J-S32040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARVIN L. FLAMER,
Appellant No. 2681 EDA 2014
Appeal from the Judgment of Sentence March 14, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007716-2009
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED May 11, 2016
Appellant, Marvin L. Flamer, appeals from the judgment of sentence
imposed following his jury conviction of one count each of first-degree
murder and criminal conspiracy to commit murder.1 We affirm.
This case arises from the fourteen-bullet shooting of Allen Moment, Jr.
on a Philadelphia street in an ambush carried out by his extended family
members; Moment died from his injuries approximately two-and-a-half
years later. The trial court summarized the factual background as follows:
In early January, 2006, Allen Moment, Jr. was acting as
peacemaker between two feuding groups of people in the area of
22nd Street and Pierce Street in Philadelphia, Pennsylvania.
Moment was the cousin of both [Appellant] and co-defendant
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(a) and 903(a)(1), respectively.
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Nafeast Flamer, who was [Appellant’s] nephew. During the
ongoing feud, Moment arranged to meet with Nafeast Flamer
and Hakim Bond in order to return a firearm that Moment had
taken from Nafeast Flamer. Abdul Taylor encountered Nafeast
Flamer and Bond as they waited for Moment. Shortly after
Moment failed to arrive at the meeting, Nafeast Flamer, Bond,
and Taylor were fired upon by some unknown assailant. Nafeast
Flamer believed that Moment had set them up, and told Taylor
that there had been talk about “getting” Moment since then. On
January 18, 2006, Taylor encountered a group of people in a lot
on Ellsworth Street planning to go harm Moment. Nafeast
Flamer and Bond were among this group. Taylor saw
approximately seven guns among the individuals.
On January 20, 2006, at approximately 8:50 p.m., Moment
was walking on Pierce Street, near the intersection with 22 nd
Street, when he was approached by Nafeast Flamer, Bond, and
two other individuals wearing dark hoodies. As this group
approached Moment, a friend of Moment’s, Shareem Nelson,
called Moment and informed him of the group’s approach.
Moment responded “I’m cool, they are my peoples.” Once
Nafeast Flamer and his companions reached Moment, the group
opened fire on Moment, striking him approximately thirteen to
fourteen times in the stomach, groin, and thigh areas.
[Appellant] drove the get-away car for the shooters. When
Moment tried to run to flee from the shooters, [Appellant] used
his car to block Moment’s flight.
Tony Waters, an off duty police officer who lived in the
area, heard the gunshots and called 911. Police officers and
paramedics arrived on the scene shortly thereafter and
transported Moment to the Hospital at the University of
Pennsylvania. Doctors determined that Moment’s bowel was
eviscerating out of his abdomen and he was taken to surgery
immediately. Over the course of the next two and a half years
in the hospital, Moment was treated by Dr. Carrie Sims and
suffered kidney failure, an open wound in his abdomen, a
perforated digestive system, repeated infections, tracheostomy,
fluid collection around his heart, depression, and a hemorrhagic
stroke.
Shortly after the shooting, [Appellant] moved from
Philadelphia to Charlotte, North Carolina. While in North
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Carolina, [Appellant] contacted Taylor by telephone and asked
him to say on the night Moment was shot, [Appellant] and Taylor
were together. Taylor refused to provide this false alibi for
[Appellant].
In late January, 2008, Dr. Sims called a family meeting in
Moment’s hospital room and informed Moment that, while he had
put up a good fight, he was dying and that he would not be
leaving the hospital. While Moment could not move his body,
Moment could communicate through head gestures and labored
talking. After this meeting, Moment asked, after some
insistence from his mother, to talk to a detective. On February
4, 2008, Moment was interviewed by Philadelphia Police
detectives in the presence of his mother, Patricia Gooding, and
uncle, Marquet Parsons. In this interview, Moment identified
Nafeast Flamer and Bond as the individuals who shot him.
Moment further identified [Appellant] as driving the get-away car
and stated that [Appellant] used that car to block his flight from
the shooters. Moment identified all three individuals in a photo
array. Moment informed Parsons that he did not talk to police
prior to this interview because he didn’t want to be “called a
snitch.” On February 14, 2008, Moment provided a videotaped
interview in his hospital room. Moment eventually succumbed to
his injuries and died on August 6, 2008.
Following Moment’s death, Abdul Taylor began cooperating
with police and gave a statement on August 13, 2008. While
this matter was pending for trial, Taylor informed his mother
that he feared being called a snitch and told her that “they goin’
kill me, they got a hit out on me.” While incarcerated,
[Appellant] received visits from Derrick “Heavy” White. White
killed Taylor as Taylor’s testimony would prevent “Nafeast and
them” from coming home. On May 7, 2010, White shot Taylor in
the head, killing him. . . .
