J-A13037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

BYRON HALL

                            Appellant                        No. 1628 WDA 2013


           Appeal from the Judgment of Sentence February 19, 2013
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0006612-2012


BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                        FILED JULY 10, 2015

        Byron Hall appeals the judgment of sentence imposed February 19,

2013, in the Allegheny County Court of Common Pleas. Hall was sentenced

to an aggregate term of seven to 14 years’ imprisonment following his non-

jury convictions of attempted murder, aggravated assault (two counts),

recklessly    endangering      another     person   (three    counts),   and   criminal

conspiracy,1 for his involvement in an April 2012 shooting. On appeal, Hall

challenges the sufficiency of the evidence supporting all of his convictions,

and the weight of the evidence supporting his convictions of attempted

murder and criminal conspiracy. For the reasons set forth below, we affirm.


____________________________________________


1
    18 Pa.C.S. §§ 901, 2702(a)(1), 2705, and 903, respectively.
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       The facts underlying Hall’s arrest and conviction are as follows.    At

approximately 1:00 p.m., on April 14, 2012, William Bosley pulled his car

into the carport of the Carnegie Towers apartments, in Carnegie Borough,

Allegheny County. Bosley’s cousin, Tyler Dorsey, was asleep in the backseat

with a two-month old baby. A second vehicle was parked in the carport so

that Bosley could not proceed through. After a few minutes, co-defendant

James Edmonds got out of the driver’s side of the first vehicle and Hall

emerged from the passenger’s side.               At the same time, a third co-

conspirator, Rasheed Watson, came out of the lobby of the apartment

building.

       In surveillance video from the scene,2 Watson can be seen greeting

Edmonds as they pass each other behind Edmonds’ car.           Hall, meanwhile,

proceeded to the driver’s side of Bosley’s car, and appeared to say

something to the occupants. Bosley’s car began to slowly reverse, and Hall

moved his hand to the door handle, as if to prevent the victims from leaving.

At the same time, Watson pulled out a gun and began shooting at Bosley’s

car.   When he did so, Hall appeared to calmly back away and rejoin

Edmonds near the apartment entrance. Bosley frantically drove the car in
____________________________________________


2
  The entire incident was captured on the apartment complex’s surveillance
videotape. The day after the shooting, Allegheny Police Detective Michael
Feeney copied the relevant portion of the video onto a USB thumb drive,
which was later admitted into evidence at Hall’s trial. See N.T. 11/19-
20/2012, at 30-33. The trial court, sitting as fact finder, reviewed the
surveillance video during the course of the trial.



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reverse away from the scene. Watson then quickly fled on foot past the

apartment lobby entrance as Hall and Edmonds entered the building

together.     A short time later, the police arrived, and arrested Hall and

Edmonds when they emerged from the Carnegie Towers building. Both were

identified on the surveillance videotape, and Watson was later apprehended.

All three occupants of Bosley’s vehicle suffered gunshot wounds.

       Hall and Edmonds were tried together.3 On November 20, 2012, the

trial court, sitting without a jury, returned a verdict of guilty on all charges

for both co-defendants.4          Hall filed a timely motion to reconsider his

conviction of attempted homicide, which the trial court denied on November

30, 2012. He was sentenced, on February 19, 2013, to an aggregate term

of seven to 14 years’ imprisonment.5             Hall filed a timely post sentence

motion, and, upon leave of court, a supplemental post sentence motion. By




____________________________________________


3
  Watson entered a negotiated guilty plea to charges of attempted murder,
aggravated assault, REAP and conspiracy. See Commonwealth’s Brief at 2
n.6.
4
 Edmonds’ direct appeal is pending before this Court at Docket No. 1747
WDA 2013.
5
 Specifically, the trial court imposed a sentence of seven to 14 years for the
count of attempted murder, a concurrent sentence of three to six years for
each count of aggravated assault, and no further penalty for the remaining
charges.




