Opinion
886 MDA 2022 J-A16010-23
10-02-2023
COMMONWEALTH OF PENNSYLVANIA v. LUIS MANUEL SERRANO-DELGADO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered May 9, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005747-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM
PANELLA, P.J.
Luis Manuel Serrano-Delgado brings this direct appeal after a jury convicted him of one count each of second-degree murder and conspiracy, and two counts of robbery. He presents challenges to the trial court's rulings concerning the Commonwealth's ability to rebut evidence of his reputation as a peaceful and law-abiding person and the sufficiency of the evidence at trial to prove that he was involved in the crimes rather than being a mere bystander. We affirm.
In the morning of July 6, 2018, the body of a man was discovered face down in the grass along 14th street in Harrisburg. Police were dispatched, discovered that the man had been shot in the back, observed evidence of a robbery of the man's belongings, and began an investigation. Officers and detectives retrieved video footage from nearby surveillance cameras and conducted investigative interviews. The investigators eventually came to believe Serrano-Delgado was involved in the crimes.
On January 3, 2020, the Commonwealth filed an information charging Serrano-Delgado with second-degree murder, two counts of robbery, and two counts of conspiracy. Prior to the start of trial, Serrano-Delgado filed a motion in limine seeking to prevent the Commonwealth from cross-examining the defense's character witnesses with Serrano-Delgado's juvenile adjudications. The motion also sought a determination addressing whether the Commonwealth could present rebuttal testimony concerning Serrano-Delgado character reputation. The trial court denied the motion after a hearing immediately prior to trial.
At the conclusion of the trial, the jury convicted Serrano-Delgado of second-degree murder, two counts of robbery, and one count of conspiracy. On May 9, 2022, the trial court sentenced Serrano-Delgado to serve a sentence of life without parole for the murder conviction, and concurrent sentences of 5 to 10 years for one of the robbery convictions and 5 to 10 years for the conspiracy conviction. Serrano-Delgado filed a post-sentence motion, which was denied. This appeal followed raising claims that the trial court erred in denying his motion in limine, and the Commonwealth failed to present sufficient evidence to support his convictions.
In his first two issues, Serrano-Delgado argues that the trial court erred in denying his motion in limine. See Appellant's Brief at 20-31. Serrano-Delgado posits that he intended to introduce evidence to establish that he has a reputation for being a peaceful and law-abiding person. He claims the trial court should have granted his motion in limine and precluded the Commonwealth from cross-examining character witnesses with his juvenile adjudications. See id. at 20-28. In addition, Serrano-Delgado asserts that the trial court erred in failing to preclude the Commonwealth from offering rebuttal reputation testimony concerning instances of Serrano-Delgado's behavior, which were revealed during the criminal investigation. See id. at 28-31.
A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. See Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003). The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant. See id. A trial court should find evidence admissible if it is relevant, that is "if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact." Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006) (citation omitted).
It is well settled that "[t]he admission of evidence is within the sound discretion of the trial court and will be reversed on appeal only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citation omitted). Abuse of discretion requires a finding of misapplication of the law, a failure to apply the law, or judgment by the trial court that exhibits bias, ill-will, prejudice, partiality, or was manifestly unreasonable, as reflected by the record. See Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).
Furthermore, our Supreme Court has noted previously that "[e]vidence will not be prohibited merely because it is harmful to the defendant." Commonwealth v. Dillon, 925 A.2d 131, 138-39 (Pa. 2007) (citation omitted). "[E]xclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case." Commonwealth v. Owens, 929 A.2d 1187, 1191 (Pa. Super. 2007) (citation omitted).
The Pennsylvania Rules of Evidence provide that "a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it[.]" Pa.R.E. 404(a)(2)(A). Rule of Evidence 405 provides that evidence of a particular character trait may be offered by way of "testimony about the person's reputation." Pa.R.E. 405(a). Moreover, "the Commonwealth is permitted to cross-examine the character witness regarding "specific instances of conduct probative of the character trait in question." Commonwealth v. Fletcher, 861 A.2d 898, 915 (Pa. 2004) (citation omitted). This permission is moderated by the restriction that "[i]n a criminal case, on cross-examination of a character witness, inquiry into allegations of other criminal conduct by the defendant, not resulting in conviction, is not permissible." Pa.R.E. 405(a)(2).
