Com. v. Montero, K. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KELVIN MONTERO, : No. 1452 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, December 20, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0000977-2012
BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2015
This is a direct appeal from the judgment of sentence entered
December 20, 2013, in the Court of Common Pleas of Philadelphia County
following Kelvin Montero’s convictions of first-degree murder, carrying a
firearm without a license, and possessing an instrument of crime. 1 We
affirm.
The facts, as aptly summarized by the trial court, are as follows:
In the early morning hours of September 26,
2011, 16-year-old Jesus Rivera (Jesus) was still out
1
On July 22, 2013, appellant was tried for the charges of murder,
conspiracy to commit murder, carrying a firearm without a license, and
possessing an instrument of crime; appellant was found guilty of conspiracy
to commit murder and sentenced to a term of 18 to 40 years of
imprisonment. A mistrial was declared as to the remaining three charges.
Appellant was retried for those three crimes at the instant trial, which began
on December 17, 2013. An appeal is pending before this court concerning
the conviction of conspiracy at No. 452 EDA 2014
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celebrating the Puerto Rican Day Parade in his
Philadelphia neighborhood when he was struck and
killed by two stray gunshots fired by Kelvin Montero
(the defendant). After the parade, which had taken
place on September 25, 2011, people were
celebrating all along the area of 5th and Cambria
Streets, congregating on street corners, playing
music, and hanging out in and around their vehicles.
This was the unofficial parade “after party.”
It was at the Puerto Rican Day Parade after
party that the defendant fought with his girlfriend in
front of a street of witnesses, and punched Saul
Rodriguez (Rodriguez) in the face.[Footnote 5] At
approximately 8:30 P.M., Rodriguez was standing
near a black Lincoln Town Car full of girls, when the
defendant walked up to the car, pulled his girlfriend,
Cynthia Vasquez (Vasquez), out of it, and dragged
her down the street. Angel Ducvo
(Ducvo)[Footnote 6] and Rodriguez saw the
defendant strike Vasquez. After bystanders tried to
intervene, a fight ensued but was broken up by the
police. Later, the defendant punched Rodriguez in
the face when Rodriguez was trying to talk to the
girls from the Lincoln Town Car again. After
Rodriguez was punched, John Perez,[Footnote 7]
who was described as a bald-headed, tattooed man,
got out of a burgundy red pickup truck and
approached Rodriguez, yelling: “you all don’t know
who you’re messing with. That’s my boy. We’ll be
back. You don’t know who you’re fucking with.”
[Footnote 5] Rodriguez provided a
statement about this encounter to
Detective Joseph Bamberski. Exhibit
C-19. When Rodriguez was called to
testify, he recanted his prior statement.
Rodriguez admitted that the signature on
the statement appeared to be his, but
stated that he did not remember signing
it. Rodriguez’s account of the events of
September 25, 2011 was admitted for its
truth pursuant to Brady/Lively.
Commonwealth v. Brady, 71 A.2d 34, 36
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(Pa.Super. 1987); Commonwealth v.
Lively, 703 A.2d 467 (Pa.Super. 1997).
[Footnote 6] Angel Ducvo’s nickname is
“Abo.” At trial, Ducvo denied telling the
truth in the statement he made when he
was brought into the Homicide Unit on
September 28, 2011. Exhibit C-20.
Ducvo’s prior statement was also
admitted for its truth pursuant to
Brady/Lively.
[Footnote 7] Perez was initially charged
as a co-defendant. On July 15, 2013,
Perez entered a negotiated guilty plea to
murder of the third degree (F-1),
criminal conspiracy (F-1), and persons
not to possess firearms (F-2). 18 Pa.C.S.
§§ 2502(c), 903, and 6105(a)(1),
respectively. Per the negotiations, this
Court sentenced Perez to an aggregate
term of not less than 22-and-a-half years
nor more than 45 years[‘] imprisonment.
Later that night, after 12 A.M., Angel Figueroa
(Figueroa), who had also witnessed the earlier fight,
saw the defendant and Perez again at 5th and
Cambria Streets. The defendant was wearing black
boots and a black hooded sweatshirt, and asked
Figueroa for the man who was fighting earlier.
Figueroa testified that the defendant had his hands
under his sweatshirt, as if to indicate that he had a
gun on him. A short time later, the
defendant[Footnote 8] opened fire, firing 30 shots in
all directions.[Footnote 9]
[Footnote 8] Keyshla Rivera, Jesus’s
sister, identified the defendant as the
shooter. Ducvo also identified the
defendant as the shooter pursuant to a
photo array compiled by the police.
During the shooting, Ducvo did not
actually see the shooter’s face, but he
was able to recognize the defendant as
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the shooter based on their earlier
encounter on Westmoreland Street
20 minutes before the shooting began.
[Footnote 9] At the crime scene, 30 fired
cartridge casings (FCCs) were found. At
12:40 A.M. Officer Brian Waters
responded to a call at 5th and Cambria
Streets to look for a burgundy Ford
F-150 pickup truck. Officer Waters
stopped the truck, which was being
driven by Perez. The Ford pick-up was
taken in to the police station as
evidence. A later search of the truck
revealed a Glock 9mm handgun in a
hidden compartment on the right side of
the front dashboard. Additionally, two
handgun magazines were found: one
empty 30-round magazine and another
full 15-round magazine. Officer
Lawrence Flagler, a ballistics expert,
determined that all 30 FCC’s were fired
from the 9mm handgun found in that
truck.
After midnight on September 26, 2011, Jesus
and his sister Keyshla Rivera (Keyshla) were
standing on the corner of 5th and Cambria Streets,
waiting for Keyshla’s friend to pick them up, when
they heard people shouting, “they’re shooting!”
