J-S38023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JULIO JAVIER MALAVE ECHEVARRIA,

                         Appellant                   No. 3466 EDA 2015


        Appeal from the Judgment of Sentence of October 16, 2015
          In the Court of Common Pleas of Northampton County
           Criminal Division at No(s): CP-48-CR-0002843-2014


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 14, 2016

      Appellant, Julio Javier Malave Echevarria, appeals from the judgment

of sentence entered on October 16, 2015. We affirm.

      The able trial court has provided us with a thorough summary of the

evidence presented during Appellant’s jury trial. As the trial court explained:

        The evidence at trial established the following facts. [L.A.
        and N.A.] reside at [a certain address] in Nazareth,
        Pennsylvania. [L.A. and N.A.] reside in a two-story home,
        with four bedrooms and two garages, one garage being
        attached to the main home and the other being a separate
        structure. There is a door leading from outside into the
        attached garage and another door leading from inside that
        garage to the inside of the home. The door leading from
        the garage to the interior of the home requires a key for
        entrance and is kept locked by [L.A. and N.A.] [L.A. and
        N.A.’s] master bedroom is on the second floor of the home.

        On the night of March 19, 2013, [L.A. and N.A.] went to bed
        at approximately 10:00 p.m. At approximately midnight,
        [L.A. and N.A.] were awakened by the noise of someone
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       coming up the stairs. A few seconds later, [L.A.] heard a
       gunshot outside the bedroom door. Immediately after that,
       [L.A. and N.A.’s] bedroom door was kicked in, and three
       individuals rushed in and jumped onto the bed. One of the
       individuals fired a shot inside the bedroom, causing [L.A.] to
       observe a muzzle flash.           The intruders, using only
       flashlights for light, held [L.A. and N.A.] down on the bed,
       ordered them not to move, and demanded to know where
       the “safe,” “money,” and “gold chain” were. Because of the
       darkness, [L.A. and N.A.] could not identify any of the
       intruders. [N.A.], who is a native Spanish speaker, was
       able to communicate with the intruders, who were also
       communicating in Spanish.

       At some point, [L.A.] was ordered to sit on the floor of the
       bedroom, and the intruders began taking items from the
       bedroom and from downstairs and putting them into a bag.
       Throughout the encounter, [L.A.] observed one of the
       intruders wearing a gun on his belt.      After a total of
       approximately four minutes, the intruders ran down the
       stairs and out of the house. When he did not hear anyone
       remaining in the house, [L.A.] looked out of the bedroom
       window and observed a dark-gray, four-door vehicle driving
       away from the premises. [L.A.] then called the police and
       began investigating what had been stolen.

       [L.A.] first noticed that [L.A. and N.A.’s] Toyota 4Runner
       [vehicle] was missing from the attached garage. At the
       time, [L.A. and N.A.] owned four cars, including the
       4Runner, which had been parked in the attached garage on
       the night in question. The keys to the 4Runner were kept in
       a cup in the kitchen. The intruders drove away in the
       4Runner, but it was later recovered by the police and
       returned to [L.A. and N.A.] In total, the intruders took
       personal property valued at approximately $47,657.00 from
       the home, including laptops, cell phones, a camera, the
       4Runner, televisions, clothing, and gold jewelry.

       Detective Randy Knauss, of the Bushkill Township Police
       Department, arrived at the scene sometime after midnight.
       Detective Knauss observed the deadbolt to the front door of
       the home to be locked, indicating that there had been no
       forced entry through that door. Detective Knauss also
       observed that [L.A. and N.A.’s] bedroom door was caved-in

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          and heavily damaged.        [N.A.’s] son, [O.S.], informed
          Detective Knauss that he believed Noel Serrano Pizarro
          (“Co-Conspirator Pizarro”) and Luis Daniel Gonzalez Trujillo
          (“Co-Conspirator Trujillo”) were involved in the home-
          invasion robbery. Co-Conspirator Trujillo’s involvement in
          the incident was confirmed a few days later, when [N.A.]
          found an identification badge bearing his name and photo in
          her home.     Thereafter, Detective Knauss arrested and
          charged Co-Conspirator Trujillo.

