Com. v. Lozano Garcia, O. ( 2017 )

J-S55045-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
OSCAR LOZANO GARCIA, :
:
Appellant : No. 1468 MDA 2016
Appeal from the Judgment of Sentence August 5, 2016
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002621-2014
BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 11, 2017
Oscar Lozano Garcia (Appellant) appeals from the sentence of life
imprisonment imposed following his conviction for first-degree murder. We
affirm.
The trial court aptly summarized the relevant factual and procedural
history of this matter as follows.
On September 22nd, 2014, the District Attorney of Luzerne
County filed a criminal information charging [Appellant] with one
count of criminal homicide, pursuant to 18 Pa.C.S. § 2501(a), for
the murder of Maria Brea, which occurred on December 14 th,
2012. [Appellant] was a citizen of Mexico who was working and
residing in Pennsylvania at the time of the crime. Prior to her
murder, Brea and [Appellant] lived together as boyfriend and
girlfriend at [Brea’s] apartment, located at 343 East Diamond
Avenue, Apartment 2B, City of Hazleton. Brea and [Appellant] also
lived with Brea’s two minor children[.]
After her family discovered that she was missing, Brea’s
family contacted the police. The Pennsylvania State Police
executed a search warrant at Brea’s residence on December 18th,
*Retired Senior Judge assigned to the Superior Court.
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2012. During their search, Trooper John R. Corrigan and Corporal
David Andreuzzi discovered a small storage room that had a small
closet and a second door which led to an attic area. The officers
noticed the attic door was padlocked, and that duct tape had been
placed along the left side and top of the door, and clear tape had
been placed along the right side of the door. They
also noticed that tissue paper was stuffed into the opening at the
bottom of the attic door. Once they removed the barriers to
accessing the attic, the officers observed a body wrapped in a
plastic sheet laying supine on the old tar roof portion of the attic.
Subsequently, a second search warrant was obtained to allow for
a homicide investigation. The body was taken to Wilkes-Barre
General Hospital, where an autopsy was performed and the body
was identified as [] Brea. The cause of death was determined to
be asphyxiation by strangulation, and the manner of death was
ruled a homicide.
Immediately following the December 14th, 2012 murder of
[] Brea, [Appellant] fled from Pennsylvania to Mexico with an
acquaintance, Juan Cervantes. [Appellant] was later arrested on
the Commonwealth’s Provisional Arrest Warrant, incarcerated
based on that warrant, and permitted to challenge the extradition.
The Mexican court granted the Commonwealth’s request for
extradition, and [Appellant] was subsequently returned to Luzerne
County, Pennsylvania by the United States Marshal Service. On
September 23rd, 2014, [Appellant] was arraigned, entered a plea
of not guilty, and requested a jury trial.
Counsel for [Appellant] submitted a motion to transcribe
discovery to Spanish, requesting that the court enter an order
stating that all discovery from the Commonwealth be transcribed
to Spanish. The documents were transcribed to Spanish at the
expense of the Public Defender’s Office on behalf of its client.
Trial in this matter was continued at least twice at the
request of counsel for the defense. On June 27th, 2016, after an
extensive colloquy by [the trial] court, translated into Spanish for
[Appellant] through two court interpreters, [Appellant] knowingly,
intelligently, and voluntarily waived his right to a jury trial and
elected to be tried by [the trial court]. A bench trial in the above-
captioned matter took place from June 27th, 2016 to June 30th,
2016. Following the full bench trial, on July 1st, 2016, [the trial]
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court found [Appellant] guilty of murder in the first degree.
Sentencing took place on August 5th, 2016[.]
Trial Court Opinion, 2/23/2017, at 1-3 (footnotes and unnecessary
capitalization omitted). On August 30, 2016, Appellant timely filed a notice of
appeal to this Court. Both Appellant and the trial court complied with the
mandates of Pa.R.A.P. 1925.
On appeal, Appellant asks this Court to consider the following question:
“whether the evidence presented by the Commonwealth was sufficient to
sustain a conviction for murder in the first degree?” Appellant’s Brief at 1.
A claim challenging the sufficiency of the evidence is a question of law.
Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000).
