J-A10018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JOSE ORTIZ

Appellant No. 2799 EDA 2015

Appeal from the Judgment of Sentence dated April 2, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012020-2009

 CP-51-CR-0012023-2009

 CP-51-CR-0012026-2009

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E. 

MEMORANDUM BY SOLANO, J.: Filed August 4, 2017

Appellant, Jose Ortiz, appeals from the judgment of sentence imposed 

after the trial court convicted him of crimes relating to the homicides of 

Roberto Beltran, Jose Ortiz,1and Luis Rivera. The trial court found Appellant 

guilty of three counts of first-degree murder and possessing an instrument 

of crime (PIC) as to all three victims,2and two counts of criminal conspiracy 

and recklessly endangering another person (REAP) as to Beltran and Ortiz.3 

We affirm.

The trial court detailed the factual background as follows:

____________________________________________

1 Appellant and this victim coincidentally share the same name.

2 18 Pa.C.S. §§ 2502, 907.

3 18 Pa.C.S. §§ 903, 2705.
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On October 23, 2008, at approximately 12:58 p.m., 

[Appellant] along with Raymond Ayala, shot and killed Jose Ortiz 

and Roberto Beltran at the corner of North Mutter Street and 

West Indiana Avenue. [Appellant] and Ayala were paid to kill 

Ortiz by co-defendant Miguel Molina who ran an illicit drug 

operation. There were a number of conversations between these 

three men regarding the “elimination” of Ortiz, culminating in 

the homicides on October 23, 2008. Shortly after the last 

conversation with Molina, [Appellant], wielding a M-90 rifle, and 

Ayala, a handgun, shot the decedents multiple times. Dr. Edwin 

Lieberman performed autopsies on both decedents, and his 

reports were admitted by stipulation. As to Mr. Ortiz, Dr. 

Lieberman concluded that the cause of death was multiple 

gunshot wounds, and that the manner of death was homicide. 

Dr. Lieberman found that Ortiz suffered sixteen gunshots 

wounds, including wounds to his head, neck, buttock, abdomen, 

iliac crest, right thigh, left shoulder blade, and right chest. Dr. 

Lieberman concluded that Mr. Beltran’s cause of death was 

multiple gunshot wounds, and the manner of death was 

homicide. He found that Beltran suffered nine gunshot wounds. 

N.T. 04/01/15, pp. 114-214; N.T. 04/02/15, pp. 49-52.

When Sergeant James Keenan of the Philadelphia Police 

Department arrived at the crime scene, he observed the two 

men lying on the ground with medics attempting to resuscitate 

one of them. After receiving information about the two shooters, 

Sergeant Keenan and other officers started searching the 

railroad tracks behind Indiana Avenue, but were unsuccessful in 

apprehending the perpetrators. Sergeant Keenan then went to 

the homicide unit to be interviewed by the detectives 

investigating these crimes. N.T. 04/01/15, pp. 116, 124.

Police Officer Gregory Yatcilla of the Crime Scene Unit 

responded to the crime scene to assist in the investigation. 

Upon arrival, he along with other members of his unit, took 

photographs and collected physical evidence, including fired 

cartridge casings that were subsequently sent to the firearms 

identification unit for comparison. Officer Yatcilla testified that 

there were fifteen shell casings found at the scene. N.T. 

04/01/15, pp. 141-142.

Both [Appellant] and Ayala were arrested on November 3, 

2009 in the area of Jasper and East Lippencott Streets. N.T. 

04/02/15, pp. 32-37.
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The key witness in the prosecution’s case was Alfredo 

Hernandez, a former associate of Miguel Molina. Hernandez 

testified that he was present when Molina directed [Appellant] 

and co-defendant Ayala to “eliminate” Jose Ortiz. [Roberto 

Beltran was not an intended target]. Hernandez saw [Appellant] 

with a rifle, and Ayala with a handgun. He heard the shootings 

and saw them go through a fence and back down the hill 

towards the tracks from the area where the killings took place. 

The witness testified that on October 24, 2008, he had a 

conversation with [Appellant], wherein [Appellant] told him that 

he killed the two victims on October 23, 2008. N.T. 04/01/15, 

pp. 197-265.