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order dated October 4, 2013, the trial court denied both motions, and this

timely appeal followed.6

       In his first four issues, Hall challenges the sufficiency of the evidence

to support his convictions of conspiracy, attempted murder, aggravated

assault and REAP.

       In reviewing the sufficiency of the evidence, we consider
       whether the evidence presented at trial, and all reasonable
       inferences drawn therefrom, viewed in a light most favorable to
       the Commonwealth as the verdict winner, support the [fact
       finder’s] beyond a reasonable doubt.        Commonwealth v.
       Murray, [623] Pa. [506], 83 A.3d 137, 150–51 (2013).
       Whether sufficient evidence exists to support the verdict is a
       question of law; thus, our standard of review is de novo and our
       scope of review is plenary. Id. at 151.

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014), cert. denied,

135 S. Ct. 1400 (U.S. 2015).

       We begin with Hall’s conviction of criminal conspiracy.    To sustain a

conviction for criminal conspiracy, the Commonwealth must prove:

       1) the defendant entered into an agreement with another to
       commit or aid in the commission of a crime; 2) he shared the
       criminal intent with that other person; and 3) an overt act was
       committed in furtherance of the conspiracy. Commonwealth v.
       Devine, 26 A.3d 1139, 1147 (Pa.Super.2011). “This overt act
       need not be committed by the defendant; it need only be
       committed by a co-conspirator.” Commonwealth v. Murphy,
       795 A.2d 1025, 1038 (Pa.Super.2002) (citation omitted).

____________________________________________


6
   On October 28, 2013, the trial court ordered Hall to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After being granted an extension of time until the notes of testimony were
transcribed, Hall filed a concise statement on June 27, 2014.



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Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012), aff'd, 105

A.3d 1194 (Pa. 2014). See 18 Pa.C.S. § 903. The Commonwealth need not

establish a formal or explicit agreement between the defendant and his co-

conspirators, rather it is well-settled that:

       [A] conspiracy may be inferred where it is demonstrated that the
       relation, conduct, or circumstances of the parties, and the overt
       acts of the co-conspirators sufficiently prove the formation of a
       criminal confederation. The conduct of the parties and the
       circumstances surrounding their conduct may create a web of
       evidence linking the accused to the alleged conspiracy beyond a
       reasonable doubt. Even if the conspirator did not act as a
       principal in committing the underlying crime, he is still criminally
       liable for the actions of his co-conspirators in furtherance of the
       conspiracy.

Id. (citation omitted).

       Here, Hall contends there was no evidence demonstrating he agreed

with Watson and Edmonds to shoot the victims, or that he was even aware

Watson intended to commit a crime.               Hall asserts “[t]he only evidence

established at trial was that Edmonds and [he] arrived together that day,

that Edmonds greeted the shooter, and that [Hall] moved towards the car

and put his hand on a door.” Hall’s Brief at 2. Further, he emphasizes that

when he approached the victim’s car, it started to back up, and when he put

his hand on the door “momentarily as the shooting began … he was actually

hit in the hand by the gunfire.”7              Id.   Hall maintains the evidence

____________________________________________


7
  While Hall asserts he was hit in the hand by gunfire, there was no evidence
of this fact presented during the non-jury trial.
(Footnote Continued Next Page)


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demonstrated only his presence at the scene, and a possible association

between Watson and Edmonds. Therefore, he concludes, the evidence was

insufficient to support his conviction of conspiracy to commit aggravated

assault.8

      Conversely, the Commonwealth responds that the “‘web of evidence’

was sufficient to support the inference that [Hall] was aware of Watson’s

plan to shoot the victims.” Commonwealth’s Brief at 19. It emphasizes (1)

“the coordinated exit of the three men as soon as the victims arrived at the

scene,” (2) Hall’s approach of the victim’s vehicle and attempt to grab the

car door, and (3) Hall’s lack of fear or alarm when the shooting began. Id.

