### J -S10026- 18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.
JESSIE DAVIS Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3387 EDA 2016 Appeal from the Judgment of Sentence September 19, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP- 51 -CR-0003341 -2014 BEFORE: BOWES, J., OLSON, J., and NICHOLS, J. MEMORANDUM BY OLSON, J.: FILED MAY 14, 2018 Appellant, Jessie Davis, appeals from the judgment of sentence entered on September 19, 2016 in the Criminal Division of the Court of Common Pleas of Philadelphia County. We affirm. Briefly stated, the relevant facts a nd procedural history of this case are as follows. During the early morning hours of February 16, 2014, Appellant shot two men in the head during gunpoint robberies that took place shortly after the men exited a Chinese restaurant. Thereafter, on Decembe r 22, 2015, Appellant waived his right to a jury and proceeded to a bench trial. After receiving the evidence, the court, on December 23, 2015, found Appellant guilty of two counts each of attempted murder, 1 

### aggravated

_________________ ____________________ _______ 1 

### 18 Pa.C.S.A.§§ 901(a) and 2502 .

### J -S10026- 18

- 2 -

assault, 2 

### and robbery. 3 

### The trial court also found Appellant guilty of one count each of conspiracy to commit murder, 4 

### possession of a firearm not to be carried without a license, 5 

### and carrying a firearm on the public streets of Philadelphia. 6 

### On July 14, 2016, the court sentenced Appellant to an aggregate term of 25 to 50 years’ incarceration. Appellant subsequently moved for reconsideration of his sentence. 7 

### After vacating Appellant’s original sentence, the trial court, on September 19, 2016, ordered Appellant to serve 20 to 60 years in prison. This appeal followed. 8

_________________ ____________________ _______ 2 

### 18 Pa.C.S.A.§ 2702(a).
3 

### 18 Pa.C.S.A.§ 3701(a)(i).
4 

### 18 Pa.C.S.A.§§ 903(a) and 2502.
5 

### 18 Pa.C.S.A.§ 6106(a).
6 

### 18 Pa.C.S.A.§ 6108.
7 

### Appellant’s post
-sentence motion did not challenge the weight of the evidence.
8 

### We shall treat the instant appeal as timely filed pursuant to the prisoner mailbox rule, which holds that an appeal is deemed filed by an incarcerated individual acting pro se when it is placed into the hands of prison officials, even if it is actually received by the court after the deadline for filing appeal . See Commonwealth v. Jones, 700 A.2d 423 , 426 (Pa. 1997). Here, the record reveals that the trial court imposed Appellant’s judgment of sentence on September 19, 2016. Thus, Appellant had until October 19, 201 6 to file his notice of appeal. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from wh ich the appeal is taken). Appellant’s pro se notice of appeal bears a date stamp indicating that the (Footnote Continued Next Page)

### J -S10026- 18

- 3 -

In his brief, Appellant challenges the sufficiency of the evidence underlying his convictions, arguing that his identity as the perpetrator of the instant crimes was not proven beyond a reasonable doubt. In the alternative, Appellant claims that the evidence of his identification was so unreliable that the trial court abused its discretion in concluding that the guilty verdicts were not contrary to the weight of the evidence. We carefully reviewed the certified record, the pertinent case law, the submissions of the parties, and the opinion of the trial court. Based upon our review, we agree with the court that the evidence was sufficient to demonstrate Appellant’s guilt beyond a reasonable doubt. See Trial Court Opinion, 4/26/17, at 5 - 11 (examining Appellant’s challenge to the sufficiency of the evidence). Because the court adequately and accurately addressed Appellant’s sufficiency challenge, we adopt this aspect of the trial court’s opinion as our own. Accordingly, the parties are instructed to attach a copy of the trial court’s opinion to all future filings pertaining to our disposition in this appeal. (Footnote Continued)

_______________ ________ 

### clerk’s office received it on October 20, 2016. Because the date of receipt is one day after the 30 -day appeal deadline, we infer that Appellant placed the notice into the hands of prison authorities no later than October 19, 2016. See Jones, 700 A.2d at 426 (Supreme Court “ inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities”) . We further note that, on April 10, 2017, Appellant, through counsel and with leave of this Court, filed an amended notice of appeal to clarify that he sought to challenge the September 19, 2016 judgment of sentence and not the December 23, 2015 guilty verdict.

