J-S16014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDGARDO SOBRADO-RIVERA                     :
                                               :
                       Appellant               :   No. 414 MDA 2018

            Appeal from the Judgment of Sentence August 18, 2017
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0005882-2016


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                    FILED JULY 03, 2019

        Edgardo Sobrado-Rivera appeals from the judgment of sentence

imposed August 18, 2017, in the Dauphin County Court of Common Pleas.

The trial court sentenced Sobrado-Rivera to an aggregate term of life

imprisonment, following his jury conviction of first-degree murder, recklessly

endangering another person (“REAP”), and firearms not to be carried without

a license1 for the August 2016 shooting death of Henry Liriano-Aquino. On

appeal, he challenges the trial court’s admission of certain testimony

regarding the victim’s text messages, the sufficiency and weight of the

evidence supporting his convictions, and court’s failure to merge the

sentences on two of his convictions. For the reasons below, we affirm.


____________________________________________


1   See 18 Pa.C.S. §§ 2502(a), 2705, and 6106, respectively.
J-S16014-19



      The facts underlying Sobrado-Rivera’s convictions are summarized by

the trial court as follows:

      At 9:39 p.m. on August 20, 2016, Harrisburg Police Officer Brian
      Carriere received a dispatch to respond to reports of shots fired
      and a victim lying on the ground with a gunshot wound to the
      head. Upon arrival at Hummel and Swatara Streets, Officer
      Carriere observed a black male lying face down on the ground who
      had suffered a gunshot wound to the temple. Officer Carriere was
      unable to detect a pulse. Officer Carriere found no weapon near
      the victim. A woman was kneeling over the victim. Police later
      identified the victim as Henry Liriano-Aquino.

      Harrisburg Police Officer Cynthia Kreiser also responded to the
      scene.     Officer Kreiser transported the woman, Shaylee
      Concepcion, to the police station to be interviewed.         Ms.
      Concepcion stated that she was in a nearby store with her child
      when she heard shots and ran outside. Ms. Concepcion stated
      that she picked up the victim’s phone because she was concerned
      that someone would pick it up. She then placed the phone back
      on the street near the victim and called 911 from her own phone.

      Harrisburg Police Officer Nicholas Ishman responded to assist with
      securing the crime scene. Officer Ishman found two nine-
      millimeter bullet casings six to eight feet from the victim’s body.

      Forensic Investigator Marc McNaughton found a cell phone and an
      electronic scale in the victim’s vehicle. He found no weapons.

      Police interviewed neighbors in the area who reported that they
      heard three or four gunshots. One neighbor reported that she was
      on her porch near the scene when she heard the gunshots and
      saw a silver sedan speed away.

      Video surveillance tape captured Roberto Hernandez Garcia’s
      presence at the scene, although he initially denied to police that
      he witnessed the shooting. Garcia spoke to police after police
      arrested him for his refusal to cooperate. Ultimately, Garcia gave
      a statement to police in which he stated that he met Aquino a few
      days earlier. On the evening of the shooting, they agreed to meet
      in the area of Hummel and Swatara Streets because Garcia
      planned to buy marijuana from Aquino and drink with him. When
      Garcia approached Aquino’s vehicle, Aquino told Garcia to wait at
      the nearby store, because Aquino had to “take care of a problem”.

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     Aquino then left his vehicle, crossed the street and briefly spoke
     to [Sobrado-Rivera], who was in a vehicle. Garcia could not hear
     the conversation, but heard Aquino say “stop that shit”. Garcia
     next heard gunshots. Garcia ran from the store, then returned
     fifteen to twenty minutes later. Garcia unequivocally identified
     [Sobrado-Rivera] as the shooter.

