J-A08001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HERIBERTO LABOY AMARO,
Appellant No. 551 MDA 2014
Appeal from the Judgment of Sentence Entered February 18, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001629-2013
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 18, 2015
Appellant, Heriberto Laboy Amaro, appeals from the judgment of
sentence entered on February 18, 2014, in the Dauphin County Court of
Common Pleas. We affirm.
The trial court set forth the relevant facts underlying this case as
follows:
Appellant, Heriberto Amaro and Juanita Caban, a woman with
whom he had a prior romantic relationship, are the biological
parents of one child. Ms. Caban testified that dealings between
[her] and Appellant had been tense because he wanted to
resume their romantic relationship but she refused. On
September 7, 2012, [after their] romantic relationship had
ended, a verbal and physical altercation occurred between
Appellant and Ms. Caban during a custody exchange. The
incident took place outside of Ms. Caban’s apartment in the Hall
Manor apartment complex in Harrisburg City. After the
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*
Retired Senior Judge assigned to the Superior Court.
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altercation, Appellant took custody of his child and Ms. Caban,
along with two of her other children travelled to Hershey to pick
up her boyfriend, Alberto Almestica. At the time, she owned and
drove a red Chrysler Town and Country minivan. Ms. Caban
stated that while in the car with Mr. Almestica, Appellant called
and threatened her. Mr. Almestica testified that Ms. Caban was
arguing with someone on the cellphone while he was in the car.
They proceeded to Palmyra to Mr. Almestica’s house, and
then returned to Harrisburg to make a police report regarding
the earlier altercation with Appellant. Ms. Caban provided a
written statement to Officer Stephanie Barrelet of the Harrisburg
Bureau of Police (HBP). Officer Barrelet confirmed that she had
felt lumps on the back of Ms. Caban’s head where she had
described being struck by Appellant.
Once the report was completed, Ms. Caban, Mr. Almestica
and her children drove to the Park Apartments in Harrisburg
where Mr. Almestica’s brother, Miguel, lives. Upon arrival, Ms.
Caban received a call from her sister, Natasha Ortiz. Mr.
Almestica stated that, based on Ms. Caban’s reaction, the call
was about something very serious.
Ms. Ortiz testified that Appellant and two other men,
including one named Kevin Garcia who she knew to be
Appellant’s cousin, came to her house in an older blue pickup
truck. Ms. Ortiz stated that Appellant and Mr. Garcia entered the
house and wanted to speak with her. She and Appellant went
into the kitchen, but Mr. Garcia left the house. Ms. Ortiz testified
that, while in the kitchen, Appellant said that “if [her] sister [Ms.
Caban] couldn’t be with him that she can’t be with anybody
else.” Ms. Ortiz responded by saying “you can’t force [someone]
to be with you.” Appellant then displayed a gun he retrieved
from his hip area and left the house. Ms. Ortiz stated that when
she went outside, the three men appeared to be together and,
after having a discussion she could not hear, they left in the blue
truck. Ms. Ortiz called Ms. Caban to tell her about what had
happened during her encounter with Appellant.
When Ms. Caban arrived at the Park Apartments and
received the call from her sister, she, Mr. Almestica and the
children rushed to his brother’s third floor apartment just about
the time she had seen Appellant drive [the] blue truck into the
parking lot. From the apartment window, Ms. Caban and Mr.
Almestica saw the three men exit the truck and go into and out
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of neighboring apartment buildings. When Mr. Garcia spotted Ms.
Caban’s red minivan, Appellant backed the blue truck behind the
van, in a perpendicular fashion, which blocked it from moving.
Both Ms. Caban and Mr. Almestica saw Mr. Garcia shoot a gun at
the van. Mr. Almestica testified that the man he identified in
court as the Appellant was standing by Mr. Garcia and speaking
to him during the shooting. The men got back into the truck and,
with Appellant at the wheel, drove away out of the parking lot.
Ms. Caban called 911 to report the incident and Detective
Dennis Simmons of the HBP, responded to the scene within 5
minutes of the dispatch order. At the time of the incident,
Detective Simmons had been a uniformed patrol officer assigned
to the Housing Authority Unit. Detective Simmons had been told
that the incident involved a domestic dispute with shooting
involved. When he arrived to the address provided, #1141 Park
Apartments, 3rd floor, he found several adults including Ms.