### J -S10026- 18

- 4 -

We also find that Appellant is not entitled to relief based upon his challenge to the weight of the evidence . As a preliminary matter, Appellant waived appellate review of his weight claim because he failed to challenge the weight of the evidence before sentencing or by way of a post-sentence motion. See Pa.R.Crim.P. 607 (A) (“A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or, (3) in a post-sentence motion.”) ; Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (failure to properly preserve weight claim in post-sentence motion, by written motion before sentencing, or orally on the record prior to sentencing results in waiver, even if trial court addresses the issue in its opinion ) , appeal denied, 159 A.3d 941 (Pa. 2016) ; Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Even if we were to reach the merits of Appellant’s weight claim, we would not find that the trial court abused its di scretion in rejecting his contentions . See Trial Court Opinion, 4/26/17, at 11 - 13 (evaluating weight claim and crediting complainants’ consistent and confident testimony that Appellant perpetrated the offenses in this case). For each of the foregoing reasons, we conclude that Appellant is not entitled to relief based on the claims raised in this appeal. Judgment of sentence affirmed.

### J -S10026- 18

- 5 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/14/18Circulated 04/23/2018 11:35 AM

IN THE 

### COURT OF COMMON PLEAS OF 

### PHILADELPHIA COUNTY FILED FIRST JUDICIAL DISTRICT OF 

### PENNSYLVANIA TRIAL DIVISION 

# - CRIMINAL SECTION APR 2 6 2017 Office of Judicial Recorc Commonwealth 

### ofPennsylvania CP-51-CR-0003341-2014 Appeals/Post Trial

Nr. SUPERIOR COURT Jessie. Davis NO. 3387 EDA 2016

OPINION Ehrlich, J. CP-51-C13-00033412D14 Comm v. Davis,.Jessie

Opinion
11111,191161111,1111111 Jessie Davis, 

### hereinafter Appellant, was found guilty 

### of attempted murder, robbery, aggravated assault, conspiracy, and possession 

### of an instrument 

### of crime following a waiver trial

on December 23, 2015.1 The charges stem from a robbery and 

### shooting that occurred in North Philadelphia on February 16, 2014. Appellant was sentenced on September 19, 2016, to an aggregate term 

### of twenty to sixty years 

### ofincarceration. A timely appeal followed, On appeal, 

### Appellant avers two points 

### of error: 1. Was the evidence in this matter insufficient to sustain a verdict 

### of guilt on all charges 

### (Attempted Murder, Aggravated Assault, Robbery, Criminal Conspiracy, 

### Violation 

### ofthe Uniform 

### Firearm Act §6106, Violation 

### of the Uniform 

### Firearm Act §6108, and Possession 

### of an 

### Instrument 

### of Crime) where the sole 

### eyewitness's identification testimony was contradictory and unreliable (based on the location, design, and 

### placement 

### ofthe 

### shooter's face tattoos), and where otherwise the only 

### identification 

### ofthe defendant as 

### shooter was 

### made based on the color and style 

### of the

### jacket the defendant was wearing? 2, Where the

### judgment of guilt and

### judgment 

### of sentence on all offenses 

### (Attempted Murder, Aggravated Assault, Robbery, Criminal Conspiracy,
18 Pa,C.S.A. §§ 6106(a)(1), and 6108, respectively.Violation. 

