Commonwealth v. Marquez

980 A.2d 145, 2009 Pa. Super. 170, 2009 Pa. Super. LEXIS 3266, 2009 WL 2710199

• Court: Superior Court of Pennsylvania
• Decided: August 31, 2009
• Docket: 537 EDA 2007
• Status: Published

Opinions

OPINION BY

MUSMANNO, J.:

¶ 1 Edwin Marquez (“Marquez”)¹ appeals from the judgment of sentence imposed after he was convicted of third-degree murder and criminal conspiracy.² We affirm.

¶ 2 The pertinent facts of this case are as follows:

The instant matter arose out of the burglary of [Marquez’s] home on May 22, 2005. On that date, [Marquez] and his brother, ... Carlos Jiminez [“Jimi-nez”], arrived home, after going to a nearby store, and found three men in the home they shared.

At least one of the men was armed. The intruders ran from the home but not before [Jiminez] disarmed one of them.

After the intruders were gone, the police were summoned and, based on the descriptions provided them, they apprehended a suspect. [Jiminez] did not tell the police about the gun he had taken from one of the men.

Two days later, Carlos Alicea, [“the decedent”], his sister, Melanie Cales, his cousin, Rosa Ayala, and her cousin, Gri-sel Rivera were waiting together for a bu[s] at 5th & Cambria Streets when [Marquez] and another male walked by them. [Marquez] was speaking to someone on a cell phone and was overheard saying “He is here, he is in the store” all the while imploring the person to whom he was speaking to hurry up and get there. [Marquez] then entered the store where he grabbed the decedent, who had just gone inside it, because he believed that the decedent had been one of the men who had entered his home two days earlier. The two men began tussling. This continued for a short while both inside the store and outside it. Eventually, [Marquez] got the decedent in a “full nelson” hold outside the store. When he did, [Jiminez], who had just driven up, ran up to the decedent and shot the decedent in the chest from close range while he still was in the grasp of [Marquez] with the gun he had taken from one of the intruders two days earlier. [Marquez] immediately let go of the decedent[,] who stumbled away. When he did so, [Jiminez] fired a second shot at him. The decedent then fell to the ground at which time [Jimi-nez] walked over to him and fired a third shot at him.

Following the shooting, both [Marquez] and his brother fled the scene. They both eventually went to Florida where they were arrested on June 7, 2005 and returned to Philadelphia.

The decedent was taken to a nearby hospital where he died shortly after arriving there. An autopsy revealed that the decedent suffered two gunshot wounds to his upper body. The bullets that entered his body damaged his heart, lungs, and liver.

Trial Court Opinion, 4/26/07, at 2-3.

¶ 3 Marquez was charged with murder generally, criminal conspiracy and various weapons offenses. Marquez and Jiminez were tried, as co-defendants, by a jury in October/November 2006. The jury convicted Marquez of third-degree murder and criminal conspiracy. On January 18, 2007, the trial court sentenced Marquez to a prison term of seventeen and one-half to thirty-five years on the murder conviction and a concurrent prison term of ten to twenty years on the conspiracy conviction. Marquez then filed a timely Notice of appeal. The trial court ordered that Marquez file a Concise Statement of matters complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), within fourteen days from the date the notes of testimony became available.³ Marquez filed a Concise Statement on April 10, 2007.

¶ 4 Marquez raises the following issues on appeal:

1. Is [Marquez] entitled to an arrest of judgment on the charges of murder in the third degree and criminal conspiracy where there is insufficient evidence to sustain the verdict and where the Commonwealth did not prove its case beyond a reasonable doubt?

2. Is [Marquez] entitled to a new trial where he requested a charge on the issue of voluntary manslaughter (unreasonable self-defense) and where the evidence would have justified such a charge, but where the court refused to give that charge?

Brief for Appellant at 3.

¶ 5 Marquez first contends that he is entitled to an arrest of judgment on his convictions of third-degree murder and criminal conspiracy. Marquez argues that there is nothing in the record that would indicate that he agreed with Jiminez to shoot or kill the decedent. Marquez also asserts that he was not acting with the mens rea of malice at the time of the shooting. Further, Marquez argues that he was not an accomplice to the decedent’s murder.

¶ 6 Our standard of review of this claim is as follows:

When ruling on a motion in arrest of judgment, a trial court is limited to ascertaining “the absence or presence of that quantum of evidence necessary to establish the elements of the crime.” At this stage in the proceedings, the trial court is limited to rectifying trial errors, and cannot make a redetermination of credibility and weight of the evidence ....

For purposes of appellate review,

“In passing upon such a motion [in arrest of judgment], the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove.”