Caban and Mr. Almestica in a distraught, afraid and nervous
state. Ms. Caban relayed the actions of Appellant and Mr. Garcia
that she had observed.
Detective Simmons secured the crime scene and noted
holes in the back bumper and window of the van. He remained
there until Karen Lyda, a forensics investigator for the HBP
arrived then continued to interview those present in the
apartment. Subsequently, Ms. Caban provided Detective
Simmons a written statement and identified Mr. Garcia’s picture
in a photo array. At trial, Mr. Almestica identified Appellant as
the driver of the blue truck.
When Officer Karen Lyda investigated the crime scene for
evidence, she collected two mutilated metal projectiles. One was
found in a bag of clothes located inside the van near the second
row of seats, Officer Lyda found the other projectile lodged in a
pile of mulch in front of a nearby apartment building, #1406,
after a bystander alerted her to that location as the bullet had
passed by his head. Officer Lyda observed a hole at the top of
the broken rear window that appeared to be caused by a bullet,
a bullet strike at the bottom of the rear bumper, damage to the
headrest on the second row seat, and damage to the top of the
van by the rear window that may have also been caused by a
bullet. After testing by the Pennsylvania State Police laboratory,
it was determined that both projectiles were .32 caliber bullet
jackets had been fired from the same unknown firearm.
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Trial Court Opinion, 7/24/14, at 3-6. Appellant was arrested and charged at
Dauphin County Criminal Docket Number 1629 CR 2013 as follows: count
one - possession of firearm prohibited; count two - simple assault; count
three - recklessly endangering another person; count four - harassment;
count five - conspiracy (recklessly endangering another person); count six -
unlawful firing of weapon in city limits; count seven - simple assault; count
eight - recklessly endangering another person; and count nine - conspiracy
(recklessly endangering another person).
Following a jury trial on February 10, 2014 through February 12, 2014,
the jury found Appellant guilty at counts two, four, and five. The jury
acquitted Appellant of the charges at counts one, three, and six, and counts
seven, eight, and nine were withdrawn. On February 18, 2014, the trial
court sentenced Appellant to consecutive terms of one to two years of
incarceration on counts two and five, for an aggregate term of two to four
years of imprisonment in a state correctional institution.1 Appellant filed a
timely post-sentence motion, which was denied on March 13, 2014. On
March 26, 2014, Appellant filed a timely notice of appeal.
On appeal, Appellant raises two issues for this Court’s consideration:
1. Was the evidence at trial insufficient to prove beyond a
reasonable doubt that the Appellant was guilty of simple assault
by physical menace where the Commonwealth failed to show
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1
The trial court imposed a $25.00 fine on the summary offense of
harassment at count four.
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that the [A]ppellant put another in fear of imminent serious
bodily injury by physical menace?
2. Whether the trial court erred in denying Appellant’s post-
sentence motion for arrest of judgment where the jury verdict of
guilty on the charge of conspiracy to recklessly endanger
another person was against the weight of the evidence because
the Commonwealth failed to show that Appellant was in
possession of a gun, that the alleged victims were in the
immediate area where the shots were fired, and where the
Commonwealth’s witnesses statements and testimony conflicted
on numerous occassions [sic]?
Appellant’s Brief at 6 (full capitalization and underlining omitted).
In Appellant’s first issue on appeal, he challenges the sufficiency of the
evidence with respect to his conviction for simple assault. Appellant’s Brief
at 13. Appellant asserts that the Commonwealth established only that he
was at the scene near the gunman, Kevin Garcia, when Mr. Garcia shot at
Ms. Caban’s vehicle. Id. at 15. We conclude that Appellant’s claim lacks
merit.
Our standard of review is as follows:
[W]hen reviewing a challenge to the sufficiency of the evidence,
we must determine whether the evidence admitted at trial, and
all reasonable inferences derived therefrom, when viewed in the
light most favorable to the Commonwealth as verdict-winner,
supports all of the elements of the offense beyond a reasonable
doubt. In making this determination, we consider both direct
and circumstantial evidence, cognizant that circumstantial
evidence alone can be sufficient to prove every element of an
offense. We may not substitute our own judgment for the jury’s,
as it is the fact-finder’s province to weigh the evidence,
determine the credibility of witnesses, and believe all, part, or
none of the evidence submitted.
