Com. v. Pace, L.

J-S28041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

LADALE PACE,

Appellant No. 3570 EDA 2014

Appeal from the Judgment of Sentence July 17, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0005467-2013

BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MAY 10, 2016

Appellant, Ladale Pace, appeals from the judgment of sentence

imposed following his conviction by a jury of murder of the second degree;

robbery; burglary; criminal conspiracy to commit murder, robbery, and

burglary; and violations of the Uniform Firearms Act.1,2 We affirm.

We take the following facts from the trial court opinion.

On February 21, 2012, a white Chrysler 300 followed a red
Mitsubishi Montero owned by the [d]ecedent, Julio Cesar
Hernandez (Hernandez), southbound into the shared driveway
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 3502(a), 903(c), 6106(a)(1), and
6108, respectively.
2
This appeal only concerns docket number CP-51-CR-0005467-2013. The
jury also convicted Appellant of possession of a controlled substance at
docket number CP-51-CR-0005464-2013.
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behind Hernandez’s home, located at 3900 Palmetto Street in
the City and County of Philadelphia. Two surveillance cameras
affixed to the rear of 3910 Palmetto Street showed the two (2)
vehicles enter the driveway, and captured the Chrysler parking
along the rear of 3910 at 11:19 A.M. At 11:24 A.M., Appellant,
dressed in a dark hoodie, dark jeans and black shoes[,] entered
the rear of the Chrysler on the driver’s side, remained for
approximately [thirty] seconds, then exited the Chrysler and
walked south outside of the camera view.

Appellant used Hernandez’s keys to enter Hernandez’s
home, where he went upstairs to Hernandez’s bedroom, and
searched the drawers of Hernandez’s dresser. Juanna Perez
(Perez)[,] the wife of Hernandez, was in the kitchen with the
couple’s [nineteen]-month-old child when she heard the familiar
sound of Hernandez’s keys. . . . Perez noticed a male standing
outside of the door with his hands in his pockets. Perez began
calling for her husband and saw Appellant on the stairs holding a
gun. Appellant ran out of the house and turned left, and the
man who was outside ran away to the right.

At approximately 11:27 A.M., the unidentified driver of the
Chrysler exited the car and ran southbound towards Hernandez’s
home. Less than [thirty] seconds later, the driver, dressed in a
dark jacket and dark pants[,] ran northbound down the middle
of the driveway with a gun pointed towards the activity outside
of the camera frame. While the unidentified driver crouched
behind a parked car, he pointed a gun at Hernandez who was
running north through the driveway. At approximately 11:28
A.M.[,] Hernandez fell outside of the camera frame, and the
unidentified male entered the driver’s side of the Chrysler.

Jorge Gonzalez (Gonzalez), who lived on I Street, was
going to his van in the same shared driveway when he heard
gunshots. Gonzalez was [ninety] feet away when he saw []
Smith approach Hernandez who was on the ground. Gonzalez
witnessed [] Smith shoot Hernandez in the back of the head. []
Smith entered the front passenger side of the Chrysler and the
car drove south. . . .

* * *

At 11:29 A.M., two (2) security cameras affixed to the rear
of J.J.’s Café, located at 1065 East Erie Avenue, showed the
Chrysler enter the shared driveway between Elsinore Street and
J Street and pull into a side street out of camera view. [] Smith

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and the unidentified driver subsequently walked into camera
view, and walked toward J Street. Appellant then entered the
shared driveway behind J.J[.]’s Café from the same direction
that the Chrysler had entered, and discarded a roll of duct tape
in a trash pile as he walked toward J Street. The unidentified
driver, who had already crossed J Street with [] Smith, doubled
back toward Appellant and spoke with him. Appellant then
walked back down the shared driveway and went into the side
street where the Chrysler was last seen.

At the scene of the crime, two (2) racks of heroin were
found in the armrest of the Mitsubishi, and a Kyocera Cricket cell
phone was found on the floor of the front passenger side of the
vehicle. . . . On March 15, 2012, police arrested Appellant in a
white Chrysler 300 . . . .

A warrant executed for Appellant’s former cell phone
number revealed that it was used to communicate with []
Smith’s Kyocera phone multiple times in the days prior to
February 21, 2012, and cellular analysis showed Appellant’s
phone was in geographic proximity to Hernandez’s home around
the time of the incident. On April 13, 2012, Perez identified
Appellant from a photo array, and subsequently identified him at
a line up on April 25, 2013.

(Trial Court Opinion, 6/11/15, at 2-5) (quotation marks and footnote

omitted).

On July 7, 2014, Appellant and his co-defendant Smith proceeded to a

jury trial. On July 17, 2014, the jury convicted Appellant of the above

charges. On the same day, the court sentenced Appellant to mandatory life

imprisonment for the murder, with no further penalty assessed for the other

charges. (See id. at 1). On July 22, 2014, Appellant filed a timely post-

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sentence motion, which was deemed denied by operation of law. See

Pa.R.Crim.P. 720(B)(3)(a). This timely appeal followed.3

Appellant raises three questions for our review:

I. Is [Appellant] entitled to an arrest of judgment where, as
here, the evidence is insufficient to sustain the verdict of murder
in the second degree?

