J-S22002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MATHEW STEFAN MORALES,

                            Appellant                    No. 833 MDA 2016


           Appeal from the Judgment of Sentence February 16, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0001430-2015


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 11, 2017

       Appellant, Mathew Stefan Morales, appeals from the February 16,

2016 judgment of sentence entered in the Court of Common Pleas of

Lancaster County following a jury trial. We affirm.

       In its opinion, the trial court presented the facts of the crime in an

extensive fourteen-page summary of the evidence presented at trial.           See

Trial Court Opinion, 9/2/16, at 2–15.          Briefly, testimony established that

Manheim Township Police and Lancaster City Bureau of Police were

dispatched at 3:20 a.m. on June 21, 2014, to the area of the 1100 block of

Helen Avenue for a report by an individual on a cell phone reporting that he

had been shot. N.T., 2/8/16, 93–94, 114–115. Manheim Township Officer
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Kelly Spence testified that the victim, Xavier Garriga, was lying on his back

and bleeding, with a cell phone in his hand, in the 800 block of New Holland

Pike.1 Id. at 116–117. Three spent shell casings and a spent .40 caliber

bullet were also located and documented. Id. at 167, 182–191. The victim

died of a “through-and-through” gunshot wound to the chest from a bullet

that “went completely through the body, so there was no bullet within the

body.” N.T., 2/11/16, at 542. The Commonwealth presented an extensive

and exhaustive case of circumstantial evidence against Appellant. See Trial

Court Opinion, 9/2/16, at 2–15.

       At the conclusion of the four-day trial, the jury convicted Appellant on

February 12, 2016, of first-degree murder, 18 Pa.C.S. § 2502(a). Appellant

waived a presentence investigation, and the trial court sentenced Appellant

on February 16, 2016, to life imprisonment without the possibility of parole.

N.T., 2/12/16, at 8. On February 17, 2016, Appellant filed a post-sentence

motion requesting a new trial and asserting that the verdict was against the

weight of the evidence.        Appellant filed a second post-sentence motion on

February 24, 2016, contesting certain costs assessed against him.        While

post-sentence motions were pending, Appellant filed a premature notice of



____________________________________________


1
  Police and the Lancaster-Wide Communications dispatch center utilized the
pings from the cell phone to locate the victim. N.T., 2/8/16, at 93–95, 115–
117.



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appeal on March 14, 2016, at Superior Court Docket Number 423 MDA 2016,

which he withdrew the next day.

       The trial court denied both post-sentence motions by separate orders

on April 5, 2016.      Appellant filed an untimely notice of appeal on May 9,

2016, docketed in this Court at 744 MDA 2016.2            Apparently realizing his

misstep, Appellant presented a Motion to Reinstate Appellate Rights Nunc

Pro Tunc to the trial court.3        On May 18, 2016, the trial court reinstated

Appellant’s right to appeal nunc pro tunc, and Appellant filed the instant

notice of appeal on May 23, 2016.              Both Appellant and the trial court

complied with Pa.R.A.P. 1925.4

       Appellant raises the following issues on appeal, which we have

reordered for ease of disposition:

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2
    The appeal was marked “Discontinued” on June 27, 2016.
3
   The docket entries do not reveal the filing date of the motion, but it is
attached to the trial court’s order dated May 17, 2016, that was filed on May
18, 2016. There is no order quashing the appeal as untimely by this Court;
indeed, the appeal at 744 MDA 2016 was not marked as “Discontinued” until
June 27, 2016. Thus, on May 17, 2016, the trial court did not have
jurisdiction to entertain Appellant’s Motion to Reinstate Appellate Rights
Nunc Pro Tunc. As noted supra in note 1, however, that appeal eventually
was marked discontinued by this Court, and the trial court granted the nunc
pro tunc right to appeal. Therefore, in the interest of judicial economy, we
consider the appeal.
4
   On July 15, 2016, pursuant to Pa.R.A.P. 3517, this Court dismissed the
instant appeal for Appellant’s failure to file a docketing statement. In
response to counsel’s explanatory petition, we reinstated the appeal on
August 3, 2016.



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      A. Whether the evid[e]nce presented at trial was insufficient to
      find defendant guilty of first degree murder.

      B. Whether the trial court abused its discretion in concluding
      that jury’s verdict was not against the weight of evidence
      presented at trial.

Appellant’s Brief at 1 (full capitalization omitted).

      We first address Appellant’s argument regarding the sufficiency of the

evidence. In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt.      Commonwealth v. Diamond, 83 A.3d 119 (Pa.

2013).   “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”          Commonwealth v.

Colon-Plaza,     136   A.3d    521,   525–526    (Pa.   Super.   2016)    (quoting

Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super.