     Forensic pathologist Wayne Ross, M. D., conducted an autopsy of
     Aquino. Dr. Ross determined that Aquino suffered two gunshot
     wounds, one to the right side of the head, and the other to the
     left thigh. Dr. Ross categorized the gunshot wounds as distant,
     that is, having been fired from a distance of three to four feet or
     more. Dr. Ross opined that the gunshot wound to the thigh was
     potentially lethal, and that the gunshot to the head caused the
     victim’s death.

     The autopsy further revealed a bullet lodged in the victim’s
     tongue, which Dr. Ross retrieved and provided to police for
     documentation. Ballistics testing revealed that the bullet was
     discharged from a nine-millimeter gun and that both nine-
     millimeter casings found at the scene were discharged from the
     same weapon.

     [Sobrado-Rivera’s] former girlfriend, Tiffany Brown, owned the
     Mitsubishi Eclipse which [Sobrado-Rivera] drove on the night of
     the shooting. Brown gave police [Sobrado-Rivera’s] name as the
     person who drove her car that night. When Brown told [Sobrado-
     Rivera] she had spoken to police and wanted her car back, [he]
     told her she should have reported the car stolen, and that he
     “could come down and blow her head off”.

     [Sobrado-Rivera’s] wife, Denisse Rivera, testified that on the day
     of the shooting, while riding in the car with [Sobrado-Rivera] and
     her son on the way to a family gathering, she saw Aquino drive
     into their neighborhood, pointing at their vehicle. [Sobrado-
     Rivera] and Aquino both stopped and exited their vehicles. They
     had a brief conversation, which Ms. Rivera could not hear.
     [Sobrado-Rivera] said nothing to his wife about the conversation.
     Later that evening, after they returned home, Ms. Rivera saw a
     text message in Spanish on [Sobrado-Rivera’s] phone which she
     believed stated something to the effect that four males would be
     coming to their house. Ms. Rivera did not see any threats in the
     text message. When asked about the message, [Sobrado-Rivera]
     stated, “It’s him.”      [Sobrado-Rivera] then left the house.
     [Sobrado-Rivera] returned at around 11:00 p.m. that night. He


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      told his wife that he met up with the guy and that “it didn’t go
      good.” Ms. Rivera knew what had occurred, as [Sobrado-Rivera]
      appeared shaken.

      [Sobrado-Rivera] testified that he first met Aquino at a pizza shop
      ten days before the shooting. The two agreed to do business
      selling drugs and spoke about prices and supply. Prior to the
      shooting, Aquino sold [Sobrado-Rivera] 45 to 50 grams of heroin,
      for which [Sobrado-Rivera] was to pay $5,000, over time. Five or
      six days after Aquino supplied [Sobrado-Rivera] with the heroin,
      Aquino began pressuring [Sobrado-Rivera] for payment.
      [Sobrado-Rivera] told Aquino that he would not be conducting
      business that week, as he was getting married. Between August
      15 and August 20, [Sobrado-Rivera] and Aquino exchanged texts
      and phone calls. Aquino told [Sobrado-Rivera] that he was
      receiving pressure for money from people in New York. [Sobrado-
      Rivera] testified that he began carrying a gun.

      After receiving the text from Aquino while at home on August 20,
      2016, [Sobrado-Rivera] told Aquino he would meet him at
      Swatara and Hummel Streets. [Sobrado-Rivera] testified that
      Aquino told him that he was finished giving him breaks, and was
      going to call his New York people and send them to [Sobrado-
      Rivera’s] house. [Sobrado-Rivera] testified that Aquino then
      looked at his phone as if to make a call and stated that he was
      going to make [Sobrado-Rivera] “a believer.” [Sobrado-Rivera]
      testified that he felt he had no choice other than to shoot him.
      [Sobrado-Rivera] stated that Aquino did not threaten him and did
      not have a gun. [Sobrado-Rivera] shot Aquino twice, then got in
      his car and left.

      Sometime in the early hours of the following morning, [Sobrado-
      Rivera] told his wife that he shot the man they saw earlier that
      day. Ms. Rivera and [Sobrado-Rivera] drove her child to the
      child’s father’s house in Allentown and stayed in a hotel on their
      return trip to Harrisburg.