In his motion in limine, Serrano-Delgado indicated that "[a]s part of his case in chief, [he] may call character witnesses, pursuant to Pa.R.E 404(a)(2)(A) and 405, to testify that [he] has a reputation for being a peaceful and law-abiding person." Motion in Limine, 4/1/22, at 2. In doing so, Serrano-Delgado would have opened the door for the Commonwealth to introduce evidence to rebut the testimony. See Pa.R.E. 404(a)(2)(A). Indeed, in his motion in limine Serrano-Delgado represented that "[t]he prosecutor also advised that if [he] presented the character testimony … [the Commonwealth] will present rebuttal bad character testimony that [Serrano-Delgado] has a reputation for committing robberies." Motion in Limine, 4/1/22, at 2. There is no question that, if Serrano-Delgado had presented character trait testimony, the Commonwealth would have been permitted to ask the witnesses about specific instances of conduct that resulted in conviction and were relevant to the character trait in question. See Fletcher, 861 A.2d at 915. However, Serrano-Delgado claims that inquiry into the knowledge of his prior juvenile adjudications violated Pennsylvania Rule of Evidence 405(a)(2), which prohibits inquiry into criminal conduct that did not result in a conviction.
Here, the trial court denied Serrano-Delgado's motion in limine and ruled permissible an inquiry into knowledge of his prior juvenile adjudications pursuant to Section 6354(b)(4) of the Juvenile Act, which, in pertinent part, provides:
(b) Effect in subsequent judicial matters. The disposition of a child under this chapter may only be used against him:
(4) in a criminal proceeding, if the child was adjudicated delinquent for an offense, the evidence of which would be admissible if committed by an adult.42 Pa.C.S.A. § 6354(b)(4).
In Commonwealth v. McKeever, 689 A.2d 272, 274 (Pa. Super. 1997), this Court considered whether evidence of adjudications for robbery, theft, and attempted theft were admissible to impeach the appellant's testimony as evidence of crimen falsi. We concluded that based upon the clear language of § 6354(b)(4) and the intent of the General Assembly, it was permissible to use the adjudications for impeachment purposes. We noted, "As each element of 42 Pa.C.S.[A.] § 6354(b)(4) was satisfied, we find that the clear wording of the statute mandated that [the] appellant's juvenile adjudications be admitted for impeachment purposes at his subsequent trial for robbery." Id.
Here, it is undisputed that "Appellant was adjudicated delinquent in 2015 for retail theft, receiving stolen property, terroristic threats, and flight to avoid apprehension." Trial Court Opinion, 12/21/22, at 4. If Serrano-Delgado had been convicted as an adult rather than adjudicated delinquent, inquiry into the convictions would have been permissible to rebut evidence offered to establish his character trait for being a peaceful and law-abiding person. Fletcher, 861 A.2d at 915. Therefore, pursuant to Section 6354(b)(4) evidence of Serrano-Delgado's adjudications is likewise admissible. Consequently, in this instance, inquiry into Serrano-Delgado's juvenile adjudications would not be barred by Rule 405(a)(2), and the trial court did not abuse its discretion in denying his motion in limine.
At the hearing on the motion, the prosecutor stated the following without objection from the defense:
He has a retail theft in 2014 where he stole jewelry from, I believe it was a store. A receiving stolen property where he stole a cell phone from a teacher in school at CD East. A terroristic threats where he threatened a kid at school, I believe with a gun. And lastly, a flight to avoid apprehension to disorderly conduct, where there was a report that he and a couple other juveniles were near the Dauphin County Prison in a park and somebody believed that they had a gun. Cops arrived and he fled. He was adjudicated delinquent on all those in 2015.N.T., 4/4-7/22, at 10.
We also consider Serrano-Delgado's claim that the trial court erred in concluding the Commonwealth could offer reputation rebuttal evidence from a detective who interviewed community members during the criminal investigation. As discussed above, Pennsylvania Rule of Evidence 404(a) addresses the use of character evidence offered to establish a defendant's pertinent trait, and the prosecutor's ability to offer rebuttal evidence. Relatedly, Rule of Evidence 405(a) addresses the methods of proving a person's character by reputation. In Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015) (en banc), we offered the following summary of the interplay between these two rules:
Under Rule 404(a)(2)(A), a criminal defendant may introduce evidence of a "pertinent" character trait. "Pertinent" means relevant to the crimes charged. Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa. Super. 2010). In rebuttal, the Commonwealth may offer evidence of the defendant's bad character. Pa.R.E. 404(a)(2)(A). Pennsylvania law generally limits proof of character evidence to a person's reputation, and opinion evidence cannot be used to prove character. Pa.R.E. 405(a).Id.
In arguing in favor of the motion in limine, defense counsel explained the following at the hearing:
[The Commonwealth] indicated that [a] detective would testify, if I put his reputation as a peaceful law-abiding citizen in the community on, the detective would be called in rebuttal to say that [Serrano-Delgado] has the opposite reputation through his investigation. And I'd ask that the [c]ourt rule on whether that is, in fact, admissible.N.T., 4/4-7/22, at 10.