Accordingly, the Commonwealth maintains the totality of the circumstances

“exhibit the presence of an implicit agreement among the men to cause, at a

minimum, serious bodily injury to the victims.” Id. at 20.

      Our review of the record, and in particular the surveillance videotape

from the shooting, reveals ample evidence to support the inference that Hall

entered into an agreement with Watson and Edmonds to cause serious

bodily injury to the victims. First, the video shows Hall and Edmonds arrive

at the Carnegie Towers, and park in the carport leaving little to no room for

the victim’s car, which arrives approximately two minutes later, to proceed


                       _______________________
(Footnote Continued)


8
  We note the trial court did not specifically address Hall’s challenge to his
conspiracy conviction in its Pa.R.A.P. 1925(a) opinion.



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through.      See Surveillance Videotape (Carport by Door) at 15:08:20-

15:11:13. Shortly thereafter, Hall and Edmonds leave their car as Watson

emerges from the apartment building. Id. at 15:11:16; (Carport Far Side)

at 15:11:16. On the video, it appears as if Hall looks at Watson, and then

moves towards the victim’s car, as Watson and Edmonds greet each other

behind Edmonds’ car.          Id. at 15:11:25-15:11:26; (Carport Far Side) at

15:11:25-15:11:26. Next, Hall seems to say something to the occupants of

the car, which begins to slowly back up as Watson approaches. Id. (Carport

Far Side) at 15:11:28.         The video then shows Hall put his hand on the

driver’s side door handle, immediately before Watson pulls out a gun and

begins shooting at the victims’ car. Id. at 15:11:30. Hall then backs away

from the vehicle, and watches as Bosley frantically attempts to drive away in

reverse with Watson in pursuit. Id. at 15:11:32. The video then displays

Hall calmly rejoining Edmonds near the entrance of the apartment building,

and watching as Watson flees past them. Id. at 15:11:42.

        The “coordinated exit” 9 of the three conspirators when the victim’s car

arrived, Edmonds’ greeting of Watson as they passed each other, Hall’s

move     to   grab    the   victims’    car    door,   and   Hall’s   calm   demeanor,

demonstrating no apparent alarm when the shooting began, all support an

inference that the conspirators were working together, and entered an

____________________________________________


9
    Commonwealth’s Brief at 19.




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agreement to cause serious bodily harm to the victims. Further, Watson’s

firing of the weapon supplied the requisite overt act in furtherance of the

conspiracy. Accordingly, we conclude that Hall’s challenge to his conspiracy

conviction fails.

      Next, Hall challenges the sufficiency of the evidence supporting his

conviction of attempted murder.

      “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) (citation omitted), appeal denied, 967 A.2d 958 (Pa.

2009). See 18 Pa.C.S. §§ 901, 2702. Where, as in the present case, the

defendant’s    culpability   is   based    upon   an   accomplice   theory,   the

Commonwealth must also establish that the defendant “with the intent of

promoting or facilitating the commission of the offense … aid[ed] or agree[d]

or attempt[ed] to aid such other person in planning or committing” the

crime. 18 Pa.C.S. § 306(c)(1)(ii). This Court has previously explained:

      [I]n order to impose this form of criminal liability the individual
      “must be an active partner in the intent to commit [a crime].”
      Further, an accomplice “must have done something to
      participate in the venture.” Lastly, “mere presence at the scene
      is insufficient to support a conviction: evidence indicating
      participation in the crime is required.” Most importantly, the law
      requires some proof that a party was an active participant in a
      criminal enterprise in order to impose accomplice liability. Such
      a finding cannot be based upon mere assumption or speculation.

Commonwealth v. Lambert, 795 A.2d 1010, 1024 (Pa. Super. 2002)

(citation omitted), appeal denied, 805 A.2d 521 (Pa. 2002).