In order for a trial court to properly grant a criminal defendant’s motion in arrest of judgment on the ground of insufficient evidence, “it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant] is guilty of the crime charged.”

Commonwealth v. Melechio, 442 Pa.Super. 281, 658 A.2d 1385, 1387 (1995) (citations omitted) (emphasis in original).

¶7 Third-degree murder is defined “all other kinds of murder” other than first degree murder or second degree murder. 18 Pa.C.S. § 2502(c). “The elements of third-degree murder, as developed by case law, are a killing done with legal malice.” Commonwealth v. MacArthur, 427 Pa.Super. 409, 629 A.2d 166, 167-68 (1993).

Malice exists where there is a particular ill-will, and also where “there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.”

Melechio, 658 A.2d at 1388 (citations omitted).

¶ 8 “A person is guilty of [criminal] conspiracy with another person or persons ... if with the intent of promoting or facilitating” the commission of a crime, 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). In addition, a person will be found to be an accomplice “of another person in the commission of an offense if:”

(1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it....

18 Pa.C.S.A. § 306(c).

¶ 9 Our review of the evidence of record reveals, inter alia, that Rosa Ayala (“Ayala”) testified that, prior to the shooting, while at the bus stop, she heard a man she identified as Marquez tell someone, while using his cell phone, to “hurry up, come over here, he is here, hurry up.” N.T., 10/31/06, at 106. This testimony was corroborated by that of Grisel Rivera (“Rivera”), another eyewitness. N.T., 11/1/06, at 11, 15. Ayala further testified that Marquez then followed the decedent into the grocery store. N.T., 10/31/06, at 106. As the decedent was coming out of the store, Marquez put him in a headlock and held him in that position. Id. at 109, 115; see also N.T., 11/1/06, at 15. While Marquez was holding the decedent in a headlock outside of the grocery store, Jim-inez came down Cambria Street, “took the gun and shot [the decedent].” N.T., 10/31/06, at 114; see also N.T., 11/1/06, at 18. After Jiminez shot the decedent, Marquez “moved back,” and the decedent fell. N.T., 10/31/06, at 115.

¶ 10 Commonwealth witness Anthony Fox (“Fox”) testified that he observed the fight that occurred between the decedent and a “larger man” prior to the shooting. N.T., 11/1/06, at 43^15. Fox testified that the larger man had the decedent in a headlock, at which time another man came across the street with an automatic hand weapon, approached the decedent, and shot him from very close range. Id. at 46. Fox indicated that the larger man “definitely” had the decedent in a headlock until after the first shot was fired. Id. at 46-47. After the first shot was fired, the larger man “let go” of the decedent. Id. at 47. The shooter then shot the victim a second time, and the decedent fell to the ground on his hands and knees. Id. at 48. The shooter then stood over the decedent and shot him a third time from above. Id.

¶ 11 At trial, Fox could not specifically identify the shooter or the man who had the decedent in a headlock because “[everything happened so fast.” Id. at 49-50. However, prior to trial, on May 31, 2005, Fox picked a photo of Jiminez from a photo array and identified him as the shooter. Id. at 57. Fox also picked a photo of Marquez from another photo array as looking “somewhat like the guy I picked from the first set of pictures.... ” Id. at 59.

¶ 12 Viewing the evidence adduced at trial in the light most favorable to the Commonwealth, as required under our standard of review, we conclude that it was sufficient to establish the elements of the crimes of third-degree murder and criminal conspiracy. From the Commonwealth’s evidence, the jury could infer that Marquez acted with malice by seeking out the decedent, calling someone to let them know that “he is here,” and holding the decedent in a headlock until after Jiminez shot him. Thus, the evidence was sufficient to establish Marquez’s guilt of third-degree murder.

¶ 13 Further, the evidence was sufficient to establish that Marquez was guilty of criminal conspiracy. The evidence revealed that Marquez was a larger man than the decedent, which easts doubt on Marquez’s assertion that he restrained the decedent only to ensure his arrest by the police. Fox indicated that Marquez was heavier and taller than the decedent, and as a result, Marquez easily overpowered the decedent in the scuffle that lasted less than a minute. N.T., 11/01/06, at 44-45. Given Marquez’s size advantage, it is doubtful that Marquez reasonably expected difficulty holding the decedent until the police arrived. Nonetheless, Marquez called Jiminez to urge his presence at the scene.