The Commonwealth also introduced the testimony of Luis 

Rodriguez, taken at the preliminary hearing, after a finding that 

this witness was unavailable for trial. Rodriguez testified that, as 

with Hernandez, he worked for Molina’s criminal drug operation. 

In his testimony, Rodriguez stated that he was present when 

Molina directed [Appellant] and Ayala to kill Jose Ortiz. He 

further stated that he saw [Appellant] with a rifle and Ayala with 

a handgun immediately before the killing of Jose Ortiz and 

Roberto Beltran. Further, he stated that he heard the gunshots 

and saw both men escape in a car driven by Molina after the 

victims were gunned down. N.T. 09/22/09, pp. 126-130.

On October 24, 2008, [Appellant] shot and killed Luis 

Rivera, at the corner of Howard and Tusculum Streets. 

Hernandez also witnessed this murder. According to Hernandez, 

[Appellant] chased Rivera down the street while shooting at him. 

The shooting ended when Rivera dropped dead at the corner of 

Howard and Tusculum Streets. His remains were taken for 

autopsy by Dr. Samuel Gulino, whose report was admitted by 

stipulation. Dr. Gulino determined that the cause of death was 

multiple gunshot wounds, and that the manner of death was 

homicide. He found that the victim suffered five gunshot 

wounds, including wounds to his left shoulder, upper and middle 

back, back of the torso, and right hand. N.T. 04/01/15, pp. 219-

220; N.T. 04/02/15, pp. 53-54.

At trial, Detective Brian Peters testified as to the 

unavailability for trial of Luis Rodriguez. Detective Peters 

testified to the man’s last known address, but that after an 

extensive search, police authorities were unable to locate 
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Rodriguez for trial. Furthermore, Rodriguez had himself been 

shot six times on November 12, 2008 because he had attempted 

to leave Molina’s illegal drug operation. He had been in a 

relocation program for his safety, but left on his own accord. At 

the preliminary hearing Rodriguez displayed the stitches 

between his chest and abdomen received during medical 

treatment for his gunshot wounds. N.T. 04/01/15, pp. 33-70.

In addition, Detective Joseph Centeno also testified about 

his effort to locate Rodriguez, including a lead that the witness 

was in Buffalo, New York. Lastly, Officer William Hunter, a 

detective in the Philadelphia District Attorney’s office, searched 

for Rodriguez in the witness’s neighborhood. He also scanned 

local databases. Officer Hunter had previously brought both 

Hernandez and Rodriguez to court for [Appellant’s] preliminary 

hearing. Detective Timothy Bass, a homicide detective assigned 

to the Fugitive Squad, also testified about his unsuccessful 

efforts to locate Rodriguez. He searched the Pennsylvania Prison 

System, the FBI federal inmate locator and the local hospitals. 

He did not find Luis Rodriguez. N.T. 04/01/15, pp. 71-87, 88 

102; N.T. 04/02/15, pp. 6-15. 

Trial Court Opinion, 6/30/16, at 2-5 (footnotes omitted).

On April 2, 2015, the trial court rendered its verdicts and sentenced 

Appellant to life in prison. Appellant filed a post-sentence motion which was 

denied by operation of law, and thereafter filed this appeal.

Appellant presents three issues for our review:

1. Whether the verdict should be vacated as to the charges of 

first-degree murder, and related offenses, for the murders of 

Jose Ortiz and Roberto Beltran, because the Commonwealth 

failed to prove each and every element of the crime charged 

beyond a reasonable doubt;

2. Whether the verdict should be vacated as to the charge of 

first-degree murder, and related offenses, for the murder of 

Luis Rivera, because the Commonwealth failed to prove each 

and every element of the crime charged beyond a reasonable 

doubt;
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3. Whether the introduction into evidence of notes of testimony 

absent live testimony from said witness was improper and 

resulted in harm to Appellant.

Appellant’s Brief at 6.

