J-S38023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JULIO JAVIER MALAVE ECHEVARRIA,

Appellant No. 3466 EDA 2015

Appeal from the Judgment of Sentence of October 16, 2015

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0002843-2014

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.: FILED JUNE 14, 2016

Appellant, Julio Javier Malave Echevarria, appeals from the judgment 

of sentence entered on October 16, 2015. We affirm. 

The able trial court has provided us with a thorough summary of the 

evidence presented during Appellant’s jury trial. As the trial court explained:

The evidence at trial established the following facts. [L.A. 

and N.A.] reside at [a certain address] in Nazareth, 

Pennsylvania. [L.A. and N.A.] reside in a two-story home, 

with four bedrooms and two garages, one garage being 

attached to the main home and the other being a separate 

structure. There is a door leading from outside into the 

attached garage and another door leading from inside that 

garage to the inside of the home. The door leading from 

the garage to the interior of the home requires a key for 

entrance and is kept locked by [L.A. and N.A.] [L.A. and 

N.A.’s] master bedroom is on the second floor of the home.

On the night of March 19, 2013, [L.A. and N.A.] went to bed 

at approximately 10:00 p.m. At approximately midnight, 

[L.A. and N.A.] were awakened by the noise of someone 
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coming up the stairs. A few seconds later, [L.A.] heard a 

gunshot outside the bedroom door. Immediately after that, 

[L.A. and N.A.’s] bedroom door was kicked in, and three 

individuals rushed in and jumped onto the bed. One of the 

individuals fired a shot inside the bedroom, causing [L.A.] to 

observe a muzzle flash. The intruders, using only 

flashlights for light, held [L.A. and N.A.] down on the bed, 

ordered them not to move, and demanded to know where 

the “safe,” “money,” and “gold chain” were. Because of the 

darkness, [L.A. and N.A.] could not identify any of the 

intruders. [N.A.], who is a native Spanish speaker, was 

able to communicate with the intruders, who were also 

communicating in Spanish.

At some point, [L.A.] was ordered to sit on the floor of the 

bedroom, and the intruders began taking items from the 

bedroom and from downstairs and putting them into a bag. 

Throughout the encounter, [L.A.] observed one of the 

intruders wearing a gun on his belt. After a total of 

approximately four minutes, the intruders ran down the 

stairs and out of the house. When he did not hear anyone 

remaining in the house, [L.A.] looked out of the bedroom 

window and observed a dark-gray, four-door vehicle driving 

away from the premises. [L.A.] then called the police and 

began investigating what had been stolen.

[L.A.] first noticed that [L.A. and N.A.’s] Toyota 4Runner 

[vehicle] was missing from the attached garage. At the 

time, [L.A. and N.A.] owned four cars, including the 

4Runner, which had been parked in the attached garage on 

the night in question. The keys to the 4Runner were kept in 

a cup in the kitchen. The intruders drove away in the 

4Runner, but it was later recovered by the police and 

returned to [L.A. and N.A.] In total, the intruders took 

personal property valued at approximately $47,657.00 from 

the home, including laptops, cell phones, a camera, the 

4Runner, televisions, clothing, and gold jewelry.

Detective Randy Knauss, of the Bushkill Township Police 

Department, arrived at the scene sometime after midnight. 

Detective Knauss observed the deadbolt to the front door of 

the home to be locked, indicating that there had been no 

forced entry through that door. Detective Knauss also 

observed that [L.A. and N.A.’s] bedroom door was caved-in 
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and heavily damaged. [N.A.’s] son, [O.S.], informed 

Detective Knauss that he believed Noel Serrano Pizarro 

(“Co-Conspirator Pizarro”) and Luis Daniel Gonzalez Trujillo 

(“Co-Conspirator Trujillo”) were involved in the homeinvasion robbery. Co-Conspirator Trujillo’s involvement in 

the incident was confirmed a few days later, when [N.A.] 

found an identification badge bearing his name and photo in 

her home. Thereafter, Detective Knauss arrested and 

charged Co-Conspirator Trujillo.

