J-S57034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAFAEL VALDEZ-TORRES,                      :
                                               :
                       Appellant               :       No. 486 MDA 2019

        Appeal from the Judgment of Sentence Entered March 11, 2019
              in the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0000811-2018

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED DECEMBER 24, 2019

        Rafael Valdez-Torres (“Valdez-Torres”) appeals from the judgment of

sentence entered following his conviction of two counts each of aggravated

assault, criminal attempt (murder and robbery), and one count each of simple

assault and recklessly endangering another person.1, 2 We affirm.

        On October 10, 2017, Joseph Becker (“Becker”) and his friends went to

the 200 block of Rowe Street, in Tamaqua Borough, to purchase heroin from

Maria Lewis (“Lewis”). Lewis was the girlfriend of Valdez-Torres. Becker was

acquainted with Valdez-Torres, and knew him by the name of “Flacko.”




____________________________________________


1   See 18 Pa.C.S.A. §§ 2702, 901 (2502 and 3701), 2701, 2705.

2  Valdez-Torres’s convictions of aggravated assault            and   recklessly
endangering another person merged at sentencing.
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      Upon arriving at the 200 block of Rowe Street, Becker approached

Lewis’s residence by means of the back yard. As he did so, Valdez-Torres

approached and asked Becker whether he had drugs to sell. Becker stated

that he had methamphetamine. When Valdez-Torres asked to purchase some

of the narcotics, Becker offered to give him some. Becker pulled out a roll of

money from his pocket, withdrew a one-dollar bill, folded it in half, put

methamphetamine on the bill, and gave it to Valdez-Torres.       Becker gave

Valdez-Torres another dollar bill, which Valdez-Torres used to snort the

narcotics.   Valdez-Torres then withdrew a firearm from his waistband and

demanded $300 from Becker. Valdez-Torres claimed that Becker owed him

the $300. When Becker refused to pay, Valdez-Torres shot him in the chest.

After being shot, Becker ran between the houses to the street. As he ran, he

heard another gunshot, and a bullet passed by his head.         When Becker

reached his friends, they called for help.   Becker was life-flighted to the

hospital, where he remained for three weeks. Becker subsequently told police

that Valdez-Torres was his assailant.

      A jury convicted Valdez-Torres of the above-described charges.

Thereafter, the trial court sentenced Valdez-Torres to an aggregate prison

term of 20-40 years. Valdez-Torres timely filed a Notice of Appeal, followed

by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      Valdez-Torres presents the following claims for our review:


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      A. Whether the evidence and testimony was insufficient to
         support the jury verdict of criminal attempt to commit murder
         of the first degree[,] in that both the Commonwealth witness
         and [the] defense witness testified as to a confrontation
         occurring prior to firing gunshots, as well as [the] fact that
         [Becker] testified that meeting [Valdez-Torres] was not
         predetermined?

      B. Whether the evidence and testimony was insufficient to support
         the jury verdict of criminal attempt to commit robbery … in that
         both [the] Commonwealth witness and [the] defense [witness]
         never testified as to [a] theft occurring?

Brief for Appellant at 4.

      Valdez-Torres first claims that the evidence presented at trial is not

sufficient to sustain his conviction of attempted murder. See id. at 10. In

support, Valdez-Torres directs our attention to the testimony of Maria Burke

(“Burke”), a resident near the shooting scene. Id. at 12-13. According to

Valdez-Torres, Burke’s testimony established that there was activity, i.e.,

motions, actions and/or mumbling, prior to the gunshots. Id. at 13. Valdez-

Torres also directs our attention to the testimony of Keith Schlosser

(“Schlosser”), another nearby resident. Id. at 13-15. According to Valdez-

Torres, Schlosser testified that he heard arguing and observed Becker and

Valdez-Torres engaging in a physical and verbal confrontation prior to the

gunshot. Id. at 14-15. Finally, Valdez-Torres directs our attention to the

testimony of Becker. Id. at 15. According to Valdez-Torres, Becker testified

that he was going through withdrawal at the time of the altercation.        Id.

Valdez-Torres points out that Becker’s testimony regarding the direction that




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the gun was pointed was not clear, and was “contradictory, inconclusive[,]

and disjointed[.]” Id. at 18.

      The standard we apply when reviewing a challenge to 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[’s].
      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. Enix, 192 A.3d 78, 81 (Pa. Super. 2018) (quoting

Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa. Super. 2011)).

      “A criminal homicide constitutes murder of the first degree when it is

committed by an intentional killing.”   18 Pa.C.S.A. § 2502(a).     To prove

murder in the first degree, the Commonwealth must demonstrate that a

human being was unlawfully killed; the defendant did the killing; and the

killing was done in an intentional, deliberate, and premeditated manner.

Commonwealth v. Bryant, 67 A.3d 716, 721 (Pa. 2013).                   “What

distinguishes first degree murder from all other forms of homicide is the

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existence of a specific … intent to kill.” Commonwealth v. Wayne, 720 A.2d

456, 460 (Pa. 1998) (citation omitted).