The prosecutor clarified the following in response:
[W]e would combat that reputation evidence with reputation itself. The rules do permit the Commonwealth to introduce our own representation evidence, and my offer of proof is that I would call Detective Silvio, who investigated this case, who spoke with numerous individuals near … where this crime took place. Around the time of that it appears that he was engaged in felony drug dealing, specifically fentanyl and heroin, as well as other potential crimes involving violence.
So certainly he's interviewed people. I don't think character evidence gets any better than a detective who goes out there on the street shortly after the crime and talks to people to get a good idea of what the reputation is. So we would introduce that to combat their reputation evidence.Id. at 11-12. Thereafter, the trial court ruled "that reputation evidence clearly comes in." Id.
The preceding makes clear that Serrano-Delgado intended to introduce character evidence related to his reputation as a peaceful law-abiding citizen. The strictures of Pa.R.E. 404 and the caselaw cited above make clear that Serrano-Delgado was permitted to put his reputation at issue during the trial. However, the Commonwealth was equally entitled to rebut the claims through contrary reputation evidence. Therefore, we discern no abuse of discretion by the trial court in concluding that the Commonwealth's rebuttal reputation evidence was admissible and denying Serrano-Delgado's motion in limine.
Serrano-Delgado last argues that there was insufficient evidence to establish his guilt. See Appellant's Brief at 32-36. He asserts that the "Commonwealth's evidence consisted of [surveillance v]ideos, and what came out of [his] mouth." Id. at 34-35. Serrano-Delgado contends that the videos merely established that he was present at the scene and fled. See id. at 35.
We address challenges to the sufficiency of the evidence with great deference to the credibility determinations of the fact finder:
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 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 finder 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. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en banc) (citation omitted).
We have reviewed the briefs of the parties, the pertinent legal authority, the certified record, and the trial court's thorough opinion. We agree with the trial court, which offered an exhaustive recitation of the evidence, that the Commonwealth presented sufficient evidence to support Serrano-Delgado's convictions. The jury, sitting as finder of fact, chose to believe the evidence set forth by the Commonwealth and we will not substitute our judgment. Under the totality of the circumstances, the evidence at the trial, viewed in the light most favorable to the Commonwealth, is sufficient to sustain Serrano-Delgado's convictions of second-degree murder, robbery, and conspiracy. Therefore, we agree with the trial court that this issue lacks merit, adopt the analysis set forth by the trial court in its written opinion and affirm on its basis. See Trial Court Opinion, 12/21/22, at 6-16.
Judgment of sentence affirmed.
Judgment Entered.
OPINION
Edward M. Marsico, Jr., J.
[Pursuant to Pa.R.A.P. 1925(a)]
Presently before the Superior Court of Pennsylvania is the appeal of Luis Manuel Serrano-Delgado (herein after "Appellant") from his convictions on the charges of Murder of the Second Degree, Robbery-threat of immediate serious in jury, Robbery-inflict/threat immediate bodily injury, and Criminal Conspiracy to engage in robbery- inflict/threat immediate serious bodily injury.
PROCEDURAL HISTORY
On October 29, 2019, Detective Christopher Silvio of the City of Harrisburg Police Department filed a criminal complaint charging Appellant with one count of Murder of the Second Degree, one count of Robbery- threat of immediate serious bodily injury, one count of Conspiracy to commit Robbery- threat of immediate serious bodily injury, one count of Robbery- inflict/threat of immediate bodily injury, one count of Conspiracy to commit Robbery- inflict/threat of immediate bodily injury footnote, and one count of Hindering apprehension or prosecution. A preliminary hearing was scheduled before Magisterial District Judge Paul Zozos on November 12, 2019, which Appellant waived, and the case was bound over to the Court of Common Pleas.
A trial by jury was held from April 4, 2022 through April 7, 2022, before the undersigned, Judge Edward M. Marsico, Jr., and the jury returned verdicts of guilty on the charges of murder of the second degree, robbery- threat of immediate serious bodily injury, robbery- inflict/threat of immediate bodily in jury, and conspiracy to commit robbery-inflict/threat of immediate serious bodily injury. The jury returned a verdict of not guilty on the charge of conspiracy to commit robbery- inflict/threat of immediate bodily injury. Sentencing was deferred, and on May 9, 2022, on Count1, murder in the second degree, Appellant was sentenced to life with no eligibility for parole. On Count 2, robbery -with threat of immediate serious bodily injury, Appellant was sentenced to a minimum of five (5) years and maximum of ten (10) years incarceration, to run concurrently with the life sentence. At Count 4, robbery - inflict/threat of immediate bodily injury, the Court imposed no further sentence, as it merged with Count 2. At Counts, criminal conspiracy to engage in robbery, Appellant was sentenced to a minimum of five (5) years and maximum of ten (10) years, to be served con currently to the sentences imposed at Counts 1 and 2. Finally, Appellant was given time credit from October 29, 2019.