### ofthe Uniform Firearm. Act 

### 0106, Violation 

### ofthe Uniform Firearm Act and 

### Possession 

### of an 

### Instrument 

### ofCrime) against the 

### weight 

### ofthe evidence, where the sole 

### eyewitness'sidentification testimony was 

### contradictory and unreliable (based on the location,. design, and 

### placement 

### ofthe. 

### shooter's face 

### tattoos), and where otherwise the only 

### identification was made due to the 

### shooter's clothing? 

### .Appellants Pa.R.A.P. 1925(b) Statement. As will be. discussed below, these claims are without Tnerit 

### Accordingly, no 

### reliefis due. The Evidence On 

### February 16, 2014 at approximately 1 :00 a.m., Tornas Albaladejo 

### and Jose Reyes, herein after the 

### complainants, entered 

### a Chinese 

### food takeout 

### restaurant 

### at 3670 

### Franktord Avenue. .Notes 

## of Testimony 

### ("N.T..") 12/22/2015, at 13. Mr. Albaladejo 

### and Mr. Reyes are. brothers-in-law. Id. 

### While walking into the store, Mr; Albaladejo 

### looked up. and 

### saw Appellant. Id. at 16. The 

### Chinese store was well lit. Id. Mr. Albaladejo stated Appellant had on 

### a green 

### jacket with a. hoodie 

### pulled over his head. Id: 

### Appellant's face was visible. Id. Mr. Albaladejo stated he noticed 

### Appellant because 

### ofhis unique facial tattoos. Id. 

### Appellant has a tattoo depicting a bag 

### ofmoney and:a lightning bolt 

### on his forehead. Id. 

### at 85. Mr. Albaladejo stated he. has 

### never seen anyone 

### with those particular type 

### of tattoos before. Id.. 

### The Appellant then exited the store. Id. .Mr. 'Reyes 

### cannotread, write.or.understand

### the Englishlariguage,.sa.Mi...Albaladefo helped him order 

### from themenu.. Id. After about five to 

### ten minutes, Mr. 

### Reyesreceived his food and the 

### men exited the store. Id. 

### at 17. The 

### pair proceeded down Frankford Avenue. Id,. Mr.: ReyeS. was walking a 

### foot or two ahead when Mr. Albaladejo 

### heard footStepS running behind them. Id: at 23. He 

### turned around and..sawtWo.individualS 

### running toward them. Id. All 

### of.a.sudrien; Mr...Albaladejo heard apop.and.felt a ringing sound in his ear. Id. He.had.been shot in the 

### backof

### his head behind his ear. Id. at 25. 

### His nose. 

### and mouth 

### started to bleed. Id. 

### at 237. He turned and saw Appellant, the same individual he saw in 

### the Chinese restaurant minutes earlier, Id. at 26. 

### Appellant had :a 

### gun in his hand and was 

### wearing the same green coat he 

### had

on in the Chinese restaurant. Id. 

### at 27. Appellant walked over to Mr. Reyes, who was about five feet away 

### from Mr. Albaladejo. Id. Appellant told Mr. Reyes, "Give me your wallet." Id. at 28.. Since Mr. Reyes does 

### not understand English, Mr. Albaladejo translated 

### Appellant's instructions into Spanish. Id. Appellant 

### pointed the gun at Mr. 

### Reyes' forehead and said 

### "You think 

### I'm playing?" Id. at 29. Mr. Albaladejo told Mr. Reyes to give Appellant his 

### wallet and, 

### "whatever [else] he wanted." Id. Mr. Reyes 

### handed Appellant $40 in cash. Id. 

### Appellant then shot Mr. Reyes 

### in the back 

### of the head. Id. at 31. 

### Appellant then walked back to Mr. Albaladejo who was bent down on one knee. Appellant held the gun two inches from Mr. 

### Albaladejo's forehead and said, "Give me your wallet." Id. at 34. Mr. Albaladejo then handed his 

### wallet to the 

### Appellant Id. A second 

### unidentified man was standing one 

### or two 

### feet away during the incident. Id: at
38.. During the robbery, 

### the man seemed to be acting as a look-out. Id. 

### After Mr. Albaladejo handed over his wallet, the 

### man said 

### "Let's go" and the 

### pair walked in the direction 

### ofthe Chinese restaurant. Id. at 35. After the assailants fled, Mr. Reyes pulled Mr. 

### Albaladejo to his feet. Id. at 36. Mr. Albaladejo 

### held onto Mr. 

### Reyes as 

### the two stumbled.to. Mr. 

### Albaladejo's mother-in-law's house

on 

### Pickwick Street. Id. 

### When they arrived, Mr. Reyes called 9-1-1 and 

### police arrived shortly thereafter. /d. At 1:20 a.rn. on. February 16, 2014, Philadelphia Police 

### Officer Creely, and his partner Officer Mendez, were on routine patrol when they received a 

### report 

### of a shooting 

### that occurred

on the 3.600 

### block 

### ofFrankford Avenue. N.T. 12/23/15 

### at 35. As 

### Officer Creely reached

3Frankford and Castor Avenues, he: received a.nother.report this one for .tWo males Shotit 21:70 PickWick Street. Id: at 36. Officer .Creely traveled approxiinately half a city block to ire.ach Pickwick Street. Id. He observed blood On the 

### front door 

### ofthe

.residence. Id. 