II. Is [Appellant] entitled to a new trial on the charge of murder
in the second degree where, as here, the greater weight of the
evidence does not support the verdict?

III. Is [Appellant] entitled to a new trial as the result of
prosecutorial misconduct where the prosecutor engaged in giving
personal opinion during closing argument where he claimed that
surveillance video depicted a person looking like the co-
defendant?

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).

In his first issue, Appellant challenges the sufficiency of the evidence

to support his conviction of murder of the second degree, criminal

conspiracy to commit robbery, and criminal conspiracy to commit burglary.4

(See Appellant’s Brief, at 12-23). Specifically, although Appellant concedes

that the evidence was sufficient to prove a felony, he argues the

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3
Appellant filed his notice of appeal on December 16, 2014. Pursuant to
court order, Appellant filed a concise statement of errors complained of on
appeal on January 12, 2015. See Pa.R.A.P. 1925(b). The trial court filed its
opinion on June 11, 2015. See Pa.R.A.P. 1925(a).
4
Appellant apparently neglected to challenge the sufficiency of the evidence
to support his conviction of criminal conspiracy to commit murder. (See
Appellant’s Brief, at 12-23).

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Commonwealth failed to prove that the homicide was committed in

furtherance of the felony. (See id. at 18). We disagree.

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 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
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. Lambert, 795 A.2d 1010, 1014-15 (Pa. Super. 2002),

appeal denied, 805 A.2d 521 (Pa. 2002). “Critically important, we must

draw all reasonable inferences from the evidence in favor of the

Commonwealth as the verdict-winner.” Commonwealth v. Watley, 81

A.3d 108, 113 (Pa. Super. 2013), appeal denied, 95 A.3d 277 (Pa. 2014).

“Murder of the second degree is a criminal homicide committed while a

defendant was engaged as a principal or an accomplice in the perpetration of

a felony.” Lambert, supra at 1015 (citing 18 Pa.C.S.A § 2502(b)). The

perpetration of a felony is defined as “[t]he act of the defendant in engaging

in or being an accomplice in the commission of, or an attempt to commit, or

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flight after committing, or attempting to commit robbery, rape, or deviate

sexual intercourse by force or threat of force, arson, burglary or

kidnapping.” Id. (citing 18 Pa.C.S.A § 2502(d)).

The statute defining second degree murder does not
require that a homicide be foreseeable; rather, it is only
necessary that the accused engaged in conduct as a principal or
an accomplice in the perpetration of a felony. . . . It does not
matter whether the appellant anticipated that the victim would
be killed in furtherance of the conspiracy. Rather, the fact finder
determines whether the appellant knew or should have known
that the possibility of death accompanied a dangerous
undertaking.

Id. at 1023 (citations omitted).

Here, in explaining why it found that the Commonwealth had

presented sufficient evidence to prove the elements of murder of the second

degree, the court reasoned:

In the instant case, the Commonwealth presented
evidence through the testimony of its witnesses and surveillance
video to identify the Appellant and to establish that he and the
other males conspired to commit the crimes of burglary, robbery
and murder. Appellant used [Hernandez’s] keys to open the
front door of Hernandez’s home, a structure, while Perez and her
son were inside. (See N.T. Trial, 7/09/14, at 112-15). Perez
heard footsteps upstairs in her bedroom and she later observed
an opened dresser drawer in the bedroom. (See id. at 112-13,
124). She also saw Appellant descend the stairs in her home
before he ran away with another male who had waited outside.
(See id. at 112-15). Appellant’s actions at the time of the
incident were sufficient to show that when Appellant entered
Hernandez’s home, he intended to unlawfully take or exercise
unlawful control over the movable property of Hernandez,
actions that would constitute the crime of theft. The elements of
robbery were satisfied when Appellant, Smith, and the
unidentified driver inflicted serious bodily injury on Hernandez
while trying to commit a theft. The totality of the circumstances
in the instant case were sufficiently proximate to the crime of

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theft and were a series of natural acts required for its
commission.

Appellant intentionally aided [] Smith and the unidentified
driver in facilitating the commission of burglary and robbery,
thus although he did not shoot Hernandez, he is legally
accountable for the death of Hernandez. [The trial c]ourt finds
that viewed in a light most favorable to the Commonwealth,
there was sufficient evidence to establish the Appellant as the
perpetrator of burglary, robbery, and second degree murder.

(Trial Ct. Op., at 8-9) (citation formatting and some citations provided,

unnecessary capitalization and footnote omitted).

After our independent review of the record, we agree with the trial

court’s conclusion that the Commonwealth produced sufficient evidence to

prove beyond a reasonable doubt all elements of murder of the second

degree where Appellant took part in a conspiracy to commit burglary and

robbery and one of his co-conspirators killed the decedent, Hernandez, in

furtherance of those felonies. See Harden, supra at 111; Lambert, supra

at 1023.