          Several months later, Co-Conspirator Trujillo entered a
          guilty plea with an agreement that he would cooperate with
          and testify on behalf of the Commonwealth in its
          prosecution of the other participants in the home-invasion.
          As a result of an interview he conducted with Co-
          Conspirator    Trujillo, Detective   Knauss    turned   his
          investigation toward [Appellant] and [Appellant’s] brother,
          Jouseph Echevarria.       After arresting and charging
          [Appellant], Detective Knauss interviewed him on July 3,
          2014.

          During the interview, [Appellant] was given Miranda[1]
          warnings and then proceeded to give written and verbal
          statements to police. [Appellant] told Detective Knauss that
          his brother told him that they, along with Co-Conspirator
          Pizarro and Co-Conspirator Trujillo, were going to [L.A. and
          N.A.’s] home to buy marijuana. [Appellant] stated that he
          drove to the home, receiving directions from Co-Conspirator
          Pizarro and, upon arriving, entered the attached garage
          with his brother, Co-Conspirator Pizarro, and Co-Conspirator
          Trujillo. Once inside the garage, [Appellant] admitted that
          he used a box cutter to open the door leading to the home.
          [Appellant] told Detective Knauss that he questioned his
          brother about what was happening, telling his brother that
          he thought the group was just going there to buy
          marijuana, and then returned to his car. [Appellant] stated
          that when the home-invasion concluded, he drove his
          brother and Co-Conspirator Trujillo away from the scene,
          with Co-Conspirator Pizarro following behind them in the
          stolen 4Runner. [Appellant] further stated that when his
____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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       brother attempted to give him a portion of the money that
       was the fruit of the home-invasion, [Appellant] declined it
       and punched his brother in the face.         In his written
       statement, [Appellant] claimed that he had nothing to do
       with the robbery but, rather, stated that he merely opened
       the garage door, returned to his car, and waited for the
       others to return to the car.

       At trial, Co-Conspirator Trujillo testified that prior to March
       19, 2013, he was contacted by Co-Conspirator Pizarro, a
       friend of eight years, who told him that “there was a job
       going on.” According to Co-Conspirator Trujillo, [Appellant]
       drove to and picked him up at his house. At that time,
       [Appellant’s] brother and Co-Conspirator Pizarro were also
       in the car. Once Co-Conspirator Trujillo was in the car, Co-
       Conspirator Pizarro began giving [Appellant] directions to
       drive to [L.A. and N.A.’s] residence. During the drive, Co-
       Conspirator Pizarro told the group that they were going to
       do a “home invasion robbery . . . [with] people in the
       house.” Contrary to [Appellant’s] statement to Detective
       Knauss, Co-Conspirator Trujillo testified that there was no
       discussion among the group about marijuana.

       When the group arrived at the residence, [Appellant] parked
       in front of [L.A. and N.A.’s] neighbor’s house. The group
       then approached [L.A. and N.A.’s] garage by crossing the
       neighbor’s yard. To gain access to the attached garage, Co-
       Conspirator Pizarro used a key that had been provided to
       him previously. [Appellant] then used a box cutter to
       unlock the door leading into the home. Co-Conspirator
       Trujillo testified that once inside the home, he knew that the
       group would proceed upstairs because they were informed,
       during the drive to the home, that there would be people in
       the upstairs bedroom. According to Co-Conspirator Trujillo,
       [Appellant] wore a mask and gloves, used a flashlight to
       make his way around the home, and fully participated in the
       home-invasion, with the exception of entering the master
       bedroom. Instead, [Appellant’s] role was to remove items
       from the other upstairs bedrooms and carry them, along
       with items stolen from the master bedroom, down the stairs
       and into [L.A. and N.A.’s] 4Runner. Items were also loaded
       into [Appellant’s] car. Once all of the items were loaded,
       [Appellant] drove himself, his brother, and Co-Conspirator


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         Trujillo to Co-Conspirator Pizarro’s home in Allentown, while
         Co-Conspirator Pizarro followed in the 4Runner.

