Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

JIQUAN BELL

Appellant No. EDA 2015 Appeal from the Judgment of Sentence November 22, 2011 In the Court of Common Pleas Philadelphia County Criminal Division at No(s): CP-51-CR-0002010-2011

BEFORE: BOWES, J., MOULTON, J., STEVENS, P.J.E.* FILED MAY 09, 2017

MEMORANDUM BY MOULTON, J.: Jiquan appeals from the November 22, 2011 judgment sentence entered Philadelphia County Court of Common Pleas following his convictions first -degree murder, criminal conspiracy, two counts aggravated assault, carrying firearm without license, possessing an instrument crime.' We conclude record does not contain sufficient support conspiracy conviction therefore vacate conviction. We affirm judgment of sentence as remaining convictions. trial court summarized the facts follows:

* Former Justice specially assigned the Superior Court. ' 18 Pa.C.S. §§ 2502, 903, 2702, 6106, 907, respectively. On June 22, 2010, Lamar Murphy and Hassan Polk met rode their bikes up to the block North Edgewood Street, Philadelphia. While Murphy and Polk were on Edgewood Street, Polk noticed a red driving through the block approximately three times with multiple people in it, including [Bell].

At approximately 3:12 p.m., the had passed the two boys again, [Bell], wearing a gray T-shirt, was standing on the corner of Edgewood and Media Streets. At this time, Murphy and Polk were on sidewalk in front of 1438 Edgewood Street, while Murphy was talking to a friend across the street.

While Murphy talking his friend, Polk noticed [Bell] walking down street towards them. [Bell] then pulled his shirt up cover the bottom of his face, pulled out a gun while standing in the middle of the street, and [Bell], attempting to began shooting at Murphy shoot Polk, fired shot which struck Murphy head Polk began to run away from [Bell]. [Bell] continued shoot multiple times Polk as he fled down street, striking once the shoulder. Polk fled to 60th street [Bell], where he then got ride Lankenau Hospital. meanwhile, scene towards Media Street. Responding police officers arrived to find Murphy lying the sidewalk with gunshot wound to head. Officers placed Murphy back police vehicle and transported him to Hospital University Pennsylvania, where he pronounced dead 3:39 p.m. Police recovered bullet fragment from front door North Edgewood Street. A bullet was also recovered Murphy's body, which compared to bullet fragment recovered from the home. Subsequent both bullets were forensic analysis established approximately .38 caliber weight were fired from same weapon. No cartridge casings were recovered from the scene.

On July July 14, 2010, Donte Yarde [Bell] were both incarcerated at the Youth Study Center. While there, Yarde overheard [Bell] talking other youths [Bell] he had about the tattoos on his face. tear -shaped tattoo on his face because had killed - -

"Lamar" while he had been intending kill "Cheetah."2 [Bell] stated he "just walked down Edgewood [S]treet and started shooting," killing Murphy with the first shot and firing multiple times at Polk. Police subsequently interviewed Yarde, who identified [Bell] as the individual who stated had shot at both Murphy and Polk. Polk also identified [Bell] the police as the shooter during an interview.

Opinion, 2/8/16, at 2-4 ("1925(a) Op.") (footnotes citations omitted). At trial, Raheem Henderson testified for the Commonwealth regarding the GPS tracking unit Bell had place part of his youth probation. at 6. Henderson, who charge of the electronic monitoring of the GPS device, explained GPA coordinates that

[Bell] located on block of 57th Street 3:02 p.m., time when [Bell] should have been at home on 5500 block Oxford Street. Five minutes later, at 3:07 p.m., [Bell] was located on block of North 56th Street, further home immediate vicinity of where the shooting occur[r]ed. Another five minutes later, at 3:12 p.m., shortly after the shooting occurred, Henderson testified [Bell] on 1600 block of North 56th Street, far removed from the shooting location near home. Henderson then testified [Bell] remained area around home until at least 3:29 p.m. (internal citations omitted).