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       Hall maintains “[t]here is nothing in the record indicating that [he]

intended to aid or promote the commission of the crime.” Hall’s Brief at 5.

Rather, he claims the videotape shows only that (1) he arrived in Edmonds’

car, which was parked with enough room for another vehicle to pass; (2) he

recognized the shooter and the victim;10 and (3) “he was walking beside the

[victim’s] car at the time that the shooting happened.”      Id.   Further, he

argues that when he approached the victim’s car, it actually began to back

up so that his actions made the “vehicle a more difficult target to hit and

[made] the victim’s escape easier,” by “putting them on guard.” Id. at 6, 7.

Moreover, Hall contends “his willingness to remain at the scene of the crime

should be presumed to show a lack of guilt as regards [to] the shooting.”

Id. at 7.

       However, Hall’s argument is based entirely on his interpretation of

his actions on the surveillance videotape. However, the trial judge, who sat

as fact finder in Hall’s non-jury trial, viewed his actions differently.   See

Commonwealth v. Robinson, 33 A.3d 89, 94 (Pa. Super. 2011) (stating

____________________________________________


10
   This acknowledgement, that Hall recognized the shooter, contradicts his
argument in another section of his brief, challenging his aggravated assault
conviction, in which he asserts that he “gave no indication of recognizing the
shooter” in the surveillance video. Hall’s Brief at 9. See also id. at 2
(stating that in the video “he did not look at Mr. Watson upon leaving his
vehicle”). Upon our review of the video, however, it appears Hall looks at
Watson as Watson exits the apartment building. See Surveillance Videotape
(Carport by Door) at 15:11:25-15:11:26.




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that when a defendant is convicted following a non-jury trial, “[t]he trial

court's verdict must be accorded the same legal effect as a jury verdict.”),

appeal denied, 42 A.3d 292 (Pa. 2012). The court found that “[t]he video of

the incident showed [Hall] holding the victims’ car door closed while Watson

shot into the car.” Trial Court Opinion, 10/7/2014, at 5. These actions, the

court opined, demonstrated his culpability as an accomplice.      In asserting

that the video should be interpreted in a different manner, Hall is essentially

asking “this Court to act as a fact-finder,” which we decline to do.     In re

C.S., 63 A.3d 351, 358 (Pa. Super. 2013).

      Rather, our review of the surveillance videotape confirms that Hall

approached the driver’s side of the victims’ vehicle, appeared to say

something to the occupants, and briefly put his hand on the door handle as

the car began to reverse, immediately before Watson pulled out a gun and

began shooting.    Surveillance Videotape (Carport by Door) at 15:11:28-

15:11:31.    This, coupled with his apparent lack of alarm or concern when

the shooting began, was sufficient to demonstrate Hall “attempt[ed] to aid”

Watson in the shooting.     18 Pa.C.S. § 306(c)(1)(ii).     Further, Watson’s

actions in pointing a gun directly at Bosley and repeatedly firing it, was

sufficient to demonstrate Watson possessed the specific intent to kill Bosley.

See Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa. Super.

2005) (“[S]pecific intent to kill may be inferred from the fact that the

accused used a deadly weapon to inflict injury to a vital part of the victim's

body.”).    Therefore, Hall, as his accomplice, was legally responsible for

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Watson’s crimes.     See Lambert, supra, 795 A.2d at 1024 (“The very

nature of accomplice liability is that one who actively and purposefully

engages in criminal activity is criminally responsible for the criminal actions

of his/her co-conspirators which are committed in furtherance of the criminal

endeavor.”) (citation omitted).    Accordingly, because we conclude the trial

court’s findings are supported by the record, we agree that no relief is

warranted on this claim.

      In his third and fourth issues, Hall challenges the sufficiency of the

evidence supporting his remaining convictions of aggravated assault and

REAP. We will address these claims together.