### The complainants met 

### him 

### at the door' and explained how they had 

### just been shot. Id. Mr. Albaladejo 

### told Officer..Creely their.asSailant was a 

### black Male, with tattoos, on his face, wearing

a green. coat with a hoodie. Id. at 3$. They also...stated A. second 

### male:wasPresent.but no' provided 'further information. Id. 

### The complainants were 

### transported by rescue to Temple University Hospital. ../d. Detective 

### Dennis Dusak was assigned' to the' case .on.February 16,, 

### 2014. to.

### recover

### the Chinese 

### restaurant's surveillance video. Id. at 42. Detectice.D.usak 

### interviewed Mr. :Albaladejo.

on February 19; 201.4. arid:shOwed 

### him still.Photosi from the 

### February 16,.2014 surveillance video. He asked Mr. Albaladejo 

## if he recognized 

### the man in the. still 

### photos as the individual who shot 

### him.thatnight. JcL at 40. mr: Albaladejo *said; 

### "Yes...that:is the person 

### [described." Id, at 47. Based on this. information, DetectiveDusak developed 

### aphoto of the, suspect 'and researched his name, 

### address and other 

### identifying information., Id.. The 

### male was identified 

### as Appellant,. Jesse Davis, 

### from 3710 Frankford4v.enue This 

### address is 

### five.houses away from the. Chinese...restaurant. Id. Detective Dusak then compiled a.photo. array 

### of seven similar 

### looking
males to 

# pent -to each. complainant. Id. at 5.1. Detective Dusak stated 

### hedid.notrelay to:the complainants 

### any information 

### regarding.theindividnals 

### inthe photo array. Id: Once presented 

### theatray, Mr.. Albaladejo picked oitt.the Appellant. Id.. 

### In 

### fatt, Mr. 

### Albaladejo *stated 

### he was "one, hundred 

### percent 'sure 

### thisisliepetson." Id..

### at 51

4Detective.

### Daniel Murawski 

### also presided:over the. shooting investigation. Id. 

### at 71. 

### At
36:381 Castor 

### Avenue, he recovered one liveround: with blood' 

### on it, orie fired cartridge easing,. and 'another fired 

### cartridge casing next:to:a brick wall. Id. at 76. 'The..CaSings and live round 

### WerefOundin the 

### saniegeneralarea; about three 

### feetapart. id. Castor Avenue is"two blocks 

### away.from where the Shooting.ocCurred. 

### Ballistic results were stipulated, to between counsel. Iq, Testing established four items

were recovered: one: live round arid.three fire *cartridge casings. Id. at.80. 

### Microscopic .examinatiOns..deternrined..fired cartridge, casing 

### oneand.fired cartridge casing two Came from the.
same gun. Id. No 

### microscopic markings would permit 

### firearm identification for 

### the live round. 'However, Detective Daniel Murawski 

### stated'"therels evidence all rounds, 

### originated from :a 25 caliber fired/M." Id.. In addition, 

### it was stipulated between 

### connSeilliat Appellant did not have a proper license and was 

### ineligible to eairy a weapon on the 

### datein question. ../d Discussion, Sufficiency 

### of the.vidcnce. Appellant 

### conten4m..appeal thattheevidenc.e was insufficient to sustain his convictions* for attempted murder, robbery, aggravated .assault; conspiracy., 