[O]ur standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be resolved
by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from
the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most favorable
to the Commonwealth, demonstrates the respective elements of
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a defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Hecker, 153 A.3d 1005, 1008 (Pa. Super. 2016) (citation
omitted).
There are three elements of first-degree murder: (1) a
human being was unlawfully killed; (2) the defendant was
responsible for the killing; and (3) the defendant acted with malice
and a specific intent to kill. As set forth in the third element, first-
degree murder is an intentional killing, i.e., a willful, deliberate
and premeditated killing. Premeditation and deliberation exist
whenever the assailant possesses the conscious purpose to bring
about death. The law does not require a lengthy period of
premeditation; indeed, the design to kill can be formulated in a
fraction of a second. Specific intent to kill as well as malice can
be inferred from the use of a deadly weapon upon a vital part of
the victim’s body. Whether the accused had formed the specific
intent to kill is a question of fact to be determined by the jury.
Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013) (internal citations
and quotation marks omitted).
Instantly, Appellant contends that the evidence was insufficient to
sustain his conviction because the Commonwealth (1) “failed to demonstrate
that the body autopsied [in this matter] was the body of Maria Brea[],” (2)
failed to prove beyond a reasonable doubt that Appellant was “responsible for
the killing”, and (3) failed to prove malice. Appellant’s Brief at 13-18. The
trial court found the evidence sufficient to support Appellant’s conviction and
addressed these arguments as follows.
The Commonwealth presented evidence that the victim,
Maria Brea, is dead. The Commonwealth presented credible
testimony and forensic evidence establishing that it was
[Appellant who] killed [] Brea. [Appellant] was the last person
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seen with [] Brea [while she was] alive. [Appellant] had access to
the plastic that was bound around her. Eleven of [Appellant’s]
finger prints were found on the tape that was wrapped around the
plastic: fingerprints from the tape that secured her ankles,
fingerprints from the tape that wrapped the plastic, and
fingerprints from the tape that sealed the attic door. The DNA of
[Appellant] was identified from [Brea’s] hand scrapings post-
mortem. Phone-tracking showed that [Appellant] was in
possession of [] Brea’s cell phone after her death. Co-workers of
[Appellant] saw him with scratches and acting nervous, contrary
to his usual calm demeanor. [Appellant] told his co-workers that
he was in a fight and that the police were looking for him.
[Appellant] fled to Mexico. The direct and circumstantial evidence
was both credible and sufficient to find beyond a reasonable doubt
that [Appellant] killed [] Brea.
The Commonwealth presented credible evidence that
[Appellant] killed [] Brea with the requisite specific intent and
legal malice. [Appellant] was aware that [] Brea was intent on
ending their relationship, and [] Brea did end her relationship with
[Appellant] just prior to her murder. Prior to [] Brea’s death,
[Appellant] both asked to bring home from work plastic sheeting
and made arrangements to travel to Mexico. On the day of the
murder, [Appellant] told [Brea] that he would leave after the
children went to school, ensuring that there would be no
immediate witnesses and the two would be alone. The method of
[] Brea’s death, manual strangulation, ensured [Brea’s] silence in
a daytime apartment setting with other residents likely to be
within earshot. The Commonwealth established that deliberate
acts were taken by [Appellant] following the initial altercation
between [Appellant] and Brea to ensure Brea’s death, including
placing a sock in [] Brea’s mouth, then a plastic grocery store bag
over Brea’s head, securing the bag with tape, and then proceeding
to wrap Brea’s body in a plastic sheet, which was subsequently
wrapped in gray duct tape. Particular attention was paid to
ensuring that [Brea’s] air passages were blocked, and that the
hands and feet were tightly bound, the hands with cordage and
duct tape. The meticulous nature of the gagging, binding, and
wrapping indicate[s] that, had the initial strangulation resulted in
mere unconsciousness, a specific intent was formed by [Appellant]
to kill [] Brea. These same bindings displayed a peculiar cruelty in
their thoroughness, and a reckless indifference to the life and
breath of [] Brea.
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Trial Court Opinion, 2/23/2017, at 6-8 (footnotes omitted).
