal. Both

Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

     Appellant raises the following issues on appeal:

        1. Whether the evidence was insufficient to sustain the
        verdict as to the conspiracy charge, particularly in light of
        the fact that there was no clear evidence of a conspiracy or
        any agreement by [Appellant] with other parties?

        2. Whether the verdict was against the weight of the
        evidence where [Appellant] produced alibi witnesses who
        credibly testified that he was not present at the location of
        this crime and that the result was therefore shocking to a
        sense of justice?

        3. Whether the Court erred in instructing the jury as to
        flight, when there was no evidence that [Appellant]
        personally knew charges were pending or were likely to be
        filed when he left the area for New Jersey? [Appellant]
        contends that a flight instruction is only appropriate where
        the Commonwealth introduces evidence to show that
        [Appellant] personally knew or should have known that he
        was wanted by the police.

Appellant’s Brief at 4-5. Although Appellant raised the above three issues in

his 1925(b) statement and his statement of questions presented, his brief

concedes that the verdict was not against the weight of the evidence and

concedes trial counsel waived any challenge to the jury instruction because



                                    -4-
J-S15041-15



he did not object. Appellant’s Brief at 8, 12-15. Accordingly, the sole issue

for our review is whether the Commonwealth presented sufficient evidence

to support the conspiracy conviction.

      We apply the following standard when reviewing a sufficiency of the

evidence claim: “[W]hether 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.”      Commonwealth v. Lehman, 820 A.2d 766, 772

(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth

v. DiStefano, 782 A.2d 574 (Pa.Super.2001)).            When we apply this

standard, “we may not weigh the evidence and substitute our judgment for

the fact-finder.” Id.

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”     Lehman, 820 A.2d at

772. Moreover, “[a]ny 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.” Id. “The Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Id.

      In applying the above test, we must evaluate the entire record and we

must consider all evidence actually received. DiStefano, 782 A.2d at 582.

Further, “the trier of fact while passing upon the credibility of witnesses and

                                     -5-
J-S15041-15



the weight of the evidence produced, is free to believe all, part or none of

the evidence.” Id.

     To establish criminal conspiracy, the Commonwealth must establish

“(1) an intent to commit or aid in an unlawful act, (2) an agreement with a

co-conspirator and (3) an overt act in furtherance of the conspiracy.”

Commonwealth v. Thomas, 65 A.2d 939, 944 (Pa.Super.2013) (quoting

Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa.Super.2001)). The

Commonwealth may prove an agreement by circumstantial evidence.           Id.

(citing Galindes, 786 A.2d at 1010). Circumstantial evidence:

        [C]an include, but is not limited to, the relationship
        between the parties, the knowledge of and participation in
        the crime, and the circumstances and conduct of the
        parties surrounding the criminal episode. These factors
        may coalesce to establish a conspiratorial agreement
        beyond a reasonable doubt where one factor alone might
        fail.

Id. (internal citations and quotation marks omitted).

     Sufficient evidence supported the jury verdict. Appellant testified he

met with Y.A. only days before the assault and learned Y.A. had a machete

and had problems with some individuals.      On the day of the incident, Mr.

Stahl heard Appellant inquire: “[d]o you have it with you?” and heard the

reply: “It’s in the bag. We have to wait until the cops leave.” Mr Sharif saw

Y.A. carrying a bag with a machete handle protruding from it and saw

Appellant grab the machete, swing it toward the individual on the ground,

and strike the victim.   This evidence is sufficient to allow the jury to find



                                     -6-
J-S15041-15



beyond a reasonable doubt that Appellant and Y.A. had an intent to commit

or aid in an aggravated assault, had an agreement to commit an aggravated

assault, and committed an overt act in furtherance of the aggravated

assault.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




                                  -7-