### and possession Of an instrument 

### ofcrime, T.he standard 

### ofreview by which' a:reviewing coUrt must as8ess.th0 sufficiency 

### ofthe evidence:1s 

### well-settled. 

### "When reviewing a challenge the.$1gfeiency.bf.the 'evidence, we 

### must regard :all the.eViderice in the light most favorable: to 

### theVerdia 'winner,., 

### giving 014 party 'the* benefit 

### ofall 

### teasbnal*.infetpncs." Cfpnynonwealth.y.:13edford, 50 A.3d 707, 711 (Pa. Super. 2012) 

### (internal citations omitted).. In addition: "[T]he facts and circumstances .established. 

### by the 

### Commonwealth 

### need 'not preclude 

### every possibility 

### ofintooetice.: 

### Any doubts :regarding a clefendarit's..guilt.

5May be 

### resolved 

### by.tht.factJfiridetleSS the evidence so weak and inconclusive 

### that .as a 

### matter 

### of law no probability 

### of fact may 

### be drawn -fiorn the combined 

### eirciutstances. The .Commonwealth may sustain its burden 

### of proving every. element 

### ofthe crime :beyond *a reasonable doubt 

### bymeans 

### ofwholly circumstantial evidence. 

### Moreover, in applying the above test.the..entire 

### recordmustbe.evaluated. and all evidence actually 

### received must be considered. 

### Finally, 

### the finder 

### of fact while passing. 

### upon the credibility Yof witnesses and the 

### weight 

### of the evidence produced, is free to believe all, part or none 

### of

### the evidence."
:Commonwolth v. Nypaver, 69 A.2d 7.08; 714 (Pa. Super. 2013) 

### (citations omitted). 

### A.person.may be 

### convicted 

### ofattempted 

### murder 

### "ifhe 

### takes.a.substantia1steptoward the. commission 

### ofa killing, with the. specific intent in mind to 

### commit such an act." Commonwealth

v. Hobson, 604 A.2d 717, 719 (Pa. Super. 1992). 

### "The intent which is a prerequisite to a finding. 

### ofmurder 

### is

. 