         Co-Conspirator Trujillo pleaded guilty to possession of a
         firearm, and he admitted to that possession during his
         guilty plea. Despite that admission, Co-Conspirator Trujillo
         testified that he did not have a gun on the night in question
         and was unsure if Co-Conspirator Pizarro had one.

         [Appellant] took the stand in this case and testified that his
         brother came to his house and told him he found a new
         place to buy marijuana, [L.A. and N.A.’s] house. On the
         drive to [L.A. and N.A.’s] home, the group was smoking
         marijuana and listening to loud music; thus, according to
         [Appellant], he could not hear any conversations occurring.
         Upon arriving at [L.A. and N.A.’s] residence, [Appellant] told
         the others, who had exited the car, to hurry, as [Appellant]
         planned on returning home to his girlfriend and children.
         [Appellant] testified that the others approached the home
         without flashlights and that he waited in the car for
         approximately [15] minutes.       According to [Appellant],
         when the group failed to reemerge within [15] minutes,
         [Appellant] drove away, allegedly leaving them without
         transportation home. [Appellant] denied his statement to
         police that he used a box cutter to open [L.A. and N.A.’s]
         door from the garage into the home.

Trial Court Opinion, 8/3/15, at 2-9 (internal citations omitted).

       The jury found Appellant guilty of burglary, criminal trespass, theft by

unlawful taking, two counts of recklessly endangering another person, and

multiple counts of criminal conspiracy.2,      3


____________________________________________


2
  18 Pa.C.S.A. §§ 3502(a)(1), 3503(a)(1)(ii), 3921(a), 2705, and 903(a),
respectively.
3
   Specifically, the jury found Appellant guilty of criminal conspiracy to
commit robbery of the first, second, and third degrees, criminal conspiracy
to commit burglary, criminal conspiracy to commit criminal trespass, and
criminal conspiracy to commit theft by unlawful taking.



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      Appellant was originally sentenced on April 6, 2015.       However, after

sentencing, Appellant filed a timely post-sentence motion and raised two

claims: 1) the evidence was insufficient to support his convictions, and 2)

some of his convictions should have merged for sentencing purposes.

Appellant’s Post-Sentence Motion, 4/16/15, at 1-2.      The trial court agreed

with Appellant in part.   Specifically, the trial court entered a judgment of

acquittal on all criminal conspiracy counts except for Appellant’s “criminal

conspiracy to commit robbery as a felony of the first degree” conviction,

vacated Appellant’s sentence, and ordered that resentencing would occur at

a later date. Trial Court Order, 8/3/15, at 1. On October 16, 2015, the trial

court re-sentenced Appellant to serve an aggregate term of 62 to 180

months in prison.

      Appellant did not file a post-sentence motion following re-sentencing.

However, Appellant filed a timely notice of appeal to this Court. Appellant

now raises two claims on appeal:

        [1.] Was the evidence insufficient to support the conviction
        because the Commonwealth failed to prove that Appellant
        entered into a corrupt federation with the intent to commit
        a robbery?

        [2.] Was the verdict of guilty as to the charges of burglary,
        criminal trespass, theft, recklessly endangering another
        person[,] and conspiracy to commit robbery against the
        weight of the evidence?

Appellant’s Brief at 4 (some internal capitalization omitted).




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      Appellant first claims that the evidence was insufficient to support his

conviction for criminal conspiracy to commit robbery of the first degree.

This claim fails.

      We review Appellant’s sufficiency of the evidence challenge under the

following standard:

         The standard we apply in reviewing 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 [that of] the fact-finder. 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 trier 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806

(Pa. Super. 2008).

