Com. v. Cartegena, I.

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2016
• Docket: 2043 EDA 2015
• Status: Unpublished

Opinion

J-S59016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

IGNACIO CARTEGENA,

Appellant No. 2043 EDA 2015

Appeal from the Judgment of Sentence of April 28, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010833-2012

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 09, 2016

Appellant, Ignacio Cartegena, appeals from the judgment of sentence

entered on April 28, 2015 in the Criminal Division of the Court of Common

Pleas of Philadelphia County. We affirm.

The trial court summarized the factual and procedural history in this

case as follows.

[O]n November 23, 2011, a van pulled onto the 2200 block of West Huntingdon Street in Philadelphia. Two men (one of whom was wearing a mask) stepped out of the van. Both had firearms and began shooting. Mark Plaire (“Plaire”) was on the block when the van pulled up and the shooting began. Thinking the men were firing at him, Plaire removed a .45 caliber pistol from his waistband, fired two shots in the direction of the men (whom he later identified as “Tay” and “Man-Man”), and ducked into his house. When Plaire walked back outside, he saw [Appellant] -- whom he knew as “Gaby” -- firing at Tay and Man-Man. [Appellant’s] girlfriend, Shannon Robinson (“Robinson”), was also on the scene. [Appellant] pushed Robinson to the ground during the crossfire. [At trial, Robinson testified that Appellant

*Former Justice specially assigned to the Superior Court. J-S59016-16

possessed a gun at the scene of the November 23, 2011 shooting on West Huntingdon Street.]

Following a January 26, 2015 waiver trial, th[e trial] court found [Appellant] guilty of [carrying a firearm without a license (18 Pa.C.S.A. § 6106), person not to possess firearms (18 Pa.C.S.A. § 6105), and carrying a firearm in Philadelphia (18 Pa.C.S.A. § 6108.)] The court deferred sentencing for completion of a presentence investigation. On April 28, 2015, the court sentenced [Appellant] to an aggregate term of six to seventeen years of incarceration, followed by three years of probation. [Appellant] (through counsel) filed a post-sentence motion on May 3, 2015. The court denied the motion without a hearing on June 12, 2015.

[Appellant] filed a timely notice of appeal on July 8, 2015, a court-ordered statement of errors complained on appeal (“[concise s]tatement”) on August 5, 2015, and a supplemental statement of errors (“[s]upplemental [s]tatement”) on September 19, 2015. [Among other issues, Appellant] raised the following claims of error in his [concise s]tatement[:]

The evidence was insufficient as a matter of law to convict [Appellant] under 18 Pa.C.S. § 6106 because the Commonwealth did not present evidence that [Appellant] possessed a “firearm” as defined by 18 Pa.C.S. § 6102;

The verdict was against the weight of the evidence because there was no “physical, forensic, or scientific evidence” of [Appellant’s] guilt; one eyewitness did not “adopt or corroborate his prior statement to the police” that [Appellant] possessed a firearm at the time in question; and another eyewitness had motive to lie[.]

Trial Court Opinion, 11/30/15, at 1-3.

We carefully reviewed the certified record, the submissions of the

parties, and the opinion of the trial court. Based upon our review, we concur

in the trial court’s conclusion that the Commonwealth introduced sufficient

evidence to sustain Appellant’s conviction under 18 Pa.C.S.A. § 6106

-2- J-S59016-16

because the evidence established beyond a reasonable doubt that Appellant

possessed a firearm as defined by 18 Pa.C.S.A. § 6102. See Trial Court

Opinion, 11/30/15, at 4-5 (finding sufficient evidence of Appellant’s use of

firearm in Plaire’s prior statement to police that men involved in shooting

used 9mm automatic weapons and officer’s recovery of over 40 fired 9mm

cartridges from West Huntingdon crime scene). We also conclude that the

trial court properly exercised its discretion in rejecting Appellant’s claim that

his convictions for carrying a firearm without a license (18 Pa.C.S.A.

