J-S33040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

WILLEY ORTIZ

                            Appellant                   No. 2518 EDA 2014


              Appeal from the Judgment of Sentence April 4, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010986-2010


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 07, 2015

        Willey Ortiz appeals from his judgment of sentence imposed in the

Court of Common Pleas of Philadelphia County after a jury found him guilty

of third degree murder.1 Upon careful review, we affirm.

        The trial court has set forth the facts of this matter as follows:

        In 2009, continuing into early 2012, [Ortiz] was a drug dealer
        near the corner of Waterloo Street and Gurney Street in
        Philadelphia. [Ortiz] was an associate of Jose Mena. In early
        2009, Kenneth Rolon worked for [Ortiz] and Mena, selling drugs
        on the street. While working with [Ortiz] and Mena, Rolon was
        arrested for drug distribution and spent several months in jail
        without bail being posted. Upon Rolon’s release, Rolon began
        working for a different drug dealer, Jonathan Morales. At this
        time, Angel Feliciano was also working for [Ortiz]. Early in
        January 2010, Rolon and Feliciano became embroiled in a


____________________________________________


1
    18 Pa.C.S. § 2502(c).
J-S33040-15


      dispute, whereupon Rolon decided to take “all [the drug selling]
      work” on the corner.

      On January 22, 2010, at approximately 3:45 p.m., [Ortiz] was
      driving his black Chevy Cavalier down Cambria Street with
      Feliciano in the back seat. [Ortiz] spotted Rolon on the corner of
      Cambria Street and Howard Street, near the Sanchez Grocery
      located on that corner, and motioned Rolon to come over to the
      car. Jose Aponte was present with Rolon at this time. When
      Rolon did not go toward the car, [Ortiz] reversed and pulled
      close to Rolon, asking, “You not still mad about that fight, right?”
      Rolon then walked over to the car and leaned in toward [Ortiz].
      At that time, Feliciano, still sitting in the back seat, shot Rolon
      once in the chest with a .25 caliber firearm.           Surveillance
      cameras from Sanchez Grocery captured the shooting on video.
      Virgilio Sanchez witnessed the shooting from across the street.
      After the shooting, [Ortiz] and Feliciano fled the scene in
      [Ortiz]’s car.

      Rolon fled inside Sanchez Grocery, where he collapsed. Police
      and paramedics were called and arrived on the scene shortly
      thereafter, transporting Rolon to Temple Hospital where he was
      pronounced dead. Officers recovered a single .25 caliber fired
      cartridge case on Cambria Street.        [Ortiz]’s vehicle was
      recovered two days later, on January 24, 2010, at [Ortiz]’s
      grandmother’s house on the 3900 block of N. Marshall St. Police
      were unable to locate [Ortiz] for several days following the
      shooting. [Ortiz] was subsequently found on February 22, 2010
      in Woodbury, New Jersey, entering an apartment to flee and
      ultimately hid in a closet in the apartment, where he was
      arrested.

Trial Court Opinion, 11/26/14, at 2-3.

      On February 7, 2014, at the conclusion of a four-day trial, a jury

convicted Ortiz of third degree murder.        On April 4, 2014, the court

sentenced him to 20 to 40 years’ incarceration. Ortiz filed a post-sentence

motion challenging the sufficiency and weight of the evidence supporting his

conviction.   On August 1, 2014, the trial court denied the post-sentence

motion, and on August 28, 2014, Ortiz filed a timely notice of appeal.


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     On appeal, Ortiz challenges the sufficiency of the evidence and the

weight of the evidence.

