Com. v. Rodriguez, J.

• Court: Superior Court of Pennsylvania
• Decided: March 4, 2021
• Docket: 178 MDA 2020
• Status: Unpublished

Opinion

J-A25010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JALIEL RODRIGUEZ : : Appellant : No. 178 MDA 2020

Appeal from the Judgment of Sentence Entered November 13, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0006629-2017

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED MARCH 04, 2021

Jaliel Rodriguez appeals from his November 13, 2019 judgment of

sentence of life imprisonment without parole, which was imposed following his

convictions for second–degree murder, robbery, and person not to possess a

firearm. He challenges the sufficiency and weight of the evidence supporting

his murder and robbery convictions. After thorough review, we affirm.

We glean the following facts from the evidence introduced at a jury trial

commencing September 10, 2019. On September 25, 2017, at approximately

11:00 p.m., Jasmine Holmes and Patrice Allen were watching Netflix in their

home at 621 Dauphin Street, Harrisburg, Pennsylvania. N.T., 9/10/19, at 83.

They heard a thud at the door. Id. at 85. Jasmine quickly realized someone

was trying to kick in her door. She ran to the door and threw her body against

it to prevent the intruder from breaking in. Id. at 88. Patrice picked up a gun

that was on the sofa between them and moved toward the door, attempting J-A25010-20

at the same time to remove the safety on the gun. Id. at 92. Jasmine heard

a pop, which she recognized as a gunshot. Id. She looked behind her and

saw Patrice clutching her stomach and falling to the ground. Id. A bullet had

pierced the door and struck Patrice in the abdomen. Jasmine immediately

called 911, and when the ambulance arrived, Patrice was able to walk out.

However, she was pronounced dead at 9:00 a.m. the next morning due to

internal bleeding caused by the gunshot wound. N.T., 9/11/19, at 293. A .40

caliber projectile was recovered from the victim’s body and turned over to

police. Id.

At the scene that night, Forensic Investigator Duane Pyles collected one

.40 caliber casing manufactured by Winchester. N.T., 9/10/19, at 45. He also

took photographs depicting the bullet hole in the front door, and which

established that the projectile was fired into the home from outside. Id. at

51. Other photographs captured drugs, drug paraphernalia, guns, and small

denominations of money within the home. At trial, Ms. Holmes admitted that

she sold drugs out of the home on Dauphin Street and that her home had

previously been burglarized.

Several neighbors heard the gunshot on September 25, 2017. One

neighbor, Amber Neely, saw a light-skinned black male wearing black pants,

a red shirt, and black hoodie running up the street shortly after she heard the

gunshot, and she observed further that there were no cars on the street at

the time. Id. at 131, 135-137.

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At or about noon the next day, September 26, 2017, Dauphin County

Sheriff’s Deputy Josh Long spotted a vehicle that he recognized as being

associated with Appellant near 7th and Maclay Streets. Id. at 143. Appellant

was wanted on an outstanding warrant. When the deputy saw Appellant

sitting in the front passenger seat of the car, he radioed another unit, which

effected the traffic stop. Id. at 144-145. As Deputy Pyles observed the

stopped vehicle, he noticed that Appellant was making a lot of distinctive

movements in the car. Id. at 145. He and the other deputies approached

the vehicle with guns drawn. Id. at 146. When Appellant refused their

commands to step out of the vehicle, they removed him. Id. at 150. The

officers located a pistol in the glovebox, identified as a loaded black Beretta

handgun, together with a magazine. Id. Another magazine was located in

Appellant’s pocket. Further search of the vehicle yielded bundles of suspected

heroin. Appellant volunteered to law enforcement that everything in the car

was his. Id. at 147. He later reiterated that statement to Agent Chris Burnell,

associated with the Attorney General’s office, after the agent gave him his

Miranda warnings and he waived his rights in writing. Id. at 155-56.

Agent Burnell testified at trial that they had set up Appellant on

September 19, 2017, for an arrest based on the outstanding felony warrant.

Id. at 159. At that time, Appellant fled police in a vehicle, drove through a

neighborhood, abandoned the vehicle, and ran on foot. Id. at 158. Agent

Burnell retrieved suspected heroin, but did not recover a firearm. Police

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officers from Lower Swatera later located a firearm in a yard that was in

Appellant’s flight path, which was identified as a Glock .40 caliber with an

extended clip. Id. The possession of this weapon was the basis of the person

not to possess charge against Appellant.

Quames Foster testified at trial and recounted the following. He is a

part-time cab driver who knew Appellant. Sometime between September 19

and September 25, 2017, Appellant was in Foster’s cab. Appellant told Foster

that he was forced to discard money and a gun. Id. at 167. Appellant

confirmed that it was the weapon Foster had seen before, a Glock .40 caliber

with an extended magazine. Id. On this date, Appellant had a different gun

on the seat beside him in the cab, a black Beretta. Id. at 169. Foster

identified the Beretta, marked as Commonwealth Exhibit 47, as the same gun

Appellant had in his possession on and after September 19, 2017. Id.

