J-S01029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RAFAEL MORA POLANCO                        :
                                               :
                      Appellant                :   No. 990 MDA 2017

            Appeal from the Judgment of Sentence February 6, 2017
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0002569-2015


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 13, 2018

        Rafael Mora Polanco (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of first degree murder.1 Upon

review, we affirm.

        The trial court detailed the factual and procedural history of this case

as follows:

              At approximately 10:30 p.m. on June 11, 2015,
        residents living on West Fourth Street in Hazelton heard
        several gunshots. Police responded to the location of the
        shots and found the victim lying in a pool of blood in the
        middle of the street. [The victim] had been shot six times
        and he was pronounced dead by an emergency room
        physician at the Lehigh Valley Hazelton Hospital on June
        11, 2015 at 11:00 p.m. An autopsy was performed on
        June 12, 2015 resulting in the cause of death being
____________________________________________


1   18 Pa.C.S.A. § 2502(a).
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     multiple gunshot wounds and the manner of death being
     homicide. The victim had been shot five times in the head
     and once in the back. Video surveillance in the area
     recorded the incident.

           During the investigation, it was determined that both
     [Appellant] and the victim were in an apartment located at
     594 Alter Street in Hazelton immediately prior to the
     shooting.    Several other individuals were also in the
     apartment including Joline Shafer, Paula Shafer, Kristen
     Lanzot and Tammy Grosz.

           Joline Shafer testified that she knew the victim and
     he was like a father figure to her. She also testified that
     she knew [Appellant] for a month prior to the shooting and
     he was her drug dealer. She would normally see him once
     each day.     He arrived at the Alter Street apartment
     between 10:00 p.m. and 10:15 p.m. on [June 11, 2015].
     The victim had been at the apartment most of the day.
     After telling Ms. Shafer that he needed to get the victim
     out of the apartment due to something he had done, and
     putting his hand across his throat, [Appellant] left with the
     victim. Within seconds of leaving the apartment, Ms.
     Shafer heard the victim screaming.

           Testimony of Paula Shafer was also presented by the
     Commonwealth. Paula knew the victim as a friend for six
     months to a year. She also knew [Appellant] for about
     two months and she would see him a few times each
     week. Her testimony indicated that the victim was at the
     apartment all day and [Appellant] arrived around 10:00
     p.m. Shortly after his arrival, [Appellant] began speaking
     with the victim in Spanish. They then left the apartment
     and Paula heard a gunshot and the victim’s voice. She
     looked out a window and saw [Appellant] chasing the
     victim towards Fourth Street. She then heard five more
     shots.

           Kristin Lanzot was also at the apartment on June
     1[1], 2015. She knew the victim as a good friend for
     approximately two years. She also knew [Appellant] for
     the same amount of time. Both [Appellant] and [the]
     victim were at the apartment that evening. After speaking
     with [Appellant] in the kitchen, she went to her room and


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     heard the victim screaming for his life. Kristin looked out
     of a window and saw the victim running through a yard
     with [Appellant] closely behind. As they were crossing the
     corner of Fourth and Alter Streets, she saw [Appellant]
     shoot the victim in the back. She was not sure how many
     total shots she may have heard.

           One additional eye witness testified for the
     Commonwealth. Tammy Grosz was at the Alter Street
     apartment on June 11, 2015. She had known the victim
     for about a year or two and [Appellant] for ten to fifteen
     years. Tammy described [Appellant] as a good friend and
     she looked at him like a brother. She said [Appellant]
     arrived between 9:40 p.m. and 10:00 p.m. and he began
     speaking to the victim in Spanish. They then left the
     apartment together. Tammy heard the victim [scream]
     “no ma” and two to three gunshots. She then looked out a
     window and saw [Appellant] chasing the victim and
     shooting at him. Tammy then lost sight of [Appellant] and
     victim after they crossed Alter Street while running
     towards Fourth Street.

            Although not a witness to the homicide, Divine
     Herrera-Caudle testified regarding a drug transaction
     involving himself, [Appellant] and the victim. Herrera-
     Caudle stated that he and the victim intended to sell an
     eight-ball of cocaine which they were to obtain from
     [Appellant].    During the transaction, [Appellant] felt
     Herrera-Caudle and the victim were trying to “burn” him.
     After providing Herrera-Caudle with the cocaine,
     [Appellant] grabbed it from his hand and said: "You guys
     trying to burn me. I got something for you two fucks.”
     This incident occurred approximately four to five days prior
     to the homicide.

