Com. v. Quinones, E.

• Court: Superior Court of Pennsylvania
• Decided: June 7, 2024
• Docket: 3164 EDA 2022
• Status: Unpublished

Opinion

J-S11010-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWIN QUINONES : : Appellant : No. 3164 EDA 2022

Appeal from the Judgment of Sentence Entered August 5, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000190-2021

BEFORE: BOWES, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED JUNE 7, 2024

Edwin Quinones appeals from the judgment of sentence of eight to

sixteen years of incarceration, which was imposed after he was convicted at a

bench trial of robbery and related offenses. We affirm.

Appellant’s convictions stem from an incident on March 31, 2020, when

he and another individual attempted to steal an electric bicycle from sixty-

five-year-old Mohamed Diallo. At approximately 10:45 p.m., Mr. Diallo began

to ride his bicycle home from the Frankford Transportation Center in

Philadelphia, but Appellant forced him to the ground by grabbing and punching

him. As Appellant and Mr. Diallo fought on the ground, Appellant called to a

second individual, “[H]elp me, help me. We have to take this bike[.]” N.T.

Trial, 9/27/21, at 14. Appellant then punched Mr. Diallo all over his body,

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* Retired Senior Judge assigned to the Superior Court. J-S11010-24

causing scratches and bruises. A bystander called the police. When Appellant

and his cohort heard sirens, they attempted to take the bicycle. However,

due to its weight, they instead removed the bicycle’s two batteries and fled.

Officer Timothy Moyer of the Southeastern Pennsylvania Transportation

Authority responded to the scene. Upon his approach, he saw two individuals

in a parking garage about one-half block away, “fiddling with big black

objects.” N.T. Trial, 10/15/21, at 9. After being told by Mr. Diallo that the

two men had taken his bicycle batteries and fled in a specific direction, Officer

Moyer returned to the two individuals he had seen because they matched the

description. Officer Moyer arrested Appellant and recovered the two batteries,

while another officer arrested the accomplice. Approximately five minutes

after the attack, Mr. Diallo was brought to the two men and identified them

as his assailants.

The Commonwealth charged Appellant with robbery, conspiracy to

commit robbery, theft by unlawful taking, receiving stolen property, simple

assault, and recklessly endangering another person. Appellant proceeded to

a bench trial where the court heard testimony from Mr. Diallo and Officer

Moyer. Mr. Diallo detailed the attack at trial with the help of an interpreter

but, because almost eighteen months had passed and Appellant’s hairstyle

had changed, he did not positively identify Appellant as his assailant in court.

See N.T. Trial 9/27/21, at 12 (“He look[s] like the guy who was sitting near

the lawyer but his hair was different at that time.”). Considering all the

evidence, the court convicted Appellant as charged and, after ordering a pre-

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sentence investigation (“PSI”) report and several evaluations, imposed

consecutive four-to-eight-year terms of imprisonment for robbery and

conspiracy to commit robbery.

Appellant filed a post-sentence motion. Therein, he challenged the

weight of the evidence and sought reconsideration of his sentence, which he

alleged was excessive, disproportionate to the conduct, did not carefully

consider various mitigating factors or the guidelines, did not appropriately

balance the protection of the public and the gravity of the offense with his

rehabilitative needs, relied on improper factors unsupported by the evidence,

and lacked an on-the-record justification for the terms of incarceration being

imposed consecutively. Appellant’s motion was ultimately denied by operation

of law.

A timely notice of appeal followed. Appellant complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) statement and the trial court issued a

responsive Rule 1925(a) opinion. We are presented with two questions for

our review:

1. Was the evidence insufficient to convict [Appellant] of conspiracy to commit robbery?

2. Did the trial court err when it imposed a manifestly excessive and unreasonable sentence?

Appellant’s brief at 4 (capitalization altered).

Appellant first assails the sufficiency of the evidence to sustain his

conspiracy conviction. We review this issue mindful of the following legal

principles:

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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 this test, we may not weigh the evidence and substitute our judgment for 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. Dixon, 276 A.3d 794, 800 (Pa.Super. 2022) (cleaned

up).

The crime of conspiracy is defined thusly:

(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. § 903(a). The object crime for Appellant’s conspiracy conviction

was robbery, the specific subsection of which is defined as follows: “in the

course of committing a theft,” the defendant “inflicts bodily injury upon

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another or threatens another with or intentionally puts him in fear of

immediate bodily injury.” 18 Pa.C.S. § 3701(a)(1)(iv).