Appellant filed a post-sentence motion on May 19, 2022, which was denied. Appellant filed a Notice of Appeal on June 15, 2022, and on June 27, 2022, this court ordered Appellant to comply with Pa.R.A.P. 1925 (b) within twenty-one (21) days. On July 13, 2022, Appellant filed a Motion for Extension of Time to file his Statement of Errors Complained of on Appeal (hereinafter"Statement"), which this Court granted. Appellant filed a second request for an extension of time, which was also granted. On October 21, 2022, Appellant filed his Statement; this Opinion follows.
On November 21, 2022, chambers requested a thirty (30) day extension to file its 1925 (a) Opinion.
DISCUSSION
On Appeal, Appellant's first two arguments are interwoven. Appellant contends that the trial court erred in denying his motion to prevent the Commonwealth from introducing his juvenile adjudications to rebut character evidence that Appellant has a reputation as a peaceful, law-abiding citizen. In the same vein, Appellant argues that the court also erred in denying his motion to prevent the Commonwealth from calling a detective to offer testimony regarding his investigation that would rebut Appellants reputation as a peaceful, law-abiding citizen.
Prior to the commencement of trial, Defense counsel filed a Motion in limine to preclude the Commonwealth from using Appellant's juvenile adjudications to impeach testimony regarding Appellant's character and reputation as a peaceful, law-abiding citizen. (N.T., 4/4/22, pp. 9-12). Following a brief exchange between counsel and the undersigned, the court noted that if defendant introduced evidence to show his character as a peaceful and law-abiding citizen, the Common wealth could cross-examine witnesses using the juvenile adjudications. (N.T., p. 11). The Commonwealth went on to argue that any testimony elicited from its witness, Detective Christopher Silvio, regarding his investigation and information he learned regarding Defendant's reputation should also be admissible. (N.T., p. 11). The court ruled that this reputation evidence would also be admissible. (Id.).
In a criminal case, the accused may offer witnesses to testify to the accused's relevant character traits. Pa.R.E. 404 (a)(1). The Commonwealth may attempt to impeach those witnesses; however, the Commonwealth may not question the witnesses about allegations of other criminal misconduct by the accused where those allegations did not result in conviction. See Commonwealth v. Morgan, 559 Pa. 248, 739 A.2d 1033, 1035(1999).
It is well-established that the admissibility of evidence is within the discretion of the trial court, and such rulings will not form the basis for appellate relief absent an abuse of discretion. Thus, the Superior Court may reverse an evidentiary ruling only upon a showing that the trial court abused that discretion. Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 636 (2010). A determination that a trial court abused its discretion in making an evidentiary ruling "may not be made 'merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Id. quoting Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 495 (2009). Further, discretion is abused when the law is either overridden or misapplied. Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (2005).
While Appellant maintains it was error for the court to determine that his juvenile adjudications were admissible for the purposes of impeaching testimony regarding his reputation as a peaceful, law-abiding citizen, 42 Pa.C.S.A. section 6354 (b)(4) dictates otherwise:
"The disposition of a child under this chapter may only be used against him:
(1) in dispositional proceedings after conviction for the purposes of a presentence investigation and report if the child was adjudicated delinquent;
(2) in a subsequent juvenile hearing, whether before or after reaching majority;
(3) if relevant, where he has put his reputation or character in issue in a civil matter; or
(4) in a criminal proceeding, if the child was adjudicated delinquent for an offense, the evidence of which would be admissible if committed by an adult"42 Pa. Stat, and Cons. Stat. Ann. § 6354 (West).
Appellant was adjudicated delinquent in 2015 for retail theft, receiving stolen property, terroristic threats, and flight to avoid apprehension. (N.T., p. 10). Because as convictions these would have been admissible if he would have been convicted as an adult, the court did not err in its ruling. Evidence of these crimes, or convictions, would have been admissible to rebut the Appellant's evidence of good character had these been committed by him as an adult. As such, 42 Pa.C.S.A. 6354 permits the use of the adjudications in this matter. Furthermore, under the same statute, testimony of Detective Silvio to rebut the character testimony was also admissible. Defense counsel did not call any character witnesses at trial.
Appellant next contends that the trial court erred in denying Appellant's objection and motion for a mistrial regarding comments made during the Commonwealth's opening statement. Specifically, Appellant alleges that it was error for the Commonwealth to remark "the defendant and his gang of hunters," that the victim was "hunted," and that "[w]e see them hunting together on this video."
It is well-settled that the review of a trial court's denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will... discretion is abused. A trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. A mistrial is not necessary where cautionary instructions are adequate to overcome prejudice. See Commonwealth v. Jemison, 98 A.3d 1254, 1263 (Pa.2014) (observing that 'the jury is presumed to follow the court's instructions." (citation omitted). Commonwealth v. Raynor, 153 A.3d 1049, 1056-57 (Pa.Super.2016), appeal denied, 169 A.3d 1046 (Pa.2017), cert, denied sub nom. Rayner v. Pennsylvania, 138 S.Ct. 976 (2018) (one citation omitted).