§ 6106), person not to possess firearms (18 Pa.C.S.A. § 6105), and carrying

a firearm in Philadelphia (18 Pa.C.S.A. § 6108) were against the weight of

the evidence. See Trial Court Opinion, 11/30/15, at 5-6 (finding Plaire’s

prior statement to police corroborated by other evidence and worthy of belief

while Plaire’s inability at trial to recall Appellant’s involvement in shooting

was contrived to avoid testifying; finding further that Robinson’s testimony

concerning Appellant’s involvement in shooting and possession of a gun was

not motivated by bias against Appellant). Because the trial court adequately

and accurately addressed the issues raised on appeal, we adopt its opinion

as our own. We direct the parties to include the trial court’s opinion in all

future filings that relate to our disposition of this appeal.

Judgment of sentence affirmed.

-3- J-S59016-16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/9/2016

-4- Circulated 07/28/2016 02:27 PM

- . ,._,_ .ll -•1 I ,

fN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION

COMMONWEALTH OF CP-51-CR-OO l 0833-2012 PENNSYLVANIA

V. SUPERIOR COURT IGNACIO CARTEGENA 2043 EDA 2015

OPINION

WOELPPER, J. NOVEMBER 30, 2015

I. PROCEDURAL HISTORY

Following a January 26, 2015 waiver trial, th.is court found Ignacio Cartegena ("the

defendant") guilty of three violations of the Uniform Firearms Act: 18 Pa.C.S. § 6105;1 18

Pa.C.S. § 6106;2 and 18 Pa.C.S. § 6108.3 The court deferred sentencing for completion of a

presentence investigation. On April 28, 2015, the court sentenced the defendant to an aggregate

term of six to seventeen years of incarceration, followed by three years of probation. The

defendant (through counsel) filed a post-sentence motion on May 3, 2015. The court denied the

motion without a hearing on June 12, 2015.

The defendant filed a timely notice of appeal on July 8, 2015, a court-ordered statement

of errors complained of on appeal ("Statement") on August 5, 2015, and a supplemental

CP-51.CR-0010833-2012comrn. v. cartegena.tgn3cio Opinion

111 I 11 I I 1111111111II I1111 7375550021

1 "Persons not to possess, use, manufacture, control, sell or transfer firearms." 2 "Firearms not to be carried without a license." 3 "Carrying firearms on public streets or public property in Philadelphia."

-\__,.... ,-i statement of errors ("Supplemental Statement") on September 19, 2015.4 The defendant has

raised the following claims of error in his Statement and Supplemental Statement:

( 1) The evidence was insufficient as a matter of law to convict the defendant under 18

Pa.C.S. § 6106 because the Commonwealth did not present evidence that the

defendant possessed a "firearm" as defined by 18 Pa.C.S. § 6102;5

(2) The verdict was against the weight of the evidence because there was no "physical,

forensic, or scientific evidence" of the defendant's guilt; one eyewitness did not

"adopt or corroborate his prior statement to police" that the defendant possessed a

firearm at the time in question; and another eyewitness had motive tolie; and

(3) The court imposed an "unduly harsh and excessive sentence. "6

For the following reasons, the defendant's allegations of error lack merit, and the

judgment of sentence should be affirmed.

IL FACTS '

The evidence at trial in the light most favorable to the Commonwealth established that on

November 23, 2011, a van pulled onto the 2200 block of West Huntingdon Street in

Philadelphia. Notes of Testimony ("N.T."), Jan. 26, 2015, at p, 20. Two men (one of whom was

wearing a mask) stepped out of the van. Id. Both had firearms and began shooting. Id. Mark

Plaire ("Plaire") was on the block when the van pulled up and the shooting began. Id. Thinking

the men were firing at him, Plai.re removed a .45 caliber pistol from his waistband, fired two

4 On August I 0, 2015, the court granted the defendant's "Request for Extension of Time to File a Supplemental Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. I 925(b )" because the necessary notes of testimony were not yet available. 5 In his Statement, the defendant raised a general insufficiency claim as to all three charges. See Statement at ,i 9(a). Only in his Supplemental Statement did he specifically identify what evidence was insufficient (i.e., evidence that the defendant possessed a "firearm" as defined in 18 Pa.C.S. § 6102). See Supplemental Statement at f 11. 6 The defendant's claim of an "unduly harsh and excessive" sentence was raised only in his original Statement. See Statement at ,i 9(c).