      On August 26, 2016, while conducting surveillance of [Sobrado-
      Rivera’s] address, Harrisburg Police Sergeant Terry Wealand saw
      [Sobrado-Rivera] and his wife arrive in separate vehicles.
      Sergeant Wealand arrested [Sobrado-Rivera] and his wife.

Trial Court Opinion, 9/13/2018, at 2-6 (record citations omitted).




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        Sobrado-Rivera was charged with criminal homicide, REAP, persons not

to possess firearms,2 and firearms not to be carried without a license. The

persons not to possess firearms charge was severed for trial.3 On August 18,

2017, a jury found Sobrado-Rivera guilty of first degree murder, REAP, and

firearms not to be carried without a license. The court immediately sentenced

him to a term of life imprisonment on the murder conviction, and concurrent

terms of one to two years’ imprisonment on each of the remaining offenses.

Trial counsel, who had been retained, moved to withdraw. The court granted

counsel’s request, and appointed new counsel. After receiving two extensions

of time, Sobrado-Rivera filed a post-sentence motion on January 16, 2018,

challenging the weight of the evidence and the court’s failure to merge his

sentences for REAP and murder. The trial court denied the motion by order

entered February 20, 2018. This timely appeal followed.4

        Sobrado-Rivera’s first two issues concern the testimony of Detective

Libertad Ramos. By way of background, Sobrado-Rivera’s wife testified she

saw a text message, written in Spanish, on her husband’s cell phone the day

of the shooting. She claimed it said “something about four males coming to

____________________________________________


2   See 18 Pa.C.S. § 6106(a)(1).

3   The record does not reveal the final disposition of this charge.

4 On March 7, 2018, the trial court ordered Sobrado-Rivera to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Sobrado-Rivera complied with the court’s directive, and filed a concise
statement on March 22, 2018.


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[her] house.” N.T., 8/17/2017, at 133. See also id. at 140. Sobrado-Rivera

told her the message was from the victim. See id. at 134. After receiving

that message, Sobrado-Rivera left the house to meet the victim, and that is

when the shooting occurred. Sobrado-Rivera confirmed that he showed his

wife a text message from the victim before leaving their home to confront

him. See id. at 178. By way of rebuttal, the Commonwealth called Detective

Ramos to testify.     Detective Ramos, who spoke Spanish, provided her

interpretation of the text message at issue. See id. at 219-229. The detective

testified that, in her opinion, the message was not a threat. Rather, Detective

Ramos interpreted the message as follows:

       I have four people that I can’t sell to because you have me at a
       standstill. You need to come on with it and give me what you
       need – what you need to do. I’m not the one that’s the problem.
       It’s the people that are higher up that are giving me pressure.

Id. at 220. Sobrado-Rivera was then recalled as a witness, and testified the

message meant the victim “was going to send people to my house.” Id. at

229.

       Sobrado-Rivera first argues the court erred when it allowed Officer

Ramos to “offer Spanish to English translation testimony to rebut [the]

justification defense.” Sobrado-Rivera’s Brief at 20. Sobrado-Rivera contends

Detective Ramos is not a court-certified interpreter, and had a “motivated bias

to translate in favor of the Commonwealth.” Id. at 22. Second, Sobrado-

Rivera asserts the Commonwealth’s failure to provide an English translation




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of the text messages prior to trial constituted a Brady5 violation. See id. at

23.

        It is well-established that “[t]he admissibility of evidence is within the

sound discretion of the trial court, and we will not disturb an evidentiary ruling

absent an abuse of that discretion.” Commonwealth v. Arrington, 86 A.3d

831, 842 (Pa. 2014), cert. denied, 135 S.Ct. 479 (U.S. 2014).          Moreover,

without a contemporaneous objection in the trial court, an allegation of error

“is not properly preserved on appeal.”           Commonwealth v. Melendez-

Rodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004) (en banc). See also

Pa.R.A.P. 302(a).

