Com. v. Morales, M.

J-S22002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MATHEW STEFAN MORALES,

Appellant No. 833 MDA 2016

Appeal from the Judgment of Sentence February 16, 2016 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001430-2015

BEFORE: SHOGAN, MOULTON, and PLATT,* JJ. MEMORANDUM BY SHOGAN, J.: FILED MAY 11, 2017

Appellant, Mathew Stefan Morales, appeals from the February 16, 2016 judgment of sentence entered in the Court of Common Pleas of Lancaster County following a jury trial. We affirm.

In its opinion, the trial court presented the facts of the crime in an extensive fourteen-page summary of the evidence presented at trial. See Trial Court Opinion, 9/2/16, at 2–15. Briefly, testimony established that Manheim Township Police and Lancaster City Bureau of Police were dispatched at 3:20 a.m. on June 21, 2014, to the area of the 1100 block of Helen Avenue for a report by an individual on a cell phone reporting that he

had been shot. N.T., 2/8/16, 93–94, 114–115. Manheim Township Officer ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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Kelly Spence testified that the victim, Xavier Garriga, was lying on his back and bleeding, with a cell phone in his hand, in the 800 block of New Holland Pike.1 Id. at 116–117. Three spent shell casings and a spent .40 caliber bullet were also located and documented. Id. at 167, 182–191. The victim died of a “through-and-through” gunshot wound to the chest from a bullet that “went completely through the body, so there was no bullet within the body.” N.T., 2/11/16, at 542. The Commonwealth presented an extensive and exhaustive case of circumstantial evidence against Appellant. See Trial Court Opinion, 9/2/16, at 2–15.

At the conclusion of the four-day trial, the jury convicted Appellant on February 12, 2016, of first-degree murder, 18 Pa.C.S. § 2502(a). Appellant waived a presentence investigation, and the trial court sentenced Appellant on February 16, 2016, to life imprisonment without the possibility of parole. N.T., 2/12/16, at 8. On February 17, 2016, Appellant filed a post-sentence motion requesting a new trial and asserting that the verdict was against the weight of the evidence. Appellant filed a second post-sentence motion on February 24, 2016, contesting certain costs assessed against him. While post-sentence motions were pending, Appellant filed a premature notice of ____________________________________________

1 Police and the Lancaster-Wide Communications dispatch center utilized the pings from the cell phone to locate the victim. N.T., 2/8/16, at 93–95, 115– 117.

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appeal on March 14, 2016, at Superior Court Docket Number 423 MDA 2016, which he withdrew the next day.

The trial court denied both post-sentence motions by separate orders on April 5, 2016. Appellant filed an untimely notice of appeal on May 9, 2016, docketed in this Court at 744 MDA 2016.2 Apparently realizing his misstep, Appellant presented a Motion to Reinstate Appellate Rights Nunc Pro Tunc to the trial court.3 On May 18, 2016, the trial court reinstated Appellant’s right to appeal nunc pro tunc, and Appellant filed the instant notice of appeal on May 23, 2016. Both Appellant and the trial court complied with Pa.R.A.P. 1925.4

Appellant raises the following issues on appeal, which we have reordered for ease of disposition: ____________________________________________

2 The appeal was marked “Discontinued” on June 27, 2016. 3 The docket entries do not reveal the filing date of the motion, but it is attached to the trial court’s order dated May 17, 2016, that was filed on May 18, 2016. There is no order quashing the appeal as untimely by this Court; indeed, the appeal at 744 MDA 2016 was not marked as “Discontinued” until June 27, 2016. Thus, on May 17, 2016, the trial court did not have jurisdiction to entertain Appellant’s Motion to Reinstate Appellate Rights Nunc Pro Tunc. As noted supra in note 1, however, that appeal eventually was marked discontinued by this Court, and the trial court granted the nunc pro tunc right to appeal. Therefore, in the interest of judicial economy, we consider the appeal. 4 On July 15, 2016, pursuant to Pa.R.A.P. 3517, this Court dismissed the instant appeal for Appellant’s failure to file a docketing statement. In response to counsel’s explanatory petition, we reinstated the appeal on August 3, 2016.

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A. Whether the evid[e]nce presented at trial was insufficient to find defendant guilty of first degree murder.