           Jaime Bonner was the victim’s girlfriend and she
     knew [Appellant] for a few months prior to June 11, 2015.
     She testified to a telephone conversation she had with
     [Appellant] at 6:00 p.m. the evening of the homicide.
     During this conversation, [Appellant] told her that Herrera-
     Caudle and the victim “ripped him off.” He also asked her
     where the victim could be located and she told him he was
     at Paula Shafer’s house.


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           [Appellant] attempted to set up an alibi defense with
     the assistance of a cell mate. While incarcerated at the
     Luzerne County Correctional Facility following the homicide
     in October of 2015, [Appellant] asked Stephen Pivinski to
     write a letter which indicated that he was at a store and
     the hospital at the time [the victim] was shot. Mr. Pivinski
     wrote the letter and gave it to [Appellant].

           Hassan Harrell was also incarcerated at the Luzerne
     County Correctional Facility in the fall of 2015. He testified
     that [Appellant] provided him with a letter which he was to
     give to [Appellant’s] girlfriend once he was released from
     prison on bail. Mr. Harrell read the letter and although it
     was four pages long, he remembered it stated that
     [someone named J.J.] should be blamed for the homicide.
     Because Mr. Harrell was not released on bail, [Appellant]
     took the letter back from him.

            [Appellant] testified at trial that [at the time of the
     victim’s murder] he walked five to seven blocks from his
     mother’s house to a Turkey Hill to purchase cigarettes. He
     then obtained a ride from a former girlfriend, Deborah
     Deisenroth-Hilliard, to the hospital due to a cough he was
     experiencing.      [Appellant] did not know when this
     occurred.     A loss prevention manager for Turkey Hill
     testified that a video from June 11, 2015 shows a vehicle
     identified by Deborah Deisenroth-Hilliard as hers, entering
     the Turkey Hill parking lot at 10:58 p.m. Ms. Deisenroth-
     Hilliard had testified that she received a call from
     [Appellant] at 10:41 p.m. on June 11, 2015 requesting
     that she pick him up at Turkey Hill and take him to the
     hospital. Her residence was located approximately ten to
     fifteen minutes away from Turkey Hill. The shooting took
     place eleven minutes before [Appellant] called Ms.
     Deisenroth-Hilliard.

          A criminal complaint was filed against [Appellant] on
     June 14, 2015.      He maintained his innocence and
     proceeded to trial.

Trial Court Opinion, 8/14/17, at 1-5 (unpaginated).




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        At the conclusion of the trial on February 6, 2017, the jury found

Appellant guilty of first-degree murder under Section 2502(a).2 That same

day, the trial court sentenced Appellant to life in prison without parole.

Appellant filed a timely post-sentence motion on February 10, 2017.3 The

trial court denied Appellant’s motion on June 12, 2017, and Appellant filed

this timely appeal.      Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

        Appellant presents a single issue for our review:

        Whether the Commonwealth failed to prove by sufficient
        evidence that the Appellant committed the crime of First
        Degree Murder.

Appellant’s Brief at 1.
____________________________________________


2   Section 2502(a) states:

        (a)   Murder of the first degree. -- A criminal homicide
              constitutes murder of the first degree when it is
              committed by an intentional killing.

18 Pa.C.S.A. § 2502(a).

3  Appellant’s post-sentence motion challenges both the weight and
sufficiency of the evidence, seeking judgment of acquittal or, in the
alternative, a new trial. Appellant’s Post Sentence Motion, 2/10/17, at 1-2.
However, Appellant does not challenge the weight of the evidence in his
concise statement of errors complained of on appeal under Pa.R.A.P. 1925,
and, in his brief, he presents only a sufficiency claim. Appellant has
therefore waived his weight claim. See, e.g., Commonwealth v. Bullock,
948 A.2d 818, 823 (Pa. Super. 2008) (where a trial court directs a concise
statement, any issues not raised in that statement shall be waived), appeal
denied, 968 A.2d 1280 (Pa. 2009).