This Court has detailed the four factors that must be considered in

determining whether a conspiracy existed as to the object crime: “(1) an

association between alleged conspirators; (2) knowledge of the commission

of the crime; (3) presence at the scene of the crime; and (4) in some

situations, participation in the object of the conspiracy.” Commonwealth v.

Mitchell, 135 A.3d 1097, 1102–03 (Pa.Super. 2016) (cleaned up). Mere

presence, association, or knowledge is insufficient. See Dixon, 276 A.3d at

801. Since conspiracies are rarely, if ever, formally documented, “[t]he

defendant’s intent, as well as the agreement, is almost always proven through

circumstantial evidence, such as by the relations, conduct or circumstances of

the parties or overt acts on the part of the co-conspirators.” Id. (cleaned up).

In that regard, “[t]he conduct of the parties and the circumstances

surrounding such conduct may create a web of evidence linking the accused

to the alleged conspiracy beyond a reasonable doubt.” Mitchell, 135 A.3d at

1103 (cleaned up).

In making his sufficiency argument, Appellant concedes that the

evidence proved he had “an agreement, and shared intent, to steal from [Mr.]

Diallo.” Appellant’s brief at 11. However, he asserts that the evidence did

not establish beyond a reasonable doubt that there was either an agreement

or a shared intent to inflict bodily harm on Mr. Diallo. Id.

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Upon review, the testimony bears out that as Appellant was punching

Mr. Diallo, he sought assistance from another individual to steal Mr. Diallo’s

bicycle. The individual came over to help Appellant steal the bicycle while

Appellant continued to pummel Mr. Diallo. Upon hearing sirens, Appellant and

the other man, being unable to lift the bicycle, stole the two bicycle batteries,

fled together, and remained together with the batteries until ultimately

apprehended by responding police officers. This circumstantial evidence was

sufficient to establish an agreement and shared intent to inflict bodily injury

upon Mr. Diallo, namely, by Appellant punching him, in the course of both of

them stealing the bicycle. Accordingly, no relief is warranted on this claim.

Appellant next argues that his aggregate sentence was excessive and

unreasonable, advancing five different bases. Id. at 12. It is well-settled that

“[s]entencing is a matter vested in the sound discretion of the sentencing

judge[.]” Commonwealth v. Glawinski, 310 A.3d 321, 326 (Pa.Super.

2024) (cleaned up). As such, our standard of review “is very narrow” and we

reverse sentences only where “the appellant [establishes], by reference to the

record, that the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a

manifestly unreasonable decision.” Id. (cleaned up).

Before we can reach the merits, though, Appellant must invoke our

jurisdiction by: (1) timely filing a notice of appeal, (2) preserving the precise

issue at sentencing or in a post-sentence motion, (3) including a Pa.R.A.P.

2119(f) statement in his appellate brief, and (4) presenting a substantial

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question. See Commonwealth v. Tejada, 107 A.3d 788, 797-98 (Pa.Super.

2015).

Appellant filed a timely notice of appeal, included a Rule 2119(f)

statement in his brief, and pursued a post-sentence motion in the trial court.

As detailed hereinabove, the motion alleged, inter alia, that “the [c]ourt relied

on improper factors not supported by the evidence[.]” Post-Sentence Motion,

8/14/22, at unnumbered 1. However, his brief asserts that the court: (1)

imposed a sentence “grossly disparate” to his conduct by running the

aggravated-range sentences consecutive to each other; (2) “ignored his

rehabilitative needs and focused almost exclusively on punishment[;]” (3)

double-counted his prior convictions; (4) punished Appellant for proceeding

to trial; and (5) mistakenly believed that Appellant and his cohort both

assaulted Mr. Diallo, and that Appellant punched Mr. Diallo in the head. See

Appellant’s brief at 12-15. The general sentence in his motion did not preserve

claims three, four, and five because it did not put the trial court on notice of

the specific improper factors. Since the final three issues were not preserved

in his post-sentence motion or at sentencing, “they are not subject to our

review.” Tejada, 107 A.3d at 799 (citations omitted).