     With respect to Ortiz’s first claim:

     As a general matter, our standard of review of sufficiency claims
     requires that we evaluate the record in the light most favorable
     to the verdict winner giving the prosecution the benefit of all
     reasonable inferences to be drawn from the evidence. Evidence
     will be deemed sufficient to support the verdict when it
     establishes each material element of the crime charged and the
     commission thereof by the accused, beyond a reasonable doubt.
     Nevertheless, the Commonwealth need not establish guilt to a
     mathematical certainty. Any doubt about the defendant’s guilt is
     to be resolved by the fact finder unless the evidence is so weak
     and inconclusive that, as a matter of law, no probability of fact
     can be drawn from the combined circumstances.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

     With respect to third degree murder, our Supreme Court has stated:

     To convict a defendant of the offense of third degree murder, the
     Commonwealth need only prove that the defendant killed
     another person with malice aforethought. This Court has long
     held that malice comprehends not only a particular ill-will, but . .
     . [also a] wickedness of disposition, hardness of heart,
     recklessness of consequences, and a mind regardless of social
     duty[.]

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (citation and

quotation omitted).

     Ortiz claims the evidence was insufficient to prove beyond a

reasonable doubt that he knew or had reason to know that Feliciano had a

murderous intent or that Ortiz was an accomplice or co-conspirator to the

murder. However, “[a]ccomplice liability does not create a new or separate


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crime; it merely provides a basis of liability for a crime committed by

another person.” Commonwealth v. Gross, 101 A.3d 28, 35 (Pa. 2014).

      Here, the trial court concluded that the Commonwealth presented

sufficient evidence to support Ortiz’s conviction of third degree murder under

accomplice liability theory.     The Commonwealth presented numerous

eyewitnesses who testified that Ortiz drove toward the victim standing on

the corner, called the victim over to the vehicle, reversed to pull the car

closer to the victim, and sped off after a passenger in his car shot the victim.

N.T. Trial, 2/4/14, at 150, 198, 264-65; N.T. Trial, 2/5/14, at 80-82, 95-96.

Ortiz also had a motive for aiding in the murder because he and the shooter

were in a dispute with the victim over drug territory. N.T. Trial, 2/5/14, at

136, 180. Finally, Ortiz fled the scene of the crime and was found a month

later in another state, where he fled from the police before his ultimate

arrest, all of which is compelling evidence to prove guilt. Id. at 210-12; see

Commonwealth v. Thompson, 739 A.2d 1023 (Pa. 1999) (evidence of

flight shows consciousness of guilt). We agree with the trial court that the

evidence, viewed in the light most favorable to the Commonwealth, was

sufficient to sustain the verdict. Lynch, supra.

      Next, Ortiz argues that the weight of the evidence does not support his

guilty verdict for third degree murder and therefore, the trial court abused

its discretion in denying his post-sentence motion for a new trial.

      Our standard of review of a weight of the evidence claim is as follows:




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      Appellate review . . . 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 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055-56 (Pa. 2013) (citations

omitted).

      To determine whether a trial court’s decision constituted a
      palpable abuse of discretion, an appellate court must “examine
      the record and assess the weight of the evidence; not however,
      as the trial judge, to determine whether the preponderance of
      the evidence opposed the verdict, but rather to determine
      whether the court below in so finding plainly exceeded the limits
      of judicial discretion and invaded the exclusive domain of the
      jury.” Where the record adequately supports the trial court, the
      trial court has acted within the limits of its judicial discretion.

Commonwealth v. Brown, 648 A.2d 1177, 1189-90 (Pa. 1994) (quoting

Thompson v. Philadelphia, 493 A.2d 669, 672 (Pa. 1985)).

      Here, in support of his weight of the evidence claim, Ortiz suggests

that some of the witnesses who testified at trial were unreliable because

they “had drug problems, were engaged in the business of selling drugs or

were serving time for drug crimes or other offenses.” Appellant’s Brief, at

28.   However, the factfinder is “free to believe all, part or none of the

evidence and determine the credibility of witnesses.”      Commonwealth v.

Dreibelbis, 426 A.2d 1111, 1113 (Pa. 1981).         In addition, the trial court

found that the evidence presented “fully supported” the verdict. Trial Court


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Opinion, 11/26/14, at 7.     Upon review of the record, we can discern no

abuse of discretion on the part of the trial court in so finding.

      After careful review of the certified record, as well as the briefs of the

parties and the applicable law, we conclude that Ortiz is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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