Around midnight on September 25, 2017, Foster received a call for a

ride from Appellant. Appellant asked Foster to pick him up at 15 th and State

Streets, and he was there when Foster arrived about ten to fifteen minutes

later. Id. at 173-73. Foster described Appellant as “visibly shaken” and

“paranoid.” Id. at 174. Appellant instructed him to be very cautious and not

to draw any attention to the vehicle. Id. at 176. They saw a police car on

State Street, and Appellant “ducked down” to avoid being seen. Id. at 177.

Appellant told Foster he had been “shaking something down,” a term Foster

understood to mean a robbery or a theft. Id. at 172.

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Foster transported Appellant to Steelton that night and retrieved him

again the next morning. Aware that Appellant had friends or relatives on the

portion of Dauphin Street between 6th and 7th Streets, Foster told Appellant

that there was a lot of police activity at that location and suggested that he

should check on his people. Id. at 182. Appellant responded that everyone

was okay. Id.

Later that day, shortly after noon, Foster was taking his mother to the

store. He saw officers stop a blue vehicle at the light at 7th and Maclay, and

pull Appellant from the vehicle. Id. at 185.

On the afternoon of September 26, 2017, Detective Iachini received an

anonymous tip that Appellant was involved in the Dauphin Street murder.1

Sergeant Kyle Gautsch heard about the tip, and he checked Appellant’s name

in the system. He reached out to booking and learned that Appellant had

been arrested by agents of the Attorney General’s office for offenses involving

guns and drugs. N.T., 9/11/19, at 210. Sergeant Gautsch contacted those

agents and requested details about the gun that was seized from Appellant.

Id. at 211. The agents informed him that the weapon confiscated from

Appellant was a .40 caliber Beretta, which was consistent with the .40 caliber

____________________________________________

1 The anonymous tipster was subsequently identified as Quames Foster. Foster later gave a statement to police in which he detailed his interactions with Appellant in the days leading up to the murder, the night of the murder, and the next day.

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casing Officer Pyles retrieved at the murder scene. The ammunition in the

Beretta, like the casing, was manufactured by Winchester.

Upon learning that the gun was a black Beretta, Sergeant Gautsch

arranged for forensic investigator William Kimmick III to collect and transport

the firearm and magazines from the Attorney General’s office, the .40 caliber

cartridge found at the scene, and the bullet recovered from the victim’s body,

to the Pennsylvania State Police Firearms Laboratory. Id. at 214. Sergeant

David Krumbine, who had twenty-five years of experience in the examination

and identification of firearms, determined that the bullet, as well as the

cartridge casing found near the door of the murder scene, were both

discharged from the black Beretta seized from Appellant. Thus, the

Commonwealth offered evidence that the Beretta that fired the shot that killed

Patrice Allen was in Appellant’s possession shortly after the murder. Id. at

214.

In addition, Jasmine Holmes testified that she recognized Appellant as

a friend of Kyle Brown, who lives across the street from her. Mr. Brown had

been in her home and purchased drugs for personal use from her. She

testified that she had seen Appellant in the neighborhood on at least ten

occasions, and that he had looked in her direction when she was conducting

hand-to-hand drug transactions, leading her to believe that he knew she dealt

drugs.

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After hearing two days of the foregoing testimony, the jury found

Appellant guilty of all charges. He was sentenced on November 13, 2019, to

a mandatory term of life imprisonment without possibility of parole. On

November 21, 2019, counsel for Appellant filed a post-sentence motion, which

the trial court denied on January 14, 2020. Appellant filed a timely notice of

appeal, and both the trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review, which we have reordered:2

I. Whether the Commonwealth failed to present sufficient evidence to sustain Appellant's convictions where the Commonwealth did not prove that Appellant attempted to commit a robbery or was the person outside of 621 Dauphin Street, nor that Appellant was a principle or accomplice to a murder in the commission of a felony?

II. Whether the trial court erred in denying Appellant's Post- Sentence Motion where the verdict was against the weight of the evidence so as to shock one’s sense of justice where the Commonwealth never showed, inter alia, that Appellant attempted to commit a robbery or was the person outside 621 Dauphin Street, nor that Appellant was a principle or accomplice to a murder in the commission of a felony?

Appellant’s brief at 5.

Our standard of review when considering a challenge to the sufficiency

of the evidence is well settled. Such a claim is a question of law.

