J-S80022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RADAMES SANABRIA :
:
Appellant : No. 2631 EDA 2016
Appeal from the Judgment of Sentence March 4, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001110-2011
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 23, 2018
Appellant, Radames Sanabria, appeals from the judgment of sentence
entered following his convictions of first degree murder, carrying a firearm
without a license (“VUFA”), and possession of an instrument of crime
(“PIC”).1 We affirm.
The trial court summarized the underlying facts of this case as follows:
On August 10, 2010, at approximately 10:00 p.m., Jerome
Carlyle (“Carlyle”), age fourteen, was hanging out with friends
near the intersection of Clearfield Street and Seventh Street in
the City of Philadelphia. [Appellant] and Rafael Roman
(“Roman”) walked up Clearfield Street, passing the group, and
continued to the other side of Seventh Street. Carlyle and
[Appellant] exchanged some words and then Carlyle began to
cross the street, following behind [Appellant] and Roman.
Seemingly unprovoked, [Appellant] turned toward Carlyle, pulled
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1 18 Pa.C.S. §§ 2502, 6106, and 907.
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a gun from his waistband, and began shooting at Carlyle, firing
approximately four shots. Carlyle ran a short distance up
Seventh Street and then collapsed, while [Appellant] and Roman
ran down Seventh Street toward Indiana Avenue. Medics arrived
on [the] scene and transported Carlyle to Saint Christopher’s
Hospital, where he was pronounced dead.
The following day, detectives recovered a video recording
from a surveillance camera at a business located at the corner of
Seventh Street and Clearfield Street, which had captured the
events from the prior evening including the shooting. Over the
course of the investigation, Officer Seigafuse became aware that
an arrest warrant had been issued for [Appellant] in connection
with the August 10, 2010 shooting. On September 14, 2010,
Officer Seigafuse was on routine patrol in a marked police
vehicle with three other officers when he saw an individual, who
he knew to be an acquaintance of [Appellant], exit a vehicle
parked at the intersection of Mascher Street and Gurney Street.
Officer Seigafuse noticed that there were three other people still
inside the vehicle, so the officers made a u-turn on Gurney
Street to head back toward the parked vehicle. As they were
approaching the vehicle, the rear passenger, later determined to
be [Appellant], exited the car and fled down Mascher Street.
[Appellant] then doubled back, running several blocks up
Mascher Street to Lippincott Street with the officers in pursuit.
As Officer Seigafuse caught up to him, [Appellant] was climbing
under a parked vehicle. Officer Seigafuse waited for his fellow
officers to arrive at the vehicle and then placed [Appellant] into
custody.
Trial Court Opinion, 6/27/17, at 3-4. The trial court set forth the subsequent
procedural history of this matter as follows:
On October 17, 2012, [Appellant] elected to exercise his
right to a jury trial and pleaded not guilty to the above listed
charges. On October 23, 2012, the jury found [Appellant] guilty
of Murder of the First Degree (H1), Carrying Firearms Without a
License (F3), and PIC (M1). At the conclusion of the trial, [the
trial c]ourt deferred sentencing to November 1, 2012[,] for the
completion of a Pre-Sentence Investigation report, a mental
health evaluation, and a drug/alcohol evaluation. On November
1, 2012, sentencing was continued to December 17, 2012[,]
because of the developing law with regard to the sentencing of
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[a] juvenile and further continued to February 1, 2013[,] in
order to review the findings of the Honorable Carolyn Temin on
the constitutionality of 18 Pa.C.S. § 1102.1.1 On February 1,
2013, [the trial c]ourt conducted a sentencing hearing and held
the sentence under advisement in order to review all materials,
with regard to the law regarding the sentencing of juveniles to
life sentences. On February 13, 2013, [the trial c]ourt
sentenced [Appellant] to Life without parole on the charge of
Murder in the First Degree and did not impose any additional
sentence on the remaining charges.
1 On December 17, 2012, Judge Temin ruled that the
statute was constitutional. See Commonwealth v.
Brooker (CP-51-CR-0006874-2009), Commonwealth
v. Smith (CP-51-CR-0006875[-2009]), and
Commonwealth v. Ellison (CP-51-CR-0006872-
2009).
On February 19, 2013, [Appellant] filed a Post-Sentence
Motion.2 On March 6, 2013, [the trial c]ourt granted a hearing
for the motion and vacated the sentence pending the outcome of
the hearing. The hearing was further continued to May 17,
2013. On May 17, 2013, [the trial c]ourt issued an Opinion
finding that 18 Pa.C.S. § 1102.1 was constitutional and that [the
trial c]ourt did not err in applying it. The post-sentence motion
was further continued numerous times to allow the parties to
present additional evidence for [the trial c]ourt’s consideration in
imposing a sentence.