2003)). It is within the province of the fact-finder to determine the weight

to be accorded to each witness’s testimony and to believe all, part, or none

of the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa.

Super. 2015). The Commonwealth may sustain its burden of proving every

element of the      crime     by   means   of wholly    circumstantial   evidence.

Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016).

Moreover, as an appellate court, we may not re-weigh the evidence and




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substitute our judgment for that of the fact-finder.      Commonwealth v.

Rogal, 120 A.3d 994 (Pa. Super. 2015).

      Beyond reference to two cases setting forth the above standards,

Appellant’s two-sentence sufficiency argument in his brief is vague and

conclusory, and his claim is undeveloped. Appellant’s Brief at 6. Appellant

wholly fails to refer to any supporting case law. Appellant does not offer any

reason for his claim of insufficient evidence, beyond his bald assertion that

premeditation is lacking, and he does not espouse any recitation of how or

why the trial court abused its discretion.    Appellant’s citation to seventy-

eight pages of notes of testimony, without any explanation, is insufficient to

support such a claim.   Commonwealth v. Woodard, 129 A.3d 480, 509

(Pa. 2015) (quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa.

2013), which stated that “where an appellate brief fails to . . . develop an

issue in any other meaningful fashion capable of review, that claim is

waived.   It is not the obligation of an appellate court to formulate [the]

appellant’s arguments for him.”) (internal quotations omitted)). Therefore,

we find the issue waived.    However, even if the issue had been properly

preserved, we would find it lacks merit based upon the trial court’s extensive

analysis in its Pa.R.A.P. 1925(a) opinion. Trial Court Opinion, 9/2/16, at 19–

22.

      Appellant also assails the weight of the evidence. “The weight of the

evidence is a matter exclusively for the finder of fact, who is free to believe


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all, part, or none of the evidence and to determine the credibility of the

witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super.

2015). In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

            A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Widmer, 560
     Pa.    308,    319,    744    A.2d    745,   751-[7]52     (2000);
     Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
     1189 (1994). A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Widmer, 560
     A.2d at 319–[3]20, 744 A.2d at 752. Rather, “the role of the
     trial judge is to determine that ‘notwithstanding all the facts,
     certain facts are so clearly of greater weight that to ignore them
     or to give them equal weight with all the facts is to deny
     justice.’” Id. at 320, 744 A.2d at 752 (citation omitted). It has
     often been stated that “a new trial should be awarded when the
     jury’s verdict is so contrary to the evidence as to shock one’s
     sense of justice and the award of a new trial is imperative so
     that right may be given another opportunity to prevail.” Brown,
     538 Pa. at 435, 648 A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

           Appellate review of a weight claim is a review of
           the exercise of discretion, not of the underlying
           question of whether the verdict is against the
           weight of the evidence. Brown, 648 A.2d at
           1189.     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. Commonwealth v. Farquharson, 467


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              Pa. 50, 354 A.2d 545 (Pa. 1976). 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.

      Widmer, 560 Pa. at 321–[3]22, 744 A.2d at 753 (emphasis
      added).

Clay, 64 A.3d at 1054–1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).

      Appellant suggests that “no reasonable jury could conclude” that

Commonwealth witness Luis Fuentes “was credible.” Appellant’s Brief at 5.

Similarly, he avers that the jury could not have believed the testimony of

forensic reconstructionist Sergeant Jeffrey Jones.        Id. at 5–6.   Finally,

Appellant posits that in light of the testimony of forensic biologist Jennifer

Sears, the jury could not have concluded Appellant fired the shot that killed

the victim.     The Commonwealth responds that the jury observed the

witnesses and their demeanor and decided the weight, if any, to accord to

their testimony. Commonwealth’s Brief at 8. Moreover, all of the testimony

cited by Appellant was corroborated by other evidence presented, including

video, time-distance analysis, bullet-trajectory analysis, and the three shell

casings found at the scene. Id.

      In the case at bar, the jury was free to believe all, part, or none of the

evidence against Appellant. Gonzalez, 109 A.3d at 723. It chose to believe



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the evidence presented by the Commonwealth, as was its right. Id. Based

upon our review of the record, we conclude this issue lacks merit; we rely on

the thorough and detailed opinion of the Honorable Donald R. Totaro. 5 The

court weighed all of the evidence, found that it supported the verdict, and

determined that the jury’s verdict was not so contrary to the evidence as to

shock one’s sense of justice. Trial Court Opinion, 9/2/16, at 15–19. This

Court will not assume the role of fact-finder and reweigh the evidence.

Accordingly, based on the trial court’s opinion, we conclude that the trial

court did not abuse its discretion in refusing to grant relief on Appellant’s

challenge to the weight of the evidence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2017




____________________________________________


5
   The parties are directed to attach the opinion in the event of future
proceedings in this case.



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