In his first two issues, Appellant challenges the sufficiency of the 

evidence. In his third issue, he claims that a specific portion of the evidence 

– the preliminary hearing transcript of Luis Rodriguez’s testimony – was 

improperly admitted. Because this third issue impacts Appellant’s sufficiency 

issues,4 we address it first. 

The Admission of Luis Rodriguez’s Preliminary Hearing Testimony

Appellant claims that the trial court erred in admitting the preliminary 

hearing testimony of Luis Rodriguez. Appellant specifically asserts that the 

trial court erred by finding that Mr. Rodriguez was unavailable at the time of 

trial, and that by admitting the notes of Mr. Rodriguez’s testimony from the 

preliminary hearing, Appellant was denied his constitutional rights to 

confrontation and cross-examination. Appellant’s Brief at 15-18.

Our standard of review regarding admissibility of evidence is wellsettled:

“Questions regarding the admission of evidence are left to the 

sound discretion of the trial court, and we, as an appellate court, 

will not disturb the trial court’s rulings regarding the admissibility 

of evidence absent an abuse of that discretion.” An abuse of 

discretion is not merely an error of judgment; rather, discretion 

____________________________________________

4 Appellant specifically avers that “Luis Rodriguez constituted 50% of the 

substantive evidence against Appellant relative to [Ortiz] and Beltran[.]” 

Appellant’s Brief at 18.
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is abused when “the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will, as shown by the evidence or 

the record.” ...

Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014) 

(citations omitted). However, to the extent that Appellant raises a 

constitutional claim, such challenge raises a question of law, and our 

standard of review over the trial court’s admission of the contested 

testimony is de novo and our scope of review is plenary. Commonwealth 

v. Mitchell, 152 A.3d 355, 358 (Pa. Super. 2016), citing Commonwealth 

v. Yohe, 39 A.3d 381, 384 (Pa. Super. 2012).

Rule 804(b) of the Rules of Evidence provides an exception to the 

hearsay rule for the admission of former testimony by an unavailable 

witness: 

The following are not excluded by the rule against hearsay if the 

declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or 

lawful deposition, whether given during the current 

proceeding or a different one; and

(B) is now offered against a party who had . . . an 

opportunity and similar motive to develop it by direct, 

cross-, or redirect examination.

Rule 804(a) describes those situations when a witness will be deemed 

“unavailable” for purposes of Rule 804(b), including the following:

Criteria for Being Unavailable. A declarant is considered 

to be unavailable as a witness if the declarant:
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. . .

(5) is absent from the trial or hearing and the statement’s 

proponent has not been able, by process or other 

reasonable means, to procure:

(A) the declarant’s attendance, in the case of a 

hearsay exception under Rule 804(b)(1) . . . .

But this paragraph (a) does not apply if the statement’s 

proponent procured or wrongfully caused the declarant's 

unavailability as a witness in order to prevent the declarant from 

attending or testifying.

Appellant maintains that Rule 804(a)(5) was not met in this case 

because “good-faith efforts were not used by the Commonwealth” and 

“[v]ery little was done to find Luis Rodriguez” for trial. Appellant’s Brief at 

16. Appellant claims “few efforts” were made by the Commonwealth and 

says that such efforts “were initiated only two weeks prior to trial” and 

improperly focused on Philadelphia when authorities knew he was not in 

Philadelphia and more likely to be in Buffalo or Florida.5 Id. at 16-17. This 

argument does not merit relief.

Where the Commonwealth seeks to admit a missing witness’s prior 

recorded testimony, a “good faith” effort to locate the witness must be 

established. Commonwealth v. Jackson, 344 A.2d 842 (Pa. 1975). “The 

test for a witness’s unavailability is whether the prosecution has made a 

____________________________________________

5 Appellant suggests that Detective Joseph Centeno, who was vacationing in 

Florida and made some phone calls to locate Mr. Rodriguez “[b]etween 

rounds of golf,” should have done more during his vacation in Florida to 

“check out those contacts.” Appellant’s Brief at 16.
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good faith effort to produce the live testimony of the witness. The length to 

which the prosecution must go to produce the testimony is a question of 

reasonableness.” Commonwealth v. Melson, 637 A.2d 633, 638 (Pa. 