        Upon our review, we find the trial court thoroughly addressed and

properly disposed of Sobrado-Rivera’s challenges to the text message

translation testimony in its September 13, 2018, opinion.        See Trial Court

Opinion, 9/13/2018, at 8-14 (finding (1) Sobrado-Rivera never requested the

“use of a certified interpreter” during the discussion of Detective Ramos’

testimony concerning the text messages, and therefore, any objection now is

waived;6 (2) defense counsel acknowledged the text messages at issue were
____________________________________________


5 Brady v. Maryland, 373 U.S. 83 (1963). In order to demonstrate a Brady
violation, a defendant must prove the Commonwealth suppressed evidence,
which is helpful to the defense, and the suppression of the evidence prejudiced
the defendant. See Commonwealth v. Brown, 196 A.3d 130, 172–173 (Pa.
2018)

6   Trial Court Opinion, 9/13/2018, at 14.




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“almost certainly provided [by the Commonwealth in the course of discovery,]

but that in the thousands of pages of evidence, [counsel] simply did not review

that particular information with [Sobrado-Rivera;]”7 and (3) “no proof existed

of a failure by the Commonwealth to produce the text message evidence in its

entirety to the defense.”).8 Accordingly, we rest on the court’s well-reasoned

basis.9

        Next, Sobrado-Rivera contends the evidence was insufficient to sustain

his conviction of first-degree murder because the Commonwealth failed to

disprove his justification defense beyond a reasonable doubt.10 See Sobrado-

Rivera’s Brief at 27. He argues 18 Pa.C.S. § 503 “provides a justification for

conduct that would otherwise constitute an offense,” so long as the

justification is based upon a “real emergency” where the harm is “readily

apparent.” Id. Sobrado-Rivera insists he did not possess the specific intent

to kill the victim; rather, the evidence showed he “had no choice but to shoot”

____________________________________________


7   Id. at 13.

8   Id. at 12.

9 We note, too, defense counsel’s purported surprise at the introduction of the
text messages, and the Commonwealth’s translation of them, is somewhat
disingenuous. As noted supra, prior to Detective Ramos’ testimony, both
Sobrado-Rivera and his wife testified that the victim sent Sobrado-Rivera a
text message in Spanish indicating he intended to send four men to their
home. See N.T., 8/17/2017, at 133, 139-140, 178. Detective Ramos’
testimony was offered in rebuttal to provide a different interpretation of the
meaning of that text message.

10   We have reordered Sobrado-Rivera’s claims for ease of disposition.


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the victim to stop him from sending people to his house to hurt his wife and

stepson. Id. at 31. He maintains the potential harm to his family was real

based on the victim’s repeated threats to send four men to his home. See id.

at 32.

         Our standard of review is well-established:

         Evidence legally is sufficient when, viewed in the light most
         favorable to the Commonwealth as verdict winner, the evidence
         and all reasonable inferences derived therefrom are sufficient to
         enable a reasonable fact-finder to find all of the elements of first-
         degree murder beyond a reasonable doubt. In conducting this
         inquiry, we must evaluate the entire trial record. In addition, “the
         trier of fact, while passing upon the credibility of witnesses and
         the weight of the evidence, is free to believe all, part, or none of
         the evidence.”

Commonwealth v. Clemons, 200 A.3d 441, 462 (Pa. 2019) (internal

citations omitted).

         In   order   to   convict   a   defendant   of   first-degree   murder,   the

Commonwealth must prove “a human being was unlawfully killed; the

defendant was responsible for the killing; and the defendant acted with malice

and a specific intent to kill.” Commonwealth v. Houser, 18 A.3d 1128, 1133

(Pa. 2011), cert. denied, 526 U.S. 1247 (2012).              See also 18 Pa.C.S. §

2502(a). The Commonwealth may satisfy its burden of proof by circumstantial

evidence. See Houser, supra, 18 A.3d at 1133. Moreover, the fact finder

may infer the defendant acted with both malice and a specific intent to kill

when he uses a deadly weapon on a vital part of the victim’s body. See id.

at 1133-1134 (quotation omitted).