### aforethought' or simply, malice." Id. at 719-720. 

### Malice is synonymous 

### with either *a wickedness 

### ofdisposition, crucity, recklessness 

### ofconsequences, indicating unjustified disregard 

### for the probability 

### of death or great bodily harm. Id. 

### at 720. Alapt-.finder

can 

### properly infer malice from 

### the use 

### of a deadly *weapon on a Vital 

### Part 

### ofthe 

### complainant's body. Commonwealth v. 

### Siebert, 

### 622.A,2d.361:364 (Pa. Super. 1993). Viewing the eyicknoe

### in a light most favorable to 

### the Commonwealth as verdict 'winner; Mr. Reyes 

### testified to 

### watching the Appellant point a small 

### automatic handgun, at close range, at Mr. 

### Albaladejo's head and pull the trigger. The 

### bullet 

### hit Mr. 

### Albaladejo in 

### the neek.and exited through the nose 

### breaking his nasal bone. So011, after, Appellant fired a shot in the back 

### ofMr. 

### Reyes' head. These 

### actions qualify as substantial .steps 

### in the commission 

### of a killing. The intent requirement for attempted murder is also. sat i tied because 

### the Appellant used A *deadly weapon (a firearm) on perhaps the 

### most vital part 

### of hc 

### complainants' body (the head). Seibert, 

### supra.

.6In the instant case; Mr. Albaladejo testified to 

### the f011OWirig.on 

### directeXamination by 

### the district attorney: ..EDGAR JARAMILLO: What was Mr. Davis doing? 

### What 'was he 

### doing with the gun with your 

### brother-in-law? What was he, :saying' to. 

### your brother-in-law?. T.OMAS..ALBALADEJO: 

### He said, "Give, me. your 

### wallet," He...Witched *the gun back 

### and said 

### "You think 

### Pm playing?" EDGAR JARAMILLO:.What did 

### you say to help 

### yourbrother-in-law? *TOMAS ALBALADEJO: I told him 

### to do what [the .defendant] says, to come 'down. 

### And 

### sole.hentdov.vnto.his.knees. And 

### whenhe gave 

### hitn.his wallet; he shot him. EDGAR 

### JARAMILLO: When you were .talking to :your 

### brother-in-law .and you were' telling, 

### your 

### brother-in4aw 

### to kneel...to give his 

### wallet did. the. 'defendant 

### look 

### at you? TOMAS ALBALADEJO.: 

### Yeah...after he, shot 

### hirn,.hecartietbward me and 

### he was like, "Give. me 

### your 

### wallet" and put the.guritO 

### EDGAR JARAMILLO: Was he in front 

### of you When 

### he'put the:.gun up to your head? TOMAS AL:13ALADE40.: Yes. N.T., .12/22/2015 

### at 29-33.. The' above 

### testimony more than. adequately demonstrates 

### Appellant's intent to murder the: cOnipfainaritg and 

### the substantiEd :steps -he 

### took toward the 

### accomplishment 

### ofthat objective,, 'The phySical demeanor 

### ofthe Appellant, threatening language and use 

### of a deadly weaponion 'a, vital part 

### ofthe body all 

### exhibit an intent to inflict deadly harm on the cOmplainantS.: In addition,

7Detective Daniel Murawski recoyered.one liVe 

### round.Withbloodionit.and two fired: cartridge casings .at 3638 Castor Avenue: 

### There was also no 

### testimony presented that, cOnflicted.with the 

### eyewitnesses' above testimony. 

### Therelbre, the evidence presented by the 

### Commonwealth was.stifficierit for the

### jury to convict Appellant 

### ofattempted murder. The relevant portions' of.the 

### robbery statute are as, follows: §.3 701

. 

### Robbery Offense 

### defined.- (1) 

### A person guilty 

### ofrobbery if; 

### in the *course 

### ofcommitting:a theft, he*:." * (ii) 

### threatens another with or 

### intentionally puts him in fear 

### of immediate serious bodily injury;. C.S.A.:§. 3.701. Similarly, Appellant, argues that the evidence was 

### insufficient to 

### eonviethitn of robbery.. 

### in the instant case, Mr. Albaladejo and Mr. 

### Reyes 'were 

### approached by Appellant, forcedto their knees; and -held 

### at gunpoint until their belongings were taken. 

### Appellant:told each complainant, 

### "Give me. your 

### wallet:, 

### .totichedthe gun 

### back" and said 

### "You think Pirt 

### playing?" This is sufficient to find the complainants' belongings Were 

### takenby force. The eVidenCe.shOws Appellant threatened Albaladejo 

### and Mr. Reyes. These. 

### faelsestablish all the elements 

### ofrObbery. Therefore, the: evidence. presented by the CornmonWealth.was.sufficient fOrthe.jury to 'convict Appellant 

### ofrcibbery.. Likewise, 

### the Commonwealth's evidence establishing aggravated assault was equally adequate, Under 

### Permsylvanialaw, a. pers9n..is, guilty 

### ofaggravated assault 

### if he. "attempts to

-cause serious 

### bodilyinjury to another, or causes such injury intentionally, knowingly or

8recklessly under circtunstances 

### manifesting extreme indifference 

### to the 

### value 

### ofhuman life." 18 Pa. C.S. § 2702 (a)(1). Where the victim suffers serious bodily injury, the Commonwealth is not required to prove specific intent. Commonwealth v. 

### Patrick, 933 

### A.2d 1043, 1046 (Pa. Super. 2007) The 

### Commonwealth need only 

### prove [the defendant] 

### acted recIdessly under the circumstances 

### manifesting an extreme indifference to the value 

### ofhuman life. For 

### the degree 

### ofrecklessness contained in the aggravated assault statute to occur, the offensive act 

### must be, 

### performed under circumstances which almost assure that injury or 

### death will ensue. Commonwealth v. 

### Patrick, 933 A.2d 1043, 1046 (Pa. Super, 2007) (quoting Commonwealth v, Nichols; 692 A.2d 181; 185 (Pa. Super. 1997) (internal citations omitted)). The elements 

### ofaggravated assault are 

### necessarily 

### inehidedinthe offense Of attempted murder and merge 

### with it for sentencing purposes. Indeed, every element 

### of aggravated assault is subsumed in the elements 

### of attempted:murder, .Commonwealth v. Anderson,..650 (Pa. 1994).decisiOri 

### modified on 

### denial Ofreargunient, 653 A.2d 6.15 (Pa,. 1994) (amending the court' S.previous order to 

### includevaotingthe.judgment 

### of sentence for attempted murder and possession.of 

### aninstrument.ofcrime in addition to, 

### aggravated assault, 

### andremandingfor res.eritencing);. See, 1.8..Pa.C.S, §2301 arid 2702(a)(1), Because the fact-finder determined that there was Sufficient:evidence 

### to:conclUdethateach element 

### ofthe.offensepfattempted murder
was 

### satisfied beyond a 

### reasonable doubt, it.f011ows,

### that each: 

### element 

### ofthe Offenstiof aggravated assault is also -satisfied.. Thns,.the 

### Appellant's claim 

### regarding theinSufficiency.Of evidence for aggravated assault 

### must fail. FarthermOre, the Conitrionwealth's.evidence establishing 

### criminal conspiracy was. equally. adequate. The 

### relevant portions 

### oldie criminal conspiracy statute are as follows: § 903... Criminal 

### conspiracy

9(a) 

