Com. v. Pagan, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESUS CHUITO PAGAN, :
:
Appellant. : No. 503 EDA 2018
Appeal from the Judgment of Sentence, June 11, 2015,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003753-2014.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 03, 2019
As part of a September-2013 push to expand his Philadelphia market-
share, heroin-dealer Jesus Chuito Pagan held a drug give-away on the streets
of the Kensington neighborhood. Free samples attracted quite the crowd of
addicts. The crowd, in turn, attracted the attention of Charles Jones and Justin
Carter, community members concerned for the health and safety of the local
children.
Mr. Jones approached Carlos Amoros, Pagan’s mid-level dealer whose
nearby home served as a drug-distribution center. Mr. Jones asked Amoros
to end the give-away. Amoros agreed.
Overhearing this conversation, Pagan instructed his street-level dealer,
Jonathan Maldonado, to give him a handgun. Maldonado complied, and Pagan
____________________________________
* Former Justice specially assigned to the Superior Court.
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opened fire. The addicts began to flee. Mr. Carter also fled, but Pagan shot
him in the back and killed him.
The Commonwealth charged and a jury convicted Pagan of murder of
the first degree and three lesser offenses.1 The trial court sentenced Pagan
to life in prison without parole for the murder conviction and various shorter,
consecutive sentences for the others.
Pagan appeals from that judgment of sentence. Because the arguments
in his brief are unpersuasive under our applicable standard of review, no relief
is due.
Pagan’s three claims of error are:
1. Did the trial court err by deeming the Commonwealth’s
witness, Carlos Amoros, unavailable to testify and
permitting the Commonwealth to read his preliminary-
hearing testimony to the jury?
2. Did the trial court err and cause him irreparable harm by
permitting hearsay testimony from a detective?
3. Was the verdict against the weight of the evidence?
See Pagan’s Brief at 4 – 5. The first two issues challenge evidentiary rulings.
The third challenges the trial court’s refusal to find the verdict to be against
the weight of the Commonwealth’s evidence.
____________________________________________
1 18 Pa.C.S.A. § 2502(a). Pagan’s lesser offenses were possession of an
instrument of a crime, carrying a firearm without a license, and carrying a
firearm in the City of Philadelphia. 18 Pa.C.S.A. § 907; 18 Pa.C.S.A. § 6106;
18 Pa.C.S.A. § 6108.
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Pagan acknowledges in his brief that this Court’s “standard of review
with regard to admissibility of evidence and weight of the evidence is an abuse
of discretion.” Id. at 2; see also Commonwealth v. Nelson, 652 A.2d 396,
399 (Pa. Super. 1995) (indicating that evidentiary rulings are subject to an
abuse-of-discretion review, rather than a de novo one); and Commonwealth
v. Diggs, 949 A.2d 873, 880 (Pa. 2008) (holding that a trial court’s ruling
regarding “a weight of the evidence claim is the least assailable of its rulings”).
An abuse of discretion only “occurs if the trial court renders a judgment that
is manifestly unreasonable, arbitrary or capricious; that fails to apply the law;
or that is motivated by partiality, prejudice, bias or ill-will.” Hutchinson v.
Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005). In other
words, a reasonable judgment by the trial court – even one this Court might
think is incorrect – is not an abuse of discretion, without something more.
In all three of his appellate arguments, Pagan pays no heed to our highly
deferential standard of review. Instead, he first reargues his theory of why
Amoros was not unavailable – i.e., that the Commonwealth did not make
reasonable efforts to procure him for trial. See Pagan’s Brief at 13 – 14. The
trial court explained its finding of unavailability as follows:
[Defense counsel] was provided with Amoros’ statements
and had the opportunity to cross-examine Amoros at the
preliminary hearing on the areas of bias, motive to lie, and
lack of credibility. Therefore, [Pagan] had the opportunity
to confront the witness against him.
Furthermore, the Commonwealth showed that it had not
been able, by reasonable means, to procure Amoros’
attendance at trial. [A police officer] personally served
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Amoros [a subpoena] two days before trial and confirmed
his intention to testify. [Multiple investigators] visited
Amoros’ residence and had spoken to his neighbors, wife,
and family, but were unable to locate him. [The
Commonwealth] was unable to locate [him] in custody, the
medical examiner’s office, or local hospitals. The
Commonwealth also obtained a bench warrant for Amoros
when he failed to appear.
* * * * *
The Court admitted Amoros’ statement from the
preliminary hearing, which is a formal legal proceeding
where [Pagan] had the full opportunity to cross-examine the
witness. [Pagan’s] reliance on both Commonwealth v.
Mangini, 425 A.2d 734 (Pa. 1981), at trial and
Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992), on
appeal is misplaced, because the Lively standard was
created in order to ensure “prior inconsistent statements
were given under highly reliable circumstances to warrant
admission as substantive evidence.” Lively, at 10.
Amoros did not adopt his prior statement given to police
during the investigation at the preliminary hearing and his
testimony had internal inconsistencies. However, [Pagan]
had the full opportunity to address these inconsistencies
during the preliminary hearing. Furthermore, the
Commonwealth presented Amoros’ testimony, with limited
omissions by agreement of the parties, by focusing on the
inconsistent statements. The jury was free to assign
whatever credibility it determined appropriate to this
testimony. Thus, this Court properly allowed Amoros’
preliminary-hearing testimony to be introduced at trial after
finding that Amoros was unavailable.
Trial Court Opinion, 6/29/18, at 34-35. Pagan fails to articulate how the trial
court abused its discretion in reaching its decision or that the above analysis
is manifestly unreasonable, arbitrary, or the result of bias, ill will, or prejudice.
We are therefore unpersuaded that an abuse of discretion occurred.
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In his second claim of error, Pagan simply presumes that the detective
offered hearsay testimony, even though the trial court ruled otherwise. See
id. at 16. Pagan argues that ruling prejudiced him.
We do not reach the question of prejudicial effect until after we conclude
an abuse of discretion occurred. By ignoring our standard of review and
arguing only prejudicial effect, Pagan has put his cart before the horse. Pagan
must first show that the trial court’s allowance of the testimony was an abuse
of discretion. He fails to do so.
Finally, in his third appellate issue, Pagan claims that the testimony of
the Commonwealth’s witnesses were “inconsistent and highly unreliable.” Id.
at 19. He also attempts to relitigate whether the jury should have heard the
unavailable Amoros’ preliminary-hearing testimony and the prejudicial effect
of the detective’s supposed hearsay. Pagan, however, never claims that the
trial court abused its discretion by deferring to the jury’s credibility findings or
reasonable inferences. He simply reargues, de novo, for a new trial on appeal.
Pagan has failed to contend or persuade us that the trial court abused
its discretion in any way. Accordingly, we dismiss all of his appellate issues
as meritless.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/19
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