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      In the present case, Sobrado-Rivera admitted he shot the unarmed

victim twice. See N.T., 8/17/2017, at 203-207. However, he claimed he did

not intend to kill the victim; rather, he intended to protect his family, and “to

stop whatever [the victim] was going to do to send people to [his] house.”

Id. at 206. He insists his actions were justified pursuant to 18 Pa.C.S. § 503.

Sobrado-Rivera’s reliance on this statute is misplaced.

      Section 503 of the Crimes Code provides, in relevant part:

      (a) General rule.--Conduct which the actor believes to be
      necessary to avoid a harm or evil to himself or to another is
      justifiable if:

         (1) the harm or evil sought to be avoided by such conduct
         is greater than that sought to be prevented by the law
         defining the offense charged;

         (2) neither this title nor other law defining the offense
         provides exceptions or defenses dealing with the specific
         situation involved; and

         (3) a legislative purpose to exclude the justification claimed
         does not otherwise plainly appear.

18 Pa.C.S. § 503(a). A Section 503 justification defense was not available to

Sobrado-Rivera. First, the harm Sobrado-Rivera “sought to be avoided” was

the assault or murder his wife and stepson.      See 18 Pa.C.S. § 503(a)(1).

However, to prevent that crime, he shot and killed the victim.        Therefore,

pursuant to Subsection 503(a)(1), the “harm sought to be avoided” (i.e., the

assault or murder of his family) was not “greater than” the harm he caused

(i.e., the murder of the victim). Id.    See Commonwealth v. Pelzer, 612

A.2d 407, 415 (Pa. 1992) (holding defendant was not entitled to justification



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charge because “[t]he harm [he] allegedly sought to avoid by shooting [the

victim], namely, his own injury or death, was not greater than the harm

sought to be prevented by the law against murder, namely, the death of the

victim.”).   Moreover, pursuant to Subsection 503(a)(2), the Crimes Code

provides a defense “dealing with the specific situation involved.” 18 Pa.C.S.

§ 503(a)(2).   Section 506(a) permits a person to use force, under certain

circumstances, for the protection of others.        See 18 Pa.C.S. § 506(a).

Accordingly, the justification defense set forth in Section 503 was not available

to Sobrado-Rivera.

      Rather, Sobrado-Rivera is attempting to defend his actions based upon

Section 506. See 18 Pa.C.S. § 506 (“Use of force for the protection of other

persons”). However, the use of force in that situation is justifiable only if such

force would be justifiable for the actor to protect himself, that is, self-defense

pursuant to 18 Pa.C.S. § 505. See 18 Pa.C.S. § 506(a)(1). Section 505(b)(2)

provides, in relevant part:

      (2) The use of deadly force is not justifiable under this section
      unless the actor believes that such force is necessary to protect
      himself against death, serious bodily injury, kidnapping or sexual
      intercourse compelled by force or threat; nor is it justifiable if:

         (i) the actor, with the intent of causing death or serious
         bodily injury, provoked the use of force against himself in
         the same encounter; or

         (ii) the actor knows that he can avoid the necessity of using
         such force with complete safety by retreating, except the
         actor is not obliged to retreat from his dwelling or place of
         work, unless he was the initial aggressor or is assailed in his
         place of work by another person whose place of work the
         actor knows it to be.

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18 Pa.C.S. § 505 (b)(2).