Super. 1994) (emphasis in original, citations omitted), appeal denied, 647 

A.2d 509 (Pa. 1994). The Supreme Court has stated that the 

Commonwealth is not required to “establish that the witness has 

disappeared from the face of the earth.” Commonwealth v. Blair, 331 

A.2d 213, 215 (Pa. 1975). “It is within the discretion of the trial court to 

determine what constitutes a good faith effort to locate a missing witness, 

and the decision of the court will not be overturned absent an abuse of 

discretion.” Commonwealth v. Lebo, 795 A.2d 987, 990 (Pa. Super. 

2002) (citations omitted). 

Here, the trial court expressly concluded that “[t]he measures taken 

by the Philadelphia Police Department and the Philadelphia District 

Attorney’s Office . . . were . . . reasonable means to procure the witness’s 

presence.” Trial Court Opinion, 6/30/16, at 10. Upon review, we find no 

abuse of discretion by the trial court in determining Mr. Rodriguez’s 

unavailability. In its recitation of the evidence, the trial court referenced 

various efforts by the Commonwealth – as demonstrated by the actions of 

Detective Peters, Detective Centeno, Officer Hunter, and Detective Bass – to 

locate Mr. Rodriguez for trial. These included searches of Rodriguez’s 

neighborhood in Philadelphia; scanning of various databases; pursuit of a 
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lead in Buffalo; and searches in local hospitals and in the state prison 

system and a listing of federal inmates. The trial court also noted that prior 

to the preliminary hearing, Mr. Rodriguez had been shot six times for trying 

to leave Mr. Molina’s drug operation, and although Mr. Rodriguez “had been 

in a relocation program for his safety,” he “left of his own accord.” Trial 

Court Opinion, 6/30/16, at 11-12. Given these facts, and the test of 

reasonableness, the trial court did not abuse its discretion in finding Mr. 

Rodriguez to be unavailable for trial and permitting the Commonwealth to 

introduce his prior testimony.

Appellant additionally claims a constitutional violation of his rights 

because he “did not have the full opportunity to cross-examine” Mr. 

Rodriguez at the preliminary hearing and then was not able to crossexamine Mr. Rodriguez at trial because of his unavailability. Appellant’s 

Brief at 17. Appellant claims that he had “just met” his counsel at the 

preliminary hearing, and counsel did not have time to prepare and was 

unaware that Mr. Rodriguez had a criminal record. Id.6 These assertions 

are not supported by the record. 

____________________________________________

6

In support of this assertion, Appellant cites the statement at trial by 

Samuel Stretton, Esquire, who represented Appellant’s co-defendant, 

Raymond Ayala. Referencing Appellant’s counsel’s statements at the 

preliminary hearing, Attorney Stretton stated, “Ms. McDermott . . . indicates 

. . . we’re just seeing our clients.” N.T., 4/2/15, at 77. The record is 

unclear as to when Attorney McDermott first met with Appellant. However, 

as we discuss more fully below, Attorney McDermott stated that her 

preparation was not an issue but expressed her concern about cross-

(Footnote Continued Next Page)
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We note:

Under both the Pennsylvania and United States Constitutions, a 

criminal defendant has a right to confront and cross-examine the 

witnesses against him. Commonwealth v. Bazemore, 531 Pa. 

582, 614 A.2d 684, 685 (1992) (citing Commonwealth v. 

McGrogan, 523 Pa. 614, 568 A.2d 924, 927 (1990)). It is wellestablished, however, that the introduction of an unavailable 

witness’s prior recorded testimony from a preliminary hearing is 

admissible at trial and will not offend the right of confrontation, 

provided the defendant had counsel and a full opportunity to 

cross-examine that witness at the hearing. Commonwealth v. 

Paddy, 569 Pa. 47, 800 A.2d 294, 312-13 (2002); 

Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406, 417-18 

(1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 

841 (2000); Commonwealth v. Rizzo, 556 Pa. 10, 726 A.2d 

378, 380 n. 2 (1999); Bazemore, 614 A.2d at 687; 

Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603, 605 

(1986); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 

1051, 1054 (1977); Commonwealth v. Johnson, 758 A.2d 

166, 169 (Pa. Super. 2000). 

Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa. 2003). The 

Commonwealth may not be deprived of its ability to present inculpatory 

evidence at trial merely because the defendant, despite having the 

opportunity to do so, did not cross-examine the witness at the preliminary 

hearing stage as extensively as he might have done at trial. 

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 542 (Pa. Super. 1995) 

(citation omitted). We have explained:

The decisions of our Courts are clear that the admissibility of 

former testimony and its ability to withstand Confrontation 

Clause challenges derives not from the actual conduct or content 

(Footnote Continued) _______________________

examination of the Commonwealth’s witnesses and communicating with 

Appellant about the cross-examination because both the witnesses and 

Appellant spoke Spanish as their first language. See infra at 11-14.
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of cross-examination, but from its availability. See 

Commonwealth v. Wholaver, 605 Pa. 325, 989 A.2d 883, 904 

(2010). Indeed, no less an authority than the United States 

Supreme Court has validated this limitation on application of the 

Confrontation Clause. That Court has held and reaffirmed that 

“there may be some justification for holding that the opportunity 

for cross-examination of a witness [at] a preliminary hearing 

satisfies the demands of the confrontation clause where the 

witness is shown to be actually unavailable....” California v. 

Green, 399 U.S. 149, 165–66, 90 S.Ct. 1930, 26 L.Ed.2d 489 

(quoting Barber v. Page, 390 U.S. 719, 725–726, 88 S.Ct. 

1318, 20 L.Ed.2d 255 (1968)). Consistent with such 

pronouncements, the Supreme Court of Pennsylvania has 

recognized as well that the opportunity to cross-examine a 

witness, rather than its actual occurrence, fulfills the 

constitutional right of confrontation:

Where the defendant has had the opportunity to crossexamine a witness at a preliminary hearing, probing into 

areas such as bias and testing the veracity of the 

testimony, cross-examination, and thus confrontation, 

within the meaning of the Sixth Amendment has been 

accomplished. This is particularly so in cases where, as 

here, the defendant was represented by the same counsel 

at the preliminary hearing and at trial.

Wholaver, 605 Pa. 325, 989 A.2d 883, 904 (2010).

Commonwealth v. Stays, 70 A.3d 1256, 1265 (Pa. Super. 2013).

Our review reveals that although Appellant had different counsel at the 

preliminary hearing and trial,7 his confrontation rights were not violated. 

Three witnesses testified at the preliminary hearing: Philadelphia Homicide 

Detective Jack Cummings, Alfredo Hernandez, and Luis Rodriguez. Prior to 

____________________________________________

7 Appellant was represented by Barbara Ann McDermott, Esquire at the 

preliminary hearing and Regina M. Coyne, Esquire at trial and in this appeal.
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the witnesses’ testimony, and relative to cross-examination, the following 

exchange was initiated by Appellant’s counsel, Attorney Barbara McDermott:

Attorney McDermott: I don’t have the witnesses’ 

statements or statement, so without the witness statement, it’s 

going to be hard to cross-examine, so I may need time after the 

witness is done with the direct to at least communicate with my 

client for my questions on cross. I can talk to my client now but 

I need the statement.

Assistant District Attorney: If I may, I am going to 

give the statements to counsel, not because she needs it for 

cross-examination, but I intend to preserve the testimony 

because her client attempted to kill a witness, so I will preserve 

it just in case.

Attorney McDermott: So the record is clear, judge, the 

only way that testimony can be preserved is if defense counsel 

has an adequate and meaningful opportunity to cross-examine.

My position is, I can’t have that opportunity unless I have 

the opportunity to communicate with my client.

I do not represent my client in any other cases which he 

has –

The Court: If you feel the need to talk to your client 

during the hearing, we can ask the interpreter to come over. I 

don’t know what else to do. The Court is providing the 

interpreter. Unfortunately, the witness needs the interpreter as 

well.

Attorney Stretton8: We are willing to work with you, but 

that’s a good point as well as – the right of counsel does infringe 

on that, and this hearing, this testimony of these witnesses 

cannot be used at a later time without the individual interpreters 

sitting there to go back and forth.