Here, the statements of the prosecutor did not merit a mistrial. Certainly, the statements did not have the unavoidable effect of undermining the fact-finder's neutrality so as to preclude a true verdict. Commonwealth v. Kennedy, 598 Pa. 621, 959A.2d 916, 923-24 (2008). Commonwealth v. Fears. 624 Pa. 446, 486, 86 A.3d 795, 819 (2014). Rather, the statements outlined the Commonwealth's theory of the case i.e., the Appellant and others "hunted down" the victim in this case, which the evidence ultimately revealed.
Appellant next contends the Commonwealth improperly utilized evidence that had not been admitted. Following the conclusion of the Commonwealth's opening statement, defense counsel asked for a sidebar. (N.T., 4/4/22, p. 32). Following the discussion at sidebar, defense counsel moved for a mistrial, noting that the Commonwealth used evidence in the form of a video and photographs that had not been admitted. (Id.). The court noted the objection and denied the motion for mistrial. (Id.). The Pennsylvania Supreme Court has stated that the purpose of an opening statement is to apprise the jury how the case will develop, its background and what will be attempted to be proved; but it is not evidence. Commonwealth v. Parker. 919 A.2d 943, 950 (Pa.2007). A prosecutor's opening statements may refer to facts that he reasonably believes will be established at trial and must be based on evidence that he plans to introduce at trial and must not in elude mere assertions designed to in flame the jury's emotions. Id.
Here, because the evidence used during the Commonwealth's opening statement was later introduced, admitted, and referenced during the course of the trial, no error was made.
Appellant also argues that the Commonwealth's evidence was insufficient to prove his guilt beyond a reasonable doubt for second-degree murder, criminal conspiracy to engage in robbery, and two (2) counts of robbery.
In reviewing the sufficiency of the evidence, the Superior Court must determine whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Further, the trier of fact is free to believe all, part, or none of the evidence. Commonwealth v. Taylor, 137A.3d 611, 614 (Pa.Super.2016).
Pursuant to 2502(b) of the Crimes Code, "[a] criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony." 18 Pa.C.S.A. section 2502(b). The Crimes Code also provides, in pertinent part, that "[a] person is guilty of robbery if, in the course of committing a theft, he... inflicts serious bodily injury upon another [or] threatens another with or intentionally puts him in fear of immediate serious bodily injury[.]" 18 Pa.C.S.A. sections 3701 (a)(1)(i), (ii)- Fin ally, a person is guilty of conspiracy with an other person or persons to commit a crime if with the intent of promoting or facilitating its commission he...agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime...or...agrees to aid such other person or persons in the planning or commission of such crime...18 Pa. C.S.A. section 903(a).
Officer John Rosinski testified that he was working as an officer for the Harrisburg Bureau of Police on July 6, 2018, when he responded to the area of 14th and Kittatinny Streets to a report of a man lying in the street. (N.T., pp. 39-40). Officer Rosinski found an individual who appeared to be a young male, laying down in front of 239 South 14th Street. (Id. at 40). He observed that a backpack on the individual was ripped open in what he described, in his experience, appeared to be a robbery. (Id.). He also noticed dirt and blood on the individual, (Id.). Officer Rosinski tapped the individual on the leg with his foot and based on the stiffness of the body, determined that the individual was deceased, (Id.). He called for emergency medical services and began to secure the crime scene, (Id. at 42-43).
Officer Rosinski testified that the next day, an e-mail that circulated within the police department identified a suspect vehicle in the homicide, (Id. at 45). A picture of the vehicle indicated it was a black sedan with pinecone air fresheners in the window. (Id.). During Officer Rosinski's patrol in the public housing development of Hall Manor that evening, he came upon a car matching the description of the suspect vehicle, with pinecone air fresheners hanging from the rearview mirror, (Id. at 46). Officer Rosinski got out of his vehicle to check the license plate of the vehicle and upon doing so, a bystander approached him and mentioned that three Puerto Rican males got out of the vehicle and went towards a row of homes in the development. (Id. at 47). Officer Rosinski returned to his vehicle and parked where he was facing the suspect vehicle. (Id.). When the vehicle pulled out of the parking spot, Officer Rosinski followed and when the driver failed to use a turn signal to make a right-hand turn, he conducted a traffic stop, (Id. at 47-48).
Officer Rosinski ultimately identified the driver as Appellant; the front seat passenger was identified as Miguel Colon Rosario, and the rear seat passenger was identified as Alexanther Mena. (Id. at 49). Officer Rosinski issued a traffic citation to Appellant and concluded the traffic stop. (Id.).
