J-S59016-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

IGNACIO CARTEGENA,

Appellant No. 2043 EDA 2015

Appeal from the Judgment of Sentence of April 28, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010833-2012

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 09, 2016

Appellant, Ignacio Cartegena, appeals from the judgment of sentence 

entered on April 28, 2015 in the Criminal Division of the Court of Common 

Pleas of Philadelphia County. We affirm.

The trial court summarized the factual and procedural history in this 

case as follows.

[O]n November 23, 2011, a van pulled onto the 2200 block of 

West Huntingdon Street in Philadelphia. Two men (one of whom 

was wearing a mask) stepped out of the van. Both had firearms 

and began shooting. Mark Plaire (“Plaire”) was on the block 

when the van pulled up and the shooting began. Thinking the 

men were firing at him, Plaire removed a .45 caliber pistol from 

his waistband, fired two shots in the direction of the men (whom 

he later identified as “Tay” and “Man-Man”), and ducked into his 

house. When Plaire walked back outside, he saw [Appellant] --

whom he knew as “Gaby” -- firing at Tay and Man-Man. 

[Appellant’s] girlfriend, Shannon Robinson (“Robinson”), was 

also on the scene. [Appellant] pushed Robinson to the ground 

during the crossfire. [At trial, Robinson testified that Appellant 
J-S59016-16

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possessed a gun at the scene of the November 23, 2011 

shooting on West Huntingdon Street.]

Following a January 26, 2015 waiver trial, th[e trial] court found 

[Appellant] guilty of [carrying a firearm without a license (18 

Pa.C.S.A. § 6106), person not to possess firearms (18 Pa.C.S.A. 

§ 6105), and carrying a firearm in Philadelphia (18 Pa.C.S.A. 

§ 6108.)] The court deferred sentencing for completion of a 

presentence investigation. On April 28, 2015, the court 

sentenced [Appellant] to an aggregate term of six to seventeen 

years of incarceration, followed by three years of probation. 

[Appellant] (through counsel) filed a post-sentence motion on 

May 3, 2015. The court denied the motion without a hearing on 

June 12, 2015.

[Appellant] filed a timely notice of appeal on July 8, 2015, a 

court-ordered statement of errors complained on appeal 

(“[concise s]tatement”) on August 5, 2015, and a supplemental 

statement of errors (“[s]upplemental [s]tatement”) on 

September 19, 2015. [Among other issues, Appellant] raised 

the following claims of error in his [concise s]tatement[:]

The evidence was insufficient as a matter of law to convict 

[Appellant] under 18 Pa.C.S. § 6106 because the 

Commonwealth did not present evidence that [Appellant] 

possessed a “firearm” as defined by 18 Pa.C.S. § 6102;

The verdict was against the weight of the evidence because 

there was no “physical, forensic, or scientific evidence” of 

[Appellant’s] guilt; one eyewitness did not “adopt or 

corroborate his prior statement to the police” that 

[Appellant] possessed a firearm at the time in question; and 

another eyewitness had motive to lie[.]

Trial Court Opinion, 11/30/15, at 1-3.

We carefully reviewed the certified record, the submissions of the 

parties, and the opinion of the trial court. Based upon our review, we concur 

in the trial court’s conclusion that the Commonwealth introduced sufficient 

evidence to sustain Appellant’s conviction under 18 Pa.C.S.A. § 6106 
J-S59016-16

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because the evidence established beyond a reasonable doubt that Appellant 

possessed a firearm as defined by 18 Pa.C.S.A. § 6102. See Trial Court 

Opinion, 11/30/15, at 4-5 (finding sufficient evidence of Appellant’s use of 

firearm in Plaire’s prior statement to police that men involved in shooting 

used 9mm automatic weapons and officer’s recovery of over 40 fired 9mm 

cartridges from West Huntingdon crime scene). We also conclude that the 

trial court properly exercised its discretion in rejecting Appellant’s claim that 

his convictions for carrying a firearm without a license (18 Pa.C.S.A. 

§ 6106), person not to possess firearms (18 Pa.C.S.A. § 6105), and carrying 

a firearm in Philadelphia (18 Pa.C.S.A. § 6108) were against the weight of 

the evidence. See Trial Court Opinion, 11/30/15, at 5-6 (finding Plaire’s 

prior statement to police corroborated by other evidence and worthy of belief 

while Plaire’s inability at trial to recall Appellant’s involvement in shooting 

was contrived to avoid testifying; finding further that Robinson’s testimony 

concerning Appellant’s involvement in shooting and possession of a gun was 

not motivated by bias against Appellant). Because the trial court adequately 

and accurately addressed the issues raised on appeal, we adopt its opinion 

as our own. We direct the parties to include the trial court’s opinion in all 

future filings that relate to our disposition of this appeal.