       Here, the trial court concluded “[t]he evidence proved that [Sobrado-

Rivera] left his home with a gun, did not contact police, sought out [the

victim], then shot him twice although he did not see any weapon on [the

victim].”   Trial Court Opinion, 9/13/2018, at 8.          Our review of the record

reveals ample support for the court’s findings. Furthermore, it is undisputed

Sobrado-Rivera confronted the victim on a public street, and, therefore, could

have retreated from the confrontation. His testimony that he did not intend

to kill the victim, although he shot him a second time after wounding him the

first time, simply does not ring true. Accordingly, Sobrado-Rivera’s sufficiency

claim fails.

       Sobrado-Rivera also challenges the weight of the evidence supporting

his conviction of first-degree murder.11           See Sobrado-Rivera’s Brief at 32.

When we review a challenge to the weight of the evidence, our review is

limited to the “trial court’s exercise of discretion.”          Commonwealth v.

Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (quotation omitted). Indeed,

       [t]he weight of the evidence is exclusively for the finder of fact,
       who is free to believe all, none or some of the evidence and to
       determine the credibility of the witnesses. The fact-finder also
       has the responsibility of resolving contradictory testimony and
       questions of credibility.
____________________________________________


11 We note Sobrado-Rivera properly preserved this claim by raising it in a
timely filed post-sentence motion. See Pa.R.Crim.P. 607(A)(3); Defendant’s
Post Sentence Motion Pursuant to Pa.R.Crim.P. 720, 1/16/2018, at ¶ 4.


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Id. (internal punctuation and citations omitted).

      Moreover, when a trial court finds that the evidence was not
      against the weight of the evidence, we must give the gravest
      consideration to the trial court’s conclusion because it is the trial
      court, and not the appellate court, that “had the opportunity to
      hear and see the evidence presented.” Furthermore, a defendant
      will only prevail on a challenge to the weight of the evidence when
      the evidence is “so tenuous, vague and uncertain that the verdict
      shocks the conscience of the court.”

Commonwealth v. Cramer, 195 A.3d 594, 600–601 (Pa. Super. 2018)

(internal citations omitted).

      Sobrado-Rivera maintains the trial court abused its discretion in denying

his challenge to the weight of the evidence by failing to consider the following

evidence: (1) Concepcion “admitted to manipulating” the victim’s cell phone,

but “was never called as a witness by the Commonwealth[;]” (2)

Commonwealth witness, Garcia, initially lied to the police and only offered a

statement after he was charged with hindering prosecution; and (4) the victim

had “alcohol and cocaine in his system at the time of the incident and the

ability and opportunity to use his cellular telephone to make good on his

threat.”   Sobrado-Rivera’s Brief at 33-34.     He also asserts the trial court

improperly considered Officer Ramos’ testimony translating the Spanish text

messages. See id. at 34.

      In addressing Sobrado-Rivera’s weight of the evidence claim, the trial

court opined:

      The jury heard ample and compelling evidence upon which it could
      easily conclude that [Sobrado-Rivera] shot [the victim] with a
      specific intent to kill. [Sobrado-Rivera] left his home with a gun
      and a plan to confront [the victim]. [Sobrado-Rivera] admitted at

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       trial that he decided, in the moment of confrontation, that he was
       going to shoot the unarmed [victim] because of the perceived
       threat. He fired upon [the victim] twice in quick succession from
       a few feet away. The first bullet traveled through the victim’s
       thigh and the second lodged into his face. Dr. Ross opined that
       the gunshot to the thigh was potentially deadly and that the shot
       to the head killed the victim. Therefore, the weight of the
       evidence supports the verdict.

Trial Court Opinion, 9/13/2018, at 16 (record citations omitted).

       We find no basis to disagree. With regard to Sobrado-Rivera’s specific

claims, we have already concluded the trial court did not err in permitting

Officer Ramos to testify regarding her translation of the relevant text

messages.     Moreover, the trial court found “[n]o evidence exists that Ms.