Karen Lyda, a forensic investigator for the Harrisburg Bureau of Police, testified that on July 6, 2018, she was notified about a potential crime scene at 14th and Kittatinny Street. (N.T., pp. 59-60). When Investigator Lyda arrived, the scene had been secured and she explained that a nine-millimeter shell casing had been found in the middle of the street. (Id. at 61-63; Commonwealth's Exh. No. 12). The victim was lying face down in a grassy area and the backpack he was wearing was open. (Id. at 65; Commonwealth's Exh. Nos. 4, 5). Upon rolling the victim over, Investigator Lyda discovered that victim had a ten-dollar bill in the waistband of his pants. (Id. at 66; Commonwealth's Exh. No. 6). She also testified that inside a zipped compartment of the backpack, a syringe and water bottle was found. (Id.; Commonwealth's Exh. No. 7). Investigator Lyda also photographed a cluster of several small rubber bands near the victim, explaining that she thought they may have fallen out of the backpack. (Id. at 66-67; Commonwealth's Exh. No. 9).
As part of her investigation, Investigator Lyda fingerprinted the victim, who was identified as Jeremanuel Negron-Quiles. (Id. at 68). Later in the day she also collected video footage from a firehouse located near the scene, while a detective collected video footage from a home located at 1331 Kittatinny. (Id.). Investigator Lyda attended the autopsy of the victim on July 10, 2018, where it was determined he was shot and there was a through and through bullet path from the victim's back to the front. (Id. at 69).
William Kimmick, a detective with the Dauphin County District Attorneys' office testified that on July 6, 2018, he was called to a crime scene located at 14th and Kittatinny Streets in Harrisburg. (N.T., pp. 71-73). Detective Kimmick stated that the scene was secured when he arrived. (Id. at 73). He indicated that a nine-millimeter casing was found in the middle of the intersection at 14th and Kittatinny Streets. (Id. at 74). Detective Kimmick explained the scene where the homicide occurred, and that there was video footage obtained from cameras located on a firehouse nearby and a home located at 1331 Kittatinny. (Id. at 82). Detective Kimmick described the area, generally, as a high drug and high crime area. (Id. at 85). He further testified that in an alleyway near where the body was found, a gray and orange Boston Celtics hat was found. (Id. at 86-88; Commonwealth's Exh. No. 16). Detective Kimmick explained that the hat stood out because it looked too 'new' to be strewn in with the garbage contained in the alley. (Id. at 88). Detective Kimmick stated that a backpack the victim had on his person was completely unzipped and a ten-dollar bill was retrieved from the waistband of the victim's pants, (Id. at 90). He further testified that a water bottle, syringe and tourniquet were the only items contained in the backpack. (Id. at 90-91).
Wayne Ross, M.D., a forensic pathologist, testified that he performed an autopsy on the victim, Jeremanuel Negron-Quiles on July 10, 2018. (N.T., p. 102). The fatal injury was a gunshot wound to the back, which travelled through the back and went through the abdomen and chest, and through the liver as well as the heart, and exited through the front of the chest. (Id.). Due to the lack of soot or gunshot powder residue, Dr. Ross opined that the gunshot was fired at least three to four feet away or greater. (Id.).
Christopher Silvio, a detective with the Harrisburg Bureau of Police, specifically the Special Operations section in the Criminal Investigations Division, testified that on July 6, 2018, he responded to a call to the area of 13th and Kittatinny Streets. (N.T., pp. 119-122). Detective Silvio identified the body of a male, later determined to be Jeremanual Negron-Quiles, lying face down in front of 237 South 14th Street. (Id. at 122-123). During his investigation, Detective Silvio spoke with a resident who lived at 229 South 14th Street who relayed that she and her husband heard a single gunshot at around 12:30-1:00 a.m.; however, they did not look outside. (Id. at 131). Detective Silvio testified that a camera located on a firehouse across the street captured video of the moments leading up to the shooting, (Id.; Commonwealth's Exh. No. 17). Detective Silvio indicated that a black two door vehicle was seen in the video and upon viewing still frame photographs taken from the video, he observed a yellow pinecone airfreshner hanging from the rearview mirror. (Id. at 135).
The video showed three individuals exiting the vehicle: the driver wearing a tannish/beige shirt, the front seat passenger in a red shirt with white writing, and the back seat passenger wearing a red shirt and hat. (Id. at 136). Upon further review of the video, Detective Silvio noticed one of the individuals tucking what appeared to him to be a handgun into the waistband of his pants. (Id. pp. 136-137). The three individuals can be seen exiting the vehicle on 14th Street and then enter a pathway between abandoned houses. (Id. p. 138). From this video angle, the, individual who was the front seat passenger is seen running back to the vehicle, getting inside and driving away. (Id. At 144). Detective Silvio testified there was a second angle provided from the camera located on the firehouse. (Id. at 145; Commonwealth's Exh. No. 18). This angle also shows the three individuals from the black vehicle walk towards the footpath and then the individuals can be seen exiting the footpath; Detective Silvio indicated that a gray and orange hat was found in this area by Officer Kimmick. (Id., at 150).
