Com. v. Richburg, R. (memorandum)

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J-S07003-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RAYVON RICHBURG, Appellant No. 1559 EDA 2011 Appeal from the Judgment of Sentence entered May 20, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007476-2009. BEFORE: OLSON, WECHT AND COLVILLE,* JJ. MEMORANDUM BY OLSON, J.: FILED MAY 14, 2013 Appellant, Rayvon Richburg, appeals from the judgment of sentence entered May 20, 2011, committing him to eight to 16 years incarceration for convictions of third-degree murder,1 criminal conspiracy,2 and possession of an instrument of crime.3 For the following reasons, we affirm. The trial court summarized the relevant factual and procedural background of this matter as follows: [At approximately 7:00 p.m., on Saturday, March 22, 2008], three men defendants Alvan Wilson, [Appellant], and a third man Raphael Richburg knocked on the front door of Fatima ____________________________________________ 1 18 Pa.C.S.A. § 2502. 2 18 Pa.C.S.A. § 903. 3 18 Pa.C.S.A. § 907. *Retired Senior Judge assigned to the Superior Court. J-S07003-13 [Dennis ] home located at [] Street.[4] Fatima [Dennis] answered the knock and allowed Raphael Richburg to enter her home to speak with her boyfriend, James Lane. [Appellant] remained in the front doorway and Alvan Wilson remained near the street. Soon, a heated argument over drugs erupted between Raphael Richburg and James Lane, in which both men discharged their firearms two times. Each suffered a single perforating contact gunshot wound of the chest. Although severely injured, both men were able to move and their skirmish continued onto the front porch. As the men exited [] Street, two things happened in a matter of seconds: (1) [Appellant] fired shots in James Lane s general direction while escorting Raphael Richburg[] off the front porch; and (2) Alvan Wilson fired shots as well. At approximately 7:05 p.m., Philadelphia Police arrived at the scene. Officers found James Lane lying on the front porch of [] Street with a gun next to his lifeless body. Twenty-one packets of crack-cocaine were subsequently found on this property. Raphael Richburg was alive, but severely wounded, in front of [] [] Street. Paramedics rushed him to the Hospital of the University of Pennsylvania, where he was pronounced dead at 7:37 p.m. Fifty-four packets of crack-cocaine fell from his body while at the hospital. The medical examiner conducted autopsies on the bodies of the decedents and concluded that the manner of death for both was homicide. Trial Court Opinion, 1/5/2012, at 2-3. Appellant proceeded to a non-jury trial for the events occurring on March 22, 2008. On March 4, 2011, the trial court found Appellant guilty of ____________________________________________ 4 Throughout its opinion, the trial court refers to the homeowner as Ms. Davis, while Appellant s and the Commonwealth s briefs refer to her as Ms. Dennis. For the purposes of our memorandum, we refer to the homeowner as Ms. Dennis. -2- J-S07003-13 the aforementioned crimes. The trial court sentenced Appellant on May 20, 2011. On June 10, 2011, Appellant s trial counsel filed a timely notice of appeal. Thereafter, the trial court granted trial counsel leave to withdraw and appointed Appellant new counsel to represent him. Appellant presents one issue on appeal: Was the evidence insufficient to support a conviction of [third]degree murder, criminal conspiracy and possession of an instrument of crime where witnesses recanted and gave conflicting testimony and there was no corroborating physical evidence? Appellant s Brief at 3.5 Appellant challenges the sufficiency of the evidence, which we consider under a well-accepted standard of review: The standard we apply in reviewing the sufficiency of 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 factfinder 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 a 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 ____________________________________________ 5 The requirements of Pennsylvania Rule of Appellate Procedure 1925 have been satisfied in this matter. -3- J-S07003-13 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. Muniz, 5 A.3d 345, 348 (Pa. Super. 2010) (internal citations and quotations omitted), appeal denied, 19 A.3d 1050 (Pa. 2011). Appellant s appeal argues that there was insufficient evidence to convict him of third-degree murder, criminal conspiracy, and possession of an instrument of crime. We therefore set forth the statutory elements for each of Appellant s three convictions. Third[-]degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice. Commonwealth v. Ventura, 975 A.2d 1128, 1142 (Pa. Super. 2009) (citations omitted), appeal denied, 987 A.2d 161 (Pa. 2009). Malice is an essential element of murder, including thirddegree murder. Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa. Super. 2009). Malice may be found where the actor consciously disregards an unjustified and extremely high risk that the actor's conduct might cause death or serious bodily injury. Id. Malice may be inferred from the attending circumstances of the act resulting in the death. Commonwealth v. Lee, 626 A.2d 1238, 1241 (Pa. Super. 