____________________________________________

8 As previously noted, Attorney Stretton represented Appellant’s codefendant Raymond E. Ayala.
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The Court: That’s for [the Assistant District Attorney] and 

a later judge to figure out if there’s a problem.

Attorney Stretton: I just want to make the record clear 

that that’s a problem here, and the lack of funds cannot 

undermine due process.

Assistant District Attorney: Since 2008, these 

attorneys—

Attorney Stretton: Well –

Assistant District Attorney: Your Honor, these cases 

have been listed since 2008. The reason for the length of time 

was to coordinate having all of the attorneys present. I finally 

have them present today. From 2008 to the present day, 

counsel could have at any point spoken to their clients regarding 

the incident.

Attorney Stretton: How, without an interpreter? They 

don’t give that at the prison. I couldn’t pay investigators. 

There’s no money. They stopped paying in March and April.

Attorney McDermott: I don’t want to belabor it. The 

issue is not in terms of preparation. I have been ready 

always. The Commonwealth was not ready at several listings.

The Court: The bottom line is we have one interpreter; 

that’s it. There’s nothing I can do about it. We’ll do what we 

can. If you feel the need to talk to your client in the middle of 

the hearing, we’ll have the interpreter help you out. There’s 

nothing I can do.

Attorney McDermott: Can I have the record reflect, 

while it’s true my client was charged, the Commonwealth sealed 

the identity of the witnesses, and it is right now that I am finding 

out the identity of Alfredo Hernandez and was given his 

statements.

Assistant District Attorney: For the record, speaking to 

the witnesses, all these defendants do speak English. They are 

more fluent in Spanish, but they are all fluently bilingual.
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In addition, counsel is aware this witness was shot by Ms. 

McDermott’s client.

Attorney McDermott: Again, I don’t represent him on 

that case. I have no information about that case.

The Court: All right. Again, this is just representations of 

counsel on the record. You made your record. 

N.T., 9/22/09, at 4-8 (emphasis added).

The hearing proceeded with the respective testimonies of Detective 

Cummings, Alfredo Hernandez, and Luis Rodriguez. At the outset of Mr. 

Rodriguez’s testimony, the Assistant District Attorney advised, “Sir, you 

have an interpreter, and I know you speak English also, but you must 

answer everything in Spanish.” Id. at 122-123. Occasionally, Mr. Rodriguez 

responded in English. Id. at 127-128, 130, 146, 150, 151. The trial court 

stated “Mr. Rodriguez, you have to – I don’t know if you can interpret it. He 

seems to understand English.” Id. at 28. On cross-examination, counsel for 

co-defendant Miguel Molina admonished Mr. Rodriguez to “Let [the 

interpreter] interpret first” and “[w]ait for the interpreter” before 

responding. Id. at 144, 147. Attorney McDermott then cross-examined Mr. 

Rodriguez. Id. at 150-154. At the end of her questioning, Attorney 

McDermott asked, “Can I have the interpreter for a second, Your Honor?” 

Id. at 154. The trial court said “sure” and the record reflects that Attorney 

McDermott and Appellant “confer[red] off the record.” Id. at 154-155. 

After conferring with Appellant, Attorney McDermott advised that she had 

“[n]o further questions.” Id. at 155. Given this record, we find that 
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Appellant’s counsel – who stated that “preparation was not the issue” and 

communicated with Appellant during cross-examination and with the benefit

of an interpreter – had a full and fair opportunity to cross-examine Mr. 

Rodriguez. Accordingly, Appellant’s constitutional right to confrontation was 

not violated. Bazemore, 614 A.2d at 685.

Sufficiency

In his remaining issues, Appellant contests the sufficiency of the 

evidence presented at trial.

In reviewing a sufficiency of the evidence claim, our standard of 

review is well settled. We must determine whether the evidence 

admitted at trial, and all reasonable inferences drawn therefrom, 

when viewed in a light most favorable to the Commonwealth as 

verdict winner, support the conviction beyond a reasonable 

doubt. Commonwealth v. Sibley, 972 A.2d 1218 (Pa. Super. 

