Com. v. Galindes

• Decision Date: 14 November 2001
• Citation: 786 A.2d 1004
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ethal W. GALINDES A/K/A Ethalwoldo Galindes A/K/A Ethelwaldo Galindes A/K/A Ethelwoldo Galindes, Appellant. Commonwealth of Pennsylvania, Appellee v. Edgar Ortiz, Appellant.
• Court: Pennsylvania Superior Court

786 A.2d 1004

COMMONWEALTH of Pennsylvania, Appellee v. Ethal W. GALINDES A/K/A Ethalwoldo Galindes A/K/A Ethelwaldo Galindes A/K/A Ethelwoldo Galindes, Appellant.

Commonwealth of Pennsylvania, Appellee v. Edgar Ortiz, Appellant.

Superior Court of Pennsylvania.

Submitted September 25, 2001.

Filed November 14, 2001.

David B. Mischak, Philadelphia, for Galindes, appellant.

David Zuckerman, Public Defender, Philadelphia, for Ortiz, appellant.

Catherine L. Marshall, Assistant District Attorney, Philadelphia, for Com., appellee.

Lorie K. Dakessian, Assistant District Attorney, Philadelphia, for Com., appellee.

Before: HUDOCK, STEVENS, and OLSZEWSKI, JJ.

OLSZEWSKI, J.

¶ 1 Ethal Galindes ("Galindes") and Edgar Ortiz ("Ortiz") appeal from the judgment of sentence imposed following their convictions at a joint bench trial. We affirm.

¶ 2 The trial court issued two separate opinions aptly summarizing the underlying facts of the case:¹

On October 26, 1999 at approximately 4:30 a.m., Amy Signell was awakened by a knocking at the front door of her boyfriend's house at 3136 N. Percy Street. The boyfriend, Juan Rodriguez, was not present in the home at the time. Ms Signell heard three knocks but did not answer the door.

Several minutes later she heard her boyfriend's dog, which was chained in the kitchen barking. She then heard what she believed to be someone attempting to break in through the back door.

After Ms. Signell yelled for the dog to stop barking, the banging on the door ceased. Once Ms. Signell determined that no one had actually entered the property, she left to get her boyfriend, Mr. Rodriguez.

As she left the house to walk to her car, she saw two Hispanic males walking toward the house. She proceeded to drive several blocks away to pick up Mr. Rodriguez and his friend, Paul Cruz. The three of them then returned to the Percy Street property.

Ms. Signell remained in the car as Mr. Rodriguez approached the front of the house, where he heard banging coming from the rear of the home. He and Mr. Cruz ran to the back of the house, where he observed [Ortiz and Galindes], kicking the back door. Mr. Rodriguez recognized [] Galindes, as he had previously let him sleep at his Percy Street house. Mr. Rodriguez, was continuing down the alley toward his house when he stepped on something which made a loud noise. He yelled "freeze". Immediately thereafter he heard a gunshot and saw a flash. He screamed again, and the [appellants] began to flee.

When Mr. Rodriguez followed, one of the [appellants] shot at Mr. Rodriguez again. Mr. Rodriguez, who had his own firearm, returned fire three times. One of the shots hit [Ortiz].

After the incident, Mr. Rodriguez observed that the back door was broken in its frame. Neither [Ortiz] nor [Galindes] had permission to be in Mr. Rodriguez' house.

[Mr. Ortiz] was not licensed to carry a firearm and, indeed, was prohibited from possessing a firearm because of a prior criminal conviction.

Ortiz Trial Court Opinion, 3/08/01, at 2-3.

¶ 3 As a result, the police arrested both Mr. Ortiz and Mr. Galindes. Following a joint bench trial on June 7, 2000, the trial court found Mr. Ortiz guilty of attempted burglary; two counts of aggravated assault; violation of the Uniform Firearms Act (VUFA) §§ 6105, 6106, & 6108; possessing an instrument of crime (PIC); criminal mischief; attempted theft; criminal trespass; simple assault and criminal conspiracy. The trial court found Mr. Galindes guilty of aggravated assault, attempted burglary, criminal conspiracy, VUFA §§ 6106 & 6108, criminal mischief, attempted theft, criminal trespass, simple assault, and criminal conspiracy. The trial court also convicted Mr. Galindes of retaliation against a witness, terroristic threats, and obstructing the administration of the law from a separate criminal information.

¶ 4 On September 21, 2000, the trial court sentenced Mr. Galindes to concurrent sentences of five to ten years' incarceration on the aggravated assault, attempted burglary, and criminal conspiracy convictions. The trial court also imposed a consecutive sentence of one to two years' incarceration on the retaliation against a witness charge. No further penalty was imposed on the remaining charges due to merger.