Detective Silvio explained that a third video was obtained from a camera located on a house at 1331 Kittatinny Street. (Id. at 152; Commonwealth's Exh. No. 19). In that video, an individual in a tan shirt is seen jogging from the direction of 14th Street and enters a home. (Id. at 153). Shortly thereafter, the individual exits the home and gets into a vehicle in what Detective Silvio agreed was a hurried fashion. (Id. at 154).
Following Officer Rosinski's discovery of the suspect vehicle, Detective Silvio identified Appellant as one of the individuals seen in the video. (Id. at 151-152). Detective Silvio interviewed Appellant on April 23, 2019 at the Harrisburg Police building. (N.T., 4/5/22, p. 165; Commonwealth's Exh. No. 21). During this interview, Appellant identified one of the men he was with the night of July 6, 2018 by the name of 'Kelvo.' (Id. at 167; Commonwealth's Exh. No. 11). Detective Silvio indicated that he performed a Facebook search and was able to determine 'Kelvo's' name to be Kelvin Figueroa, which confirmed the name ultimately provided to him by Appellant. (Id. at 167).
Appellant was interviewed for a second time on October 29, 2019, during which Appellant indicated that on July 6, 2018, 'Kelvo' called him. (Id. at. 171-174; Commonwealth's Exh. No. 22). Detective Silvio testified that during Appellant's first interview, he stated that he met up with 'Kelvo' and the other individuals at Mercado's, a pizza restaurant, when he went to get something to eat. (Id.).
During this second interview, Appellant mentioned that he had been to the area of 14th and Kittatinny earlier in the evening on the night of the shooting. (Id. at 176). Detective Silvio explained that because months had gone by, it was not possible to obtain the video from that time frame. (Id.). Appellant identified Alexanther Mena, aka 'Chino' during the interview as one of the individuals who was present during the incident on July 6, 2018. (Id. at 179). Detective Silvio testified that during Appellant's initial statement he acknowledged that the victim was wearing a backpack and a gray and orange hat. (Id. at 183).
During Appellant's initial interview, he stated that his friend. 'Kelvo' wanted to go look for the victim because the victim owed him money. (Commonwealth's Exh. No. 21, I. 238-276). Appellant stated that he saw 'Kelvo' at Mercados restaurant and that he asked him for a ride to look for the victim. (Id. at I. 353-76). Appellant stated that they were in front of an abandoned house in front of the fire station, (Id. at I. 480-481). Appellant explained that they found the victim talking to the 'Dominicans' and the victim and 'Kelvo' got into a fight. (Id. at. I. 1448 - 1484). Appellant explained that the victim began to run away from them, and he (Kelvo) had a gun and shot the victim. (Id. at I. 496-503). Appellant did not know that 'Kelvo' was going to shoot the victim. (Id. at I. 520). Appellant stated that the shot was fired near the intersection of 14th and Kittatinny. (Id. at I. 1124-1128).
Following the shooting, Appellant returned to his parked car and then picked 'Kelvo' up at a girl's apartment. (Id. at I. 522-616). In the car, Appellant asked 'Kelvo' why he shot the victim, (Id. at I. 630-637). Appellant stated that following the shooting, 'Kelvo' went to Puerto Rico. (Id. at l. 762-764).
Appellant stated that he went to Hall Manor after the shooting because he was staying with his friend Miguel, at his aunt's house. (Id. at I. 818-834). Appellant returned to where the victim was shot because he was not sure whether he was dead or injured, or even got hit. (Id. at I. 848- 862). During Appellant's second interview with police, he indicated that on July 6, 2018, he tucked a BB gun into the waistband of his pants when he and 'Kelvo' went looking for the victim. (Commonwealth's Exh. No. 22; 1.98-119).
At trial, Appellant testified that on July6,2018, he was in the area of Kittatinny and 14th Street 'hanging out' when he decided to get something to eat. (N.T., 4/5/22, p. 235 -237). He saw 'Kelvo' and 'Alex' at the pizza shop and they asked him for a ride. (Id. at 237). Appellant testified that he was friendly with 'Kelvo' but did not know him well, and he did not know 'Alex' before that night, and he did not see him again after that night. (Id. at 237-238). Appellant testified that 'Kelvo' was driving his car when they pulled up to the area of 14th and Kittatinny where they parked, and he did not know what they were there to do; there was never any discussion regarding Jeremanuel. (Id. at 239-240). Appellant testified that he was never told why they were in the area of 14th and Kittatinny Street, and only found out after the fact. ((Id. at 241). Appellant testified that upon getting out of the car, he tucked a BB gun into his pants and pulled his shirt over it. (Id. at 244). He explained that he always had a BB gun in his car but did not recall where he got it from. (Id. at 243).