      Appellant was convicted of criminal conspiracy to commit robbery, as

defined by 18 Pa.C.S.A. § 3701(a)(1)(ii). Section 3701(a)(1)(ii) robbery is

defined as follows:

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           A person is guilty of robbery if, in the course of committing
           a theft, he: . . . (ii) threatens another with or intentionally
           puts him in fear of immediate serious bodily injury.

18 Pa.C.S.A. § 3701(a)(1)(ii).

         Further, the Crimes Code defines criminal conspiracy in the following

manner:

           (a) Definition of conspiracy.--A person is guilty of
           conspiracy with another person or persons to commit a
           crime if with the intent of promoting or facilitating its
           commission he:

               (1) agrees with such other person or persons that they
               or one or more of them will engage in conduct which
               constitutes such crime or an attempt or solicitation to
               commit such crime; or

               (2) agrees to aid such other person or persons in the
               planning or commission of such crime or of an attempt
               or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a).

         On appeal, Appellant claims that the Commonwealth failed to prove

“that [Appellant] had the criminal intent to promote or facilitate the robbery

[or] that [Appellant] entered into an agreement to commit the robbery.”

Appellant’s Brief at 12.        According to Appellant, the evidence merely

demonstrated that he entered into an agreement to commit a burglary. Id.

at 14.

         Appellant’s claim is meritless. Certainly, as the trial court explained,

the evidence was sufficient to prove that Appellant entered into an




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agreement to commit the robbery and that Appellant had the criminal intent

to promote and facilitate the robbery. As the trial court explained:

          Co-Conspirator Trujillo testified that [Appellant] was in the
          car, as the driver no less, when Co-Conspirator Pizarro
          stated that the group was going to perform a home-invasion
          robbery of a house with people inside. [Appellant], upon
          hearing this, continued to drive to [L.A. and N.A.’s]
          residence.    When they arrived there, the conspirators,
          including    [Appellant],  donned      masks    and   gloves,
          approached the home using flashlights, and entered [L.A.
          and N.A.’s] garage. When the group was unable to enter
          the home through the locked entrance door inside the
          garage, [Appellant] despite the fact that his co-conspirators
          were armed and despite knowing that [L.A. and N.A.] were
          inside, used a box cutter to open the door. Before the
          actual robbery took place, the invaders fired two shots.
          Viewing all of the above in the light most favorable to the
          Commonwealth, there is more than sufficient direct and
          circumstantial evidence that [Appellant] agreed that the
          group would conduct a home-invasion robbery at gunpoint,
          thereby either threatening the victims with or placing the
          victims in fear of immediate serious bodily injury. Thus, the
          evidence was certainly sufficient for the jury to convict
          [Appellant] of conspiracy to commit robbery as a felony of
          the first degree.

Trial Court Opinion, 8/3/15, at 16-17.

      We agree with the trial court’s cogent analysis and conclude that

Appellant’s sufficiency of the evidence claim thus fails.

      For Appellant’s second and final claim on appeal, Appellant contends

that his convictions were against the weight of the evidence. This claim is

waived.

      As our Supreme Court explained:

          in a challenge to the weight of the evidence, the function of
          an appellate court on appeal is to review the trial court’s

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          exercise of discretion based upon a review of the record,
          rather than to consider de novo the underlying question of
          the weight of the evidence. In determining whether this
          standard has been met, appellate review is limited to
          whether the trial judge’s discretion was properly exercised,
          and relief will only be granted where the facts and
          inferences of record disclose a palpable abuse of discretion.
          It is for this reason that 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. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

quotations and citations omitted).

     A weight of the evidence challenge must first be raised with the trial

court either before sentencing or in a post-sentence motion.        Pa.R.Crim.P.

607(A).     Here, Appellant failed to raise his weight claim before the trial

court. Thus, the claim is waived. Pa.R.A.P. 302(a) (“[i]ssues not raised in

the lower court are waived and cannot be raised for the first time on

appeal”).

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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