      “A person commits an attempt when, with intent to commit a specific

crime, he does any act which constitutes a substantial step toward the

commission of that crime.”      18 Pa.C.S.A. § 901(a).     “A person may be

convicted of attempted murder ‘if he takes a substantial step toward the

commission of a killing, with the specific intent in mind to commit such an

act.’” Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008)

(quoting Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003)).

      In its Opinion, the trial court addressed the claim raised by Valdez-

Torres as follows:

      [I]t is unclear to [the court] what element of attempted murder
      [Valdez-Torres] asserts was insufficient. His reference to the
      meeting between him and the victim not being predetermined
      perhaps refers to premeditation. The Commonwealth is required
      to prove specific intent to kill as one of the elements of attempted
      murder. The specific intent to kill can be established by showing
      that the defendant’s act was willful, deliberate and premeditated,
      and premeditation may be brief. Commonwealth v. Davis, 479
      A.2d 1077[, 1079] (Pa. Super. 1984).

            The “confrontation” between [Valdez-Torres] and [Becker],
      as referenced in [Valdez-Torres’s Concise Statement], consisted
      of [Valdez-Torres] pulling a gun from his waistband and
      demanding money from the victim. When the victim refused,
      [Valdez-Torres] shot him in the chest. Although gravely wounded,
      [Becker] managed to run away, and as he did, [Valdez-Torres]
      fired another shot.    The bullet from that shot whizzed by
      [Becker’s] head.

            [Valdez-Torres] does not specify what element of the charge
      of attempted murder has not been proven …. As already stated,


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      the evidence was that [Valdez-Torres] demanded money from the
      victim at gunpoint and shot the victim when he refused.

Trial Court Opinion, 4/16/19, at 2. Because the evidence, viewed in the light

most favorable the Commonwealth, confirms the trial court’s assessment, we

adopt the trial court’s rationale, and affirm on this basis.    See id.   We

additionally observe the following.

      Valdez-Torres directs our attention to evidence of inconsistencies in

witnesses’ testimony. However, credibility determinations “go to the weight,

not the sufficiency of the evidence.” Commonwealth v. Bowen, 55 A.3d

1254, 1262 (Pa. Super. 2012).

      To the extent that Valdez-Torres challenges the sufficiency of the

evidence establishing premeditation, we point out the following evidence. At

trial, Becker testified that during their encounter, Valdez-Torres displayed a

gun and demanded $300 from Becker. N.T., 2/6/19, at 58. When Becker

refused, Valdez-Torres stated that he was “not kidding,” and again demanded

the money. Id. at 60. Subsequently, Valdez-Torres told Becker that a drug

dealer to whom Becker owed money “wanted [Becker] dead anyway.” Id. at

61. Immediately after stating this, Valdez-Torres shot Becker in the chest.

Id. at 62.

      After being shot, Becker heard the sound of “[m]etal on metal.        It

sounded like the gun … like [Valdez-Torres] was trying to unjam the gun.” Id.

at 64. Becker testified that he pushed Valdez-Torres and ran toward the front

of the house. Id. at 65. As Becker ran, Valdez-Torres shot at Becker a second

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time. Id. There was sufficient evidence, if believed by the jury, of deliberation

and premeditation. The first shot did not kill Becker. Between the demand

for $300 and the first shot, and the time between the first shot and the firing

of the second shot, ample time elapsed to enable Vasquez-Torres to form a

conscious design to kill and to carry it into effect. The jury, as fact-finder,

was free to believe Becker’s testimony over that of other witnesses.        See

Enix, 192 A.3d at 81. Consequently, we cannot grant Vasquez-Torres relief

on this claim.

      Vasquez-Torres next claims that the evidence was not sufficient to

sustain his conviction of attempted robbery. Brief for Appellant at 18.       In

support, Vasquez-Torres states that, “[a]s to the alleged theft, and the

testimony of [] Becker, [the] Commonwealth failed to prove robbery for both

failing to show that [] Becker was the subject of the theft or he was in fear of

bodily injury.” Id. at 20. Vasquez-Torres contends that Becker presented

Vasquez-Torres with $46, which Becker had obtained from a stripper.          Id.

According to Vasquez-Torres, Becker “never admitted to being in fear,” never

testified that [Vasquez-Torres] committed the theft in the form of removing

property” from Becker, and never testified that [Vasquez-Torres] absconded

with” the $46. Id. Again, Vasquez-Torres directs our attention to testimony

from neighbors that there had been a “full-blown physical altercation by and

between [Vasquez-Torres] and [] Becker.” Id.




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      Pursuant to the robbery statute, a person is guilty of robbery if, "in the

course of committing a theft, he … inflicts serious bodily injury upon another.”

18 Pa.C.S.A. § 3701(a)(1)(i). As set forth above, a criminal attempt is found

where a person, while possessing the intent to commit a crime, does an act

that constitutes a substantial step toward the commission of that crime. 18

Pa.C.S.A. § 901(a). These statutory provisions undermine Vasquez-Torres’s

argument.

      Our review of the evidence discloses that Vasquez-Torres displayed a

firearm, demanded money from Becker, shot Becker after Becker had refused,

and again shot at Becker as he ran away.             N.T., 2/6/19, at 58-62.

Consequently, the evidence is sufficient to sustain Vasquez-Torres’s conviction

of attempted robbery.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2019




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