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      Appellant challenges the sufficiency of the evidence supporting his

conviction.   Specifically, Appellant contends that “[t]he Commonwealth’s

evidence was comprised of witnesses, all of which were admitted drug

abusers   with   inconsistent   memories   of   the   incident,”   and   that   the

Commonwealth failed to prove that he possessed specific intent to kill the

victim. Appellant’s Brief at 4-5. Appellant states that “the record is lacking

of any evidence proving that this action was premeditated or planned in any

way by the Appellant; rather, the record suggests that the Appellant and the

victim may have merely had a chance encounter on the date of the incident

and that a third party shot and killed the victim.”      Id. at 5-6.     Appellant

further argues that he “presented evidence of an alibi defense which it made

it impossible for him to have committed this crime.” Id. at 6.

      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.

See, e.g., Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017)

(citation omitted). In reviewing Appellant’s sufficiency claim, we are mindful

of our standard of review.

             The standard of review for a challenge to the
      sufficiency of the evidence is to determine whether, when
      viewed in a light most favorable to the verdict winner, the
      evidence at trial and all reasonable inferences therefrom is
      sufficient for the trier of fact to find that each element of
      the crimes charged is established beyond a reasonable
      doubt. The Commonwealth may sustain its burden of
      proving every element beyond a reasonable doubt by
      means of wholly circumstantial evidence.


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            The facts and circumstances established by the
      Commonwealth need not preclude every possibility of
      innocence. Any doubt raised as to the accused’s guilt is to
      be resolved by the fact-finder. As an appellate court, we
      do not assess credibility nor do we assign weight to any of
      the testimony of record. Therefore, we will not disturb the
      verdict 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.

Commonwealth         v.    Von   Evans,   163    A.3d    980,   983   (Pa.    Super.

2017), appeal denied sub nom., Commonwealth v. Evans, 170 A.3d

1023 (Pa. 2017) (citation omitted). “Moreover, in applying the above test,

the entire record must be evaluated and all evidence actually received must

be considered.” Commonwealth v. Fortson, 165 A.3d 10, 15 (Pa. Super.

2017), appeal denied, 174 A.3d 558 (Pa. 2017).

      Appellant challenges his conviction        of first-degree murder.          A

defendant is guilty of first-degree murder when he intentionally kills another

human being.      18 Pa.C.S.A. §§ 2501, 2502(a).          An intentional killing is

defined, in relevant part, as a “willful, deliberate and premeditated killing.”

18 Pa.C.S.A. § 2502(d). To sustain a conviction for first degree murder, the

Commonwealth        must    establish   beyond    a     reasonable    doubt    that:

(1) a human being was unlawfully killed; (2) the defendant was responsible

for the killing; and (3) the defendant acted with malice and the specific

intent to kill.   The Crimes Code defines an intentional killing as a “willful,

deliberate and premeditated killing.”     Commonwealth v. Cash, 137 A.3d

1262, 1269 (Pa. 2016), cert. denied sub nom. Cash v. Pennsylvania,


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137 S. Ct. 1202, 197 L. Ed. 2d 249 (2017). Specific intent to kill may be

proven where the defendant knowingly applies deadly force to another, and

a jury may infer specific intent from the defendant’s use of a weapon on a

vital part of the victim’s body. Commonwealth v. Stokes, 78 A.3d 644,

650 (Pa. Super. 2013), appeal denied, 89 A.3d 661 (Pa. 2014).

       Here, Appellant assails both the second and third prongs required to

support his first-degree murder the conviction; he contends that the

Commonwealth failed to present evidence sufficient to prove that he was

responsible for killing, and that he possessed the specific intent to kill the

victim. Appellant’s Brief at 4-6. In addressing the second prong, Appellant

argues that he proffered “a credible alibi defense that was sufficient to

create a reasonable doubt that he did not kill the victim.”        Id. at 8.