We must determine whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. We must view evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all ____________________________________________

2 We address Appellant’s sufficiency claim first because if he were to be successful on that claim, he would be entitled to discharge on the second- degree murder and robbery convictions. See Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa.Super. 2011).

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reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict.

Our Supreme Court has instructed: 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. 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.

In addition, the Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we must evaluate the entire trial record and consider all evidence received against the defendant.

Commonwealth v. Green, 203 A.3d 250, 252-253 (Pa.Super. 2019) (en

banc) (quoting Commonwealth v. Orie, 88 A.3d 983, 1013-14 (Pa.Super.

2014)) (cleaned up).

Appellant challenges the sufficiency of the evidence supporting his

convictions of second-degree murder and robbery.3 A criminal homicide

constitutes second-degree murder, or “felony murder,” if “it is committed

while [the] defendant was engaged as a principal or an accomplice in the

perpetration of a felony.” 18 Pa.C.S. § 2502(b). Robbery is one of the

enumerated felonies for purposes of the statute. See 18 Pa.C.S. § 2502(d).

3 Appellant was also convicted of person not to possess a firearm, which stemmed from his discard of the Glock .40 caliber handgun with the extended magazine on September 19, 2017. He does not challenge the sufficiency of the evidence supporting that conviction.

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As our High Court explained in Commonwealth v. Tarver, 426 A.2d 569,

573 (Pa. 1981), the mens rea element of second-degree murder, the malice,

is constructively inferred from the malice incident to the perpetration of the

initial felony. Id. (quoting Commonwealth v. Yuknavich, 295 A.2d 290,

292 (Pa. 1972)).

Robbery is defined as follows:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another;

....

(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 Pa.C.S. § 3701(a).

Appellant contends that the Commonwealth failed to present sufficient

evidence that he caused serious bodily injury during the commission of a theft

because there was no evidence that he was at or near Dauphin Street on the

night of the murder, or in possession of the murder weapon at that time.

Appellant’s brief at 25 (citing 18 Pa.C.S. § 3701(a)(1)(i)). He claims further

that Quames Foster’s testimony was unreliable and that the inferences one

would have to draw to convict were unreasonable. Moreover, since the

Commonwealth did not prove that he committed robbery, Appellant argues he

cannot be convicted of murder in the second degree as the latter requires a

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criminal homicide committed while engaged in the perpetration of a felony .

Id. at 25-26.

In support of his position, Appellant directs our attention to

Commonwealth v. Bybel, 611 A.2d 188, 189 (Pa. 1992), wherein our

Supreme Court discharged Bybel after concluding that there was insufficient

evidence that he possessed the murder weapon prior to the murder. Appellant

asserts that there was less evidence herein than in Bybel that Appellant

possessed the murder weapon at the time of the robbery and shooting. In

Bybel, evidence was introduced that the rifle identified as the murder weapon

had been seized from Bybel by police seven months before, and had

subsequently been released to Bybel’s daughter. There was no evidence that

the daughter ever gave the rifle to her father, or to anyone. All that was

known was that four days after the killing, the rifle was found in Bybel's

basement. The Supreme Court concluded that “[b]ecause Bybel was not

shown to be in possession of the rifle between the time it was taken away

from him seven months before the homicide and four days after the homicide,

it cannot be said that the Commonwealth has proved beyond a reasonable

doubt that Bybel was in possession of the rifle at the time of the shooting.”

Id. at 189.

Appellant argues further that the facts herein are distinguishable from

the Supreme Court’s decision in Commonwealth v. Chambers, 599 A.2d

630 (Pa. 1991), in which the Court upheld robbery and first-degree murder

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convictions involving a victim who was beaten to death with a blunt

instrument. Multiple witnesses testified that they saw the victim and the

defendant arguing one hour before the victim’s body was discovered. At that

time, the defendant had what appeared to be a large stick in one of his hands,

and shortly after the body was discovered, the defendant was seen carrying

an axe handle.

Preliminarily, we must view the evidence in the light most favorable to

the Commonwealth. Appellant’s suggestion that Mr. Foster’s testimony should

not be credited disregards our standard of review. It is not our province to

re-weigh the evidence and substitute our judgment for that of the factfinder.

Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.Super. 2013). “[A]ny doubt

about the defendant’s guilt is to be resolved by the fact finder unless the

evidence is so weak and inconclusive that, as a matter of law, no probability

of fact can be drawn from the combined circumstances.” Id. (quoting

Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa.Super. 2011)). This is not

such a case.

The Commonwealth presented a compelling circumstantial case,

anchored by evidence that Appellant was seen in possession of the murder

weapon shortly before the murder, and arrested in possession of the murder

weapon less than one day after, which he admitted was his weapon. Two

witnesses, Jasmine Holmes and Quames Foster, provided details that, taken

together, linked Appellant to the robbery and murder. Ms. Holmes established

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that she was a drug dealer who conducted drug transactions on the street

outside her home. She recognized Appellant as a friend of Kyle Brown who

lived across the street, and she saw him on perhaps ten occasions on Dauphin

Street, and that he had witnessed her conducting drug sales.