Several months later, Co-Conspirator Trujillo entered a 

guilty plea with an agreement that he would cooperate with 

and testify on behalf of the Commonwealth in its

prosecution of the other participants in the home-invasion. 

As a result of an interview he conducted with CoConspirator Trujillo, Detective Knauss turned his 

investigation toward [Appellant] and [Appellant’s] brother, 

Jouseph Echevarria. After arresting and charging 

[Appellant], Detective Knauss interviewed him on July 3, 

2014.

During the interview, [Appellant] was given Miranda[1]

warnings and then proceeded to give written and verbal 

statements to police. [Appellant] told Detective Knauss that 

his brother told him that they, along with Co-Conspirator 

Pizarro and Co-Conspirator Trujillo, were going to [L.A. and 

N.A.’s] home to buy marijuana. [Appellant] stated that he 

drove to the home, receiving directions from Co-Conspirator 

Pizarro and, upon arriving, entered the attached garage 

with his brother, Co-Conspirator Pizarro, and Co-Conspirator 

Trujillo. Once inside the garage, [Appellant] admitted that 

he used a box cutter to open the door leading to the home. 

[Appellant] told Detective Knauss that he questioned his 

brother about what was happening, telling his brother that 

he thought the group was just going there to buy 

marijuana, and then returned to his car. [Appellant] stated 

that when the home-invasion concluded, he drove his 

brother and Co-Conspirator Trujillo away from the scene, 

with Co-Conspirator Pizarro following behind them in the 

stolen 4Runner. [Appellant] further stated that when his 

____________________________________________

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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brother attempted to give him a portion of the money that 

was the fruit of the home-invasion, [Appellant] declined it 

and punched his brother in the face. In his written 

statement, [Appellant] claimed that he had nothing to do 

with the robbery but, rather, stated that he merely opened 

the garage door, returned to his car, and waited for the 

others to return to the car.

At trial, Co-Conspirator Trujillo testified that prior to March 

19, 2013, he was contacted by Co-Conspirator Pizarro, a 

friend of eight years, who told him that “there was a job 

going on.” According to Co-Conspirator Trujillo, [Appellant] 

drove to and picked him up at his house. At that time, 

[Appellant’s] brother and Co-Conspirator Pizarro were also 

in the car. Once Co-Conspirator Trujillo was in the car, CoConspirator Pizarro began giving [Appellant] directions to 

drive to [L.A. and N.A.’s] residence. During the drive, CoConspirator Pizarro told the group that they were going to 

do a “home invasion robbery . . . [with] people in the 

house.” Contrary to [Appellant’s] statement to Detective 

Knauss, Co-Conspirator Trujillo testified that there was no 

discussion among the group about marijuana.

When the group arrived at the residence, [Appellant] parked 

in front of [L.A. and N.A.’s] neighbor’s house. The group 

then approached [L.A. and N.A.’s] garage by crossing the 

neighbor’s yard. To gain access to the attached garage, CoConspirator Pizarro used a key that had been provided to 

him previously. [Appellant] then used a box cutter to 

unlock the door leading into the home. Co-Conspirator 

Trujillo testified that once inside the home, he knew that the 

group would proceed upstairs because they were informed, 

during the drive to the home, that there would be people in 

the upstairs bedroom. According to Co-Conspirator Trujillo, 

[Appellant] wore a mask and gloves, used a flashlight to 

make his way around the home, and fully participated in the 

home-invasion, with the exception of entering the master 

bedroom. Instead, [Appellant’s] role was to remove items 

from the other upstairs bedrooms and carry them, along 

with items stolen from the master bedroom, down the stairs 

and into [L.A. and N.A.’s] 4Runner. Items were also loaded 

into [Appellant’s] car. Once all of the items were loaded, 

[Appellant] drove himself, his brother, and Co-Conspirator 
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Trujillo to Co-Conspirator Pizarro’s home in Allentown, while 

Co-Conspirator Pizarro followed in the 4Runner.