¶ 5 On November 21, 2000, the trial court sentenced Mr. Ortiz to concurrent sentences of five to ten years' incarceration on the aggravated assault, attempted burglary, and criminal conspiracy convictions. The trial court also imposed concurrent sentences of one to two years' incarceration on the possession an instrument of crime and VUFA convictions. No further penalty was imposed on the remaining charges due to merger. These timely appeals followed.

¶ 6 Mr. Ortiz raises the following issues for review:

Was not the evidence insufficient as a matter of law to support the conviction for assault and weapons offenses, and conspiracy to commit these offense, where there was no evidence the instrument that caused a "pop and a flash" was a weapon capable of causing injury, or was ever pointed or directed at the complainant, and even if found to be a gun, can [Mr. Ortiz] as the non-shooter be held criminally culpable for the mental state of his co-defendant [Mr. Galindes]?

Brief for Appellant at 3, Commonwealth v. Ortiz (No.2000 EDA 3498).

¶ 7 Mr. Galindes raises the following issues for review:

I. Whether the evidence was insufficient to sustain the verdict?

II. Whether the verdict was against the weight of the evidence?

III. Whether the trial court erred in permitting testimony of prior bad acts?

Brief for Appellant at 2, Commonwealth v. Galindes (No.2000 EDA 2916).

¶ 8 Mr. Ortiz claims the evidence was insufficient to convict him of aggravated assault, the weapons offenses (VUFA & PIC), and criminal conspiracy. Mr. Galindes also claims the evidence was insufficient to convict him of aggravated assault, attempted burglary, the weapon offenses (VUFA), and criminal conspiracy. We will address appellants' insufficiency claims together where appropriate.²

¶ 9 When considering a challenge to the sufficiency of the evidence, this Court must view the evidence presented in a light most favorable to the Commonwealth, the verdict winner, and draw all reasonable inferences therefrom. Commonwealth v. Ketterer, 725 A.2d 801, 803 (Pa.Super.1999). We must then determine whether the evidence was sufficient to permit the fact-finder to conclude that all of the elements of the crimes charged were proven beyond a reasonable doubt. Id. Any question of doubt is for 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. Id. at 804. "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101, 1105 (1988).

ATTEMPTED BURGLARY

¶ 10 Mr. Galindes claims the evidence was insufficient to sustain his attempted burglary conviction because the Commonwealth failed to prove he had the intent to commit a crime inside Mr. Rodriquez' home. We disagree.

¶ 11 "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. § 901(a). "A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." 18 Pa.C.S.A. § 3502(a). "Intent may be proved by direct evidence or inferred from circumstantial evidence." Commonwealth v. Cannon, 297 Pa.Super. 106, 443 A.2d 322, 324 (1982).

¶ 12 At approximately 4:30 a.m., appellants came to Mr. Rodriguez' front door and knocked three times. N.T. Trial, 6/7/00, at 12. When no one answered, they proceeded to the back door whereupon Ms. Signell heard loud banging and kicking noises. Id. at 13. The noises momentarily stopped once Ms. Signell made her presence known. Id. at 13-14. Appellants, however, resumed their attempt to enter the home through the back door when Ms. Signell left to get Mr. Rodriguez. Mr. Rodriguez, upon arriving at the home, heard and watched appellants kick his back door. Id. at 46, 47. Once Mr. Rodriguez made his presence known, both Mr. Galindes and Mr. Ortiz attempted to flee down an alleyway while shooting at him. Id. at 49. The home's back door and frame, as a result, were destroyed. Id. at 52.

¶ 13 Viewing the evidence in the light most favorable to the Commonwealth, we find that Mr. Galindes intended to enter Mr. Rodriguez' home and commit a crime. Mr. Galindes' attempt to gain entry by kicking the back door constituted a substantial step toward committing burglary. Moreover, the circumstances surrounding the incident, the late hour, the knock at the front door, the kicking of the back door, the fleeing when confronted and then firing shots, all allowed the trial court to reasonably infer Mr. Galindes possessed the intent to commit a crime. See Commonwealth v. Willetts, 277 Pa.Super. 538, 419 A.2d 1280, 1282 (1980)

(evidence, including defendant's attempt to break padlock on garage, late hour at which he made his attempt, and his flight upon arrival of police, was sufficient to sustain conviction of attempted burglary). Thus, the evidence sufficiently supports the attempted burglary conviction.

CRIMINAL CONSPIRACY

¶ 14 Mr. Ortiz and Mr. Galindes both claim the evidence was insufficient to sustain their criminal conspiracy convictions. "A conspiracy conviction requires proof of (1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy." Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1162 (2000); see also 18...