Concepcion tampered with evidence in any manner[,]” and while Garcia

initially denied having witnessed the shooting, “[d]efense counsel thoroughly

cross[-]examined [him] regarding alleged inconsistencies.”          Id. at 7-8.

Although Garcia was the only witness who identified Sobrado-Rivera as the

shooter, it merits emphasis that Sobrado-Rivera admitted he shot the victim,

albeit with the intent to protect his family. Finally, Sobrado-Rivera fails to

explain how the fact the victim had alcohol and cocaine in his system

undermines the verdict. Accordingly, we conclude the trial court did not abuse

its   discretion   when   it   denied   Sobrado-Rivera’s   post-sentence   motion

challenging the weight of the evidence.

       Lastly, Sobrado-Rivera argues the trial court erred when it failed to

merge his sentence for REAP with his sentence for first-degree murder. See

Sobrado-Rivera’s Brief at 25.



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        Initially, we note that merger is a nonwaivable challenge to the
        legality of the sentence. Commonwealth v. Robinson, 931 A.2d
        15, 24 (Pa. Super. 2007). The issue is a pure question of law,
        allowing for plenary review. Id.

Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa. Super. 2012), appeal

denied, 63 A.3d 776 (Pa. 2013).

        The merger of offenses for purposes of sentencing is controlled by 42

Pa.C.S. § 9765, which states:

        No crimes shall merge for sentencing purposes unless the crimes
        arise from a single criminal act and all of the statutory elements
        of one offense are included in the statutory elements of the other
        offense. Where crimes merge for sentencing purposes, the court
        may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. Rather than interpreting his conviction under the merger

statute, Sobrado-Rivera relies upon case law decided before its enactment in

2012,    which   this   Court   has   found     is   no   longer   instructive.   See

Commonwealth v. Coppedge, 984 A.2d 562, 564 (Pa. Super. 2009).

Nevertheless, the trial court concluded “[t]he doctrine of merger does not

apply to bar imposition of a separate sentence for the crime of [REAP].” Trial

Court Opinion, 9/13/2018, at 16. We agree.

        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. A person is guilty of first-degree murder if he

commits an “intentional killing.” 18 Pa.C.S. § 2502(a). An “intentional killing”

is “any kind of willful, deliberate and premeditated killing.”           18 Pa.C.S. §

2502(d). The argument could be made that when a defendant commits an

intentional killing, he “recklessly engages in conduct which places [the victim]

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in danger of death.” 18 Pa.C.S. § 2705. However, we conclude merger is

inappropriate here since the victims of the crime are not the same. Indeed,

Liriano-Aquino was the victim of the murder.        However, on the criminal

information, the Commonwealth averred Sobrado-Rivera committed the crime

of REAP by “recklessly engag[ing] in conduct which placed or may have placed

people in the area of the shooting in danger of death or serious bodily

injury[.]”   Criminal Information, 4/3/2017, at Third Count (emphasis

supplied). The court repeated this in its jury instructions:

      The defendant is also charged with recklessly endangering
      another person. To find the defendant guilty of this offense, you
      must find the defendant recklessly did something that placed or
      may have placed someone in danger of death or serious bodily
      injury. In this case, the Commonwealth asserts by their criminal
      information that the people and residents who were in the
      vicinity of that area when he fired -- allegedly fired the gun were
      placed in danger.

N.T., 8/18/2017, at 315 (emphasis supplied). Accordingly, Sobrado-Rivera

was not charged with recklessly endangering the victim, but rather, with

recklessly endangering other residents in the area at the time of the shooting.

The Pennsylvania Supreme Court has held “the imposition of multiple

sentences upon a defendant whose single unlawful act injures multiple victims

is legislatively authorized and, consequently, does not violate the double

jeopardy clause of the Fifth Amendment.” Commonwealth v. Frisbie, 485

A.2d 1098, 1101 (Pa. 1984). Therefore, we find the trial court did not err

when it failed to merge Sobrado-Rivera’s convictions for sentencing purposes.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2019




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