(Trial Court Opinion, 11/13/14, at 2-5) (record citations and footnote
omitted).
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Appellant proceeded to trial with co-defendant Nafeast Flamer,2 and
the jury found him guilty of the above-mentioned offenses on January 23,
2014. On March 14, 2014, the court imposed an aggregate sentence of
incarceration of life without parole plus not less than twenty nor more than
forty years. The court denied Appellant’s timely post-sentence motion on
August 18, 2014. This timely appeal followed.3
Appellant raises two issues for this Court’s review:
I. Is the [Appellant] entitled to an arrest of judgment on
the charge of Murder in the First Degree as well as on the
charge of Criminal Conspiracy to Commit Murder where the
verdict is not supported by sufficient evidence?
II. Is the [Appellant] entitled to a new trial on the charge
of Murder in the First Degree and Criminal Conspiracy to
Commit Murder where the verdict is not supported by the
greater weight of the evidence?
(Appellant’s Brief, at 3).
In his first issue, Appellant challenges the sufficiency of the evidence
supporting his first-degree murder and criminal conspiracy to commit
murder convictions. (See id. at 9-14). Appellant asserts that: he did not
shoot and kill the victim; the record is devoid of proof that he was a co-
conspirator to the murder; and “he was sent to prison for life on a guess.”
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2
Co-defendant Hakim Bond was tried separately. (See Trial Ct. Op., at 1).
3
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on October 7, 2014. The trial
court entered an opinion on November 13, 2014. See Pa.R.A.P. 1925.
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(Id. at 10; see id. at 9, 14). Appellant avers that, at most, the evidence
merely establishes that he “agreed to drive a vehicle with others in it[]”;
there is no evidence that he agreed with Nafeast Flamer or anyone else to
shoot and kill Moment. (Id. at 12). We disagree.
The standard we apply in reviewing the sufficiency of the
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 fact-finder 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
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
finder 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. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015),
appeal denied, 131 A.3d 490 (Pa. 2016) (citations omitted).
The Pennsylvania Crimes Code defines the offense of first-degree
murder as a criminal homicide that is “committed by an intentional killing.”
18 Pa.C.S.A. § 2502(a). In order for an individual to be convicted of first-
degree murder, “the Commonwealth must prove that a human being was
unlawfully killed, that the defendant perpetrated the killing, and that the
defendant acted with malice and a specific intent to kill.” Commonwealth
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v. Johnson, 107 A.3d 52, 66 (Pa. 2014), cert. denied sub nom. Johnson v.
Pennsylvania, 136 S.Ct. 43 (2015) (citation omitted). “It is well-settled
that specific intent to kill can be established through circumstantial evidence
such as the use of a deadly weapon on a vital part of the victim’s body.” Id.
(citation omitted).
Section 903 of the Crimes Code sets forth the crime of criminal
conspiracy, in pertinent part, as follows:
(a) Definition of conspiracy.—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[.]
18 Pa.C.S.A. § 903(a)(1).
“To sustain a conviction for criminal conspiracy, the Commonwealth
must establish the defendant: 1) entered into 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.” Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa. Super.
2013) (en banc), appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
“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.” Id. at 26 (citation omitted).
The general rule of law pertaining to the culpability of
conspirators is that each individual member of the conspiracy is
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criminally responsible for the acts of his co-conspirators
committed in furtherance of the conspiracy. The co-conspirator
rule assigns legal culpability equally to all members of the
conspiracy. All co-conspirators are responsible for actions
undertaken in furtherance of the conspiracy regardless of their
individual knowledge of such actions and regardless of which
member of the conspiracy undertook the action.
Commonwealth v. Lambert, 795 A.2d 1010, 1016-17 (Pa. Super. 2002),
appeal denied, 805 A.2d 521 (Pa. 2002) (citation omitted).
Here, the trial court determined that Appellant’s sufficiency claim is
meritless, explaining:
The evidence presented in this case clearly demonstrated
that [Appellant], together with Nafeast Flamer and Hakim Bond,
conspired to murder Alan Moment, Jr. Only days before
Moment’s shooting, Abdul Taylor witnessed [Appellant’s]
nephew, Nafeast Flamer, along with Hakim Bond, “plotting to go
down . . . to harm [Moment]” while possessing several firearms.