Appellant explained that after the three men got out of the car, they walked up an alleyway and came to an open, vacant lot where several 'Dominican" people were with the victim. (Id. at 242). Appellant stated that 'Kelvo' and Jeremanuel were about 30 feet from him when he saw Jeremanuel strike 'Kelvo' in the face. (Id. at 246). Appellant then ran over to where the two men were and grabbed Jeremanuel to prevent him from hitting 'Kelvo' again, (Id. at 247). Jeremanuel then ran from the area and Appellant and 'Kelvo' begin walking back towards 14th Street, (Id. at 249). Appellant testified that he saw another individual, Alex Mena, and began talking to him. (Id.). Appellant explained that shortly thereafter, he heard a 'boom.' (Id.). Appellant froze because he was not sure where the shot came from or if anyone was hit; he then ran back to his car. (Id. at 250). A few minutes later 'Kelvo' called Appellant to pick him up and he overheard 'Kelvo' on his phone as king the person on the other end whether he 'hit him.' (Id. at 251). Appellant then dropped 'Kelvo' off at his aunt's house in the 'suburbs.' (Id. at 252).
Appellant explained that he did not go to the police because he was fearful and did not want any trouble, (Id. at253). He explained that nine months later he was questioned by the police regarding the incident, (Id.). He did not have a lawyer when he was questioned and did not ask for one. (Id.). Appellant spoke to 'Kelvo' once following the incident and believes he is in Puerto Rico. (Id. at 253 - 254). Appellant testified that at no time during that evening did he know 'Kelvo' had a gun or that Jeremanuel owed 'Kelvo' money, and he did not participate in threatening him in anyway during the events of that evening. (Id. at 255 -257).
Here, Appellant gave varying explanations regarding how the sequence of events transpired on the night of July 6, 2018. Appellant initially stated that he met up with 'Kelvo' at the pizza shop when he decided to go get food, but then stated that 'Kelvo' called him for a ride. Additionally, while Appellant testified during trial that he did not know why 'Kelvo' asked for a ride to 14th and Kittatinny on that evening, he gave statements to the police that the victim owed 'Kelvo' money and that he wanted a ride to go look for him. The video evidence adduced at trial confirmed that Appellant, along with 'Kelvo' and at least one other individual, went looking for the victim on the night of July 6, 2018. Appellant maintained that he did not know 'Kelvo' was going to shoot the victim; however, Appellant was present when the victim was shot. Further, Officer Rosinski, Investigator Lyda, and Detective Kimmick all testified that upon finding victim's body lying on the sidewalk, face down, his backpack was opened. Officer Rosinski specifically stated that in his experience as an officer, the open book bag appeared to be a robbery.
Although Appellant maintained that he did not know 'Kelvo' was going to shoot the victim, because there was evidence to support the conclusion that the victim was robbed by the men either before they confronted him or, afterwards, that knowledge was irrelevant concerning his conviction for second degree murder. Clearly, the evidence sh owed that Appellant and two others went specifically looking forth e victim. They looked for him because he owed 'Kelvo' money. The victim was shot, and his backpack was ripped open. That evidence is sufficient to prove robbery and second-degree murder.
Because the evidence presented was sufficient to sustain Appellant's convictions of second-degree murder, criminal conspiracy to engage in robbery, and robbery, this argument lacks merit.
Finally, Appellant argues that the jury's verdict of guilty of second-degree murder, criminal conspiracy to engage in robbery, and two (2) counts of robbery was against the weight of the evidence.
Pennsylvania Rule of Criminal Procedure 607 ensures the timely presentation, and preservation, of weight claims by requiring that "[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." Pa.R.Crim.P. 607 A.
Here, prior to sentencing, Appellant filed a post-sentence motion alleging that the verdict was against the weight of the evidence and seeking a new trial; this motion was denied by Order issued on May 25, 2022.
The motion failed to articulate any argument as to how the verdict was against the weight of the evidence.
[T]he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, the Superior Court may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Taylor, 63 A.3d 327, 330 (Pa.Super.2013).
As discussed above, the evidence presented at trial supports Appellant's convictions for second-degree murder, criminal conspiracy to engage in robbery, and two (2) counts of robbery. Because Appellant has not specifically highlighted how the verdict was against the weight of the evidence and discerning nothing in the verdict that shocks one's sense of justice, we conclude that Appellant's argument in this regard lacks merit.
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