### Definition 

### ofconspiracy. 

## -A person is guilty 

### ofconspiracy with another person or persons to commit a crime 

### if with the 

### intent 

### ofpromoting or 

### facilitating its commission he: (1) Agrees with such other person or persons 

### that they 

### or one 

### ofmore 

### of them will engage in conduct which constitutes such crime 

### or an attempt 

### or solicitation to 

### commit such crime; or (2).. Agrees to aid such other person or persons in the planning or commission 

### of such crime or 

### ofan 

### anempt or solicitation to commit such crime. 18: Pa. C.S. 903. [T10 sustain a 

### conviction for criminal conspiracy, the 

### Commonwealth must establish that 

### the defendant: (1) entered into an 

### agreement to 

### commit or aid in the 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. Murphy, 795 A.3d 1025, 1037 (Pa. Super, 2002):. Furthermore, 

### "[w]bile the Commonwealth is 

### not required to 

### prove a 

### written or express agreement, a tactic 

### agreement must be established by 

### reasonable inferences arising from the facts and circumstances." Commonwealth v. Savage, 566 

### A.2d 272, 276 (Pa, Super. 1989). Therefore,

an agreement 

### may be inferred between co-conspirators from the facts 

### ofthe' case. The Commonwealth 

### presented sufficient evidence to 

### prove beyond 

### a reasonable doubt that an overt agreement to rob the two 

### victims was formed 

### between the 

### Appellant and the unidentified accomplice. 

### In the, instant case, Appellant, and the second male approached the complainants on Castor Avenue. As Mr. Albaladejo testified, this man appeared to be acting as 