(N.T. Trial, 1/14/14, at 83; see id. at 84; see also N.T. Trial,
1/15/14, at 221-22). Shareem Nelson, Jeffrey Chandler, Jr., and
Aisha Williams each testified that they witnessed multiple
individuals in dark hoodies approach Moment at the corner of
22nd Street, where they shot Moment multiple times in the
abdomen, pelvis, and upper thighs. (See N.T. Trial, 1/14/14, at
113-15; 134-36, 156-57; see also N.T. Trial, 1/15/14, at 178-
80). Both Aisha Williams and Moment identified Nafeast Flamer
and Bond as the shooters. (See N.T. Trial, 1/15/14, at 87, 180-
81).
[Appellant’s] role in the conspiracy was established by
compelling evidence. Moment, in his deathbed statement to
police, identified [Appellant], who was his cousin, as the driver
of the getaway car. (See N.T. Trial, 1/15/14, at 88). According
to Moment, [Appellant] also actively participated in the killing,
using [the] getaway car to prevent Moment from fleeing from
the shooters. As Moment described it, [Appellant] “tried to trap
me with the car.” (Id.). Aisha Williams, who knew [Appellant]
all her life, corroborated Moment’s contention that [Appellant]
drove the getaway car. She saw [Appellant] sitting behind the
wheel of his car at the corner near the shooting just before the
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shooting occurred, saw him drive the car slowly toward Moment,
and then heard gunshots. (See N.T. Trial, 1/15/14, at 179-80;
see also N.T. Trial, 1/16/14, at 71-72).
In addition, the Commonwealth presented compelling
evidence to demonstrate [Appellant’s] consciousness of guilt.
Moment’s father, Alan Moment, Sr., testified that soon after the
shooting [Appellant] moved from Philadelphia to Charlotte, North
Carolina. (See N.T. Trial, 1/15/14, at 223). Taylor, in his
statement to police, stated that [Appellant] called Taylor from
North Carolina and asked Taylor to provide [Appellant] with an
alibi by falsely stating that Taylor and [Appellant] were together
in a studio at the time of the murder, when in fact, Taylor and
[Appellant] were not together at all that night. (See N.T. Trial,
1/14/14, at 90).
* * *
[T]he evidence established that [Appellant], Nafeast
Flamer and Hakim Bond conspired to kill Alan Moment, and that
pursuant to that conspiracy, Nafeast Flamer and Bond repeatedly
shot Moment, causing the death. This was done with the aid and
assistance of [Appellant], who drove the getaway car and
prevented Moment from fleeing the shooters. . . .
(Trial Ct. Op., at 7-9) (record citation formatting provided).
After review of the record, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, see Giordano, supra at
1002, we agree with the trial court’s assessment of Appellant’s sufficiency
claim. The evidence clearly demonstrates that Appellant conspired with
Nafeast Flamer and Bond to kill Moment, and that he actively participated in
the murder by deliberately using his car to prevent Moment’s escape from
the barrage of bullets. Accordingly, Appellant’s first issue does not merit
relief.
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In his second issue, Appellant challenges the weight of the evidence to
support his first-degree murder and conspiracy to commit murder
convictions. (See Appellant’s Brief, at 15-16).4 Appellant argues that he is
entitled to a new trial because the greater weight of the evidence does not
establish that he agreed with his co-defendants to murder Moment. (See
id.). We disagree.
Our standard of review is as follows:
The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
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4
Appellant preserved his challenge to the weight of the evidence by raising
it in a post-sentence motion. See Pa.R.Crim.P. 607(A)(3).
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Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and quotation marks omitted). “[T]he 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. Weathers, 95 A.3d 908, 911
(Pa. Super. 2014), appeal denied, 106 A.3d 726 (Pa. 2015) (citation
omitted). When reviewing a weight claim, this Court carefully considers the
findings of the trial court, because the trial judge had the opportunity to
hear and see the evidence presented. See Commonwealth v. Brown, 48
A.3d 426, 432 (Pa. Super. 2012), appeal denied, 63 A.3d 1243 (Pa. 2013).
Here, the trial court denied Appellant’s motion for a new trial, finding
that the evidence fully supported the jury’s verdict where it plainly reflected
that Appellant worked in concert with his co-defendants to shoot and kill
Moment. (See Trial Ct. Op., at 8, 10). After review of the record, we agree
with the trial court, and thus cannot conclude that its ruling on Appellant’s
weight claim constituted a palpable abuse of discretion. See Boyd, supra
at 1275. Therefore, Appellant’s second issue does not merit relief.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
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