Furthermore, we note that although Appellant also argued that the

evidence was insufficient to support his conviction of conspiracy to commit

burglary and robbery, his statement of questions presented frames the issue

as only challenging the sufficiency of the evidence to support his conviction

of murder of the second degree. (See Appellant’s Brief, at 3, 12-23).

Accordingly, he waived his challenge to his conspiracy conviction. See

Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby.”). Moreover,

it would not merit relief.

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To sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1) entered an
agreement to commit or aid in an unlawful act with another
person or persons, (2) with a shared criminal intent and, (3) an
overt act was done in furtherance of the conspiracy. This overt
act need not be committed by the defendant; it need only be
committed by a co-conspirator.

Commonwealth v. Ruiz, 819 A.2d 92, 97 (Pa. Super. 2003) (citation

omitted). “An explicit or formal agreement to commit crimes can seldom, if

ever, be proved and it need not be, for proof of a criminal partnership is

almost invariably extracted from the circumstances that attend its activities.”

Id.

After our independent review of the record, we would agree with the

trial court’s conclusion that the Commonwealth produced sufficient evidence

to prove the elements of criminal conspiracy where the evidence

demonstrated that Appellant communicated with his co-conspirators prior to,

during, and after the incident and Appellant and his co-conspirators took

overt steps in furtherance of the conspiracy by entering the victim’s home

and then inflicting serious bodily injury on the victim. (See Trial Ct. Op., at

10); Harden, supra at 111; Ruiz, supra at 97. Accordingly, Appellant’s

first issue does not merit relief.

In his second issue, Appellant claims that the weight of the evidence

does not support his conviction of murder in the second degree. (See

Appellant’s Brief, at 24-25). However, Appellant did not properly raise his

weight claim before the trial court. Appellant’s post-sentence motion, which

merely provided “the jury’s verdict was against the weight of the evidence”

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(Post Sentence Motion, 7/22/14, at 1), and statement of errors complained

of on appeal which states, “[t]he jury’s verdict is against the weight of the

evidence” (Rule 1925(b) Statement, 1/12/15, at 1), were too vague to

permit meaningful review. See Pa.R.A.P. 1925(b).

The absence of a trial court opinion poses a substantial
impediment to meaningful and effective appellate review.
Pa.R.A.P. 1925 is intended to aid trial judges in identifying and
focusing upon those issues which the parties plan to raise on
appeal. Rule 1925 is thus a crucial component of the appellate
process. When the trial court has to guess what issues an
appellant is appealing, that is not enough for meaningful review.
When an appellant fails adequately to identify in a concise
manner the issues sought to be pursued on appeal, the trial
court is impeded in its preparation of a legal analysis which is
pertinent to those issues. In other words, a Concise Statement
which is too vague to allow the court to identify the issues raised
on appeal is the functional equivalent of no Concise Statement at
all.

Commonwealth v. Lemon, 804 A.2d 34, 36-37 (Pa. Super. 2002)

(citations omitted); see also Commonwealth v. Seibert, 799 A.2d 54, 62

(Pa. Super. 2002) (concluding weight of the evidence issues were too vague

to permit review where in his Pa.R.A.P. 1925(b) statement, appellant merely

stated “[t]he verdict of the jury was against the weight of the credible

evidence as to all of the charges.”).

Here, we agree with the trial court’s conclusion that Appellant’s weight

of the evidence challenge lacked specificity to enable meaningful review by

the trial court because it “[did] not state how the weight of evidence was

contrary to the verdict.” (Trial Ct. Op., at 6). Accordingly, Appellant’s

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second issue is waived. See Lemon, supra at 36-37. Moreover,

Appellant’s claim would not merit review.

“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. Giordano, 121 A.3d 998, 1007 (Pa. Super. 2015),

appeal denied, 131 A.3d 490 (Pa. 2016). “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.” Id.

“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.” Id.

Here, we conclude that the trial court did not abuse its discretion when

it denied Appellant’s post-sentence motion because the jury’s guilty verdict

did not shock the conscience. See id. Accordingly, Appellant’s second issue

would not merit relief.

In his third issue, Appellant claims that the trial court erred by not

granting his co-defendant’s motion for a mistrial because the prosecutor

opined, during his closing argument, that a still frame photo from a

surveillance video looked like the co-defendant. (See Appellant’s Brief, at

25-26). However, Appellant’s brief includes neither citation to the record, or

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legal authority in support of his proposition.5 See Pa.R.A.P. 2119(a)—(c).

Nor has he provided any authority to show that he has standing to challenge

the prosecutor’s comments, which were aimed at his co-defendant. See

Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa. 2003), cert. denied,

543 U.S. 822 (2004) (“A party generally cannot vicariously litigate the

claims of another party.”). Accordingly, Appellant has waived his third issue.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2016

____________________________________________

5
Not only does Appellant fail to cite to the record, he also has failed to
include a copy of the transcript of closing argument. (See N.T. Trial,
7/15/14, at 59 (“Closing arguments not transcribed.”)); see also Pa.R.A.P.
1921, note (“Ultimate responsibility for a complete record rests with the
party raising an issue that requires appellate court access to record
materials.”).

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