Co-Conspirator Trujillo pleaded guilty to possession of a 

firearm, and he admitted to that possession during his 

guilty plea. Despite that admission, Co-Conspirator Trujillo 

testified that he did not have a gun on the night in question 

and was unsure if Co-Conspirator Pizarro had one. 

[Appellant] took the stand in this case and testified that his 

brother came to his house and told him he found a new 

place to buy marijuana, [L.A. and N.A.’s] house. On the 

drive to [L.A. and N.A.’s] home, the group was smoking 

marijuana and listening to loud music; thus, according to 

[Appellant], he could not hear any conversations occurring. 

Upon arriving at [L.A. and N.A.’s] residence, [Appellant] told 

the others, who had exited the car, to hurry, as [Appellant] 

planned on returning home to his girlfriend and children. 

[Appellant] testified that the others approached the home 

without flashlights and that he waited in the car for 

approximately [15] minutes. According to [Appellant], 

when the group failed to reemerge within [15] minutes, 

[Appellant] drove away, allegedly leaving them without 

transportation home. [Appellant] denied his statement to 

police that he used a box cutter to open [L.A. and N.A.’s] 

door from the garage into the home.

Trial Court Opinion, 8/3/15, at 2-9 (internal citations omitted).

The jury found Appellant guilty of burglary, criminal trespass, theft by 

unlawful taking, two counts of recklessly endangering another person, and 

multiple counts of criminal conspiracy.2, 3 

____________________________________________

2 18 Pa.C.S.A. §§ 3502(a)(1), 3503(a)(1)(ii), 3921(a), 2705, and 903(a), 

respectively. 

3 Specifically, the jury found Appellant guilty of criminal conspiracy to 

commit robbery of the first, second, and third degrees, criminal conspiracy 

to commit burglary, criminal conspiracy to commit criminal trespass, and 

criminal conspiracy to commit theft by unlawful taking. 
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Appellant was originally sentenced on April 6, 2015. However, after 

sentencing, Appellant filed a timely post-sentence motion and raised two 

claims: 1) the evidence was insufficient to support his convictions, and 2) 

some of his convictions should have merged for sentencing purposes. 

Appellant’s Post-Sentence Motion, 4/16/15, at 1-2. The trial court agreed 

with Appellant in part. Specifically, the trial court entered a judgment of 

acquittal on all criminal conspiracy counts except for Appellant’s “criminal 

conspiracy to commit robbery as a felony of the first degree” conviction, 

vacated Appellant’s sentence, and ordered that resentencing would occur at 

a later date. Trial Court Order, 8/3/15, at 1. On October 16, 2015, the trial 

court re-sentenced Appellant to serve an aggregate term of 62 to 180 

months in prison. 

Appellant did not file a post-sentence motion following re-sentencing. 

However, Appellant filed a timely notice of appeal to this Court. Appellant 

now raises two claims on appeal:

[1.] Was the evidence insufficient to support the conviction 

because the Commonwealth failed to prove that Appellant 

entered into a corrupt federation with the intent to commit 

a robbery?

[2.] Was the verdict of guilty as to the charges of burglary, 

criminal trespass, theft, recklessly endangering another 

person[,] and conspiracy to commit robbery against the 

weight of the evidence?

Appellant’s Brief at 4 (some internal capitalization omitted).
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Appellant first claims that the evidence was insufficient to support his 

conviction for criminal conspiracy to commit robbery of the first degree. 

This claim fails. 

We review Appellant’s sufficiency of the evidence challenge under the 

following standard:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying the above test, we may not weigh the evidence 

and substitute our judgment for [that of] the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter of 

law no probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire record must 

be evaluated and all evidence actually received must be 

considered. Finally, the trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence 

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

evidence. 

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en 

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 

(Pa. Super. 2008).