2 On February 25, 2013, the motion was
supplemented via the filing of a Motion for
Modification of Sentence.
On August 3, 2015, [Appellant] filed a Motion for [the trial
c]ourt’s recusal, which [the trial c]ourt denied on October 5,
2015. On March 4, 2016, [the trial c]ourt sentenced [Appellant]
to a term [of] 39 years to Life on the charge of Murder in the
First Degree and did not impose any additional sentence on the
remaining charges. Following the imposition of sentence,
[Appellant] filed a post-sentence motion, which was denied by
operation of law on August 15, 2016.
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Trial Court Opinion, 6/27/17, at 1-3. This timely appeal followed. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Is the evidence insufficient to sustain the convictions and
should judgment of sentence be vacated because identity was
not proven and Appellant was, at most, merely present when the
murder occurred because Rafael Roman was the shooter?
2. Was the Verdict against the weight of the evidence and should
a new trial be ordered because Rafael Roman was identified as
the shooter of Decedent and Appellant was at most merely
present?
3. Did the prosecutor engage in prosecutorial misconduct and
cause irreparable harm to Appellant by ignoring the trial court’s
Order by implying that Appellant had been involved in
discouraging Eliezer Hernandez from testifying truthfully at trial?
Appellant’s Brief at 4 (renumbered for ease of disposition).
Appellant first purports to argue that there was insufficient evidence to
support the verdicts in this case. Appellant’s Brief at 11-14. However,
Appellant alleges that the evidence as to his identity as the person who
brandished the firearm and committed the murder was not sufficient.
Specifically, Appellant contends that the testimony provided by eyewitnesses
Cory Jones and Danny Rivera identified Rafael Roman as the person who
perpetrated the shooting and failed to prove that Appellant was the
perpetrator of the murder. Id. at 13. Appellant further alleges that, at trial,
Eliezer Hernandez and Luis Ortiz recanted their identifications of Appellant.
Id. In addition, Appellant states the following:
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There is insufficient evidence to sustain the first-degree
Murder, VUFA, and [PIC] convictions. The real shooter was
Rafael Roman and all identifications of Appellant were recanted
or contrary to other identifications of Roman as the shooter of
Decedent. Therefore, Appellant prays that his convictions be
vacated because there is insufficient evidence to sustain those
convictions.
Appellant’s Brief at 13-14. Thus, Appellant challenges whether the
Commonwealth established that Appellant was the person who shot the
victim in this matter. Again, Appellant contends that the evidence was
indefinite as to the identity of Appellant being the perpetrator. Basically,
Appellant asks us to reassess the credibility of the Commonwealth’s
witnesses.
A sufficiency of the evidence review, however, does not include an
assessment of the credibility of the testimony. Commonwealth v. Wilson,
825 A.2d 710, 713-714 (Pa. Super. 2003). Such a claim is more properly
characterized as a weight of the evidence challenge. Id. A challenge to the
weight of the evidence questions which evidence is to be believed.
Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).
Indeed, claims challenging the weight of the evidence and sufficiency of the
evidence are clearly distinct. See Commonwealth v. Widmer, 744 A.2d
745 (Pa. 2000) (discussing the distinctions between a claim challenging the
sufficiency of the evidence and a claim that the verdict is against the weight
of the evidence). “A true weight of the evidence challenge concedes that
sufficient evidence exists to sustain the verdict but questions which evidence
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is to be believed.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.
Super. 2006) (quoting Commonwealth v. Galindes, 786 A.2d 1004, 1013
(Pa. Super. 2001)).
In Commonwealth v. Grahame, 482 A.2d 255 (Pa. Super. 1984), we
made the following observation regarding challenges to the identity of the
perpetrator of a crime being an attack on the weight of the evidence:
Proof beyond a reasonable doubt of the identity of
the accused as the person who committed the crime
is essential to a conviction. Commonwealth v.
Reid, 123 Pa. Super. 459, 187 A 263 (1936). The
evidence of identification, however, needn’t be
positive and certain in order to convict, although any
indefiniteness and uncertainty in the identification
testimony goes to its weight. Commonwealth v.
Mason, 211 Pa. Super. 328, 236 A.2d 548 (1967).
Commonwealth v. Hickman, 453 Pa. 427, 430, 309 A.2d 564,
566 (1973). (Emphasis in original).
Grahame, 482 A.2d at 259. Accordingly, we view this issue, as presented,
to be a challenge to the weight of the evidence offered by the
Commonwealth, and we will address it as such and assess the merits of the
claim in reviewing Appellant’s second issue.2
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2 To the extent Appellant attempts to present a typical challenge to the
sufficiency of the evidence, we note that the trial court addressed Appellant’s
challenge to the sufficiency of the evidence by offering a thorough review of
the evidence presented at trial reflecting that Appellant was the perpetrator
of the shooting, and we conclude that such a sufficiency claim lacks merit on
the basis of the trial court’s discussion. Trial Court Opinion, 6/27/17, at 5-
10.