Following jury trial, the jury found guilty first -degree murder, criminal conspiracy, two counts aggravated assault, carrying firearm without license, possessing instrument of crime. trial court sentenced to life imprisonment first -degree murder conviction "Cheetah" was Polk's nickname. with further penalty the remaining charges. Bell filed a post -sentence motion, which the trial court denied April 25, 2012.

On December 19, 2015, timely filed a notice of appeal.3 On appeal, argues the Commonwealth presented insufficient evidence to prove conspiracy to commit murder beyond a reasonable doubt. Bell's Br. 36.4

When reviewing a sufficiency of the evidence claim, our task is determine "whether viewing all the evidence admitted trial light most favorable to verdict winner, there sufficient to enable the fact -finder find every element of the crime beyond reasonable doubt." v. Lehman, 820 A.2d 766, 772 (Pa.Super. 2003), aff'd, 870 A.2d 818 2005) (quoting DiStefano, 782 A.2d 574 (Pa.Super. 2001)). "[T]he facts circumstances established by the Commonwealth need not preclude every possibility of innocence," Lehman, 820 A.2d at 772 (quoting DiStefano, 782 A.2d at 574),

[3] trial court reinstated Bell's appellate rights nunc pro tunc on December 11, after this Court dismissed Bell's earlier appeal due to failure his counsel at time comply with order file docketing statement. brief does not include statement of questions involved

pursuant to Pennsylvania Rule of Appellate Procedure 2116(a), but the argument section of brief does address this issue. See Commonwealth Stradley, n.2 (Pa.Super. 2012) (declining find waiver when appellant failed to include Statement of Questions Involved section, but raised issues argument section brief, stating "this omission does not impede our ability to address merits of those issues"). "[a]ny doubts regarding defendant's guilt may be resolved by fact - finder unless the evidence so weak and inconclusive matter of law probability fact may be drawn from the combined circumstances." "The Commonwealth may sustain its burden of proving every element the crime beyond reasonable doubt means of wholly circumstantial evidence." Id.

In applying the above test, we must evaluate the entire record. DiStefano, 782 A.2d at 582. Further, "the trier fact[,] while passing upon credibility of witnesses the weight of the evidence produced, is free believe all, part or none evidence." "[W]e may not weigh the evidence substitute our judgment fact -finder." Id.

To prove guilty criminal conspiracy, the Commonwealth required establish that: (1) "entered into an agreement commit or aid unlawful act with another person or persons," (2) "with a shared criminal intent," (3) "an overt act" performed furtherance of the conspiracy. Commonwealth v. Weimer, 1103, 1105-06 2009); see also 18 Pa.C.S. § 903. This Court has "[c]ircumstantial evidence may provide proof of the conspiracy. conduct of the parties the circumstances surrounding such conduct may create a 'web of evidence' linking the accused to alleged conspiracy beyond reasonable doubt." Irvin, 134 A.3d (Pa.Super. 2016) (quoting Perez, 931 A.2d 703, 708 (Pa.Super. 2007)). Further, a variety of

[a]n agreement can be inferred circumstances including, but not limited to, the relation between the parties, knowledge and participation in crime, the circumstances and conduct of the parties surrounding the criminal episode. These factors may coalesce to establish a conspiratorial agreement beyond reasonable doubt where one factor alone might fail. (quoting Perez, at 708). Bell claims that the Commonwealth presented insufficient evidence conspiracy because it failed establish an agreement between him any alleged co-conspirator. He claims that: never saw anybody exit red car; the shooting, Polk did not see red in vicinity; other witnesses testified to seeing a in vicinity; the Commonwealth not arrest or interview any of the alleged co-conspirators. Bell maintains that "there is not a scintilla of evidence establishing agreement between . . Murphy and/or . . Bell anyone else to shoot and kill . . Polk." Bell's . . . Br. 39. Finally, Bell claims that the conspiracy conviction is based on "pure speculation," is, that Polk saw Bell in back seat car when it drove several times. (emphasis omitted).5 To extent Bell attempts argue there insufficient first -degree murder conviction, see Br. (stating