B. Whether the trial court abused its discretion in concluding that jury’s verdict was not against the weight of evidence presented at trial.

Appellant’s Brief at 1 (full capitalization omitted).

We first address Appellant’s argument regarding the sufficiency of the evidence. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). “[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-finder to determine the weight to be accorded to each witness’s testimony and to believe all, part, or none of the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016). Moreover, as an appellate court, we may not re-weigh the evidence and

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substitute our judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

Beyond reference to two cases setting forth the above standards, Appellant’s two-sentence sufficiency argument in his brief is vague and conclusory, and his claim is undeveloped. Appellant’s Brief at 6. Appellant wholly fails to refer to any supporting case law. Appellant does not offer any reason for his claim of insufficient evidence, beyond his bald assertion that premeditation is lacking, and he does not espouse any recitation of how or why the trial court abused its discretion. Appellant’s citation to seventyeight pages of notes of testimony, without any explanation, is insufficient to support such a claim. Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015) (quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2013), which stated that “where an appellate brief fails to . . . develop an issue in any other meaningful fashion capable of review, that claim is waived. It is not the obligation of an appellate court to formulate [the] appellant’s arguments for him.”) (internal quotations omitted)). Therefore, we find the issue waived. However, even if the issue had been properly preserved, we would find it lacks merit based upon the trial court’s extensive analysis in its Pa.R.A.P. 1925(a) opinion. Trial Court Opinion, 9/2/16, at 19– 22.

Appellant also assails the weight of the evidence. “The weight of the evidence is a matter exclusively for the finder of fact, who is free to believe

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all, part, or none of the evidence and to determine the credibility of the witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015). In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme Court set forth the following standards to be employed in addressing challenges to the weight of the evidence:

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer, 560 A.2d at 319–[3]20, 744 A.2d at 752. Rather, “the role of the trial judge is to determine that ‘notwithstanding all the 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.’” Id. at 320, 744 A.2d at 752 (citation omitted). It has often been stated that “a new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.

An appellate court’s standard of review when presented with a weight of the evidence claim is distinct from the standard of review 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. Brown, 648 A.2d at 1189. 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 reviewing a trial court’s determination that the verdict is against the weight of the evidence. Commonwealth v. Farquharson, 467

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Pa. 50, 354 A.2d 545 (Pa. 1976). 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.

Widmer, 560 Pa. at 321–[3]22, 744 A.2d at 753 (emphasis added).

Clay, 64 A.3d at 1054–1055. “Thus, the trial court’s denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).

Appellant suggests that “no reasonable jury could conclude” that Commonwealth witness Luis Fuentes “was credible.” Appellant’s Brief at 5. Similarly, he avers that the jury could not have believed the testimony of forensic reconstructionist Sergeant Jeffrey Jones. Id. at 5–6. Finally, Appellant posits that in light of the testimony of forensic biologist Jennifer Sears, the jury could not have concluded Appellant fired the shot that killed the victim. The Commonwealth responds that the jury observed the witnesses and their demeanor and decided the weight, if any, to accord to their testimony. Commonwealth’s Brief at 8. Moreover, all of the testimony cited by Appellant was corroborated by other evidence presented, including video, time-distance analysis, bullet-trajectory analysis, and the three shell casings found at the scene. Id.

In the case at bar, the jury was free to believe all, part, or none of the evidence against Appellant. Gonzalez, 109 A.3d at 723. It chose to believe

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the evidence presented by the Commonwealth, as was its right. Id. Based upon our review of the record, we conclude this issue lacks merit; we rely on the thorough and detailed opinion of the Honorable Donald R. Totaro. 5 The court weighed all of the evidence, found that it supported the verdict, and determined that the jury’s verdict was not so contrary to the evidence as to shock one’s sense of justice. Trial Court Opinion, 9/2/16, at 15–19. This Court will not assume the role of fact-finder and reweigh the evidence. Accordingly, based on the trial court’s opinion, we conclude that the trial court did not abuse its discretion in refusing to grant relief on Appellant’s challenge to the weight of the evidence.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/11/2017 ____________________________________________

5 The parties are directed to attach the opinion in the event of future proceedings in this case.

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