Upon hearing the gunshots, Keyshla glanced in the
direction of the commotion, and witnessed the
defendant in all black, “shooting like crazy” down the
street. Keyshla and Jesus ran in the opposite
direction of the shooter down Fairhill Street,
attempting to seek safety inside two homes. After
being turned away from the two homes on Fairhill
Street, Keyshla told her brother to duck down behind
two cars for cover. Finally, after the shooting
ceased, Keyshla noticed her brother, Jesus, on the
ground screaming for help. Jesus was struck by two
bullets, one to the right side of his chest that went
through his heart and lungs, and a second to the
right upper arm.[Footnote 10]
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[Footnote 10] Associate Medical Examiner, Dr. Aaron
Rosen, testified that one of the bullets penetrated
the right side of Jesus’s body below his armpit. This
bullet passed through the thoracic cavity and Jesus’s
right lung, causing internal bleeding. Dr. Rosen
stated that the other bullet was retrieved in the
upper right arm and fractured Jesus’s humerus.
The search for the defendant commenced on
September 28, 2011, after an arrest warrant had
been issued. On November 1, 2011, Detective Burke
found the defendant on the second floor of a home in
the Hunting Park neighborhood of Philadelphia, and
he was arrested.
Trial court opinion, 10/29/14 at 2-4 (citations to the notes of testimony
omitted).
Appellant was sentenced to life imprisonment for first degree murder.2
On December 27, 2013, a timely post sentence motion was filed; the motion
was denied on April 23, 2014. On May 9, 2014, a timely notice of appeal
was filed.
Herein, appellant presents the following two issues for our review:
1) Whether the evidence was insufficient to
support the verdict of guilt as to the charge of
first degree murder for lack of specific intent to
kill[?]
2) Whether the verdict was against the weight of
the evidence as to the conviction for first
2
The sentence for murder in the first degree was ordered to run concurrent
with the sentence imposed on September 10, 2013 for conspiracy. As to the
charge of carrying a firearm without a licesne, appellant was sentenced to a
concurrent term of two to seven years’ imprisonment; as to the charge of
PIC, appellant was sentenced to a concurrent term of one to five years’
incarceration.
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degree murder, as the crime scene facts
indicate that the shooter aimed at a car, which
conduct is evidence of reckless endangerment
of other people, but not evidence of specific
intent to kill[?]
Appellant’s brief at 4.
We begin by reviewing the sufficiency of the evidence for appellant’s
first-degree murder conviction. “To obtain a first-degree murder conviction,
the Commonwealth must demonstrate that a human being was unlawfully
killed, the defendant perpetrated the killing, and the defendant acted with
malice and a specific intent to kill.” Commonwealth v. Montalvo, 986
A.2d 84, 92 (Pa. 2009), citing Commonwealth v. Kennedy, 959 A.2d 916,
920 (Pa. 2008); 18 Pa.C.S.A. § 2502(a). Specific intent to kill can be
established through circumstantial evidence, such as the use of a deadly
weapon on a vital part of the victim’s body. Commonwealth v. Rega, 933
A.2d 997, 1009 (Pa. 2007).
We conclude, without hesitation, that when viewed in the light most
favorable to the Commonwealth as verdict winner, the evidence is sufficient
to support appellant’s conviction of first-degree murder. The evidence
clearly suggests a presence of mind belying appellant’s contentions he
lacked specific intent. A day prior to the shooting, appellant’s accomplice
shouted, “you all don’t know who you’re messing with. That’s my boy. We’ll
be back. You don’t know who you’re fucking with.” (Notes of testimony,
12/17/14 at 155.) Twenty minutes before the shooting, Figueroa witnessed
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appellant and his cohort, Perez, looking for the men they had fought earlier.
Figueroa testified appellant had his hands under his sweatshirt, as if to
indicate that he had a gun. (Id. at 165-166.) A short time later, appellant
fired 30 shots, in all directions, down a street that was populated with
people celebrating the Puerto Rican Day Parade. (Id. at 173.) Viewed in
the light most favorable to the Commonwealth as the verdict winner, the
evidence was sufficient to support a finding that Rivera was unlawfully killed,
appellant killed him, and he acted with malice and specific intent to kill. See
Commonwealth v. Smith, 861 A.2d 892 (Pa. 2004) (where appellant,
along with his co-conspirator, fired multiple shots into crowd of people
gathered outside club and one bullet struck and killed victim, evidence was
clearly sufficient to sustain first-degree murder conviction, regardless of who
fired fatal shot); Commonwealth v. Gibson, 688 A.2d 1152 (Pa. 1997)
(where defendant and co-conspirators went into crowded bar with intent of
committing robbery, fired shots into crowd, and killed two patrons, such
evidence supported first-degree murder conviction, regardless of who fired
fatal shots). No relief is due.
Next, appellant contends that his first-degree murder conviction was
against the weight of the evidence, again disputing the jury’s determination
that he possessed specific intent to kill. (Appellant’s brief at 13-166.) Our
standard of review is as follows:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
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of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis
omitted) (citations omitted).
Appellant’s weight of the evidence argument is grounded in his theory
that his aggression was directed at the car struck by some of the bullets he
fired rather than at others in range of the gunfire, especially Rivera. This
contention amounts to an assertion that his version of events should have
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been credited over the Commonwealth’s. In declining to find that the
conviction was against the weight of the evidence, the trial court found the
verdict reached was not so contrary to the evidence as to shock one’s sense
of justice. (Trial court opinion, 10/29/14 at 5-6.) We find no abuse of
discretion in such a conclusion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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