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Commonwealth v. Sanchez, 82 A.2d 943, 972 (Pa. 2013) (internal
citations omitted). Simple assault by physical menace is defined in the
Crimes Code as:
2701. Simple assault
(a) Offense defined.-- Except as provided under section 2702
(relating to aggravated assault), a person is guilty of assault if
he:
***
(3) attempts by physical menace to put another in
fear of imminent serious bodily injury[.]
18 Pa.C.S. § 2701(a)(3).
Additionally, it is well settled that “[a]n actor and his accomplice share
equal responsibility for the criminal act if the accomplice acts with the intent
of promoting or facilitating the commission of an offense and agrees or aids
or attempts to aid such other person in either the planning or the
commission of the offense.” Commonwealth v. Gross, 101 A.3d 28, 35
(Pa. 2014) (citation omitted). “There is no minimum amount of assistance
or contribution requirement, for it has long been established ... that intent of
the parties is a consideration essential to establishing the crime of aiding
and abetting a felony.” Id. (internal quotation marks and citation omitted).
“Thus, even non-substantial assistance, if rendered with the intent of
promoting or facilitating the crime, is sufficient to establish complicity.” Id.
(citation omitted). “Accomplice liability does not create a new or separate
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crime; it merely provides a basis of liability for a crime committed by
another person.” Id. (citing 18 Pa.C.S. § 306). However, a defendant
cannot be an accomplice based simply on evidence that he was present at
the crime scene. Id.
The trial court aptly addressed this issue:
[u]pon review of the evidence of record in a light most favorable
to the Commonwealth as the verdict winner, the sequence of
events permitted the jury to infer that Appellant, as the actual
person that had a grievance with Ms. Caban, acted along with
Mr. Garcia with the intent to place Ms. Caban and Mr. Almestica
in fear of imminent serious bodily injury by their menacing
actions. On the heels of an earlier verbal and physical
altercation, Ms. Caban received a cellphone call from Appellant.
Appellant went to Ms. Caban’s sister’s residence with Mr. Garcia
and another individual and represents to Ms. Ortiz that if he
can’t have [Ms. Caban], no one can have her. Thereafter, he
displays a gun to Ms. Ortiz. Outside, Ms. Ortiz sees Appellant
confer with Garcia and leave in a blue truck, the same blue truck
which is driven by Appellant to the apartment complex of Mr.
Almestica’s brother. At the Park Apartments, Ms. Caban, Mr.
Almestica and the children had taken refuge from a possible
repeat encounter with Appellant. After searching the area, Mr.
Garcia spots Ms. Caban’s minivan and Appellant proceeds to park
behind the vehicle in a way to prevent it from being moved.
Eyewitnesses then see Mr. Garcia fire gunshots into the van
while Appellant is with him and as a group they drive away.
Armed with the earlier encounter with Appellant, the
warning given by Ms. Ortiz over the phone and her eyewitness
observation of Appellant’s concerted actions with Mr. Garcia, Ms.
Caban made a distraught call to the police for the second time
that day. It was entirely proper for the jury to infer from this
evidence that Ms. Caban would be in fear of serious bodily injury
when she witnessed the intentional acts by Appellant to seek her
out and aid in the commission of Mr. Garcia’s crime. It was also
a reasonable inference by the jury that based on the sequence of
events, Appellant encouraged and aided in the actions carried
out by Mr. Garcia in reaction to his ongoing conflict with Ms.
Caban. This Court finds that the evidence presented was
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sufficient for the jury to find Appellant guilty of Simple Assault
by Physical Menace.
Trial Court Opinion, 7/24/14, at 7-8.
We agree with the trial court’s determination. Pursuant to the
applicable standard of review and through the theory of accomplice liability,
Appellant’s actions in concert with Mr. Garcia are sufficient to establish
Appellant’s guilt of simple assault by physical menace beyond a reasonable
doubt. Accordingly, no relief is due.
In Appellant’s second issue, he challenges the weight of the evidence
supporting his conviction for the crime of conspiracy to recklessly endanger
another person. We begin by noting our standard of review:
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court’s discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the factfinder is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses, and a
new trial based on a weight of the evidence claim is only
warranted where the factfinder’s verdict is so contrary to the
evidence that it shocks one’s sense of justice. In determining
whether this standard has been met, appellate review is limited
to whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and inferences of
record disclose a palpable abuse of discretion.