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Appellant next argues that the verdict was against the weight of the
evidence because he was merely present at the scene of the crime.
Appellant’s Brief at 8-11. Specifically, Appellant contends that “[t]he
evidence [presented at trial] points to Rafael Roman only as the killer of
Decedent.” Id. at 11.
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
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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 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).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
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).
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The trial court addressed this issue as follows:
On appeal, [Appellant] claims that the verdict was against
the weight of the evidence, averring that Rafael Roman was
identified as the shooter and that [Appellant was] merely
present. This [c]ourt disagrees. As discussed at length above,[3]
the jury heard testimony from numerous witnesses and was able
to assess each of their credibility as a witness. In assessing the
eye-witness’ testimony and identifications of the shooter, the
jury had the full opportunity to evaluate each witness at trial in
making the relevant factual determinations. Similarly, the jury
heard testimony regarding the ballistics evidence - four fired
cartridge casings all from the same firearm recovered in close
proximity - and was able to evaluate the consistencies between
such evidence and the witness testimony regarding the location
of the shooter. Moreover, the jury was able to assess the
implications of the officer testimony regarding [Appellant] fleeing
from police approximately one month after the shooting. The
jury verdict, reflecting the assessment of all of the evidence
presented at trial, was not so contrary to the evidence presented
at trial as to “shock one’s sense of justice.” Therefore, this
[c]ourt finds no merit in [Appellant’s] challenge to the weight of
the evidence presented at trial.
Trial Court Opinion, 6/27/17, at 11-12.
Based upon our complete review of the record, we are compelled to
agree with the trial court. Here, the jury, sitting as the finder of fact, was
free to believe all, part, or none of the evidence against Appellant. The jury
weighed the evidence and concluded Appellant perpetrated the crimes in
question. We agree that this determination is not so contrary to the
evidence as to shock one’s sense of justice. We decline Appellant’s
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3 Again, we observe that the trial court addressed Appellant’s challenge to
the sufficiency of the evidence by presenting a thorough review of the
evidence set forth at trial, which reflected that Appellant was the perpetrator
of the shooting. Trial Court Opinion, 6/27/17, at 5-10.
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invitation to assume the role of fact-finder and to reweigh the evidence.
Accordingly, 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.
Appellant last argues that the Commonwealth engaged in prosecutorial
misconduct at the time of closing arguments. Appellant’s Brief at 14-16.
Specifically, Appellant claims that the prosecutor, in violation of the trial
court’s order, made improper and prejudicial statements during closing
arguments implying that Appellant was somehow involved in discouraging
Eliezer Hernandez from testifying at trial. Id. at 15.
“Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion.” Commonwealth v.
Harris, 884 A.2d 920, 927 (Pa. Super. 2005). “It is within the discretion of
the trial court to determine whether a defendant has been prejudiced by
misconduct or impropriety to the extent that a mistrial is warranted.”
Commonwealth v. Baez, 720 A.2d 711, 729 (PA. 1998).
It is well established that trial judges must be given an
opportunity to correct errors at the time they are made. “[A]
party may not remain silent and afterwards complain of matters
which, if erroneous, the court would have corrected.” Even
where a defendant objects to specific conduct, the failure to
request a remedy such as a mistrial or curative instruction is
sufficient to constitute waiver.
Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (citations
omitted). See Commonwealth v. Jones, 460 A.2d 739 (Pa. 1983)
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(holding that issue of prosecutorial misconduct was waived on appeal where
defense counsel immediately objected to prosecutor’s conduct, but made no
request for mistrial or curative instructions); Commonwealth v. Chimenti,
524 A.2d 913 (Pa. Super. 1987) (ruling that, although defense counsel did
object, he failed to request a mistrial or curative instruction, and,
consequently, the issue was not preserved for review).
Moreover, when a party moves for a mistrial, such relief is required
only when an incident is of such a nature that its unavoidable effect is to
deprive the appellant of a fair and impartial trial. Commonwealth v.
Feliciano, 884 A.2d 901, 903 (Pa. Super. 2005). The decision whether to
grant a new trial due to alleged prosecutorial misconduct rests within the
discretion of the trial court and will not be disturbed on appeal absent an
abuse of discretion. Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa.
1998). Comments by a prosecutor do not constitute reversible error unless
the language was such that its unavoidable effect was to prejudice the jury,
forming in their minds fixed bias or hostility towards the defendant, so that
they could not weigh the evidence objectively and render a true verdict. Id.
In addition, during closing arguments, prosecutors are permitted to
comment in fair response to references made by defense counsel in their
closing statements. See Commonwealth v. Williams, 650 A.2d 420, 428
n.13 (Pa. 1994) (stating that prosecutor’s reference during closing argument
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to absence of witnesses was permissible as proper response to defense
counsel’s remarks pertaining to the absence of the witnesses).