The record before us supports the court’s findings. With respect to the
first element, the Commonwealth introduced Brea’s autopsy report and
testimony of Gary Ross, the forensic pathologist who performed the autopsy,
to establish that the body at issue was that of Brea. N.T., 6/27/2016, at 334-
36. Dr. Ross identified photographs of Brea’s body taken during his autopsy
and the report was entered into evidence with a note that the body had been
previously identified and was tagged as Brea. Id.
With respect to the second element, as the trial court noted, Appellant’s
fingerprints were discovered on the plastic and tape used to bind Brea. 1 His
DNA was found in her body. The testimony of Brea’s family established that
he had access, means, and motive to commit the crime. N.T., 6/27/2016, at
51-168. Further, Appellant’s coworkers testified that he did not show up to
work as scheduled on the day of Brea’s disappearance, that he abruptly quit
his job citing “big troubles at home,” and that he was uncharacteristically
“anxious” and had a scratch near his eye. Id. at 171-72; 175-76; 185-89.
Finally, the method of death clearly indicates malice.
In [Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307
(2008),] Pruitt admitted to breaking into the home of a 69-year-
old woman, covering her mouth with a towel, tying it, removing
1 Appellant in his brief sets forth a theory that he believes would explain the
presence of his fingerprints on the duct tape removed from Brea; however, he
did not testify at trial and this alternative theory was not argued to the trial
court.
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her clothing, tying her up, and leaving her there “while he went
upstairs to look for money.” 951 A.2d at 314. “When he came back
downstairs with the victim’s money, she was not moving.” Id. The
forensic pathologist testified that the victim’s death was caused
by “strangulation, most likely with the towel that was found
around her neck.” Id. Our Supreme Court held that the “evidence
is sufficient to support the mens rea element of first-degree
murder, i.e., a specific intent to kill.” Id.
Similarly, in [Commonwealth v. Keaton, 556 Pa. 442, 729
A.2d 529 (1999)], police found a partially decomposed body of
the victim, a former girlfriend of Keaton’s, in a basement of a
house known for crack-cocaine activity. A “pair of tights was tied
tightly around her neck as a ligature.” 729 A.2d at 534. The
autopsy revealed the victim had recently used alcohol and
cocaine. Keaton admitted to having tied up the victim, “but
claimed it was merely part of a ‘sex game.’” Id. at 535. He also
admitted to having left the victim unconscious and tied up in the
basement while he left the house to obtain more drugs. Keaton
claimed that the evidence was insufficient to sustain a first-degree
murder conviction because he did not intentionally kill the victim.
Our Supreme Court pointed out that “the act of tightening a strap
around a person’s neck, with enough force and violence to kill the
victim, [is] sufficient to permit a finding of specific intent to kill.”
Id. at 537. Additionally, this Court took into account the fact that
Keaton left the victim tied up “on the floor, unconscious in the
pitch black of the basement.” Id.
Commonwealth v. Payne, -- A.3d --, 2017 WL 3911803 at *6 (Pa. Super.
2017).
Here, the testimony established that the victim was meticulously gagged
and bound. Dr. Ross opined that it was the combination of strangulation and
restricting Brea’s airways that caused her death, stating that “[j]ust because
a compressive force was applied to the neck and hyoid fracture doesn’t
necessarily mean she would die instantaneously at that point. She may have
been rendered unconscious. But placing the plastic bag over her head basically
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obliterating any chance of any oxygen coming into her would certainly cause
her death.” N.T., 6/27/2016, at 366.
Additionally, it is well-established that “[a]ctions of the accused that
occur before, during, and after are admissible as evidence to show malice.
[E]vidence of acts to conceal a crime, such as disposing of the victim’s body,
are relevant to prove the accused’s intent or state of mind.” Payne, 2017 WL
3911803 at *6 (emphasis in original). Appellant’s trip to Mexico may have
been planned before the murder; however, it was reasonable for the trial court
sitting as finder of fact to conclude that Appellant either planned the murder
to coincide with the trip, or used the trip as an opportunity to commit the
murder. Finally, the evidence also established that Appellant taunted Brea’s
family by laughing and telling them that he left Brea “at home” or “at the
house” and indicating they should look for her. N.T., 6/27/2016, at 86-87;
103; 130.
Based on this evidence, we agree with the trial court that the
Commonwealth met its burden of establishing Appellant’s guilt beyond a
reasonable doubt.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2017
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