1993) (citations omitted). One such circumstance is evidence that the defendant used a deadly weapon upon a vital part of the victim's body; this inference alone is sufficient to -4- J-S07003-13 establish malice. Id. Appellant was also convicted of criminal conspiracy to commit murder, 18 Pa.C.S.A. § 903(a)(1) (codifying the offense of criminal conspiracy). Pursuant to that statute: 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. Id. In addition, subsection (e) of the conspiracy statute provides that [n]o person may be convicted of conspiracy to commit a crime unless an overt act in pursuit of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired. 18 Pa.C.S.A. § 903(e). Further: Circumstantial evidence may provide proof of the conspiracy. The 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. Additionally: An agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail. Commonwealth v. Jones, 874 A.2d 108, 121-122 (Pa. Super. 2005), quoting Commonwealth v. Greene, 702 A.2d 547, 554 (Pa. Super. 1997) (internal citations omitted). -5- J-S07003-13 Finally, Appellant was convicted of possession of an instrument of crime. Pursuant to 18 Pa.C.S.A. § 907(b), [a] person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally. Based upon that language, to sufficiently establish the crime, the Commonwealth must present evidence that, inter alia, the defendant possessed the firearm or other weapon, with an intent to use the tools for some criminal purpose. Commonwealth v. Hardick, 380 A.2d 1235, 1236 (Pa. 1977). Based upon review of the certified record, the parties submissions, and the trial court s opinion, we find that the trial court has thoroughly and accurately set forth why the evidence in this matter was sufficient to convict Appellant of the aforementioned crimes. See Trial Court Opinion, 1/5/2012, at 3-6. Consequently, we affirm on the basis of the trial court opinion and adopt it as our own. Appellant, however, challenges the trial court opinion, arguing that the evidence was insufficient to convict him of any of the charged crimes because, according to Appellant, within its assessment of the sufficiency of the evidence, the trial court improperly relied upon inadmissible evidence. Appellant s Brief at 9-14. Appellant argues that the trial court improperly admitted eyewitness statements from two witnesses who, after providing their statements, recanted and/or gave conflicting testimony. Id. Appellant argues that the statements were unreliable and untrustworthy, and should -6- J-S07003-13 have been used for impeachment purposes only. Id. at 13. Absent the eyewitness statement, Appellant argues that there was no corroborating physical evidence tying him to the crimes. Id. at 14. Consequently, Appellant argues that his judgment of sentence should be reversed. Id. Appellant s argument, however, is flawed for multiple reasons. Most fundamentally, pursuant to Pennsylvania precedent, when considering the sufficiency of the evidence, a reviewing court is required to consider all evidence that was actually received, without consideration as to the admissibility of that evidence. Commonwealth v. Palmer, 751 A.2d 223, 227 (Pa. Super. 2000); Commonwealth v. Reed, 990 A.2d 1158, 1161 (Pa. 2010) (holding that the entire trial record should be evaluated and all evidence received considered, whether or not the trial court s rulings thereon were correct. ) Therefore, even if the eyewitness statements were improperly admitted at trial, the trial court was obligated to consider them for sufficiency review purposes. Additionally, Appellant s contention that the eyewitness statements should not have been relied upon because Appellant believes that they were untrustworthy and unreliable challenges the weight of the evidence, not its sufficiency. See e.g. Commonwealth v. Murray, 597 A.2d 111 (Pa. Super. 1991) (distinguishing challenges to the sufficiency of the evidence from challenges to the weight of the evidence). Any challenge to the weight -7- J-S07003-13 of the evidence, however, was waived for failure to preserve the challenge within the requirements of Pennsylvania Rule of Criminal Procedure 607.6 Finally, we note that the arguments presented in Appellant s brief ultimately focus on and challenge the admission of evidence, not its sufficiency. Within his brief, Appellant does not identify which elements of his respective crimes were insufficiently proven; instead, he directs his entire argument to the admission of the eyewitness statements. If Appellant wanted to appeal the admission of the eyewitness statements, he was obligated to challenge their admission through an objection at trial and then follow-up with a subsequent appeal. Review of the certified record, however, reveals that the eyewitness statements were admitted based upon a stipulation from counsel, and Appellant s trial counsel did not lodge a contemporaneous objection preserving his right to appeal their admission. Appellant s effort to now circumvent the doctrine of waiver by recasting his claim as a challenge to the sufficiency of the evidence is unavailing. Based ____________________________________________ 6 Pursuant to Pennsylvania Rule of Criminal Procedure 607: A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion. See Pa.R.Crim.P. 607. Appellant made no such motion in this matter. -8- J-S07003-13 upon the reasons set forth in the trial court s January 5, 2012 opinion, the evidence was more aforementioned crimes. than sufficient to convict Appellant of the We therefore affirm Appellant s judgment of sentence on the basis of the trial court opinion. The parties are instructed to attach a copy of the trial court s January 5, 2012 opinion to all future filings regarding this appeal. Prior to attaching that opinion, however, we instruct the parties to redact any reference to the street name and number where the incident in this matter took place. Judgment of sentence affirmed. Judgment Entered. Prothonotary Date: 5/14/2013 -9-

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