Mr. Foster’s testimony established that Appellant was in possession of

the murder weapon a few days before the crime occurred and the morning

after. On the day of the murder, Appellant called Foster and mentioned that

he was planning to “shake something down,” which Foster took to mean a

robbery or stealing from someone. N.T., 9/10/19, at 172. Late that evening,

Appellant called and asked Foster to pick him up at 15th and State Streets, a

location near the scene of the crime. Appellant was there when he arrived ten

to fifteen minutes later. Foster described Appellant as “visibly shaken” and

“paranoid,” and afraid of drawing attention to the vehicle. Id. at 176. When

they passed a police car on State Street, Appellant “ducked down” so that he

would not be seen. Id. at 177.

When Mr. Foster retrieved Appellant the next morning from Steelton,

Appellant had the black Beretta. Id. at 183. Foster reported to Appellant that

there had been a lot of police activity on Dauphin Street the night before, a

fact he mentioned because he knew that Appellant had family or friends at

that location and that he might want to check in with them. Appellant told

him that they were okay. Id. at 182. Foster saw Appellant early that

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afternoon when he was being removed from a vehicle by police at 6 th and

Maclay. During that encounter, police confiscated the murder weapon.

We find that the evidence was legally sufficient to permit the jury to find

beyond a reasonable doubt that Appellant committed murder in the second-

degree and robbery. The evidence established that Appellant attempted to

break down the door at 621 Dauphin Street to rob the occupants, and that in

the course of this robbery attempt, he shot and killed Patrice Allen. Unlike

the evidence herein, there was no evidence in Bybel linking the defendant to

the murder weapon prior to the murder. The instant case is far more

analogous to Chambers, in which the evidence revealed that the defendant

was seen shortly before the murder arguing with the victim and holding a

large stick, and shortly after the murder carrying a wooden axe handle. The

evidence that Appellant possessed the murder weapon both before and after

the shooting is sufficiently proximate in time as to permit the jury to find

beyond a reasonable doubt that he committed the crimes charged. Hence,

Appellant is not entitled to relief on his sufficiency claim.

We turn now to Appellant’s claim that the verdict was against the weight

of the evidence. When we review a weight of the evidence claim, our standard

of review is distinct from the standard 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. 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

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reviewing a trial court's determination that the verdict is against the weight of the evidence. 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted,

emphasis in original) (quoting Commonwealth v. Widmer, 744 A.2d 745,

753 (Pa. 2000)).

Appellant contends that his convictions were against the weight of the

evidence because “the testimony of Jasmine Holmes and Quames Foster was

unreliable, contradictory, and inconsistent with the remainder of the evidence

presented at trial.” Appellant’s brief at 20. He alleges that many people knew

Ms. Holmes was a drug dealer. Furthermore, there was no evidence of any

“animosity between Kyle Brown, Jasmine Holmes, Patrice Allen, and therefore

Appellant.” Id. at 21. He suggests further that the only evidence that he

possessed the murder weapon prior to September 25 was offered by Foster,

whose testimony is suspect. He alleges that Mr. Foster only offered the tip to

police after he observed that Appellant was stopped by police on September

26, that he received $1,000 for providing the tip, and further, that he was

accorded favorable treatment in a pending drug possession charge.4

4 We note that evidence that many people knew Ms. Holmes sold drugs, that Ms. Holmes knew Kyle Brown and his sisters, and that there was no animosity between them was placed before the jury. The jury also heard that Mr. Foster received $1,000 for his tip to police and that pending charges were disposed of in his favor. The jury was free to believe or disbelieve these individuals.

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Moreover, no testimony placed him on Dauphin Street on the night of

September 25, 2017. Id. at 22. Hence, Appellant claims that the verdict is

against the weight of the evidence, and requests that his convictions be

overturned as “the Commonwealth’s evidence was so patently unreliable

and/or contradictory as to make a verdict based thereon pure conjecture.”

Id. at 24.

The trial court cited the applicable law governing the weight of the

evidence. It relied upon Commonwealth v. Cruz, 919 A.2d 279, 282

(Pa.Super. 2007), for the proposition that

A verdict is said to be contrary to the evidence such that it shocks one’s sense of justice when ‘the figure of justice totters on her pedestal,’ or when ‘the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.”

See Trial Court Opinion, 3/30/20, at 5.

Applying that test, the trial court did not find the verdict to be against

the weight of the evidence. The trial court’s determination was not manifestly

unreasonable or the product of bias or ill-will, so we have no basis to disturb

it.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/04/2021

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