2 shots in the direction of the men (whom he later identified as "Tay" and "Man-Man"), and

ducked into his house. Id at 19-21. When Plaire walked back outside, he saw the defendant -

whom he knew as "Gaby" - firing at Tay and Man-Man. Id. at 21 and 25. The defendant's

girlfriend, Shannon Robinson ("Robinson"), was also on the scene. kl at 27; 38. The defendant

pushed Robinson to the ground during the crossfire. Id. at 39.

III. DISCUSSION

A. Sufficiency of the Evidence

The Commonwealth presented sufficient evidence that the defendant possessed a

"firearm" as defined in 18 Pa.C.S. § 6102. In reviev..-ing a challenge to the sufficiency of the

evidence, the appellate court views the evidence in the light most favorable to the

Commonwealth, "giving the prosecution the benefit of all reasonable inferences to be drawn

from the evidence." See Commonwealth v. Santiago, 980 A.2d 659, 662 (Pa. Super. 2009). The

evidence is sufficient if it establishes beyond a reasonable doubt that the defendant committed

every material element of the crime charged. Id. If the record supports the verdict, the

reviewing court "may not substitute its judgment for that of the fact finder." Id.

Here, the defendant has challenged the sufficiency of the evidence that he possessed a

"firearm." Section 6102 defines a firearm as:

[a)ny pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a bane! length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.

The evidence on the record, along with all of the reasonable inferences drawn from that

evidence, was sufficient to prove that the defendant possessed a "firearm." First, both Plaire and

3 Robinson observed the defendant holding a firearm. Second, Plaire observed the defendant

firing the gun. In his June 4, 2012 statement to Detective Thomas Gaul, Plaire identified the

defendant as the individual who shot at Tay and Man-Man. Although Plaire testified at trial that

he did not remember if the defendant was one of the individuals involved in the shooting, the

court concluded that he was feigning a failed memory to avoid testifying against the defendant.

N.T., Jan. 26, 2015, at p. 22.7 Having found that Plaire's prior inconsistent statement to

Detective Gaul was given under reliable circumstances and that Plaire was available for cross

examination, the trial court properly admitted the June 4, 2012 statement for both impeachment

purposes and as substantive evidence. See Commonwealth v. Buford, 101 A.3d 1182, 1201 (Pa.

Super. 2014) (citing Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986) and Commonwealth v.

Lively, 610 A.2d 7 (Pa. 1992)).8

Finally, Philadelphia Police Officer Edward Fidler recovered 46 fired cartridge casings

from the scene. See Commonwealth Trial Exhibit C-4. Two of the casings (from a .45 caliber

pistol) were recovered on Plaire's porch. This physical evidence was consistent with Plaire's

testimony that he had shot his .45 caliber pistol twice. The remaining casings were identified as

9 mm luger casings. This, too, was consistent with Plaire's statement that the men involved in.

the shooting appeared to be using 9 mm automatics. N.T., Jan. 26, 2015, at pp. 26-27. The

court, acting as fact finder, reasonably concluded that some of the 9 mm luger cartridge casings

7 At trial, Plaire testified consistently with his June 4, 2012 statement as to where and when the shooting took place and as to Tay's and Man-Man's involvement. N. T., Jan. 26, 2015, at p. 20-22. The court found incredible that the only "detail" Plaire could not remember was the defendant's involvement (or even the defendant's name). Id. at 22. 8 Plaire was shown his statement at trial and identified certain signatures or initials as his own. Hedenied or claimed not to be able to identify others. Detective Gaul, after testifying to his protocol when taking a statement (including transcribing the questions asked and answered and giving the witness the transcription to review, read aloud, and confirm as accurate by signing and initialing), testified that Plaire had, in fact, signed and initialed the statement. The court found Detective Gaul's testimony credible and believed that Plaire had given (and adopted by signature) the statement as transcribed. See Commonwealth v. Presbury, 665 A.2d 825, 832 (Pa. Super. 1995) (witness's signature on statement at time it was made constituted "adoption" even though at trial witness denied having made many portions of statement).

4 recovered from the scene were from the firearm the defendant was shooting. Because a 9 mm

luger is a pistol with a barrel length less than 15 inches, the evidence was sufficient to conclude

that the defendant possessed a "firearm" as defined under Section 6102.