2009). Where there is sufficient evidence to enable the trier of 

fact to find every element of the crime has been established 

beyond a reasonable doubt, the sufficiency of the evidence claim 

must fail. Id.

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010), appeal 

denied, 14 A.3d 826 (Pa. 2011).

In his second issue, Appellant claims the evidence was insufficient to 

sustain his convictions relative to the victims Jose Ortiz and Roberto Beltran 

because “there was no eyewitness testimony” and “the Commonwealth’s 

entire case rests upon the live testimony of a drug dealer and user, and the 

preliminary hearing testimony notes from another member of the Molina 

drug organization.” Appellant’s Brief at 12-13. Appellant further asserts 

that “to find guilt based upon the testimonies of Hernandez and Rodriguez is 
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akin to guessing what actually occurred” and, “[i]f all that is required of the 

Commonwealth to obtain a guilty verdict is for drug sellers to point the 

finger at someone, then sufficiency of the evidence has no meaning, and 

anyone is at risk to be confined for life on such defective evidence.” Id.

Appellant continues with this logic in his third issue, in which he assails 

the sufficiency of the evidence supporting his convictions relating to the 

victim Luis Rivera, although he fails to discuss the elements of the crimes of 

which he was convicted and focuses on the “the uncorroborated testimony of 

Hernandez.” Appellant’s Brief at 14. Appellant also references the 

testimony of Officer Hunter – “the only eyewitness testimony of someone 

who could not possibly have been involved in the murder” – noting that the 

officer heard gunshots but did not see Appellant at the scene.9 Id.

Appellant’s claims are meritless. It is well established that:

The evidence established at trial need not preclude every 

possibility of innocence and the fact-finder is free to believe all, 

part, or none of the evidence presented. [Commonwealth v. 

Sibley, 972 A.2d 1218 (Pa. Super. 2009).] It is not within the 

province of this Court to re-weigh the evidence and substitute 

our judgment for that of the fact-finder. Commonwealth v. 

Jones, 954 A.2d 1194 (Pa. Super. 2008). The Commonwealth's 

____________________________________________

9 To the extent Appellant assails witness reliability, his challenge is to the 

weight and not the sufficiency of the evidence and is unavailing. 

Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (“Directed 

entirely to the credibility of the Commonwealth’s chief witness, Appellant’s 

claim challenges the weight, not the sufficiency, of the evidence . . . Even if 

Appellant had preserved his weight claim, he would gain no relief. The 

weight of the evidence is exclusively for the finder of fact, which is free to 

believe all, part, or none of the evidence, and to assess the credibility of the 

witnesses”). 
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burden may be met by wholly circumstantial evidence and “any 

doubt about the defendant’s guilt is to be resolved by the fact 

finder unless the evidence is so weak and inconclusive that, as a 

matter of law, no probability of fact can be drawn from the 

combined circumstances.” Commonwealth v. Sinnott, 976 

A.2d 1184, 1187 (Pa. Super. 2009).

Mollett, 5 A.3d at 313.

In addition to detailing the evidence adduced at trial, the trial court, 

sitting as the finder of fact, discussed the statutory elements of first-degree 

murder, PIC, criminal conspiracy, and REAP, and also discussed prevailing 

case law as it pertains to these crimes and the sufficiency of the evidence. 

Further, the trial court explained the factual basis and rationale for the 

convictions, including witness accounts of Appellant and his possession of a 

firearm, and medical examiner testimony regarding the multiple gunshot 

wounds suffered by the three victims. Trial Court Opinion, 6/30/16, at 5-9. 

Accordingly, in disposing of Appellant’s sufficiency issues, we incorporate 

and adopt the trial court’s analysis. See id.

In sum, and for the reasons discussed above, we find no merit to 

Appellant’s evidentiary claims and affirm Appellant’s judgment of sentence. 

The parties shall attach a copy of the trial court’s June 30, 2016 opinion to 

any future filings relating to the merits of this appeal.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/4/2017
Circulated 07/12/2017 03:56 PM