### a look-out. While the 

### Appellant held a gun to each 

### complainant's head and 

### demanded their belongings, the individual 

### stood close by. After 

### the Appellant confiscated Mr. 

### Albaladejo's wallet, the second male said 

### "Let's go" and the 

### pair walked away together. The facts and circumstances and 

### specifically, the ongoing conduct 

### ofthe' assailants, clearly established a conspiratorial 

### agreement between Appellant and the other individual on scene. Therefore, the evidence was 

### sufficient to convict 

### Appellant 

### ofcriminal conspiracy.
10The relevant 

### portion 

### ofthe possessing an instrument 

### of crime statute is as follows:
§ 907, 

### Possessing an 

### instrument 

### ofcrime (a) Criminal instruments. generally 

## -A person commits 

### &misdemeanor

### ofthe first degree 

### ifhe 

### possesses .any 

### instrumentof.crime with 

### intent to 

### employ it criminally..
18 Pa:C.S.A. § 907: Under this prOVision, 

### the Commonwealth Must 

### prove two elements: (1) 

### possession Ofan object that iS. a Weapon;. 

### and (2) 

### intent to use 

### thatweapon 

### fora criminal ptirpose.Jn 

## re4C, 763 A.2d 889,.890-91 .(Pa; Super. 2000) (citing Commonwealth v. 

### Hardick, 380.A.2d 12354.1:236 (Pa. 1977). 

### Itis well 

### established that& loaded firearm is a weapon, so 

### only the 

### question 

### ofcriminal intent is :at.iSsue. and easily resolvecl...$ee:CpnimPovecilth v. 

### Harley, 41:8 

### A.2d 1354, 1357 (Pa. Super, 1980).. 

### Appellant's criminal intent was made 

### when he beld.a.gun two inches away from Mr. 

### Albaladejo's head and Mr. 

### Reyes' head and demanded their. property. As such, 

### the evidence is 

### sufficient to 

### eonyict.Appellant 

### ofpossessing an 

### instrument 

### ofcrime. Weight 

### ofthe Evidence Appellant next 

### contends 

### that theNerdictwas against the weight 

### ofthe evidence: This claim 

### should fail because the standard 

### of review for evaluating a Weight-Of -the-evidence. claim is well established and 

### very narrow: CoMinoimea/thy. Chamfinqyi 

### 832 A2d..403, 407 (Pa. 2003). Determining the weight 

### ofthe evidence is 

### reserVediexchisivelyfor 

### the finder 

### of fact, Id..gt Again, the. finder 

### offact is free to. helieve.all, part, or none 

### ofthe.. e.videnCe 

### and 

### to.determinethe credibility of.the.witnesses. Id. 

### Thus,.an appellate...court can only 

### teyerse.the lower court's verdict 

### ifit is so 

### contrary to the evidence as to shock 

### one's sense .of 

### justice. Id; See 

### also commonwealth 

### R.Johnsani 668 A.2d 97, 101 (Pa. 199.5). 

### Because the 

### trial

### judgeis in the:best .poSiticidlo. view 

### the evidence presented,.. an 

### appellate court Will 

### give 

### thatjudge the 

### utmost

11consideration when 

### reviewing the 

### court's determination On 

### whether the* 

### verdict is against the Weight 

### ofthe.evidence. Commonwealth 

### Morgan, 913. A.2d 

### 906 (Pa. Super. 2006), A:"triie 

### weight

### -of -the-evidence challenge concedes 

### that sufficient evidence exists to sustain. the verdict but.questions which evidence 

### is 0.bQ believed." Commonwealth. y. Charlton,. 902. A.2d.554, 561 (Pa. Super.. 2006). 

### Moreover, 

### anew trial 

### should not be: granted in a criminal prosecution because *ofa 

### mere conflict in. the testimony of.because 

### thejudge, on the.s.attle.factS, 

### may have 

### arrived.4 a different.conclusion. Commohwealth v. Widmer, 

### 744.A.2d 745,752' (Pa. 2000). To be against 

### the weight 

### ofthe evidence,

### the verdict must 

### shock 

### one's sense 

### of justice:or be 

### an abuse.ofdiscretion by the 

### trial court. Id.. As described 

### supra, the, evidence.presented. at. trial was' sufficient to support 

### a conviction for attempted murder, robbery, aggravated assault, conspiracy' and 

### possessing an 

### instrument 

### ofcrime. 'With

### that analysis 

### inmind,.one..must. consider whetherthe..verdict 

### in this case shocks one"s:.sense. 

### ofjustice or.represents, 

### an abuse 

### ofdiscretion.. Given 

### thestrengthand consistency 

### ofthetestimpny pres.entedbythe Commonwealth's witnesses, it,does neither. Id,. In the instant case, the court.chose to, credit the testimony 

### of the 

### complainant,. the police officer 

### and deteetivesiinveStigatingthe case; The evidence found 'credible by

### the point was .clearly.presented... It showed the complainant Observed 

### Appellant in the 

### Chinese restaurant Minutes before 

### Appellant robbed the two Men. .Albalaclejoi 

### immediately recognized Appellant, when he:approached 

### the complainants on, 

### FrankfordAvenue, due to. his unique tattoos 'and.green:coat. Mr. .Albaladejn 

### positivelyidentified Appellantwhen he.was 

### shown a photo. array by. Detective Dusalc.. 'He,stated he was one:Inindred 

### present sure" Appellant was the individual

12:who shot and robbed the 

### pair when he saw his photo. He also 

### positively identified Appellant at trial. Furthermore, 

### Mr. Alhalaclejo and: Nit. 

### Reyes' testimony was 

### consistent throughout the police investigation and 

### at trial, notwithstanding Mr. 

### Reyes' .language 

### bmiet. The court had the. opportunity to observe 

### any claimed inconsistencies 

### in 

### thewitnesses' testimony. The fact 

### that the Appellant was. fOund .guilty 

### after all the evidence Waspresented. was not .contrary.tOthe:.evidence

or shocking to the conscious, As stated, determining.a weight 

### ofthe 

### .evidenceclaim is 

### reserved exclusively for 

### the fact-finder 

### and should not be 

### dishithedabsent an abuse 

### of discretion.. No. abuse 

### of discretion occurred 

### in 

### the instant 

### case For 

### the foregoing reasons, Appellant's: claim that:the 

### verdict was 

### against the weight 

### of the: evidence 

### must also fail.

13Conclusion ii sunimary, this ..colut has 

### carefully reviewed the entire 

### record and finds no::harmftil,. prejudicial, Or reversible .errof and nothing:to 

### justify the granting. 

### of Appellant's request 

### for relief. For 

### thereasons set

### forth. aboye, the 

### judgment ofthe.trial court 

### should be.affirmed.

14 J.