Our review of the record reflects the prosecutor made the following
comments during closing argument regarding the testimony offered by Luis
Ortiz, which was interrupted by an objection from defense counsel:
[ASSISTANT DISTRICT ATTORNEY]: Counsel was talking about
inconsistencies and I haven’t heard any in his testimony, but
when it comes to any differences in testimony or pointing the
finger at someone, there is no argument. There were no issues,
no, no fighting between Luis Ortiz and [Appellant], this
defendant [Appellant]. No fighting, no issues. What motive
would he have to point the finger at this gentleman who he
barely knows, he’s never had a conversation with, as the shooter
except for the fact that he saw it with his own eyes? There’s no
motive to do it except for that’s the truth and he was providing
that observation and wanted to assist the police. Counsel wants
you to believe that he pointed the finger at [Appellant] because
he was threatened and he knew somebody else got beaten up.
Well, the result of somebody else getting beaten up was Eli
Hernandez coming in here and saying or coming into the
detectives and in here and saying I never saw anything. He had
a fear about getting involved as a reaction, even though he did
admit, I told people in the neighborhood that it was [Appellant].
[DEFENSE COUNSEL]: Objection.
THE COURT: You may continue.
[ASSISTANT DISTRICT ATTORNEY]: He stated, did you tell
people it was [Appellant]? It was read into the record. But he
backtracked from the very beginning. That was based on his
personal experience or his fear of getting beaten up or his, but it
did not affect Luis Ortiz and there’s not enough time for that
knowledge to have any effect on his statement when we know
that he was already brought to the detective division, sat down
and started giving a statement an hour and a half after this,
after this incident occurred. There’s no connection. There’s no
[sic] even knowledge that Luis Ortiz knew what happened or the
extent of what happened to Eli or his brother to affect his, his
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statement, his identification, and it clearly did not affect his
testimony from what you observed, his demeanor, his ability to
respond to the questions when he testified as part of this trial.
N.T., 10/22/12, at 80-82.
Thus, the record indicates that, although Appellant objected to the
comment in a timely manner, Appellant did not request a mistrial or curative
instructions from the trial court. Accordingly, Appellant’s issue of
prosecutorial misconduct is waived on appeal. Strunk, 953 A.2d at 579
Moreover, even if not waived, we would adopt the following discussion
of the trial court and conclude that Appellant’s claim lacks merit:
Upon review of the evidence presented at trial, [the trial
c]ourt has determined that the prosecutor’s remarks did not
constitute misconduct. The remarks were made in fair response
to the defense’s closing argument as to how the beating suffered
by Eliezer Hernandez influenced the statement of Luis Ortiz and
the testimony presented at trial. Specifically, the defense’s
argument to the jury was as follows:
But probably most telling about Luis Ortiz was
Eliezer Hernandez. You remember the young man
who came in here and he told you, he said in his
statement the police asked him, they said did you
see who did this? No. Did you tell people you saw
who did this? Yeah, I told a couple people I saw who
did this but I really didn’t. And then he tells you that
they were arguing with Luis Ortiz, they being the
relatives of Jerome Carlyle, and I went over there to
tell them that Luis Ortiz was not involved and he got
beaten, stomped, he and his brother put in the
hospital. You remember what he told you. I thought
I was going to die.
Now, is that the motivation for Luis Ortiz going
down to the police station and saying, oh, yeah,
yeah, I saw this, I’m not going back there and have
those people exact their revenge on me? I am not
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criticizing what happened. I can imagine the rage
that those family members must have felt. It’s not
justifiable but it is explainable. But what they did,
they manipulated the evidence. It took Eliezer
Hernandez to come in here and say, yeah, they beat
me up but I didn’t see anything and so I couldn’t
help them. For Luis Ortiz, I’m not going to be on the
receiving end of whatever is out there.28
28 N.T. 10/22/2012 at 60-61.
The prosecutor’s closing remarks were properly made to rebut
the defense’s assertion that Hernandez’s beating was what
prompted Ortiz to provide his statement and his testimony. The
prosecutor presented the jury with the Commonwealth’s
alternate assessment that Hernandez’s beating only explained
his own demeanor in testifying and that the beating could not
have influenced Ortiz’s statement or his testimony at trial. As
such, [the trial c]ourt found that the prosecutor’s remarks were
not a deliberate attempt to destroy the jury’s objectivity, but
rather a proper, alternate assessment of what the evidence
demonstrated at trial. Accordingly, the prosecutor committed no
reversible error and [Appellant’s] claim must fail.
Trial Court Opinion, 6/27/17, at 14-15.
In conclusion, Appellant has presented no issues warranting relief.
Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/18
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