"Bell never mentioned motive for shooting" "assuming is gunman"), has waived this claim. neither raised this issue his Pa.R.A.P. 1925(b) statement nor argued it brief. See Johnson, 985 A.2d (Pa. 2009) ("[W]here an appellate brief fails provide any discussion claim with citation relevant authority or fails develop the issue any other meaningful fashion capable of review, that claim waived."); Lord, 719 A.2d 306, 309 1998) ("Any issues raised [Rule] 1925(b) statement will be deemed waived."). trial court rejected sufficiency claim, concluding that sufficient for the jury to find that [Bell] had

been car with multiple other individuals shortly before the shooting, that this car dropped [Bell] off somewhere near the intersection of Media and Edgewood Streets after circling the block several times, that [Bell] shot Murphy and Polk and then the scene, returning vehicle which then transported him home. Accordingly, there is ample evidence which the jury could conclude driver of the car used by [Bell] transport him crime scene make getaway thereafter conspired with [Bell] shoot Murphy 1925(a) Op. at 5-6. We disagree.

While Polk testified6 that he saw red drive the neighborhood three times, N.T., 12/21/11, at 58-59, that at some point before the shooting he saw Bell back seat of red car, id. at 93, he also testified that he see car stop and did not see Bell exit car. at 118-119. Neither other two eyewitnesses, Jeanette Drayton Saadiyah Jones, mentioned red car. Furthermore, Drayton testified that minutes before the shooting took place, she saw Bell standing corner. N.T., 12/20/11, at 74-75. Jones testified that the shooting occurred, ran back the direction he came from. 192. No witnesses testified that exited the red car near scene of the shooting, waited until shot Murphy and Polk, he At trial, trial court found unavailable pursuant Pennsylvania Rule Evidence 804(a), preliminary hearing testimony admitted trial. in that same car. Additionally, there no evidence that other occupants of the car knew that going to shoot Murphy Notably, there evidence that these persons were located or interviewed.

Viewing the evidence light most favorable in Commonwealth, there simply insufficient evidence establish that Bell entered into agreement with anybody commit the shooting. During its closing argument, the Commonwealth that knew somebody was him and, therefore, paid careful attention to how many times the red car passed by and car's occupants. N.T., 12/21/11, at 212. From this, the Commonwealth extrapolated that "it makes perfect sense, common sense people car would send somebody out that car [Polk] know." That conspired with someone is certainly possible. However, while conspiracies may be proven through circumstantial evidence, we cannot uphold conviction based mere possibility or "pure conjecture."' See Commonwealth v. Farquharson, All cases cited the Commonwealth support its argument are distinguishable. Those cases, including Commonwealth v. Weimer, 977 A.2d 2009), Commonwealth v. Tejada, 107 A.3d 788 (Pa.Super. 2015), Commonwealth v. Poland, A.3d 518, (Pa.Super. 2011), Lambert, 795 A.2d 1010 (Pa.Super. 2002), Commonwealth v. Tillery, 611 A.2d 1245

(Pa.Super. 1992), Azim, A.2d 1244 (Pa.Super. 1983), all involved conspirators who acted concert were present at the scene, or included the getaway driver knew the crime was being committed. (Footnote Continued Next Page)

354 A.2d 545, 1976). We conclude record does not contain sufficient evidence support the conspiracy conviction.

Because trial court not impose further penalty for conspiracy conviction, vacating judgment of sentence for conspiracy does affect the overall sentencing scheme remand not necessary. See Lomax, 1268-69 (Pa.Super. 2010)

(finding remand not required when vacating judgment of sentence would not disturb overall sentencing scheme).

Judgment of sentence conspiracy vacated. Judgment of sentence affirmed the remaining convictions.

Judge Bowes joins memorandum.

President Judge Emeritus Stevens files dissenting memorandum. Judgment Entered.

J seph D. Seletyn,l

Es .

Prothonotary

Date: 5/9/2017

(Footnote Continued)

Here, contrast, there car, the occupants of the were present at time of the shooting or knew of Bell's plans to shoot Murphy