Appellant was convicted of criminal conspiracy to commit robbery, as 

defined by 18 Pa.C.S.A. § 3701(a)(1)(ii). Section 3701(a)(1)(ii) robbery is 

defined as follows:
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A person is guilty of robbery if, in the course of committing 

a theft, he: . . . (ii) threatens another with or intentionally 

puts him in fear of immediate serious bodily injury.

18 Pa.C.S.A. § 3701(a)(1)(ii).

Further, the Crimes Code defines criminal conspiracy in the following 

manner:

(a) Definition of conspiracy.--A person is guilty of 

conspiracy with another person or persons to commit a 

crime if with the intent of promoting or facilitating its 

commission he:

(1) agrees with such other person or persons that they 

or one or more 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 of an attempt 

or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a).

On appeal, Appellant claims that the Commonwealth failed to prove 

“that [Appellant] had the criminal intent to promote or facilitate the robbery 

[or] that [Appellant] entered into an agreement to commit the robbery.” 

Appellant’s Brief at 12. According to Appellant, the evidence merely 

demonstrated that he entered into an agreement to commit a burglary. Id. 

at 14. 

Appellant’s claim is meritless. Certainly, as the trial court explained, 

the evidence was sufficient to prove that Appellant entered into an 
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agreement to commit the robbery and that Appellant had the criminal intent 

to promote and facilitate the robbery. As the trial court explained:

Co-Conspirator Trujillo testified that [Appellant] was in the 

car, as the driver no less, when Co-Conspirator Pizarro 

stated that the group was going to perform a home-invasion 

robbery of a house with people inside. [Appellant], upon 

hearing this, continued to drive to [L.A. and N.A.’s] 

residence. When they arrived there, the conspirators, 

including [Appellant], donned masks and gloves, 

approached the home using flashlights, and entered [L.A. 

and N.A.’s] garage. When the group was unable to enter 

the home through the locked entrance door inside the 

garage, [Appellant] despite the fact that his co-conspirators 

were armed and despite knowing that [L.A. and N.A.] were 

inside, used a box cutter to open the door. Before the 

actual robbery took place, the invaders fired two shots. 

Viewing all of the above in the light most favorable to the 

Commonwealth, there is more than sufficient direct and 

circumstantial evidence that [Appellant] agreed that the 

group would conduct a home-invasion robbery at gunpoint, 

thereby either threatening the victims with or placing the 

victims in fear of immediate serious bodily injury. Thus, the 

evidence was certainly sufficient for the jury to convict 

[Appellant] of conspiracy to commit robbery as a felony of 

the first degree.

Trial Court Opinion, 8/3/15, at 16-17.

We agree with the trial court’s cogent analysis and conclude that 

Appellant’s sufficiency of the evidence claim thus fails.

For Appellant’s second and final claim on appeal, Appellant contends 

that his convictions were against the weight of the evidence. This claim is 

waived. 

As our Supreme Court explained:

in a challenge to the weight of the evidence, the function of 

an appellate court on appeal is to review the trial court’s 
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exercise of discretion based upon a review of the record, 

rather than to consider de novo the underlying question of 

the weight of the evidence. In determining whether this 

standard has been met, appellate review is limited to 

whether the trial judge’s discretion was properly exercised, 

and relief will only be granted where the facts and 

inferences of record disclose a palpable abuse of discretion. 

It is for this reason that the trial court’s denial of a motion 

for a new trial based on a weight of the evidence claim is 

the least assailable of its rulings. 

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal 

quotations and citations omitted).

A weight of the evidence challenge must first be raised with the trial 

court either before sentencing or in a post-sentence motion. Pa.R.Crim.P. 

607(A). Here, Appellant failed to raise his weight claim before the trial 

court. Thus, the claim is waived. Pa.R.A.P. 302(a) (“[i]ssues not raised in 

the lower court are waived and cannot be raised for the first time on 

appeal”).

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/14/2016
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