Judgment of sentence affirmed. 
J-S59016-16

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2016
- .... ,- 

\__, i 

1 "Persons not to possess, use, manufacture, control, sell or transfer firearms." 

2 "Firearms not to be carried without a license." 

3 "Carrying firearms on public streets or public property in Philadelphia." 

111 I 11 I I 1111111111 II I 1111 

7375550021 

CP-51.CR-0010833-2012 comrn. v. cartegena. tgn3cio 

Opinion 

of errors complained of on appeal ("Statement") on August 5, 2015, and a supplemental 

The defendant filed a timely notice of appeal on July 8, 2015, a court-ordered statement 

motion without a hearing on June 12, 2015. 

defendant (through counsel) filed a post-sentence motion on May 3, 2015. The court denied the 

term of six to seventeen years of incarceration, followed by three years of probation. The 

presentence investigation. On April 28, 2015, the court sentenced the defendant to an aggregate 

defendant") guilty of three violations of the Uniform Firearms Act: 18 Pa.C.S. § 6105;1 18 

Pa.C.S. § 6106;2 and 18 Pa.C.S. § 6108.3 The court deferred sentencing for completion of a 

Following a January 26, 2015 waiver trial, th.is court found Ignacio Cartegena ("the 

I. PROCEDURAL HISTORY 

WOELPPER, J. NOVEMBER 30, 2015 

OPINION 

SUPERIOR COURT 

IGNACIO CARTEGENA 2043 EDA 2015 

V. 

COMMONWEALTH OF CP-51-CR-OO l 0833-2012 

PENNSYLVANIA 

fN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

-•1 I , 

- . ,._,_ .ll 

Circulated 07/28/2016 02:27 PM
2 

4 On August I 0, 2015, the court granted the defendant's "Request for Extension of Time to File a Supplemental 

Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. I 925(b )" because the necessary notes of 

testimony were not yet available. 

5 In his Statement, the defendant raised a general insufficiency claim as to all three charges. See Statement at ,i 9(a). 

Only in his Supplemental Statement did he specifically identify what evidence was insufficient (i.e., evidence that 

the defendant possessed a "firearm" as defined in 18 Pa.C.S. § 6102). See Supplemental Statement at f 11. 

6 The defendant's claim of an "unduly harsh and excessive" sentence was raised only in his original Statement. See 

Statement at ,i 9(c). 

the men were firing at him, Plai.re removed a .45 caliber pistol from his waistband, fired two 

Plaire ("Plaire") was on the block when the van pulled up and the shooting began. Id. Thinking 

wearing a mask) stepped out of the van. Id. Both had firearms and began shooting. Id. Mark 

Philadelphia. Notes of Testimony ("N.T."), Jan. 26, 2015, at p, 20. Two men (one of whom was 

November 23, 2011, a van pulled onto the 2200 block of West Huntingdon Street in 

The evidence at trial in the light most favorable to the Commonwealth established that on 

' IL FACTS 

judgment of sentence should be affirmed. 

For the following reasons, the defendant's allegations of error lack merit, and the 

(3) The court imposed an "unduly harsh and excessive sentence. "6 

firearm at the time in question; and another eyewitness had motive tolie; and 

"adopt or corroborate his prior statement to police" that the defendant possessed a 

forensic, or scientific evidence" of the defendant's guilt; one eyewitness did not 

(2) The verdict was against the weight of the evidence because there was no "physical, 

defendant possessed a "firearm" as defined by 18 Pa.C.S. § 6102;5 

Pa.C.S. § 6106 because the Commonwealth did not present evidence that the 

( 1) The evidence was insufficient as a matter of law to convict the defendant under 18 

raised the following claims of error in his Statement and Supplemental Statement: 

statement of errors ("Supplemental Statement") on September 19, 2015.4 The defendant has 
3 

evidence, was sufficient to prove that the defendant possessed a "firearm." First, both Plaire and 

The evidence on the record, along with all of the reasonable inferences drawn from that 

[a)ny pistol or revolver with a barrel length less than 15 inches, any shotgun with 

a barrel length less than 18 inches or any rifle with a bane! length less than 16 

inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 

26 inches. The barrel length of a firearm shall be determined by measuring from 

the muzzle of the barrel to the face of the closed action, bolt or cylinder, 

whichever is applicable. 

