J-S81013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELEAZAR YISRAEL                            :
                                               :
                       Appellant               :   No. 703 MDA 2017

           Appeal from the Judgment of Sentence December 13, 2016
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003750-2015


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                FILED APRIL 24, 2018

        Eleazar Yisrael appeals from the judgment of sentence entered in the

Luzerne County Court of Common Pleas. On appeal, he challenges the

sufficiency of the evidence supporting his convictions. We affirm.

        The testimony presented at trial established the following. In the early

morning hours of August 31, 2015, Butler County Police encountered

Appellant, in camouflage-patterned clothing, walking alongside South Old

Turnpike Road towards Drums. The police stopped Appellant to perform a

safety check, but ultimately allowed Appellant to continue walking alongside

the road.

        Later that day, police responded to a report by Lisa Vacante that her

estranged husband, Samuel Vacante, had gone missing from his home in
____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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Drums. Vacante’s home was located approximately two miles from the point

police had encountered Appellant earlier that day.

      Upon arriving at Vacante’s home, police officers discovered Vacante’s

white Kia Cadenza missing from his garage. The garage contained the distinct

smell of bleach. Vacante’s son, Brandon Vacante, led the officers to a trail of

blood, and various items including a grey hooded sweatshirt, rags soaked in

bleach, Clorox toilet bowl cleaner, a blue latex glove, a .22 caliber rifle, and a

fired .22 caliber shell casing. Brandon informed the officers that he had been

receiving disturbing text messages from Vacante’s cell phone, and noted that

it was unusual for Vacante to store either clothing or the rifle in the garage.

The police were able to track down Vacante’s phone, but did not find Vacante

or his vehicle nearby.

      Two days later, officers discovered Vacante’s vehicle two blocks from

the home Appellant shared with girlfriend Lisa, Vacante’s estranged wife. The

registration plate had been removed and the vehicle identification number

(“VIN”) blacked out. Officers discovered Vacante’s blood in the trunk,

Appellant’s fingerprints in the vehicle, and a Wal-Mart receipt dated

September 1, 2015, the day after Vacante went missing.

      Wilson Rosembert testified that Appellant had picked him up in the white

Kia on September 1, 2015, and confirmed that they made a trip to Wal-Mart

on that date. Security footage confirmed that Appellant, still dressed in the

camouflage, had driven Vacante’s vehicle. Further, shortly after Vacante’s

disappearance, Jamal Reid claimed that Appellant had asked him to store a

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white Kia, and various other items, in Reid’s garage. While Reid did not allow

Appellant to store the vehicle in his garage, he allowed Appellant to store other

items, including two knives, in the garage. The police later identified the

knives as Vacante’s personal property.

      Police executed a search warrant on Appellant’s residence on September

3, 2015. They recovered various items identified as Vacante’s, including: a

gun, binoculars, ammunition, tools, watches, mail, a compact disc made for

Vacante by his girlfriend, and the key fob for his Kia Cadenza. Further, police

seized a box of blue latex gloves, similar to the glove found in Vacante’s

garage.

      Two days later, a passerby discovered Vacante’s body in a wooded area

of Penn Forest Township. Appellant previously resided in this area. Vacante’s

body was found wrapped in a tent in an advanced stage of decomposition. The

tent was identified as one Vacante had stored in his garage. The autopsy

revealed that Vacante’s cause of death was a small caliber gunshot wound to

the back. While the Commonwealth was not able to definitely prove that the

gun recovered from the Vacante’s garage caused his death, it was not ruled

out as the murder weapon.

      Appellant was arrested and charged with criminal homicide, robbery,

burglary, tampering with or fabricating physical evidence, and abuse of

corpse. When speaking to police, Appellant originally claimed that he was in

New York the day Vacante went missing. However, the man Appellant claimed

he was with in New York denied seeing Appellant on that day.

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      The case proceeded to a jury trial and the jury ultimately convicted

Appellant of all charges. The trial court immediately sentenced Appellant to

the mandatory term of life imprisonment for his first-degree murder

conviction, as well as an aggregate consecutive sentence of 14½ to 29 years

for his other convictions. Appellant filed a post-sentence motion challenging

the sufficiency of the evidence presented at trial. The trial court denied

Appellant’s motion. This appeal follows.

      On appeal, Appellant contends that the Commonwealth presented

insufficient evidence to support each of his five convictions. Our standard of

review for a challenge to the sufficiency of the evidence is to determine

whether, when viewed in a light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find that each element of the crimes charged is established

beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150,

152 (Pa. Super. 2003).

      “[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See Commonwealth

v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004) (citation omitted). “As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record.” Id. (citation omitted). Therefore, we will not

disturb the verdict “unless the evidence is so weak and inconclusive that as a

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matter of law no probability of fact may be drawn from the combined

circumstances.” Bruce, 916 A.2d at 661 (citation omitted). Evidence is weak

and inconclusive “[w]hen two equally reasonable and mutually inconsistent

inferences   can   be   drawn   from   the   same   set   of   circumstances….”

Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946).

However, “[t]he Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.

Super. 2009) (citations omitted).

      First, Appellant challenges the sufficiency of the evidence underlying his

first-degree murder conviction. “An individual commits first-degree murder

when he intentionally kills another human being; an intentional killing is

defined as a willful, deliberate and premeditated killing.” Commonwealth v.

Williams, 176 A.3d 298, 306 (Pa. Super. 2017) (citing 18 Pa.C.S.A. §§ 2501,

2502(a), (d)) (internal quotation marks omitted). “To sustain a conviction for

first-degree murder, the Commonwealth must establish beyond a reasonable

doubt that: (1) a human being was unlawfully killed; (2) the defendant was

responsible for the killing; and (3) the defendant acted with malice and the

specific intent to kill.” Commonwealth v. Cash, 137 A.3d 1262, 1269 (Pa.

2016) (citation omitted). “[T]he jury, as a factfinder, may infer that the

accused intended to kill a victim based on the accused’s use of a deadly

weapon on a vital part of the victim’s body.” Commonwealth v. Sanchez,

36 A.3d 24, 37 (Pa. 2011) (citation omitted).

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       Appellant’s arguments center around his claims that the Commonwealth

failed to link him, either through DNA evidence or otherwise, to the crime

scene and the murder weapon. As such, Appellant assails the second prong

required to support his first-degree murder conviction: he contends that the

Commonwealth failed to present evidence sufficient to prove that he was

responsible for Vacante’s death.1

       At trial, the Commonwealth presented evidence that at the time of

Vacante’s death, Appellant was involved in a relationship with Vacante’s

estranged wife Lisa. Police officers observed Appellant walking in the direction

of Vacante’s residence the same day that Vacante went missing. When

Vacante was reported missing, police found a trail of Vacante’s blood in the

garage and Vacante’s vehicle missing. Rosembert informed the jury that

Appellant picked him up in Vacante’s vehicle the day after Vacante went

missing, and Reid testified that Appellant wanted to store Vacante’s vehicle in

his garage. When the police recovered Vacante’s vehicle, both Vacante’s blood

and Appellant’s fingerprints were discovered inside the vehicle. Vacante’s body

was found in close proximity to Appellant’s previous residence, and Appellant’s

alibi for the day Vacante disappeared was unsupported.

____________________________________________


1 In his appellate brief, Appellant briefly references the Commonwealth’s
failure to prove specific intent, i.e., the third prong of the first-degree murder
sufficiency analysis. See Appellant’s Brief, at 8. While we could easily find this
argument waived for Appellant’s failure to adequately develop this argument,
see Pa.R.A.P. No. 2119(b), (c), Appellant has waived this argument for failure
to include a challenge to this specific element in his Rule 1925(b) statement.
See Commonwealth v. Tyack, 128 A.3d 254, 261.

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      While much of the evidence of Appellant’s participation in this crime was

circumstantial, we reiterate that “[t]he Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means

of wholly circumstantial evidence.” Gibbs, 981 A.2d at 281(citations omitted).

Here, the circumstantial evidence, when viewed in the light most favorable to

the Commonwealth, supported the Commonwealth’s theory that Appellant

walked to Vacante’s house, committed the murder, placed Vacante’s body in

the trunk of Vacante’s car, and drove Vacante’s car, with his body in the trunk,

to the wooded area and dumped it there.

      Further, the jury, as the ultimate finder in fact, was permitted to resolve

any doubt as to Appellant’s guilt. See Kinney, 863 A.2d at 584. In finding

Appellant   guilty   of   first-degree   murder,   the    jury   clearly   found   the

Commonwealth’s theory credible. See id. As the evidence supported the jury’s

inference of Appellant’s guilt, and the first-degree murder conviction,

Appellant is not entitled to relief on his first claim.

      Next, Appellant claims that the Commonwealth presented insufficient

evidence to sustain his burglary conviction. Specifically, Appellant reiterates

his claim that the Commonwealth failed to prove he was present at Vacante’s

home on the day of his disappearance. As such, Appellant claims that the only

proof of burglary the Commonwealth had were Vacante’s personal items

discovered in Appellant’s residence, which, Appellant asserts, is insufficient to

support a burglary conviction.




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         “To sustain a burglary conviction, the Commonwealth is required to

prove beyond a reasonable doubt that the offender entered the premises with

the contemporaneous intent of committing a crime therein, at a time when he

or she was not licensed or privileged to enter.” Commonwealth v. Jacoby,

170 A.3d 1065, 1078 (Pa. 2017) (citation and internal quotation marks

omitted). Appellant does not challenge the Commonwealth’s proof of his

intent, but simply challenges the evidence regarding his presence in the

garage.2

         Here, the Commonwealth provided sufficient circumstantial evidence

from which the jury could infer that Appellant entered Vacante’s garage.