B. Weigh! of the Evidence

Contrary to the defendant's claim, the verdict was not against the weight of the evidence

presented at trial. A new trial is warranted only if the jury's "verdict is so contrary to the

evidence as to shocks one's sense of justice ... " See Commonwealth v. Clay, 64 A.3d 1049, 1055

(Pa. 20 I 3) (internal quotation and citation omitted). Furthermore, it is within the fact-finder's

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

witnesses ... " Commonwealth v. Brown, 71 A.3d 1009, 1013 (Pa. Super. 2013)(i.nternal

quotation and citation omitted), appealdenied, 77 A.3d 635 (Pa. 20 I 3).

As stated above, the court concluded that Plaire 's claimed inability to recall anything

assigning culpability to the defendant was contrived to avoid testifying against the defendant.

Furthermore, the court believed the version of events recounted in Plaire's June 4, 2012

statement. Much of Plaire's earlier account was corroborated by other evidence, including

Robinson's testimony and the casings found at the crime scene.

Finally, the court was unconvinced that Robinson's testimony was motivated by bias

against the defendant. On cross-examination, Robinson testified that she had written to the

defendant while he was incarcerated to inform him that she was ending their relationship based

on his infidelity. N.T., Jan.26, 2015, at pp. 42-44. This testimony regarding an undated

"breakup" letter did not outweigh all of the afore-discussed evidence supporting the court's

verdict. See Clay, 64 A.3d at 1055 (trial court must determine whether "notwithstanding all the

5 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.").

C. Sentencing

The defendant's aggregate sentence of six to seventeen years incarceration, followed by

three years of probation, was not "unduly harsh and excessive," as the defendant has claimed.

See Statement at ~9(c). Sentencing is a matter left to the sentencing court's discretion.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). An abuse of discretion "requires a result

of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so

as to be clearly erroneous." Id. (internal quotations omitted). When the sentencing court

imposes a sentence within the sentencing guidelines, the appellate court must review the matter

to determine whether the trial court's sentence is "clearly unreasonable." 42 Pa.C.S. §

978 l(c)(2). An "unreasonable" decision is one that is '"irrational' or 'not guided by sound

judgment."' Walls, 926 A.2d at 963 (internal citations and quotations omitted).

The defendant has not stated with specificity how his sentence is "unduly harsh and

excessive." The defendant's incarceration sentences were either within the mitigated guideline

range or below the guidelines." In formulating the sentence, the court considered not only the

sentencing guidelines, but also argument by counsel (including argument as to the need for

protection of the public), testimony at the sentencing hearing, the defendant's allocution, and the

presentence investigation report (including the defendant's rehabilitative needs and any

mitigating factors). See Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (citing

9 The parties agreed that the defendant's prior record score was a 5. N.T., Apr. 28, 2015, atp.4. Based on that prior record score, the guideline sentence range for a violation of 18 Pa.C.S. § 6105 was 60-72 +/- 12 months of incarceration. The court sentenced the defendant to 4-10 years of incarceration. The defendant's guideline range for a violation of 18 Pa.C.S. § 6106 was 48-60 +/- 12 months of incarceration. The court sentenced the defendant to 2-7 years of incarceration. Finally, the defendant's guideline range for a violation of 18 Pa.C.S. § 6!08 was 12-18 +/- 3 months of incarceration. The court sentenced the defendant to 3 years of probation.

6 Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (presumption that sentencing court has

considered defendant's rehabilitative needs and mitigating factors when court has reviewed

defendant's presentence report), Having given full and due consideration to the requisite factors

at sentencing, the court did not abuse its discretion in ordering the defendant to serve a mitigated

sentence.

IV. CONCLUSION

For all of the foregoing reasons, the judgment of sentence should be affirmed, -·,;, /!~11lff'f1___ _____ . ' WOELPPER, J.

7 IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION

COMMONWEALTH OF PEJ\TNSYLVANIA CP-51-CR-OO 10833-2012

vs.

· IGNACIO CARTEGENA 2043 EDA 2015

PROOF OF SERVICE - --n I hereby certify that I am this ,j{J' day of November, 2015, serving the foregoing Opinion on the persons indicated below by first class mail:

James R. Lloyd, III, Esq. 1617 JFK Blvd. Suite 999 Philadelphia, PA 19103

Hugh Bums, Chief . Appeals Unit Philadelphia District Attorney's Office 3 South Penn Square · Philadelphia, PA 19107

J Alyson M. Bagley, Es . Law Clerk to the Hon. Donna M. Woelpper