      Pursuant to the Crimes Code, a person may be convicted of

aggravated assault if he “attempts to cause serious bodily injury to another,

or   causes   such   injury   intentionally,   knowingly   or   recklessly   under

circumstances manifesting extreme indifference to the value of human

life[.]” 18 Pa.C.S. § 2702(a)(1). Moreover, a person is guilty of REAP “if he

recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury.”      18 Pa.C.S. § 2705.     Again, the

trial court found Hall guilty of these crimes under an accomplice theory of

liability. See Trial Court Opinion, 10/7/2014, at 6.

      Similar to his previous issues, Hall argues the evidence did not support

a finding that he was aware the shooting was about to occur. With regard to




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his aggravated assault conviction, he asserts his actions as depicted on the

videotape “gave no indication [he] recognize[ed] the shooter,”11 and when

he approached the victims’ vehicle, he essentially alerted the victims to a

possible attack. Hall’s Brief at 9. Further, he emphasized that he put his

hand on the door when the car was already in motion, and he was actually

injured in the shooting.       Id.   With regard to his convictions of REAP, Hall

states he displayed no “reckless engagement” because there was “no

evidence on the record proving [he] had knowledge that a gun would be

shot into the vehicle[.]” Id. at 11.

        In addressing Hall’s challenges to these convictions, the trial court

found that Hall’s actions, as evident on the surveillance video, demonstrated

he was an accomplice to Watson’s crimes. The court opined: “Holding three

(3) people in a car while another man fires bullets into that car clearly

demonstrate an extreme indifference to the value of human life, and placed

the passengers in danger of death and serious bodily injury.”          Trial Court

Opinion, 10/7/2014, at 6.            We agree.     Our review of the surveillance

videotape reveals ample support for the trial court’s findings. Consequently,

Hall’s third and fourth issues fail.

        In his last claim, Hall argues the trial court’s verdicts on the charges of

attempted murder and conspiracy were against the weight of the evidence.

____________________________________________


11
     See supra, n.9.




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       It is well-settled that when reviewing a weight of the evidence claim,

       an appellate court does not substitute its judgment for the finder
       of fact and consider the underlying question of whether the
       verdict is against the weight of the evidence, but, rather,
       determines only whether the trial court abused its discretion in
       making its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S. Ct. 1792 (U.S. 2014). For that reason, “[a] weight of the evidence

claim must be preserved either in a post-sentence motion, by a written

motion before sentencing, or orally prior to sentencing. Commonwealth v.

Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, 69 A.3d 601

(Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.

       Here, upon our review of the certified record, we find Hall failed to

preserve his challenge to the weight of the evidence either during

sentencing,     or   in   his   initial   or   supplemental   post-sentence   motion.

Accordingly, Hall’s final claim is waived for our review.12            See Lofton,

____________________________________________


12
   It merits mention that in paragraph six of his supplemental post-sentence
motion, Hall raised a general claim asserting, “[t]he Commonwealth’s case
was very weak.” Supplemental Post-Sentence Motion, 6/20/2013, at ¶ 6.
While this might be construed as a challenge to the weight of the evidence,
although not specifically designated as so, we note that during the post-
sentence hearing, the trial court construed the claim as a sufficiency
argument, a characterization with which Hall’s counsel agreed. See N.T.,
9/26/2013 & 9/30/2012, at 8 (THE COURT: So is this [referring to issue
number six] a sufficiency argument also? [Hall’s Counsel]: … I would say
so, Your Honor.”). Nevertheless, even if we were to find that Hall properly
preserved such a claim, we would conclude that he failed to demonstrate the
trial court abused its discretion in denying his weight claim. See Trial Court
Opinion, 10/7/2014, at 6-8. See also Lyons, supra.



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supra, 57 A.3d at 1273 (“Failure to properly preserve the claim will result in

waiver, even if the trial court addresses the issue in its opinion.”) (citation

omitted).

      Accordingly, because we conclude none of the claims raised by Hall in

this appeal merit relief, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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