Commonwealth v. Landis, 89 A.3d 694, 698-699 (Pa. Super. 2014)
(citation and quotation marks omitted). Additionally,
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. Rather, the role of the
trial court is to determine that notwithstanding all the evidence,
certain facts are so clearly of greater weight that to ignore them,
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or to give them equal weight with all the facts, is to deny justice.
A motion for a new trial on the grounds that the verdict is
contrary to the weight of the evidence concedes that there is
sufficient evidence to sustain the verdict; thus the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner.
Id. at 699 (citation and quotation marks omitted).
In order to convict a defendant charged with conspiracy, the
Commonwealth must prove: “1) the defendant entered into an agreement
with another to commit or aid in the commission of a crime; 2) he shared
the criminal intent with that other person; and 3) an overt act was
committed in furtherance of the conspiracy.” Commonwealth v. Tejada,
107 A.3d 788, 793 n.4 (Pa. Super. 2015) (quoting Commonwealth v.
Knox, 50 A.3d 749, 755 (Pa. Super. 2012), and citing 18 Pa.C.S. § 903(a),
(d)). Moreover, a conspiracy may be inferred where it is demonstrated that
the relationship, conduct, or circumstances of the parties, and the overt acts
of the co-conspirators sufficiently prove the formation of a criminal
confederation. Commonwealth v. McCoy, 69 A.3d 658, 664 (Pa. Super.
2013) (citation omitted).
Here, the crime underlying the conspiracy is recklessly endangering
another person. The Crimes Code provides: “A person commits a
misdemeanor of the second degree if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705.
Applying these standards, the trial court addressed Appellant’s
challenge to the weight of the evidence:
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Upon review of the record, it is clear that Appellant and
Mr. Garcia were acting together. They went to Ms. Ortiz’s
residence together specifically looking for Ms. Caban, left
together and were seen together arriving at the Park Apartments
shortly thereafter. Although Ms. Caban was not sure whether
Appellant had a gun and Mr. Almestica said he did not see a gun,
Ms. Ortiz testified that Appellant displayed a gun to her at a time
when he expressed that if he could not have Ms. Caban, nobody
could. The circumstances surrounding the events of the crime
point to the focus being Appellant’s serious conflict with Ms.
Caban. She saw him in the driver’s seat when the men arrived at
the Park Apartments. While in the parking lot, [Appellant] was
searching the buildings along with Mr. Garcia and once the men
spotted Ms. Caban’s van, [Appellant] moved the truck he had
been driving for the purpose of blocking the van.
The evidence also established that the men acted as a
group during the entire episode. That episode, which included
Appellant, culminated in Garcia firing a gun in the lot of a
residential apartment complex, during daylight hours resulting in
at least one bullet landing near a building far afield from the van
he was targeting. The inference drawn by the jury of Appellant’s
involvement in the episode based on his own actions, based on
the central role he played in the episode and based on all of the
surrounding circumstances to find him guilty of conspiracy does
not shock one’s sense of justice.12 Again, if there were any
questions of credibility or the weight given any inconsistent
testimony, the determination of what evidence and testimony to
believe and credit during the trial lay entirely within the purview
of the jury who rendered the guilty verdict and the verdict may
not be disturbed unless it shocks one’s sense of justice. After
review, the court finds that the verdicts rendered in this case
[are] not so outrageous as to shock its sense of justice and as
such, should remain undisturbed.
12
This Court notes that during oral argument on
Appellant’s post-sentence motion it was conceded
that sufficient evidence was presented on the charge
of Conspiracy to Commit Reckless Endangerment of
Another Person … to sustain the Commonwealth’s
burden of proof on the charge. (See Memorandum
Order, 3/13/14, J. Lewis).
Trial Court Opinion, 7/24/14, at 10-11.
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After review, we agree with the trial court and find there was no abuse
of discretion in the trial court’s conclusion that the verdict was not shocking
to one’s sense of justice. Appellant and his co-conspirator, Mr. Garcia,
engaged in a course of conduct that resulted in Mr. Garcia repeatedly
discharging a firearm into Ms. Caban’s vehicle in a residential area, where
the bullets could have struck any number of people in the area. N.T.,
2/10/14, at 165; Complaint, 4/4/13, at 5. The jury was free to credit the
testimony that established that Appellant participated in a conspiracy with
Mr. Garcia that placed or may have placed others in danger of seriously
bodily injury or death. Landis, 89 A.3d at 698-699. Therefore, Appellant is
entitled to no relief.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
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