"firearm." Section 6102 defines a firearm as: 

Here, the defendant has challenged the sufficiency of the evidence that he possessed a 

reviewing court "may not substitute its judgment for that of the fact finder." Id. 

every material element of the crime charged. Id. If the record supports the verdict, the 

evidence is sufficient if it establishes beyond a reasonable doubt that the defendant committed 

from the evidence." See Commonwealth v. Santiago, 980 A.2d 659, 662 (Pa. Super. 2009). The 

Commonwealth, "giving the prosecution the benefit of all reasonable inferences to be drawn 

evidence, the appellate court views the evidence in the light most favorable to the 

"firearm" as defined in 18 Pa.C.S. § 6102. In reviev .. -ing a challenge to the sufficiency of the 

The Commonwealth presented sufficient evidence that the defendant possessed a 

A. Sufficiency of the Evidence 

III. DISCUSSION 

pushed Robinson to the ground during the crossfire. Id. at 39. 

girlfriend, Shannon Robinson ("Robinson"), was also on the scene. kl at 27; 38. The defendant 

whom he knew as "Gaby" - firing at Tay and Man-Man. Id. at 21 and 25. The defendant's 

ducked into his house. Id at 19-21. When Plaire walked back outside, he saw the defendant - 

shots in the direction of the men (whom he later identified as "Tay" and "Man-Man"), and 
4 

7 At trial, Plaire testified consistently with his June 4, 2012 statement as to where and when the shooting took place 

and as to Tay's and Man-Man's involvement. N. T., Jan. 26, 2015, at p. 20-22. The court found incredible that the 

only "detail" Plaire could not remember was the defendant's involvement (or even the defendant's name). Id. at 22. 

8 Plaire was shown his statement at trial and identified certain signatures or initials as his own. Hedenied or 

claimed not to be able to identify others. Detective Gaul, after testifying to his protocol when taking a statement 

(including transcribing the questions asked and answered and giving the witness the transcription to review, read 

aloud, and confirm as accurate by signing and initialing), testified that Plaire had, in fact, signed and initialed the 

statement. The court found Detective Gaul's testimony credible and believed that Plaire had given (and adopted by 

signature) the statement as transcribed. See Commonwealth v. Presbury, 665 A.2d 825, 832 (Pa. Super. 1995) 

(witness's signature on statement at time it was made constituted "adoption" even though at trial witness denied 

having made many portions of statement). 

court, acting as fact finder, reasonably concluded that some of the 9 mm luger cartridge casings 

the shooting appeared to be using 9 mm automatics. N.T., Jan. 26, 2015, at pp. 26-27. The 

9 mm luger casings. This, too, was consistent with Plaire's statement that the men involved in. 

testimony that he had shot his .45 caliber pistol twice. The remaining casings were identified as 

pistol) were recovered on Plaire's porch. This physical evidence was consistent with Plaire's 

from the scene. See Commonwealth Trial Exhibit C-4. Two of the casings (from a .45 caliber 

Finally, Philadelphia Police Officer Edward Fidler recovered 46 fired cartridge casings 

Lively, 610 A.2d 7 (Pa. 1992)).8 

Super. 2014) (citing Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986) and Commonwealth v. 

purposes and as substantive evidence. See Commonwealth v. Buford, 101 A.3d 1182, 1201 (Pa. 

examination, the trial court properly admitted the June 4, 2012 statement for both impeachment 

Detective Gaul was given under reliable circumstances and that Plaire was available for cross 

N.T., Jan. 26, 2015, at p. 22.7 Having found that Plaire's prior inconsistent statement to 

court concluded that he was feigning a failed memory to avoid testifying against the defendant. 

he did not remember if the defendant was one of the individuals involved in the shooting, the 

defendant as the individual who shot at Tay and Man-Man. Although Plaire testified at trial that 

firing the gun. In his June 4, 2012 statement to Detective Thomas Gaul, Plaire identified the 

Robinson observed the defendant holding a firearm. Second, Plaire observed the defendant 
5 

Contrary to the defendant's claim, the verdict was not against the weight of the evidence 

presented at trial. A new trial is warranted only if the jury's "verdict is so contrary to the 

evidence as to shocks one's sense of justice ... " See Commonwealth v. Clay, 64 A.3d 1049, 1055 

(Pa. 20 I 3) (internal quotation and citation omitted). Furthermore, it is within the fact-finder's 

discretion to "believe all, part, or none of the evidence and to determine the credibility of the 

witnesses ... " Commonwealth v. Brown, 71 A.3d 1009, 1013 (Pa. Super. 2013)(i.nternal 

quotation and citation omitted), appeal denied, 77 A.3d 635 (Pa. 20 I 3). 