Appellant was observed walking towards Vacante’s home the day Vacante

went missing, and most importantly, Appellant was found in possession of

various items Vacante kept in his home and garage, including Vacante’s

vehicle.    Thus,   we    find   that   the    Commonwealth   provided   sufficient

circumstantial evidence from which the jury could infer Appellant entered

Vacante’s home. See Gibbs, 981 A.2d at 281. Therefore, Appellant’s

challenge to the sufficiency of the evidence underlying his burglary conviction,

fails.




____________________________________________


2 In his Rule 1925(b) statement, Appellant argued that the Commonwealth
failed to prove his intent to commit Criminal Homicide or Robbery upon
entering Vacante’s home. See Rule 1925(b) Statement, 6/1/17, at ¶ 2(a).
However, Appellant’s wholly abandons this argument in his appellate brief.
See Appellant’s Brief, at 9.

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      Moving to his third sufficiency argument, Appellant challenges his

robbery conviction. Appellant centers his argument around his belief that the

Commonwealth’s evidence was insufficient to prove that he inflicted injury

upon Vacante, or that he committed a theft. To sustain a conviction for

robbery, as charged in this case, the Commonwealth must prove beyond a

reasonable doubt that a person inflicted serious bodily injury upon another

person in the course of committing a theft. See 18 Pa.C.S.A. 3701(a)(1)(i).

      As discussed above, the Commonwealth presented sufficient evidence

for the jury to conclude that Appellant killed Vacante. Murder is undoubtedly

subsumed in the definition of serious bodily injury. Additionally, the

Commonwealth presented evidence that Appellant was found in possession of

several items of Vacante’s property, including his mail, knives, watches, and

vehicle. Logically, the jury could infer from this evidence that Appellant stole

the items from Vacante in the process of killing him. See Kinney, 863 A.2d

at 584 (providing jury is permitted to resolve any doubt as to defendant’s

guilt). Appellant’s attack on the sufficiency of the evidence supporting his

robbery conviction, fails.

      Appellant next challenges the sufficiency of the evidence supporting his

tampering with or fabricating physical evidence conviction. Specifically,

Appellant claims that the Commonwealth was unable to prove Appellant was

aware of a police investigation at the time they claimed he tampered with

evidence.




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            To establish the offense of tampering with evidence, the
      Commonwealth must prove three interrelated elements: (1) the
      defendant knew that an official proceeding or investigation was
      pending; (2) the defendant altered, destroyed, concealed, or
      removed an item; and (3) the defendant did so with the intent to
      impair the verity or availability of the item to the proceeding or
      investigation.

Commonwealth v. Jones, 904 A.2d 24, 26 (Pa. Super. 2006) (citation

omitted).

      The Commonwealth presented evidence that the police immediately

started looking for Vacante’s vehicle once they determined he was missing on

August 31, 2015. Appellant resided with Vacante’s estranged wife, Lisa, who

was aware on that same day that both Vacante and his vehicle were missing.

Appellant was found in possession of Vacante’s vehicle two days later, with

the registration plate removed and the VIN blacked out.

      Based upon the totality of the circumstances, a jury could have

reasonably inferred that Appellant knew the police were investigating

Vacante’s disappearance as early as August 31, 2015. See Kinney, 863 A.2d

at 584 (providing jury is permitted to resolve any doubt as to defendant’s

guilt). The jury could have also reasonably inferred that, knowing a police

investigation was occurring, Appellant decided to remove the registration plate

and black out the Kia’s VIN in an attempt to conceal his involvement in

Vacante’s disappearance. See id.

      When viewed in a light most favorable to the Commonwealth as verdict

winner, the evidence presented at trial regarding Appellant’s tampering with

or fabricating physical evidence charge was sufficient to establish that


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Appellant believed an investigation was about to be instituted. Accordingly,

we find Appellant’s fourth challenge to the sufficiency of the evidence fails.

          Finally, Appellant assails the Commonwealth’s evidence underlying his

abuse of corpse conviction. Appellant once again relies on the lack of physical

evidence tying him to Vacante’s body to dispute his conviction. However, in

employing this strategy, Appellant ignores the other elements in the abuse of

corpse statute that requires the Commonwealth prove a person treated a

“corpse in any way that he knows would outrage ordinary family sensibilities.”

18 Pa.C.S.A. § 5510. As we have already held, numerous times, that the

Commonwealth’s circumstantial evidence was sufficient for the jury to

conclude Appellant murdered Vacante, and disposed of his body, Appellant’s

claim that the evidence was insufficient to tie him to Vacante’s body fails.

Appellant’s final challenge to the sufficiency of the evidence does not merit

relief.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/24/18




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