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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    REGINALD CARR,                             :
                                               :
                       Appellant.              :   No. 281 EDA 2018


             Appeal from the Judgment of Sentence, April 27, 2015,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0011216-2012.


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                             FILED APRIL 17, 2019

        Reginald Carr appeals from his judgment of sentence imposed after a

jury found him guilty of second-degree murder, robbery, and conspiracy to

commit robbery.1 Upon review, we affirm.

        We briefly note the circumstances surrounding Carr’s convictions. On

the night in question, Carr and his co-defendant, Omar Roane, approached

Kyree Young and Tyreese Gibson, on bicycles seeking drugs from Young. After

a brief discussion, Young was shot and killed.         Gibson was also shot, but

survived. Carr was arrested and charged with the offenses mentioned.

        After the jury’s guilty verdict, Carr was sentenced to thirty (30) to sixty

(60) years of imprisonment for the second-degree murder conviction and ten


____________________________________________


1   18 Pa.C.S.A. § 2502(b), 18 Pa.C.S.A. § 3701, and 18 Pa.C.S.A. § 903.
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(10) to twenty (20) years of imprisonment for the conspiracy conviction to run

concurrently. The robbery conviction merged for purposes of sentencing.

      Carr did not file a post-sentence motion, but filed an appeal to this

Court, which we dismissed for Carr’s failure to file a brief. Carr filed a PCRA

petition, and his direct appeal rights were reinstated. Carr then filed a timely

notice of appeal. Both Carr and the trial court complied with Pa.R.A.P. 1925.

      Carr raises two issues on appeal:

      I.    Is Carr entitled to an arrest of judgment where the
            Commonwealth did not prove its case beyond a reasonable
            doubt and where there was insufficient evidence to sustain
            the verdict?

      II.   Is Carr entitled to a new trial as the greater weight of the
            evidence does not support the verdict?

See Carr’s Brief at 3.

      Carr first contends that the evidence was insufficient to sustain his

convictions of second-degree murder, robbery, and criminal conspiracy.

Consequently, Carr claims he is entitled to an arrest of judgment. Carr’s Brief

at 12. We disagree.

      Initially, we note our standard of review:

      In reviewing a sufficiency of the evidence claim we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.




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Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted). “Because evidentiary sufficiency is a question of law, our standard

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

Diamond, 83 A.3d 119, 126 (Pa. 2013). With these principles in mind, we

address Carr’s sufficiency claim.

       Carr concedes that the Commonwealth established the elements of the

crimes at issue.2 However, he claims the Commonwealth failed to show that

he was the perpetrator, in particular, the shooter.      Carr’s Brief at 12.   In

support of this claim, Carr first argues that Gibson did not testify that he saw

Carr actually shoot a gun. Second, he argues Roane’s testimony identifying

Carr as the shooter was unreliable. Carr’s Brief at 13. Both arguments fail.

       Regarding Carr’s first argument, initially, we point out that the

Commonwealth was not required to prove that Carr was the shooter for the

evidence to support his conviction of second-degree murder. As argued by

the Commonwealth, it was sufficient merely to show that Carr participated in

the robbery and that Young died.                 See 18 Pa.C.S.A. § 2502(b);

Commonwealth v. Waters, 345 A.2d 613, 616 (Pa. 1975). Additionally,

Carr was found to be a co-conspirator in the robbery. Consequently, even if

Carr was not the one who actually shot Young, he is still criminally liable for

the actions of his co-conspirator in furtherance of the conspiracy. See, id.;

Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super. 2006).
____________________________________________


2 Because Carr concedes that the Commonwealth satisfied the elements of
the offenses at issue, it is not necessary that we set them out here.

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      Nevertheless, contrary to Carr’s contention, our review of the record

reveals that Gibson did identify Carr as the shooter.             Moreover, the

Commonwealth      presented     other     evidence   consistent   with   Gibson’s

identification of Carr as the shooter.

      Gibson testified that he was briefly standing with Young the evening of

the incident when two males riding bikes approached Young.           They asked

Young if he had any weed, to which Young said he only had pills. Gibson

started walking away when he heard someone say “don’t move” and then

heard gunshots.    He started running, but looked back and saw one of the

males holding a gun. Gibson was shot in the shoulder.

      After the incident, Gibson gave a detailed description of Carr and Roane

to the police. He also identified Carr in a photo array. Contrary to Carr’s

claim, Gibson specifically identified Carr at trial as the one who did the

shooting. N.T., 2/4/14, at 110-125.

      Roane, Carr’s co-defendant, also identified Carr as the shooter.        He

explained that on the evening in question, he and Carr agreed to rob Young

and sought him out. After they asked Young for weed, Roane rode up the

street on his bike to look out for police. At that point, Carr pulled out a gun.

He then heard Carr say “don’t move”, and then heard gunshots as he was

returning to see if Carr was okay. Moreover, he described what Carr wore

that evening which was consistent with other witnesses’ descriptions of what

they had observed.




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      Additionally,   the   Commonwealth    presented   additional   significant

evidence which corroborated that Carr was the shooter.        A neighborhood

resident testified that, after hearing gunshots, she saw a black male matching

Carr’s description running down the street with a gun in his hand. Another

neighbor testified that he heard gunshots. About an hour after, he saw Carr.

Carr told him it was “hot” meaning there were a lot of cops around.        The

neighbor asked why. Carr told him he and “O”, being Roane, attempted to

rob a guy, but he ran and “they” fired shots at him.

      In his second argument, Carr claims that Roane’s testimony was

unreliable, and therefore, the evidence was insufficient to prove that he was

the shooter.   As the Commonwealth argues, Carr’s challenge to Roane’s

reliability is improper under a sufficiency claim. Commonwealth Brief at 11.

A credibility argument cannot be properly considered in reviewing a sufficiency

claim; rather credibility goes to the weight of the evidence, which is to be

resolved by the trier of fact. See Commonwealth v. Gibbs, 981 A.2d 274,

281-82 (Pa. Super. 2009).

      Based upon the foregoing, we conclude that the evidence, as well as all

reasonable inferences drawn therefrom viewed in the light most favorable to

the Commonwealth as the verdict winner, was sufficient to sustain Carr’s

convictions.

      Next, we address Carr’s weight claim. Initially, we note that a claim

that the verdict is against the weight of the evidence must be raised with the

trial judge in a motion for a new trial by one of the following methods: 1)

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orally, on the record, at any time before sentencing; 2) by written motion at

any time before sentencing; or 3) in a post-sentence motion. Pa.R.Crim.P.

607. Failure to do so results in waiver. Commonwealth v. Bryant, 57 A.3d

191, 196 (Pa. Super. 2012). Carr did not raise his weight claim with the trial

court prior to sentencing or in a post-sentence motion.        See Trial Court

Opinion, 5/3/18, at 11. Accordingly, Carr waived this issue.

      Judgment of sentence affirmed.

      P.J.E. Ford Elliott joins this Memorandum.

      P.J.E. Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/19




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