Appellant asserts that his alibi defense made it impossible for him to have

killed the victim. Id. at 9. Appellant relies on three cases that speak to the

general proposition that “an alibi is a defense that places the defendant at

the relevant time in a different place than the scene involved and so

removed therefrom as to render it impossible for him to be the guilty party,”

and that “the burden is solely on the Commonwealth to prove that the

defendant was present during the commission of the crime.” Id. at 8.4


____________________________________________


4  Appellant cites the following cases: Commonwealth v. Rainey, 928
A.2d 215, 234 (Pa. 2007); Commonwealth v. Gainer, 580 A.2d 333, 336
(Footnote Continued Next Page)


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       Appellant’s reliance on these authorities is not persuasive because

these cases only address whether an alibi jury instruction is warranted and

whether a failure to charge the jury for such an instruction constitutes

reversible error.    See, e.g., Pounds, 417 A.2d at 602.       Here, the record

reflects that Appellant’s counsel offered notice of an alibi defense and the

trial court admitted Appellant’s testimony and evidence relative to the alibi.5

Further, the trial court charged the jury with the following alibi instruction:

              In this case, [Appellant] has presented evidence of a
       alibi; that is, that he was not present at the scene or was
       rather at another location at the precise time that the
       crime took place. You should consider this evidence, along
       with all the other evidence in the case, in determining
       whether the Commonwealth has met its burden of proving
       beyond a reasonable doubt that a crime was committed,
       and that [Appellant], himself, committed it.

              [Appellant’s] evidence that he was not present,
       either by itself or together with other evidence, may be
       sufficient to raise a reasonable doubt of his guilt. If you
       have a reasonable doubt of [Appellant’s] guilt, you must
       find him not guilty.

N.T., 2/6/17, at 1181-1182.            The jury was free to assess Appellant’s

credibility and believe or disbelieve his alibi. “As an appellate court, we do

not assess credibility nor do we assign weight to any of the testimony of

record.”    Von Evans, 163 A.3d at 983 (citation omitted).            On appeal,

(Footnote Continued) _______________________

(Pa. Super. 1990), appeal denied, 602 A.2d 856 (Pa. 1992); and
Commonwealth v. Pounds, 417 A.2d 597, 602 (Pa. 1980).

5   See Notice of Alibi, 1/15/16; see also N.T., 2/3/17, at 1034-1044.



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Appellant generally asserts that it would have been impossible for him to

commit the murder, but he fails to specifically refute the trial court’s

suggestion that, “[e]ven if the jury believed [Appellant’s] testimony, [he]

still had an opportunity to commit the murder, walk to Turkey Hill and obtain

a ride to the hospital based on the facts established in this case.” Trial Court

Opinion, 8/14/17, at 8.      We agree with the trial court that there was

sufficient evidence upon which the jury could reject Appellant’s alibi and find

that Appellant killed the victim.

      Next, in arguing that the Commonwealth failed to prove “specific

intent,” Appellant attempts to discredit the testimony of the Commonwealth

witnesses, contending that they “were drug-addicted reprobates, some of

which were seeking to curry favor with the Commonwealth for pending

charges, [while] others readily admitted that they were high at the time of

the incident, thus rendering their testimony less than credible.” Appellant’s

Brief at 8-9.

      In addressing Appellant’s specific intent to kill the victim, the trial

court explained:

      Four eye witnesses saw or heard the shooting on June 11,
      2015. Three of those saw [Appellant] chasing the victim
      while hearing gun shots. Two actually saw [Appellant]
      shoot the victim.

             With regard to specific intent to kill, the autopsy
      revealed that [the victim] had been shot a total of six
      times. Once in the back and five times in the head. Six
      gun shots should be sufficient to establish a specific intent
      to kill. When five of those shots enter the victim’s head,

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     there can be no doubt as to the intent of the shooter.
     [Appellant] used a deadly weapon on a vital part of the
     victim’s body a minimum of five times. The evidence
     presented by the Commonwealth was more than sufficient
     to allow a jury to conclude that the elements of first
     degree murder had been proven beyond a reasonable
     doubt, including the specific intent to kill.

Trial Court Opinion, 8/14/17, at 7 (unpaginated).

     Appellant improperly views the evidence in a light most favorable to

himself, rather than the Commonwealth, the verdict winner.     As set forth

above, “we will not disturb the verdict 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.”      Von Evans, 163 A.3d at 983.       In

addition, while Appellant references a dearth of evidence supporting

premeditation or planning, he fails to acknowledge the inference that may be

drawn by the use of a deadly weapon upon a vital part of the body. See,

e.g., Stokes, 78 A.3d at 650. In sum, and for the above reasons, we find

no merit to Appellant’s sufficiency claim and therefore affirm the judgment

of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/13/2018



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