Appellant did preserve his first two claims in his post-sentence motion

and we therefore turn to the final jurisdictional requirement, i.e., whether he

raised a substantial question. “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing Code;

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or (2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Schroat, 272 A.3d 523, 527 (Pa.Super. 2022)

(cleaned up). Both claims raise a substantial question. Id. (holding that

defendant raised a substantial question regarding the excessiveness of a

sentence due to the court failing to consider mitigating factors);

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa.Super. 2019) (concluding

the defendant raised a substantial question as to “whether his sentence was

excessive in conjunction with an assertion that the trial court failed to consider

mitigating factors”). Therefore, Appellant has invoked our jurisdiction to

review the merits of these claims.1

Regarding the consecutive nature of Appellant’s sentences,

Long standing precedent recognizes that the Sentencing Code affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. We will not disturb consecutive sentences unless the aggregate sentence is ____________________________________________

1 We note that Appellant failed to include these specific issues in his Rule 1925(b) statement and, therefore, we could find them waived. See e.g., Commonwealth v. Rickenbach, 2024 WL 1091359, at *4 (Pa.Super. 2024) (non-precedential decision) (finding waiver where the appellant did not preserve specific discretionary-aspects-of-sentencing claim with other discretionary sentencing claims in his Rule 1925(b) statement). However, the trial court’s Rule 1925(b) order included many deficiencies, the most egregious of which was its statement that Appellant’s failure to comply with Rule 1925(b) “may be considered by the [a]ppellate [c]ourt as a waiver of all objections[.]” Order, 1/27/23 (emphasis added). We have held that “it would be fundamentally unfair to require appellants to strictly comply with the requirements of Rule 1925, but not require the same diligence from the trial court requesting a Rule 1925(b) statement.” Commonwealth v. Lissmore, ___ A.3d ___, 2024 WL 973491, at *3 n.2 (Pa.Super. 2024) (cleaned up). Accordingly, we decline to find waiver.

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grossly disparate to the defendant’s conduct, or viscerally appears as patently unreasonable.

Commonwealth v. Brown, 249 A.3d 1206, 1212 (Pa.Super. 2021) (cleaned

up). Furthermore, “[w]here the trial court is informed by a PSI [report], it is

presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Torres, 303 A.3d 1058, 1065

(Pa.Super. 2023) (cleaned up).

Here, the trial court had the benefit of PSI, mental health, and forensic

reports, sentencing memoranda from the Commonwealth and Appellant,

argument from both attorneys, and Appellant’s allocution. See N.T.

Sentencing, 8/5/22, at 25-26. The court noted that Appellant was classified

as a repeat felon from his prior record score. During Appellant’s allocution,

he apologized to the court and explained that his prior record score was the

result of being in the wrong place at the wrong time. Id. at 24-25. The court

observed that, by virtue of proceeding to trial, it did not expect Appellant to

express remorse or take responsibility at that time, but it lamented Appellant’s

decision during his allocution to apologize to the court instead of the victim

and to classify his prior convictions as being “a miscommunication” and

because he was “caught in the wrong area at the wrong time[.]” Id. at 26,

30-31.

As to the proportionality of Appellant’s sentence, the court determined

that the use of force was unnecessary to achieve the objective of stealing the

bicycle since Mr. Diallo was nearly twice his age, and Appellant had the aid of

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another individual. Id. at 31. The trial court also opined that Appellant was

a danger to the public because of his “extensive and serious criminal

history, . . . most of which relates to violence towards another person, and

the criminal conduct in the case at hand, physically assaulting a sixty-five-

year-old man in connection to robbing [him.]” Trial Court Opinion, 5/9/23, at

20.

Noting Appellant’s multiple mental health diagnoses and his violence

and anger issues, the court observed that Appellant has had the opportunity

for community treatment, but that he fared better while in custody. See N.T.

Sentencing, 8/5/22, at 28-32 (stating that he “does well in custody[, h]e takes

his mental health medication and has no infractions”). Further, although the

trial court indicated that it “ha[s] to worry about rehabilitation of” Appellant,

it was also concerned about “the gravity of the offense and danger to the

community.” Id. at 31-32. Balancing these, the court concluded that a state

sentence with mental health and drug treatment was appropriate.

Our review of the certified record confirms that the trial court considered

all relevant factors and did not impose a disproportionate sentence.

Discerning no abuse of discretion, we affirm Appellant’s judgment of sentence.

Based on the foregoing, Appellant has not presented any claims entitling

him to relief. Accordingly, we affirm his judgment of sentence.

Judgment of sentence affirmed.

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Date: 6/7/2024

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