¶ 14 Fox testified further that Jiminez arrived with his gun drawn, charging it in preparation to fire in full view of Marquez, as he crossed the street toward the decedent. Id. at 45-46. Marquez continued to restrain the decedent until Jiminez shot him in the chest from a distance of three feet. Id. at 46-47. Jiminez subsequently shot the decedent two more times. Id⁴

¶ 15 Marquez showed no surprise and did not release the decedent until he had been shot. If Marquez were truly ignorant of his brother’s plans to shoot the decedent, one would not expect him to continue holding the decedent in place as Jiminez approached, wielding a loaded weapon. Instead, Marquez restrained the decedent long enough to be shot. He then immediately fled the scene with his brother, failing to remain and provide assistance to the decedent or the police.

¶ 16 This Court has repeatedly held that flight, along with other circumstantial evidence, supports the inference of a criminal conspiracy. See Commonwealth v. Davalos, 779 A.2d 1190 (Pa.Super.2001); Commonwealth v. Hatchin, 709 A.2d 405 (Pa.Super.1998). Flight is one aspect of the web of evidence that as a whole points to the existence of a criminal conspiracy. Commonwealth v. Davenport, 307 Pa.Super. 102, 452 A.2d 1058 (1982).

¶ 17 Marquez’s flight to Florida with his brother, Carlos Jiminez, after the murder, suggested an attempt to avoid prosecution. Likewise, his flight from the scene of the crime and from the Commonwealth established he was not an innocent pawn, unaware of his brother’s murderous designs. Indeed, when viewed in the totality of the circumstances, Marquez’s conduct showed consciousness of his guilt and a desire to escape prosecution for his part in the murder. Flight was the logical conclusion of their criminal confederation.

¶ 18 The web of circumstantial evidence, taken as a whole, points to the existence of a criminal conspiracy carried out by the two brothers. Marquez’s assertions that he restrained the decedent only in anticipation of police intervention, oblivious to Jiminez’s criminal intentions, were unsupported by the factual record. The evidence provided at trial was sufficient to allow the jury to conclude there was a criminal conspiracy.

¶ 19 Marquez’s contrary claims, ie., that he did not act with malice, that he did not engage in a conspiracy to commit murder, and that he was not an accomplice to the murder, are based on his own testimony and that of Jiminez. Thus, those claims go to the weight of the evidence and the credibility of the witnesses, which were within the province of the jury as fact-finder. See Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (stating that, “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;” the Commonwealth may sustain its burden of proof by means of circumstantial evidence); Melechio, 658 A.2d at 1387 (holding that, on a motion in arrest of judgment, the trial court “cannot make a redetermination of credibility and weight of the evidence”). Here, the jury chose to believe the testimony of the Commonwealth’s witnesses. Thus, we conclude that Marquez’s claim that he was entitled to an arrest of judgment lacks merit.

¶20 Marquez next contends that he is entitled to a new trial because the trial court erred by refusing to charge the jury on justification/self-defense or on voluntary manslaughter. Marquez argues that the defense requested instructions on both justification/self-defense and on voluntary manslaughter, and that the trial court refused to give the requested charges. Marquez asserts that the co-defendant, Jimi-nez, who testified at trial, offered evidence upon which the jury could have determined that Jiminez possessed a reasonable or unreasonable belief as to his ability to use self-defense.

¶ 21 In addressing this contention, we first note that, pursuant to the Rules of Criminal Procedure, “[n]o portions of the [jury] charge[,] nor omissions therefrom[,] may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate.” Pa.R.Crim.P. 647(B). “[T]he mere submission and subsequent denial of proposed points for charge that are inconsistent with or omitted from the instructions actually given will not suffice to preserve an issue, absent a specific objection or exception to the charge..." Commonwealth v. Pressley, 584 Pa. 624, 887 A.2d 220, 225 (2005).

¶22 In the instant case, Marquez failed to object at the conclusion of the jury charge, and stated that he had no objections or exceptions to the charge. N.T., 11/3/06, at 115. Thus, Marquez’s claim is waived under the requirements of Rule 647(B). See Commonwealth v. Russell, 938 A.2d 1082, 1093 (Pa.Super.2007) (holding that, in order to preserve for appeal a challenge to a jury charge, the defendant must lodge a specific objection or exception to the jury charge itself).

¶ 23 Judgment of sentence affirméd.

¶ 24 Judge KLEIN files a Concurring and Dissenting Opinion.

¶ 25 Judge CLELAND files a Concurring and Dissenting Opinion.

1 . We note that Marquez is also known as Edwin Jiminez.

2 . 18 Pa.C.S.A. §§ 2502, 903.

3 . The record before us does not indicate the date upon which the notes of testimony became available.

4 . Marquez did nothing to prevent Jiminez from shooting the decedent two more times, which would militate against a conspiracy to commit assault, as espoused by the dissent.