As stated above, the court concluded that Plaire 's claimed inability to recall anything 

assigning culpability to the defendant was contrived to avoid testifying against the defendant. 

Furthermore, the court believed the version of events recounted in Plaire's June 4, 2012 

statement. Much of Plaire's earlier account was corroborated by other evidence, including 

Robinson's testimony and the casings found at the crime scene. 

Finally, the court was unconvinced that Robinson's testimony was motivated by bias 

against the defendant. On cross-examination, Robinson testified that she had written to the 

defendant while he was incarcerated to inform him that she was ending their relationship based 

on his infidelity. N.T., Jan.26, 2015, at pp. 42-44. This testimony regarding an undated 

"breakup" letter did not outweigh all of the afore-discussed evidence supporting the court's 

verdict. See Clay, 64 A.3d at 1055 (trial court must determine whether "notwithstanding all the 

recovered from the scene were from the firearm the defendant was shooting. Because a 9 mm 

luger is a pistol with a barrel length less than 15 inches, the evidence was sufficient to conclude 

that the defendant possessed a "firearm" as defined under Section 6102. 

B. Weigh! of the Evidence 
6 

9 The parties agreed that the defendant's prior record score was a 5. N.T., Apr. 28, 2015, atp.4. Based on that prior 

record score, the guideline sentence range for a violation of 18 Pa.C.S. § 6105 was 60-72 +/- 12 months of 

incarceration. The court sentenced the defendant to 4-10 years of incarceration. The defendant's guideline range for 

a violation of 18 Pa.C.S. § 6106 was 48-60 +/- 12 months of incarceration. The court sentenced the defendant to 2-7 

years of incarceration. Finally, the defendant's guideline range for a violation of 18 Pa.C.S. § 6!08 was 12-18 +/- 3 

months of incarceration. The court sentenced the defendant to 3 years of probation. 

mitigating factors). See Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (citing 

presentence investigation report (including the defendant's rehabilitative needs and any 

protection of the public), testimony at the sentencing hearing, the defendant's allocution, and the 

sentencing guidelines, but also argument by counsel (including argument as to the need for 

range or below the guidelines." In formulating the sentence, the court considered not only the 

excessive." The defendant's incarceration sentences were either within the mitigated guideline 

The defendant has not stated with specificity how his sentence is "unduly harsh and 

judgment."' Walls, 926 A.2d at 963 (internal citations and quotations omitted). 

978 l(c)(2). An "unreasonable" decision is one that is '"irrational' or 'not guided by sound 

to determine whether the trial court's sentence is "clearly unreasonable." 42 Pa.C.S. § 

imposes a sentence within the sentencing guidelines, the appellate court must review the matter 

as to be clearly erroneous." Id. (internal quotations omitted). When the sentencing court 

of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so 

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). An abuse of discretion "requires a result 

See Statement at ~9(c). Sentencing is a matter left to the sentencing court's discretion. 

three years of probation, was not "unduly harsh and excessive," as the defendant has claimed. 

The defendant's aggregate sentence of six to seventeen years incarceration, followed by 

C. Sentencing 

weight with all the facts is to deny justice."). 

facts, certain facts are so clearly of greater weight that to ignore them or to give them equal 
7 

. ' WOELPPER, J. 

For all of the foregoing reasons, the judgment of sentence should be affirmed, 

-·,;, 

/!~11lff'f1___ _____ 

IV. CONCLUSION 

sentence. 

at sentencing, the court did not abuse its discretion in ordering the defendant to serve a mitigated 

defendant's presentence report), Having given full and due consideration to the requisite factors 

considered defendant's rehabilitative needs and mitigating factors when court has reviewed 

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (presumption that sentencing court has 
J Alyson M. Bagley, Es . 

Law Clerk to the 

Hon. Donna M. Woelpper 

. 

Hugh Bums, Chief 

Appeals Unit 

Philadelphia District Attorney's Office 

3 South Penn Square 

· Philadelphia, PA 19107 

James R. Lloyd, III, Esq. 

1617 JFK Blvd. Suite 999 

Philadelphia, PA 19103 

- --n 

I hereby certify that I am this ,j{J' day of November, 2015, serving the foregoing Opinion 

on the persons indicated below by first class mail: 

PROOF OF SERVICE 

· IGNACIO CARTEGENA 2043 EDA 2015 

vs. 

COMMONWEALTH OF PEJ\TNSYLVANIA CP-51-CR-OO 10833-2012 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION